London v. Polishook

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-9127
• Citation: 189 F.3d 196
• Parties: (2nd Cir. 1999) STEVEN LONDON and THE NEW CAUCUS, Plaintiffs-Appellants, v. IRWIN POLISHOOK, Defendant-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 196

189 F.3d 196 (2nd Cir. 1999)

STEVEN LONDON and THE NEW CAUCUS, Plaintiffs-Appellants, v. IRWIN POLISHOOK, Defendant-Appellee.

Docket No. 98-9127

August Term, 1998

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Argued May 3, 1999

Decided Aug. 13, 1999

Appeal from a judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) dismissing plaintiffs' claims for lack of subject matter jurisdiction. On appeal plaintiffs contend (1) that because the jurisdictional issue was closely intertwined with the merits of plaintiffs' claims, the district court erred by dismissing on jurisdictional grounds before the case had reached the summary judgment or trial stage and (2) that the district court's substantive analysis of the subject matter jurisdictional issue was in error as well. Although we do not agree that the district court had to defer decision of the jurisdictional issue until the case itself was ripe for disposition via summary judgment or trial, we hold that the district court failed to give adequate consideration to plaintiffs' submissions as to jurisdiction, so that the court's substantive analysis was flawed.

Judgment VACATED and action REMANDED.

LAUREN ESPOSITO, Kennedy, Schwartz & Cure, New York, NY (Arthur Schwartz, Kennedy, Schwartz & Cure, New York, NY) for Plaintiffs-Appellants.

HANAN B. KOLKO, Vladeck, Waldman, Elias & Englehard, P.C., New York, NY (Irwin Bluestein, Vladeck, Waldman, Elias & Englehard, P.C., New York, NY) for Defendant-Appellee.

Before: CABRANES and SACK, Circuit Judges, and SHADUR,^*. District Judge.

SHADUR, District Judge:

The New Caucus a political faction within Professional Staff Congress ("Congress") and its leader Steven London (purely for convenience we will refer to both plaintiffs as "New Caucus," spoken of in the singular) appeal from a judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) dismissing New Caucus' claims for lack of subject matter jurisdiction. They contend (1)that because the jurisdictional issue was closely intertwined with the merits of New Caucus' claims, the district court erred by dismissing on jurisdictional grounds before the case had reached the summary judgment or trial stage and (2) that the district court's substantive analysis of the subject matter jurisdictional issue was in error as well.

Although we do not agree that the district court had to defer decision of the jurisdictional issue until the case itself was ripe for disposition via summary judgment or trial, we hold that the district court failed to give adequate consideration to plaintiffs' submissions as to jurisdiction, so that the court's substantive analysis was flawed. We therefore vacate the judgment of dismissal and remand for further proceedings consistent with this opinion.

Background

Congress is a labor union representing employees of the City University of New York ("CUNY") and the Research Foundation of CUNY ("Research Foundation"). ¹ On June 23, 1998 Congress and CUNY reached a tentative accord as to a new collective bargaining agreement, and Congress sent a letter to its members advising them that the agreement would be submitted to Congress' Executive Council and Delegate Assembly for consideration. On July 7, 1998 the Executive Council met and voted to recommend to the Delegate Assembly that the proposed agreement be ratified. Later that day the Delegate Assembly voted to approve the agreement and to recommend ratification to the union membership. Congress then began to prepare a mailing to its members describing the agreement and containing a secret ballot for the ratification vote.

On July1, 1998 New Caucus had sent Congress a letter seeking the opportunity to send a mailing to Congress' members before the ratification vote. New Caucus said it would pay for the mailing, but it asked that Congress make mailing labels available. When Congress denied that request, on July 14, 1998 New Caucus filed the complaint in this action and moved for a preliminary injunction and temporary restraining order. New Caucus claims that Congress violated Labor Management Reporting and Disclosure Act §411(a)(1)² by refusing to permit New Caucus to use the mailing list to provide union members with information about the upcoming vote. New Caucus sought to bar Congress' own distribution of the ratification ballots until it granted New Caucus permission to use the mailing list.

On July 15, 1998, one day after the complaint was filed and without a hearing on the matter, the district court issued an order denying the requested relief and dismissing the claims for lack of subject matter jurisdiction. Dismissal was predicated on the premise that jurisdiction was wanting because Congress, as a labor union assertedly representing only employees of public employers, is not governed by the Act. New Caucus brought this appeal on the grounds stated at the outset of this opinion.

Standard of Review

In our review of a district court's determination of subject matter jurisdiction pursuant to Fed. R. Civ. P. ("Rule") 12(b)(1), we examine factual findings for clear error and legal conclusions de novo (Woodward Governor Co. v. Curtiss-Wright Flight Sys., Inc., 164 F.3d 123, 126 (2d Cir. 1999)). This appeal involves both types of evaluation.

Subject Matter Jurisdiction

Section 412 confers federal jurisdiction on suits by persons whose statutory rights are infringed by a "labor organization." Section 402(i) in turn defines "labor organization" as an entity that "exists for the purpose, in whole or in part, of dealing with employers concerning" various terms of employment. Section 402(e) excludes from the definition of employer "the United States or any corporation wholly owned by the Government of the United States or any State or political subdivision thereof."

Here the district court's decision to dismiss the New Caucus claims for lack of subject matter jurisdiction centered on the determination that Congress is not governed by the Act because it represents only employees of public employers. In response New Caucus does not dispute that CUNY is a public employer or, to use the Act's language, a "political subdivision." New Caucus asserts, however, that Research Foundation is a private employer and that Congress' representation of its employees brings Congress within the Act's coverage, as confirmed by 29 C.F.R. §451.3(a)(4) and a number of cases Martinez v. American Fed'n of Gov't Employees, 980 F.2d 1039, 1042 (5th Cir. 1993); Hawaii Gov't Employees Ass'n v. Martoche, 915 F.2d 718, 720 (D.C. Cir. 1990); Laity v. Beatty, 766 F.Supp. 92, 97-98 (W.D. N.Y. 1991), aff'd, 956 F.2d 1160 (2d Cir. 1992)(unpublished table opinion); see Berardi v. Swanson Mem'l Lodge No. 48 of the Fraternal Order of Police, 920 F.2d 198, 201 (3d Cir. 1990)(dictum) all subscribing to the proposition that unions that represent and bargain for both public and private sector employees are subject to the Act. New Caucus says not only that the district court erred in holding that Congress is not a labor organization within the Act's meaning, but also that the court did so too early in the game and by using the wrong standard.

It is true, as New Caucus urges, that as Careau Group v. United Farm Workers of Am., AFL-CIO, 940 F.2d 1291, 1293 (9th Cir. 1991)(citation and quotation marks omitted) has put it:

[W]here jurisdiction is so intertwined with the merits that its resolution depends on the resolution of the merits, the trial court should employ the standard applicable to a motion for summary judgment.

According to Careau, id. at 1293-94, the district court should dismiss such a claim for lack of jurisdiction only if there are no triable issues of fact.

Here the notion of "intertwining," in a sense that would then trigger the application of summary judgment standards against the party challenging subject matter jurisdiction, is not at work. After all, when a bona fide dispute is raised as to the presence of federal jurisdiction it is the affirmative burden of the party invoking such jurisdiction (in this instance, New Caucus as plaintiff) to proffer the necessary factual predicate--not simply an allegation in a complaint--to support jurisdiction (United Food & Commercial Workers Union, Local 919 v. Centermark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994)).

In this instance the district court's failure to consider New Caucus' material jurisdictional evidence denied New Caucus any genuine opportunity to meet that burden. In terms of the resulting dismissal, that denial had the same effect as an erroneous grant of summary judgment in the face of a nonmovant's identification of genuine issues of material fact. But the district court's error with regard to the jurisdictional analysis does not call, as New Caucus' invocation of Careau and other "intertwining" cases would suggest, for the application on remand of a summary judgment standard on the discrete question of subject matter jurisdiction.

On that score New Caucus did supply several facts to support its argument that...