Julie Ballou v. Vancouver Police Officers’ Guild

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIE BALLOU,
Plaintiff - Appellee,
v.
VANCOUVER POLICE OFFICERS’
GUILD,
Defendant - Appellant.
No. 09-35689
D.C. No. 3:09-cv-05086-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 15, 2010
Seattle, Washington
Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.
Plaintiff Julie Ballou filed a complaint in state court against her union, the
Vancouver Police Officers’ Guild (“the Union”), alleging that the Union breached
its duty of fair representation to her under the National Labor Relations Act
(“NLRA”). The Union removed the case to federal court and then filed a motion
FILED
JUL 26 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for judgment on the pleadings, arguing that the NLRA did not apply to the parties.
In Ballou’s response, she conceded that the NLRA did not apply and moved to
amend her complaint to add a claim under the analogous state law, the Public
Employees’ Collective Bargaining Act. The district court determined that it had
jurisdiction under 28 U.S.C. §§ 1331 and 1446. The district court proceeded to
grant the Union’s motion to dismiss Ballou’s federal claim, and, declining to
exercise supplemental jurisdiction, remanded the case, along with Ballou’s pending
motion to amend her complaint, to the state superior court.
Irrespective of the district court’s jurisdictional determination, “every federal
appellate court has a special obligation to satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause under review.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (internal quotation marks and
alteration omitted). “[When the lower federal court] lack[s] jurisdiction, we have
jurisdiction on appeal, not of the merits but merely for the purpose of correcting
the error of the lower court in entertaining the suit.” Id. (alteration in original)
(internal quotation marks omitted). Because we conclude that the district court
lacked subject matter jurisdiction over Ballou’s complaint when it was removed
from state court, we vacate the district court’s order granting the motion for

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judgment on the pleadings, but do not disturb its decision to remand the case to
state court. See id. at 97 n. 2; Bell v. Hood, 327 U.S. 678, 682-83 (1946).
The Supreme Court noted in Bell that there are two exceptions to the general
rule that one looks to the allegations in the complaint to determine if there is
federal jurisdiction. 327 U.S. at 682-83. Of relevance here is the second, that “a
suit may sometimes be dismissed for want of jurisdiction where the alleged claim
under the Constitution or federal statutes . . . is wholly insubstantial and frivolous.”
Id.; cf. Albingia Versicherungs A.G. v. Schenker Int’l Inc., 344 F.3d 931, 935 (9th
Cir.), amended by 350 F.3d 916 (9th Cir. 2003) (holding that removal prior to
discovery was proper because the federal claim was not insubstantial or frivolous).
Unlike in Albingia, it was apparent from the face of the complaint that Ballou’s
federal claim was insubstantial or frivolous, because there is no question that the
NLRA does not apply to employees in the local public sector, and Ballou pleaded
that she was a police officer with the Vancouver Police Department. 29 U.S.C.
§ 152(2)-(3). Because the federal claim was clearly frivolous, the district court
lacked subject matter jurisdiction. Bell, 327 U.S. at 683.
In this circumstance, where the case has been removed from state court, 28
U.S.C. § 1447(c) directs that “[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.” Id.

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(emphasis added). The district court, lacking subject matter jurisdiction, was
required under § 1447(c) to remand the case to state court. Id. We therefore
vacate the district court’s order granting judgment on the pleadings, but leave the
remand order in force. See id. Upon remand, the state superior court can address
the merits of the parties’ pending motions. Having determined that the district
court lacked subject matter jurisdiction and that the case was properly remanded to
the state superior court, § 1447(d) precludes appellate review of the Union’s
appeal. Accordingly, the Union’s appeal is dismissed.
APPEAL DISMISSED.

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