FILED
NOT FOR PUBLICATION JUL 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLES V. McCLAIN, III, Nos. 08-35290
08-35309
Plaintiff - Appellant - Cross-
Appellee, D.C. No. 2:07-cv-00567-RSM
v.
MEMORANDUM *
BOEING COMPANY, a foreign
corporation; GERALD CHAPUT,
Defendants - Appellees,
and
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS AFL-CIO, DISTRICT 751,
Defendant - Appellee - Cross-
Appellant.
Appeals from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
In Appeal No. 08-35290, Charles V. McClain, III, appeals pro se from the
district court’s summary judgment in his employment action against the Boeing
Company, Gerald Chaput, and the International Association of Machinists and
Aerospace Workers AFL-CIO, District 751 (“the Union”). In Appeal No. 08-
35309, the Union cross-appeals from the district court’s decision declining to
exercise supplemental jurisdiction over McClain’s state law claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Botsford v. Blue Cross
& Blue Shield of Mont., Inc., 314 F.3d 390, 393 (9th Cir. 2002) (absence of subject
matter jurisdiction), amended by 319 F.3d 1078 (9th Cir. 2003); Braunling v.
Countrywide Home Loans, Inc., 220 F.3d 1154, 1156 (9th Cir. 2000) (summary
judgment). We affirm as to Appeal No. 08-35290. We vacate and remand as to
Appeal No. 08-35309.
Appeal No. 08-35290
The district court properly granted summary judgment on McClain’s hybrid
fair representation/§ 301claim because McClain failed to raise a genuine dispute of
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 08-35290
material fact as to whether the Union’s conduct was arbitrary, discriminatory, or in
bad faith. See Vaca v. Sipes, 386 U.S. 171, 190, 192 (1967) (“A breach of the
statutory duty of fair representation occurs only when a union’s conduct toward a
member of the collective bargaining unit is arbitrary, discriminatory, or in bad
faith. . . . [A] union does not breach its duty of fair representation . . . merely
because it settled the grievance short of arbitration.”); see also Bliesner v.
Commc’n Workers of Am., 464 F.3d 910, 913-14 (9th Cir. 2006) (for a hybrid fair
representation/§ 301 claim, the plaintiff must show both that the union breached its
duty of fair representation and that the employer breached the collective bargaining
agreement).
The district court properly granted summary judgment on McClain’s
Americans with Disabilities Act (“ADA”) claim because McClain failed to raise a
genuine dispute of material fact as to whether he is disabled. See Braunling, 220
F.3d at 1157 (“Under the ADA, an employee is disabled if . . . [his] physical or
mental impairment substantially limits one or more of the major life activities.”).
McClain’s remaining contentions are unpersuasive.
We do not consider McClain’s contentions raised for the first time on
appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
3 08-35290
Appeal No. 08-35309
The district court declined to exercise supplemental jurisdiction over
McClain’s state law claims and dismissed the claims without prejudice. There is
no indication in the record that the district court considered complete preemption
to determine whether federal question jurisdiction existed over these claims.
Therefore, we vacate and remand to allow the district court to consider in the first
instance whether McClain’s state law claims were completely preempted. See
Funkhouser v. Wells Fargo Bank, N.A., 289 F.3d 1137, 1141 (9th Cir. 2002)
(district court obligated to consider complete preemption because, if a state claim
is completely preempted by federal law, the district court has federal question
jurisdiction over the claim and does not have discretion to dismiss the claim
without prejudice).
In Appeal No. 08-35290, costs are awarded to appellees. In Appeal No. 08-
35309, the parties shall bear their own costs.
We grant the Union’s motion to strike portions of McClain’s informal brief
to the extent that the Union seeks to strike documents not before the district court.
Otherwise, all pending motions in the cross-appeals are denied.
Appeal No. 08-35290: AFFIRMED.
Appeal No. 08-35309: VACATED and REMANDED.
4 08-35290