Rumbaugh v. Winifrede Railroad

ON PETITIONS FOR REHEARING-

PER CURIAM:

In their Petitions for Rehearing the appellees call attention to a factual inaccuracy in the opinion which, though legally insignificant, bears correction.. According to the original complaint Rumbaugh approached an agent of the' company on or about July 16, 1959, with, an inquiry about his rights under the Railway Labor Act, not a “union agent”’ as we recited initially. The misstatement has been corrected. That the union is the primary object of Rumbaugh’s-grievances appears convincingly in other portions of the complaint. The reasoning and result of our decision remain unaltered.

The core of appellees’ petitions-for rehearing is the court’s consideration *541sua sponte of the doctrine of pendent jurisdiction, which was not discussed in the briefs and oral arguments. Failure of the appellees to present this point before this time is no ground for a rehearing.

The fundamental question on the appeal is the propriety of the District Court’s dismissal of the suit for lack of subject-matter jurisdiction. We concluded that there was original jurisdiction of the claim for breach of the duty of fair representation and, further, that there was ancillary jurisdiction of the remaining claims. This result is not inconsistent with the line of cases fostered by Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 737 [738], 6 L.Ed. 204 (1824), and discussed in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). It goes without saying that a court has jurisdiction to determine its own jurisdiction. United States v. United Mine Workers, 330 U.S. 258, 292 n. 57, 67 S.Ct. 677, 91 L.Ed. 884 (1947) ; Wright, Federal Courts, 44-47 (1963 ed.). Furthermore, the reasons assigned by the Railroad opposing application of the doctrine of pendent jurisdiction are all dealt with in the opinion and need no further elaboration. The additional cases cited in the petition of the union are either not in point, or cumulative, or distinguishable.

As to the union’s contention that under West Virginia law there can be no cause of action for conspiracy against an unincorporated labor union, we need only say that this contention, if it has merit, may be raised as an affirmative defense on remand. It does not, however, undermine the ancillary federal jurisdiction which attaches to the non-federal claim. Other defenses which the union has as yet not asserted may also be raised in the District Court. Such defenses as lack of venue, want of legal service and failure to state a claim upon which relief can be gi*anted, which were not considered by the District Court, we, of course, decline to pass upon.

The Petitions for Rehearing are denied.