Ford v. D.C. 37 Union Local 1549, No. 08-2317 (2d Cir. 2009)

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08-2317-cv Ford v. D.C. 37 Union Local 1549 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: August 6, 2009 Decided: August 25, 2009) Docket No. 08-2317-cv ROXANNE FORD, Plaintiff-Appellant, -v.D.C. 37 UNION LOCAL 1549, Defendant-Appellee. Before: McLAUGHLIN, CALABRESI and RAGGI, Circuit Judges. Appeal from a judgment of the United States District Court for the Southern District of New York (Chin, Judge). AFFIRMED. Roxanne Ford, pro se, New York, NY, for PlaintiffAppellant. Robin Roach, Senior Assistant General Counsel, District Counsel 37, AFSCME, AFL-CIO, New York, NY, for Defendant-Appellee. 1 2 PER CURIAM: Appellant Roxanne Ford, pro se, appeals the district court s judgment granting the 3 defendant s motion to dismiss Appellant s complaint alleging a breach of the duty of fair 4 representation under the Labor Management Relations Act ( LMRA ), 29 U.S.C. 5 § 185 et seq., for lack of subject matter jurisdiction. We assume the parties familiarity with the 6 underlying facts, the procedural history of the case, and the issues on appeal. 7 This Court reviews de novo a district court decision dismissing a complaint pursuant to 8 Fed. R. Civ. P. 12(b)(1), construing the complaint liberally and accepting all factual allegations 9 in the complaint as true. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 10 2006). Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper 11 when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. 12 United States, 201 F.3d 110, 113 (2d Cir. 2000). 13 As the language of the LMRA makes plain, public employees are not covered by that 14 statute. See 29 U.S.C. § 152(2) (exempting from the definition of employer any State or 15 political subdivision thereof ). The point is sufficiently clear so that it has been routinely 16 addressed by summary orders. See Baumgart v. Stony Brook Children s Serv., P.C., 249 F. 17 App x 851, 852 (2d Cir. 2007) (unpublished); Majeske v. Congress of Conn. Comty. Colls., No. 18 98-7226, 1998 WL 907915, at *2 n.2 (2d Cir. Dec. 23, 1998); Smith v. United Fed n of Teachers, 19 No. 97-7678, 1998 WL 639756, at *1 (2d Cir. Mar. 26, 1998). The Supreme Court has also 20 taken this view, which we are bound to follow. See N.L.R.B. v. Natural Gas Util. Dist. of 21 Hawkins County, Tenn., 402 U.S. 600, 602-03 (1971) (holding that a Tennessee public utility 22 district was not an employer under § 152(2) because it was a political subdivision of 2 1 Tennessee); see also Police Dep t of the City of Chicago v. Mosley, 408 U.S. 92, 102 n.9 (1972) 2 ( [T]he National Labor Relations Act specifically exempts States and subdivisions . . . from the 3 definition of employer within the Act. ). We deem it appropriate to issue a published opinion 4 and thereby make clear beyond peradventure that this is the law of our Circuit. 5 Appellant claims, on appeal, that her employer is not a political subdivision of New York 6 and questions whether it was a mayoral agency. It is clear to us, however, that the New York 7 City Department of Health and Mental Hygiene is a political subdivision of New York that is 8 exempt under § 152(2). 9 Furthermore, the district court did not err in failing to address any state law claim that the 10 complaint could be construed to be raising. See 28 U.S.C. 1367(c)(3); Carnegie-Mellon Univ. v. 11 Cohill, 484 U.S. 343, 350 n.7 (1988) ( [I]n the usual case in which all federal-law claims are 12 eliminated before trial, the balance of factors . . . will point toward declining to exercise 13 jurisdiction over the remaining state-law claims. ). 14 For the reasons stated above, the judgment of the district court is AFFIRMED. 3

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