                                                                                FILED
                            NOT FOR PUBLICATION                                  JUL 26 2010

                                                                             MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JULIE BALLOU,                                     No. 09-35689

              Plaintiff - Appellee,               D.C. No. 3:09-cv-05086-RBL

  v.
                                                  MEMORANDUM*
VANCOUVER POLICE OFFICERS’
GUILD,

              Defendant - Appellant.


                    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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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




                                            2
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.


                                           3
(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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