                                    United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 91-5615.

 Ramiro M. MARTINEZ, Individually and as President of American Federation of Government
Employees, Local 1617, Plaintiff-Appellant,

                                                    v.

   The AMERICAN FEDERATION of GOVERNMENT EMPLOYEES, et al., Defendants-
Appellees,

                                                   and

              Robert Guttman, U.S. Dept. of Labor, etc., Intervenor-Defendant-Appellee.

                                              Jan. 12, 1993.

Appeal from the United States District Court for the Western District of Texas.

Before BRIGHT,** JOLLY, and BARKSDALE, Circuit Judges.

          E. GRADY JOLLY, Ciuit Judge:

          The so le question with which we are presented is whether the federal courts have subject

matter jurisdiction over this dispute. Ramiro M. Martinez, a federal employee, and a member of the

American Federation of Government Employees ("AFGE"), sued it under the Labor-Management

Reporting and Disclosure Act ("LMRDA") because it had removed him from office in his local union.

The LMRDA grants federal courts jurisdiction over disputes between a union and its members if the

union is a "labor organization" as the LMRDA defines the term. Unions that bargain solely with the

government are not "labor organizat ions" subject to the LMRDA; all others are. The AFGE has

stipulated that it "represents" private sector employees as well as government employees. This

limited stipulation, however, does not make clear whether the AFGE deals with private sector

employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms and

conditions of employment. Thus, because we are uncertain whether jurisdiction over this dispute lies

in the federal courts, we remand for further proceedings not inconsistent with this opinion.

                                                     I

   *
       Senior Circuit Judge of the Eighth Circuit, sitting by designation.
       Ramiro M. Martinez is a federal employee who works at the Kelly Air Force Base in San

Antonio. The American Federation of Government Employees, Local 1617 ("Local 1617"), is the

exclusive bargaining representative for the civilian employees working at the Kelly Air Force Base.

Martinez is a member of the AFGE and Local 1617. All of Local 1617's members are federal

employees. Local 1617 is charted by its parent, the American Federation of Government Employees

("AFGE"). The AFGE is comprised of over a thousand local labor unions and represents almost

700,000 government employees. The parties stipulated that some of the AFGE's local unions

"represent" both private and public sector employees.

       In July of 1986 and again in February of 1989, the members of Local 1617 elected Martinez

president. On January 3, 1989, AFGE National Vice President Glen J. Petersen ordered an

investigation of Martinez to determine whether he had violated the AFGE's national constitution by

selling a list of Local 1617's members' names and addresses to an insurance company. On March 28,

John Sturdivant, AFGE's national president, found there was probable cause to believe that Martinez

had sold the membership list. Believing that Local 1617 could not conduct a fair and impartial trial

on the charges, Sturdivant appointed a trial committee composed of the presidents of three other

AFGE locals. The trial committee, which Martinez contends was biased against him, concluded that

Martinez had violated the union constitution and recommended that Sturdivant remove him from his

office as president and bar him from holding any union office for three years. On August 24,

Sturdivant accepted the trial committee's findings and recommendations and immediately removed

Martinez from office.

       In February, approximately the same time the AFGE was investigating Martinez, Local 1617

held its regularly scheduled election and Martinez was re-elected. Several unsuccessful candidates

challenged the election, alleging that the union gave incumbents greater access to Local 1617's

newspaper. After Local 1617's election committee dismissed the protests, two candidates filed

appeals to National Vice President Peterson, who ordered an investigation of the election. Finding

that incumbent union officers used union funds to enhance their campaigns, Peterson ordered a new

election. Martinez appealed the decision to Sturdivant.
        When Sturdivant denied his appeal, Martinez and t he other Local 1617 officers filed a

complaint with the Department of Labor, challenging the decision to overturn the February election.

They alleged that the decision violated the right of Local 1617's membership to elect their officers.

They further alleged that the decision was arbitrary, capricious, and politically motivated. After

conducting its own investigation, the Department of Labor dismissed the complaint.

                                                  II

        Martinez then brought this action on September 7, 1989, in the United States District Court,

Western District of Texas, at San Antonio. Martinez sued under the provisions of the Labor-

Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 401, et seq. The complaint

named the AFGE, some of its national officers, and some officers of other AFGE local unions as

defendants. He alleged that the AFGE and its officers violated his rights under the LMRDA by

removing him from office, by barring him from office for three years, and by invalidating the February

union election in which he had been re-elected president.

        On October 3, the AFGE and its officers filed a motion to dismiss or in the alternative for

summary judgment. They argued that the court lacked subject matter jurisdiction because Martinez's

claims were subject to the exclusive remedial scheme provided by Title VII of the Civil Service

Reform Act ("CSRA") of 1978. 5 U.S.C. § 7101, et seq.1 The Acting Assistant Secretary of Labor

for Labor-Management standards, who administers section 7120 of Title VII of the CSRA, intervened

as a defendant. The Assistant Secretary then filed his own motion to dismiss for lack of subject

matter jurisdiction.

        The district court held that the CSRA applies to the plaintiff's claims. Concluding that the

CSRA's comprehensive statutory scheme precludes judicial review of Martinez's claim under the



   1
     Both the CSRA and the LMRDA grant certain similar rights to union members. The CSRA,
however, applies only to federal employees who are union members. Unlike the LMRDA, the
CSRA does not grant union members the right to sue their unions in federal court. Instead,
federal employees who are union members must bring their grievances against their union before
the Assistant Secretary of the Department of Labor. The instant case deals with a situation where
the two statutes overlap because the AFGE admits members who are employed in both the public
and the private sector.
LMRDA, the district court granted the motions to dismiss.2 Martinez appeals.

                                                  III

        The only question before us is whether the LMRDA grants subject matter jurisdiction over

Ramiro M. Martinez's claims. If it does, then the district court erred in dismissing the complaint.

This question is purely legal and, thus, we review the district court's conclusions de novo. United

States v. Harrison, 918 F.2d 469, 473 (5th Cir.1990).

       We thus turn to the LMRDA and examine whether Mart inez's claim finds a jurisdictional

home. Section 412 of the LMRDA provides that:

       [a]ny person whose rights are secured by the provision of this subchapter have been infringed
       by any violation of the subchapter may bring a civil action in a district court of the United
       States for such relief (including injunctions) as may be appropriate.

29 U.S.C. § 412. Thus, Martinez as a "person," can bring an action against his union under section

412 if he has rights secured by the LMRDA that have been violated. The LMRDA grants certain

rights "to every member of a labor organization." 29 U.S.C. § 411. It is undisputed that, in

substance, Martinez asserts rights protected under the LMRDA. Those rights include the right to

vote and otherwise to participate in union affairs. Martinez contends that the AFGE violated these

protected rights when it wrongly denied him the right to participate in his union, including the right

to hold office.3 Thus, the only remaining question as to whether Martinez has stated a claim under

the LMRDA that would give us subject matter jurisdiction, is whet her he is a member of a "labor

organization." This inquiry is determinative of jurisdiction here because the rights that Martinez

asserts belong only to "every member of a labor organization." 29 U.S.C. § 411.

   2
    In reaching its decision, the district court relied on Karahalios v. National Federation of
Federal Employees, 489 U.S. 527, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989). In Karahalios, the
Court held that the CSRA does not create a private cause of action for federal employees to sue
their unions. The Court reminded us that we should be reluctant to provide additional remedies
where a statute expressly provides one. Id. at 533, 109 S.Ct. at 1286-87. Karahalios, however,
does not govern the instant case. Here, the question is not whether the CSRA provides a remedy,
but whether the LMRDA provides one.
   3
    Despite the AFGE's arguments to the contrary, Martinez's membership in Local 1617, a
purely federal union, does not affect his rights under the LMRDA as a member of the AFGE. The
national AFGE and its national officers are the defendants in the instant suit, and it is their actions
that are the subject of the suit. If Martinez's local union and its officers were the defendants, we
would have an entirely different case.
        The LMRDA defines a "labor organization" as:

        [any organization] in which employees participate and which exists for the purpose, in whole
        or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of
        pay, hours, or other terms and conditions of employment. (Emphasis added.)

29 U.S.C. § 402(i). Thus, the question is whether the AFGE meets this definition: does it deal with

employers concerning t he terms and conditions of employment? "Employer" is defined under the

LMRDA as any employer except "the United States or any corporation wholly owned by the

government of the United States or any state or political subdivision thereof." 29 U.S.C. § 402(e).

We, therefore, ask whether the AFGE or any of its locals deal with "any employer except the

government—federal, state or local?" If it does, federal courts have jurisdiction over Martinez's

claims against the AFGE; if the only employer that the AFGE and its locals deal with is the

government, we must affirm the dismissal of the complaint because the AFGE would not be a "labor

organization" under the LMRDA.

        On the record before us, the answer to this question is unclear. The AFGE has stipulated that

it represents non-governmental employees. At the same time, the AFGE argues that it has no

contracts with private employers and that no private employers recognize the AFGE as the exclusive

bargaining agent of its employees. In short, the AFGE contends it is not a labor organization

because, although it admits into membership some persons who work in the private sector, it does

not deal with their private employers. Unfortunately, except for the somewhat ambiguous stipulation,

the record is bare on the essential question of jurisdiction. This court has a duty to determine whether

it has jurisdiction over any case before it. Morales v. Pan American Life Ins. Co., 914 F.2d 83, 85

(5th Cir.1990). We, therefore, must remand for further factual findings in order to determine whether

we have jurisdiction. If the district court finds that the AFGE, through any of its locals, deals with

any private sector employers on behalf of its members concerning the terms and conditions of

employment, then the district court has jurisdiction and Martinez must have an opportunity to litigate

his claims in federal court. Otherwise, the district court must dismiss the proceeding.4

   4
    See Berardi v. Swanson Memorial Lodge No. 48, 920 F.2d 198 (3d Cir.1990). Here, a
government employee sued his union. The union admitted some honorary members, but it was
unclear whether the union dealt with their employers. The court remanded for further factual
        Before concluding, we pause to note the limited nature of our decision. A federal employee

can only bring suit in federal court under the LMRDA when his dispute is with his union and the

union happens to deal with private employers concerning the terms and conditions of employment.

This decision today merely ensures that all members of the same national union have the same rights

vis-a-vis their national union.

                                                 IV

        For all of the reasons above, we REVERSE the judgment of the district court and REMAND

for further proceedings not inconsistent with this opinion.

        REVERSED and REMANDED.




findings. See also Hester v. Intern. Union of Operating Engineers, 818 F.2d 1537 (11th
Cir.1987).
