                                                                           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                           NOT FOR PUBLICATION                              JUL 25 2011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
