Timmins Ex Rel. National Labor Relations Board v. Narricot Industries, L.P. ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2085
PATRICIA L. TIMMINS, Acting Regional Director of the
Eleventh Region of the National Labor Relations Board, for
and on behalf of the National Labor Relations Board,
Petitioner - Appellant,
v.
NARRICOT INDUSTRIES, L.P.,
Respondent – Appellee,
SHIRLEY MAE LEWIS; HENRY VAUGHAN,
Intervenors/Defendants – Appellees.
No. 08-2087
PATRICIA L. TIMMINS, Acting Regional Director of the
Eleventh Region of the National Labor Relations Board, for
and on behalf of the National Labor Relations Board,
Petitioner - Appellee,
v.
NARRICOT INDUSTRIES, L.P.,
Respondent – Appellant,
and
SHIRLEY MAE LEWIS; HENRY VAUGHAN,
Intervenors.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cv-00189-RBS-TEM)
Argued: September 23, 2009 Decided: January 7, 2010
Before KING and AGEE, Circuit Judges, and James P. JONES, Chief
United States District Judge for the Western District of
Virginia, sitting by designation.
Dismissed as moot and remanded with instructions to vacate by
unpublished per curiam opinion.
ARGUED: John Andrew Mantz, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Patricia L. Timmins, Acting Regional
Director of the Eleventh Region of the National Labor Relations
Board, for and on behalf of the National Labor Relations Board.
James Marion Powell, WOMBLE, CARLYLE, SANDRIDGE & RICE, PLLC,
Greensboro, North Carolina, for Narricot Industries, L.P.
William L. Messenger, NATIONAL RIGHT TO WORK LEGAL FOUNDATION,
Springfield, Virginia, for Intervenors. ON BRIEF: Ronald
Meisburg, General Counsel, John E. Higgins, Jr., Deputy General
Counsel, Barry J. Kearney, Associate General Counsel, Judith I.
Katz, Assistant General Counsel, Steven L. Sokolow, Deputy
Assistant General Counsel, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Patricia L. Timmins, Acting Regional
Director of the Eleventh Region of the National Labor Relations
Board, for and on behalf of the National Labor Relations Board.
J. Mark Sampson, WOMBLE, CARLYLE, SANDRIDGE & RICE, PLLC,
Greensboro, North Carolina, for Narricot Industries, L.P.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Patricia L. Timmins, Acting Regional Director of the
Eleventh Region of the National Labor Relations Board, for and
on behalf of the National Labor Relations Board (the “Board”),
appeals the district court order denying the Board’s petition
for injunctive relief under § 10(j) of the National Labor
Relations Act (the “NLRA”). Narricot Industries, L.P.
(“Narricot”) and Intervenors Shirley Mae Lewis and Henry Vaughan
(the “Intervenors”) both cross-appeal.
Before briefing concluded in these appeals, the Board moved
this court, pursuant to Federal Rule of Appellate Procedure
42(b), to dismiss the appeal and cross-appeal as moot and remand
the case to the district court with instructions to vacate the
order denying the § 10(j) injunction. Both Narricot and
Intervenors concede the appeals are moot but oppose vacatur.
For the reasons detailed below, we grant the motion to dismiss
and the Board’s request for vacatur.
I.
On February 7, 2008, the Board issued a complaint against
Narricot for certain unfair labor practices in connection with
withdrawing its recognition from the United Brotherhood of
Carpenters and Joiners of America, Carpenters Industrial
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Council, Local No. 2316 (the “Union”). 1 On April 22, 2008, the
Board petitioned the United States District Court for the
Eastern District of Virginia to issue an injunction pursuant to
§ 10(j) of the NLRA, 29 U.S.C.A. § 160(j) (West 1998). Section
10(j) provides that “[t]he Board shall have power, upon issuance
of a complaint . . . to petition any United States district
court . . . for appropriate temporary relief or restraining
order.” 29 U.S.C.A. § 160(j) (West 1998). The Board sought to
compel Narricot to recognize and bargain with the Union, rescind
any or all of the unilateral changes made to the terms and
conditions of hourly employment, and cease and desist from any
alleged unfair labor practices, until the Board had an
opportunity to complete its own administrative proceedings to
determine if Narricot had in fact committed unfair labor
practices.
On May 21, 2008, Narricot filed a motion to dismiss the §
10(j) petition. On June 20, 2008 the district court denied
Narricot’s motion but granted Narricot employees, Shirley Mae
Lewis and Henry Vaughan, leave to intervene.
On July 24, 2008, the district court denied the injunction
in a written opinion and order. Timmins v. Narricot Indus.,
1
The underlying labor dispute is described in detail in the
decision of this court in the related case, Narricot Indus.,
L.P., v. NLRB, No. 09-1164 (4th Cir. Nov. 20, 2009).
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L.P., 567 F. Supp. 2d 835 (E.D. Va. 2008). The Board filed its
notice of appeal in September 2008. Soon after, Narricot filed
notice of its cross-appeal, appealing both the lower court’s
denial of its motion to dismiss and the basis upon which the
district court denied the injunction, but agreeing that denial
of the injunction was nonetheless proper. The Intervenors
joined Narricot’s cross-appeal.
On January 30, 2009, before briefing on the appeals was
completed, the Board issued a decision and order in the
underlying labor dispute, Narricot Industries, L.P., 353
N.L.R.B. No. 82 (Jan. 30, 2009), thus concluding the
administrative proceedings against Narricot. Consequently, on
February 18, 2009, the Board moved this court to dismiss the
instant appeal and cross-appeal as moot and vacate the lower
court decision.
II.
All the parties agree the appeals are moot and should be
dismissed. “[T]he question of mootness is [ ] one which a
federal court must resolve before it assumes jurisdiction.” See
North Carolina v. Rice, 404 U.S. 244, 246 (1971). Without a
real and concrete controversy, the minimum requirements of
Article III of the Constitution are not met and this court has
no power to issue a decision. See id.5
The appeals here arose out of the district court’s
determination of whether or not to issue the § 10(j) injunction.
However, the Board only sought to enjoin Narricot until the
completion of the Board’s own administrative proceedings. When
the Board issued its final decision and order on January 30,
2009, the period for which the injunction was requested ended
and so did any controversy on which to base Article III
jurisdiction. Accordingly, we find the instant case moot, and
we dismiss the appeal and cross-appeal.
III.
The only dispute that remains before this court, therefore,
is whether the district court’s § 10(j) decision should be
vacated. As a court of appellate jurisdiction, we may vacate
any lower court judgment that is lawfully brought before us for
review. 28 U.S.C.A. § 2106 (West 2006). Recently, the Supreme
Court emphasized that it should be the general practice of
appellate courts to “vacate the lower court judgment in a moot
case because doing so ‘clears the path for future relitigation
of the issues between the parties,’ preserving ‘the rights of
all parties,’ while prejudicing none ‘by a decision which . . .
was only preliminary.’” Alvarez v. Smith, No. 08-351, slip op.
at 6 (U.S. Dec. 8, 2009) (alteration in original) (quoting
United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950)).
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Previously, in U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership, the Court stated that vacatur should be denied if
“the party seeking relief from the judgment below caused the
mootness by voluntary action.” 513 U.S. 18, 24 (1994); see
Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir. 2003). For
example, “where mootness results from settlement,” as it did in
Bancorp, “the losing party has voluntarily forfeited his legal
remedy by the ordinary processes of appeal or certiorari,
thereby surrendering his claim to the equitable remedy of
vacatur.” 513 U.S. at 25.
In Alvarez, however, the Court interpreted the definition
of “voluntary action” narrowly, ruling that the Bancorp
exception to vacatur only applied where mootness is the result
of settlement or something that closely resembles settlement.
Slip op. at 7-9. Here, the case did not become moot as a result
of any type of agreement between the parties, but rather as a
result of the final adjudication by the Board. Consequently, in
light of Alvarez, we grant the Board’s request for vacatur.
IV.
Pursuant to the foregoing, we grant the Board’s motion to
dismiss the instant appeals and remand this case to the district
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court with instructions to vacate its order denying the § 10(j)
injunction.
DISMISSED AS MOOT AND REMANDED
WITH INSTRUCTIONS TO VACATE
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