Fournier Furniture v. NLRB ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FOURNIER FURNITURE, INCORPORATED,
Plaintiff-Appellee,
v.
NATIONAL LABOR RELATIONS BOARD,
No. 95-2854
Defendant-Appellant,
and
UNITED MINE WORKERS OF AMERICA,
Defendant.
FOURNIER FURNITURE, INCORPORATED,
Plaintiff-Appellee,
v.
UNITED MINE WORKERS OF AMERICA,
No. 95-2953
Defendant-Appellant,
and
NATIONAL LABOR RELATIONS BOARD,
Defendant.
Appeals from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(MISC-95-17-A)
Argued: July 9, 1996
Decided: August 27, 1996
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
_________________________________________________________________
Vacated and remanded with instructions by unpublished per curiam
opinion.
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COUNSEL
ARGUED: Mark Robert Gisler, Senior Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C.; Sarah J. Starrett,
UNITED MINE WORKERS OF AMERICA, Washington, D.C., for
Appellants. Lynn Forgrieve Jacob, WILLIAMS, MULLEN, CHRIS-
TIAN & DOBBINS, Richmond, Virginia, for Appellee. ON BRIEF:
Frederick L. Feinstein, General Counsel, Linda Sher, Acting Asso-
ciate General Counsel, Margery E. Lieber, Assistant General Counsel
for Special Litigation, Eric G. Moskowitz, Deputy Assistant General
Counsel, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Appellant NLRB. James V. Meath, Charles B. Scher,
King F. Tower, WILLIAMS, MULLEN, CHRISTIAN & DOBBINS,
Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
This case is before the court on the NLRB's appeal from the order
of the district court granting Fournier's motion for a protective order.
The Board had taken the position that it would not agree to a protec-
tive order and that there should be no limitation on any use of the evi-
dence introduced during this proceeding, however full of trade secrets
it might have been. Fournier had taken the position that confidential,
trade secret and like evidence should be protected and should be used
only for the purposes of the litigation.
Fournier first filed a motion for a protective order with the Admin-
istrative Law Judge who denied the motion, stating in his order that
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he saw no factual reason why a protective order should be denied, but
that the law did not provide either authority for the issuance of, or
sanctions to enforce, protective orders granted by administrative law
judges. Fournier then filed a motion for a protective order in the dis-
trict court. The court granted the motion and the Board appealed from
that order to this court on the grounds that Fournier had not exhausted
its administrative remedies and that the district court lacked jurisdic-
tion to issue the order. In the interim, Fournier had sought and was
granted special permission from the Board to appeal the order of the
administrative law judge that denied its motion for a protective order.
By order dated January 3, 1996 and issued January 11, 1996, the
NLRB found that "[c]ontrary to the administrative law judge's state-
ment, administrative law judges have the power and authority to issue
protective orders." The order directs the administrative law judge
upon resumption of the unfair labor practice hearing, to "reconsider
respondent's petition for a protective order and to determine whether,
and in what form, such order would be appropriate." Based on the
decision by the Board in Fournier's special appeal, we think that the
motion for relief in the district court is moot. Under United States v.
Munsingwear, Inc. 340 U.S. 36, 39 (1950), when a civil case becomes
moot while on its way to or pending decision by an appellate court,
the established practice is to vacate the judgment appealed from and
remand with instructions to dismiss.*
Accordingly, the order of the district court appealed from must be
vacated and the case remanded to the district court for entry of its
order dismissing the motion as moot. The ALJ may then proceed to
decide the merits of the request for a protective order.
VACATED AND REMANDED WITH INSTRUCTIONS
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*When there are two jurisdictional questions in a case, one of moot-
ness, see Munsingwear, the other of authority under a statute, see
Leedom v. Kyne, 358 U.S. 184 (1958); A.F. of L. v. Labor Board, 308
U.S. 401 (1940), it makes no difference under which ground we decide
the case.
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