Idaho Building & Construction Trades Council v. Inland Pacific Chapter of Associated Builders & Contractors, Inc. , 616 F. App'x 319 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
IDAHO BUILDING AND No. 11-35985
CONSTRUCTION TRADES COUNCIL,
AFL-CIO; SOUTHWEST IDAHO D.C. No. 1:11-cv-00253-BLW
BUILDINGS AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO,
MEMORANDUM*
Plaintiffs - Appellees,
v.
INLAND PACIFIC CHAPTER OF
ASSOCIATED BUILDERS AND
CONTRACTORS, INC.,
Applicant-in-intervention -
Appellant,
v.
LAWRENCE G. WASDEN, in his official
capacity as Attorney General of the State
of Idaho and TIM MASON, in his official
capacity as Administrator of the Division
of Public Works,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
IDAHO BUILDING AND No. 12-35051
CONSTRUCTION TRADES COUNCIL,
AFL-CIO; SOUTHWEST IDAHO D.C. No. 1:11-cv-00253-BLW
BUILDINGS AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO,
Plaintiffs - Appellees,
v.
LAWRENCE G. WASDEN, in his official
capacity as Attorney General of the State
of Idaho and TIM MASON, in his official
capacity as Administrator of the Division
of Public Works,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued May 6, 2013
Submitted September 16, 2015
Portland, Oregon
Before: REINHARDT, BERZON, and HURWITZ, Circuit Judges.
The Idaho Building and Construction Trades Council, AFL-CIO, and
Southwest Idaho Building and Construction Trades Council, AFL-CIO
(collectively, the “Trades Councils”), brought suit to enjoin the enforcement of two
Idaho statutes: the Open Access to Work Act (“OAA”), codified at Idaho Code §
44-2013, and the Fairness in Contracting Act, codified at Idaho Code § 44-2012.
In an opinion published concurrently with this disposition, we affirm the district
court’s grant of summary judgment to the Trades Councils with regard to the
Fairness in Contracting Act. Here, we hold that the Trades Councils lack standing
to assert their challenge to the Open Access to Work Act, vacate the district court’s
award of summary judgment to the Trades Councils as to the OAA claim, and
remand with instructions to dismiss that claim. See Chapman v. Pier 1 Imports
(U.S.) Inc., 631 F.3d 939, 955 (9th Cir. 2011) (en banc). We also affirm the
district court’s denial of the motion by the Inland Pacific Chapter of the Associated
Builders and Contractors, Inc. (“ABC”) to intervene.
1. As the state has conceded, Administrator Mason is a proper defendant
under Ex parte Young, 209 U.S. 123 (1908).
2. The Trades Councils lack standing because they have adduced no
evidence, and made no allegation, that they have ever sought a PLA with an Idaho
state or local government entity. Moreover, on partial remand, which we ordered
in part to “allow[] both parties to supplement the record with any information that
may bear on the justiciability of [this] claim under . . . and Article III of the
Constitution,” the Trades Councils offered no new information suggesting any
near-term likelihood that they would seek a PLA. Because they have not sought a
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PLA with a local or State entity and have presented no evidence that they intend to
do so, there is no injury.
3. The district court properly denied intervention as a matter of right,
because the state defendants adequately represent ABC’s interests. See Freedom
from Religion Found., Inc. v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011). We
presume adequate representation where, as here “the ultimate objective for both
defendant[s] and intervenor-defendants is upholding the validity” of the state
statute. Prete v. Bradbury, 438 F.3d 949, 957 (9th Cir. 2006). We also assume
that the government adequately represents the constituency it represents.
California ex rel. Lockyer v. United States, 450 F.3d 436, 443 (9th Cir. 2006).
While the ABC contends that Idaho “will not make arguments the [ABC] is willing
to make,” Idaho has “mount[ed] a vigorous defense” of the statutes at issue in this
case, and “any differences between [Idaho] and the [ABC] are primarily
differences as to litigation tactics.” Perry v. Proposition 8 Official Proponents,
587 F.3d 947, 952 (9th Cir. 2009). Particularly where the proposed intervenor is
permitted to file an amicus brief, as ABC did both in the district court and before
us, “a dispute over litigation strategy or tactics” is insufficient to overcome the
presumption of adequate representation. Id. at 954. Sagebrush Rebellion v. Watt,
713 F.2d 525 (9th Cir. 1983), on which ABC relies to the contrary, “turn[ed] on the
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lack of any real adversarial relationship between the plaintiffs and the defendants,”
which “is not the situation here.” Gonzalez v. Arizona, 485 F.3d 1041, 1052 (9th
Cir. 2007).
The district court found all the requirements of permissive intervention
satisfied, but denied intervention in the exercise of its discretion. Again,
particularly in light of ABC’s ability to make its argument as an amicus, and of the
meritlessness of that argument, the district court did not abuse its discretion by
denying permissive intervention.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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