Amerco v. NLRB

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERCO, a Nevada Corporation; 
U-HAUL INTERNATIONAL INC., a
Nevada corporation; OXFORD LIFE
INSURANCE COMPANY, an Arizona
corporation,
Plaintiffs-Appellants,
v.
NATIONAL LABOR RELATIONS No. 04-16389
BOARD; ROBERT J. BATTISTA,
Chairman, National Labor  D.C. No.
CV-04-00978-SRB
Relations Board; WILMA B.
LIEBMAN, Board Member, National OPINION
Labor Relations Board; PETER C.
SCHAUMBER, Board Member,
National Labor Relations Board;
DENNIS P. WALSH, Board Member,
National Labor Relations Board;
PETER N. KIRSANOW,* Board
Member, National Labor Relations
Board;

*Peter N. Kirsanow is substituted for his predecessor, Ronald E. Meis-
burg, as Board Member, National Labor Relations Board, pursuant to Fed.
R. App. P. 43(c)(2).
9225
9226 AMERCO v. NLRB
RONALD E. MEISBURG,** General 
Counsel, National Labor Relations
Board; CORNELE A. OVERSTREET
Regional Director, Region 28, 
National Labor Relations Board,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
May 17, 2006—San Francisco, California
Filed August 10, 2006
Before: Pamela Ann Rymer and Kim McLane Wardlaw,
Circuit Judges, and William Alsup,*** District Judge.
Opinion by Judge Wardlaw
**Ronald E. Meisburg is substituted for his predecessor, Arthur F.
Rosenfeld, as General Counsel, National Labor Relations Board, pursuant
to Fed. R. App. P. 43(c)(2).
***The Honorable William Alsup, United States District Judge for the
Northern District of California, sitting by designation.
AMERCO v. NLRB 9229
COUNSEL
Scot L. Claus, Mariscal, Weeks, McIntrye & Friedlander,
P.A., Phoenix, Arizona, argued the case and was on the briefs
for appellants AMERCO, U-Haul International, Inc., and
Oxford Life Insurance Company. Gary L. Birnbaum, Maris-
cal, Weeks, McIntrye & Friedlander, P.A., Phoenix, Arizona,
and Lawrence D. Levien, Daniel Joseph, and Joshua B. Wax-
man, Akin Gump Strauss Hauer & Feld LLP, Washington,
D.C., were on the briefs.
Dawn L. Goldstein, Senior Attorney, National Labor Rela-
tions Board, Washington, D.C., argued the case and was on
the briefs for all the appellees. Arthur F. Rosenfeld, John E.
Higgins, Jr., John H. Ferguson, Margery E. Lieber, and Eric
G. Moskowitz were on the briefs.
OPINION
WARDLAW, Circuit Judge:
We must address a question that we have never explicitly
addressed: whether a district court has jurisdiction to enjoin
9230 AMERCO v. NLRB
an ongoing unfair labor practices hearing when one party
asserts that it has not been accorded all the process it is due.
Because the answer is squarely controlled by Myers v. Bethle-
hem Shipbuilding Corp., 303 U.S. 41 (1938), we affirm the
district court’s order dismissing the Appellants’ motion for a
preliminary injunction based on lack of subject matter juris-
diction. In accordance with Myers and all of our sister circuits
that have considered this question, we hold that the petition
for review process detailed in the National Labor Relations
Act, 29 U.S.C. § 160(f), which authorizes appellate court
review of final decisions by the National Labor Relations
Board, is the exclusive mechanism for federal court review of
decisions made in unfair labor practice hearings.
I.
In 2003, the National Labor Relations Board (NLRB) initi-
ated a complaint against U-Haul of Nevada (“U-Haul”) for
alleged unfair labor practices aimed at preventing unioniza-
tion and punishing pro-union activities at two truck repair
facilities in Nevada. The complaint arose from a series of
charges filed by the International Association of Machinists
and Aerospace Workers, Local Lodge 845, AFL-CIO (“the
Union”), following the closure of one of U-Haul’s repair
facilities and the discharge of a number of employees at both
facilities.
The NLRB filed a Fourth Consolidated Complaint against
U-Haul on December 24, 2003, setting a hearing date before
an Administrative Law Judge (ALJ) for January 12, 2004. At
some point between December 24, 2003, and January 7, 2004,
officials in the NLRB’s Region 28 office uncovered alleged
unfair labor practice violations associated with the facility
closure by U-Haul’s parent companies AMERCO, U-Haul
International, and Oxford Life Insurance Company (collec-
tively “AMERCO”),1 as well as evidence that AMERCO
1
U-Haul International provides accounting, technical, and advisory ser-
vices to a number of independently operated subsidiaries that provide
AMERCO v. NLRB 9231
exercised centralized control over U-Haul during the period of
labor strife. The NLRB drafted a charge against AMERCO
and provided the draft charge to the Union, which filed it on
January 7, 2004.
The hearing against U-Haul began as planned on January
12. After three weeks of testimony, a significant part of which
had focused on U-Haul’s relationship with AMERCO, the
NLRB filed a Fifth Consolidated Complaint on February 5,
2004. The Fifth Consolidated Complaint included the two
independent allegations of unfair labor practices against
AMERCO. It also charged them with being a “single employ-
er” and a “single integrated enterprise” with U-Haul. The
“single integrated enterprise” allegation was particularly trou-
bling for AMERCO, because, if proven, it would make them
derivatively liable for any violations found to have been com-
mitted by U-Haul.2
Over AMERCO’s objections, the ALJ granted the NLRB’s
motion to consolidate the Fifth Complaint into the ongoing
trial. In an effort to accommodate AMERCO’s due process
and fairness concerns, the ALJ granted AMERCO the right to
recall any witnesses or challenge any evidence relating to its
relationship with U-Haul (the basis for derivative liability).
However, he denied their request to recall witnesses and chal-
lenge evidence associated only with U-Haul’s liability for the
primary offenses. His order explained:
Since the primary issue for resolution is really the
derivative liability of the new respondents, there has
direct moving-related services to consumers. U-Haul is one of its subsidia-
ries but is not a party to this appeal. AMERCO is a holding company that
holds the stock of four corporations, including U-Haul International and
Appellant Oxford Life Insurance Company.
2
The Complaint also named Five Sac Self-Storage Corporation, Sac
Holding Corporation, and Sac Holding Corporation II. The record does not
explain their lack of participation in this appeal.
9232 AMERCO v. NLRB
been no prejudice to respondents as these issues have
yet to be litigated. If the new respondents are given
an opportunity to prepare and an opportunity to pre-
sent evidence, including the right to examine and
cross-examine any witnesses called on the issues of
derivative liability, as well as the [independent
charges against AMERCO], including the right to
call those who have already testified . . . on these
issues, they will be afforded a full and fair hearing
on the issues affecting them.
After the denial of their numerous requests for a continuance,
motions for reconsideration, and efforts to obtain interlocu-
tory review from the NLRB, AMERCO filed suit in the
United States District Court for the District of Arizona, mov-
ing for a preliminary injunction to halt the proceedings on due
process grounds. They alleged that the NLRB had tried them
in absentia for the first three weeks of the hearing, in an effort
to gain an unfair advantage from their absence and lack of
representation, and with full knowledge that a complaint ulti-
mately would be filed against them. The district court dis-
missed the preliminary injunction motion for lack of subject
matter jurisdiction. See AMERCO v. NLRB, 330 F. Supp. 2d
1083 (D. Ariz. 2004). Its Order concluded that this case was
controlled by Myers v. Bethlehem Shipbuilding Corp., 303
U.S. 41 (1938), which held that the courts of appeals have
exclusive jurisdiction over review of unfair labor practice
hearings. The Order also concluded that the judicially-created
exceptions allowing district court intervention to remedy stat-
utory or constitutional violations in disputes about union rep-
resentation were not available in the context of an unfair labor
practice dispute.
After the district court denied a motion to stay the ALJ pro-
ceedings pending appeal, the hearing resumed and ultimately
concluded in July 2005. The ALJ reached a decision on Sep-
tember 30, 2005, and both parties have filed exceptions to the
AMERCO v. NLRB 9233
decision, 29 C.F.R. § 101.11, on which the NLRB has yet to
rule.3
II.
We have jurisdiction over this appeal from the district
court’s final order pursuant to 28 U.S.C. § 1291. We review
de novo the district court’s grant of a motion to dismiss for
lack of subject matter jurisdiction. See Luong v. Circuit City
Stores, Inc., 368 F.3d 1109, 1111 n.2 (9th Cir. 2004).
III.
A.
[1] We requested supplemental briefing as to whether this
appeal has become moot. “The test for mootness of an appeal
is whether the appellate court can give the appellant any
effective relief in the event that it decides the matter on the
merits in his favor.” Garcia v. Lawn, 805 F.2d 1400, 1402
(9th Cir. 1986). That the unfair labor practice hearing
AMERCO sought to enjoin has since concluded is not dispo-
sitive. We recently reiterated that “[t]he question is not
whether the precise relief sought at the time of the application
for an injunction was filed is still available. The question is
whether there can be any effective relief.” Earth Island Inst.
v. U.S. Forest Serv., 442 F.3d 1147, 1157 (9th Cir. 2006)
(internal quotation marks omitted). The NLRB has not yet
issued a “final order” in the proceedings before it, a decision
which would enable appellate review pursuant to 29 U.S.C.
§ 160(f). Because the underlying proceedings are still in prog-
ress, we could reverse the district court’s decision that it
lacked jurisdiction to enjoin the proceedings and order that it
3
The record does not inform us precisely how the ALJ ruled on the
numerous issues before him, but given that AMERCO filed exceptions to
his decision, as well as a motion to reopen the record, we assume that the
ALJ ruled at least in part against them.
9234 AMERCO v. NLRB
“undo” the alleged constitutional injuries by restoring the pre-
consolidation status quo, thus providing AMERCO complete
and effective relief. See Earth Island Inst., 442 F.3d at 1157-
58; Garcia, 805 F.2d at 1402-03. Therefore, this case is not
moot.
B.
[2] Regardless of the viability of AMERCO’s constitutional
claims, the district court lacked jurisdiction to remedy them.
Section 10 of the National Labor Relations Act, which defines
the procedure for adjudicating unfair labor practice claims,
vests exclusive jurisdiction in the courts of appeals to review
errors arising from such proceedings:
Any person aggrieved by a final order of the Board
granting or denying in whole or in part the relief
sought may obtain a review of such order in any
United States court of appeals in the circuit wherein
the unfair labor practice in question was alleged to
have been engaged in . . . by filing in such a court
a written petition praying that the order of the Board
be modified or set aside.
29 U.S.C. § 160(f). Section 10 provides no separate process
for obtaining injunctive relief prior to the issuance of a final
order.
[3] In Myers, the Supreme Court confronted the precise
question raised here: whether a district court has the authority
to enjoin an unfair labor practice hearing when the corpora-
tion under investigation claims that the hearing is proceeding
in violation of the United States Constitution. 303 U.S. at 43,
46. The Court answered in the negative, emphasizing that
review in the courts of appeals is both exclusive and compre-
hensive. Id. at 48. The Myers Court explained that the scope
of the review authorized by Section 10(f) allows an appellate
court to consider “all questions of the jurisdiction of the
AMERCO v. NLRB 9235
Board and the regularity of its proceedings, [and] all questions
of constitutional right or statutory authority.” Id. at 49; see
also Detroit Newspaper Agency v. NLRB, 286 F.3d 391, 400-
01 (6th Cir. 2002) (following Myers).
AMERCO contends that, despite this language, the
Supreme Court intended that injunctive relief should be avail-
able in the district courts to remedy procedural due process
violations. For this proposition, AMERCO points to one sen-
tence in the Myers opinion, in which the Court noted that in
the case before it, there was “no claim by the corporation that
the statutory provisions and the rules of procedure prescribed
for such hearings are illegal; or that the corporation was not
accorded ample opportunity to answer the complaint of the
Board; or that opportunity to introduce evidence on the alle-
gations made will be denied.” 303 U.S. at 47. Appellants con-
strue this sentence as a declaration that any time a corporation
claims it was not afforded “ample opportunity” to answer the
complaint or to introduce evidence it wishes to admit in an
unfair labor practice hearing, immediate remedy may be
sought in the district court. We reject such a strained reading
of Supreme Court precedent.
[4] First, AMERCO does not cite, and we cannot find, any
case law supporting such a broad interpretation. Indeed, a
number of our sister circuits have rejected the proposition that
procedural due process claims warrant departure from the
Myers rule. See, e.g., J.P. Stevens Employees Educ. Comm. v.
NLRB, 582 F.2d 326, 328-29 (4th Cir. 1978) (district court
lacked jurisdiction to review ALJ’s denial of motion to inter-
vene, even though the ALJ’s ruling implicated due process
and impeded the organization’s ability to respond to the com-
plaint and introduce evidence); Bokat v. Tidewater Equip.
Co., 363 F.2d 667, 670-71 (5th Cir. 1966) (district court
lacked jurisdiction to grant injunctive relief when employer
claimed that the failure to sever unfair labor practice charges
violated due process).
9236 AMERCO v. NLRB
[5] Second, allowing parties to seek injunctive relief when-
ever an “opportunity to introduce evidence” is denied would
substantially delay the NLRB’s process for rectifying unfair
labor practices, precisely what Section 10 and its streamlined
appeal mechanism seek to avoid. Myers, 303 U.S. at 48 n.5
(citing House Committee Report, H.R. Rep. 1147, 74th
Cong., 1st Sess., p. 24 (1935)). The circumstances of this case
highlight the burdens that AMERCO’s interpretation would
generate: If the hearing on AMERCO’s liability had been
delayed while they pursued their due process claims in this
proceeding, and if those claims had ultimately failed, the
hearing would have been delayed by more than three full
years. By that time, evidence would be stale, memories would
be failing, and the NLRB’s ability to restore the status quo
ante would be that much more difficult.
[6] Third, and most important, the exception advanced by
AMERCO is inconsistent with the doctrine of administrative
exhaustion. Exhaustion serves two vital purposes: first, to
give the agency an initial opportunity to correct its mistakes
before courts intervene; and second, to enable the creation of
a complete administrative record should judicial review
become necessary. Ngo v. Woodford, 403 F.3d 620, 624 (9th
Cir. 2005), rev’d on other grounds, 126 S. Ct. 2378 (2006).
If we allowed companies accused of unfair labor practices to
raise their procedural claims in federal court before the NLRB
had a chance to review their grievances, we would be “substi-
tut[ing] the District Court for the Board as the tribunal to hear
and determine what Congress declared the Board exclusively
should hear and determine in the first instance.” Myers, 303
U.S. at 50. As the Myers Court concluded, such an approach
would be “at war with the long-settled rule of judicial admin-
istration that no one is entitled to judicial relief for a supposed
or threatened injury until the prescribed administrative rem-
edy has been exhausted.” Id. at 50-51.
[7] At this time, the NLRB has taken under submission
both parties’ exceptions to the ALJ’s September 2005 ruling.
AMERCO v. NLRB 9237
The NLRB may yet decide that AMERCO’s due process
rights were violated and that the ALJ hearing must be
reopened to allow them to participate fully in the litigation of
U-Haul’s primary liability. If, on the other hand, the NLRB
rejects these due process claims, AMERCO may at that point
raise them before us, pursuant to 29 U.S.C. § 160(f). Given
the possibility of correction by the administrative agency and
the availability of federal appellate review, district court juris-
diction at this stage would be both premature and contrary to
congressional intent.
C.
We also reject AMERCO’s argument that the district court
may exercise jurisdiction pursuant to Leedom v. Kyne, 358
U.S. 184 (1958) (allowing district court jurisdiction to enjoin
the NLRB from acting in a manner clearly contrary to statu-
tory direction), or Fay v. Douds, 172 F.2d 720 (2d Cir. 1949)
(Hand, J.) (suggesting that district court jurisdiction is appro-
priate whenever a party in a labor dispute asserts non-
frivolous claims of a constitutional violation). Neither of these
cases is applicable here. Both Leedom and Fay arose in the
context of Section 9 representation proceedings, see 29 U.S.C.
§ 159 (establishing procedures for selecting union representa-
tion and determining appropriate bargaining units), which are
distinct from Section 10 unfair labor practice hearings in a
way critical to our decision. Whereas Congress explicitly
authorized appellate review of every NLRB unfair labor prac-
tice decision, Congress provided no similar check on NLRB
decisions made pursuant to Section 9. See NLRB v. Interstate
Dress Carriers, Inc., 610 F.2d 99, 105 (3d Cir. 1979) (as
amended) (explaining that Congress omitted judicial review
from Section 9 “[b]ecause of the compelling interest in mov-
ing collective bargaining forward in an expeditious manner”);
see also Am. Fed’n of Labor v. NLRB, 308 U.S. 401, 409
(1940). As a result, a party that seeks to challenge a Section
9 representation decision has no statutory recourse to the fed-
9238 AMERCO v. NLRB
eral courts, unless the decision is later implicated by an unfair
labor practice hearing.
[8] The exceptions of Fay and Leedom derive from the
inequity that would result if no court could review claims that
the NLRB acted unconstitutionally or contrary to statutory
authority in a Section 9 determination. The Supreme Court
explained in Leedom:
[A]bsence of jurisdiction of the federal courts would
mean a sacrifice or obliteration of a right which Con-
gress has given professional employees, for there is
no other means, within their control, to protect and
enforce that right. And the inference is strong that
Congress intended the statutory provisions govern-
ing the general jurisdiction of those courts to control.
358 U.S. at 190 (alterations omitted) (citations and internal
quotation marks omitted); see also Fay, 172 F.2d at 723.
Therefore, both cases held that the district court has jurisdic-
tion to enter injunctive relief against certain representation
decisions when a party’s statutory or constitutional rights oth-
erwise might never be vindicated.
This principle and its limited scope were reinforced in
Board of Governors of the Federal Reserve System v. MCorp
Financial, Inc., 502 U.S. 32 (1991). The MCorp Court
reviewed the validity of an injunction requiring the Federal
Reserve Board (FRB) to halt an enforcement action it had
instituted against a bank. Although the Court of Appeals
acknowledged that a federal statute explicitly precluded the
district courts from enjoining such enforcement proceedings,
id. at 36-37, it invoked Leedom for the principle that the dis-
trict court nonetheless possessed jurisdiction because MCorp
alleged that the FRB was enforcing a regulation that exceeded
its statutory authority, id. at 42-43. The Supreme Court
reversed. It reasoned that because the relevant statute “ex-
pressly provides MCorp with a meaningful and adequate
AMERCO v. NLRB 9239
opportunity for judicial review of the validity of the [regula-
tion]” after the FRB issues a final order, the district court
could not exercise jurisdiction. Id. at 43; see also id. (noting
that “central to [Leedom] was the fact that the Board’s inter-
pretation of the Act would wholly deprive the union of a
meaningful and adequate means of vindicating its statutory
rights”).
[9] We recognize the necessity of providing a forum for the
vindication of statutory and constitutional rights, but that is
not a concern here. As was the case with the statutory ques-
tion in MCorp, any constitutional infirmities raised by
AMERCO can be remedied on petition for review from a final
order of the NLRB. In fact, the primary case cited by
AMERCO to support the merits of their due process claims
was decided on a petition for review of a final order, pursuant
to Section 10(f). See N. Mont. Health Care Ctr. v. NLRB, 178
F.3d 1089, 1093, 1098 (9th Cir. 1999) (as amended); see also
Viking Indus. Sec., Inc. v. NLRB, 225 F.3d 131, 134-36 (2d
Cir. 2000). Therefore, we hold that the Leedom and Fay
exceptions do not apply outside the context of Section 9
actions or other situations in which meaningful judicial
review is unavailable.4
[10] In a final effort to prop up their jurisdictional argu-
ment, AMERCO cites three out-of-circuit district court cases.
4
That we have cited Fay approvingly on a handful of occasions over the
past four decades is of no consequence. None of the decisions citing Fay
found it applicable in Section 10 proceedings, and, indeed, most have
noted that the doctrine is applicable only in representation disputes. See,
e.g., Cannery Warehousemen, Food Processors, Drivers & Helpers for
Teamsters Local Union # 748 v. Haig Berberian, Inc., 623 F.2d 77, 79 &
n.2 (9th Cir. 1980) (describing Fay as an “obscure” exception to the rule
of “non-reviewability of representation decisions”); Teamsters, Chauf-
feurs, Helpers & Delivery Drivers, Local 690 v. NLRB, 375 F.2d 966, 969-
70 (9th Cir. 1967) (describing Fay as one of three “extraordinary circum-
stances” in which a district court may enjoin representation proceedings).
9240 AMERCO v. NLRB
See McCormick v. Hirsch, 460 F. Supp. 1337 (M.D. Pa.
1978); Caulfield v. Hirsch, No. 76-279, 1977 WL 15572
(E.D. Pa. July 7, 1977); Council 19 v. NLRB, 296 F. Supp.
1100 (N.D. Ill. 1968). None of these, however, is on point.
The first two cases, McCormick and Caulfield, involved
unionization in parochial schools and its impact on First
Amendment religious freedoms. While the two opinions used
unnecessarily broad language to describe the reach of Fay,
they both arose in Section 9 representation disputes and, as in
Leedom and Fay, depended on the fact that judicial “review
at that stage is not even possible.” McCormick, 460 F. Supp.
at 1346. The third case, Council 19, also arose from a Section
9 dispute. In that case, Council 19 of the American Federation
of State, County, and Municipal Employees sought injunctive
relief after the Regional Director of the NLRB dismissed its
petition to be certified as the exclusive bargaining representa-
tive for a group of nurses’ aids and orderlies. 296 F. Supp. at
1101-02. AMERCO relies heavily on one sentence from that
opinion: “Although most of the reported cases deal with dis-
trict court jurisdiction in election cases rather than unfair
labor practice cases, the same general rule and [the Leedom
and Fay exceptions] appear to apply to both situations.” Id. at
1103. This slim reed of dictum, unsupported by any reasoning
in the opinion, does not support the analytical leap AMERCO
urges us to make, from situations in which judicial review is
not available at all to situations in which judicial review sim-
ply is not available yet. Relying instead on the guidance of the
Supreme Court in MCorp, we hold that a district court may
intervene in an ongoing labor dispute to remedy alleged statu-
tory or constitutional violations only where meaningful judi-
cial review is otherwise unavailable.
[11] Each of our sister circuits that has considered this
question has answered it as we do, holding that Leedom and
Fay are inapplicable to Section 10 unfair labor practice hear-
ings. See Interstate Dress Carriers, 610 F.2d at 107; J.P. Ste-
vens, 582 F.2d at 328-29; Grutka v. Barbour, 549 F.2d 5, 9
AMERCO v. NLRB 9241
& n.7 (7th Cir. 1977); Bokat, 363 F.2d at 672-73.5 All of these
cases rely on the clear language of Myers and the importance
of administrative exhaustion, and we see no reason to depart
from their compelling reasoning. We therefore join the Third,
Fourth, Fifth, and Seventh Circuits in holding that district
courts lack jurisdiction over constitutional claims raised in an
unfair labor practice hearing.
IV.
The Supreme Court’s decision in Myers requires that
employers exhaust their constitutional claims with the NLRB
and vests exclusive jurisdiction in the courts of appeals to
review such claims after the NLRB has issued its final order.
The district court recognized this, and it did not err in dismiss-
ing AMERCO’s request for injunctive relief based on a lack
of subject matter jurisdiction.
AFFIRMED.
5
The Sixth Circuit has gone a step further, rejecting the Fay doctrine,
even in Section 9 proceedings, as “in clear violation of both the expressed
Congressional purpose and the principle of exhaustion of administrative
remedies.” Blue Cross & Blue Shield of Mich. v. NLRB, 609 F.2d 240,
244-45 (6th Cir. 1979).