Amerco v. N.L.R.B., 04-16389.

• Citation: 458 F.3d 883
• Decision Date: 10 August 2006
• Docket Number: No. 04-16389.,04-16389.
• Parties: AMERCO, a Nevada Corporation; U-Haul International Inc., a Nevada corporation; Oxford Life Insurance Company, an Arizona corporation, Plaintiffs-Appellants, v. NATIONAL LABOR RELATIONS BOARD; Robert J. Battista, Chairman, National Labor Relations Board; Wilma B. Liebman, Board Member, National Labor Relations Board; Peter C. Schaumber, Board Member, National Labor Relations Board; Dennis P. Walsh, Board Member, National Labor Relations Board; Peter N. Kirsanow,<SMALL><SUP>*</SUP></SMALL> Board Member, National Labor Relations Board; Ronald E. Meisburg,<SMALL><SUP>**</SUP></SMALL> General Counsel, National Labor Relations Board; Cornele A. Overstreet Regional Director, Region 28, National Labor Relations Board, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

458 F.3d 883

AMERCO, a Nevada Corporation; U-Haul International Inc., a Nevada corporation; Oxford Life Insurance Company, an Arizona corporation, Plaintiffs-Appellants, v. NATIONAL LABOR RELATIONS BOARD; Robert J. Battista, Chairman, National Labor Relations Board; Wilma B. Liebman, Board Member, National 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; Ronald E. Meisburg,^** General Counsel, National Labor Relations Board; Cornele A. Overstreet Regional Director, Region 28, National Labor Relations Board, Defendants-Appellees.

No. 04-16389.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2006.

Filed August 10, 2006.

Scot L. Claus, Mariscal, Weeks, McIntrye & Friedlander, P.A., Phoenix, AZ, argued the case and was on the briefs for appellants AMERCO, U-Haul International, Inc., and Oxford Life Insurance Company. Gary L. Birnbaum, Mariscal, Weeks, McIntrye & Friedlander, P.A., Phoenix, AZ, and Lawrence D. Levien, Daniel Joseph, and Joshua B. Waxman, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, were on the briefs.

Dawn L. Goldstein, Senior Attorney, National Labor Relations Board, Washington, DC, 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.

Appeal from the United States District Court for the District of Arizona; Susan R. Bolton, District Judge, Presiding. D.C. No. CV-04-00978-SRB.

Before PAMELA ANN RYMER and KIM McLANE WARDLAW, Circuit Judges, and WILLIAM ALSUP,^*** District Judge.

WARDLAW, Circuit Judge.

We must address a question that we have never explicitly addressed: whether a district court has jurisdiction to enjoin 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. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), we affirm the district court's order dismissing the Appellants' motion for a preliminary injunction based on lack of subject matter jurisdiction. 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) initiated a complaint against U-Haul of Nevada ("U-Haul") for alleged unfair labor practices aimed at preventing unionization 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, AFLCIO ("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 (collectively "AMERCO"),¹ as well as evidence that AMERCO 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 employer" and a "single integrated enterprise" with U-Haul. The "single integrated enterprise" allegation was particularly troubling for AMERCO, because, if proven, it would make them derivatively liable for any violations found to have been committed 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 challenge 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 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 present 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 interlocutory review from the NLRB, AMERCO filed suit in the United States District Court for the District of Arizona, moving 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 ultimately would be filed against them. The district court dismissed 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, 58 S.Ct. 459, 82 L.Ed. 638 (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 statutory or constitutional violations in disputes about union representation were not available in the context of an unfair labor practice dispute.

After the district court denied a motion to stay the ALJ proceedings pending appeal, the hearing resumed and ultimately concluded in July 2005. The ALJ reached a decision on September 30, 2005, and both parties have filed exceptions to the 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.

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 dispositive. 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 progress, we could reverse the district court's decision that it lacked jurisdiction to enjoin the proceedings and order that it "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.

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.

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 corporation under...