623 F.3d 1011 (9th Cir. 2010), 08-56963, Johnson v. Rancho Santiago Community College District

Docket Nº:08-56963.
Citation:623 F.3d 1011
Opinion Judge:PAEZ, Circuit Judge:
Party Name:Matt JOHNSON; Michael Spiering; James Birmingham, Plaintiffs, v. RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT; The Los Angeles and Orange Counties Building and Construction Trades Council, Defendants-Appellees, and Kevin Chavez; Joseph Nigbor; Travis Barrett; Wes Bertalan; Associated Builders and Contractors of San Diego, Inc. Electrical Unilateral A
Attorney:Carole M. Ross and Richard M. Freeman (argued), Sheppard, Mullin Richter & Hampton LLP, San Diego, CA, for plaintiffs-appellants Kevin Chavez; Joseph Nigbor; Travis Barrett; Wes Bertalan; Associated Builders and Contractors of San Diego, Inc., Electrical Unilateral Apprenticeship Committee; and S...
Judge Panel:Before: BETTY B. FLETCHER and RICHARD A. PAEZ, Circuit Judges, and DONALD E. WALTER, District Judge.
Case Date:October 08, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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623 F.3d 1011 (9th Cir. 2010)

Matt JOHNSON; Michael Spiering; James Birmingham, Plaintiffs,

and

Kevin Chavez; Joseph Nigbor; Travis Barrett; Wes Bertalan; Associated Builders and Contractors of San Diego, Inc. Electrical Unilateral Apprenticeship Committee; Southern California Chapter of the Associated Builders and Contractors, Inc. Electrical Unilateral Apprenticeship Committee, Plaintiffs-Appellants,

v.

RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT; The Los Angeles and Orange Counties Building and Construction Trades Council, Defendants-Appellees,

and

International Brotherhood of Electrical Workers Union Local 441, Electrical Apprenticeship Program, Defendant.

No. 08-56963.

United States Court of Appeals, Ninth Circuit.

October 8, 2010

Argued and Submitted May 4, 2010.

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Carole M. Ross and Richard M. Freeman (argued), Sheppard, Mullin Richter & Hampton LLP, San Diego, CA, for plaintiffs-appellants Kevin Chavez; Joseph Nigbor; Travis Barrett; Wes Bertalan; Associated Builders and Contractors of San Diego, Inc., Electrical Unilateral Apprenticeship Committee; and Southern

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California Chapter of the Associated Builders and Contractors, Inc., Electrical Unilateral Apprenticeship Committee.

Ray Van der Nat (argued), Los Angeles, CA, Terry R. Yellig and Victoria L. Bor, Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, DC, for defendant-appellee Los Angeles and Orange Counties Building and Construction Trades Council; and Glenn S. Goldby and Gregory A. Wille (argued), Declues, Burkett & Thompson LLP, Huntington Beach, CA, for defendant-appellee Rancho Santiago Community College District.

Appeal from the United States District Court for the Central District of California, James V. Selna, District Judge, Presiding. D.C. No. 8:04-cv-00280-JVS-MLG.

Before: BETTY B. FLETCHER and RICHARD A. PAEZ, Circuit Judges, and DONALD E. WALTER, District Judge. [*]

OPINION

PAEZ, Circuit Judge:

In 2003, Rancho Santiago Community College District (" the District" ) entered into a project labor agreement with the Los Angeles and Orange Counties Building and Construction Trades Council (" the Council" ) and its affiliated construction unions that governed labor relations for many District construction projects over a three-to-five-year period. The agreement required, among other things, that contractors use union " hiring halls" to obtain workers, that all workers on covered projects become union members within seven days of their employment, and that all contractors and subcontractors working on covered projects agree to the project labor agreement and to the master labor agreement negotiated by the union for each craft. Seven individual non-union apprentices and two non-union apprenticeship committees filed suit challenging the agreement as preempted by the National Labor Relations Act (" NLRA" ) and the Employee Retirement Income Security Act (" ERISA" ) and as violative of their rights to substantive and procedural due process and to equal protection. The district court granted the defendants summary judgment on all claims.

Reviewing de novo, we hold that entering into the agreement constitutes market participation not subject to preemption by the NLRA or ERISA, and that the agreement did not violate the plaintiffs' rights to substantive or procedural due process or to equal protection. As a preliminary matter, we also reject the District's mootness and Eleventh Amendment sovereign immunity defenses. Specifically, we conclude that this appeal falls within the " capable of repetition, yet evading review" exception to mootness, and that the District waived any sovereign immunity defense by failing to pursue it while extensively litigating this suit on the merits. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2002, voters in the Rancho Santiago Community College District approved Ballot Measure E, which authorized the District to issue $337 million in general obligation bonds to fund improvements to the District's facilities. After voters approved the Measure, unions that had supported the Measure E campaign encouraged the District to enter into a project labor

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agreement,1 which would govern labor conditions for the subsequent construction. The District agreed and entered into a " Project Stabilization Agreement" (" PSA" or " the Agreement" ) with the Council and affiliated craft unions. Before entering into the Agreement, the District did not conduct any formal studies to determine its costs and benefits, but the District's Board of Directors heard testimony from many people in the community. According to the District's former construction manager, Robert Brown, the Board heard estimates that the PSA could increase costs by zero to thirty percent.

The PSA that the District ultimately executed covered all of the District's construction projects funded with Measure E funds that cost over $200,000. The Agreement applied to all covered projects initiated in a three-year period and would remain in effect for two additional years if neither party terminated it. According to the District, the PSA applied to twenty-seven projects, but the plaintiffs contend that these twenty-seven projects actually represent twenty-seven categories covering many more discrete projects.

Among other things, the PSA made the signatory unions the exclusive bargaining agents for all employees; established dispute-resolution mechanisms; required use of union " hiring halls" to obtain workers; required all workers on covered projects to start paying union dues within seven days of their employment; and prohibited strikes, picketing, and other disruptions. The Agreement further required all contractors and subcontractors working on a covered project to agree to the PSA and to the craft unions' master labor agreements, which required contractors to use the unions' apprenticeship programs and to contribute to union vacation, pension, and health plans. Finally, the PSA established a Work Opportunities Program that required the unions to establish an apprenticeship program for District residents, to encourage the referral and utilization of District residents as workers on covered projects, and to maximize opportunities for minority- and women-owned businesses.

In response to the District's approval of the PSA, seven individual apprentices not affiliated with a union (" the individual apprentices" or " the named apprentices" ) and two non-union apprenticeship committees (collectively, " the plaintiffs" ) filed suit in March 2004 against the District, the Council, and the International Brotherhood of Electrical Workers Union 441's Electrical Apprenticeship Program (" Local 441" ) (collectively, " the defendants" ) in the federal district court for the Central District of California. The suit challenged the PSA on the grounds that it violated various state laws, that it was preempted by ERISA and the NLRA, and that it violated the named apprentices' rights to substantive and procedural due process and to equal protection as guaranteed by the U.S. Constitution. The original complaint sought declaratory and injunctive relief and attorney's fees and costs.

On the defendants' motion, the district court dismissed the state law claims against all defendants and dismissed all but the NLRA preemption claim against

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Local 441. The parties later agreed to dismiss Local 441 completely.

The defendants later moved for summary judgment on the merits or, in the alternative, partial summary judgment against five of the named apprentices whose claims were allegedly moot because they had graduated from their apprenticeship programs. In response, the plaintiffs amended their complaint to include a request for nominal damages to prevent the graduated apprentices' claims from becoming moot. Three of the named apprentices, however, agreed to dismiss all of their claims from the action.

The district court held that the prayer for nominal damages prevented the graduated apprentices' due process and equal protection claims from becoming moot, but granted the defendants' motion for summary judgment on those claims. After additional briefing, the district court also granted the defendants summary judgment on the ERISA and NLRA preemption claims, concluding that the PSA was exempt from preemption because it constituted state market participation, not regulation. The plaintiffs appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment. Mortimer v. Baca, 594 F.3d 714, 721 (9th Cir.2010). Summary judgment is warranted when " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). In deciding whether to affirm the grant of summary judgment, we must determine whether, " viewing the evidence in the light most favorable to the non-moving party, ... there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Mortimer, 594 F.3d at 721 (internal quotations and citation omitted).

III. DISCUSSION

Before reaching the merits of the plaintiffs' claims, we must first address the defendants' contentions that this appeal is moot and that the District is entitled to sovereign immunity.

A. Mootness

The District contends that this...

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