United Steelworkers of America, AFL-CIO v. Bishop, AFL-CIO

• Decision Date: 06 July 1979
• Docket Number: AFL-CIO,No. 78-1670,78-1670
• Citation: 598 F.2d 408
• Parties: 101 L.R.R.M. (BNA) 2799, 86 Lab.Cas. P 11,420 UNITED STEELWORKERS OF AMERICA,, an Unincorporated Association, et al., Plaintiffs-Appellants, v. Ralph C. BISHOP, United States Marshal, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 408

598 F.2d 408

101 L.R.R.M. (BNA) 2799, 86 Lab.Cas. P 11,420

UNITED STEELWORKERS OF AMERICA, AFL-CIO, an Unincorporated Association, et al., Plaintiffs-Appellants, v. Ralph C. BISHOP, United States Marshal, et al., Defendants-Appellees.

No. 78-1670.

United States Court of Appeals Fifth Circuit.

July 6, 1979.

Jerome A. Cooper, Birmingham, Ala., Michael H. Gottesman, Washington, D. C., for plaintiffs-appellants.

J. R. Brooks, U. S. Atty., Elizabeth E. Todd, Asst. U. S. Atty., Birmingham, Ala., for Ralph C. Bishop.

Cabaniss, Johnston, Gardner, Dumas & O'Neal, Sydney F. Frazier, Jr., William F. Gardner, Birmingham, Ala., for Chicago Bridge & Iron Co.

Balch, Bingham, Baker, Hawthorne, Williams & Ward (court-appointed), Harold A. Bowron, Jr., Birmingham, Ala., for Louisiana Power & Light Co.

Appeal from the United States District Court for the Northern District of Alabama.

Before MORGAN, RONEY and VANCE, Circuit Judges.

RONEY, Circuit Judge:

The central question in this case is whether the Norris-LaGuardia Act deprives a district court of jurisdiction to enter, under the facts of this case, an injunction which required a strike-bound steel fabricating plant to give up material that had been delivered to it for fabrication, work that could not go forward because of the strike. We hold that the federal court lacked such jurisdiction.

The facts are simple, the procedure complex. A union was legally striking a plant which fabricated steel. A customer of the plant had delivered steel for fabrication but the plant was unable to complete fabrication because of the strike. The customer demanded delivery of the steel in its then condition. The plant refused. The customer brought a replevin action in federal court asserting diversity jurisdiction. The district court enjoined the plant from failing to deliver the goods and instructed the United States Marshals to make sure no one interfered with delivery. The marshals prevented union pickets from obstructing the people involved with retrieval of the material. The union was not a party to that suit.

Subsequently the union brought this action for, among other things, a declaration that the district court had no jurisdiction to enter that injunction because the Norris-LaGuardia Act specifically deprives the federal court from entering an injunction in a case growing out of a labor dispute.

The plant and its customer contend that the injunction was in aid of a replevin action and did not involve a labor dispute. The union argues that the only reason court aid was sought through replevin was the strike, and that the injunction was issued for the precise purpose of negating the effect of the strike and the picket line, the exact action prohibited by the Norris-LaGuardia Act. The union wins the argument.

This does not mean that all the defendants lose, however, because the complex procedure brought to us involves issues of mootness, judicial immunity, magistrate's jurisdiction, and the inappropriateness of injunctive relief, as well as the central legal question resolved by this decision.

We will fill in factual details and names of the parties first. Then we will conclude that the mootness of the seminal controversy should not preclude consideration of the issues submitted here. We will dismiss the magistrate and the marshals on the ground of judicial immunity, state the law to be applied in cases of this kind should they later arise, and, affirming in part and reversing in part, instruct the district court as to further proceedings in this case.

Facts

Plaintiffs, United Steelworkers of America and two of its members individually (Union), represent workers at the Birmingham and Cordova, Alabama plants of employer Chicago Bridge & Iron Company (CBI). On October 1, 1977 the Union-CBI collective bargaining agreement had expired, and employees of both plants went on strike.

Louisiana Power & Light Company (LP&L), a corporation with which CBI had contracted to sell, fabricate, clean, and paint various steel parts essential to LP&L's planned power plant construction, was informed by CBI that scheduled completion of the contract could not be assured. LP&L had made progress payments for CBI's work and claimed to be entitled by contract to possession of the contract property. When CBI refused delivery of the property, LP&L filed suit against CBI on October 12 for injunctive relief. The Union was not made a party to the suit and did not seek to intervene.

The district court judge referred the case to Magistrate R. Macey Taylor for preliminary relief and consideration. CBI and LP&L consented to authorization of the magistrate to conduct hearings and issue injunctive relief. An injunction was issued by the magistrate on October 18, entitling LP&L to delivery from CBI and, in view of continuing picketing of the plants, providing protection by United States Marshals for persons and property during the delivery.

On October 20 property was removed from the Birmingham plant by outside riggers and movers hired by LP&L. Efforts to remove Cordova plant property on that date were unsuccessful. A second attempt for delivery at Cordova was made on November 2, and, despite the presence of United States Marshals, removal of property was prevented by the efforts of approximately 40 picketers. When a third attempt was made on December 1, only three picketers were present at the Cordova plant gates, and LP&L's agents, accompanied by approximately 20 armed marshals, were able to remove the property.

The Union sued CBI, LP&L, Magistrate Taylor, and the United States Marshal, claiming the injunction was unlawfully issued and effectuated and seeking declaration of its rights and injunction against their further violation.

Magistrate's Lack of Power to Enjoin

At the outset, although none of the parties has raised the question, we are bound to note that a magistrate lacks power to enter an injunction even in a case where the district court has jurisdiction.

This Court concluded in Kendall v. Davis, 569 F.2d 1330 (5th Cir. 1978), that 28 U.S.C.A. § 636(b)(2) does not authorize entry of a final judgment by a magistrate. See also Cason v. Owen, 578 F.2d 572, 573 (5th Cir. 1978). Rather, the Court observed, § 636(b)(1) provides for close supervision of the magistrate and for district court review of findings and recommendations.

The magistrate's action in LP&L suit was purportedly taken pursuant to two of the Rules Governing Jurisdiction and Authority of United States Magistrates for the Northern District of Alabama promulgated in accordance with 28 U.S.C.A. § 636(b)(4). Rule 2 which, with reference to 28 U.S.C.A. § 636(b)(1)(B), recites the magistrate's powers with regard to dispositive matters, authorizes the magistrate, at the judge's discretion, to hear motions for injunctive relief and to submit proposed findings of fact and recommendations to the judge. Rule 3, which refers to the consent provision of 28 U.S.C.A. § 636(b)(2), permits designation of a magistrate to preside over civil trials by consent of the parties.

It is obvious that the district court cannot by rule confer on a magistrate jurisdiction not permitted by statute. Neither can consent of the parties authorize a magistrate to enter final judgments where power to act in such area is restricted by statute. See Taylor v. Oxford, 575 F.2d 152, 154 (7th Cir. 1978).

Magistrate Taylor did not have the power under 28 U.S.C.A. § 636 to enter the injunction in the contract case even if the district court could have entered it. On the theory that the district judge somehow incorporated the injunction into his orders, however, we discuss this case as if the district court had taken the action here taken by the magistrate.

Mootness

Defendants contend that the appeal should be dismissed as moot. This Court may act only in the context of a justiciable case or controversy. Benton v. Maryland, 395 U.S. 784, 788, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Because the strike has been settled, there is no longer an existing labor dispute between the Union and CBI. LP&L notes that all of its contract property has now been removed from CBI plants.

The Supreme Court has refused to dismiss as moot, cases in which the former controversy is one " 'capable of repetition, yet evading review.' " See, e. g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973). The criteria which preserve such cases for review are two: (1) the challenged action was too brief in duration to be fully litigated prior to its cessation or expiration; and (2) there is a reasonable expectation that the complaining party will be subjected to the same action again. First National Bank of Boston v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). Economic strikes of the type in which the Union claims to have had its position undermine by improper injunctive orders rarely last long enough to permit complete judicial review of the controversies they engender. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 126, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). The actual removal of LP&L's property was accomplished within seven weeks after filing for injunctive relief. Because CBI was enjoined three times during a 1974 strike by other customers who successfully asserted rights to contract property, as well as here, we agree with the Union that the alleged violation of its rights is likely to reoccur and that its only chance of getting judicial review of the issues presented here is for us to refuse to treat the case as moot. See First National Bank, 435 U.S. at 774-775, 98 S.Ct. 1407.

Inasmuch as we decide that the district court was without jurisdiction and remand for determination of whether a declaratory decree is sufficient without the need for injunctive relief, LP&L is free to demonstrate to the district court that lack of future contract dealings with CBI make it an inappropriate object of injunctive relief.

Magistrate Immunity

The...