Reply Brief — Village of Lincolnshire, Illinois, et al., Petitioners v. International Union of Operating Engineers Local 399, et al.

No. 18-1070

IN THE

Supreme Court of the United States

VILLAGE OF LINCOLNSHIRE, ET AL.,

Petitioners,

v.

INTERNATIONAL UNION OF OPERATING ENGINEERS

LOCAL 399, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

REPLY IN SUPPORT OF CERTIORARI

Jeffrey M. Schwab

LIBERTY JUSTICE

CENTER

190 S. LaSalle St.

Chicago, IL 60603

David S. Birnbaum

JONES DAY

77 West Wacker Dr.

Suite 3500

Chicago, IL 60601

Shay Dvoretzky

Counsel of Record

Jeffrey R. Johnson

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

sdvoretzky@jonesday.com

Counsel for Petitioners

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

I. THE SEVENTH CIRCUIT’S DECISION

SHOULD BE VACATED AND REMANDED

WITH INSTRUCTIONS TO DISMISS ............................. 1

A. This Case Is Moot ............................................. 1

B. This Court Should Vacate the

Seventh Circuit’s Judgment with

Instructions To Dismiss as Moot ..................... 2

CONCLUSION ............................................................ 4

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Am. Library Ass’n v. Barr,

956 F.2d 1178 (D.C. Cir. 1992) .............................. 3

Catawba Riverkeeper Found. v. N.C.

Dep’t of Transp.,

843 F.3d 583 (4th Cir. 2016) .................................. 2

Chem. Producers & Distribs. Ass’n v.

Helliker,

463 F.3d 871 (9th Cir. 2006) .................................. 3

Khodara Envt’l, Inc. ex rel. Eagle Envt’l

L.P. v. Beckham,

237 F.3d 186 (3d Cir. 2001) ................................... 3

Oil Workers v. Mobil Oil Corp.,

426 U.S. 407 (1976) ................................................ 1

U.S. Bancorp Mortg. Co. v. Bonner Mall

P’ship,

513 U.S. 18 (1994) .................................................. 2

U.S. Dep’t of Treasury v. Galioto,

477 U.S. 556 (1986) ................................................ 2

United Auto., Aerospace, & Agric.

Implement Workers of Am. Local

3047 v. Hardin County,

842 F.3d 407 (6th Cir. 2016) .................................. 3

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) .............................................. 2, 3

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

STATUTES

29 U.S.C. § 158 ............................................................ 1

42 U.S.C. § 1983 .......................................................... 2

42 U.S.C. § 1988 .......................................................... 2

Ill. Comp. Stat. 12/30 .................................................. 1

1

In the decision below, the Seventh Circuit held

that the National Labor Relations Act preempted the

Village of Lincolnshire’s right-to-work ordinance.

After Petitioners sought certiorari to review that decision, the State of Illinois enacted legislation

preempting that ordinance as a matter of state law.

Because the case is now moot, the Court should

grant the petition, vacate the decision below, and

remand with instructions to dismiss.

I.

THE SEVENTH CIRCUIT’S DECISION SHOULD BE

VACATED AND REMANDED WITH INSTRUCTIONS

TO DISMISS

A. This Case Is Moot

After Petitioners filed their petition, Illinois enacted the so-called Illinois Collective Bargaining

Freedom Act. It declares that “[a]ny … ordinance …

that restricts or prohibits in any manner the use of

union security agreements between an employer and

labor organization as authorized under 29 U.S.C.

§ 158(a)(3) is … void.” 820 Ill. Comp. Stat. 12/30;

BIO App. 4a.

The Village Ordinance at issue in this case is

preempted by this provision. Section 158(a)(3) permits bargaining agreements that require new employees to join the union or to pay equivalent dues to

the union or certain third parties. See Oil Workers v.

Mobil Oil Corp., 426 U.S. 407, 409 n.1 (1976). But

the Village’s Ordinance prohibits those practices.

See Village Ordinance No. 15-3389-116, App. 58a–

59a. Because the Village Ordinance “restricts or

prohibits … the use of union security agreements …

as authorized under … § 158(a)(3),” it is “void”

2

whether or not the NLRA also prohibits it. As Respondents note, see BIO 3–4, this case is thus moot.*

B. This Court Should Vacate the Seventh

Circuit’s Judgment with Instructions

To Dismiss as Moot

1. “The established practice of the Court in

dealing with a civil case from a court in the federal

system which has become moot while on its way here

… is to reverse or vacate the judgment below and

remand with a direction to dismiss.” United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950). Under

Munsingwear, “[t]he principal condition to which

[the Court] ha[s] looked is whether the party seeking

relief from the judgment below caused the mootness

by voluntary action.” U.S. Bancorp Mortg. Co. v.

Bonner Mall P’ship, 513 U.S. 18, 24 (1994).

In keeping with these principles, this Court has

vacated and remanded where legislative amendments mooted the government’s appeal of a judgment

invalidating a federal statute. See U.S. Dep’t of

Treasury v. Galioto, 477 U.S. 556 (1986). In this

same vein, appellate courts have regularly vacated

lower-court decisions where the case became moot on

appeal, not through any fault of the losing party, but

through legislative action. See, e.g., Catawba Riverkeeper Found. v. N.C. Dep’t of Transp., 843 F.3d 583,

* In addition to their requests for declaratory and injunctive

relief, Respondents initially sought damages under 42 U.S.C.

§ 1983 (and attorney fees under 42 U.S.C. § 1988). The district

court and the Seventh Circuit rejected these claims, see App.

25a–26a, 40a–42a, and Respondents have not cross-petitioned

regarding them. Because these claim have dropped out of the

case, they cannot keep the rest of it alive.

3

590–92 (4th Cir. 2016); Chem. Producers & Distribs.

Ass’n v. Helliker, 463 F.3d 871, 878–80 (9th Cir.

2006); Khodara Envt’l, Inc. ex rel. Eagle Envt’l L.P. v.

Beckham, 237 F.3d 186, 194–95 (3d Cir. 2001); Am.

Library Ass’n v. Barr, 956 F.2d 1178, 1186–87 (D.C.

Cir. 1992).

2. Respondents do not appear to contest the appropriateness of vacatur here. See BIO 4 n.3. They

note, however, that the Court declined to vacate the

Sixth Circuit’s judgment in United Automobile, Aerospace, & Agricultural Implement Workers of America

Local 3047 v. Hardin County, where Kentucky’s

Right-to-Work Act arguably mooted any challenge to

the Sixth Circuit’s conclusion that the NLRA authorizes municipalities to pass such legislation as well.

See 842 F.3d 407 (6th Cir. 2016); 138 S. Ct. 130

(2017) (mem.) (denying certiorari).

Hardin County is distinguishable. There, the

subsequent state legislation was enacted while the

challengers’ petition for rehearing en banc was still

pending. When the challengers asked the Sixth Circuit to vacate its decision as moot, it declined to do

so. It explained: “[T]he impact of the new Kentucky

Right to Work Act on the Hardin County Ordinance

[wa]s a yet-to-be-determined matter of state law that

[wa]s beyond the scope of the appeal,” so the court

determined that the challengers had “failed to carry

their ‘heavy burden’ of clearly establishing the

‘mootness’ of th[e] appeal.” Dkt. 67-2 in No. 16-5246,

United Auto., Aerospace, & Agric. Implement Workers

of Am. Local 3047 v. Hardin County (6th Cir.). It is

little wonder that this Court refused to vacate under

Munsingwear when the lower court held that the

subsequent legislation did not even moot the case.

4

Here, however, all agree that Illinois’s law preempts

the Village’s Ordinance and moots this case.

CONCLUSION

The Court should grant the petition for writ of

certiorari, vacate the decision below, and remand

with instructions to dismiss.

Respectfully submitted,

Jeffrey M. Schwab

LIBERTY JUSTICE

CENTER

190 S. LaSalle St.

Chicago, IL 60603

David S. Birnbaum

JONES DAY

77 West Wacker Dr.

Suite 3500

Chicago, IL 60601

Shay Dvoretzky

Counsel of Record

Jeffrey R. Johnson

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

sdvoretzky@jonesday.com

Counsel for Petitioners

MAY 20, 2019