Reply Brief — Skipper v. Reuter

No. 93-1070

In The

Supreme Court of the United States

October Term, 1993

*

BOB SKIPPER, SHERIFF OF MULTNOMAH COUNTY,

) ,

| etittone?

KIM REUTER,

Ri spondent

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

PETITIONER’S REPLY BRIEI

4

Steven J. Nemirow*

Assistant County Counsel

LAURENCE KRESSE!

Multnomah County Counsel

P.O. Box 849

Portland, Oregon 97207

(503) 248-3138

Attorneys for Petitioner

*Counsel of Record

KLE LAW BRIEF PRINTING Ct BM

OR ALL COLLECT (402) 342-28

| TABLE OF CONTENTS

Page

a ee Ne a a ae l

The issues raised by the preliminary injunction do

not merge into those raised by the permanent

PS ceed wie eeb cheer ee ee eee daeNeeddneoeess l

Petitioner never abandoned this appeal............ 4

ee er ee 5

TABLE OF AUTHORITIES

Boys Markets, Inc. v. Retail Clerks Union, 398 U.S.

I en pen OR Le aes we Le 2

Certified Grocers of Ill. v. Produce Etc. Un., Local 703,

ee Bae ae Ge Gc, PIT Rs oo 0 oo 0 bp keeescu’s | ae

County of L.A. v. Davis, 440 U.S. 625 (1979). .......... l

Inter. U., United Auto., Etc. v. LaSalle Mach. Tool,

696 F.2d 452 (6th Cir. 1982)................... y ae Se,

Lever Bros. Co. v. Intern. Chemical Workers Union,

Efc., 554 F.2a 115 (Gtr Civ. 1976)... cc ccvcvccccvces 3

Nebraska Press Association v. Stuart, 427 U.S. 539

Perea ety kee ea eeaes ctor kee walieaeee ae 6

Reuter v. Skipper, 4 F.3d 716 (9th Cir. 1993)........... 4

United States v. United Mine Workers, 330 U.S. 258

bf eRe pr arta oy anager Ae Un ee eee ee 3

Weinstein v. Bradford, 423 U.S. 147 (1975)............. -

Respondent fails to meet its heavy burden to demon-

strate that this case has become moot, County of L.A. v.

Davis, 440 U.S. 625 (1979), or to show that the issues

presented by the preliminary injunction in this case

merged into the issues presented by the permanent

injunction.! Moreover, Respondent fails to address the

issue of damages stemming from the wrongfully issued

preliminary injunction. Plainly, the issues presented by

this appeal are alive, and not moot.

INTRODUCTION

1. The issues raised by the preliminary injunction do

not merge into those raised by the permanent

injunction.

The district court decided that the Norris-LaGuardia

Act (the “Act”) did not apply to the present case, and in

so doing failed to follow the Act’s strict requirements for

issuance of an injunction. 29 U.S.C. § 107 requires posting

of adequate security before issuing a preliminary injunc-

tion. It also requires that the bond cover all reasonable

costs, including reasonable attorney fees and the expense

of defense caused by the improvident or erroneous issu-

ance of such an order. These costs and damages are

separate from those incurred in defending Respondent's

§ 1983 action.

' Respondent string-cites a series of inapposite cases to

establish an irrelevant point, i.e., that in a non-labor context, a

preliminary injunction often merges into a permanent injunc-

tion (Resp. Brief in Opp. p. 7-8). Only one case Respondent cites

involves the Act: Certified Grocers of Ill. v. Produce Etc. Un., Loc

703, 816 F.2d 329 (7th Cir. 1987), discussed infra.

If an injunction is improperly granted and the party

against whom it was granted is entitled to recover dam-

ages resulting from the wrongful issuance, the expiration

of the preliminary injunction does not render the litiga-

tion moot. Inter. U., United Auto., Etc. v. LaSalle Mach. Tool,

696 F.2d 452 (6th Cir. 1982).

In Inter. U., United Auto., Etc. v. LaSalle Mach. Tool, the

employer intended to sell its machinery, subcontract its

work and terminate employees in violation of an agree-

ment not to subcontract. The district court issued a Boys

Market injunction? pending arbitration, and ordered the

union to post a bond. The employer appealed, but the

arbitrator issued his award before the Sixth Circuit

decided the appeal. The union argued that the appeal of

the preliminary injunction was moot. The Sixth Circuit

found to the contrary, despite the fact that the union had

never actually posted the required bond:

The issuance of an injunction in a case involving

or growing out of a labor dispute must be condi-

tioned on an undertaking by the person seeking

the injunction to make the person enjoined

whole for any loss, expense or damage caused

by the improvident or erroneous issuance of the

injunction. This requirement is made jurisdic-

tional by § 1 of the Norris-LaGuardia Act, 29

2 A so-called Boys Market injunction is a recognized excep-

tion to the Act’s prohibition against injunctions. In Boys Markets,

Inc. v. Retail Clerks Union, 398 U.S. 235 (1970), the Court autho-

rized an injunction against a strike where an employer had

agreed to final and binding arbitration as the quid pro quo for

an agreement not to strike. It found that, in the absence of the

availability of injunctive relief in such situations, the important

federal policy favoring arbitration would be undermined.

U.S.C. § 101, supra. Having sought and obtained

a preliminary injunction the union is obligated

to pay the costs and damages incurred or suf-

fered by the party found to have been wrong-

fully enjoined. 696 F.2d 452, 459.

The Sixth Circuit relied on a factually similar case, Lever

Bros. Co. v. Intern. Chemical Workers Union, Etc., 554 F.2d

115 (6th Cir. 1976):

Rule 65(c) of the Federal Rules of Civil Pro-

cedure does not stand as authority that injunc-

tion bonds in labor cases are to be conditioned

on the outcome of the merits of arbitration.

Rather, it is settled that the recoverable damages

under such a bond are those that arise from the

operation of the injunction itself and not from

damages occasioned by the suit independently

of the injunction. 554 F.2d 115 at 120.

In the present case, the district court premised its

injunction on its conclusion that the Act did not apply to

municipal employers, and that plaintiff’s impending ter-

mination was not a labor dispute. The Ninth Circuit

disagreed, expressly holding that United States v. United

Mine Workers, 330 U.S. 258 (1947), does not exclude

municipal employers from the Act’s coverage (“Mine

Workers is inapposite.” App. Pet. A-8), and that plaintiff's

impending termination was indeed a labor dispute

(“Under Norris-LaGuardia’s “broad” definition, this is a

labor dispute.” App. Pet. A-7). Because the Ninth Circuit

decided that this labor dispute fell within the exception

to the Act, it in effect found that Respondent should have

been required to post a bond. However, just as in Inter.

U., United Auto., Etc. v. LaSalle Mach. Tool, supra, such a

failure does not make the wrongful issuance of the

injunction moot.

2. Petitioner never abandoned this appeal.

The instant litigation has spawned two separate

appeals, each involving separate and distinct issues

The instant appeal, based on the Act, seeks review of

the Ninth Circuit’s decision creating a new exception to

the Act for actions under 42 U.S.C. § 1983. Petitioner

immediately appealed from the issuance of the prelimi

nary injunction. Sin:ultaneously, litigation of issues

underlying Respondent's § 1983 claim proceeded through

the district court.

The § 1983 issues are now before the Ninth Circuit, as

a second appeal, challenging the district court’s perma

nent injunction prohibiting petitioner from applying to

Respondent a work rule which the court found uncon-

stitutional. Respondent's brief is due to be filed at the

Ninth Circuit on April 25, 1994.

Petitioner could not include the Norris-LaGuardia

issue in the docketing statement, or brief, for the second

appeal, because the Ninth Circuit had already decided

the issue. Reuter v. Skipper, 4 F.3d 716 (9th Cir. 1993).

Far from abandoning the Norris-LaGuardia issue,

Petitioner has vigorously pursued its resolution through

timely appeal to the Ninth Circuit, petition for rehearing

and suggestion for rehearing en banc (Pet. App. at B-1),

JI

as well as the instant petition for writ of certiorari, at the

same time it is litigating the underlying § 1983 action

3 [his case is not moot.

Kespondent is mistaken in asserting this case is moot

Weinstein Bradford, 423 U.S. 147 (1975), provides that

where a challenged action is too brief in duration to be

fully litigated prior to its cessation, and it 1 apable Of

repr tition. the case 1s not moot

In Weinstein, the Court found the case was moot

because the prisoner challenging procedure tor deter

mining eligibility ror parole had been released from

supervision [Ihe Court found that, although the peti

tioners would continue to administer the North Carolina

parole system, there was no demonstrated probability

that the 1 spondent would ever be before the par le

boar i ayalin

Here, as in Weinstein, Petitioner will continue to

administer the Sheriff Office. However, unlike Wein

tein, Respondent and all other Corrections Officer

remain subject to a work rule restricting their non-bu

ness contacts with former inmates. Indeed, the work rule

in its various forms is the primary cause of litigatior

Respondent contends Petitioner abandoned the appeal of

the | reliminary injunction Decause there was not a direct appeal

following the district court’s October 12, 1993, declaratory judg

ment and permanent injunction. This is procedural hairsplit

ting. Petitioner timely appealed the district court’s August 2

1993, order granting summary judgment n september

1993. If the Ninth Circuit reverses that order, the permanent

injunction will necessarily be vacated

between Respondent and the Multnomah County Correc-

tions Officers Association, on behalf of its members.

When Reuter — or another Corrections Officer — again

runs afoul of the workrule, this case will be repeated.

When a preliminary injunction again issues, prohibiting

Petitioner from administering discipline, it will again be

of such short duration that the issue, of whether or not

the Act prohibits an injunction in this type of labor dis-

pute, will again evade review.

Indeed, for this exception to mootness to apply,

Respondent need not be the only party affected by the

probability of repetitive litigation evading review. In

Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), an

order restraining publicity before a trial expired before

the case challenging the constitutionality of the order was

heard on appeal. Because the case involved important

freedom of press issues, and state prosecutors in the

future might seek similar pre-trial orders, the State of

Nebraska intervened. The Court found that the dispute

was capable of repetition, and not moot, despite the fact

that only one particular judge, and not the State, was the

named defendant.

Even though the union is not named in the present

action, the reasonable expectation exists that the dispute,

over whether Norris-LaGuardia prohibits preliminary

injunctions against discipline of union members, will

arise again between the union —- or its members — and

Petitioner. At the hearing on the prelimitiary injunction in

this case, officers of Respondent’s union testified that the

work rule for which Respondent was being disciplined

has been, and obviously continues to be, the subject of

repeated litigation. Moreover, now that the district court

has once enjoined discipline based on violation of the

work rule, it is all the more likely to be asked to do so

again. Therefore, as in Nebraska Press, supra, this case is

not moot

Finally, in International U., Auto., Etc. v. LaSalle Mach

lool, supra, in addition to finding that the appeal was

alive because the issue of damages was still alive, the

court found that the appeal was not moot because “the

issue of the validity of the preliminary injunction would

evade review.” Id., at 459. “When these circumstances

exist the litigation is not moot.” I[d.4

* Respondent relies on Cert. Grocers of | Produce Et

lin. I 703, 816 F.2d 329 (7th Cir. 1987) for the proposition that

a preliminary injunction always merges into a permanent

injunction (Respondent’s Brief p. 8-9). This holding is in direct

conflict with Inter. U., United Auto., Et LaSalle Mach. T

supra, and vitiates Respondent’s argument that the instant case

) ()

i i

should not be accepted for review because there is n¢

between the circuits (Respondent's Brief p.11

CONCLUSION

The Ninth Circuit’s Opinion should be reviewed and

reversed by this Court.

Dated: March 24, 1994

Respectfully submitted,

STEVEN J. Nemirow*

Assistant County Counsel

LAURENCE KRESSEI

Multnomah County Counsel

P.O. Box 849

Portland, Oregon 97202-0849

(503) 248-3138

Attorneys for Petitioners

*Counsel of Record