Idaho Building and Construction Trades Council, AFL-CIO et al v. Wasden

Filing 95

MEMORANDUM DECISION AND ORDER granting 88 Plaintiffs' Motion for an Indicative Ruling under Rule 62.1. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

IDAHO BUILDING AND
CONSTRUCTION TRADES COUNCIL,
AFL-CIO, and SOUTHWEST IDAHO
BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO,

Case No. 1:11-cv-00253-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
LAWRENCE G. WASDEN, in his
official Capacity as ATTORNEY
GENERAL FOR THE STATE OF
IDAHO,
Defendant.

INTRODUCTION
The Court has before it a motion for an indicative ruling under Federal Rule of
Civil Procedure 62.1 filed by Plaintiffs Idaho Building and Construction Trades Council,
AFL-CIO and the Southwest Idaho Building and Construction Trades Council, AFL-CIO
(Dkt. 88). Order, Dkt. 67. The Trades Councils seek an indicative ruling either that Tim
Mason, in his capacity as Administrator, Division of Public Works, Idaho Department of
Administration, may be joined as additional defendant under Federal Rule of Civil
Procedure 21, or find that such a motion raises substantial issues. For the reasons set

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forth below, the Court finds that a motion to join Mason as a defendant would raise
substantial issues.
BACKGROUND
On December 22, 2011, this Court held that the National Labor Relations Act
preempts the 2011 Idaho Open Access to Work Act, Idaho Code§ 44-2013, and the
Fairness in Contracting Act, Idaho Code§ 44-2012, and accordingly enjoined
enforcement of those two laws. As a threshold matter, the Court rejected Wasden’s
argument that he was not a proper defendant under the Ex Parte Young doctrine, and that
the Trades Councils lacked Article III standing because there was no injury-in-fact. This
Court found that the Court had proper jurisdiction under the doctrine of Ex Parte Young
over Wasden and that the Trades Councils had standing because the Attorney General
had a causal connection to the enforcement of the Right-to-Work Act. Order, Dkt. 67.
Wasden appealed to the Ninth Circuit, and his appeal is currently pending in the
U.S. Court of Appeals for the Ninth Circuit as Case No. 12-35051. In the meantime, the
Idaho Legislature amended section 44-2007, Idaho Code, excluding from its enforcement
provisions both the Open Access Act and the Fairness in Contracting Act, but otherwise
leaving intact the substantive provisions of those statutes and the bases for the Trades
Councils’ challenge.
In his opening brief to the Ninth Circuit, Wasden argues, in part, that the Idaho
Legislature’s 2012 amendments to the statutes at issue removed jurisdiction over Wasden
under the Ex Parte Young doctrine, thereby mooting the cause of action. Def.’s Resp. at

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2-3, Dkt. 92. In response to the statutory amendments and the Wasden’s argument, the
Trades Councils now seek an indicative ruling allowing them to join Mason as a
defendant to ensure that the full appeal can proceed. Pls.’ Brief at 4,8, Dkt. 88-1.
In opposition to the present motion, Attorney General Wasden argues: (1) the
Trades Councils’ Rule 62.1 motion does not satisfy any subparagraph of Rule 60(b),
which he claims is "the threshold predicate for [the Trades Councils'] motion to join
Administrator Mason as a defendant" Def. Resp. at 5, Dkt. 92; and (2) Mason is not a
proper defendant because the Trades Councils cannot establish that his actions in his
official capacity will cause them injury-in-fact and, therefore, their claim ''founders on
standing and ripeness shoals." Id. at 9-18.
ANALYSIS
1.

Federal Rule of Civil Procedure 62.1
“The filing of a notice of appeal is an event of jurisdictional significance—it

confers jurisdiction on the court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982). Federal Rule of Civil Procedure 62.1 offers district
courts several options for action when “a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is pending.” Fed
R. Civ. P. 62.1. Under Rule. 62.1(a), a district court may defer consideration of or deny
the motion, or it may indicate that it would grant the motion if the court of appeals
remands for that purpose, or that the motion raises a substantial issue. Id. at 62.1(a). Rule

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62.1 operates in conjunction with Federal Rule of Appellate Procedure 12.1, which
provides that if the district court, pursuant to Rule 62.1(a)(3), states that it would either
grant the motion on remand or that the motion raises a substantial issue, the movant must
notify the circuit clerk. Fed. R.App. P. 12.1.
2.

Motion to Add a Defendant
The Trades Council is asking this Court to consider whether it would allow the

addition of a new defendant, specifically Tim Mason in his capacity as Administrator,
Division of Public Works, Idaho Department of Administration. Pls.’ Brief at 2, Dkt. 881. The Trades Councils seek to join Mason pursuant to Federal Rule of Civil Procedure
21.
Rule 21 provides that “[p]arties may be dropped or added by order of the court on
motion of any party or of its own initiative at any stage of the action and on such terms as
are just.” Fed.R.Civ.P. 21. Courts have long relied on Rule 21 to both dismiss and add
parties in order to maintain a justiciable case. Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 833 (1989). Resort to Rule 21 is appropriate where “requiring dismissal
after years of litigation would impose unnecessary and wasteful burdens on the parties,
judges, and other litigants waiting for judicial attention.”
Here, the Trades Councils seek to add Mason as a safeguard against any potential
procedural impediments to the Ninth Circuit’s review of this Court’s decision. Assuming
Mason is a proper defendant, “the practicalities weigh heavily in favor” of a decision to
join Mason as a party. Newman-Green, 490 U.S. at 837. If the entire suit were dismissed

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as moot, the Trades Councils would simply refile their case against Mason and submit the
discovery materials in hand, if any. “The case then would proceed to a preordained
judgment.” Id. The Trades Council “should not be compelled to jump through these
judicial hoops merely for the sake of hypertechnical jurisdictional purity.” Id.
Wasden argues, however, that the Trades Councils must “satisfy one of the
subparagraphs of Rule 60(b)” before the Court may reach the Councils’ motion to join
Mason as a defendant. The Court disagrees.
First, nothing in the language of Rule 62.1 confines it to Rule 60(b) motions. To
the contrary, the Advisory Committee Notes make clear: "This new rule adopts for any
motion that the district court cannot grant because of a pending appeal the practice that
most courts follow when a party makes a Rule 60(b) motion to vacate a judgment that is
pending appeal.” (Emphasis added). The rule “does not attempt to define the
circumstances in which an appeal limits or defeats the district court’s authority to act in
the face of a pending appeal.” Id. Rather, it applies only when those rules otherwise
would deprive the district court of authority to act. Id.
Second, Rule 21 specifically allows motions to add or drop parties “at any stage in
the action” – including on appeal. California Credit Union League v. City of Anaheim,
190 F.3d 997, 999 (9th Cir. 1999)(“[C]ourts have consistently recognized that appellate
courts can join parties pursuant to Rule 21 when a case is pending on appeal.”). And the
Ninth Circuit has never held that judgment must be reopened under a Rule 59 or Rule 60
motion before the Court may entertain a Rule 21 motion. Compare Lindauer v. Rogers,

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91 F.3d 1355, 1357 (9th Cir.1996) (holding that once judgment is entered, motions to
amend under Rule 15(a) can only be entertained if judgment is reopened by a Rule 59 or
Rule 60 motion).
If the Ninth Circuit chooses to remand, the Court will consider whether Mason is a
proper defendant at that time. But considering appellate courts are allowed to address
motions to add a party under Rule 21, the Ninth Circuit may elect to retain jurisdiction
and address the issue on the pending appeal rather than remand.
ORDER
IT IS ORDERED that Plaintiffs Idaho Building and Construction Trades
Council, AFL-CIO and the Southwest Idaho Building and Construction Trades Council,
AFL-CIO’s motion for an indicative ruling under Federal Rule of Civil Procedure 62.1
(Dkt. 88) is GRANTED. The Court issues an indicative ruling under Rule 62.1 regarding
the motion to add Mason as a defendant, finding that the motion raises substantial issues.

DATED: May 1, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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