Case: 10-30858 Document: 00511599829 Page: 1 Date Filed: 09/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 12, 2011
No. 10-30858 Lyle W. Cayce
Clerk
P H I , INC
Plaintiff
v.
OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION; ET
AL
Defendants
_______________________________________________________________________
OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION;
LOCAL 108, OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL
UNION; CYNTHIA ABER; HOWARD A. ALBECKER; THOMAS R.
ANDARY; ET AL,
Plaintiffs - Appellants Cross-Appellees
v.
P H I, INCORPORATED,
Defendant - Appellee Cross-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
Dist. Ct. No. 6:06-cv-01469
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
Case: 10-30858 Document: 00511599829 Page: 2 Date Filed: 09/12/2011
No. 10-30858
PER CURIAM:*
A labor dispute between PHI, Incorporated (“PHI”) on the one hand and
certain individual pilot employees (“Individual Pilots”), Office & Professional
Employees International Union, and Local 108, Office & Professional Employees
International Union (all collectively called the “Unions”) on the other hand
spawned two appeals. The case giving rise to this appeal came to be known as
the “Return to Work Suit.”
The facts are well-known to the parties, so we recite them only briefly
here. PHI is a “carrier” under 45 U.S.C. § 181. OPEIU and its Local 108 are
labor organizations who are certified as the bargaining representatives for PHI’s
pilots. After expiration of the then-existing collective bargaining agreement
(“CBA”), the parties’ negotiations over a new CBA broke down. Following the
Unions’ rejection of arbitration as offered by the National Mediation Board (and
PHI’s silence in response to the offer of arbitration), the parties were released
to “self-help” on August 28, 2006. The Unions engaged in a strike commencing
on September 20, 2006, and ending on November 10, 2006. The district court
wrote several very careful and thorough memorandum opinions over the two
cases (which were ultimately consolidated for trial before the court’s ruling on
dispositive motions obviated the need for a trial). Having considered the district
court’s reasoning, the parties’ briefing, and the arguments of counsel at oral
argument, we turn to the issues in this appeal.
1. Availability of “Other” Equitable Relief. The district court held that the
Unions were barred from seeking any equitable relief because of their
inequitable conduct in refusing arbitration. In the district court, the Unions
never argued that the district court should analyze the equities differently when
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 10-30858
assessing injunctive relief than when assessing “other” equitable relief (such as
“make whole relief” like back pay). Before this court, they now concede that they
are not entitled to injunctive relief, but they argue that their claims for other
equitable relief should not be similarly barred. We conclude that the Unions’
failure to raise this argument to the district court results in review for plain
error only. Kinash v. Callahan, 129 F.3d 736, 739 n.10 (5th Cir. 1997). We
further conclude that the Unions have not demonstrated plain error.
2. Private Right of Action. The Unions appeal from the district court’s
determination that the individual pilots do not have a private cause of action
under Section 2 Third & Fourth of the Railway Labor Act.1 The district court
found that these claims must be brought through the Unions as the certified
representatives. We have reviewed the district court’s determination of this
issue, and we affirm for substantially the same reasons as given by the district
court.
3. “Minor Disputes.” The Unions appeal the district court’s determination
that a number of claims raised by the individual pilots are “minor disputes”
subject to the exclusive jurisdiction of the National Railroad Adjustment Board.
These matters involve outright refusals to return pilots to work after the strike
ended as well as delaying such return, delaying training, reassigning pilots and
similar conduct. We conclude that the district court did not err in finding these
disputes to be “minor disputes” outside the court’s jurisdiction.
4. Evidentiary Issues and “Attorney as Witness” Issues. The Unions argue
that the district court made several errors regarding trial issues such as whether
they could amend their exhibit list and the matters on which their expert
witnesses could testify. They also complain of certain alleged errors surrounding
negotiations between their counsel (Melvin Schwarzwald) and a PHI
1
45 U.S.C. § 152 Third & Fourth.
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representative as well as the district court’s ruling that Schwarzwald must
choose between acting as a witness and acting as counsel. Given our ruling on
the other matters presented, we conclude that it is unnecessary to reach these
issues.
5. PHI’s Cross-Appeal for Costs. PHI appeals the district court’s denial of
its costs under Federal Rule of Civil Procedure 54(d)(1).2 The district court,
noting a lack of clarity on the issue, held that costs should not be awarded to
PHI on the basis that the court’s denial of most claims for a lack of subject
matter jurisdiction made it unclear that PHI was the “prevailing party.”
We note that there are two types of dismissal for lack of jurisdiction: those
which determine only that the federal courts are not the proper forum to
adjudicate the merits (such as a dismissal for imperfect diversity); and those in
which a dismissal for lack of jurisdiction is an adjudication of the merits. This
case presents the latter. See Bhd. of. R.R. Trainmen v. Cent. of Ga. Rail Co., 305
F.2d 605, 609 (5th Cir. 1962) (noting that the Union’s RLA claim presented “a
situation in which the determination of the Court’s jurisdiction [is] simultaneous
with the determination of the merits”). Therefore, we hold that PHI is a
prevailing party under these facts and is entitled to its reasonable costs.3
2
The parties agreed that neither side should recover costs in the “Bargaining Suit”
(filed in this court under Case No. 10-31040), so this discussion only relates to the “Return to
Work Suit.”
3
The Unions argue that PHI was required to seek costs pursuant to 21 U.S.C. § 1919,
which gives the district court discretion to award costs following a dismissal for lack of
jurisdiction. Because we hold that PHI is a prevailing party under these facts, we disagree.
Rule 54(d)(1) states that a district court should award costs to a prevailing party “[u]nless a
federal statue . . . provides otherwise.” Section 1919 was enacted to empower courts to award
costs even if the court’s dismissal for lack of jurisdiction did not result from a merits
adjudication. See Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 387 (1884). However,
where there is a prevailing party (as here) § 1919, which merely empowers the court to award
costs and does not direct the court with regard to its discretion, does not conflict with Rule
54(d)(1) and therefore does not “provide otherwise.” Cf. Quan v. Computer Sciences Corp., 623
F.3d 870, 888 (9th Cir. 2010).
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6. Conclusion
We therefore AFFIRM the district court as to all issues raised by the
Unions’ appeal and REMAND to the district court for a determination of PHI’s
reasonable costs.
5