NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3985
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R.I., INC.,
d/b/a
Seating Solutions;
LISA SUPRINA, in her official capacity as President
and individual capacity as a citizen of the United States;
SCOTT SUPRINA, in his official capacity as Vice President
and individual capacity as a citizen of the United States;
TONY ENGLISH, in his official capacity as Secretary
and his individual capacity as a citizen of the United States,
Appellants
v.
MICHAEL MCCARTHY, in his individual capacity and
official capacity as Director of NJDOL;
RAYMOND SMID, in his individual capacity and
official capacity as Section Chief NJDOL;
THEODORE E. TARDIFF, in his individual capacity
and official capacity as Supervisor NJDOL
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 06-cv-01021)
District Judge: Honorable Peter G. Sheridan
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Submitted Under Third Circuit LAR 34.1(a)
May 25, 2012
Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges.
(Filed: May 29, 2012)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
R.I., Inc., doing business as Seating Solutions, along with Lisa Suprina, Scott
Suprina, and Tony English (collectively, Plaintiffs), appeal the District Court’s summary
judgment. Because we agree with the District Court that Defendants Michael McCarthy,
Raymond Smid, and Theodore Tardiff are entitled to qualified immunity, we will affirm.
I
We recite only the essential facts and procedural history of the case, and we do so
in the light most favorable to Plaintiffs against whom summary judgment was entered.
E.g., Mabey Bridge & Shore, Inc. v. Schoch, 666 F.3d 862, 866 n.2 (3d Cir. 2012) (citing
Couden v. Duffy, 446 F.3d 483, 489 n.1 (3d Cir. 2006)).
A
Plaintiffs are a company that installs spectator seating and three of its officers.
Defendants are three former officials of the New Jersey Department of Labor and
Workforce Development (NJDOL). During the relevant time periods, McCarthy was the
Director of the Division of Wage and Hour Compliance, Smid was his subordinate and
the Section Chief of the Public Contracts Section, and Tardiff was a District Supervisor
under Smid.
2
In 2005, the employees of Seating Solutions formed a union and the union entered
into a collective bargaining agreement (CBA) with the company’s management. The
CBA contained an Appendix A in which the union relinquished its rights under federal
and state prevailing wage laws in exchange for a guarantee of year-round work for its
members who met certain requirements. Around that time, the local carpenters’ union
had a meeting with Scott Suprina at which it asserted its belief that the carpenters were
entitled to the Seating Solutions work and implied that it would retaliate if Seating
Solutions did not meet its demands. Seating Solutions did not hire the carpenters’ union.
The carpenters then filed a complaint against Seating Solutions with the NJDOL, which
initiated an investigation into the company’s work on various projects.
The investigation was conducted pursuant to the NJDOL’s responsibility to
enforce the New Jersey Prevailing Wage Act (PWA), 1963 N.J. Laws ch. 150 (codified as
amended at N.J. Stat. Ann. § 34:11-56.25 et seq.). The PWA provides civil penalties for
contractors who fail to pay the “prevailing wage” on public-works contracts. N.J. Stat.
Ann. §§ 34:11-56.35, -56.36, -56.40, -56.47. The prevailing wage is defined as “the wage
rate paid by virtue of collective bargaining agreements by employers employing a
majority of workers of that craft or trade subject to said collective bargaining agreements,
in the locality in which the public work is done.” N.J. Stat. Ann. § 34:11-56.26(9). The
commissioner of the NJDOL periodically sets the prevailing wage for each trade in each
locality and has the authority to enforce the PWA. N.J. Stat. Ann. §§ 34:11-56.30 to -
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56.31. After notice and a hearing on an alleged violation, for example, the commissioner
may revoke or suspend a contractor’s registration or require the contractor to post a surety
bond. N.J. Stat. Ann. § 34:11-56.56.
During the investigation, the NJDOL ordered Seating Solutions to produce various
documents. In August 2005, Tardiff recommended that Seating Solutions be debarred,
that is, prohibited from conducting public work. McCarthy approved this
recommendation and Plaintiffs were sent the required notices, which assessed penalties,
fees, and additional wages for failure to comply with the PWA. A state administrative
law judge (ALJ) held a hearing on the proposed debarment and subsequently issued an
order upholding the assessed amounts and debarring Plaintiffs for three years. The New
Jersey courts affirmed the ALJ’s decision.
B
Plaintiffs filed this 42 U.S.C. § 1983 action in the United States District Court for
the Eastern District of New York in 2005. The case was transferred to the District of
New Jersey in early 2006. In March 2007, the District Court bifurcated the case,
dismissing the complaint pursuant to the Younger abstention doctrine insofar as it sought
injunctive and declaratory relief, and staying the matter to the extent that it sought money
damages. The Court reopened the case in 2009, and after a period of discovery granted
Defendants’ motion for summary judgment on the basis of qualified immunity. Plaintiffs
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filed this timely appeal. 1
II
Plaintiffs raise several challenging preemption arguments, in essence contending
that Defendants’ actions infringed upon their federal rights conferred by the National
Labor Relations Act (NLRA), 49 Stat. 449 (1935) (codified as amended at 29 U.S.C.
§ 151 et seq.), and the Labor Management Relations Act (LMRA), 61 Stat. 136 (1947)
(codified as amended at 29 U.S.C. § 141 et seq.). In particular, they argue that the
preemption doctrines articulated in Lodge 76, International Ass’n of Machinists &
Aerospace Workers v. Wisconsin Employment Relations Commission, 427 U.S. 132
(1976), San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), and § 301
of the LMRA prohibited the actions of Defendants. 2 These are interesting arguments, but
1
The District Court had jurisdiction over this suit pursuant to 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. Contrary to Defendants’ assertion, the
District Court’s subject-matter jurisdiction was not impeded by the Rooker-Feldman
doctrine, at least because the federal complaint was filed before the state-court
proceedings concluded. Consequently, this is not a “case[] brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
2
Machinists “proscribes state regulation and state-law causes of action concerning
conduct that Congress intended to be unregulated, conduct that was to remain a part of the
self-help remedies left to the combatants in labor disputes.” Belknap, Inc. v. Hale, 463
U.S. 491, 499 (1983) (citations omitted). Under Garmon,
state regulations and causes of action are presumptively preempted if they
concern conduct that is actually or arguably either prohibited or protected by
the [NLRA]. The state regulation or cause of action may, however, be
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we need not reach them. Assuming arguendo that the NLRA or LMRA preempts the
PWA as applied to the facts of this case, thereby providing Plaintiffs with a federal right,
Defendants are entitled to qualified immunity from suit because that right is not clearly
established.
We review the grant of qualified immunity on summary judgment de novo.
Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). “The qualified immunity doctrine
‘protects government officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012)
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
“A right is clearly established for qualified immunity purposes where its contours
are ‘sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Sharp, 669 F.3d at 159 (quoting Saucier v. Katz, 533 U.S. 194, 202
(2001)). Because those contours are frequently delineated by decisional law, we look to
past cases to discern whether a right is clearly established. See, e.g., Bayer v. Monroe
sustained if the behavior to be regulated is behavior that is of only peripheral
concern to the federal law or touches interests deeply rooted in local feeling
and responsibility.
Id. at 498 (citation omitted). Finally, § 301 of the LMRA requires that “if the resolution
of a state-law claim depends upon the meaning of a collective-bargaining agreement, the
application of state law . . . is pre-empted and federal labor-law principles—necessarily
uniform throughout the Nation—must be employed to resolve the dispute.” Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405–06 (1988).
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Cnty. Children & Youth Servs., 577 F.3d 186, 192–93 (3d Cir. 2009); Egolf v. Witmer,
526 F.3d 104, 110 (3d Cir. 2008) (citing McLaughlin v. Watson, 271 F.3d 566, 571 (3d
Cir. 2001)); McKee v. Hart, 436 F.3d 165, 173 (3d Cir. 2006). However, “[i]n some
cases, even though there may be no previous precedent directly on point, an action can
still violate a clearly established right where a general constitutional rule already
identified in the decisional law applies with obvious clarity.” Sharp, 669 F.3d at 159
(citing Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006)).
The same paradigm applies to the statutory rules at issue here. We have not found,
nor have Plaintiffs cited, any precedent holding that the PWA is preempted by federal
labor law. And there is no dispute that Defendants acted within the authority of the
NJDOL pursuant to the PWA. Although compliance with state law will not render an
official automatically immune from suit, see Johnson v. Campbell, 332 F.3d 199, 209 n.7
(3d Cir. 2003) (citing Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 n.2
(2001)), such compliance—where there has never been a suggestion of
unconstitutionality—is highly indicative of entitlement to qualified immunity.
State-law compliance aside, the complexity of NLRA and LMRA preemption in
the wage-law setting entitles Defendants to qualified immunity. Two Ninth Circuit cases
reveal the nuances of NLRA preemption in this context. In Bechtel Construction, Inc. v.
United Brotherhood of Carpenters & Joiners of America, 812 F.2d 1220 (9th Cir. 1987),
the court considered “whether a bargained-for wage reduction, approved by all parties to
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a collective bargaining agreement, must yield to the law of California, which authorizes a
state Division of Apprenticeship Standards to establish a schedule of wages to be paid to
indentured apprentices.” Id. at 1221. Observing that under Metropolitan Life Insurance
Co. v. Massachusetts, 471 U.S. 724 (1985), some state-imposed minimum labor standards
are not preempted by the NLRA, the court nevertheless concluded that the wage standards
at issue were preempted because the state agency could approve negotiated lower
minimums. Therefore, the set minimum was not a “true minimum.” Id. at 1225–26.
Twelve years later, the Ninth Circuit considered whether the NLRA preempted the
California apprentice prevailing wage law. Dillingham Constr. N.A., Inc. v. Cnty. of
Sonoma, 190 F.3d 1034, 1036–37 (9th Cir. 1999). The court reached the opposite result,
holding that the law was not preempted. Id. at 1037. In doing so, it distinguished Bechtel
because the law at issue in Dillingham did, in fact, “establish[] true legal minimums.” Id.
at 1040–41.
Bechtel and Dillingham demonstrate that preemption of prevailing wage laws
depends on the details of the law at issue. See Assoc. Builders & Contractors of S. Cal.,
Inc. v. Nunn, 356 F.3d 979, 986–91 (9th Cir. 2004) (holding that the apprentice minimum
wage on private projects was not preempted by the NLRA); Rondout Elec., Inc. v. NYS
Dep’t of Labor, 335 F.3d 162, 167–69 (2d Cir. 2003) (holding that a New York prevailing
wage regulation was not subject to Machinists preemption); Chamber of Commerce of the
U.S. v. Bragdon, 64 F.3d 497, 504 (9th Cir. 1995) (holding a county prevailing wage
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ordinance was preempted by the NLRA because it reached “beyond the parameters of its
own public works projects to regulate wholly private construction projects”). Therefore,
absent case law specifically tailoring the application of the PWA on the basis of a
federally conferred labor right, any federal right to be free from PWA regulation that
Plaintiffs possessed was not “clearly established” when Defendants undertook their
discretionary enforcement actions.
One of our own cases further illustrates this point. In Keystone Chapter,
Associated Builders & Contractors, Inc. v. Foley, 37 F.3d 945 (3d Cir. 1994), we held
that the Employee Retirement Income Security Act (ERISA) of 1974, Pub. L. No. 93-406,
88 Stat. 829 (codified as amended at 29 U.S.C. § 1001 et seq.), did not preempt
Pennsylvania’s prevailing wage law, thereby rejecting the theory that the state law
impermissibly affects the employer’s ability to provide a benefits plan. Id. at 963–64.
The plaintiffs asserted that the NLRA also preempted the state law, but the district court
dismissed that claim and the plaintiffs did not challenge the dismissal on appeal. Id. at
952 & n.10. We nevertheless had occasion to discuss, in dicta, the Supreme Court’s
decision in Building & Construction Trades Council of the Metropolitan District v.
Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218
(1993), in which the Court held that “a bid specification by a Massachusetts state
authority, requiring bidders to abide by a particular labor agreement, was not preempted
by the” NLRA. Keystone, 37 F.3d at 955 n.15. Although we did not have to resolve the
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Trades Council argument that the state was acting as a market participant and therefore its
laws could not be preempted, we characterized it as a “novel argument” that was unlikely
to succeed because it would be odd for the state to raise its own costs if it were acting as a
market participant. Id.; see also Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 421–26 (3d
Cir. 2011) (discussing Keystone and the market-participant exception to preemption under
the NLRA en route to the conclusion that Delaware was acting as a market regulator, and
not a participant, when it enacted regulations pursuant to its prevailing wage law).
We do not raise Bechtel, Dillingham, and Keystone to suggest that the preemption
argument advanced by Plaintiffs here could not be successful, but merely to highlight the
novelty of the issues and the complexity of “preemption under the NLRA, which has no
explicit preemption provision.” Keystone, 37 F.3d at 955 n.15. The federal right asserted
by Plaintiffs implicates subtle issues of preemption in the labor context, including such
questions as whether the NJDOL was acting as a market participant, whether the
enforcement of the PWA interferes with the collective bargaining process, and whether a
periodically recalculated prevailing wage is a minimum labor standard. Where such
complexity meets a dearth of legal precedent specific to the PWA, we cannot conclude
that Plaintiffs had “clearly established” rights such that Defendants were “plainly
incompetent or . . . knowingly violate[d] the law” in carrying out their job duties. Malley
v. Briggs, 475 U.S. 335, 341 (1986). Accordingly, Defendants are immune from suit.
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III
For the aforementioned reasons, we will affirm the judgment of the District Court.
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