Ninth Circuit Holds That Court of Appeals Could Not Extend Appellate Jurisdiction Under 28 U.S.C. § 1292(b) to Address Question of Law Not Presented in the “Four Corners of the Certified Order”

In ICTSI Oregon, Inc. v. Int’l Longshore and Warehouse Union, No. 20-35818 (9th Cir. Jan. 18, 2022), the Ninth Circuit declines to accept certification of an interlocutory appeal under 28 U.S.C. § 1292(b). It holds that one question in the certified order is really just a question of fact, while the other question – while a proper question of law – fails to appear in the “four corners of the certified order.”

The case arose from a labor dispute at the Port of Portland (Port) beginning a decade ago when the plaintiff ICTSI began assigning work to members of the rival International Brotherhood of Electrical Workers (IBEW). “[T]he work of loading and unloading containers on and off international ocean-going vessels is typically performed by members of local unions affiliated with International Longshore and Warehouse Union (‘ILWU National’).”

The ILWU and its local, in response to ICTSI’s action, “engaged in high-profile work stoppages, slowdowns, and other coercive activity at [ICTSI’s] Terminal 6 . . . . The ocean-going cargo traffic ceased for more than a year. By 2017, ILWU’s actions forced ICTSI to buy back the remainder of its lease from the Port and to leave Terminal 6.” It then lodged an unfair labor practice charge against ILWU with the National Labor Relations Board that alleged an unlawful secondary boycott. After a determination in its favor, ICTSI filed a federal lawsuit under the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(4)(B).

“Before trial, interpreting this court’s decision in Mead v. Retail Clerks Int’l Ass’n, Loc. Union No. 839, 523 F.2d 1371 (9th Cir. 1975), the district court assigned ICTSI the burden of proving [liability] . . . In turn, ILWU was allocated the burden of showing that ICTSI’s damages were attributable to other factors, such as lawful labor activity or outside causes, like lower customer demand.” The union was also assigned the burden of apportioning damages caused by the labor action and other causes (the “divisibility“ issue).

“After a ten-day trial, the jury returned a verdict for more than $93.5 million for ICTSI. Among other findings, the jurors concluded that all of ILWU’s actions were unlawful and that those actions were the sole cause of ICTSI’s damages. Accordingly, they did not reach the issue of divisibility.” On post-trial motions, ILWU lost all but a new trial or remittitur motion. ICTSI refused a remittitur to $19 million.

Accordingly, the case was set for a new trial, but before that happened the district court certified its post-trial rulings for interlocutory appeal under 28 U.S.C. § 1292(b). “The district court granted such motion. It found that two questions satisfied the jurisdictional requirements of that section. The first question was whether the district court ‘correctly interpreted Mead’ when it assigned ILWU the burdens of proving apportionment and divisibility of damages. The second was whether ‘ICTSI lost its status as a ‘secondary employer’” by entangling itself in the dispute between ILWU and the Port.”

The Ninth Circuit panel dismisses the appeal, holding that the certified order did not meet the standards of 28 U.S.C. § 1292(b).

The first question presented for appeal – “whether ICTSI lost its status as a secondary employer by entangling itself in the dispute between ILWU and the Port” – was not a question of law at all. “The dispute between the parties is not about whether primary—as opposed to secondary—employers can recover damages for violation of § 158(b)(4)(B) (a question of law); rather the dispute is about whether ICTSI became a primary employer under the circumstances of this case (a question of fact). Ruling on this issue, the district court primarily relied on facts from the record . . . . Such question, therefore, does not satisfy the requirements of § 1292(b) and cannot be the basis for jurisdiction in this Court.”

The panel recognizes that the second question presented is a question of law: “whether the district court ‘correctly interpreted Mead’ when it assigned ILWU the burdens of proving apportionment and divisibility of damages.” But it failed to create jurisdiction because the question was not presented on the face of the certified order.

“The narrow issue before us is, then, whether a question not decided within the four corners of the certified order can confer jurisdiction on this court over such order.” The panel recognizes that under 28 U.S.C. § 1292(b), “interlocutory jurisdiction extends to a question outside the order when such question is ‘material’ to the certified order.”

But here, the panel held that the only other question presented itself failed to confer jurisdiction. “Here, … the only question in the four corners of the certified order that purportedly satisfies § 1292(b) is the ‘secondary employer’ question. As discussed above, that question fails because it is not a question of law. Thus, . . . we cannot establish jurisdiction over the certified post-trial order. It follows that we cannot extend that jurisdiction to the Mead issue decided in the pre-trial ruling.”

“Accordingly, we lack jurisdiction under § 1292(b) to consider this question. In light of our disposition, the parties will have to continue their litigation in the district court, at least for now.”

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