22 F.4th 1125
9th Cir.2022Background
- ICTSI Oregon (a PMA member) leased Terminal 6 from the Port of Portland but the Port retained control of "reefer" (refrigerated container) work and assigned it to IBEW; ILWU sought reassignment to ILWU-affiliated labor.
- Beginning in 2012 ILWU engaged in stoppages/slowdowns at Terminal 6 to coerce reassignment; ocean-going cargo operations ceased for over a year and ICTSI later exited the terminal.
- NLRB found ILWU violated 29 U.S.C. § 158(b)(4)(B) by coercing a secondary employer (ICTSI); the D.C. Circuit affirmed the NLRB rulings.
- ICTSI sued ILWU for damages in district court; the court allocated burdens under Mead v. Retail Clerks, requiring ICTSI to prove coercive activity, unlawful motivation (reefer work was a substantial motive), and that unlawful secondary activity substantially caused ICTSI’s damages.
- A jury returned a verdict for ≈$93.5M finding ILWU’s acts were unlawful and sole cause of damages; the district court conditionally granted a new trial unless ICTSI accepted remittitur to $19M (which ICTSI refused).
- ILWU moved for interlocutory appeal under 28 U.S.C. § 1292(b), identifying two questions: (1) whether ICTSI lost secondary-employer status by entanglement with the Port dispute; and (2) whether the district court correctly interpreted Mead regarding apportionment/divisibility burdens. The Ninth Circuit dismissed the appeals for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICTSI lost its secondary-employer status by "entangling" itself in the dispute (i.e., whether that question is a controlling question of law for §1292(b) review) | ICTSI: The entanglement question is factual and therefore not a proper §1292(b) controlling question of law. | ILWU: The entanglement question presents a controlling legal issue fit for interlocutory review. | The court held the entanglement question is one of fact, not law, so it fails §1292(b) and does not confer interlocutory jurisdiction. |
| Whether the district court correctly interpreted Mead in allocating burdens on apportionment/divisibility of damages (and whether that issue is reviewable here) | ICTSI: Mead-related rulings were not within the four corners of the certified order and thus are not before the court on §1292(b) review. | ILWU: The Mead question warrants review and may be reached under Cinematronics/Canela as material to the certified order. | The court held it lacked jurisdiction: the Mead issue was not in the certified order and Cinematronics/Canela did not permit reaching it because the certified question itself failed §1292(b). |
| Whether the district court's §1292(b) certification satisfied the statutory prongs and justified interlocutory review | ICTSI: The certified question(s) do not present controlling questions of law or substantial grounds for difference of opinion; interlocutory review is not warranted. | ILWU: The district court properly certified controlling questions meeting §1292(b) criteria; the motions panel granted permission to appeal. | The Ninth Circuit concluded the §1292(b) requirements were not met as to the certified controlling question (it being factual), and therefore dismissed the appeals for lack of jurisdiction. |
Key Cases Cited
- Mead v. Retail Clerks Int'l Ass'n, Loc. Union No. 839, 523 F.2d 1371 (9th Cir. 1975) (burden-allocation principles for secondary-employer damages disputes)
- Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) (standard for interlocutory appeals under § 1292(b): exceptional circumstances justify departure from final-judgment rule)
- In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020 (9th Cir. 1981) (three-part test for § 1292(b) certification: controlling question of law, substantial grounds for difference of opinion, and materially advancing termination)
- Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681 (9th Cir. 2011) (explanation of "substantial grounds for difference of opinion" under § 1292(b))
- In re Cinematronics, 916 F.2d 1444 (9th Cir. 1990) (narrow exception permitting review of an issue outside the certified order when that issue is material to the certified order)
- Canela v. Costco Wholesale, 971 F.3d 845 (9th Cir. 2020) (applied Cinematronics to permit interlocutory review of a jurisdictional question outside the certified order when material to the appealed order)
- Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996) (limits on the scope of appellate review under § 1292(b); court may decline to reach issues beyond the certified order)