*1 HH an ORDER a defense to as union decertification because the em- action ERISA collection Upon majority the vote of a nonre- that its contribu- properly assumed ployer court, judges of this it regular cused active an end once the were at obligations tion that this case be reheard is ordered Id. at 1510. We decertified. union was Rule pursuant en banc court to circuit 35- not all contract de- although stated panel opinion shall not three-judge 3. The action, a “con- apply in an ERISA fenses precedent by cited as or to this court or be fund of a to a trust tract to contribute Circuit, court of the Ninth any district ongo- Coast has no with which West Union by the en except adopted to the extent makes agreement bargaining collective banc court. at 1509. In the instant no sense.” Id. case, nothing, decision to do the Union’s threats, dispute
despite its made of the CBA
of Delbon’s termination assumption that its contribution
Delbon’s similarly appro- end
obligations were at an of the con-
priate. In the absence present regarding Bla-Delco
cerns litigate forcing trust funds to
propriety of disputes un- and unresolved between fresh INC., CO., BABY TAM & a Nevada Met- employers, logic of Sheet ions corporation, Plaintiff- proper- The district court applies al here. Appellant, summary judgment favor of ly granted Delbon. v. of at- cross-appeals Delbon on the issue VEGAS, Defendant- LAS CITY OF did not
torneys’ fees. The district court Appellee. declining to award its discretion abuse fees. No. 99-16809.
AFFIRMED. Appeals, Court of United States
Ninth Circuit. Dec. Argued and Submitted 14, 2000. Filed Jan. WETZEL, Plaintiff-Appellant, Charles GROUP
LOU EHLERS CADILLAC TERM DISABILITY INSUR-
LONG PROGRAM; Reliance Stan-
ANCE Company, Defen- Life Insurance
dard
dants-Appellees.
No. 97-56437. Appeals, States Court
United
Ninth Circuit.
Jan. HUG, Jr., Judge. Chief
Before: *2 Stein, D. Kenehan Lambertsen
Michael Stein, plain- for the Vegas, Las & tiff-appellant. Attor- Henry, Deputy City P.
William Nevada, for the defen- ney, Vegas, Las dant-appellee. REINHARDT,
Before: NOONAN and THOMPSON, Judges. Circuit NOONAN; Opinion by Judge Dissent by Judge DAVID R. THOMPSON. NOONAN, Judge: Circuit Tam) Co., Inc., (Baby ap- Baby Tam & permanent in- peals the dissolution of the junction enjoining of the district court (the City City) of Las from enforc- Vegas ing Chapter 6.06A of the Las Mu- nicipal against Baby Tam. We hold Code Chapter that 6.06A is still on its face un- Accordingly, constitutional. we reverse of the district court and judgment re-entry permanent remand for of the in- junction.
PROCEEDINGS
sequel
Baby
case is a
Tam
This
&
Co., Inc.
Vegas,
Las
154 F.3d
(9th
I).
Cir.1998) (Baby
Tam
proceedings prior
fully
to the decision are
I
Baby
set out therein.
In
Tam we held
Chapter
6.06A failed to
prompt
judicial review of a denial of a
operate
license to
a bookstore and there-
prior
fore was “on its face a
restraint of
speech which violates the First and Four-
teenth amendments.”
Id. at 1099. We
issue,
“Having
stated:
resolved this
it is
unnecessary for us to decide the other
Baby
at
issues
Tam raises.” Id.
1102. We
remanded with instructions
Chap-
enjoining
enforcing
Vegas Municipal
ter
Las
6.06A of the
act,
may,
the writ of mandamus
deny it a
Baby Tam to
against
Code
judge
issu-
at
the discretion
court or
operate its adult bookstore
license to
writ,
in the
Boulevard
be made returnable and
5100 W. Charleston
appli-
Vegas,
long
hearing
so
as the
thereon be had at
time.
City of Las
zoning
or-
licensing
cable bookstore
hereby
34.300 is
amended
Sec. 3. NRS
*3
prompt
for a
dinance fails to
to read as follows:
by
judi-
a
hearing
prompt
and
decision
Except
provided
as otherwise
in
34.300
City’s
of
reviewing the
denial
cial officer
34.290,inclusive,
to
and sec-
NRS 34.150
licence.
application for a bookstore
an
act,
provisions of
tion 1 of this
the
NRS
permanent
a
court issued
The district
and Nevada Rules of Civil Procedure
the remand.
injunction
in the terms set
in
relative to civil actions
the district
steps
remedy
to
the
City
The
then took
applicable
court are
to and constitute
had
defect that
the court
constitutional
practice
proceedings
the
of
in the
rules
City
The
amended section
identified.
34.290,
in-
mentioned
NRS 34.150 to
D,
pro-
which
to add subsection
6.06A.025
[.], and section 1 of this act.
clusive
vides as follows:
upon
act
effective
Sec. 4. This
becomes
(D)
application
an
is
In the event that
approval.
passage and
denied,
applicant may file or cause
City
persuaded
Eighth
Ju-
The
also
petition
in the district court a
to be filed
change
its rules of
dicial District Court
of
for
examination of
2.17,
pro-
Rule
which
practice by adding
the bookstore license as
the denial of
vides as follows:
If the
provided by Chapter 34 of NRS.
(a)
a
petitioner seeking
A
review of
has not decided the validi-
district court
prior
claim of
restraint under
thirty days after
ty of the denial within
Amendment to the United States Con-
filed, the Director shall
is
extraordinary
must
label
stitution
temporary
a
bookstore license.
issue
“First
points
writ and
and authorities
license shall
temporary
The
bookstore
authori-
Amendment Writ.” Points and
only
until the district
remain
effect
support
ties in
of the writ must be
opinion
court has rendered its
concern-
concurrently with the
served and filed
validity of the denial.
ing the
writ,
immediately
petitioner
must
amendments to
City
also secured
courtesy copy of the writ and
deliver a
Chapter
Nevada Revised Stat-
34 of the
assigned
to the
points and authorities
utes, as follows:
department.
alleging
If
an uncon-
1.
is
(b)
respondent must serve and file
rights
of his
prior
stitutional
restraint
points
memorandum of
and authorities
a
Amendment to the
pursuant to the First
days
af-
opposition thereto within
of the United States
sec-
Constitution
points and au-
petitioner’s
ter service of
tion 9 of article
of the constitution
thorities.
applicant shall
(c)
reply
and file
Petitioner
serve
“First Amendment Pe-
insert the words
not later than 3
caption
application
points
in the
and authorities
tition”
respondent’s oppo-
days after service of
10-point type.
in at least
for the writ
sition.
judgment
render
on
The court shall
writ
(d)
an
for a
described
days after the writ and
Within 25
days
1 not later than 30
after
subsection
accompanying points and authorities
on which the
date
courtesy copy
a
delivered
filed and
writ is filed.
department, the court shall
assigned
shall
hearing.
court
hereby
amended
conduct
Sec.
NRS 34.180
Except
after
rule
the writ within 30
follows: 34.180
on
[The ]
to read as
accompanying points and
provided in
1 of
the writ
as otherwise
section
courtesy
expound all the constitutional
upon itself to
and a
are filed
authorities
primer
assigned depart-
or write
problems
the statute
to the
copy delivered
This court did
First Amendment.
on the
ment.
opinion
in its
give preeminence
FW/
to the district
applied
then
215,
PBS,
Dallas, 493
Inc. v.
U.S.
in-
permanent
for dissolution
court
(1990),
596,
within which to issue ANALYSIS great as arbitrary suppression is as discretion. A provision the of unbridled I this court decided Baby In Tam basis, to reasonable time not scheme that fails set explicitly case on a narrow the creates the Baby Tam had other issues limits on the decisionmaker that raised necessary By indefinitely suppressing permissi- to reach. it not risk of which was appeal, Baby the case on the first winning speech. ble not abandon its other constitu Tam did the the ordinance states that Athough objections to the facial of the tional police approve the issu- “chief of shall municipal is mistaken by a license the assessor and ance of long no supposing that those issues are applicant of taxes to an collector longer before part er of this case and no receipt application,” of an after us. “premis- may not issue if the the license City, legislature sexually used for the oriented es to be Eighth and the Judicial approved by the business have not been cooperated magnifi have District Court department, department, health cently defect to eliminate constitutional being compli- building official as objects by Baby Tam identified this court. applicable laws and ordi- ance with judicial provided that review the form 41A-5(a)(6). —(cid:127) Moreover, § nances.” constitutionally not be ad mandamus —will a limit ordinance does not set time with- proce mandamus equate. The Nevada inspections in which the must occur. dure, however, appears for a by provides The ordinance no means opportunity reasonable to obtain deter may that the which an ensure mination of all constitutional issues. As inspected 30-day within the business is I, phrase in Baby we stated Tam “[t]he period time within which license is necessarily ele [judicial has two review] approved. if purportedly to be issued (1) dispute by of a consideration ments' — city argument asserted at oral that officer, (2) judicial a decision.” 154 licenses, they applicants apply when course, may, Baby F.3d at 1101. Tam telephone numbers of the given objection if un raise an the ordinance is they inspection agencies various so But on its face constitutionally applied. Arg. Tr. of may contact them. Oral pass appears review consti measure, place obviously, That does not tutional muster. limits, on the time within which the any city inspect will the business and there- or a A Las council member think, eligible for the make business we did what legislator might Nevada sexually oriented business required. the courts said the Constitution Thus, out, al- city’s regulatory scheme it turns it enough? Wasn’t that As wasn’t, postponement of the issu- this court did not take lows indefinite because
H15 at anee of a license. Id. 110 S.Ct. of the First and Four- teenth Amendments. In reaching this conclusion and invali- consequence, As a the Dallas ordinance in dating flaw, the ordinance for this facial that case was held invalid. we do not prejudge any other issue that quoted plurali- language is arise in litigation further of this case. O’Connor, opinion ty of Justice concurred Baby Tam its suit challenged Kennedy; Stevens and Justices but zoning “business and license scheme” on implication sometimes conveyed by several fronts. In again deciding on one “plurality opinion” is deceiving, because issue, we do any not determine whether Brennan, Blackmun, Justices and Marshall other defect may be found in the scheme gone would have further in holding the on its face. invalid; so, effect, entirely ordinance six Reversed and Remanded the district Supreme members of the Court found this court with perma- instructions to enter a kind of ordinance defective. injunction nent against from de- Section is not 6.06A.025 different nying Baby a license to Tam until all from the invalid Dallas ordinance. It constitutional defects on the face of its reads: zoning business and license scheme for *5 (A) deny The Director shall issue or adult bookstores are remedied. applicant bookstore to the license within
thirty days receipt complete aof THOMPSON, DAVID R. Judge, Circuit application upon compliance and fees dissenting: requirements with the of this Section I dispute my colleagues’ do not state- any and applicable provisions Title of 6 legal principles ment of the they on which of this Code. however, rely. I do disagree, with their (B) of approve Failure the Director to principles of those to the facts deny the license within view, In my of this case. acts taken thirty days shall result in the license Legislature, the Nevada the Nevada Su- being granted. Court, preme pursuant to a filed Judge the Chief of the Eighth Judicial (B) Section defines the duty Director’s Court, District Vegas City and the Las to act “within thirty days.” The use of Council cured the defects in the the definite article “the” identifies pe- this licensing earlier scheme. I Accordingly, thirty days just riod as the referred to in would affirm the district court’s order dis- (A). (A) thirty days Under begin solving permanent injunction. receipt complete application run “from of a upon compliance and fees with the require- majority language The asserts that the any applicable Vegas ments of this Section and pertaining Las ordinance provisions of Title 6 of this Code.” Other time within which a bookstore license applicable provisions of the granted any Code include must be or denied “not is health, “the standards of the zoning, fine different from the invalid Dallas ordi- FW/PBS, Dallas, safety and laws of the of Nevada and nance” Inc. v. of 215, Vegas appli- ordinances of the of Las 110 U.S. S.Ct. (1990). § cable thereto.” I disagree. LVMC 6.06A.020. No L.Ed.2d 603 The Dal- time limit is set within expressly provided which satisfaction las ordinance that the requirements police of these must be found. The chief of would not issue business ‘premises time is as indefinite as the invalid Dallas “if license to be used for the thirty The sexually within which oriented business have not been indefinitely approved by department, the Director must act be the health fire postponed. The ordinance fails to meet department, building and the official as temporary bookstore issue a Director shall applicable with compliance
being ” 6.06A.025(D). § license.” LVMC Id. and ordinances.’ laws until remains effect temporary license is different. ordinance Vegas The Las Id. its decision. court renders the state establishes True, Vegas ordinance the Las health, requirements with compliance Amendment violation. is no There prece- safety as conditions fire and zoning, respectfully I dissent. of a LVMC issuance dent pro- also But ordinance § 6.06A.020. issue or “The Director shall
vides license to
deny the bookstore receipt of a com- thirty days from compliance upon fees application and
plete of this section and
with the provisions of Title VI applicable of the section “requirements” Code.” individually ERICKSON, and Susan refer to provisions” “applicable and Erickson, on behalf of Michael health, zoning, precedent conditions Plaintiff-Appellant, safety. who question crucial bears the these condi- as to risk of non-decision ALBUQUERQUE SCHOOLS, PUBLIC period? thirty-day tions within Defendant-Appellee. places that risk on quite plainly ordinance No. 98-2168. Director, City of Las as the argu- in its oral concedes briefs Appeals, States Court United 6.06A.025(B), the ordi- ment. In section *6 Tenth Circuit. of the Director provides: “Failure nance deny the license approve 17, 1999. Dec. thirty days shall result within the provi- being granted.” Under license
sion, thirty days which the Director has application. If
to act on the license appli- that the license
Director determines health, zoning,
cant has not met thirty- safety requirements the license. If
day period, he denies he these have been
determines
met, If he makes no he issues other, way one or the his
determination the license. results issuance of
default the Director makes—
Whatever decision issuance,
denial, or no decision at all—the rights
applicant’s Amendment thirty days, ap-
protected. Within the appli- license or his
plicant gets either his his is de-
cation is denied. If
nied, that he provides the ordinance petition court a
file in the Nevada state relief, if the “court has not the denial within
decided the filed,
thirty days after the