Opinion
Civil No. 3-00-10034
October 11, 2000
Arthur W. Eggers, James S. Zmuda, Califf Harper PC, for Plaintiff.
Margery E. Lieber, Denise F. Meiners, Aileen A. Armstrong, National Labor Relations Board, for Defendant.
ORDER
THE COURT HAS BEFORE IT defendant National Labor Relations Board's ("the NLRB" or "the Board") motion to dismiss for lack of jurisdiction, filed March 27, 2000. CSI resisted the motion on March 31, 2000, and filed a cross motion for summary judgment on May 1, 2000. The NLRB resisted CSI's motion for summary judgment on June 21, 2000, and CSI filed a reply on July 7, 2000.
In a telephonic hearing held April 17, 2000, this Court indicated it would treat the NLRB's motion to dismiss as a motion for summary judgment in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Also on July 7, 2000, CSI filed a motion to strike the affidavits of Thomas A. Palmer, C. Douglas Marshall and Shawn Watkins. The NLRB resisted the motion July 19, 2000 and CSI filed a reply brief on July 26, 2000. The motions are now considered fully submitted.
The Court notes CSI has requested oral argument on its motions. After reviewing the pleadings and applicable law, however, the Court finds such argument unnecessary.
In addition, plaintiff filed a motion for status hearing on August 22, 2000. This motion is denied as moot.
I. BACKGROUND
The following facts either are not in dispute, or are viewed in a light most favorable to the nonmoving party. On October 27, 1995, December 13, 1995 and January 30, 1996, the International Brotherhood of Electrical Workers, AFL-CIO, Local 347 ("IBEW") filed unfair labor practice charges against plaintiff CSI with the NLRB's Region 10 (Atlanta, Georgia), Region 18 (Minneapolis, Minnesota) and Region 15 (New Orleans, Louisiana) offices. On April 5, 1996, the NLRB issued an order consolidating the three cases and setting a hearing before an administrative law judge ("ALJ"). On May 13, 1996, the charges against CSI were heard by ALJ J. Pargen Robertston. Judge Robertson issued a recommended decision and proposed order on July 22, 1996, to which CSI filed objections shortly thereafter. On November 8, 1997, the NLRB issued its decision and order, affirming Judge Robertson's findings, and adopting the recommended order with slight modifications. Specifically, the NLRB concluded that CSI interrogated job applicants about their union sympathies during its hiring process, refused to hire three job applicants because of their union membership, and required the applicants to admit their union membership, in violation of Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3) ("NLRA"). The order required CSI to offer the three applicants at issue immediate and full employment to the positions for which they applied and were qualified, or, if those positions no longer exist, to substantially equivalent positions without prejudice, and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. The order also required CSI to post copies of a notice informing employees it will not engage in the alleged violations, and to file with the Regional Director of the NLRB a sworn certification attesting to the steps CSI had taken to comply.
On December 9, 1997, Thomas A. Palmer, Supervisory Compliance Officer for Region 10 of the NLRB, sent a letter to plaintiff's counsel. Included with this letter was a document entitled "Compliance Requirements of Settlement Agreements, Administrative Law Judge Decisions, Board Orders and Court Decrees in CA Cases" (Exhibit C to plaintiff's complaint ("Exhibit C"). Plaintiff contends Exhibit C constituted a proposed offer of settlement by the NLRB. Plaintiff further contends it accepted the offer and rendered it binding by allegedly taking the actions set forth in the Exhibit. The NLRB disputes that Exhibit C constitutes either an offer to settle or a binding settlement agreement between the parties, or that CSI performed all acts set forth as required in Exhibit C.
On February 10, 2000, after determining that CSI had not complied with its November 8, 1997 order, the NLRB filed an Application for Enforcement with the U.S. Court of Appeals for the Eleventh Circuit. On March 7, 2000, CSI filed the present complaint in this Court, alleging the NLRB had breached a settlement agreement by filing the Application for Enforcement. In its complaint, CSI seeks an order enjoining the NLRB from pursuing further enforcement of the November 8, 1997 Board order, and affirmatively requiring that the NLRB dismiss its Application for Enforcement before the Eleventh Circuit. CSI also seeks attorney fees and other unspecified relief. Accompanying the complaint was a motion for a temporary restraining order enjoining the NLRB from pursuing further enforcement of its order. This Court denied CSI's motion for temporary restraining order following a hearing held March 14, 2000.
On August 18, 2000, after the present cross motions for summary judgment had been fully submitted, the NLRB submitted a supplemental report to the Court advising that on August 2, 2000, the Eleventh Circuit issued a judgment and mandate enforcing the NLRB's November 8, 1997 order.
II. APPLICABLE LAW AND DISCUSSION
A. Summary Judgment Standard
Summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Walsh v. United States, 31 F.3d 696, 698 (8th Cir. 1994). The moving party must establish its right to judgment with such clarity that there is no room for controversy. Jewson v. Mayo Clinic, 691 F.2d 405, 408 (8th Cir. 1982). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is "genuine," if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. Id. at 248. "As to materiality, the substantive law will identify which facts are material. . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id.
B. Whether Summary Judgment is Warranted in this Case
1. Absence of Subject Matter Jurisdiction
This Court, as a court of limited jurisdiction. must first determine whether it has subject matter jurisdiction over plaintiff's complaint. Plaintiff alleges the present matter is strictly a breach of contract action, and as a result, that this Court has jurisdiction pursuant to the Little Tucker Act, 28 U.S.C. § 1346(a)(2). This statute provides in relevant part that: "The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: . . . (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded . . . upon any express or implied contract with the United States." 28 U.S.C. § 1346(a)(2).
The NLRB contends, however, that no matter how plaintiff may may characterize the action, its underlying basis arises out of the NLRA. Accordingly, exclusive jurisdiction lies with the United States Courts of Appeals. See NLRA, 29 U.S.C. § 160 (providing that review of NLRB proceedings and orders be conducted exclusively in the United States Courts of Appeals).
This Court agrees. "Tucker Act jurisdiction is limited to actions for money damages; suits for equitable relief are not authorized." C.H. v. Sullivan, 920 F.2d 483, 485 (8th Cir. 1990). Although courts have granted minimal equitable relief when the remedy sought is "incidental and collateral to a monetary claim," see id., that is not the case here.
CSI's prayer for relief states as follows:
CSI respectfully requests the following relief, to which it is fully entitled:
A. An order enjoining the NLRB, its agents, officials and representatives, as follows:
(1) prohibiting the NLRB from any further pursuit of enforcement of the NLRB decision and order which is the subject of the parties' fully executed settlement agreement;
(2) requiring the NLRB to dismiss its Application filed with the United States Court of Appeals for the Eleventh Circuit;
B. An award of CSI's attorney fees resulting from the NLRB's breach of the parties' settlement agreement (in an amount not to exceed Ten Thousand Dollars ($10,000)); and
C. Such other and further relief as this Court deems just and equitable under the circumstances
Complaint, at 3. It is readily apparent from both the order in which CSI lists the remedies it seeks and the surrounding circumstances that CSI's first priority is to obtain an injunction preventing the NLRB from attempting to enforce its November 8, 1997 order. The only monetary relief sought by CSI in its prayer for relief is an award equivalent to the attorneys' fees it has incurred in filing the present action and defending the NLRB's enforcement application, subject to the jurisdictional limit of $10,000. See, e.g., Kennedy Heights Apartments, Ltd. v. McMillan, 78 F. Supp.2d 562, 567 (N.D. Tex. 1999) (federal district courts have concurrent jurisdiction with the Court of Federal Claims under the Little Tucker Act over claims not exceeding $10,000). The United States Court of Appeals for the Federal Circuit has declined to exercise jurisdiction under the Little Tucker Act when the only monetary relief sought was reimbursement for attorneys fees and costs. Bobula v. United States Dep't of Justice, 970 F.2d 854, 859 (Fed. Cir. 1992) (noting that: "While limited equitable relief is sometimes available in Tucker Act suits, the equitable relief must be incidental to and collateral to a claim for money damages.").
This Court finds Bobula particularly persuasive in the case at bar. CSI states in its memorandum that if forced to comply with the Board's order, which would be its ultimate "damage" if this Court did not recognize the alleged settlement agreement, CSI's liability could exceed $435,000. CSI's Memorandum of Law in Support of Summary Judgment, at 11. If this is true, CSI clearly could not be made whole without the injunctive relief sought. See Bobula, 970 F.2d at 859. Because the primary relief sought by plaintiff, a permanent injunction prohibiting the NLRB from pursuing enforcement of its November 8, 1997 order, "does not fall within the narrow category of equitable relief available under the Tucker Act," this Court finds it has no jurisdiction over plaintiff's complaint. C.H. v. Sullivan, 920 F.2d at 485.
As noted by the Eighth Circuit in C.H. v. Sullivan, "The 1972 amendment to the Tucker Act gave the Claims Court jurisdiction to `issue orders directing restoration to office or position' persons entitled to relief when illegally discharged.'" C.H. v. Sullivan, 920 F.2d at 485. Assuming this Court has equivalent authority for claims under $10,000, the Court nevertheless has been unable to locate statutory or judicial authority enabling the Court to grant the type of injunction sought by CSI while exercising jurisdiction under the Little Tucker Act.
The Court is not persuaded by CSI's argument that it will have no judicial remedy for enforcing the "settlement agreement" if this Court declines to exercise jurisdiction. (The Court notes this is a moot issue at this juncture), As noted by the NLRB, the fact the Board resisted CSI's attempts to include the disputed document on the Board's certified list of the agency record did not prevent CSI from raising settlement as a general defense to the enforcement action.
2. Whether Plaintiff Can Establish Elements of Contract
Even assuming this Court has jurisdiction to evaluate plaintiff's complaint, plaintiff has failed to establish a material issue of fact as to whether a binding settlement agreement was formed between the parties. Initially, the Court notes that breach of contract actions brought pursuant to the Little Tucker Act are governed by federal law. Miller v. Auto Craft Shop, 13 F. Supp.2d 1220, 1225 (M.D. Ala. 1997) (citing Blanchard v. St. Paul Fire Ins. Co., 341 F.2d 351, 358 (5th Cir. 1965); Girard Trust Co. v. United States, 149 F.2d 872, 874 (3rd Cir. 1945)). "[G]eneral principles of federal contract law [therefore] govern the determination" of whether CSI's claim should survive summary judgment. Id.; see also White v. United States Dep't of Interior, 639 F. Supp. 82, 87 (M.D. Pa. 1986) (when cause of action arises under and is governed by federal law, enforcement of settlement agreement is also governed by federal law).
As explained by the Federal Circuit Court of Appeals: "The general requirements for a binding contract with the United States are identical for both express and implied contracts. . . . The party alleging a contract must show a mutual intent to contract including an offer, an acceptance, and consideration." Trauma Service Group v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). In addition, to establish a binding agreement with the United States, a party must also show the Government representative who allegedly formed the contract had authority to bind the United States. Id. "Anyone entering into an agreement with the Government takes the risk of accurately ascertaining the authority of the agents who purport to act for the Government, and this risk remains with the contractor even when the Government agents themselves may have been unaware of the limitations on their authority." Id. (emphasis added) (citing Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947)).
In the present case, the Court finds CSI is unable to establish a material issue of fact as to whether there was a "mutual intent to contract including an offer," or that the NLRB representative who mailed the checklist, had authority to bind the United States to a settlement agreement of this type. The first step in determining whether mutual intent existed and an offer was made is to look at the purported settlement agreement. This "agreement" consists solely of Thomas Palmer's December 9, 1997 letter to CSI counsel Arthur Eggers, and the enclosed document presently referred to as Exhibit C. The cover letter stated as follows:
The Court also questions the sufficiency of the evidence regarding the remaining elements, whether there was an acceptance and consideration, but need not address these issues.
You have recently received the Board Order in the above case. The matter has been assigned to me for the purpose of assisting you to effect compliance with its terms. I trust that you will immediately initiate compliance so as to avoid any further litigation and notify me to this effect within 20 days.
I am enclosing herewith a number of notices with the request that they be immediately posted as ordered. If further notices are required, they will be forwarded to you upon request. A certification of posting is also enclosed. This form, with information as to where and when such posting was made, should be returned to this office with three signed and dated copies of the notice.
If there are any questions or problems, please feel free to call upon me. Your cooperation will be appreciated.
Exhibit A to CSI's Reply Brief in Support of its Motion for Summary Judgment. The vague reference to "avoiding further litigation" is at most an indication of what might happen if CSI chose not to initiate compliance. Nothing in this letter references "settlement," however. Nor does the letter indicate the NLRB affirmatively waives its right to take further action against CSI or, significantly, to enforce the portion of the Board order requiring that CSI compensate and/or offer to hire the three affected individuals. It is ludicrous to assume the NLRB would deprive the three affected individuals of a remedy without ensuring some type of concession from CSI in return.
The document attached to Mr. Palmer's letter, "Compliance Requirements of Settlement Agreements, Administrative Law Judge Decisions, Board Orders and Court Decrees in CA Cases," also fails to establish a clear intent to enter into a settlement agreement. As noted by the NLRB, the title of the document references four possible types of unfair labor practice case resolutions. One of these possible resolutions, board orders, is referenced in the first sentence of Mr. Palmer's cover letter. The Court therefore finds no reasonable jury could interpret the document and cover letter were intended as an offer to settle.
Perhaps most importantly, however, CSI has failed to show that Mr. Palmer was authorized to make an offer of settlement on behalf of the NLRB. As held by the Federal Circuit in Trauma Service Group, the burden is on the party proposing to enter into an agreement with the United States to ensure the requisite authority exists, "even when the Government agents themselves may have been unaware of the limitations on their authority." Trauma Service Group, 104 F.3d 1321, CSI does not allege it took steps to ensure Mr. Palmer had obtained any authority to offer a settlement to CSI, let alone a settlement that completely abandons the aggrieved employees' backpay awards. In short, even if Mr. Palmer had represented to CSI that he had authority to make the purported offer, it remained CSI's burden to confirm such authority existed. Id. Absent evidence suggesting CSI made any attempt to confirm Mr. Palmer's authority, the Court finds summary judgment appropriate.
In its reply brief, CSI refers to the Board's Casehandling Manual, cited by the NLRB in its resistance brief, see NLRB Resistance to Plaintiff's Motion and Memorandum of Law in Support of Summary Judgment, at 9, for the premise that the Regional Compliance Officer can act on behalf of the Regional Director to elicit parties' respective positions and establish facts relative to a possible settlement. There is no evidence that CSI was aware of this manual, let alone that it relied upon the manual, at the time it allegedly "accepted" the purported settlement offer. Moreover, the fact the Regional Director may authorize a Compliance Officer to initiate settlement discussions on his behalf does not ensure the Regional Director authorized Mr. Palmer to do so in the present case.
C. CSI's Motion to Strike Affidavits
On July 7, 2000, CSI filed a motion to strike the affidavits of Thomas A. Palmer, C. Douglas Marshall and Shawn Watkins. CSI contends two of the affidavits contain inadmissible hearsay evidence and that all three of the affidavits offer only conclusory allegations. Because the affidavits challenged by CSI were not necessary to the Court's ultimate conclusion, the Court finds plaintiff's motion to strike affidavits is DENIED as moot.
III. CONCLUSION
For the reasons outlined above, defendant's motion to dismiss, which this Court has treated as a motion for summary judgment, is GRANTED. Plaintiff's motion for summary judgment is DENIED. Plaintiff's motion to strike affidavits is DENIED as MOOT. Plaintiff's motion for a status hearing is DENTED as MOOT. The Clerk of Court is directed to enter judgment in favor of defendant and against plaintiff.
IT IS ORDERED.