Summary
refusing to review a possible waiver of sovereign immunity under the APA when plaintiff failed to raise the issue before the district court
Summary of this case from Normandy Pointe Associates v. Federal Emergency Management AgencyOpinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Resubmitted Aug. 4, 1999.
Agency No. 32-CC-699/729 NLRB.
Before HUG, Chief Judge, SCHROEDER and CANBY, Circuit Judges.
ORDER
The Motion to Reopen is GRANTED. The above entitled case is resubmitted as of 8/4/99.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
On Motion To Reopen And Set Aside Consent Decree.
Before the court is a motion by some of the respondent Unions to reopen this case and to dissolve or set aside this court's April 3, 1986 order enforcing a consent decree between several unions and the National Labor Relations Board ("NLRB"). See NLRB v. Carpenters 46 N. Cal. Counties Conference Bd., No. 86-7110 (9th Cir. Apr. 3, 1986). The Unions on the motion are the Carpenters 46 Northern California Counties Conference Board, Sacramento Area District Council of Carpenters, Carpenters Locals 316, 586, and 1622, and the Construction and General Laborers Union Local 185. Because a number of parties to the consent decree have not joined in this motion, we will not dissolve the consent decree in its entirety. However, we grant the motion to reopen and we set aside the consent decree in part, as it applies to these movants.
Federal Rule of Civil Procedure 60(b)(5) provides that "on motion and upon terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding" when "it is no longer equitable that the judgment should have prospective application." The Unions contend that they should be relieved of the consent decree's obligations because they have not violated the decree since its inception. They also rely on provisions in the decree that permit a modification or termination of the decree after December 31, 1989. Under these circumstances, the Unions argue that it is no longer equitable to bind them to the consent decree.
The Supreme Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) considered the appropriate standard for motions to modify a consent decree filed pursuant to Fed.R.Civ.P. 60(b)(5). Rufo requires the petitioner to show that "a significant change in circumstances warrants revision of the decree." Id. at 383. This court recently has held that "the Rufo standard applies to all Rule 60(b)(5) petitions brought on equitable grounds." Bellevue Manor Assocs. v. United States, 165 F.3d 1249, 1257 (9th Cir.1999).
When considering a consent decree involving the NLRB, we also take into account provisions in the decree providing for modification or dissolution,see NLRB v. Ironworkers Local 433, 169 F.3d 1217, 1222 (9th Cir.1999), the length of time since entry of the decree, whether the party subject to it terms has complied or attempted to comply in good faith, and the likelihood that the conduct sought to be prevented will recur absent the consent decree. See Building & Constr. Trades Council v. NLRB, 64 F.3d 880, 888 (3d Cir.1995).
In this case, the movants sufficiently demonstrate a significant change in circumstances warranting modification of the decree. First, we note that the consent decree itself contemplates a motion for modification or dissolution after 1989. All of the Unions now before us have complied with the decree for at least 10 years, a substantial length of time, and the NLRB has presented no evidence suggesting that violations are likely to recur in the absence of the decree. Furthermore, two of the Unions have merged with other union locals and one Union no longer exists. The motion does not simply rest on the "mere passage of time." Cf. SEC v. Worthen, 98 F.3d 480, 482 (9th Cir.1996) (refusing to dissolve a permanent injunction after 10 years when the person subject to the injunction was again under investigation).
The Motion to Reopen is GRANTED and the court's order of April 3, 1986 is VACATED in part, and the Consent Decree as it pertains to the movant Unions is DISSOLVED.