United States District Court, D. Idaho
IDAHO BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO, and SOUTHWEST IDAHO BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO, Plaintiffs,
LAWRENCE G. WASDEN, in his Official Capacity as ATTORNEY GENERAL FOR THE STATE OF IDAHO, TIM MASON, in his official capacity as ADMINISTRATOR OF THE DIVISION OF PUBLIC WORKS, and THE CITY OF BOISE, Defendants
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For Idaho Building And Construction Trades Council, Afl-Cio, Southwest Idaho Building And Construction Trades Council, Afl-Cio, Plaintiffs: Alan C Herzfeld, James Marshall Piotrowski, HERZFELD & PIOTROWSKI, Boise, ID USA; Esmeralda Aguilar, Terry R Yellig, PRO HAC VICE, Sherman Dunn Cohen Leifer & Yellig, PC, Washington, DC USA; Marty Durand, Herzfeld & Piotrowski, LLP, Boise, ID USA; Victoria Louise Bor, PRO HAC VICE, Sherman Dunn Cohen Leifer & Yellig PC, Washington, DC USA.
For Lawrence G Wasden, Tim Mason, Defendants: Clay R Smith, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, Boise, ID USA.
For City of Boise, Defendant: Elizabeth A Koeckeritz, Boise City Attorney's Office, Boise, ID USA.
For Inland Pacific Chapter of Associated Builders And Contractors, Inc., Amicus: Phillip S Oberrecht, LEAD ATTORNEY, GREENER BURKE SHOEMAKER OBERRECHT, P.A., Boise, ID USA; Judd H Lees, PRO HAC VICE, Williams Kastner & Gibbs PLLC, Seattle, WA USA; Randall Lee Schmitz, Anderson Julian & Hull, LLP, Boise, ID USA.
For National Right to Work Legal Defense Foundation, Amicus: Gregory C Dickison, LEAD ATTORNEY, Dickison Law Firm, Moscow, ID USA.
MEMORANDUM DECISION AND ORDER
B. Lynn Winmill, Chief United States District Judge.
Before the Court are: (1) Defendants Lawrence G. Wasden and Tim Mason's Motion to Dismiss First Amended Complaint for Lack of Subject Matter Jurisdiction
(Dkt. 106), and (2) Defendant City of Boise's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1) (Dkt. 110). For the reasons set forth below, the Court denies Defendants Wasden and Mason's Motion to Dismiss but grants the City's Motion.
This case is currently before the Court on a limited remand from the U.S. Court of Appeals for the Ninth Circuit. In earlier proceedings, this Court issued a decision finding that the Open Access to Work Act (the " Open Access Act" or the " OAA) was preempted by the National Labor Relations Act. Mem. Dec. and Order at 24, 26, Dkt. 67. The challenged statute forbade the state of Idaho and its political subdivisions from including " project labor agreements"  in bid specifications and contract documents for their public works projects. This Court found that the Open Access Act's complete ban on project labor agreements interfered with employees' right to secure such agreements -- a form of concerted activity protected under Section 7 of the National Labor Relations Act. Attorney General Wasden appealed this decision to the Ninth Circuit.
While this Court's decision was pending on appeal before the Ninth Circuit, the Legislature passed a nearly identical statute. This time, however, the Legislature codified it as part of Idaho's public contracting laws rather than as part of the Right to Work Act. 2012 Idaho Sess. Laws ch. 312 § 3, codified at I.C. § 67-2809 (" 2012 Act" ). In addition to enacting the 2012 Act, the Legislature also amended the original 2011 Open Access Act to remove certain enforcement powers the Act previously entrusted to the Attorney General. Based on the amendments to the 2011 Act, Attorney General Wasden argued to the Ninth Circuit that the appeal should be dismissed because the amendments eliminated any connection he had to enforcement of the Open Access Act and therefore he was no longer a proper defendant under the Ex parte Young doctrine.
While maintaining the Attorney General remains a proper defendant by virtue of his civil enforcement authority, Plaintiffs Idaho Building and Construction Trades Council, AFL-CIO, and Southern Idaho Building and Construction Trades Council, AFL-CIO (" Trades Councils" ) have filed a an amended complaint adding two defendants: Tim Mason, in his capacity as administrator for Division of Public Works, Idaho Department of Administration; and the City of Boise. Am. Compl. ¶ ¶ 6, 8, Dkt. 103. The Trades Councils also add class action allegations that name (1) Mason as the representative of a defendant class " composed of all officials of the State of Idaho who, in their official capacity, are responsible for approving and/or issuing bid documents, specifications, project agreements or other controlling documents for a public works construction contract and are therefore bound by the Anti-PLA Act," and (2) the City as the representative of a defendant class " composed of all local government entities and other political subdivisions of the State of Idaho that approve and/or issue bid documents, specifications, project agreements or other controlling documents for public works construction contracts and are therefore bound by the anti-PLA Act." Id. ¶ ¶ 7, 9.
The Trades Council filed this Amended Complaint in response to the Ninth Circuit's
limited remand. The panel order described the remand's scope as
1. allowing the Councils to amend their complaint to join additional defendant(s);
2. allowing both parties to supplement the record with any information that may bear on the justiciability of the OAA claim under the Eleventh Amendment and Article III of the Constitution; and
3. permitting the district court to decide, in the first instance and on the basis of the supplemented record, whether the Attorney General remains a proper defendant for the OAA claim and whether the additional defendant(s) Councils seek to join possess(es) the requisite connection to enforcement of the OAA ...