USCA1 Opinion
April 29, 1994 [Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1565
MASSACHUSETTS LABORERS' DISTRICT COUNCIL,
Plaintiff, Appellant,
v.
LABOR RELATIONS DIVISION OF CONSTRUCTION
INDUSTRIES OF MASSACHUSETTS, INC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Paul F. Kelly with whom Shelley B. Kroll and Segal, Roitman &
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Coleman were on brief for appellant.
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John D. O'Reilly, III with whom O'Reilly & Grosso was on brief
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for appellee.
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Per Curiam. Plaintiff-appellant, Massachusetts
Per Curiam.
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Laborers' District Council (Laborers), and defendant-
appellee, Labor Relations Division of Construction Industries
of Massachusetts (CIM), a contractor trade association, are
parties to a collective bargaining agreement containing a
provision to arbitrate unresolved grievances. Cardi
Corporation (Cardi), a general contractor and a member of
(CIM), was a signatory to that agreement. Plaintiff claims
that Cardi violated the agreement in two separate instances,
on one occasion by subcontracting work to a subcontractor who
used members of the Ironworkers' Union to perform work that
Laborers felt belonged to its members, and then by assigning
work on another of its jobs to members of the Carpenters'
Union rather than to members of the local Laborers affiliate.
After the disputes remained unresolved, Laborers
sought a court order requiring that the two disputes be
arbitrated in accordance with the bilateral arbitration
clause contained in the Collective Bargaining Agreement.
Ultimately, the district court ordered the disputing parties
to engage in tripartite arbitration with regard to each of
the separate work-related disputes. That order was complied
with, and eventually one of the disputes was dropped and the
other settled during arbitration proceedings.
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After notifying the court of the resolution of
these disputes, Laborers, in essence, continued to contend
that the court had erred when it ordered tripartite
arbitration. Notwithstanding that contention, the district
court, on being advised of the dispositions of the underlying
disputes, dismissed the action as moot. Laborers took a
timely appeal from that dismissal. We affirm.
A federal court's jurisdiction to determine
disputes is limited by the strictures of Article III of the
Constitution to the resolution of "real and substantial
controvers[ies] admitting of specific relief through a decree
of a conclusive nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of
facts." Lewis v. Continental Bank Corp., 494 U.S. 472, 477
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(1990) (citations omitted). Thus, as we said in another case
involving the "case or controversy" requirement:
the only issue is whether there is now an
actual "case or controversy" within the
meaning of Article III of the
Constitution, or whether, as the district
court held, the case is moot and thus no
longer justiciable. See Sosna v. Iowa,
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419 U.S. 393, 397-403 (1975). Where
declaratory relief is sought, plaintiff
must show that there is a substantial
controversy over present rights of
"sufficient immediacy and reality"
requiring adjudication. Preiser v.
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Newkirk, 422 U.S. 395, 402 (1975); Aetna
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Life Ins. Co. v. Howorth, 300 U.S. 227,
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242 (1937). "[W]hen the issues presented
are no longer `live' or the parties lack
a legally cognizable interest in the
outcome,' the case is moot. County of
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Los Angeles v. Davis, 440 U.S. 625, 631
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(1979) (quoting Powell v. McCormack, 395
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U.S. 486, 496 (1969)).
Boston Teachers Union v. Edgar, 787 F.2d 12, 15-16 (1st Cir.
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1986). We agree with the district court that this case is
moot.
It is beyond question that no current dispute
exists between the parties with regard to work assignment or
subcontracting practices. The original disputes respecting
Cardi's assignment and subcontracting of work vis-a-vis all
three unions have been resolved. Thus, once the district
court was advised of the resolution of the underlying
disputes, the order of dismissal was appropriate because the
only relief plaintiff had sought, an order compelling
arbitration, was no longer a live issue.
With the settlement of the underlying disputes,
there remained no further justiciable case or controversy.
Although the parties to this litigation may still disagree
about the proper allocation of the disputed work or, for that
matter, whether the district court should have joined all
three disputing unions and ordered tripartite arbitration,
once that order issued, and the parties acted on it and
resolved their differences, there remained nothing for the
district court to resolve.
The particular disputes which animated this case
will not occur again although, of course, future disputes
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involving other work issues may arise between employer and
union. The resolution of those disputes will have to await
their occurrence.1
For the foregoing reasons, the order is affirmed.
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1. Plaintiff contends for the first time in its reply brief
that because this dispute is capable of repetition and
incapable of review, we must now decide whether the district
court exceeded its authority when it ordered tripartite
arbitration. The short answer to this plaint is that issues
raised for the first time in a reply brief are deemed waived.
Vanhaaren v. State Farm Mutual Auto Ins. Co., 989 F.2d 1, 7
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n.6 (1st Cir. 1993); Frazier v. Bailey, 957 F.2d 920, 932
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n.14 (1st Cir. 1992).
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