Amalgamated Transit Union Int'l v. U.S. Dept. of Labor

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 Amalgamated Transit Union, International, No. 2:20-cv-00953-KJM-DB 2) ORDER B Plaintiffs, 14 v: 15 United States Department of Labor, et al., 16 Defendants, 17 State of California, 18 Defendant-Intervenor 20 The Amalgamated Transit Union (ATU) and several affiliated local unions filed this | action to challenge the Secretary of Labor’s decision to certify several federal grants to California | transit agencies under section 13(c)(2) of the federal Urban Mass Transportation Act (UMTA).

23 | See generally Compl., ECF No. 1. California intervened to defend the Secretary’s decision. See | Min. Order (Dec. 19, 2019). ATU’s and California’s cross-motions for summary judgment are | pending. See ATU Mot., ECF No. 33; Cal. Cross-Mot., ECF No. 39. The Department of Labor | originally moved for summary judgment as well, ECF No. 38, but it has withdrawn that motion, | and has informed the parties and the court it intends to reverse the challenged certification as | well. See Notice of Recons., ECF No. 58; Notice of Withdrawal, ECF No. 55. It expects to “soon issue a new determination,” Notice of Recons. at 2, and recently notified the court that its decision will be made no later than October 28, 2021, Status Report, ECF No. 61. The new determination will be “applied only prospectively.” Notice of Withdrawal at 2.

4 The Department argues this case will be moot after it issues its new decision. Notice of Recons. at 2. The ATU and California disagree, see ATU Resp., ECF No. 59; Cal. Resp., ECF No. 60, as does this court. The same fundamental conflict will persist if the Department of Labor reverses its certification decision: does the California Public Employees’ Pension Reform Act of 2013 preclude certification under the UMTA? At least one litigant will say yes; at least one will say no. A case or controversy will thus remain, and the action will not be moot. See, e.g., Powell v. McCormack, 395 U.S. 486, 497 (1969) (“Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy.”); United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (holding that a “controversy may remain” even if a defendant voluntarily changes its conduct).

14 As the court has previously concluded, however, “[i]f the Department ultimately decides to revisit its reasoning, litigation based on its previous positions would be wasteful.” Order (May 19, 2021) at 3, ECF No. 51. This court also has decided it will give deference to the Department’s certification decisions under Skidmore v. Swift & Co., 323 U.S. 134 (1944). See, e.g., California v. U.S. Dep’t of Lab., 76 F. Supp. 3d 1125, 1135–38 (E.D. Cal. 2014). Pressing forward with the ATU’s and California’s cross-motions without regard to any reasons the Secretary gives in a reconsidered determination would amount to giving no deference at all. The court declines to take that course. The court therefore construes the Department’s filings as a request to remand and hold this case in abeyance and grants that request. See, e.g., Sierra Club v. Van Antwerp, 560 F. Supp. 2d 21, 23 (D.D.C. 2008) (“Even in the absence of intervening events, upon an agency’s remand request, the reviewing court still has discretion over whether to remand. In that situation, as long as the agency’s concern is substantial and legitimate, a remand is usually appropriate.” (citation omitted)).

27 ///// 1 The court orders as follows: 2 (1) This action is remanded to the United States Department of Labor to permit the 3 Secretary of Labor or a designee to reconsider the determination challenged in the 4 ATU’s complaint.

5 (2) The court will hold this case in abeyance until any new determination is issued or 6 the Department of Labor gives notice it will not issue a new determination.

7 (3) The hearing on the parties’ pending motions for summary judgment is vacated, to 8 be reset later if necessary. In the interim those motions remain pending.

9 (4) The federal defendants are directed to promptly give notice of a new determination 10 once it is issued. If they do not file a notice within fourteen days of this order, the 11 federal defendants must file a status report explaining why a new determination 12 has not issued and when a new determination or decision not to reconsider can be 13 expected to issue.

14 (5) Within fourteen days after the federal defendants provide notice as ordered above, 15 the parties are directed to meet and confer and file a joint report proposing how 16 this action may progress efficiently and fairly toward a final disposition.

17 IT IS SO ORDERED.

18 DATED: October 26, 2021.