Professional Documents
Culture Documents
FOR PUBLICATION
SUMMARY **
*
The Honorable Eduardo C. Robreno, Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
Case: 17-35640, 05/11/2018, ID: 10869176, DktEntry: 99-1, Page 3 of 48
COUNSEL
OPINION
1
The Ordinance amended section 6.310.110 of the Seattle
Municipal Code, and added section 6.310.735 to the Code. See Seattle,
Wash., Municipal Code §§ 6.310.110, 6.310.735.
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A. Ride-Referral Companies
B. The Ordinance
3
If more than one QDR is able to demonstrate that a majority of
qualifying drivers wish to be represented by that QDR, the Director will
designate the QDR with the largest number of statements of interest to
be the EDR. Seattle, Wash., Municipal Code § 6.310.735(F)(2).
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C. Procedural History
4
The Chamber filed an Amended Complaint adding Rasier as a co-
plaintiff on April 11, 2017. The Amended Complaint, which is
otherwise largely identical in substance to the original Complaint, is the
operative complaint in this case.
5
The Chamber also asserted claims for violation of its members’
federal rights under 42 U.S.C. § 1983, municipal action unauthorized by
Washington law, violation of the Washington Consumer Protection Act,
and violation of the Washington Public Records Act. These claims are
not addressed on appeal, because the Chamber did not raise them in its
opening brief. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1137 n.13
(9th Cir. 2012) (stating that issues not raised in an opening brief are
waived).
6
The City appealed from the district court’s order granting the
Chamber’s motion for a preliminary injunction in Case No. 17-35371.
The City’s appeal was voluntarily dismissed on September 6, 2017.
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STANDARD OF REVIEW
7
The district court dismissed both of the Chamber’s federal antitrust
claims on the basis of state-action immunity. Because the district court
did not rule on the merits of the Chamber’s antitrust violation claim, we
do not address the merits of that claim here.
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ANALYSIS
A. Preemption
8
Ordinarily, we would discuss first the threshold question of
whether the Ordinance, which regulates labor relations between for-hire
drivers and driver coordinators, is preempted wholly by federal labor
law.
9
The City’s argument that the presumption against preemption
applies here is misplaced. State-action immunity is a defense to
preemption. See, e.g., Phoebe Putney, 568 U.S. at 235 (referring to
Parker immunity as a “state-action defense to price-fixing claims”). The
City did not argue below that the Ordinance does not authorize a per se
violation of section 1 of the Sherman Act. Accordingly, there is no
challenge regarding the issue of whether preemption should or could
apply. The only question is whether the defense to preemption applies.
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Id. 10
10
We will not separately analyze Revised Code of Washington
section 81.72.200, which uses substantially similar language as section
46.72.001.
11
The City cites City of Lafayette v. Louisiana Power & Light Co.,
435 U.S. 389 (1978), for the proposition that “a specific, detailed
legislative authorization” is not required. Id. at 415 (plurality opinion).
However, in the same decision, the Supreme Court stated that “an
adequate state mandate for anticompetitive activities of cities and other
subordinate governmental units exists when it is found ‘from the
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12
We will not separately analyze Revised Code of Washington
section 81.72.210, which uses substantially similar language as section
46.72.160.
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13
The City’s selective reading of the Supreme Court’s decision in
North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101
(2015), does not buttress its position. The Supreme Court observed only
that the clear-articulation test, on its own, is insufficient to justify state-
action immunity:
14
Revised Code of Washington sections 46.72.001 and 46.72.160
were enacted in 1996. Revised Code of Washington sections 81.72.200
and 81.72.210 were enacted in 1984.
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15
The Supreme Court found that “[t]he second prong of the Midcal
test [was] met, for the Government ha[d] conceded that the relevant
States, through their agencies, actively supervise[d] the conduct of
private parties.” S. Motor Carriers, 471 U.S. at 66.
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16
“A regulation is a unilateral restraint when ‘[n]o further action is
necessary by the private parties because the anticompetitive nature of
[the] restraint is complete upon enactment.’” Yakima Valley Mem’l
Hosp. v. Wash. State Dep’t of Health, 654 F.3d 919, 927 (9th Cir. 2011)
(alterations in original) (quoting Costco Wholesale Corp. v. Maleng,
522 F.3d 874, 890 (9th Cir. 2008)). There, “no degree of discretion [is]
delegated to private actors.” Id. (quoting Costco, 522 F.3d at 890). In
contrast, “[t]he ‘hallmark’ of a hybrid restraint is the ‘delegation of
discretion to private actors.’” Id. (quoting Costco, 522 F.3d at 898 n.20).
“The key distinction is that the regulation leaves a gap in the restraint of
trade for private parties to fill at their discretion.” Id.
17
The City’s citation to Tom Hudson & Associates, Inc. v. City of
Chula Vista, 746 F.2d 1370 (9th Cir. 1984), does not persuade us
otherwise. The case pre-dates Hallie, and the question of whether
municipal supervision could satisfy the active-supervision requirement
was not at issue. See id. at 1374.
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18
Because we conclude that the State of Washington, rather than the
City, must carry out the active-supervision requirement, we do not reach
the Chamber’s alternative argument that even if municipal supervision
could satisfy the active-supervision requirement, the supervision is
“insufficiently active.”
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A. Machinists Preemption
19
Section 14(a) of the NLRA, 29 U.S.C. § 164(a), contains an
express statement of preemption:
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Id.
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B. Garmon Preemption
The Chamber has not made any showing or set forth any
evidence showing that the for-hire drivers covered by the
Ordinance are arguably employees subject to the NLRA.
We thus hold that the Ordinance is not preempted under the
Chamber’s theory of Garmon preemption.
CONCLUSION