### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-30858

P H I , INC
Plaintiff
v. OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION; ET AL
Defendants

_______________________________________________________________________ OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION; LOCAL 108, OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION; CYNTHIA ABER; HOWARD A. ALBECKER; THOMAS R. ANDARY; ET AL, Plaintiffs - Appellants Cross-Appellees

v. P H I, INCORPORATED, Defendant - Appellee Cross-Appellant

Appeals from the United States District Court for the Western District of Louisiana Dist. Ct. No. 6:06-cv-01469

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 2, 2 011 Lyle W . Cayce Clerk Case: 10-30858 Document: 00511599829 Page: 1 Date Filed: 09/12/2011No. 10-30858

PER CURIAM: * A l abor dispute between PHI, Incorporated (“PHI”) on the one hand and certain individual pilot employees (“Individual Pilots”), Office & Professional Employees International Union, and Local 108, Office & Pro f e s s i o n al Employees International Union (all collectively called the “ U nions”) on the other hand spawned two appeals. The case giving rise to this appeal came to be known as the “Return to Work Suit.” The facts are well-known to the parties, so we recite them only briefly here. PHI is a “carrier” under 45 U.S.C. § 181. OPEIU and its Local 108 are labor organizations who are certified as the bargaining representatives for PHI’s pilots. After expiration of the then-existing collective barga i n i n g agreement (“CBA”), the parties’ negotiations o v e r a new CBA broke down. Following the Unions’ rejection of arbitration as offered by the National Mediation Board (and PHI’s silence in response to the o f fer of arbitration), the parties were released to “self-help” on August 28, 2006. The Unions engaged in a strike commencing

on September 20, 2006, and e n d ing on November 10, 2006. The district court wrote several very careful and thorough memorandum opinions over the two

cases (which were ultimately consolidated for trial bef o r e the court’s ruling on dispositive motions obviated the need for a trial). Having considered the district court’s re a s o n i ng, the parties’ briefing, and the arguments of counsel at oral argument, we turn to the issues in this appeal. 1. Availability of “Other” Equitable Relief. The district court held that the Unions were barred from seeking any equitable relief because of t heir inequitable conduct in refusing arbitration. In the district court, the Unions

never argued that the district court should analyze the equities differently when

Pur sua nt to 5 T H C IR . R. 47.5 , the cour t has d ete rm ined t hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. 2 Case: 10-30858 Document: 00511599829 Page: 2 Date Filed: 09/12/2011No. 10-30858

assessing injunctive relief than when assessing “other” equitable relief (such as “make whole relief” like back pay). Before this court, they now concede that they

are not enti t l e d t o injunctive relief, but they argue that their claims for other equitable relief should not be sim i l a r l y barred. We conclude that the Unions’ failure to raise thi s a rgument to the district court results in review for plain

error only. K

i n a s h v . Callahan , 129 F.3d 736, 739 n.10 (5th Cir. 1997). We further conclude that the Unions have not demonstrated plain error. 2. Private Right of Action. The Unions appeal from th e d i s t r i c t court’s determination that the individual pilots do not have a private cause o f action under Section 2 Third & Fourth of the Railway Labor Act. The district court 1 found that these claims must be brought t h r o u g h the Unions as the certified representatives. We have reviewed the district court’s determination of this issue, and we affirm for substantially the same reasons as given by the district court. 3. “Minor Disputes.” The Unions appeal the district court’s determination that a number of claims raised by the individual pilo t s a r e “ m inor disputes” subject to the exclusive jurisdiction of the National Railroad Adjustment Board. These matters involve outright refusals to return pilots to work after the strike ended as well as delaying such return, delaying training, reassigning pilots and similar conduct. We conclude that the district court did not err in finding these disputes to be “minor disputes” outside the court’s jurisdiction. 4. Evidentiary Issues and “Attorney as Witness” Issues. The Unions argue that the dist r ict court made several errors regarding trial issues such as whether they could amen d t heir exhibit list and the matters on which their expert

w i tnesses could testify. They also complain of certain alleged errors s u r r o u n d i n g negotiations between their counsel (Melvin Schwarzwald) and a PHI

45 U. S. C. § 1 52 Th ird & Fou rth

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representative as well as the district court’s ruling that Schwarzwald must choose between acting as a witness and acting as counsel. Given our ruling on the other matters presented, we conclude that it is unnec essary to reach these issues. 5. PHI’s Cross-Appeal for Costs. PHI appeals the district court’s denial of its costs under Federal Rule of Civil Procedure 54(d)(1). The district court, 2 noting a lack of clarity on the issue, h e l d that costs should not be awarded to PHI on the basis that the court’s denial of most claims for a la ck of subject matter jurisdiction made it unclear that PHI was the “prevailing party.” We note that there are two types of dismissal for lack of jurisdiction: those which determine only t h a t t he federal courts are not the proper forum to adjudicate the merits (such as a dismissal for imperfect diversity); and those in which a dismissal for lack of jurisdiction is an adjudication of the merits. This

case presents the latter. See Bhd. of. R.R. Trainmen v. Cent. of Ga. Rail Co. , 305 F.2d 605, 609 (5th Cir. 1962) ( noti n g t h a t t h e Union’s RLA claim presented “a situation in which the determination of the Court’s j u r i s d i c t ion [is] simultaneous with the determination of the merits”). There f o r e , w e hold that PHI is a prevailing party under these facts and is entitled to its reasonable costs. 3

The par tie s agree d that neit her sid e sho uld rec over cos ts in the “Bar gaining S u it” 2 (f iled in this cour t unde r Case No. 10-3 1040) , so this dis cus sio n only rela tes to the “Ret urn to Wor k Suit .”
The Unio ns argue that PHI wa s requ ired to se ek cos ts pur sua nt to 21 U. S. C. § 1919, 3 wh ich gives the dis tri ct cour t dis cre tio n to aw ard cos ts fol low ing a dis mi ss al for lack of juris dic tio n. Becaus e w e h o l d that PHI is a pr evailin g par ty unde r thes e fac ts , we dis agree
. Rule 54(d )( 1) s tat es that a dis tri ct co urt s hould aw ardc os ts t o a p revail ing p art y “ [u] nles s a fed eral st atue

. . . pr ovide s othe rw ise .” Sec tion 1919 wa s enac ted to em pow er cour ts to aw ard cos ts e v e n i f t h e cour t’s dis mi ss al for lack of juris dic tio n did not res ult fr om a me rit s adjud icat ion. See Ma nsf ie ld, C. & L.M

.R. Co. v. S w a n , 1 1 1 U. S. 379, 387 (188 4). Ho we ver, wh ere ther e is a pr evailin g par ty (as here ) § 1919, wh ich me rely em pow ers the cour t to aw ard c os ts and doe s not dir ect the cour t wi th regar d to its dis cre tio n, doe s not conf lict wi th Rul e 54(d )( 1) and ther efo re doe s not “p rovid e othe rw ise .” Cf. Qu an v. Com puter Sci enc es Corp

. , 623 F.3d 870 , 888 (9t h Cir

. 2010)

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6. Conclusion We t h e refore AFFIRM the district court as to all issues raised by the Unions’ appeal and REMAND to the district court for a determination of PHI’s reasonable costs.

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