Ictsi Oregon, Inc. v. Ilwu ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ICTSI OREGON, INC., an Oregon No. 20-35818
corporation,
Plaintiff-Appellee, D.C. No.
3:12-cv-01058-
v. SI
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION;
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 8,
Defendants-Appellants.
ICTSI OREGON, INC., an Oregon No. 20-35819
corporation,
Plaintiff-Appellant, D.C. No.
3:12-cv-01058-
v. SI
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION; OPINION
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 8,
Defendants-Appellees.
2 ICTSI OREGON V. ILWU
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted December 1, 2021
Portland, Oregon
Filed January 18, 2022
Before: Diarmuid F. O’Scannlain, Richard R. Clifton, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge O’Scannlain
SUMMARY *
Labor Law / Appellate Jurisdiction
The panel dismissed, for lack of jurisdiction under
28 U.S.C. § 1292(b), an appeal and a cross-appeal from the
district court’s order addressing post-judgment motions
following a jury verdict in favor of an employer on its claim
that a union engaged in an illegal secondary boycott at the
Port of Portland.
The jury returned a verdict for more than $93.5 million
for plaintiff ICTSI Oregon, Inc. Defendant International
Longshore and Warehouse Union (“ILWU”) moved for
judgment as a matter of law and new trial or remittitur. The
district court denied outright the motion for new trial as to
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ICTSI OREGON V. ILWU 3
liability and also as to damages but conditioned its denial on
ICTSI’s acceptance of remittitur to $19 million. ICTSI
rejected remittitur of damages. The district court denied all
other motions.
The district court granted ILWU’s motion for
certification of its post-trial order for interlocutory appeal
under 28 U.S.C. § 1292(b). The district court found that the
jurisdictional requirements of § 1292(b) were satisfied by
two questions: whether the district court correctly
interpreted Mead v. Retail Clerks Int’l Ass’n, Loc. Union No.
839, 523 F.2d 1371 (9th Cir. 1975), in assigning ILWU the
burdens of proving apportionment and divisibility of
damages; and whether ICTSI lost its status as a secondary
employer by entangling itself in the dispute between ILWU
and the Port. On appeal, ILWU challenged the district
court’s denial of judgment as a matter of law and the jury
instructions. On cross-appeal, ICTSI challenged the district
court’s grant of a new trial conditioned on remittitur.
The panel held that the court of appeals may assert
jurisdiction over an interlocutory appeal under § 1292(b) if
two requirements are met. First, the district court must
certify its order for appeal. To do so, it must determine that
the order rests on a controlling question of law, there are
substantial grounds for differences of opinion as to that
question, and an immediate resolution may materially
advance the termination of the litigation. Second, the court
of appeals must agree that the requirements of § 1292(b) are
met. Even when the court of appeals has jurisdiction over an
issue under § 1292(b), it enjoys broad discretion to refuse to
accept it.
The panel held that the question on which ILWU relied
was not a question of law because the parties’ dispute about
4 ICTSI OREGON V. ILWU
whether ICTSI became a primary employer under the
circumstances of this case was a question of fact. The panel
concluded that the Mead question was not addressed in the
four corners of the certified post-judgment order and was not
“material” to that order. The panel held that it therefore
lacked jurisdiction under § 1292(b), and it dismissed the
appeal and the cross-appeal.
COUNSEL
Dan Jackson (argued), Susan J. Harriman, and Brook
Dooley, Keker Van Nest & Peters LLP, San Francisco,
California, for Defendants-Appellants/Cross-Appellees.
Michael T. Garone (argued), Andrew J. Lee, Jeffrey S. Eden,
and Amanda T. Gamblin, Schwabe, Williamson & Wyatt
PC, Portland, Oregon; Carter G. Phillips, Sidley Austin LLP,
Washington, D.C.; for Plaintiff-Appellee/Cross-Appellant.
Kevin J. Marrinan and John P. Sheridan, Marrinan &
Mazzola Mardon P.C., New York, New York, for Amicus
Curiae International Longshoremen’s Association.
Michael E. Kenneally and Jonathan C. Fritts, Morgan Lewis
& Bockius LLP, Washington, D.C., for Amicus Curiae
Pacific Maritime Association.
Klaus H. Hamm, Klarquist Sparkman LLP, Portland,
Oregon; Catherine L. Fisk, Berkeley. California; for Amicus
Curiae 11 Scholars and Professors of Labor History, Labor
Law and the Constitution.
ICTSI OREGON V. ILWU 5
E. Joshua Rosenkranz, Alyssa Barnard-Yanni, and Cesar A.
Lopez-Morales, Orrick Herrington & Sutcliffe LLP, New
York, New York; Daryl and Stephanie A. Maloney, United
States Chamber Litigation Center, Washington, D.C.; for
Amicus Curiae Chamber of Commerce of the United States
of America.
OPINION
O’SCANNLAIN, Circuit Judge:
This case arises out of the high-profile labor dispute that
led to the closing of Terminal 6 of the Port of Portland to
ocean-going cargo for more than a year.
I
A
On the west coast of the United States, the work of
loading and unloading containers on and off international
ocean-going vessels is typically performed by members of
local unions affiliated with International Longshore and
Warehouse Union (“ILWU National”). Shipowners’ Ass’n of
the Pac. Coast, 7 NLRB 1002, 1007–14 (1938). Some of the
containers are refrigerated and are known as “reefers.”
While a reefer is off the vessel, it must be connected to a
power source to maintain refrigeration. Handling reefers
while they are off the vessels is known as “reefer work.”
Under the collective-bargaining agreement between ILWU
National and Pacific Maritime Association (“PMA”), when
a PMA member has the right to assign reefer work, it must
assign it to a union affiliated with ILWU National.
6 ICTSI OREGON V. ILWU
Before 2010, the Port of Portland (“the Port”), not a
PMA member, had been assigning reefer work to members
of International Brotherhood of Electrical Workers
(“IBEW”), a different union. In 2010, marine terminal
operator ICTSI Oregon, Inc. (“ICTSI”), a PMA member,
leased Terminal 6 from the Port. However, under the lease,
the Port retained control over the reefer work and continued
assigning it to members of IBEW.
In 2012, upset by this arrangement, ILWU National and
its affiliate, International Longshore and Warehouse Union
Local 8 (collectively “ILWU”) engaged in high-profile work
stoppages, slowdowns, and other coercive activity at
Terminal 6. See, e.g., Richard Read, Port of Portland’s
Troubled Terminal 6 Shuts for Second Day in a Row,
Following Altercation, The Oregonian (Mar. 5, 2014,
8:30 p.m.), https://www.oregonlive.com/business/2014/03/t
roubled_port_of_portland_cont.html. The ocean-going
cargo traffic ceased for more than a year. By 2017, ILWU’s
actions forced ICTSI to buy back the remainder of its lease
from the Port and to leave Terminal 6.
B
1
In response to these actions, ICTSI filed charges against
ILWU with the National Labor Relations Board (“NLRB”).
The Administrative Law Judge (“ALJ”) found that ICTSI
was a neutral, or secondary employer for purposes of the
reefer dispute because the dispute was between the Port and
ILWU. ILWU, 363 NLRB No. 47 (Nov. 30, 2015); ILWU,
363 NLRB No. 12 (Sept. 24, 2015). Based on this finding,
the agency held that, between May 2012 and August 2013,
ILWU violated 29 U.S.C. § 158(b)(4)(B), prohibiting unions
from interfering with secondary employers (ICTSI) with the
ICTSI OREGON V. ILWU 7
purpose of coercing them into pressuring primary employers
(the Port) to satisfy unions’ (ILWU) demands (assignment
of reefer work). ILWU, 363 NLRB No. 47; ILWU,
363 NLRB No. 12. The DC Circuit affirmed. ILWU v.
NLRB, 705 F. App’x 3, 4 (D.C. Cir. 2017); ILWU v. NLRB,
705 F. App’x 1, 2–3 (D.C. Cir. 2017).
2
In this action, ICTSI seeks damages from ILWU for its
violation of § 158(b)(4)(B). Before trial, interpreting this
court’s decision in Mead v. Retail Clerks Int’l Ass’n, Loc.
Union No. 839, 523 F.2d 1371 (9th Cir. 1975), the district
court assigned ICTSI the burden of proving three elements:
(1) “[ILWU] engaged in . . . coercive job activity;”
(2) “[o]btaining the reefer work was a substantial factor
motivating that coercive activity, making it unlawful
secondary activity;” and (3) “unlawful secondary activity
was a substantial factor in causing ICTSI’s damages.” In
turn, ILWU was allocated the burden of showing that
ICTSI’s damages were attributable to other factors, such as
lawful labor activity or outside causes, like lower customer
demand. Further, if ILWU prevailed in showing that other
factors caused ICTSI’s damages, it would have to show that
the damages caused by its unlawful conduct and those other
factors could be divided.
After a ten-day trial, the jury returned a verdict for more
than $93.5 million for ICTSI. Among other findings, the
jurors concluded that all of ILWU’s actions were unlawful
and that those actions were the sole cause of ICTSI’s
damages. Accordingly, they did not reach the issue of
divisibility.
Later, ILWU moved for judgment as a matter of law
(“JMOL”) and new trial or remittitur. It argued that ICTSI
8 ICTSI OREGON V. ILWU
failed to carry its burden of proof as to liability and damages.
The court denied outright the motion for new trial as to
liability and also as to damages but conditioned its denial on
ICTSI’s acceptance of remittitur to $19 million. ICTSI
rejected remittitur of damages. The court denied all other
motions.
Then, ILWU filed a motion asking the district court to
certify its post-trial order for interlocutory appeal under
28 U.S.C. § 1292(b). The district court granted such motion.
It found that two questions satisfied the jurisdictional
requirements of that section. The first question was whether
the district court “correctly interpreted Mead” when it
assigned ILWU the burdens of proving apportionment and
divisibility of damages. The second was whether “ICTSI lost
its status as a ‘secondary employer’” by entangling itself in
the dispute between ILWU and the Port.
3
In this Court, ILWU filed a petition for permission to
appeal the certified order as required for interlocutory appeal
jurisdiction under § 1292(b). ICTSI filed an answer
opposing ILWU’s petition and, in the alternative, asking us
for permission to cross-appeal. A motions panel of this Court
granted permission to ILWU to appeal and to ICTSI to cross-
appeal.
On this interlocutory appeal, ILWU challenges the
district court’s denial of JMOL and the jury instructions. On
cross-appeal, ICTSI challenges the district court’s grant of
new trial conditioned on remittitur.
ICTSI OREGON V. ILWU 9
II
As a threshold matter, we must decide if we have
jurisdiction to hear this case. ILWU argues that the two
questions identified by the district court satisfy the
requirements for interlocutory appeal under § 1292(b) and,
thus, grant us jurisdiction.
A
We tackle the second issue first. ILWU argues that the
question of whether “ICSTI [sic] entangled itself in the
‘vortex’ of ILWU’s dispute with the Port . . . to such a degree
that ICTSI lost its status as a ‘secondary employer’” satisfies
the hallmarks of § 1292(b). We must decide whether ILWU
has stated a question of law.
1
Under 28 U.S.C. § 1292(b) parties may take an
interlocutory appeal when “exceptional circumstances
justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978);
see also U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th
Cir. 1966) (per curiam). Broadly, there are two requirements
that must be met before we can assert jurisdiction over an
interlocutory appeal.
a
The first jurisdictional requirement is that the district
court must certify its order for appeal. To do so, it must
determine that the order meets the three certification
requirements outlined in § 1292(b): “(1) that there be a
controlling question of law, (2) that there be substantial
10 ICTSI OREGON V. ILWU
grounds for difference of opinion [as to that question], and
(3) that an immediate [resolution of that question] may
materially advance the ultimate termination of the
litigation.” In re Cement Antitrust Litig. (MDL No. 296),
673 F.2d 1020, 1026 (9th Cir. 1981).
A controlling question of law must be one of law—not
fact—and its resolution must “materially affect the outcome
of litigation in the district court.” Id. at 1026; see also
Northwestern Ohio Adm’rs v. Walcher & Fox, 270 F.3d
1018, 1023 (6th Cir. 2001) (“Because this is an interlocutory
appeal, we have no authority to review the district court’s
findings of fact, but must confine our review to . . . questions
of law.”); Clark-Dietz & Assocs.-Eng’rs v. Basic Const.,
702 F.2d 67, 69 (5th Cir. 1983) (“[F]act-review questions
[are] inappropriate for § 1292(b) review.”).
The “substantial grounds” prong is satisfied when “novel
legal issues are presented, on which fair-minded jurists
might reach contradictory conclusions.” Reese v. BP Expl.
(Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). For
example, this prong is satisfied if “the circuits are in dispute
on the question and the court of appeals of the circuit has not
spoken on the point, if complicated questions arise under
foreign law, or if novel and difficult questions of first
impression are presented.” Couch v. Telescope Inc.,
611 F.3d 629, 633 (9th Cir. 2010). However, the district
court need not “await[] development of contradictory
precedent” before concluding that the question presents a
“substantial ground for difference of opinion.” Reese,
643 F.3d at 688.
Finally, the “materially advance” prong is satisfied when
the resolution of the question “may appreciably shorten the
time, effort, or expense of conducting” the district court
proceedings. In re Cement, 673 F.2d at 1027. As to the
ICTSI OREGON V. ILWU 11
timing of certification, the district court may certify the order
for interlocutory appeal in the text of that order or in a
separate order, known as the certification order. In re Benny,
812 F.2d 1133, 1136–37 (9th Cir. 1987).
b
The second jurisdictional requirement is that the party
seeking appeal must make an “application . . . [to this court]
within ten days after the entry of the [certification] order.”
28 U.S.C. § 1292(b). The clock starts ticking from the
moment the district court certifies the order, and not from the
moment the order is issued. In re Benny, 812 F.2d at 1137.
Typically, a motions panel of this court will then decide
whether to grant or deny the application. See, e.g., Reese,
643 F.3d at 688; Couch, 611 F.3d at 632; Kuehner v.
Dickinson & Co., 84 F.3d 316, 318–19 (9th Cir. 1996). If the
application is granted, the case will be assigned to a merits
panel.
The merits panel then must agree that the requirements
of § 1292(b) are met. “The opinion of the district judge that
a controlling question is involved, while deserving of careful
consideration, is not binding upon this court . . . .” United
States v. Woodbury, 263 F.2d 784, 786 (9th Cir. 1959).
Similarly, although we “[do] not lightly overturn a decision
made by a motions panel during the course of the same
appeal, we do not apply the law of the case doctrine . . .
strictly in that instance.” United States v. Houser, 804 F.2d
565, 568 (9th Cir. 1986), abrogated on other grounds by
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
816–817 & n.5 (1988); see also Kuehner, 84 F.3d at 318–19.
12 ICTSI OREGON V. ILWU
c
Even when this court has jurisdiction over an issue under
§ 1292(b), it enjoys broad discretion to refuse to accept it.
“[T]he appellant . . . ‘has the burden of persuading the court
of appeals that exceptional circumstances justify a departure
from the basic policy of postponing appellate review until
after the entry of a final judgment.’” Coopers, 437 U.S.
at 475. Although there is little guiding that discretion in the
text of § 1292(b) or our caselaw, it has been compared to the
discretion the Supreme Court enjoys when reviewing
petitions for certiorari. In re Convertible Rowing Exerciser
Patent Litig., 903 F.2d 822, 822 (Fed. Cir. 1990). For
example, this court may decline to exercise jurisdiction for
reasons having little to do with the appeal itself, such as
docket congestion. Coopers, 437 U.S. at 475. Indeed, it need
not offer any reason at all. 16 Wright & Miller, Federal
Practice and Procedure § 3929 (3d ed. 1998) (“[P]ermission
might be denied without specifying reasons . . . .”).
Similarly, nothing precludes this court from declining to
assert jurisdiction after oral arguments. Molybdenum Corp.
of Am. v. Kasey, 279 F.2d 216, 217 (9th Cir. 1960) (per
curiam). Or from hearing some of the issues, but not
others—including refusing to decide the question that
provided the basis for certification. Yamaha Motor Corp.,
U.S.A. v. Calhoun, 516 U.S. 199, 203–04 (1996). Thus, even
when this court has interlocutory jurisdiction, it is free to
decline to hear some or all the issues the parties raise on
appeal.
2
Taking the foregoing into consideration, we must
conclude that the question that ILWU relies on is a question
of fact, not “of law.” See 28 U.S.C. § 1292(b). As is evident
from the plain text of § 1292(b), for a question to confer
ICTSI OREGON V. ILWU 13
interlocutory jurisdiction on this court it must be a “question
of law.” Id.; see also Walcher & Fox, 270 F.3d at 1023;
Clark-Dietz, 702 F.2d at 69; Wright & Miller § 3930. The
dispute between the parties is not about whether primary—
as opposed to secondary—employers can recover damages
for violation of § 158(b)(4)(B) (a question of law); rather the
dispute is about whether ICTSI became a primary employer
under the circumstances of this case (a question of fact).
Ruling on this issue, the district court primarily relied on
facts from the record. So did ILWU’s analysis in its opening
and reply briefs and ICTSI’s in its answer.
Indeed, such question does not present a substantial
ground for disagreement as to the question of law. As we
have explained, “[c]ourts traditionally will find that a
substantial ground for difference of opinion exists where ‘the
circuits are in dispute on the question and the court of
appeals of the circuit has not spoken on the point, if
complicated questions arise under foreign law, or if novel
and difficult questions of first impression are presented.’”
Couch, 611 F.3d at 633. That is not the case here, and ILWU
does not argue otherwise. Such question, therefore, does not
satisfy the requirements of § 1292(b) and cannot be the basis
for jurisdiction in this Court.
B
ILWU also contends that there is another basis for
jurisdiction: the separate question of whether the district
court “correctly interpreted Mead” when it assigned ILWU
the burdens of proving apportionment and divisibility of
damages.
The district court acknowledged and the parties do not
dispute that the Mead question is not addressed in the four
corners of the certified order. In that order, the district court
14 ICTSI OREGON V. ILWU
did not revisit its pre-trial rulings allocating the burdens of
proof in view of Mead. As the court acknowledged, “[t]he
two citations to Mead in the Post-Trial Opinion are not
related to the Court’s interpretation of Mead currently
challenged by ILWU related to . . . divisibility and
apportionment of damages.” Nor did ILWU challenge those
rulings in its post-trial motions.
ILWU, however, argues that we may reach the Mead
issue under In re Cinematronics, 916 F.2d 1444 (9th Cir.
1990) and Canela v. Costco Wholesale, 971 F.3d 845 (9th
Cir. 2020). The narrow issue before us is, then, whether a
question not decided within the four corners of the certified
order can confer jurisdiction on this court over such order.
1
When this court concludes that the question identified by
the district court satisfies the requirements of § 1292(b), we
have jurisdiction over any question within the four corners
of the certified order—not just the identified controlling
question. Yamaha, 516 U.S. at 205. Importantly, however,
jurisdiction does not extend to other orders entered in the
same case. Id. (“The court of appeals may not reach beyond
the certified order to address other orders made in the
case.”); Deutsche Bank v. FDIC, 744 F.3d 1124, 1134–35
(9th Cir. 2014) (“In keeping with the letter and spirit of
§ 1292(b), our precedent, and Supreme Court guidance, we
limit the scope of this appeal to the certified order and
decline to reach any issues that are not encompassed within
the certified order issued by the district court.”).
We have recognized an exception to the statute’s
jurisdictional ambit: our interlocutory jurisdiction extends to
a question outside the order when such question is “material”
to the certified order. Cinematronics, 916 F.2d at 1449.
ICTSI OREGON V. ILWU 15
Cinematronics concerned a bankruptcy proceeding. Id.
at 1446–47. In a first order, the bankruptcy court held that
the claims before it were part of the “core bankruptcy
proceedings” and, thus, it could issue “a final and binding
judgment.” Id. at 1447. It also found that the litigants had a
right to jury trial on those claims. Id. However, it doubted
that it had the authority to conduct a jury trial and asked the
district court to do it instead. Id. In a second order, the district
court found “that bankruptcy courts have authority to
conduct jury trials in core proceedings.” Id. at 1448. It did
not, however, revisit the bankruptcy court’s holding that the
claims were part of core proceedings. Id. The district court
then certified its order for interlocutory appeal to this court.
Id.
We held that we had jurisdiction under § 1292(b) to
review the bankruptcy court’s conclusion that the claims
were part of the core proceedings even though that holding
was not part of the order certified by the district court. Id.
at 1449. We observed that “the validity of the district court’s
decision . . . is inextricably tied to the bankruptcy judge’s
earlier ruling that . . . [the] claims constitute core bankruptcy
proceedings.” Id. The court summarized its reading of
§ 1292(b) by noting that in “a situation[] where
reconsideration of a ruling material to an order provides
grounds for reversal of the entire order,” this court may
address issues outside the four corners of the properly
certified order. Id. (emphasis added).
Relying on Cinematronics, this court also reached
outside the certified order in Canela. In that case, the district
court decided, in a first order, that it had subject matter
jurisdiction over the lawsuit. Id. at 848. In a second order, it
denied Costco’s motion for partial summary judgment on the
issue of whether Canela had Article III standing to pursue
16 ICTSI OREGON V. ILWU
some of its claims. Id. The district court then certified the
second order for interlocutory appeal after determining that
the standing question passed the § 1292(b) test. Canela v.
Costco Wholesale Corp., No. 13-CV-03598-BLF, 2018 WL
3008532, at *1–3 (N.D. Cal. June 15, 2018). On appeal, this
court concluded that it had jurisdiction to review the district
court’s jurisdictional ruling, made in the first order. Canela,
917 F.3d at 849. “Because the district court’s subject matter
jurisdiction is ‘material’ to the summary judgment before us,
we address it here,” the court noted. Id. (quoting
Cinematronics, 916 F.2d at 1449). This conclusion was
consistent with Cinematronics because, just as in that case,
reversing the district court’s subject matter jurisdiction
decision would have nullified the certified order.
Cinematronics, 916 F.2d at 1449.
Thus, Cinematronics and Canela allow panels to assert
interlocutory jurisdiction over issues not included in the four
corners of the properly certified order when such issues are
“material” to such order. Id.
2
However, the posture of this interlocutory appeal is
unlike those of the appeals in Cinematronics and Canela. In
those cases, as discussed above, the district court identified
questions that properly satisfied the requirements of
§ 1292(b) within the four corners of the certified orders. For
example, in Cinematronics, the district court certified the
order based on the question of whether “bankruptcy courts
have authority to conduct jury trials in core proceedings.”
Cinematronics, 916 F.2d at 1448. Similarly, in Canela, the
controlling question in the order was whether Canela had
Article III standing. Canela, 2018 WL 3008532, at *1–3.
Once this court had jurisdiction to “permit an appeal to be
taken from such order,” 28 U.S.C. § 1292(b), based on those
ICTSI OREGON V. ILWU 17
questions, it was able to extend its interlocutory jurisdiction
to the bankruptcy court’s determination that the “claims
constitute[d] core bankruptcy proceedings,” Cinematronics,
916 F.2d at 1449, and to the district court’s conclusion that
it had subject matter jurisdiction, Canela, 971 F.3d at 849.
Here, by contrast, the only question in the four corners
of the certified order that purportedly satisfies § 1292(b) is
the “secondary employer” question. As discussed above, that
question fails because it is not a question of law. Thus, unlike
in Cinematronics and Canela, we cannot establish
jurisdiction over the certified post-trial order. It follows that
we cannot extend that jurisdiction to the Mead issue decided
in the pre-trial ruling. The two precedents ILWU is relying
on are, therefore, inapplicable here.
Accordingly, we lack jurisdiction under § 1292(b) to
consider this question. In light of our disposition, the parties
will have to continue their litigation in the district court, at
least for now.
III
The appeals are DISMISSED for lack of jurisdiction. 1, 2
1
Even assuming we had jurisdiction, we would be inclined to
exercise our discretion not to hear this case as the issues raised by the
parties are factual, focusing on damages rather than liability. Cf.
Coopers, 437 U.S. at 475.
2
PMA’s motion for leave to file an amicus curiae brief in support
of ILWU is GRANTED.