October 31, 1958
HOWARD E. SHANK, ET AL., PLAINTIFFS-APPELLANTS,
NATIONAL LABOR RELATIONS BOARD ET AL., DEFENDANTS-APPELLEES.
Before HASTINGS, PARKINSON and KNOCH, Circuit Judges.
KNOCH, C.J.: Plaintiffs sought individual declaratory judgments against defendants with respect to several matters.
In their Counts I and II, plaintiffs sought to have the District Court construe Title 5, Chapter 19, § 1009 and Title 29 §§ 141-197, United States Code; and Title 29, Part 101, Sub-part B, § 101.14 of Code of Federal Regulations, with respect to judicial review of agency action, Board's decisions and orders, to enable plaintiffs to perfect rights by way of damages in a matter pending or to be brought in the state court.
Plaintiffs had filed charges with the National Labor Relations Board. The General Counsel of the Board refused to issue complaints under the NLRA, as amended. Plaintiff Ruth Warner alleged that the General Counsel adhered to his decision on reconsideration. Plaintiff Howard E. Shank had taken no appeal from the initial refusal of the Regional Director to issue a complaint. Plaintiffs do not allege error in the administrative action taken. It is not alleged that the N.L.R.B. or the General Counsel will be a party to any proposed state court action.*fn1
The District Court concluded that there was no showing of actual controversy between either plaintiff and the Board, and properly allowed the Board's motion to dismiss Counts I and II for want of jurisdiction of the subject matter.*fn2
In Count III, plaintiff Howard E. Shank sought declaratory judgment against defendant General Electric Company respecting the validity and application of an injunction order with particular reference to a pending contempt citation issued by a state court.*fn3
In effect the District Court was asked to review, by way of declaratory judgment, a pending state court matter prior to its final decision. The District Court rightly refused such review, pointing out that if the injunction were invalid, plaintiffs had the right of appeal.
In regard to Count IV, wherein plaintiff Ruth Warner sought construction of an expired union contract,*fn4 the District Court held that the matter was moot, that there was no showing of existing controversy, and declined to enter an advisory opinion regarding the validity of a possible defense predicated on the expired contract, which might be raised in an action for damages, pending or to be brought in the state courts. The District Court accordingly allowed motion of defendant General Electric Company to dismiss Counts III and IV.
We find no error in the District Court's action.