United States Court of Appeals, District of Columbia Circuit
Argued April 17, 2015.
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
John J. Manier and Matthew T. Wakefield argued the causes for petitioner. With John J. Manier on the briefs were Frederick H. Kraus and Richard S. Rosenberg.
Kellie Isbell, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Ruth E. Burdick, Supervisory Attorney. Kira D. Vol, Attorney, entered an appearance.
Before: BROWN, KAVANAUGH, and WILKINS, Circuit Judges. OPINION filed by Circuit Judge KAVANAUGH.
Kavanaugh, Circuit Judge :
During a union demonstration in front of the Venetian Casino Resort, the Venetian requested that police officers at the scene issue criminal citations to the demonstrators and block them from the walkway because they were allegedly trespassing upon private property belonging to the Venetian. The National Labor Relations Board later determined that the Venetian had thereby committed an unfair labor practice in violation of the National Labor Relations Act.
The Venetian argues that the Noerr-Pennington doctrine immunizes it from liability under the Act. The Noerr-Pennington doctrine originated in the antitrust context but has also been applied in labor cases. Under that doctrine, conduct that constitutes a direct petition to government, but would otherwise violate the Act, is shielded from liability by the First Amendment. We agree with the Venetian that its request to the police was covered by the Noerr-Pennington doctrine. We therefore grant the Venetian's petition for review, deny the Board's cross-application to enforce its order, and vacate the Board's order. That said, the Noerr-Pennington doctrine has an exception for sham petitions. Because the Board failed to address whether the Venetian's petition was a sham, we remand so that the Board may consider that question in the first instance.
In 1999, the Venetian, a luxury hotel and casino complex, opened on the famed Las Vegas Strip. A traffic impact study commissioned by the Venetian's developers indicated that the new complex would worsen vehicular traffic on the Strip. Clark County, the Nevada county in which Las Vegas is located, therefore expanded the Strip by one lane. The expansion displaced a public sidewalk that had previously run along the front of the Venetian's property. In exchange, the Venetian agreed to build a replacement sidewalk, running parallel to the Strip, on its property. In February 1999, the Venetian built a temporary walkway in the agreed-upon location.
Also in February 1999, an ongoing battle between the Venetian and two labor unions came to a head. The Nevada Department of Transportation issued the unions a permit to hold a demonstration against the Venetian on the temporary walkway and on one lane of the Strip.
The Venetian strenuously objected to the proposed location of the demonstration. A representative of the Venetian spoke with the Clark County District Attorney. The Venetian took the position that the temporary walkway was its private property and that the unions therefore had no right to demonstrate there. The District Attorney responded that he would not enforce Nevada's trespass law against the demonstrators. The Venetian's representative then met with police department officials. Those officials explained that police officers would attend the demonstration to protect public safety but would not arrest the demonstrators for trespass.
On the day of the demonstration, the Venetian took several additional measures to protect its alleged property rights. The Venetian marked its property boundaries with orange paint and posted signs indicating that the temporary walkway was private property. As over 1,000 demonstrators marched on the walkway, the Venetian played a recorded message over a public address system. The message stated that the demonstrators were subject to arrest for trespass. The Venetian's security guards placed the demonstration's leader under citizen's arrest. And importantly for purposes of this case, the Venetian asked police officers at the demonstration to issue criminal citations to the demonstrators and to block them from the temporary walkway.
Soon thereafter, the Venetian filed suit for injunctive and declaratory relief against the unions and various government entities. See Venetian Casino Resort, LLC v. Local Joint Executive Board of Las Vegas, 257 F.3d 937, 939 (9th Cir. 2001), cert. denied, 535 U.S. 905, 122 S.Ct. 1204, 152 L.Ed.2d 142 (2002). The Ninth Circuit ultimately held that the temporary walkway was a public forum subject to First Amendment ...