Unite Here Local 355 v. Mulhall

The writ of certiorari is dismissed as improvidently granted.

It is so ordered.

Justice BREYER, with whom Justice SOTOMAYOR and Justice KAGAN join, dissenting.

The Eleventh Circuit held that these items are "thing[s] of value" and that an employer's promise to "pay" them in return for something of value from the union violates the Act if the employer intends to use the payment to "corrupt" the union; the Eleventh Circuit also held that a union's

We have received briefs on the issue, and we have heard oral argument. But in considering the briefs and argument, we became aware of two logically antecedent questions that could prevent us from reaching the question of the correct interpretation of § 302. First, it is possible that the case is moot because the contract between the employer and union that contained the allegedly criminal promises appears to have expired by the end of 2011, before the Eleventh Circuit rendered its decision on the scope of § 302. Second, it is arguable that respondent Mulhall, the sole plaintiff in this case, lacks Article III standing.

In my view, rather than dismiss the writ of certiorari as improvidently granted, the Court should simply ask for additional briefs addressing these two questions. If it turns out that the federal courts lack jurisdiction either because the case is moot or because Mulhall lacks standing, then we cannot reach the merits. But if that is the case, then we should likely order the Eleventh Circuit's decision vacated, thereby removing its precedential effect and leaving the merits question open to be resolved in a later case that does fall within the jurisdiction of the federal courts.

I believe we should also ask for further briefing on a third question: the question whether § 302 authorizes a private right of action. I recognize that the Court said, long ago and in passing, that § 302(e) "permit[s] private litigants to obtain injunctions" for violations of § 302. Sinclair Refining Co. v. Atkinson, 370 U.S. 195 , 205, 82 S.Ct. 1328 , 8 L.Ed.2d 440 (1962), overruled in part on other grounds, Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235 , 237-238, 90 S.Ct. 1583 , 26 L.Ed.2d 199 (1970). But, in light of the Court's more restrictive views on private rights of action in recent decades, see, e.g., Alexander v. Sandoval, 532 U.S. 275 , 286-287, 121 S.Ct. 1511 , 149 L.Ed.2d 517 (2001), the legal status of Sinclair Refining 's dictum is uncertain. And if § 302 in fact does not provide a right of action to private parties like Mulhall, then courts will not

Unless resolved, the differences among the Courts of Appeals could negatively affect the collective-bargaining process. This is because the Eleventh Circuit's decision raises the specter that an employer or union official could be found guilty of a crime that carries a 5-year maximum sentence, see 29 U.S.C. § 186 (d), if the employer or union official is found to have made certain commonplace organizing assistance agreements with the intent to "corrupt" or "extort." In my view, given the importance of the question presented to the collective-bargaining process, further briefing, rather than dismissal, is the better course of action.