
USCA1 Opinion

	




        April 29, 1994          [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1565                      MASSACHUSETTS LABORERS' DISTRICT COUNCIL,                                Plaintiff, Appellant,                                          v.                       LABOR RELATIONS DIVISION OF CONSTRUCTION                      INDUSTRIES OF MASSACHUSETTS, INC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Paul  F. Kelly with  whom Shelley  B. Kroll  and Segal,  Roitman &            ______________            _________________      _________________        Coleman were on brief for appellant.        _______            John  D. O'Reilly,  III with whom  O'Reilly & Grosso  was on brief            _______________________            _________________        for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Plaintiff-appellant,  Massachusetts                      Per  Curiam.                      ___________            Laborers'   District   Council  (Laborers),   and  defendant-            appellee, Labor Relations Division of Construction Industries            of Massachusetts (CIM),  a contractor trade  association, are            parties  to a  collective bargaining  agreement  containing a            provision   to  arbitrate   unresolved  grievances.     Cardi            Corporation  (Cardi), a  general contractor  and a  member of            (CIM), was a signatory to  that agreement.  Plaintiff  claims            that Cardi violated the  agreement in two separate instances,            on one occasion by subcontracting work to a subcontractor who            used members of  the Ironworkers' Union to perform  work that            Laborers felt belonged to its  members, and then by assigning            work on another  of its  jobs to members  of the  Carpenters'            Union rather than to members of the local Laborers affiliate.                      After  the  disputes remained  unresolved, Laborers            sought a  court  order requiring  that  the two  disputes  be            arbitrated  in  accordance  with  the  bilateral  arbitration            clause  contained in  the  Collective  Bargaining  Agreement.            Ultimately, the district court  ordered the disputing parties            to engage  in tripartite arbitration  with regard to  each of            the separate work-related disputes.   That order was complied            with,  and eventually one of the disputes was dropped and the            other settled during arbitration proceedings.                                         -2-                                          2                      After  notifying  the court  of  the  resolution of            these  disputes, Laborers, in  essence, continued  to contend            that  the   court  had  erred  when   it  ordered  tripartite            arbitration.  Notwithstanding  that contention, the  district            court, on being advised of the dispositions of the underlying            disputes,  dismissed the  action  as moot.   Laborers  took a            timely appeal from that dismissal.  We affirm.                      A   federal   court's  jurisdiction   to  determine            disputes is limited by  the strictures of Article III  of the            Constitution  to  the  resolution  of  "real  and substantial            controvers[ies] admitting of specific relief through a decree            of  a conclusive  nature,  as distinguished  from an  opinion            advising what the law  would be upon a hypothetical  state of            facts."  Lewis v.  Continental Bank Corp., 494 U.S.  472, 477                     _____     ______________________            (1990) (citations omitted).  Thus, as we said in another case            involving the "case or controversy" requirement:                      the only issue is whether there is now an                      actual "case or  controversy" within  the                      meaning   of   Article    III   of    the                      Constitution, or whether, as the district                      court held, the case  is moot and thus no                      longer justiciable.   See Sosna  v. Iowa,                                            ___ _____     ____                      419  U.S.  393,  397-403  (1975).   Where                      declaratory  relief is  sought, plaintiff                      must  show that  there  is a  substantial                      controversy   over   present  rights   of                      "sufficient   immediacy   and    reality"                      requiring   adjudication.     Preiser  v.                                                    _______                      Newkirk, 422 U.S. 395, 402  (1975); Aetna                      _______                             _____                      Life Ins.  Co. v. Howorth, 300  U.S. 227,                      ______________    _______                      242 (1937).  "[W]hen the issues presented                      are no longer `live'  or the parties lack                      a  legally  cognizable  interest  in  the                      outcome,' the case  is moot.   County  of                                                     __________                                         -3-                                          3                      Los Angeles v.  Davis, 440 U.S. 625,  631                      ___________     _____                      (1979) (quoting Powell v.  McCormack, 395                                      ______     _________                      U.S. 486, 496 (1969)).              Boston  Teachers Union v. Edgar, 787 F.2d 12, 15-16 (1st Cir.            ______________________    _____            1986).  We  agree with the  district court that this  case is            moot.                       It  is  beyond  question that  no  current  dispute            exists between the  parties with regard to work assignment or            subcontracting  practices.  The  original disputes respecting            Cardi's  assignment and subcontracting  of work vis-a-vis all            three unions have  been resolved.   Thus,  once the  district            court  was  advised  of  the  resolution  of  the  underlying            disputes, the order of  dismissal was appropriate because the            only  relief  plaintiff  had   sought,  an  order  compelling            arbitration, was no longer a live issue.                      With  the settlement  of  the underlying  disputes,            there  remained no further  justiciable case  or controversy.            Although the  parties to  this litigation may  still disagree            about the proper allocation of the disputed work or, for that            matter,  whether the  district court  should have  joined all            three  disputing unions  and ordered  tripartite arbitration,            once  that  order issued,  and the  parties  acted on  it and            resolved their differences,  there remained  nothing for  the            district court to resolve.                         The  particular disputes  which animated  this case            will  not occur  again although,  of course,  future disputes                                         -4-                                          4            involving other  work issues  may arise between  employer and            union.  The resolution  of those disputes will have  to await            their occurrence.1                      For the foregoing reasons, the order is affirmed.                                                              ________                                            ____________________            1.  Plaintiff contends for the first  time in its reply brief            that  because  this  dispute  is capable  of  repetition  and            incapable of review, we must now decide whether the  district            court  exceeded  its  authority  when it  ordered  tripartite            arbitration.   The short answer to this plaint is that issues            raised for the first time in a reply brief are deemed waived.            Vanhaaren v.  State Farm Mutual Auto Ins.  Co., 989 F.2d 1, 7            _________     ________________________________            n.6 (1st Cir.  1993); Frazier  v. Bailey, 957  F.2d 920,  932                                  _______     ______            n.14 (1st Cir. 1992).                                          -5-                                          5
