                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-2085


PATRICIA L. TIMMINS, Acting Regional Director of the
Eleventh Region of the National Labor Relations Board, for
and on behalf of the National Labor Relations Board,

                Petitioner - Appellant,

          v.

NARRICOT INDUSTRIES, L.P.,

                Respondent – Appellee,

SHIRLEY MAE LEWIS; HENRY VAUGHAN,

                Intervenors/Defendants – Appellees.




                             No. 08-2087


PATRICIA L. TIMMINS, Acting Regional Director of the
Eleventh Region of the National Labor Relations Board, for
and on behalf of the National Labor Relations Board,

                Petitioner - Appellee,

          v.

NARRICOT INDUSTRIES, L.P.,

                Respondent – Appellant,

          and
SHIRLEY MAE LEWIS; HENRY VAUGHAN,

                Intervenors.



Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cv-00189-RBS-TEM)


Argued:   September 23, 2009            Decided:   January 7, 2010


Before KING and AGEE, Circuit Judges, and James P. JONES, Chief
United States District Judge for the Western District of
Virginia, sitting by designation.


Dismissed as moot and remanded with instructions to vacate by
unpublished per curiam opinion.


ARGUED: John Andrew Mantz, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Patricia L. Timmins, Acting Regional
Director of the Eleventh Region of the National Labor Relations
Board, for and on behalf of the National Labor Relations Board.
James Marion Powell, WOMBLE, CARLYLE, SANDRIDGE & RICE, PLLC,
Greensboro, North Carolina, for Narricot Industries, L.P.
William L. Messenger, NATIONAL RIGHT TO WORK LEGAL FOUNDATION,
Springfield, Virginia, for Intervenors.        ON BRIEF: Ronald
Meisburg, General Counsel, John E. Higgins, Jr., Deputy General
Counsel, Barry J. Kearney, Associate General Counsel, Judith I.
Katz, Assistant General Counsel, Steven L. Sokolow, Deputy
Assistant General Counsel, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Patricia L. Timmins, Acting Regional
Director of the Eleventh Region of the National Labor Relations
Board, for and on behalf of the National Labor Relations Board.
J. Mark Sampson, WOMBLE, CARLYLE, SANDRIDGE & RICE, PLLC,
Greensboro, North Carolina, for Narricot Industries, L.P.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Patricia     L.       Timmins,     Acting     Regional     Director    of    the

Eleventh Region of the National Labor Relations Board, for and

on behalf of the National Labor Relations Board (the “Board”),

appeals the district court order denying the Board’s petition

for    injunctive      relief      under     §    10(j)    of   the    National    Labor

Relations     Act       (the      “NLRA”).           Narricot     Industries,      L.P.

(“Narricot”) and Intervenors Shirley Mae Lewis and Henry Vaughan

(the “Intervenors”) both cross-appeal.

       Before briefing concluded in these appeals, the Board moved

this    court,    pursuant        to   Federal      Rule   of   Appellate    Procedure

42(b), to dismiss the appeal and cross-appeal as moot and remand

the case to the district court with instructions to vacate the

order    denying       the    §   10(j)      injunction.        Both    Narricot    and

Intervenors concede the appeals are moot but oppose vacatur.

For the reasons detailed below, we grant the motion to dismiss

and the Board’s request for vacatur.



                                             I.

       On February 7, 2008, the Board issued a complaint against

Narricot for certain unfair labor practices in connection with

withdrawing      its     recognition         from    the   United     Brotherhood    of

Carpenters       and     Joiners        of    America,      Carpenters      Industrial



                                              3
Council, Local No. 2316 (the “Union”). 1                     On April 22, 2008, the

Board    petitioned          the    United    States     District       Court   for     the

Eastern District of Virginia to issue an injunction pursuant to

§ 10(j) of the NLRA, 29 U.S.C.A. § 160(j) (West 1998).                            Section

10(j) provides that “[t]he Board shall have power, upon issuance

of a complaint . . . to petition any United States district

court    .   .   .    for    appropriate      temporary      relief     or   restraining

order.”      29 U.S.C.A. § 160(j) (West 1998).                  The Board sought to

compel Narricot to recognize and bargain with the Union, rescind

any or all of the unilateral changes made to the terms and

conditions of hourly employment, and cease and desist from any

alleged      unfair         labor    practices,      until      the     Board     had    an

opportunity to complete its own administrative proceedings to

determine        if   Narricot        had    in   fact      committed    unfair       labor

practices.

     On May 21, 2008, Narricot filed a motion to dismiss the §

10(j)    petition.      On     June    20,    2008    the    district     court    denied

Narricot’s motion but granted Narricot employees, Shirley Mae

Lewis and Henry Vaughan, leave to intervene.

     On July 24, 2008, the district court denied the injunction

in a written opinion and order.                      Timmins v. Narricot Indus.,

     1
       The underlying labor dispute is described in detail in the
decision of this court in the related case, Narricot Indus.,
L.P., v. NLRB, No. 09-1164 (4th Cir. Nov. 20, 2009).



                                              4
L.P., 567 F. Supp. 2d 835 (E.D. Va. 2008).                    The Board filed its

notice of appeal in September 2008.                 Soon after, Narricot filed

notice of its cross-appeal, appealing both the lower court’s

denial of its motion to dismiss and the basis upon which the

district court denied the injunction, but agreeing that denial

of   the   injunction    was    nonetheless         proper.         The   Intervenors

joined Narricot’s cross-appeal.

       On January 30, 2009, before briefing on the appeals was

completed,    the   Board      issued     a    decision       and    order   in    the

underlying    labor      dispute,       Narricot       Industries,        L.P.,    353

N.L.R.B.     No.    82   (Jan.      30,       2009),    thus        concluding     the

administrative proceedings against Narricot.                    Consequently, on

February 18, 2009, the Board moved this court to dismiss the

instant appeal and cross-appeal as moot and vacate the lower

court decision.



                                        II.

       All the parties agree the appeals are moot and should be

dismissed.     “[T]he question of mootness is [ ] one which a

federal court must resolve before it assumes jurisdiction.”                        See

North Carolina v. Rice, 404 U.S. 244, 246 (1971).                          Without a

real   and   concrete    controversy,         the    minimum        requirements    of

Article III of the Constitution are not met and this court has

no power to issue a decision.           See id.

                                          5
          The    appeals       here     arose       out     of   the      district    court’s

determination of whether or not to issue the § 10(j) injunction.

However,        the    Board     only      sought     to    enjoin      Narricot    until    the

completion of the Board’s own administrative proceedings.                                   When

the Board issued its final decision and order on January 30,

2009, the period for which the injunction was requested ended

and       so    did    any     controversy      on     which       to    base   Article      III

jurisdiction.               Accordingly, we find the instant case moot, and

we dismiss the appeal and cross-appeal.



                                               III.

          The only dispute that remains before this court, therefore,

is    whether         the    district      court’s     §    10(j)       decision    should    be

vacated.         As a court of appellate jurisdiction, we may vacate

any lower court judgment that is lawfully brought before us for

review.         28 U.S.C.A. § 2106 (West 2006).                    Recently, the Supreme

Court      emphasized         that    it     should    be    the      general   practice      of

appellate courts to “vacate the lower court judgment in a moot

case because doing so ‘clears the path for future relitigation

of the issues between the parties,’ preserving ‘the rights of

all parties,’ while prejudicing none ‘by a decision which . . .

was only preliminary.’”                 Alvarez v. Smith, No. 08-351, slip op.

at    6    (U.S.      Dec.     8,    2009)    (alteration        in     original)    (quoting

United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950)).

                                                6
     Previously, in U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, the Court stated that vacatur should be denied if

“the party seeking relief from the judgment below caused the

mootness by voluntary action.”              513 U.S. 18, 24 (1994); see

Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir. 2003).                           For

example, “where mootness results from settlement,” as it did in

Bancorp, “the losing party has voluntarily forfeited his legal

remedy    by    the   ordinary    processes      of   appeal    or    certiorari,

thereby    surrendering     his    claim    to    the     equitable    remedy   of

vacatur.”      513 U.S. at 25.

     In Alvarez, however, the Court interpreted the definition

of   “voluntary       action”     narrowly,      ruling     that     the   Bancorp

exception to vacatur only applied where mootness is the result

of settlement or something that closely resembles settlement.

Slip op. at 7-9.       Here, the case did not become moot as a result

of any type of agreement between the parties, but rather as a

result of the final adjudication by the Board.                 Consequently, in

light of Alvarez, we grant the Board’s request for vacatur.



                                      IV.

     Pursuant to the foregoing, we grant the Board’s motion to

dismiss the instant appeals and remand this case to the district




                                       7
court with instructions to vacate its order denying the § 10(j)

injunction.

                                   DISMISSED AS MOOT AND REMANDED
                                      WITH INSTRUCTIONS TO VACATE




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