NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 12 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN J. WALSH, No. 21-16124 Secretary of Labor, D.C. No. 2:21-cv-00441-APG-VCF Plaintiff-Appellee,

v. MEMORANDUM*

AHERN RENTALS, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted January 10, 2022** Pasadena, California

Before: WALLACE, BOGGS,*** and FRIEDLAND, Circuit Judges.

Ahern Rentals fired Stephen Balint, the manager of its Pahrump, Nevada

branch, two days after Balint voiced concerns about transportation safety

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Danny J. Boggs, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. procedures. The company claimed Balint had been terminated for frequent lateness

and a bad attitude, but Balint suspected otherwise. He filed whistleblower

complaints with the federal Occupational Safety and Health Administration (OSHA)

and its state equivalent (NV OSHA), claiming Ahern had illegally retaliated against

him in violation of Nevada Revised Statutes § 618.445 and the Surface

Transportation Assistance Act of 1982, Pub. L. No. 97-424, § 405, 96 Stat. 2097,

2157 (1983) (codified at 49 U.S.C. § 31105) (hereinafter STAA). Because the

alleged violation took place on public highways, it was the federal complaint that

moved forward.

OSHA made a preliminary finding that Ahern had violated the STAA and (as

required by the statute) ordered that Balint be reinstated.1 See 49 U.S.C.

§ 31105(b)(3)(A)(ii). When Ahern refused to comply, the Secretary of Labor, who

oversees OSHA, brought this action in the district court for a preliminary injunction.

Noting that the question presented was “limited to . . . whether the procedures the

Secretary followed in issuing the preliminary order satisfied due process,” and that

the merits of Balint’s firing were reserved for a separate hearing before an

administrative law judge (ALJ), the district court granted the motion on the

1 The STAA requires that a preliminary reinstatement order be issued “[n]ot later than 60 days after receiving a complaint.” 49 U.S.C. § 31105(b)(2)(A). In this case, OSHA took more than three years to issue the order.

2 pleadings and ordered Ahern to reinstate Balint.

On appeal, Ahern asserts that the preliminary injunction was improperly

granted for three reasons. First, it argues that the district court’s decision to decide

the motion on the pleadings, rather than hold a hearing, deprived Ahern of due

process. Second, it attacks the merits of the injunction, asserting that OSHA’s

reinstatement procedures did not, in fact, satisfy due process because of substantial

delay. Third and finally, Ahern contends that Balint should have been joined as a

party by the district court. We hold each of Ahern’s arguments meritless and

therefore affirm.

1. We review the district court’s decision on the motion for a preliminary

injunction, as well as its decision not to hold an evidentiary hearing, for abuse of

discretion. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011);

Int’l Molders’ & Allied Workers’ Loc. Union No. 164 v. Nelson, 799 F.2d 547, 554–

55 (9th Cir. 1986).

In this circuit, a district court need not hold an evidentiary hearing before

issuing a preliminary injunction—pleadings alone can constitute “notice” for

purposes of Federal Rule of Civil Procedure 65(a). Nelson, 799 F.2d at 554–55.

Indeed, there is no presumption favoring pre-injunction hearings. Ibid. That is not

to say that submission on the pleadings is always the most appropriate avenue:

“Where sharply disputed . . . facts are simple and little time would be required for

3 an evidentiary hearing, proceeding on affidavits alone might be inappropriate.” Id.

at 555 (emphasis added).

Here, it was not an abuse of discretion for the district court to decline to hold

a pre-injunction evidentiary hearing. As detailed above, the parties agreed that the

motion’s sole merits issue was a legal one: “whether the procedures the Secretary

followed in issuing the preliminary order satisfied due process.” No “sharply

disputed facts” were before the court, being reserved instead for the later merits

hearing before an ALJ that is entirely separate from this proceeding. The

circumstances of this case did not require the district court to hold an evidentiary

hearing, and we hold that there was no abuse of discretion in its failing to do so.

2. On the merits of the district court’s decision, “a plaintiff seeking a preliminary

injunction must establish that he is likely to succeed on the merits, that he is likely

to suffer irreparable harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the public interest.” Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

The latter three criteria are plainly satisfied here. Under the STAA, in the

event that the Secretary “decides it is reasonable to believe” that an employer

“discharge[d] an employee” merely “because the employee . . . has filed a complaint

or begun a proceeding related to a violation of a commercial motor vehicle safety or

security regulation, standard, or order,” the Secretary must order the employee

4 preliminarily reinstated (and sue to enforce that order if not complied with). 49

U.S.C. § 31105(a)(1)(A)(i), (b)(2)–(3). As the district court properly held, the

mandatory language of the STAA reflects a congressional judgment that, if defied,

would cause irreparable harm to the Secretary’s ability to protect whistleblowers.2

The strong congressional policy reflected in the STAA also tips the balance of

hardships and the public interest in favor of injunctive relief here.3

The dispute therefore hinges on the first preliminary-injunction factor,

likelihood of success on the merits. That boils down to a single question here: Did

OSHA give Ahern all the process it was due? It did.

Shortly after the STAA was enacted, the Supreme Court clarified what

process is due to an employer before preliminary reinstatement. Brock v. Roadway

Express, Inc., 481 U.S. 252, 263–64 (1987) (plurality opinion). The requirements

of due process are satisfied if the employer receives “notice of the substance of the

2 Ahern’s assertions that it would suffer irreparable harm in the event that it was forced to reinstate Balint—while Balint would not—miss the point entirely. The irreparable-harm analysis focuses on the moving party, not the nonmoving party or some third party. Winter, 555 U.S. at 22 (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate [ ] irreparable injury.” (emphasis added)). 3 Ahern argues that the Secretary has “waived” three of the preliminary-injunction factors by not discussing them in his response brief. But a party cannot prevail on meritless arguments simply because the other party ignores them. We do not evaluate Ahern’s assertions in a vacuum, or take them at face value. Instead, we evaluate them in light of the law and our due deference to the district court.

5 relevant supporting evidence, an opportunity to submit a written response, and an

opportunity to meet with the investigator and present statements from rebuttal

witnesses”; no hearing is required. Id. at 264.4

3. Ahern received all of this, but argues that it was deprived of due process

because the Court in Brock recognized that “[a]t some point, delay . . . may become

a constitutional violation,” and in this case OSHA exceeded the statutory timeline

by more than three years. Id. at 267. But the language in Brock referred to “delay

in holding postreinstatement evidentiary hearings”—after all, delay in actually

reinstating a supposedly undesirable employee hardly seems prejudicial to the

employer. Ibid. (emphasis added). The Court’s concern stemmed from the natural

“incentive for delay” on the part of the employee “[o]nce the Secretary orders

preliminary reinstatement.” Id. at 268. Where, as here, the delay takes place

between an employee’s complaint and his reinstatement, it harms the employee, not

the employer. Moreover, the district court ably articulated a detailed timeline of

events that adequately explains the three-year delay, most of which was due either

to the pending NV OSHA investigation (which in the end referred Balint to federal

4 Four Justices joined in the plurality opinion. Three others concurred that notice and an opportunity to respond are necessary (and that a hearing is not), but dissented from the plurality’s contention that due process required providing the employer with the evidence supporting the employee’s claim, including names of witnesses. Roadway Express, 481 U.S. at 271–72 (White, J., concurring in part and dissenting in part).

6 OSHA) or Ahern’s own failure to promptly respond to communications from the

OSHA investigator. We see no reason to disturb those findings.

Therefore, Ahern was not deprived of due process, and the district court did

not abuse its discretion when it issued a preliminary injunction on the pleadings in

favor of the Secretary.

4. Ahern’s argument that Balint should have been joined as a party below also

fails. When a person must be joined to provide complete relief, or to vindicate that

person’s interests, that person is a “required” party. Fed. R. Civ. P. 19(a). However,

if a required party cannot be joined, the party is “indispensable,” and “the court must

determine whether, in equity and good conscience, the action should proceed” or

else “be dismissed.” Fed. R. Civ. P. 19(b).

Construed generously, Ahern argues that Balint is a required party who should

have been joined earlier in the proceedings. But that is not how required joinder

works. To start with, Ahern first raised this argument in its motion for

reconsideration, after the district court issued its injunction. But “failure to join

[required]5 parties is waived if objection is not made in defendant’s first responsive

pleading; it is only the absence of an indispensable party which may (possibly) be

5 In 2007, “the word ‘required’ replaced the word ‘necessary’” in Rule 19, though “the substance and operation of the Rule both pre- and post-2007 are unchanged.” Republic of Philippines v. Pimentel, 553 U.S. 851, 855–56 (2008).

7 raised later.” Citibank, N.A. v. Oxford Props. & Fin. Ltd., 688 F.2d 1259, 1262 n.4

(9th Cir. 1982). And this makes sense: The argument that a party is required for the

case to proceed should be raised as soon as possible. Thus, the only argument Ahern

could have raised in its reconsideration motion is that Balint is an indispensable

party—but indispensable parties are those that cannot be joined, while Balint

certainly could be.

There is no procedural basis for entertaining a required-party claim; there is

no legal basis for entertaining an indispensable-party claim. Ahern’s joinder

argument therefore fails.

AFFIRMED.

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