author: McKEOWN, Circuit Judge:

text:
    Flint WOOD; Phonesagnam Silivongx-ay; Cynthia Roberts; Flisha Mumaw, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Sylvia Mathews BURWELL, Secretary of the United States Department of Health and Human Services, Defendant-Appellee.
    No. 14-15356
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 17, 2016 San Francisco, California
    Filed September 14, 2016

      Richard Rothschild (argued), Western Center on Law and Poverty, Los Angeles, California; Jane Perkins, National Health Law Program, Carrboro, North Carolina; Ellen Sue Katz, William E. Morris Institute for Justice; Phoenix, Arizona; for Plaintiffs-Appellants.
    Sushma Soni (argued) and Michael Jay Singer, Attorneys, Appellate Staff; John S. Leonardo, United States Attorney; Civil Division, United States Department of Justice, Wáshington, D.C.; for Defendant-Appellee.
    Before: M. MARGARET McKEOWN, KIM McLANE WARDLAW, and RICHARD C. TALLMAN, Circuit Judges.
   OPINION

McKEOWN, Circuit Judge:

This appeal is the latest in a decade-long conflict over the cost of copayments and medication for low-income Arizonans who qualify for a state Medicaid demonstration project covering childless adults. The sole issue is whether the members of a class action suit against the Secretary of the Department of Health and Human Services (“DHHS” or the “Secretary”) were the “prevailing parties]” for purposes of attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.

In many ways, this case reads like a classic victory for the class (the “Wood plaintiffs”): The district court found that the Secretary acted in a manner that was arbitrary and capricious — in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A) — by approving the project without considering the class members’ evidence and objections. The court remanded the case to the agency for a new decision consistent with its legal obligations and the Secretary complied. See Wood v. Betlach, 922 F.Supp.2d 836 (D. Ariz. 2013). After reconsideration, the Secretary again approved the demonstration project, and the district court then granted summary judgment in her favor. However, during the remand the district court retained jurisdiction and did not vacate the demonstration project. Following the remand, the district court found that the Wood plaintiffs were not entitled to attorneys’ fees because, after the case returned from the agency, the plaintiffs did not prevail on their substantive claims.

We disagree. Applying the factors set out in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-05, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), we hold that under the EAJA, the Wood plaintiffs are the “prevailing party” in their procedural APA challenge against the Secretary.

Background

This appeal arises out of substantive and procedural challenges to the Secretary’s approval of an Arizona Medicaid demonstration project. In 2012, the Wood plaintiffs, who were recipients of health coverage under that project, filed suit against the Secretary. The complaint challenged her approval of a new Arizona project that raised copayments for medical visits and medications and that permitted healthcare providers to refuse non-emergency services based on an inability to pay.

Under the Medicaid Act, a “demonstration project” allows the Secretary to waive certain Medicaid requirements for state projects that are “likely to assist in promoting the objectives of’ the Medicaid Act. 42 U.S.C. § 1315(a). Demonstration projects may cover populations that would not otherwise be eligible under the state Medicaid plan, but for whom the state can receive federal reimbursement. In approving a project, the Secretary must examine: (1) whether the project is an experimental, pilot, or demonstration project; (2) whether it is likely to assist in promoting the objectives of the Medicaid Act; and (3) the “extent and period” necessary for the project. Newton-Nations v. Betlach, 660 F.3d 370, 380 (9th Cir. 2011) (citing Beno v. Shalala, 30 F.3d 1057, 1071 (9th Cir. 1994)). Cost-saving is not a sufficient ground for approving a demonstration project. Id. at 381 (citing Beno, 30 F.3d at 1069).

In 2000, Arizona voters opted to expand the state Medicaid program to cover low-income childless adults who would not otherwise be eligible for Medicaid. Arizona applied to DHHS to create a project for eligible adults to receive health services with nominal copayments. Under this plan, healthcare providers could not refuse services because of an inability to pay. DHHS approved the demonstration project in 2001.

With DHHS approval, Arizona modified the program in 2003 to include higher co-pays (the “Copayment Rule”) and to permit healthcare providers to refuse services for inability to pay. A group of affected individuals filed suit in federal court challenging the modified program. See Newton-Nations v. Rodgers, No. CV-03-2506-PHX-EHC, 2010 WL 1266827, at *2-*7 (D. Ariz. Mar. 29, 2010) (summarizing the procedural history). On appeal, we determined that the Secretary’s approval of the Copayment Rule violated the APA: “There is little, if any, evidence that the Secretary considered the factors § 1315 requires her to consider before granting Arizona’s waiver. Thus, the Secretary’s decision was arbitrary and. capricious within the meaning of the APA insofar as it entirely failed to consider an important aspect of the problem.” Newton-Nations, 660 F.3d at 381-82 (internal quotation marks omitted).

When the first demonstration project expired in 2011, Arizona sought approval for a new demonstration project, which also included the Copayment Rule. DHHS approved the new project through 2016, although the Copayment Rule expired in 2013. At around the same time that the new project was approved, wé remanded the Newton-Nations case to the district court with an order to vacate and remand to the Secretary for further consideration. 660 F.3d at 383. On remand, the district court dismissed the case as moot because of the intervening 2011-2016 demonstration project, a dismissal that we affirmed on appeal. Newton-Nations v. Betlach, 569 Fed.Appx. 525, 526 (9th Cir. 2014). The Newton-Nations plaintiffs were awarded attorneys’ fees under the EAJA, Newton-Nations v. Betlach, No. CV-03-02506-PHX-ROS, ECF No. 284, at 5 (D. Ariz. Aug. 22, 2014) (finding that the plaintiffs were the prevailing parties because “the Ninth Circuit concluded the Secretary violated the APA in connection with the increased copayments”).

The Wood plaintiffs filed suit on essentially the same grounds as the Newton-Nations plaintiffs, but challenged the new 2011-2016 demonstration project. The complaint alleged that the Secretary once again failed to review or analyze a number of issues related to the Copayment Rule, such as whether it was justified by any ground other than cost-saving. The plaintiffs sought declaratory and injunctive relief under the Due Process Clause of the Fourteenth Amendment, the APA, and the Social Security Act (“SSA”). They requested that the Secretary be enjoined from implementing the Copayment Rule, but did not specifically request a remand to the agency. The district court denied the Wood plaintiffs’ motion for a preliminary injunction because the court determined that it could not enjoin the Copayment Rule without enjoining the entire demonstration project, a remedy that the plaintiffs did not seek.

In 2013, the district court partially granted the plaintiffs’ motion for summary judgment and remanded for the Secretary to áddress the deficiencies in her approval of the 2011 demonstration project. According to the district court, the Secretary’s approval of the new demonstration project was arbitrary and capricious in violation of the APA. Specifically, the Secretary had not considered the report of Dr. Ku, the Wood plaintiffs’ expert. His report indicated that cost-sharing measures, like the Copayment Rule, had already been amply studied, such that there was minimal research or experimental value to the new project. The report further suggested that heightened costs for low-income individuals did not, in fact, reduce medical costs, but rather resulted in greater reliance on emergency care. The district court determined that “the record contains no evidence that the Secretary considered or responded to Plaintiffs’ substantive objections during the administrative process,” and that “the Secretary has not pointed to any expert opinion or evidence in the administrative record that refutes the objections put forth by Plaintiffs on the basis of Dr. Ku’s research.” Wood, 922 F.Supp.2d at 847-48. The court ordered the Secretary to “address the deficiencies” set forth in the order and to complete a re-evaluation of the demonstration project within sixty days. Id. at 857.

The district court took a practical approach to the situation, reasoning that because the Copayment Rule was- an integral component of the whole project, it would be impossible to vacate that rule without vacating the entire demonstration project. Id. at 851-52. Instead, the district court opted to retain jurisdiction, because

[vjacating the entire demonstration project would ... deny Plaintiffs and the class the very health benefits they claim to require. A remand of the Secretary’s decision without vacating the project is the clearly preferable alternative and comports with Ninth Gircuit precedent holding that agency action in violation of the APA can be left in place during remand ‘when equity demands.’

Id. (quoting Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1395 (9th Cir. 1995)).

Upon remand and reconsideration, the Secretary came to the same conclusion as before and approved the 2011-2016 demonstration project in a letter dated April 8, 2013. Reasoning that in the letter “[t]he Secretary explained her rationale for disagreeing with the substance of [the Wood plaintiffs’] evidence” and “was not required to do more,” the court granted the Secretary’s motion for summary judgment. Wood v. Betlach, No. CV-12-08098-PCT-DGC, 2013 WL 3871414, at *7 (D. Ariz. July 26, 2013).

The district court later denied the Wood plaintiffs’ motion for attorneys’ fees under the EAJA on the ground that they were not the “prevailing party.” In its order, the district court noted that the plaintiffs .cited “seemingly dispositive cases” holding that remand to an agency can give rise to prevailing party status. The court also acknowledged that “[t]he interim success obtained by Plaintiffs rested on a premise that was not later rejected by the Court.” However, the district court noted that the “dispositive”. Ninth Circuit cases pre-dated the Supreme Court’s decision in Sole v. Wyner, 551 U.S. 74, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007), which the district court interpreted as foreclosing prevailing party status for a party that obtained only interim relief.

Analysis

As the Supreme Court recently reiterated, “[b]efore deciding whether an award of attorney’s fees is appropriate ... a court must determine whether the party seeking fees has prevailed in the litigation.” CRST Van Expedited, Inc. v. EEOC, — U.S. -, 136 S.Ct. 1642, 1646, 194 L.Ed.2d 707 (2016). The Court went on to note that: “Congress has included the term ‘prevailing party’ in various fee-shifting statutes, and it has been the Court’s approach to interpret the term in a consistent manner.” - Id. A fee-seeking party must show that (1) there has been a material alteration in the legal relationship of the parties and (2) it was judicially .sanctioned, See Buckhannon, 532 U.S. at 604— 05, 121 S.Ct. 1835; Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt,, 589 F.3d 1027, 1030 (9th Cir. 2009) (applying the Buckhannon factors to the EAJA).

The Wood plaintiffs present the classic hallmarks of a prevailing party. They alleged that the government acted improperly in not following prescribed administrative review; the district court agreed and ordered the agency to conform its behavior to the law; and the Secretary complied. Nevertheless, the government points to two factors- that it contends alter the prevailing party analysis: (1) the Wood plaintiffs obtained procedural relief, but not the substantive relief they sought; and (2) the district court remanded- to the agency without vacatur, while retaining jurisdiction. We disagree with the government’s claim that this “procedural posture made all the difference.” Because the posture of this case did not fundamentally affect the prevailing party inquiry set out in Buckhannon, we conclude that the district court erred as a matter of law in holding that the Wood plaintiffs were not a prevailing party.

I. Judicially-Sanctioned Material Alteration

The district court determined that the Secretary’s initial authorization, violated the APA and compelled her to reconsider the evidence. Even though the Secretary later re-approved the demonstration project (including the Copayment Rule), she was obliged to consider the Wood plaintiffs’ objections and evidence, which she failed to do during the first authorization. This posture resulted in a judicially-sanctioned material alteration in the parties’ relationship because “the defendants were required to do something directly benefitting the plaintiff[ ] that they otherwise would not have had to do,” Carbonell v. INS, 429 F.3d 894, 900 (9th Cir. 2005) (alteration in original) (citations omitted) (internal quotation marks omitted).

Procedural remedies can constitute a material alteration in the parties’ legal relationship: See, e.g., Or. Nat. Res. Council v. Marsh, 52 F.3d 1485, 1492 (9th Cir. 1995), as amended on denial ofreh’g (June 29, 1995) (awarding prevailing party status to plaintiffs where the agency had failed to “include an analysis of cumulative impacts” in its Environmental Impact Statement as required by law); Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 964-65 (D.C. Cir. 2004) (awarding attorneys’ fees under the EAJA where the court “ordered the Secretary of the Amy to correct procedural errors” and enjoined agency action while procedural errors were addressed). We have consistently held, both before and after the Supreme Court’s 2007 decision in Sole, that when remand is based on a legal defect in the agency’s decision, the remand order can be sufficient to confer prevailing party status. See Tobeler v. Colvin, 749 F.3d 830, 833-34 (9th Cir. 2014) (stating that remand to consider evidence that the agency had improperly ignored was sufficient to award attorneys’ fees); Li v. Keisler, 505 F.3d 913, 917-18 (9th Cir. 2007) (“remand orders ... advanced the goals sought by petitioners, and constituted material alterations of the parties’ legal relationships”); Rueda-Menicucci v. INS, 132 F.3d 493, 495 (9th Cir. 1997) (awarding prevailing party status based on an agency remand).

Sole did not alter the landscape with respect to agency remands. In Sole, the Supreme Court considered whether a party that obtained a preliminary injunction, which was later dissolved by a final order denying relief, was a “prevailing party” under the EAJA. 551 U.S. at 82-83, 127 S.Ct. 2188. The Court observed that “[a] plaintiff who achieves a transient victory at the threshold of an action can gain no award under that fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded.” Id. at 78, 127 S.Ct. 2188. Unlike Wyner, the plaintiff in Sole who ultimately left the courthouse with a ruling that vitiated the legal ground upon which her injunction claim was based, id. at 80-81, 127 S.Ct. 2188, the Wood plaintiffs left the courthouse with- an order that the Secretary violated the APA and had to undertake a “do over” of her administrative review — a victory that can hardly be described as leaving “emptyhanded.”

Remand to an agency based on an APA procedural violation differs markedly from a transitory preliminary injunction. In Sole, the Court observed that the hearing prior to the grant of a preliminary injunction was “hasty and abbreviated” and that “[a]t the summary judgment stage, with the benefit of a fuller record, the District Court recognized that its initial assessment was incorrect.” Id. at 84-85, 127 S.Ct. 2188. The initial determination that Wyner had demonstrated a likelihood of success on the merits was “tentative” and “rested on a premise the District Court ultimately rejected.” Id. The Court’s reference to the “transient” nature of the preliminary ruling comports ’with the view that a preliminary injunction is, “by its very nature, intended to be temporary.” Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 716 (9th Cir. 2013). In contrast, in a procedural challenge under the APA, part and parcel of the relief sought is agency adherence to administrative procedures, apart from any substantive relief.

The district court’s reliance on the procedural versus substantive remedy dichotomy misreads Sole. The dispositive question is not whether the plaintiff ultimately obtained some form of substantive relief, but rather whether there is a lasting alteration in the legal relationship between the parties. The preliminary ruling in Sole granting the injunction, which included an assessment of the substantive merits, was both “incorrect” and “undone.” 551 U.S. at 85, 78, 127 S.Ct. 2188. In this case, the district court’s remand order finding the Secretary’s actions arbitrary and capricious under the APA was not “reversed, dissolved, or otherwise undone” by its later summary judgment order. Id. at 83, 127 S.Ct. 2188. Quite the opposite, the district court noted that the remand order requiring reevaluation by the Secretary “rested on a premise that was not later rejected by the Court.” (Emphasis added); cf. id. Whatever the Secretary’s ultimate decision, she was compelled to authorize the demonstration project in a manner that conformed to the APA.

The result does not change simply because the complaint did not specifically seek remand for agency reconsideration of the demonstration project as a whole. By challenging the process by which the Secretary approved the demonstration project, the Wood plaintiffs essentially sought the remedy of a' remand. See Newton-Nations, 660 F.3d at 382 (remanding for reconsideration based on a nearly identical claim to that of the Wood plaintiffs). When assessing whether there has been a material alteration in the legal relationship of the parties, the order must grant “relief that the would-be prevailing party sought,” Klamath, 589 F.3d at 1030, but the relief need not be of “precisely the same character as the relief sought in the complaint” so long as it “serves the goals of the claim” and “requirefs] defendants to -do something they otherwise would not have been required to do.” Saint John’s Organic Farm v. Gem Cty. Mosquito Abatement Dish, 574 F.3d 1054, 1059 (9th Cir. 2009). Although the district court found that the Copayment Rule was not severable from the rest of the demonstration project and thus equity precluded the Wood plaintiffs’ preferred form of relief (i.e., vacating the Copayment Rule), this ruling did not undermine the relief granted in the remand order. We conclude that there was a material alteration in the legal relationship of the parties, to the benefit of the Wood plaintiffs.

II. Remand Without Vacatur and Retention of Jurisdiction

We have not previously addressed whether remand without vacatur affects the prevailing party analysis set out in Buckhannon.This gap is unsurprising given that remand without vacatur is a remedy used sparingly in this circuit. See Pollinator Stewardship Council v. EPA, 806 F.3d 520, 532 (9th Cir. 2015) (“We order remand without vacatur only in ‘limited circumstances.’” (citations omitted)). The government argues that because the district court retained jurisdiction during the remand, prevailing party status is bench-marked against the post-remand grant of summary judgment in favor of the defendants. We disagree. Although a district court’s decision to remand without vacatur might weigh against awarding prevailing party status in some cases, it does not do so here.

The district court’s rationale for declining to vacate the demonstration project supports the Wood plaintiffs’ victory. The court retained jurisdiction during the remand to allow the demonstration project to continue uninterrupted. It found that “remand of the Secretary’s decision without vacating the project is the clearly preferable alternative and comports with Ninth Circuit precedent holding that agency action in violation of the APA can be left in place during remand ‘when equity demands.’ ” Wood, 922 F.Supp.2d at 851-52 (quoting Idaho Farm Bureau, 58 F.3d at 1395). This approach is consistent with the factors courts weigh when deciding whether to remand to an agency without vaca-tur: (1) “how serious the agency’s errors are” and (2) “ ‘the disruptive consequences of an interim change that may itself be changed.’” Cal. Cmts. Against Toxics v. EPA., 688 F.3d 989, 992 (9th Cir. 2012) (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).

The district court rested its decision on the second factor — “disruptive consequences” — because vacating the demonstration project would be prejudicial and deny ongoing benefits to the very individuals who sought procedural relief through agency reconsideration.

Contrary to the government’s characterization, the remand did not “simply pro-yide[ ] the opportunity for the, Secretary to provide further information about the rationale for her approval decision prior to the court rendering a decision on the merits.” Instead, the district court found that the agency violated the APA and ordered the Secretary;, to “address the deficiencies set forth in th[e] order,” not just provide further information. Wood, 922 F.Supp.2d at 857. The remand was based upon agency error, and the district court’s retention of jurisdiction was a by-product of its desire to maintain the demonstration projection for equitable reasons. Cf. Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engr’s, 781 F.3d 1271, 1289 (11th Cir. 2015) (deciding not to vacate the agency’s decision during remand in part because the court was “unable to discern whether that error truly is significant” or if the agency’s “ultimate conclusion” was unlawful).

The Wood plaintiffs’ prevailing party status should not be denied simply because the district court chose to protect this vulnerable class by allowing the Medicaid program to continue uninterrupted. To hold otherwise would put plaintiffs in the untenable position of foregoing ’procedural relief or losing medical coverage, compounded by the possible forfeiture of a claim for attorneys’ fees. Likewise, it would force district courts to choose between exercising their equitable power to retain jurisdiction during an agency remand and maintaining plaintiffs’ potential eligibility for attorneys’ fees. We see no reason to impose such a Hobson’s choice on litigants or on the court.

The government urges that a Social Security remand provides an analogous context to support its position and to benchmark the circumstances of the Wood plaintiffs. To the contrary, the Social Security analogy supports our holding that the Wood plaintiffs were the prevailing party. Although we need not rely on the Social Security comparison for our rationale, we address it because this point was one of the government’s central arguments on appeal.

Sentence four and sentence six of 42 U.S.C. § 405(g) of the Social Security Act delineate the exclusive avenues for remand following judicial review of a decision by the Commissioner of Social Security. See Shalala v. Schaefer, 509 U.S. 292, 296, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). Under sentence four, the court can remand “a judgment affirming, modifying, or reversing the decision of the Commissioner,” while a sentence six remand arises from a “motion of the Commissioner of Social Security” or “upon a showing that there is new evidence which is material and that there is good cause for the failure to incór-porate such evidence into the record.” 42 U.S.C. § 405(g).

In Schaefer, the Supreme Court distinguished between situations that give rise to a,sentence four remand versus a sentence six remand, stating' that, regardless of whether the claimant is ultimately awarded benefits, “a party who wins a sentence-four remand order is a prevailing party.” 509 U.S. at 300-02, 113 S.Ct. 2625. However, based on the specific statutory language of § 405(g), courts are not permitted to retain jurisdiction during a sentence four remand. Id, at 297, 113 S.Ct. 2625.

The government suggests that because the district court retained jurisdiction here, the proper analogy is to a sentence six remand, where the party can only be “prevailing” if it ultimately obtains substantive relief. In focusing exclusively on the retention of jurisdiction, the government misses a key difference between sentences four and six, which is critical for the purposes of analogy to the EAJA. The distinction turns on the reason for the remand. In Flores v. Shalala, we applied the Schaefer principle that a claimant becomes a prevailing party after a sentence four remand regardless of whether there was an ultimate award of benefits. 49 F.3d 562, 568-69 (9th Cir. 1995), as amended on denial of reh’g (June 5, 1995). Distinguishing between the two kinds of Social Security remand, we explained:'

The district court reversed the Secretary’s decision because the Secretary incorrectly failed to consider all the evidence .... The remand here was not a sentence-six remand ... [which] may be issued only in two situations: Svhere the Secretary requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency.’

Id. at 569 (citation omitted). In Rueda-Menicucci, we extended this reasoning to BIA remands, because both BIA remands and sentence four remands result in a final judgment that the agency’s actions did not comply with the law, such that “we can perceive no difference between a ‘sentence four’ remand under § 405(g) and a remand to the BIA for further proceedings.” 132 F.3d at 495.

This case does not fit into the sentence six box. Instead, to the extent it is instructive, a sentence four remand provides a closer analogy to the current case: the Wood suit was remanded because of the Secretary’s failure to comply with the APA — in effect reversing the decision for failure to follow mandated procedures— not because of intervening facts or on a motion by the agency.

In sum, the retention of jurisdiction for practical and equitable reasons did not undermine the reality that the Wood plaintiffs were a prevailing party. The remand was not interim relief, but rather represented success on the APA challenge.

Conclusion

The Wood plaintiffs are entitled to prevailing party status with respect to the February 6, 2013 order remanding the approval of the Medicaid demonstration project to the Secretary. We remand to the district court to consider whether the government’s position was “substantially justified” under the EAJA. Thangaraja v. Gonzales, 428 F.3d 870, 874-76 (9th Cir. 2005).

Reversed and Remanded.

      . We decline to adopt the Federal Circuit's prevailing party analysis, which requires the district court to relinquish jurisdiction unless the party ultimately succeeds on the merits. See Former Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003); see also Dover v. McDonald, 818 F.3d 1316, 1320 (Fed. Cir. 2016) (granting attorney’s fees where the district court did not retain jurisdiction, remanded to the agency, and ordered further agency proceedings); Thompson v. Shinseki, 682 F,3d 1377, 1381 (Fed. Cir. 2012) ("[W]here the plaintiff secures a remand requiring further agency proceedings because of alleged error by the agency, the plaintiff qualifies as a prevailing party ... without- regard to the outcome of the agency proceedings where there has been no retention of jurisdiction by the court.” (alterations in original) (citation omitted) (internal quotation marks omitted)). In cases where, as here, the retention of jurisdiction flows from an equitable remand without vacatur, such a rule does not comport with the purpose of the EAJA or with the district court’s equitable authority to decline to vapate an illegal agency action during remand.

      . Our reasoning does not change in light of this court’s recent opinion in Ibrahim v. United States Department of Homeland Security, 835 F.3d 1048, 2016 WL 4527560 (9th Cir. 2016). There, we held that a district court should malee a holistic "single inquiry” as to whether the government’s conduct was "substantially justified" under the EAJA instead of making "discrete” findings regarding the government’s positions at specific stages of litigation. We also noted there that this court has not extended beyond the Social Security context the rule in Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998), that the district court may consider at the remand stage whether the government’s position was substantially justified for puiposes of the EAJA. See Ibra-him, 835 F.3d at 1056-58, 2016 WL 4527560, at *5-6 (discussing Corbin). In contrast, this case examines the prevailing party determination, not the distinct inquiry into substantial justification as in Ibrahim. In Ibrahim, there was no possibility that Ibrahim could be considered a prevailing party prior to the ultimate resolution of her claims. But here the Wood plaintiffs prevailed on their claim that the Secretary violated APA procedures, a question that is not dependent on the ultimate success of their substantive claims. Therefore, because this case does not address the substantial justification inquiry of the EAJA and especially because our ruling does not depend upon an extension of Corbin, Ibrahim does not change the result.


source: Caselaw Access Project

author: THOMAS, Chief Judge:

license: Public Domain

text:
    SUNEARTH, INC., a California corporation; The Solaray Corporation, a Hawaiian corporation, Plaintiffs-Appellants, v. SUN EARTH SOLAR POWER CO., LTD., FKA Ningbo Solar Electric Power Co., Ltd., a Chinese limited liability company; NBSolar USA Inc., a California corporation, Defendants-Appellees. SunEarth, Inc., a California corporation; The Solaray Corporation, a Hawaiian corporation, Plaintiffs-Appellants, v. Sun Earth Solar Power Co., Ltd., FKA Ningbo Solar Electric Power Co., Ltd., a Chinese limited liability company; NBSolar USA Inc., a California corporation, Defendants-Appellees.
    No. 13-17622, No. 15-16096
    United States Court of Appeals, Ninth Circuit.
    Filed September 14, 2016
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition shall not be cited as precedent by or to any court of the Ninth Circuit.


author: PREGERSON, Senior Circuit Judge:

text:
    Marlene HERRERA; Edward Lopez; Service Employees International Union, United Healthcare Workers-West, United Service Workers West; Alejandro Barrios, Plaintiffs-Appellants, v. COMMAND SECURITY CORPORATION, DBA Aviation Safeguards, a New York Corporation, Defendant-Appellee.
    No. 14-55525
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 11, 2016 Pasadena, California
    Filed September 14, 2016

      David P. Dean (argued) and Darin M. Dalmat, James & Hoffman P.C., Washington, D.C.; Antonio Ruiz, Weinberg Roger & Rosenfeld PC, Alameda, California; for Plaintiffs-Appellants.
    Mark S. Spring (argued), Carothers Dí-gante & Freudenberger LLP, Sacramento, California; Alfredo Ortega and Steven M. Schneider,. Mitchell Silberberg & Knupp LLP, Los Angeles, California; for Defendant-Appellee.
    Before: HARRY PREGERSON, RICHARD A. PAEZ, and JACQUELINE H. NGUYEN, Circuit Judges.
   OPINION

PREGERSON, Senior Circuit Judge:

INTRODUCTION

This ease arises from a dispute between a union and an employer who wished to remove the union as its employees’ designated representative. The employer is Command Security Corporation d/b/a Aviation Safeguards (“Aviation Safeguards”). The union is the United Service Workers West of the Service Employees International Union (“the Union”). The Union sued Aviation Safeguards for violations of the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-165. Aviation Safeguards moved for summary judgment, and the Union filed a cross-motion for summary judgment. The District Court granted Aviation Safeguards’s motion for summary judgment and denied the ■ Union’s cross-motion for summary judgment.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the grant of summary judgment in favor of Aviation Safeguards..

We hold that equitable tolling principles apply to the Union’s unlawful interference and coercion claim under the RLA, 45 U.S.C. § 152, Third and Fourth. We remand and direct the District Court to grant summary judgment in favor of the Union on its claim for unlawful interference and coercion under the RLA, 45 U.S.C. § 152, Third and Fourth.

We also hold that the District Court erred in finding that it lacked subject matter jurisdiction over the Union’s status quo claim under the RLA, 45 U.S.C. §§ 152, Seventh; 155; and 156. We remand this claim for the limited purpose of determining whether this claim is timely and, if the claim is timely, we direct the District Court to grant summary judgment in favor of the Union on its status quo claim under RLA §§ 152, Seventh; 155; and 156.

We remand and direct the District Court to grant summary judgment in favor of the Union on its failure to mediate claim under the RLA, 45 U.S.C. §152, First.

FACTS AND PROCEDURAL BACKGROUND

Aviation Safeguards employs workers at Los Angeles International Airport (“LAX”). In 2007, a majority of Aviation Safeguards’s LAX employees signed authorization cards, designating the Union as their representative. The Union sought voluntary recognition from Aviation Safeguards by presenting the' signed authorization cards to Aviation Safeguards. Aviation Safeguards agreed to recognize the Union as the employees’ designated representative. In November 2008, Aviation Safeguards and the Union entered into a collective bargaining agreement set to expire in September 2010. In December 2009, before the expiration of the collective bargaining agreement, the parties negotiated a second agreement, set to expire in November 2012.

As part of the collective bargaining agreement, Aviation Safeguards made monthly contributions to a health care trust fund. These payments rose annually: in 2009, Aviation Safeguards paid $585 per month for each employee; in 2010, $620; and in 2011, $674. When the 2011 increases took place, Aviation Safeguards’s LAX General Manager Joe Conlon wrote a letter to the Union President, saying that they had reached a “crossroad.” Conlon refused the Union President’s request to discuss Aviation Safeguards’s concerns. Instead, Aviation Safeguards conducted a survey to assess the likelihood that its employees would revoke the Union’s status as representative. In an August 15, 2011, email to its managers, Aviation Safeguards Human Resources Manager Jon Natividad wrote, ‘We are trying to get an initial estimate of the numbers we have and the individuals we will need to actively convince to come over to our side and sign to de-certify.”

At the start of September 2011, Aviation Safeguards began holding anti-union meetings with employees. Aviation Safeguards drafted a Union Removal Petition, which it encouraged employees to sign. The Union claims that shortly thereafter, a group of employees delivered to the LAX main office a Pro-Union Petition signed by a majority of the employees. Allegedly, this Pro-Union Petition included 39 signatures of employees who had previously signed the Union Removal Petition.

By October 12, 2011, Aviation Safeguards had failed to obtain a majority of employees’ signatures on the Union Removal Petition. On October 13, 2011, Aviation Safeguards hired Cruz & Associates, a self-proclaimed union avoidance firm, to assist its union removal efforts. With the Cruz & Associates team, Aviation Safeguards held ostensibly mandatory meetings with its employees, during working hours, to foment anti-union sentiment and obtain Union Removal Petition signatures. Aviation Safeguards hid the true purpose of these meetings from employees. At these meetings, Cruz & Associates team members and Aviation Safeguards representatives told employees that their wages would increase if they got rid of the Union.

On December" 2, 2011, Aviation Safeguards was 23 employee signatures short of majority (227) support, so Aviation Safeguards hired new employees who were immediately solicited for Union Removal Petition signatures. By the end of December, Aviation Safeguards claimed that it obtained 246 Union Removal Petition signatures, which allegedly included the 39 signatures of employees who later signed the Pro-Union Petition.

On December 30, 2011, Aviation Safeguards announced that it would no longer recognize the Union and planned to change its employees’ health, benefits and wages starting February 1, 2012.

The Union applied to the National Mediation Board (“the Mediation Board”) for mediation services on January 3, 2012. The Mediation Board conducted a pre-docket-ing investigation that lasted nearly six months to determine whether to mediate the dispute.

Aviation Safeguards asserted that it began enrolling employees in non-union health insurance at the end of January 2012, but that it had not completed the process by the start of February 2012. In the meantime, in January 2012, the Union claimed that a majority of employees (258) had signed the Pro-Union Petition.

On February 6, 2012, former L.A. City Councilmember Bill Rosendahl publicly counted- the number of Aviation Safeguards employee signatures and -confirmed that a majority of the employees supported the Union. By May 31, 2012, the Union also stated that it obtained 240 signed authorization cards from Aviation Safeguards employees reaffirming and reauthorizing the Union as their designated representative. Notably, 139 of the employees that allegedly signed either the Pro-Union Petition or an authorization card had previously signed the Union Removal Petition and thereby revoked their prior anti-union support.

Aviation Safeguards did not stop remitting Union dues until February 2012. It is unclear, however, when' Aviation Safeguards stopped collecting Union dues. Aviation Safeguards argues that it stopped collecting Union dues in December 2011, and that Union dues collected in December were merely remitted the following month, in January 2012. But, if Union dues were remitted into February, as the Union states, then Union dues were likely still being collected in January.

The Mediation Board finished its nearly six-month pre-docketing investigation and docketed the case on June 26, 2012. Two days later, Aviation Safeguards informed the Mediation Board that it would not participate in mediation.

The Union filed suit against Aviation Safeguards in Federal District Court on July 31, 2012. The Union claimed coercion and interference with Union representation under the RLA, 45 U.S.C. § 152, Third and Fourth; failure to mediate under the RLA, 45 U.S.C. § 152, First; and status quo violations under the RLA, 45 U.S.C. § 156.

Aviation Safeguards moved for summary judgment, argiiing that the Union’s claims were barred by the RLA’s statute of limitations and that the allegations constituted a representation dispute under the RLA, 45 U.S.C. § 152, Ninth, within the exclusive jurisdiction of the Mediation Board. The Union filed a cross-motion for summary judgment.

•The District Court granted Aviation Safeguards’s motion for summary judgment and denied the Union’s cross-motion for summary judgment. The Union appeals the grant of summary judgment and the denial of its cross-motion for summary judgment.

STANDARD OF REVIEW

We review de novo the District Court’s grant of summary judgment. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). Additionally, when the facts are not in dispute, statute of limitations accrual decisions, are reviewed de novo. Galindo v. Stoody Co., 793 F.2d 1502, 1508 (9th Cir. 1986). Where, as here, the parties have both filed summary judgment motions, this court “consider^] each party’s evidence to evaluate whether summary judgment was appropriate.” Johnson, 658 F.3d at 960.

Where the record has been sufficiently developed through .the parties’ cross-motions and briefs on appeal, we may direct the District Court to grant an appellant’s cross-motion for summary judgment. Keystone Land & Dev. Co. v. Xerox Corp., 353 F.3d 1070, 1076-77, 1076 n.7 (9th Cir. 2003).

DISCUSSION

I. The District Court Erred in Granting Aviation Safeguards Summary Judgment on the Union’s § 152, Third and Fourth Claim for Unlawful Interference and Coercion

The Union alleges that Aviation Safeguards solicited and coerced Union Removal Petition signatures, bypassed the Union to solicit employees directly, and refused to recognize and negotiate with the Union, and thus violated the RLA’s unlawful interference and coercion provisions. § 152, Third and Fourth. Aviation Safeguards argues, and the District Court held, that the Union’s § 152, Third and Fourth claim is time-barred under the RLA’s six-month limitation period. We disagree. We hold that the Union’s § 152, Third and Fourth claim is not time-barred. Further, we hold that Aviation Safeguards violated § 152, Third and Fourth. Accordingly, we remand the Union’s § 152, Third and Fourth claim and direct the District Court to grant summary judgment in favor of the Union on this claim.

A. The Union’s § 152, Third and Fourth Claim for Unlawful Interference and Coercion Is Not Time-Barred

Claims under the RLA must be brought within six months after their accrual date. Int’l Ass’n of Machinists & Aerospace Workers v. Aloha Airlines, Inc., 790 F.2d 727, 735 (9th Cir. 1986) (articulating a six-month statute of limitations period for RLA claims). However, “[i]t is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute.” Young v. United States, 535 U.S. 43, 49, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) (internal quotation marks and citations omitted).

Equitable tolling may apply where it effectuates Congress’s intent in enacting the RLA. Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 427, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394, 396 (9th Cir. 1980). “[T]o determine congressional intent, we must examine the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act.” Burnett, 380 U.S. at 427, 85 S.Ct. 1050.

Statutes of limitations are meant to ensure fairness to defendants by giving them timely notice of the claims against them. Mt. Hood, 616 F.2d at 400, However, this policy “is frequently outweighed ... where the interests of justice require vindication of the plaintiffs rights.” Burnett, 380 U.S. at 428, 85 S.Ct. 1050. Equitable tolling may pause the running of the statute of limitations where a plaintiff has diligently pursued her claim but circumstances out of the plaintiffs control prevented her from timely filing. Lozano v. Montoya Alvarez, — U.S. -, 134 S.Ct. 1224, 1231-32, 188 L.Ed.2d 200 (2014); Wong v. Beebe, 732 F.3d 1030, 1052-53 (9th Cir. 2013) (en banc), aff'd and remanded on other grounds sub nom. United States v. Wong, — U.S. -, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015).

Here, Aviation Safeguards likely-had notice of the Union’s disputes as early as September 2011, when the Union submitted a Pro-Union Petition notifying Aviation Safeguards that the Union did not agree with its attempts to remove the Union. Additionally, the Union diligently pursued its claims by resorting to RLA mediation procedures. After Aviation Safeguards announced on December 30, 2011, that it would no longer recognize the Union, the Union promptly applied to the Mediation Board for mediation services on January 3, 2012, the next business day.

Further, the Union’s delay in filing its federal claims reasonably resulted from its reliance on the remedies set forth in the RLA. The Mediation Board’s pre-docket-ing investigation lasted nearly six months. At no point during that time did Aviation Safeguards indicate a refusal to mediate. Aviation Safeguards waited until after the Mediation Board finished its nearly six-month pre-docketing investigation before informing the Union that it would not participate in mediation. The Union should not be punished for the Mediation Board’s or Aviation Safeguards’s delays.

Congress’s purpose in enacting the RLA was “to encourage collective bargaining ... to prevent, if possible, wasteful strikes and interruptions of interstate commerce.” Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 148, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969). To accomplish this, Congress created an “elaborate” remedial scheme under the RLA that requires the parties to make “every reasonable effort” to settle disputes. 45 U.S.C. § 152, First; Detroit & Toledo Shore Line R.R. Co., 396 U.S. at 148-49, 90 S.Ct. 294. “[E]xhaustion of the [RLA’s] remedies [is] an almost interminable process,” with procedures that are “purposely long and drawn out” in the hopes that parties will eventually reach an agreement. Detroit & Toledo Shore Line R.R. Co., 396 U.S. at 149, 90 S.Ct. 294 (internal quotation marks omitted).

This court has recognized that equitable tolling may effectuate the policies underlying the RLA. See Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 538 (9th Cir. 2011) (citing Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788 (1944)). Tolling the statute of limitations promotes the use of the RLA’s “virtually endless” mediation mechanisms, thereby preventing interruptions in commerce. See Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n, 491 U.S. 299, 311, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989) (internal quotation marks omitted).

Aviation Safeguards had notice of the Union’s claims, and the Union acted reasonably when it attempted to use the extensive remedies afforded by the RLA. Under these circumstances, the Union’s claim should not be time-barred. We therefore conclude that the District Court erred in failing to toll the statute of limitations for the Union’s unlawful interference and coercion claim.

B. Aviation Safeguards Violated § 152, Third and Fourth for Unlawful Interference and Coercion

Section 152, Third of the RLA prevents an employer from interfering with, influencing, or coercing employees’ designation of a representative. § 152, Third. Aong the same lines, § 152, Fourth prevents an employer from interfering with a union’s operations and specifically forbids influence or coercion as part of “an effort to induce [employees] to join or remain or not to join or remain members of any labor organization.” § 152, Fourth; see also Tex. & New Orleans R.R. Co. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548, 568, 50 S.Ct. 427, 74 L.Ed. 1034 (1930) (describing unlawful influence over employees’ self-organization and designation of representatives).

The Union alleges that Aviation Safeguards violated these two provisions when it solicited Union Removal. Petition signatures, bypassed the Union to solicit employees directly, and refused to recognize and negotiate with the Union. Concluding that the Union’s claims were time-barred, the District Court did not address the merits of this claim. Likewise, Aviation Safeguards asserts only that the Union’s interference and coercion claims are time-barred.

Federal courts have prudently drawn analogies to the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-169, in many RLA cases. See, e.g., Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377, 383, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969). This court has looked to the NLRA when analyzing an unlawful coercion claim under the RLA. See Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1015-16 (9th Cir. 1990) (stating that NLRA § 158(a)(2) provides an “apt analog[y]” to RLA § 152, Fourth,' and that, like the RLA, the relevant section of the NLRA “is intended to secure for employees the right of free choice”).

Although this court has not analogized explicitly to NLRA § 158(a)(1) in analyzing interference or coercion under RLA ,§ 152, Third and Fourth, we; find that an apt analogy exists. Section 158(a)(1) of the NLRA states that it. is unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title” — *namely, the right to “self-organization” and to “bargain collectively through representatives of their own choosing.” 29 U.S.C. §§ 157, 158(a)(1). As articulated in Ba/rthelemy, the NLRA guides this court’s protection of employees’ rights of free choice in designating their representatives. 897 F.2d at 1016.

Analogizing to NLRA § 158(a)(1), we conclude that Aviation Safeguards unlawfully interfered with the Union’s activities and coerced employees to remove the Union. As this court has stated, “[although it is not an unfair labor practice for an employer to inform employees that they have a right to revoke their union support, it is an unfair labor practice to actively solicit revocations in an otherwise coercive atmosphere. It is also an unfair labor practice for an employer to directly aid employees in revoking their union authorization.” L’Eggs Prods., Inc. v. NLRB, 619 F.2d 1337, 1346 (9th Cir. 1980) (internal citation omitted) (discussing NLRA interference under § 158(a)(1)); accord Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1252 (2d Cir. 1992) (“[T]he Union asserts that Virgin discharged employees who were engaged in a strike designed to enforce the [Mediation Board] certification and solicited employees to sign a prepared statement repudiating the Union. These actions, if proven, constitute interference by the carrier with the employees’ selection of a representative.”).

Aviation Safeguards did not just “directly aid employees in revoking their union authorization,” it initiated and orchestrated the entire removal effort. See L’Eggs, 619 F.2d at 1346. Aviation Safeguards actively solicited employees’ signatures for a Union Removal Petition that it drafted. It held employee meetings with representatives from;Cruz & Associates, the union avoidance, firm, in which its representatives told employees that wages would increase if they got rid of the Union. Moreover, it held these anti-union meetings during normal working hours, hid the true purpose of the meetings, and made attendance at the meetings appear mandatory. When it was still short of Union Removal Petition signatures in December 2011, Aviation Safeguards actively targeted its new hires for signatures as soon as their employment became official.

Aviation Safeguards therefore unlawfully coerced and interfered with its employees’ rights to designate their representative, violating. § 152, Third and Fourth. We remand this claim, directing the District Court to grant summary judgment in favor of the Union on this claim, and to conduct further proceedings to determine the issue of damages and other relief.

II. The District Court Had Jurisdiction Over the Union’s Major Dispute Claim for Status Quo Violations

The Union alleges that. Aviation Safeguards unilaterally altered the collective bargaining agreement, and thus violated the RLA’s status quo provisions. Aviation Safeguards argues, and the District Court held, that the court lacked jurisdiction over this claim because it constitutes a representation dispute. We agree with the Union. We hold that the dispute is a major dispute, .relating to employer interference and status quo violations. Because the District Court had jurisdiction over this major dispute, we remand the claim.

A. The District Court Erred in Finding That the Union’s Claim Constitutes a Representation Dispute

The District Court held that the Union’s claim constitutes a representation dispute under § 152, Ninth. Representation disputes are within the exclusive jurisdiction of the Mediation Board. The District Court therefore dismissed the claim for lack of jurisdiction.

We have described major, minor, and representation disputes as follows:

Major disputes comprise a class of disputes concerning rates of pay, rules or working conditions, and relate to the formation of collective bargaining agreements or efforts to secure them. The second class of disputes, known as minor disputes, grow out of grievances. These involve controversies over the meaning of an existing collective bargaining agreement in a particular fact situation. Therefore, under Congress’s scheme, major disputes seek to create contractual rights, minor disputes to enforce them. Finally, representation disputes involve defining the bargaining unit and determining the employee representative for collective bargaining.

Aircraft Serv. Int’l, Inc. v. Int’l Bhd. of Teamsters, 779 F.3d 1069, 1081 (9th Cir. 2015) (en banc) (internal citations, quotation marks, and alterations omitted). As the District Court properly noted, a major dispute includes “attempts by ... management to impose new obligations or create new rights.” Ass’n of Flight Attendants v. Mesa Air Grp., Inc., 567 F.3d 1043, 1047 (9th Cir. 2009). When an employer seeks to change a term in a collective bargaining agreement, a major dispute arises. See Consol. Rail Corp., 491 U.S. at 302, 109 S.Ct. 2477; Air Line Pilots Ass'n Int’l v. E. Air Lines, Inc., 869 F.2d 1518, 1523 (D.C. Cir. 1989) (“[I]f a party announces an intent to repudiate the [collective bargaining] agreement by adopting a unilateral change in the terms, it triggers a major dispute.”).

A representation dispute, on the other hand, arises when there is bona fide confusion about who is the employees’ representative. See, e.g., Int’l Bhd. of Teamsters, Airlines Div. v. Allegiant Air, LLC, 788 F.3d 1080, 1087-89 (9th Cir. 2015) (discussing representation disputes).

While the boundaries are not always clear-cut, this court has maintained that a major dispute exists when an employer acts to undermine a union’s representative status. Air Line Pilots Ass’n, Int’l v. Transamerica Airlines, Inc., 817 F.2d 510, 515 (9th Cir. 1987). In Transamerica, the union alleged that the employer created a subsidiary company, to which it transferred the union employees’ existing business in an effort to take work from the union. Id. We reversed the District Court’s finding that a representation dispute existed and instead held that the union alleged a major dispute within the federal court’s jurisdiction.' Id. Based on the employer’s actions, we also held that the union stated a claim under RLA § 152, Third and Fourth and under the RLA’s status quo provision. Id. at 516.

Aviation Safeguards claims that the Union lost majority support, and that this change in support justified its removal of the Union. However, Aviation Safeguards constructed the dispute with the Union by creating the Union Removal Petition and unlawfully soliciting Aviation Safeguards’s employees to sign it. Aviation Safeguards cannot manufacture a representation dispute. Moreover, labor violations cannot justify revoking a Union’s representative status. See, e.g., Frankl v. HTH Corp., 650 F.3d 1334, 1361 (9th Cir. 2011) (“[E]mployers may not withdraw recognition in a context of serious unreme-died unfair labor practices tending to cause employees to become disaffected from the union.”) (quoting Levitz Furniture Co. of the Pac., Inc., 333 N.L.R.B. 717, 717 n.1 (2001)) (applying similar principles in the NLRA context); Transamerica, 817 F.2d at 515; In re Virgin Atl. Airways Emps. Ass’n, 24 NMB 575, 621 (1997) (“By ... compelling] attendance at a meeting at which authorization cards were collected, the carrier ... interfered, influenced or coerced employee freedom of choice.... Cards collected under such circumstances cannot be regarded as a true and free expression of the employees’ desires with regard to representation.”).

Aviation Safeguards unlawfully interfered with the Union’s representation, in violation of § 152, Third and Fourth. Purportedly believing that it acted lawfully, Aviation Safeguards eliminated the wage and health care terms of the Union’s collective bargaining.agreement. Because the District Court did not consider the Union’s unlawful interference and coercion claim, finding that it was time-barred, it did not consider the unlawful behavior at the heart ed Aviation Safeguards’s claimed representation dispute. The District Court erred when it held that the Union’s claim constitutes a representation dispute and dismissed the claim for lack of jurisdiction.

B. The Union’s Claim Constitutes a Status Quo Violation, Which Is a Major Dispute

The- RLA imposes upon employees and carriers an obligation to maintain existing working conditions until the RLA’s internal mechanisms for dispute resolution are- completed. See, e.g., Detroit & Toledo Shore Line R.R. Co., 396 U.S. at 150-51, 90 S.Ct. 294 (describing “three status quo provisions in the Act, each covering a different stage of the major dispute settlement procedures”). This obligation is imposed through several interlocking provisions, see 45 U.S.C. §§ 152, Seventh; 155; 156, that “must be read in conjunction with the implicit status quo requirement” of § 152, First, which imposes a duty on both parties to “ ‘exert every reasonable effort’ to settle disputes without interruption to interstate commerce.” Detroit & Toledo Shore Line R.R. Co., 396 U.S. at 151, 90 S.Ct. 294. “The obligation of both parties during a period in which any of these status quo provisions is properly invoked is to preserve and maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.” Id. at 152-53, 90 S.Ct. 294.

RLA § 156 provides that employers and representatives must give at least thirty-days’ written notice of any intended changes to a collective bargaining agreement. 45 U.S.C. § 156. This obligation arises “from the first notice of a proposed change in agreements up to and through any proceedings before the National Mediation Board.” Detroit & Toledo Shore Line R.R. Co., 396 U.S. at 150, 90 S.Ct. 294. In particular, § 156 requires that,

In every case where such notice of intended change has been given, or conferences are being held with reference thereto, or the services of the Mediation Board have been requested by either party, ... rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155 of this title, by the Mediation Board....

The Union properly sought resolution through the Mediation Board when Aviation Safeguards threatened to remove the Union. After the Union requested the Mediation Board’s services, and before the Mediation Board had even docketed the case, and relying.on its unlawfully obtained Union Removal Petition, Aviation Safeguards altered the status quo when it ceased to recognize the Union and thereby altered wages, health insurance benefits, and other working conditions. Such a change in the working conditions violated RLA § 156’s status quo provisions, creating a major dispute. 45 U.S.C. § 156.

The Union thus stated a major dispute claim under the RLA’s status quo provisions set forth in §§ 152, Seventh; 155; and 156. We remand this major dispute claim for the limited purpose of determining whether this claim is timely and, if the claim is timely, we direct the District Court to grant summary judgment in favor of the Union on this claim.

III. Aviation Safeguards Violated § 152, First When It Refused to Mediate with the Union

Under the RLA, employers and unions must “exert every reasonable effort to make and maintain agreements” and “to settle all disputes” to avoid strikes or other disruptions to commerce. 45 U.S.C. § 152, First. As we have determined, “[t]he duty to ‘exert every reasonable effort’ to reach an agreement is ‘a legal obligation, enforceable by whatever appropriate means might be developed on a case-by-case basis.’ ” Ass’n of Flight Attendants, AFL-CIO v. Horizon Air Indus., Inc., 976 F.2d 541, 543 (9th Cir. 1992) (quoting Chi. & N. W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 577, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971)); see also Am. Train Dispatchers Dep’t v. Fort Smith R.R. Co., 121 F.3d 267, 270-71 (7th Cir. 1997) (affirming the District Court’s grant of. a permanent injunction, and holding that an employer violated § 152, First by refusing to attend Mediation Board negotiation sessions).

In Horizon Air, we affirmed a finding that an employer violated its § 152,- First duty by engaging in “surface bargaining” when it offered terms less favorable than the status quo. 976 F.2d at 547. We considered the substance of negotiations “to determine whether they were of such a nature as to indicate an intention not to reach an agreement at all” and were merely “go[ing] through the motions with a desire not to reach an agreement.” Id. at 544-45 (internal quotation marks omitted).

This court has held that superficial attempts at negotiations violate the duty to “exert every reasonable effort.” Id. at 547. Flatly refusing to participate in mediation surely violates this duty as well, as it indicates absolutely no effort, let alone every reasonable effort, to make or maintain an agreement. We therefore remand and direct the District Court to grant summary judgment in favor of the Union on this claim, and to conduct further proceedings to determine the issue of damages and other relief.

CONCLUSION

To summarize: we reverse the District Court’s grant of summary judgment in favor of Aviation Safeguards,

1.We hold that equitable tolling principles apply to the Union’s unlawful interference and coercion claim against. Aviation Safeguards. Accordingly, we remand and direct the District Court to grant the Union’s cross-motion for summary judgment under RLA § 152, Third and Fourth, and to conduct' further proceedings to determine the issue of damages and other relief.

2. We hold that the District Court has subject matter jurisdiction over the Union’s status quo claim under RLA §§ 152, Seventh; 155; and 156. We emphasize that this claim does not constitute a representation dispute under RLA § 152, Ninth. We remand to the District Court for the limited purpose of determining whether this claim is timely and, if the claim is timely, we direct the District Court to grant the Union’s cross-motion for summary judgment under RLA §§ 152, Seventh; 155; and 156.

3. We hold that Aviation Safeguards unlawfully refused to mediate. We remand and direct the District Court to grant the Union’s cross-motion for summary judgment under RLA § 152, First, and to conduct further proceedings to determine the issue of damages and other relief.

Costs are awarded to Plaintiffs-Appellants.

REVERSED and REMANDED.

      . In September 2011, Aviation Safeguards executives calculated that they could save around $800,000 in 2012 if they got rid of the Union.

      . At the time of Aviation Safeguards’s removal efforts, there were 452 employees at LAX who were covered by th& collective bargaining agreement. To decertify or remove the Union, Aviation Safeguards required signatures from a majority of the employees, at least 227.

      . As the Union points out, these 39 employees who signed the Union Removal Petition and then' later signed the Pro-Union Petition should be considered pro-union. By signing the Pro-Union Petition, théy' effectively revoked their previous signatures in support of the Union Removal Petition,

      . Kathleen McManus, Aviation Safeguards Office Manager, sent an email to Aviation Safeguards’s management stating in detail the schedule and strategy for its upcoming anti-union meetings. The email cautions Aviation Safeguards's management: "[P]lease do not tell [the employees] the reason for the meeting. Just simply say it is a management meeting.”

      . The Union also notes .that the Union Removal Petition included signatures from several managers, whom the Union would not represent.

      . Aviation Safeguards disputes the validity of the public count because it claims that any Pro-Union Petition signatures were never validated.

      . There is a related case between the parties to this appeal, California Service Employees Health & Welfare Trust Fund v. Command Security Corp., 12-ev-10967 (C.D, Cal. July 31, 2014), which was recently decided in the District Court by the same judge and has been appealed to this court. That case was brought by the health care trust fund that received payments from Aviation Safeguards as part of the Union’s collective bargaining agreement. Id, The District Court’s ruling in the Welfare Trust Fund case relied on its decision presently before this court. Id. at 5-7. In the case now before us, the District Court found that Aviation Safeguards had no obligation to deal with an uncertified union, and that it lawfully withdrew recognition. Consequently, Aviation Safeguards was not obligated to continue making healthcare benefit payments to the Welfare Trust. Id. Because we reverse the District Court with respect to its ruling that Aviation Safeguards lawfully withdrew the Union’s recognition, our decision may have some bearing on the appeal of the Welfare Trust Fund case,

      . In Aloha Airlines, Inc., we commented that "the application of the tolling doctrine to future actions of this type will be extremely limited.” 790 F.2d at 738 n.4. The facts of this case fairly place it among the class of cases for which such tolling is appropriate.

      . Aviation Safeguards may have had notice even earlier in 2011, when the Union attempted to discuss Aviation Safeguards’s concerns, but Aviation Safeguards refused.

      . Aviation Safeguards notified the Union of its refusal to mediate on Thursday, June 28, 2012. Assuming Aviation Safeguards’s asserted accrual date of December 30, 2011, Aviation Safeguards’s notice left the Union with just one remaining business day (a Friday) to file within the six-month limitations window.

      . In Conley v. International Brotherhood of Electrical Workers, Local 639, 810 F.2d 913, 915 (9th Cir. 1987), we held that "[ejquitable tolling is most appropriate when the plaintiff is required to avail himself of an alternate course of action as a precondition to filing suit.” Thus, where an "NLRB action was merely optional,” allowing tolling "would frustrate the national policy of prompt resolution of labor disputes.” Id. at 916. While it is debatable whether the Union was required to bring its dispute before the Mediation Board, the purpose of the RLA is to avoid “any interruption to commerce.” Consol. Rail Corp. v. Ry. Labor Execs.' Ass’n, 491 U.S. 299, 310, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989) (internal quotation marks omitted). The RLA's purpose stands in contrast to the NLRB’s purpose of securing a "prompt resolution of labor disputes.” Conley, 810 F.2d at 916. Because mediation, rather than litigation, prevents "interruption to commerce,” the RLA's purpose arguably supports tolling while parties utilize the Mediation Board to seek resolution of their claims. Further, filing a claim with the NLRB is itself an adversarial action, whereas mediation is a tool generally used to prevent litigation. Thus, requiring the Union to file suit while mediation is pending is nonsensical.

      . The Union’s direct dealing claim alleges the same behavior as its solicitation claim, and to the extent that such dealing was coercive, we address it in our discussion of Aviation Safeguards’s solicitation of the Union Removal Petition. In addition, Aviation Safeguards’s refusal to recognize the’Union was a result of the unlawful solicitation of Union Removal Petition signatures.

      . NLRA § 158(a)(2) states that it is an unfair employer practice "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”

      . Further, we disagree with the District Court’s contention that Aviation Safeguards was not obligated to apply to the Mediation Board to remove the Union as the designated representative. As we explained in Allegiant Air, a union may become a legally designated representative through either Mediation Board certification or voluntary recognition. 788 F.3d at 1090-91. An employer has a duty to "treat with,’! i.e., negotiate with, a certified union, and that same duty exists once an employer decides to voluntarily recognize a union; certification and voluntary recognition are two avenues to become a legally designated representative. Id. at 1089-92. Aviation Safeguards therefore had the same duty to the Union, as a voluntarily recognized representative, as it would have had to a certified union, to apply to the Mediation Board to seek union removal. See also, e.g., In re Emps. of the Pan Am. Airways, Inc., 1 NMB 381, 386 (1945) (”[T]he voluntary representation previously established between the Carrier and the various organizations and associations representing its employees should be considered as effective until changed in accordance with the provision of Section 2, Ninth, of the Act.”).

      . The Union alleges that Aviation Safeguards did not stop remitting Union dues until February 2012. However, it is unclear when Union dues ceased being collected. This disputed fact bears on when the Union's § 156 status quo violation claim began to accrue. In light of its jurisdictional ruling on this claim, the District Court had no reason to address the statute of limitations and did not make a factual finding as to when this claim began to accrue. This is an issue of fact that should be decided in the first instance by the District Court on remand.

      . The District Court did not address the Union's § 152, First claim, likely because it found a representation dispute, which would have eliminated the availability of mediation. As the Union correctly argued, this claim is not barred by the six-month limitations period starting on December 30, 2011, because the claim necessarily accrued when Aviation Safeguards refused to participate in mediation.