Schwartz Partners Packaging, LLC v. National Labor Relations Board

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SCHWARZ PARTNERS PACKAGING,
LLC, doing business as Maxpak,

Plaintiff, Civil Action No. 13-343 (BAH)

v. Judge Beryl A. Howell

NATIONAL LABOR RELATIONS BOARD,
et al.,

Defendants.

MEMORANDUM OPINION

This action for declaratory and injunctive relief arises out of a union election conducted

at the plaintiff, Schwarz Partners Packaging, LLC’s, manufacturing facility in Lakeland, Florida.

Compl. ¶ 2, ECF No. 1. The plaintiff challenges the actions of the defendant, the National Labor

Relations Board (“NLRB”), 1 in “sustaining certain objections to [the union] election” and

“directing a ballot count and second election” at the plaintiff’s plant on grounds that “the Board

lacked a quorum and had no authority to act.” Id. ¶ 1. Pending before the Court are two

motions: the plaintiff’s Motion for Summary Judgment (“Pl.’s Mot.”), ECF No. 12, and the

defendants’ Motion to Transfer or, in the alternative, Motion to Dismiss (“Defs.’ Mot.”) for lack

of subject matter jurisdiction, ECF No. 13. For the reasons stated below, the defendants’ motion

to dismiss is granted. The plaintiff’s motion for summary judgment and the defendants’ motion

to transfer are denied as moot.

1
The NLRB’s Acting General Counsel is also named as a defendant for the purposes of injunctive relief only, see
Compl. ¶ 6, and not because he is alleged to have been involved in any of the conduct at issue, see id., generally
(seeking injunction against Defendant Acting General Counsel to prevent the filing of unfair labor practice charge
against plaintiff). The plaintiff is not challenging the Acting General Counsel’s appointment or the potential validity
of his actions. See id., generally; see also Defs.’ Mem. Supp. Mot. Transfer or Mot. Dismiss (“Defs.’ Mem.”) at 6
n.3, ECF No. 13. Unless otherwise mentioned, reference to actions of “the defendants” in this memorandum
opinion refers to the actions of defendant NLRB.

1
I. BACKGROUND

The plaintiff manufactures packaging material at its Lakeland facility under the business

name Maxpak and “is an employer within the meaning of section 2(2) of the National Labor

Relations Act (“NLRA”).” Compl. ¶ 4; see also Decl. of Joseph A. Kennedy, Director of Human

Resources, Schwarz Partners Packaging, LP (“Kennedy Decl.”) ¶ 1, ECF No. 12-1. 2 On March

15, 2012, the NLRB held an election (the “first election”) at the plaintiff’s Lakeland facility to

determine whether the United Steelworkers International Union (the “Union”) would represent

certain employees. Compl. ¶ 12. More than ninety-six percent of the plaintiff’s Lakeland

workforce voted in the election. See Decl. of David Cohen, NLRB Regional Atty., Region 12

(“Cohen Decl.”) Ex. D at 63, ECF No. 13-1. Following the election, the Union challenged the

validity of two ballots on the grounds that ineligible employees cast them. Compl. ¶ 12. Since

the vote was very close, with thirty-nine votes in favor of the Union and thirty-eight votes

opposed, these challenged ballots were potentially determinative. Id.

The objections posed by the Union and the plaintiff to the conduct of the election,

including the ballot challenges, were presented to an NLRB hearing officer whose findings were

eventually reviewed by a three-member panel of the NLRB, consisting of Chairman Mark

Pearce, Member Richard Griffin and Member Sharon Block. Id. ¶ 13; see Compl. Ex. 1 (NLRB

Decision and Direction in Schwarz Partners Packaging, LLC, D/B/A/ Maxpak v. United

Steelworkers International Union, Case No. 12-RC-073852 (N.L.R.B. Aug. 29, 2012)) (“NLRB

Decision”) at 1–2, ECF No. 1-1. The plaintiff argued to the panel that Members Griffin and

Block were not valid members of the NLRB because their “purported recess” appointments were

“unconstitutional and void and that the Board therefore lacked a quorum to act.” Compl. ¶ 13.

2
The facts discussed are taken from the Complaint, the plaintiff’s declaration in support of its Motion for Summary
Judgment, and the declarations filed in support of the defendants’ Motion to Dismiss.

2
The panel considered and rejected this argument. NLRB Decision at 1 n.3, ECF No. 1-1 (citing

Ctr. for Social Change, Inc., 358 NLRB No. 24 (2012)).

The NLRB panel ultimately adopted the hearing officer’s recommendation that the

Union’s challenges to the two contested ballots be overruled and ordered that the ballots be

counted. Id. at 1 n.2. In considering the remaining objections to the conduct of, and events

leading up to, the first election, the NLRB panel determined that two of the Union’s objections

“considered individually or cumulatively, would warrant setting aside the election” in its

entirety. Id. at 2. In particular, the NLRB panel found no basis to overrule the hearing officer’s

crediting of testimony that a supervisor told the plaintiff’s employees that a “union would make

it easier for him to fire people” and also told at least one employee that “he would have already

discharged [the employee] if she were represented by the Union” during the “critical period”

prior to the election. Id. at 3.

The NLRB panel ordered the contested ballots counted and provided for two potential

outcomes. If the revised ballot count resulted in the Union winning the first election, the

NLRB’s regional director would be “directed to issue a certification of” the Union as the

employees’ bargaining representative. See id. at 4. Alternatively, if the contested ballots showed

the Union losing the first election, the regional director was instructed to “set aside the election

and order a new election.” Id. When the contested ballots were counted, the “Union lost the

election 40 to 39.” Compl. ¶ 16. Consequently, the results of the first election were set aside

and a second election was conducted. In this second election, ninety-nine percent of the

plaintiff’s workforce voted and a strong majority—fifty-five out of seventy-six votes cast—voted

for union representation. See Cohen Decl. Ex. I at 110, ECF No. 13-1. On November 6, 2012,

3
the NLRB’s regional director “certified the Union as the collective bargaining representative” on

behalf of the plaintiff’s employees. Compl. ¶¶ 16–17.

The plaintiff filed suit in this Court on March 15, 2013, alleging that, under binding D.C.

Circuit precedent, “the recess appointments of Ms. Block and Mr. Griffin to the [NLRB] were

unconstitutional” and, therefore, the defendants could not “legally take any action, including but

not limited to ordering, conducting, or certifying the results of any representative election”

because it lacked a quorum. See id. ¶¶ 19–20 (citing Noel Canning v. NLRB, 705 F.3d 490 (D.C.

Cir. 2013), cert. granted NLRB v. Noel Canning, 133 S. Ct. 2861 (2013)). The plaintiff seeks:

(1) a declaration that the NLRB “exceeded its authority when it rendered a decision in the

representation proceeding and certified the Union without a valid quorum[;]” (2) a declaration

that the NLRB Decision “and the ensuing certification of representative issued on November 6,

2012 [were] void from their inception[;]” (3) an injunction barring the Acting General Counsel

from “pursuing unfair labor practice charges against [the plaintiff] based on the void certification

of representative including” unfair labor charges based on the refusal to bargain with the Union;

and (4) litigation costs and reasonable attorneys’ fees. Compl. at 8.

II. LEGAL STANDARD

A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1) focuses a federal court on its “affirmative obligation to consider whether the

constitutional and statutory authority exist” for it to hear a case. James Madison Ltd. by Hecht v.

Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (internal quotation marks omitted). Article III of

the United States Constitution limits the federal judicial power to the resolution of “Cases” and

“Controversies,” U.S. CONST. art. III, § 2., and thereby sanctions the exercise of jurisdiction only

“to redress or prevent actual or imminently threatened injury to persons caused by private or

4
official violation of law.” Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009); see also

Allen v. Wright, 468 U.S. 737, 750 (1984) (“[t]he case-or-controversy doctrines state

fundamental limits on federal judicial power in our system of government”). “The Art[icle] III

doctrine that requires a litigant to have ‘standing’ to invoke the power of a federal court is

perhaps the most important of these doctrines.” Allen, 468 U.S. at 750. Thus, “standing is a

‘threshold jurisdictional question’ we must address [] first.” Holistic Candlers & Consumers

Ass’n v. FDA, 664 F.3d 940, 943 (D.C. Cir. 2012) (quoting Byrd v. EPA, 174 F.3d 239, 243

(D.C. Cir. 1999)); see also Nat’l Ass’n of Home Builders v. EPA (“NAHB”), 667 F.3d 6, 11 (D.C.

Cir. 2011) (“a showing of standing is an essential and unchanging predicate to any exercise of

our jurisdiction”) (internal quotation marks and citation omitted).

The Supreme Court has explained that “the irreducible constitutional minimum of

standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

“First, the plaintiff must have suffered an injury in fact,” i.e., “an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or

hypothetical.” Id. (citations and internal quotation marks omitted). Second, “there must be a

causal connection between the injury and the conduct complained of,” i.e., the injury alleged

must be “fairly traceable to the challenged action of the defendant.” Id. (internal quotation

marks omitted). Finally, it must be likely that the injury will be redressed by a favorable

decision. Id. at 561. Moreover, when a plaintiff seeks prospective declaratory or injunctive

relief, allegations of past harms are insufficient. See, e.g., Dearth v. Holder, 641 F.3d 499, 501

(D.C. Cir. 2011). Rather, when declaratory or injunctive relief is sought, a plaintiff “must show

he is suffering an ongoing injury or faces an immediate threat of [future] injury.” Id. (citing City

of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)).

5
 When a purported lack of jurisdiction stems from a lack of standing, the court “must

assume that [the plaintiff] states a valid legal claim.” Info. Handling Servs., Inc. v. Def.

Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). The proponent of jurisdiction

bears the burden of proving that jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115

(D.C. Cir. 2008). While “the district court may consider materials outside the pleadings,” it must

“still accept all of the factual allegations in the complaint as true.” Jerome Stevens Pharm., Inc.

v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citations and internal quotation marks omitted).

“If the court determines at any time that it lacks subject-matter jurisdiction, the court must

dismiss the action.” FED. R. CIV. P. 12(h)(3).

III. DISCUSSION

The plaintiff seeks summary judgment based on the D.C. Circuit’s opinion in Noel

Canning. Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”) at 1, ECF No. 12. Indeed, the

plaintiff appears so confident that it is entitled to the relief sought that it spends a mere six

paragraphs, consisting of nine sentences, on its substantive legal argument. See id. at 4–5. 3 In

doing so, the plaintiff effectively ignores the substantial jurisdictional issues in its suit, devoting

one sentence of its complaint—relying upon 28 U.S.C. §§ 1331 and 1337 for subject matter

jurisdiction—and no portion of its memorandum in support of its motion for summary judgment

to the topic. See Compl. ¶ 7; Pl.’s Mem., generally.

The defendants seek transfer of this case to the Middle District of Florida or, in the

alternative, dismissal of this action under Federal Rule of Civil Procedure 12(b)(1) for lack of

subject matter jurisdiction. Defs.’ Mot. at 1. 4 Since no district court has jurisdiction under the

3
Even if this Court had jurisdiction over the instant matter, which it does not, the Court would be inclined to stay its
decision until the Supreme Court issues a decision in NLRB v. Noel Canning, which was argued in January 2014.
4
Although ultimately irrelevant to the resolution of the pending motions, the Court notes that all of the election
events at issue occurred in the Middle District of Florida; most, if not all of the witnesses likely to be called in this

6
NLRA to hear the plaintiff’s claims, the Court grants the alternative relief sought by the

defendants. In light of this finding, the Court need not address the other arguments in support of

and opposition to the plaintiff’s motion for summary judgment or the defendants’ motion to

transfer. 5 A brief explanation of the statutory scheme under which the instant challenge is raised

is helpful to understand the two reasons why the plaintiff’s complaint must be dismissed.

A. Review Under The NLRA

The NLRA provides for only one method by which actions of the NLRB may be

judicially reviewed: through a challenge to a “final order of the Board . . . in any United States

court of appeals.” 29 U.S.C. § 160(f). The Supreme Court is clear that the certification of a

union, standing alone, is not a “final order of the Board” for the purposes of the NLRA, such that

it can be challenged by an employer. See Am. Fed’n of Labor v. NLRB (“AFL”), 308 U.S. 401,

411 (1940) (holding that Congress, through the NLRA, “has excluded representation

certifications of the Board from . . . review by federal appellate courts . . . except in the

circumstances specified in” 29 U.S.C. § 159(d)). Rather, the NLRA provides for indirect review

matter are in the Middle District of Florida; and the effects of this decision are most likely to be felt in the Middle
District of Florida. It is also clear that, under binding Eleventh Circuit precedent, the plaintiff’s argument as to the
validity of the recess appointments would be rejected in the Middle District of Florida. See Evans v. Stephens, 387
F.3d 1220, 1227 (11th Cir. 2004) (holding President did not exceed constitutional authority in making recess judicial
appointment). Consequently, the defendants argue that the plaintiff filed this suit in this District, where the only
connection to the dispute is the mere fact that the NLRB is located here, “at least in part, to avoid the adverse
precedent of Evans v. Stephens . . . and to reap whatever benefits it thinks might flow from the D.C. Circuit’s
decision in Noel Canning.” Defs.’ Mem. at 7. The Court need not address whether such forum shopping should be
countenanced, since the plaintiff lacks standing to bring this action.
5
The defendants rely upon Laboratory Corp. of America Holdings v. NLRB, 942 F. Supp. 2d 1 (D.D.C. 2013), a
case with a similar factual background to the instant matter, in support of its argument that a transfer of venue is
appropriate here. See, e.g., Defs.’ Mem. at 7. The court in Laboratory Corp. of America did not consider the
defendants’ subject matter jurisdiction argument, noting that, under Sinochem International Co. v. Malaysia
International Shipping Corp., 549 U.S. 422, 431 (2007), “a federal court has leeway to choose among threshold
grounds for denying audience to a case on the merits.” Lab. Corp. of Am. Holdings, 942 F. Supp. 2d at 3 (internal
quotation marks and citation omitted). Sinochem International Co. also recognized that disposal of a matter on
forum non conveniens may allow a court to “bypass[] questions of subject matter and personal jurisdiction, when
considerations of convenience, fairness, and judicial economy so warrant.” 549 U.S. at 432. In the instant matter,
the Court finds no need, in the interests of “convenience, fairness, and judicial economy” to bypass the question of
subject matter jurisdiction and, indeed, finds that the interest of judicial economy is met by dismissing this action on
the alternative grounds offered by the defendants since no district court could hear the claims brought by the
plaintiff.

7
of union certifications. See Canadian Am. Oil Co. v. NLRB, 82 F.3d 469, 471 n.1. (D.C. Cir.

1996) (“Although a Board’s decision in a certification proceeding is not directly reviewable in

the courts, an employer may challenge a certification decision indirectly by refusing to bargain

with the union and then raising its election objection in the ensuing unfair labor practice

proceedings.”); see also Boire v. Greyhound Corp., 376 U.S. 473, 476–77 (1964) (describing

identical procedure).

The plaintiff attempts to circumvent this clear proscription against bringing the instant

action in district court by averring that it “does not seek review of the merits of [the] NLRB’s

Decision.” Pl.’s Opp’n Defs.’ Mot. (“Pl.’s Opp’n”) at 13, ECF No. 15; see also Compl. ¶ 23

(“The Board’s August 29, 2012 decision and the November 6, 2012 certification are both void

from their inception because the Board lacked a quorum.”). Instead, the plaintiff claims it is

“challeng[ing the] NLRB’s composition and statutory authority to act.” Pl.’s Opp’n at 13. 6

B. The Plaintiff Lacks Article III Standing

Neither party addresses what is ultimately a fatal flaw in the plaintiff’s case, namely,

whether the plaintiff has standing to sue under Article III. The Court must address this critical

question, since “[w]hen there is doubt about a party’s constitutional standing, the court must

resolve the doubt, sua sponte if need be.” Lee’s Summit, Mo. v. Surface Trans. Bd., 231 F.3d 39,

41 (D.C. Cir. 2000) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1993)).

The party asserting the claim “carr[ies] the burden of establishing [its] standing.” Am. Library

6
The plaintiff’s conclusory assertion that this Court has jurisdiction over its claims by virtue of 28 U.S.C. §§ 1331
and 1337 is unavailing. Both are general federal jurisdiction statutes and “[t]he courts uniformly hold that statutory
review in the agency’s specially designated forum”—here, the courts of appeal—“prevails over general federal
question jurisdiction in the district courts.” Media Access Project v. FCC, 883 F.2d 1063, 1067 (D.C. Cir. 1989);
see also Leedom v. Kyne, 358 U.S. 184, 187 (1958) (noting district court has no jurisdiction over NLRA certification
of union under 28 U.S.C. § 1337 in absence of exceptional circumstances). The plaintiff does not attempt to argue
that jurisdiction exists in a district court outside of Leedom jurisdiction. See Pl.’s Opp’n at 12–13. As discussed in
Part III.C, infra, the plaintiff is incorrect that Leedom jurisdiction is available in the instant case.

8
Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005). Here, the plaintiff has failed to carry its

burden.

As discussed in Part II, supra, in order to have standing to sue in federal court, the

plaintiff must have suffered “an injury in fact.” See Lujan, 504 U.S. at 560. Such an injury is

defined as “an invasion of a legally protected interest which is (a) concrete and particularized

and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal citations and quotation

marks omitted). A plaintiff’s generalized grievance that a government agency acted illegally,

without linking that illegal action to a concrete and particularized harm to the plaintiff, is

insufficient to convey standing on the plaintiff under Article III of the U.S. Constitution. See id.

at 572–76. Indeed, “[i]t is an established principle . . . that to entitle a private individual to

invoke the judicial power to determine the validity of executive or legislative action he must

show that he has sustained or is immediately in danger of sustaining a direct injury as the result

of that action.” Id. at 575 (quoting Ex parte Lévitt, 302 U.S. 633, 634 (1937)).

In the instant matter, the plaintiff declares that it “does not seek review of the merits of

[the] NLRB’s decision,” Pl.’s Opp’n at 13, and that “[t]he merits of the Decision are not before

this Court,” id. In doing so, the plaintiff deprives itself of standing. By removing the merits of

the NLRB Decision from consideration, the plaintiff’s contention boils down to an assertion of

standing to pursue its claim because the defendants issued an ultra vires order to the plaintiff

without a quorum. See Compl. ¶¶ 21–23. Merely asserting that the NLRB issued an order

without a quorum in violation of federal law is insufficient to confer Article III standing, unless

the plaintiff also shows some injury, which the plaintiff has not. See Lujan, 504 U.S. at 574–76

(collecting cases); see also Lévitt, 302 U.S. at 633.

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 The only cognizable particularized injury claimed by the plaintiff is referenced in its

claim for injunctive relief, where it asserts that it is, by virtue of the NLRB Decision, “being

required to violate the law by bargaining with and potentially entering into a contract with a

union.” Compl. ¶ 26. This is simply untrue. The mere certification of the Union does not

require the plaintiff to do anything. As the Supreme Court explained nearly seventy-five years

ago, “the certification does not itself command action.” AFL, 308 U.S. at 408. Indeed, the

Supreme Court noted that Ҥ 9(d) [of the NLRA] provide[s] for certification by the Board of a

record of a representation proceeding only in the case when there is a petition for review of an

order of the Board restraining an unfair labor practice.” Id. at 409.

While failure to bargain with the representative of an employer’s employees may be an

unfair labor practice, the NLRB’s certification of an election does not force an employer to

engage in bargaining. Rather, an employer is only forced to act under the NLRA when “the

Board has ordered the employer to do something predicated upon the results of an election.” Id.

at 411 (quoting 79 Cong. Rec. 7658). In the instant matter, the NLRB has not yet required the

plaintiff to bargain with the Union. See Compl., generally. The NLRB can do so only in the

context of an order to remedy an unfair labor practice, such as a failure to bargain. See AFL, 308

U.S. at 407. Critically, in order to enter such an order, the NLRB must serve the employer with a

“complaint and notice of a hearing by the Board with opportunity to file an answer and be

heard.” Id. at 406. Only after such a hearing is held can the NLRB order the plaintiff to do what

the plaintiff complains of: bargain—or potentially sign a contract—with the Union. Id. at 409.

Such an order has not yet been entered against the plaintiff, thus there is no injury in fact.

A plaintiff may assert the violation of a procedural right as the basis for standing, but

only “so long as the procedures in question are designed to protect some concrete interest of his

10
that is the ultimate basis of his standing.” Lujan, 504 U.S. at 573 n.8. “[D]eprivation of a

procedural right without some concrete interest that is affected by the deprivation—a procedural

right in vacuo—is insufficient to create Article III standing.” Summers, 555 U.S. at 496. “[I]n

order to show that the interest asserted is more than a mere general interest in the alleged

procedural violation common to all members of the public, the plaintiff must show that the

government act performed without the procedure in question will cause a distinct risk to a

particularized interest of the plaintiff.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C.

Cir. 1996) (citing Ex Parte Lévitt, 302 U.S. at 634) (internal quotation marks omitted). In short,

by failing to challenge the NLRB Decision, the plaintiff cannot show that it has standing to sue

because it has failed to show that the government action complained of caused the plaintiff a

“concrete and particularized” injury. 7

This is the Catch-22 in which the plaintiff finds itself. The Supreme Court has held that

if a plaintiff is the object of an illegal government action “there is ordinarily little question that

the action or inaction has caused [the plaintiff] injury.” The action that allegedly caused the

plaintiff injury in the instant case is the NLRB Decision ordering a new election and

subsequently certifying the Union. See Compl., generally. The NLRA and Supreme Court

precedent make clear, however, that such actions are not subject to review in district courts. See

Part III.A, supra. To avoid this prohibition on judicial review and bring suit in this Court, the

7
The instant matter resembles that resolved by the D.C. Circuit in National Association of Home Builders. In that
case, the plaintiffs sought to challenge an EPA determination that a particular river was subject to Clean Water Act
jurisdiction, a determination that could, in the future, cause the plaintiffs to need to acquire permits to develop their
properties. See NAHB, 667 F.3d at 13. The D.C. Circuit found that, in the absence of any specific enforcement
action or determination as to a specific property, or a challenge to the merits of the EPA’s determination, the
plaintiffs lacked standing to challenge the general determination by the EPA. Id. at 14. The instant matter is
analogous. Here, the mere fact that the Union won the second election has no practical impact on the plaintiff,
particularly since the plaintiff is not challenging the merits of the NLRB’s decision. See Pl.’s Opp’n at 13. Rather,
the plaintiff could only be harmed if the NLRB attempts to order the plaintiff to do something predicated upon that
election. Just as the property owners in NAHB had not yet been harmed by the EPA’s determination absent an
enforcement action, thus depriving them of standing, the plaintiff in this action has not yet been harmed by the
NLRB’s election decision, thus depriving it of standing.

11
plaintiff asserts that it is not challenging the NLRB Decision, but, instead, the ability of the

NLRB to act without a quorum. See Pl.’s Opp’n at 13 (“[The plaintiff] challenges NLRB’s

statutory power to make any decision at all.”). In doing so, the plaintiff converts its

particularized grievance—that the NLRB Decision harms the plaintiff—into a generalized

grievance—that the NRLB could not act because it did not have a quorum, regardless of the

substance of the NLRB Decision.

The solution to this conundrum is simple: the plaintiff need only follow the procedure the

plaintiff used in Noel Canning, the very precedent the plaintiff asserts applies to the instant

matter. See Pl.’s Mem. at 4. In that case, the plaintiff initiated “a routine review of a decision of

the National Labor Relations Board” that the plaintiff had engaged in an unfair labor practice,

“over which [the D.C. Circuit has] jurisdiction under 29 U.S.C. § 160(e) and (f).” Noel Canning,

705 F.3d at 493. In challenging the final action of the Board, the plaintiff in Noel Canning

“question[ed] the authority of the Board to issue the order [because] the Board lacked authority

to act for want of a quorum, as three members of the five-member Board were never validly

appointed because they took office under putative recess appointments which were made when

the Senate was not in recess.” Id. at 493. The plaintiff here is attempting to assert the identical

argument but refuses to subject itself to the appropriate procedure, as the plaintiff in Noel

Canning did. Notably, the predicate to such a challenge has already occurred, as the Union

“filed an unfair labor practice charge against [the plaintiff] alleging that [the plaintiff] violated

Section 8(a)(5) of the NLRA by unlawfully refusing to bargain” with the Union in July 2013.

Defs.’ Reply Pl.’s Opp’n Defs.’ Mot. (“Defs.’ Reply”) at 9, ECF No. 18. Assuming the unfair

labor practice proceeding results in a ruling the plaintiff finds unfavorable, the plaintiff may,

under the NLRA, seek review before the D.C. Circuit. See 29 U.S.C. § 160(f) (“Any person

12
aggrieved by a final order of the Board . . . may obtain a review of such order in . . . the United

States Court of Appeals for the District of Columbia.”).

In attempting to circumvent the procedure outlined in the NLRA for judicial review, the

plaintiff has converted what is, in all likelihood, a sufficiently particularized grievance upon

which standing could be based before a court of appeals in a challenge to a final NLRB Order,

into a generalized grievance on which standing cannot be sustained. As such, this Court lacks

subject matter jurisdiction over the plaintiff’s claims and the complaint must be dismissed.

C. This Court Has No Jurisdiction Under The NLRA

Assuming, arguendo, that the plaintiff has pleaded a sufficiently particularized grievance,

neither this Court nor any other district court may hear its challenge to the representation

decision of the NLRB. As explained in Part III.A, supra, Congress has barred, in the NLRA,

judicial review of such decisions. The plaintiff attempts to avoid this conclusion by invoking a

seldom-used exception to this presumption of non-reviewability. The plaintiff’s efforts are

unavailing.

The plaintiff implicitly acknowledges that it could not ordinarily bring its claim for relief

from the NLRB Decision before a district court but nonetheless asserts that this Court has

subject matter jurisdiction under Leedom v. Kyne, 358 U.S. 184, 187 (1958). See Pl.’s Opp’n at

12. In Leedom, the Supreme Court held that, in the rare case when “‘absence of jurisdiction of

the federal courts’ would mean ‘a sacrifice or obliteration of a right which Congress’ has given .

. . [and] there is no other means, within [the plaintiff’s] control, to protect and enforce that

right[,]” a district court may set aside a decision of the NLRB. Leedom, 358 U.S. at 190 (quoting

Switchmen’s Union of N. Am. v. Nat’l Mediation Bd., 320 U.S. 297, 300 (1943)).

13
 Leedom was that rare case. There, the NLRB refused “to take a vote among the

professional employees [in a potential bargaining unit] to determine whether a majority of them

would ‘vote for inclusion in such unit,’ [and] included both professional and nonprofessional

employees in the bargaining unit that it found appropriate.” Leedom, 358 U.S. at 185. That

action, the Supreme Court found, was in direct contravention of the NLRA, which stated that “in

determining the unit appropriate for collective bargaining purposes, ‘the Board shall not (1)

decide that any unit is appropriate for such purposes if such unit includes both professional

employees and employees who are not professional employees unless a majority of such

professional employees vote for inclusion in such unit.’” Id. at 184–85 (quoting 29 U.S.C. §

159(b)(1)). The NLRB “did not contest the trial court’s conclusion that the Board, in

commingling professional and nonprofessional employees in the unit, had acted in excess of its

powers and had thereby worked injury to the statutory rights of the professional employees.

Instead, it contended only that the District Court lacked jurisdiction to entertain the suit.” Id. at

187. The Supreme Court held that, in such a case, which the Supreme Court characterized as “an

attempted exercise of power [by the NLRB] that had been specifically withheld,” by Congress,

“a Federal District Court has jurisdiction of an original suit to prevent deprivation of a right” of

the professional employees that was “assured to them.” Id. at 189.

The D.C. Circuit has held that “invocation of Leedom jurisdiction . . . is extraordinary; to

justify such jurisdiction, there must be a specific provision of the Act which, although it is clear

and mandatory, was nevertheless violated by the [agency].” Ass’n of Civilian Technicians, Inc.

v. Fed. Labor Relations Auth., 283 F.3d 339, 344 (D.C. Cir. 2002) (quoting Council of Prison

Locals v. Brewer, 735 F.2d 1497, 1501 (D.C. Cir. 1984)). For employers, such as the plaintiff,

the triggering of Leedom jurisdiction is even more difficult, since the D.C. Circuit has stated “the

14
Leedom v. Kyne remedy was not devised for the benefit of an employer.” Miami Newspaper

Printing Pressman’s Union Local 46 v. McCulloch, 322 F.2d 993, 997 n.7 (D.C. Cir. 1963)

(citing Atlas Life Ins. Co. v. Leedom, 284 F.2d 231 (D.C. Cir. 1960)). 8

The D.C. Circuit reasoned that employers were generally outside the scope of Leedom

because employers’ concerns could be “judicially reviewed . . . in a subsequent unfair labor

practice proceeding. While this procedure is available to an aggrieved employer (by refusing to

bargain with a certified representative) . . . it is practically unavailable to an unsuccessful union,”

as was the case in Leedom. Id. Since an unfair labor practice charge is required to initiate the

indirect review of NLRB certification decisions, an employer’s refusal to bargain with a certified

union will typically lead to such review, since a union has a vested interest in filing such a

charge. See id. The same is not true of a union; a union that refused to bargain with an employer

would likely lose the support of its members and, in that circumstance, an employer would be

highly unlikely to file an unfair labor practice charge against the union for refusal to bargain.

Moreover, in light of the statutory bar to judicial review of representation decisions, the D.C.

Circuit observed that “an unsuccessful union in a certification proceeding before the [NLRB] has

no adequate remedy by review.” Id. (quoting Cox v. McCulloch, 315 F.2d 48, 50 (D.C. Cir.

1963).

8
The plaintiff challenges this assertion by citing to a forty-eight year old district court case, Bullard Co. v. NLRB,
253 F. Supp. 391, 393 (D.D.C. 1966), where the district court found Leedom jurisdiction available when an
employer sought to force the NLRB to certify a valid election result. Central to the court’s finding in Bullard Co.
was the NLRB’s refusal to certify an “admittedly valid election” and the injunction sought only to “compel[] the
[NLRB] to perform its statutory duty to certify the results of that election.” Id. at 394. Bullard Co., therefore,
stands only for the proposition that it is theoretically possible for Leedom jurisdiction to lie for an employer, in the
appropriate circumstances, and could be helpful to the plaintiff’s case if the defendants’ challenge to the exercise of
Leedom jurisdiction was based only on the plaintiff’s status as an employer. That is not the case, however, as the
defendant has challenged, and the plaintiff has failed, the second prong of the Leedom analysis, the unavailability of
judicial review. See Hartz Mountain Corp. v. Dotson, 727 F.2d 1308, 1312 n.2 (D.C. Cir. 1984) (disagreeing with
Bullard Co. to extent its holding implied that clear breach of statutory duty was only requirement for Leedom
jurisdiction, stating “[t]he availability of indirect judicial review always has been considered to be an important
consideration in the opinions of the circuit.”).

15
 At the same time, due to the statutory constraints on judicial review, including a bar on

judicial review of NLRB representation decisions and exclusive authority vested in the courts of

appeal to review final orders, the D.C. Circuit has cautioned that the extraordinary nature of

Leedom relief “cannot be overstated, because . . . Leedom jurisdiction is extremely narrow in

scope.” Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel (“Air Traffic

Controllers”), 437 F.3d 1256, 1263 (D.C. Cir. 2006). “[I]n order to justify the exercise of

Leedom jurisdiction, a plaintiff must show, first, that the agency has acted ‘in excess of its

delegated powers and contrary to a specific prohibition’ which ‘is clear and mandatory’ and,

second, that barring review by the district court ‘would wholly deprive [the party] of a

meaningful and adequate means of vindicating its statutory rights.’” Id. (emphasis and second

alteration in original, citations omitted).

The cases cited by the plaintiff in support of its contention that the instant case constitutes

“extraordinary circumstances” warranting the exercise of Leedom jurisdiction are unpersuasive.

At the outset, two of the cases on which the plaintiff places particular reliance, Railway Labor

Executives’ Ass’n v. National Mediation Board (“RLEA”), 29 F.3d 655 (D.C. Cir. 1994) (en

banc), amended by 38 F.3d 1224 (D.C. Cir. 1994), and U.S. Airways Inc. v. National Mediation

Board, 177 F.3d 985, 989 (D.C. Cir. 1999), involve interpretation of the Railway Labor Act

(“RLA”), 45 U.S.C. § 151 et seq., not the NLRA. The Supreme Court has noted that the legal

underpinnings of the NLRA “cannot be imported wholesale into the railway labor arena. Even

rough analogies must be drawn circumspectly with due regard for the many differences between

the statutory schemes.” Trans World Airlines, Inc. v. Indep. Fed’n of Flight Attendants, 489 U.S.

16
426, 439 (1989). Thus, on this basis alone, RLEA and U.S. Airways, Inc., are of limited, if any,

usefulness to the Court’s analysis. 9

For instance, instead of the virtual carte blanche the NLRB has in certification

procedures—by virtue of such certifications not constituting “final orders”— the RLA provision

at issue in RLEA, 45 U.S.C. § 152 Ninth, strictly circumscribed the pertinent agency’s review

power. RLEA, 29 F.3d at 662 (“[T]he [National Mediation Board] has no freewheeling authority

to act as it sees fit with respect to anything denoted a ‘representation dispute.’ The Board’s

authority is exclusive only with respect to the precise matters delimited by” the RLA.).

Specifically, the RLA provision at issue precluded the National Mediation Board from

investigating “representation disputes ‘among a carrier’s employees’ . . . pursuant to a petition

from a carrier.” Id. at 658. In contravention of this statutory prohibition, however, the National

Mediation Board unilaterally declared that carriers “could initiate representation proceedings in

the wake of railroad mergers and acquisitions.” Id. 10 The D.C. Circuit found that because the

National Mediation Board sought to expand its jurisdiction beyond the statutory boundaries

9
Indeed, the evaluation of constitutional challenges in the RLA context is wholly different from challenges to the
NLRA. See U.S. Airways, Inc., 177 F.3d at 990. “Congress’ purpose in the RLA [was] to avoid any interruption to
commerce or to the operation of any carrier engaged therein,” and, as such, the procedures a court must follow,
including the evaluation of constitutional challenges, are substantially different and more stringent under the RLA
than under the NLRA. Id. By contrast to the NLRA, where the plaintiff may only assert its claims in district court
on a showing that the NLRB deprived the “plaintiff of constitutional rights” in a manner that was “strong and clear,”
Nat’l Ass’n of Women’s and Children’s Apparel Salesmen, Inc. v. NLRB, 465 F.2d 662, 663 (D.C. Cir. 1972), the
D.C. Circuit has held that a much more searching review of the merits of a constitutional claim is required under the
RLA. See U.S. Airways, Inc., 177 F.3d at 990.
10
In his concurrence in RLEA, Judge Randolph characterized this policy change as a new “rule” within the meaning
of the Administrative Procedures Act (“APA”). See 29 F.3d at 672 (Randolph, J. concurring). In Judge Randolph’s
view, the RLA’s prohibition of judicial review of the National Mediation Board’s fact-finding function was not
implicated at all, and, consequently, neither was Leedom jurisdiction. See id. Although the plaintiff argues that
RLEA supports its argument that Leedom jurisdiction is available even when alternative mechanisms for judicial
review are also available, based on Judge Randolph’s concurrence, see Pl.’s Opp’n at 17–18, the plaintiff
misconstrues the thrust of the concurrence. Central to Judge Randolph’s finding was that the action taken by the
National Mediation Board was not covered by the provision that barred judicial review. See RLEA, 29 F.3d at 672.
Thus, in Judge Randolph’s view, there was no jurisdictional bar to overcome in the first instance, and, consequently,
no need to resort to Leedom jurisdiction. In the instant matter, the plaintiff makes no argument that, by allegedly
acting without a quorum, the NLRB essentially executed a rule change warranting judicial review under the APA,
which was the predicate for Judge Randolph’s concurrence in RLEA. Indeed, the plaintiff makes no reference
whatsoever to the APA. Judge Randolph’s concurrence, consequently, has no bearing on the instant matter.

17
Congress specified, and the actions taken by the National Mediation Board pursuant to that

expansion would otherwise be unreviewable, the district court had jurisdiction under Leedom.

See id. at 662–63.

Unlike the situation in Leedom, the NLRA provides a readily available avenue for

judicial review of the NLRB Decision in the instant matter, so long as the plaintiff follows the

indirect review procedure confirmed over more than seventy years of NLRA jurisprudence.

Thus, the RLEA court, in finding Leedom jurisdiction where there was no other avenue to obtain

judicial review, undercuts the plaintiff’s position that such jurisdiction is appropriate here where

an alternative method of judicial review is readily available. 11

The plaintiff’s reliance on Dart v. United States, 848 F.2d 217, 222 (D.C. Cir. 1988), is

similarly misplaced since that case is plainly distinguishable on its facts. In Dart, the D.C.

Circuit found that if an export control statute were construed as precluding any judicial review of

the Secretary of Commerce’s actions in overturning administrative law judge determinations, it

would allow “uncontrolled and arbitrary action of a public and administrative officer, whose

action is unauthorized by any law.” Id. at 224 (quoting Am. Sch. of Magnetic Healing v.

McAnnulty, 187 U.S. 94, 110 (1902)). Central to the Court’s holding in Dart was the fact that,

without judicial review of a supposed “facial” violation of the statute, i.e., where the agency

acted in contravention of “plain statutory commands,” there would be no control over the

government agency at all. Id. at 222.

11
The plaintiff is correct that the D.C. Circuit held that the question at issue in RLEA was that of the National
Mediation “Board’s very jurisdiction—a question that is analytically distinct from and antecedent to the issue of
whether the Board correctly found the ‘fact’ of representation.” RLEA, 29 F.3d at 663. Nevertheless, this holding
does not help the plaintiff. The plaintiff asserts that the NLRB must have a quorum before it may take “action,” and
that this quorum requirement is antecedent to the issue of election certification, as was the case in RLEA. See Pl.’s
Opp’n at 14. Even if the plaintiff is correct on this point, the NLRB does not take final “action” by certifying an
election; it does so only when it acts on an unfair labor charge. See AFL, 308 U.S. at 411. In the instant matter,
unlike in Noel Canning or RLEA, such a final action has yet to take place.

18
 Unlike the action in Dart, where the government official did not have the authority to

reverse an administrative law judge’s decision under the statute, the NLRB has the authority

under the NLRA to certify union elections and, furthermore, district courts may not hear

challenges to those decisions. Also unlike in Dart, where the plaintiff had no opportunity for

judicial review, see Dart, 848 F.2d at 221, the plaintiff in the instant case has the opportunity for

judicial review before an appellate court once it has been “aggrieved by a final order of the

Board,” 29 U.S.C. § 160(f). See also Exxon Chems. Am. v. Chao, 298 F.3d 464, 469 n.4 (5th Cir.

2002) (“Critical to the Dart court’s decision to review the case under the [Leedom] exception

was the fact that there was no other opportunity for meaningful judicial review of the agency’s

decision.”). It was the lack of available meaningful judicial review in Dart that the court relied

upon to exercise jurisdiction, and, in the instant case, such review is readily available, albeit not

as immediately as the plaintiff may prefer.

As for the plaintiff’s arguments that Leedom applies because of the constitutional nature

of the alleged violation, the plaintiff’s argument is belied by the very cases on which the plaintiff

relies for support. In Lawrence Typographical Union v. McCulloch, 349 F.2d 704, 708 (D.C.

Cir. 1965), the D.C. Circuit found no subject matter jurisdiction in an NLRA case because there

had been no “final administrative order” entered by the NLRB, even though the plaintiff union

had asserted constitutional claims. See Lawrence Typographical Union, 349 F.2d at 708.

Similarly, in the instant case, there has been no final administrative order from the Board and, if

there were, jurisdiction would appropriately lie in the court of appeals, not the district court.

McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C. Cir 1968), is also

unavailing to help the plaintiff. In that case, the D.C. Circuit concluded that the district court did

not have subject matter jurisdiction over a case under the NLRA, noting that for a district court

19
to intervene “the showing that the Board has violated the [NLRA] or deprived a plaintiff of

constitutional rights must be strong and clear.” Id. at 917. The Libbey-Owens-Ford court held

that direct judicial review of a NLRB decision in district court was available “only under highly

exceptional circumstances,” and that “[f]or such jurisdiction [in the district court] to exist, the

Board must have stepped so plainly beyond the bounds of the [NLRA], or acted so clearly in

defiance of it, as to warrant the immediate intervention of an equity court.” Id. In Libbey-

Owens-Ford Glass Co., the D.C. Circuit held that the aggrieved party “must await an appeal

from an unfair labor practice order,” id. at 917, even though there was a colorable argument that

the NLRB had acted beyond the scope of its statutory authorization, but that argument was

“novel,” id. at 918 (Tamm, J. dissenting). Libbey-Owens-Ford Glass Co. counsels, in contrast

to the plaintiff’s interpretation, that even if the NLRB’s exercise of authority by a panel

including recess appointees is found to be “an erroneous or arbitrary exertion of [the NLRB’s]

authority” there is no “jurisdiction in the District Court to intervene by injunction” in the absence

of an appropriately “strong and clear” showing of a constitutional violation. Id. at 917 (quoting

Local 130, Int’l Union of Elec., Radio & Mach. Workers v. McCulloch, 345 F.2d 90, 95 (D.C.

Cir. 1965)). Considering there exists a split among the courts of appeal as to whether recess

appointees are, in fact, valid members of the NLRB, see Noel Canning, 705 F.3d at 505—and the

Supreme Court has yet to rule on the issue—the constitutional violation alleged by the plaintiff is

not “strong and clear” within the meaning of Libbey-Owens-Ford Glass Co. such that this Court

may hear its claim.

Finally, Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct.

3138, 3150 (2010), another case on which the plaintiff relies for the proposition that objections

“collateral to any . . . orders or rules from which review might be sought” are reviewable in

20
district court, Pl.’s Opp’n at 18, is likewise distinguishable. In Free Enterprise Fund, the

Supreme Court considered whether a statute conferring jurisdiction on the Securities and

Exchange Commission over actions of the Public Company Accounting Oversight Board was

“an exclusive route to review” of the Board’s decisions, thus precluding district court review.

Free Enterprise Fund, 130 S. Ct. at 3150. The Supreme Court in Free Enterprise Fund was

considering a new statute, the Sarbanes-Oxley Act of 2002, and a new agency, the Public

Company Accounting Oversight Board, for which the appropriate judicial review procedures had

yet to be clarified. See id. at 3147. Indeed, the Free Enterprise Fund court noted that the

question before it was “a new situation not yet encountered by the Court” and that the Sarbanes-

Oxley Act provisions “for judicial review of [SEC] action did not prevent the District Court from

considering petitioners’ claims.” Id. at 3150. Unlike in Free Enterprise Fund, where the

Supreme Court found the statute did not intend the courts of appeal to be the “exclusive route” to

judicial review, see id., it is well-settled in the instant case that the indirect method of review

through defending against unfair labor practice claims is the sole method of review for NLRB

certification decisions under the NLRA. See, e.g., Canadian Am. Oil Co., 82 F.3d at 471 n.1.

Thus, the plaintiff’s reliance on Free Enterprise Fund is unavailing.

* * *

In sum, by avoiding any challenge to the merits of the NLRB’s certification, the plaintiff

has deprived itself of Article III standing. Even if the plaintiff had attacked that certification

directly, neither this Court nor any other district court has subject matter jurisdiction over the

plaintiff’s claims because of the exclusive review provision of the NLRA, which vests

jurisdiction in the courts of appeal after a final board action. Leedom jurisdiction is unavailable

21
because of this meaningful opportunity for judicial review. Consequently, the plaintiff’s claims

are dismissed. 12

IV. CONCLUSION

For the aforementioned reasons, the defendants’ motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(1) is granted. The plaintiff’s motion for summary judgment and

the defendants’ motion to transfer are denied as moot.

An appropriate Order accompanies this Memorandum Opinion.

Date: January 28, 2014
Digitally signed by Beryl A. Howell
DN: cn=Beryl A. Howell, o=District
Court for the District of Columbia,
ou=District Court Judge,
email=howell_chambers@dcd.uscourts
.gov, c=US
__________________________
Date: 2014.01.28 17:04:06 -05'00'

BERYL A. HOWELL
United States District Judge

12
The defendants argue that the plaintiff’s Count II, for injunctive relief, has been “abandoned” as a result of the
plaintiff ignoring this claim in its Motion for Summary Judgment. See Defs.’ Mem. at 21. The Court disagrees.
While Count II is not abandoned, the plaintiff concedes “that Count II would not survive independently from Count
I,” Pl.’s Opp’n at 21, and since the plaintiff lacks standing for Count II in the same way as for Count I, both claims
must be dismissed.

22