UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LOMA LINDA––INLAND EMPIRE
CONSORTIUM FOR HEALTHCARE
EDUCATION,
Plaintiff Civil Action No. 23-0688 (CKK)
v.
NATIONAL LABOR RELATIONS BOARD,
Defendant.
MEMORANDUM OPINION
(April 11, 2023)
On February 13, 2023, Defendant National Labor Relations Board (“NLRB”)
commenced an administrative proceeding in California against Plaintiff Loma Linda––Inland
Empire Consortium for Healthcare Education (“Plaintiff” or “Consortium”) to determine whether
the Consortium must collectively bargain with a local union which filed a petition with the
NLRB. The Consortium, a California resident with no ties to the District of Columbia, has
moved this Court for preliminary injunctive relief enjoining the proceedings. Binding appellate
precedent instructs that a district court lacks jurisdiction over any challenge to an NLRB
proceeding where a litigant may subsequently receive relief on appeal. Because such relief
remains available to the Consortium, and upon consideration of the pleadings, 1 the relevant legal
authorities, and the record as a whole, the Court sua sponte DISMISSES this case for lack of
1
The Court’s consideration has focused on the following documents:
• Plaintiff’s Complaint, ECF No. 1;
• Plaintiff’s Motion for Preliminary Injunction, ECF No. 6;
• Defendant’s combined opposition and Motion to Transfer Venue Pursuant to 28 U.S.C. §
1404(a), ECF No. 19; and
• Plaintiff’s combined Opposition to the National Labor Relations Board’s Motion to Transfer
Venue and Reply to Opposition to Motion for Preliminary Injunction, ECF No. 20.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
1
jurisdiction and DENIES AS MOOT Plaintiff’s [6] Motion for Preliminary Injunction and
Defendant’s [19] Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a).
I. BACKGROUND
For present purposes, the Court shall take Plaintiff’s allegations as true. The Consortium
is a non-profit corporation affiliated with the Seventh-day Adventist Church (“Church”).
Declaration of Dr. Dan Giang, ECF No. 6-2 ¶ 3 (“Giang Decl.”). Although affiliated with
hospitals and clinics in California that provide medical services, the Consortium’s programming
is limited to teaching medical students and residents how to provide medical care through
“Christ-centered Graduate Medical Education.” Id. at 8; Declaration of Dr. David Trim, ECF
No. 6-15 ¶ 12 (“Trim Decl.”). The Consortium defines such education as that which
“continue[s] the healing ministry of Jesus Christ, ‘to make man whole,’ in a setting of advancing
medical science and to provide a stimulating clinical and research environment for the education
of physicians, nurses[,] and other health professionals.” Giang Decl. at 32.
On February 13, 2023, a local chapter of the Union of American Physicians and Dentists
(“Union”) filed a petition with NLRB Region 31 on behalf of residents and fellows employed at
Consortium institutions who wanted to unionize. ECF No. 6-9. This petition commenced
“representation” proceedings, in which a local NLRB office determines whether a particular
union may represent certain employees in collective bargaining with their employer. See 29
U.S.C. § 159(c). The administrative matter was docketed before the Regional Director for
Region 31, covering much of southern California, as Case 31-RC-312064. ECF No. 6-9 at 4.
Pursuant to 29 U.S.C. § 159, the Regional Director ordered the parties to provide initial briefing
and set a representation (i.e., merits) hearing for March 6, 2023. Id. at 11.
2
On February 27, 2023, the Consortium requested that the Regional Director bifurcate the
proceedings in order to first determine whether the NLRB had jurisdiction over the Union’s
petition. Id. at 24. The Consortium argued, as it does again here, that the NLRB lacked
jurisdiction over the Consortium as a religious teaching institution. Id. at 24-32. The Regional
Director denied this request, although they continued the representation hearing itself to March
13, 2023. Id. at 44. The Consortium then requested on March 2, 2023 that the NLRB reverse the
Regional Director’s decision to proceed to the representation hearing, which was denied by a
three-member panel one day later. Id. at 59. The Consortium filed its operative complaint on
March 14, 2023, and moved this Court on March 21, 2023 to preliminarily stay or vacate the
representation proceedings as beyond the NLRB’s jurisdiction. The representation hearing went
forward and concluded on April 5, 2023, and post-hearing briefs are due April 19, 2023. ECF
No. 23 at 1. If the Regional Director concludes that the Union may represent the Consortium’s
employees, then they will order an election by secret ballot to determine whether the Union may
represent the employees in collective bargaining with the Consortium. See 29 U.S.C. § 153(b).
II. LEGAL STANDARD
A plaintiff bears the burden of establishing that a federal court has subject matter
jurisdiction. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). “Federal
courts are courts of limited jurisdiction . . . [and it] is to be presumed that a cause lies outside this
limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A
federal court can, and must, raise subject matter jurisdiction sua sponte if the parties do not, for
federal courts are “forbidden––as courts of limited jurisdiction––from acting beyond their
authority, and no action of the parties can confer subject-matter jurisdiction upon a federal
court.” Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982) (cleaned up).
3
III. DISCUSSION
As a general rule, Congress has vested only the federal Courts of Appeals with
jurisdiction to review decisions of the NLRB. Myers v. Bethlehem Shipbuilding Corp., 303 U.S.
41, 47 (1938); 29 U.S.C. § 160(f). In Leedom v. Kyne, the Supreme Court recognized only the
narrowest of exceptions. 358 U.S. 184, 188 (1958). Leedom sets forth a two-part test for a
district court to exercise jurisdiction: (1) “the agency’s alleged conduct must be contrary to a
specific statutory prohibition that is both clear and mandatory;” and (2) “the party aggrieved
must have no other meaningful and adequate mean[s] of vindicating its statutory rights.” Am.
Fed. of Gov’t Emps., Local 2510 v. FLRA, 453 F.3d 500, 506 (D.C. Cir. 2006) (cleaned up). The
Leedom exception is “extremely narrow in scope” and applies only to errors in the NLRB’s
jurisdiction. Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d
1256, 1263 (D.C. Cir. 2006) (“Air Traffic Controllers”). For employers, “the triggering of
Leedom jurisdiction is even more difficult, since the D.C. Circuit has stated that ‘the Leedom v.
Kyne remedy was not devised for the benefit of an employer.’” Schwarz Partners Packaging,
LLC v. NLRB, 12 F. Supp. 3d 73, 84 (D.D.C. 2014) (BAH) (quoting Mia. Newspaper Printing
Pressmen’s Union Local 46 v. McCulloch, 322 F.2d 993, 997 n.7 (D.C. Cir. 1963)).
In an effort to invoke Leedom, Plaintiff relies predominantly on Univ. of Great Falls v.
NLRB, 278 F.3d 1335 (D.C. Cir. 2002) and its progeny. There, the D.C. Circuit held that the
NLRB has no jurisdiction over non-profit institutions that are religiously affiliated. Id. at 1347.
As Plaintiff rightly notes, the NLRB has consistently run afoul of this principle, resulting in
regular reversal and vacatur by the D.C. Circuit. See Duquesne Univ. of the Holy Spirit v. NLRB,
947 F.3d 824, 830-31 (D.C. Cir. 2020) (collecting cases). As Duquesne explains, as soon a
religious educational institution alerts the NLRB to its status, the NLRB “‘should [] know[]
4
immediately’” that the Free Exercise Clause places the institution “‘patently beyond the NLRB’s
jurisdiction.’” 947 F.3d at 831 (quoting Carroll Coll. v. NLRB, 558 F.3d 568, 574 (D.C. Cir.
2009)). Here, Plaintiff argues that it should again be “patently” obvious to the NLRB that it
lacks jurisdiction over the Consortium, a non-profit, religious educational institution.
Even so, a clear jurisdictional defect does not alone endow a federal district court with
jurisdiction over a challenge to an NLRB proceeding. A plaintiff must also demonstrate that
“barring review by the district court would wholly deprive [it] of a meaningful and adequate
means of vindicating its statutory rights.” Air Traffic Controllers, 437 F.3d at 1263 (internal
quotation marks and brackets omitted). In an effort to meet this substantial hurdle, Plaintiff
relies predominantly on two nonbinding, out of Circuit district-court cases: Caulfield v. Hirsch,
No. 76-279, 1977 WL 15572 (E.D. Pa. 1977) and McCormick v. Hirsch, 460 F. Supp. 1337
(M.D. Pa. 1978). In both cases, a district court vacated NLRB proceedings on First Amendment
grounds. 1977 WL 1552, at *1; 360 F. Supp. at 1348. Yet both decisions, nonbinding as they
are, now stand on shaky ground even in their own Circuit, where the Third Circuit subsequently
held that Leedom creates no jurisdiction for a “pre-election suit.” NLRB v. Interstate Dress
Carriers, Inc., 610 F.2d 99, 106 (3d Cir. 1976) (noting further that “it is not clear that the Court
intended that employers, who do, after all, have [appellate] review [], be able to assert pre-
election suits under [Leedom]”). In any event, binding appellate precedent instructs this Court
that all appellate review in the Court of Appeals must be vitiated before a district court may
exercise subject matter jurisdiction over a challenge to NLRB proceedings. See Cox v.
McCulloch, 315 F.2d 48, 50 (D.C. Cir. 1963). Because appellate review is available to Plaintiff
after NLRB’s ultimate decision, Leedom does not apply under the law of this Circuit. See
Schwarz, 12 F. Supp. 3d at 87.
5
Lastly, Plaintiff relies on the general principle that “[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976). Plaintiff is correct that a religious institution would
have to wait until its appellate rights are perfected by an ultimate NLRB decision on the merits
before it may sue in a Court of Appeals to vindicate its First Amendment freedoms. See Am.
Fed. of Labor v. NLRB, 308 U.S. 401, 409 (1940) (holding that appellate review of
representation proceedings is unavailable until a decision is issued). Yet constitutional claims
have no “talismanic significance” in bypassing administrative review channeled exclusively to
the federal Courts of Appeals. Jarkesy v. SEC, 803 F.3d 9, 18 (D.C. Cir. 2015).
IV. CONCLUSION
For the foregoing reasons, the Court DISMISSES this action sua sponte for lack of
subject matter jurisdiction and DENIES AS MOOT Plaintiff’s [6] Motion for Preliminary
Injunction and Defendant’s [19] Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a). An
appropriate order accompanies this memorandum opinion.
Dated: April 11, 2023
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
6