Remington Lodging & Hospitality, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2014 Decided April 8, 2014

No. 13-1146

REMINGTON LODGING & HOSPITALITY, LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

On Petition for Review of an Order

of the National Labor Relations Board

Jared D. Cantor, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

briefs were Richard F. Griffin, Jr., General Counsel, John H.

Ferguson, Associate General Counsel, Linda Dreeben,

Deputy Associate General Counsel, and Julie B. Broido,

Supervisory Attorney. Milakshmi V. Rajapakse, Attorney,

entered an appearance.

Karl M. Terrell argued the cause and filed the brief for

petitioner. Arch Y. Stokes entered an appearance.

Before: TATEL, BROWN, and MILLETT, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

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TATEL, Circuit Judge: The National Labor Relations

Board moves to transfer this petition for review of one of its

orders to the Ninth Circuit where another petition for review

of the same order has been filed. For the reasons set forth

below, we grant the motion.

I.

Recognizing that those aggrieved by a single agency

action may petition for review in different courts of appeals,

Congress established rules, codified at 28 U.S.C. § 2112(a), to

consolidate such proceedings in a single court. If within ten

days of issuing an order, the agency “receives, from the

persons instituting the proceedings,” 28 U.S.C § 2112(a)(1), a

petition for review that has been “stamped by the court with

the date of filing,” id. § 2112(a)(2), then the agency must file

the relevant record in that court of appeals “notwithstanding

the institution in any other court of appeals of proceedings for

review of that order,” id. § 2112(a)(1). But if within the ten-

day period, the agency “receives, from the persons instituting

the proceedings,” two or more court-and-date-stamped

petitions relating to the same order filed in different courts of

appeals, then the Judicial Panel on Multidistrict Litigation

“shall, by means of random selection,” designate in which

court of appeals the agency shall file the record. Id.

§ 2112(a)(1), (3). In either case, all other courts of appeals

must then transfer any related proceedings to the court in

which the agency files the record. Id. § 2112(a)(5).

Remington Lodging and UNITE HERE! Local 878 (“the

Union”) have both petitioned for review of the same National

Labor Relations Board order, though they have done so in

different circuits. The Union filed its petition for review in the

Ninth Circuit. To satisfy section 2112(a)(1), it then promptly

mailed a court-and-date-stamped copy to the Board.

Remington filed its petition for review in this court. Unlike

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the Union, it never personally transmitted a court-and-date-

stamped copy to the Board. Instead, this court’s Clerk’s

Office, acting pursuant to section 10(f) of the National Labor

Relations Act, which directs the clerk to “forthwith” transmit

“[a] copy of” any filed petition for review to the Board, sent

the Board a copy of Remington’s petition. 29 U.S.C. § 160(f).

Although the Board concedes that it received this court-and-

date-stamped copy within section 2112(a)(1)’s ten-day time

limit, it argues that it did not “receive” the copy “from the

persons [i.e., Remington] instituting the proceedings.” See 28

U.S.C. § 2112(a)(1) (emphasis added). Claiming that it

therefore received only the Union’s petition within the

statutory ten-day period, the Board moves to transfer this case

to the Ninth Circuit. See id. § 2112(a)(5). Remington opposes

the motion, insisting that the Clerk’s Office’s transmission of

the petition pursuant to section 10(f) satisfied section

2112(a)(1).

II.

The parties agree that the question before us turns on

whether the Clerk’s Office’s transmission to the Board of the

court-and-date-stamped copy of Remington’s petition

qualifies as a petition “receive[d]” by the Board “from the

persons instituting the proceedings.” If it does not (the

Board’s position), then we must transfer this petition to the

Ninth Circuit. If it does (Remington’s position), then the

Judicial Panel on Multidistrict Litigation will randomly select

which court of appeals will hear the challenges to the Board’s

order.

According to the Board, section 2112(a)(1)’s language—

requiring receipt “from the persons instituting the

proceedings”—means what it says: that “it is the petitioner’s

(and not the court’s) service of a court-stamped petition on the

agency that is determinative.” Respondent’s Br. 9. This also

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makes policy sense, the Board contends, because it “rightly

places the responsibility in the hands of the party seeking to

secure the protection of Section 2112” and allows the agency

to “promptly move to secure the proper forum without

waiting for a clerk’s office to process and serve the petition

for review.” Respondent’s Br. 10. And, as the Board points

out, both this and the Second Circuit have, in unpublished

opinions, found section 2112(a)(1) unsatisfied where the

Board received the petition for review only from the Clerk’s

Office. See Omaha World-Herald v. NLRB, No. 12-1005

(D.C. Cir. May 14, 2012); Local Union 36 v. NLRB, No. 10-

3448 (2d Cir. Dec. 28, 2010).

The Board’s position finds ample support in section

2112(a)’s text, which expressly requires that the Board

“receive” the petition “from the persons instituting the

proceedings.” The Board may “receive[]” a petition “from the

persons instituting the proceedings” in a number of ways: the

petitioner might deliver the petition personally; send it

through an agent, such as a messenger; or mail it. But under

no ordinary reading of the statutory language would Board

receipt of a mailing from the Clerk’s Office qualify as one

“receive[d] from the persons instituting the proceedings.”

Were we to interpret “receives[] from the persons instituting

the proceedings” to include receipt from the Clerk’s Office—

the only other entity from which the Board might receive a

court-and-date-stamped copy of a petition for review—section

2112(a)’s receipt requirement would become meaningless.

See Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004)

(recognizing “preference for avoiding surplusage

constructions”). If Congress had intended the rule Remington

urges, it would have simply left the critical phrase out, so that

the statute would have read: “[i]f within ten days after

issuance of the order. . . [the Board] receives, from the

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persons instituting the proceedings, the petition for review

. . . .”

Remington’s reliance on the mailing by the Clerk’s

Office ignores the fact that sections 10(f) and 2112(a) perform

very different functions. Compliance with section 10(f)

initiates judicial review of a Board order and notifies the

Board that a petitioner seeks review. Compliance with section

2112(a) informs the Board that the petitioner seeks to take

advantage of the optional procedure for preserving its choice

of forum. Because every petitioner seeking review of a Board

order must comply with section 10(f), section 2112(a) can

serve its separate notice function only if petitioners wishing to

take advantage of that section’s forum selection procedure

comply with it separately.

Finally, far from being “absurd” or a meaningless

formality, Pet’r’s Br. 14, requiring petitioners to comply

personally with section 2112(a) makes a good deal of sense. It

both alerts the agency that the petitioner cares about its

chosen forum and, as the Board explains, imposes the burden

of compliance on the party seeking to benefit from section

2112(a). In any event, Congress can make litigants “turn

square corners.” Rock Island, Arkansas & Louisiana Railroad

Co. v. United States, 254 U.S. 141, 143 (1920).

III.

We grant the Board’s motion to transfer this petition for

review to the Ninth Circuit.

So ordered.