Pilchman v. National Labor Relations Board

17-1697(L)

Pilchman v. National Labor Relations Board

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

18th day of December, two thousand twenty.

Present: DENNIS JACOBS,

ROSEMARY S. POOLER,

JOSEPH F. BIANCO,

Circuit Judges.

_____________________________________________________

ROBERT PILCHMAN,

Plaintiff-Appellant,

v. 17-1697(L)

20-52(con)

20-66(con)

NATIONAL LABOR RELATIONS BOARD, NEW YORK

STATE PUBLIC EMPLOYMENT RELATIONS BOARD,

NEW YORK STATE DIVISON OF HUMAN RIGHTS,

BROOKLYN PUBLIC LIBRARY, BROOKLYN LIBRARY

GUILD LOCAL 1482 OF THE AMERICAN FEDERATION

OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,

AFL-CIO, DISTRICT COUNCIL 37 OF THE AMERICAN

FEDERATION OF STATE, COUNTY AND MUNICIPAL

EMPLOYEES, AFL-CIO,

Defendants-Appellees.

_____________________________________________________

Appearing for Appellant: Robert Pilchman, pro se, Brooklyn, N.Y.

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Appearing for Appellee

National Labor Relations Board: Kevin P. Flanagan, Dalford Dean Owens, Jr., Peter B.

Robb, Alice B. Stock, Nancy E. Kessler Platt, William G.

Mascioli, National Labor Relations Board, Washington,

D.C.

Appearing for Appellee New York

State Public Employment Relations

Board and New York State Division

of Human Rights: Barbara D. Underwood, Solicitor General, Judith N. Vale,

Senior Assistant Solicitor General, Amit R. Vora, Assistant

Solicitor General, for Letitia James, Attorney General State

of New York, New York, N.Y.

Appearing for Appellee

Brooklyn Public Library: Clifford R. Atlas, Daniel D. Schudroff, Katherine Kettle Di

Prisco, Jackson Lewis P.C., New York, N.Y.

Appearing for Appellee

Brooklyn Library Guild Local 1482

of the American Federation of

State, County and Municipal

Employees, AFL-CIO and

District Council of State, County

and Municipal Employees,

AFL-CIO: Robin Roach, Steven Edward Sykes, District Council 37,

AFSCME, AFL-CIO, New York, N.Y.

Appeal from the United States District Court for the Eastern District of New York

(Townes, J., Kuntz, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of said District Court be and it hereby is AFFIRMED.

Robert Pilchman appeals from the dismissal of his complaints against the National Labor

Relations Board (“NLRB”), the New York State Public Employment Relations Board (“PERB”),

the New York State Division of Human Rights, his former employer the Brooklyn Public Library

(“Library”), and his union. In his first action, Pilchman alleged that the general counsel of the

NLRB improperly declined to issue an unfair labor practice complaint, and the PERB improperly

denied his application for injunctive relief against the Library. Pilchman v. National Labor

Relations Board, 14-cv-7083 (E.D.N.Y.) (“Pilchman I”). In the second, he reiterated his claims

and further alleged that the defendants had not complied with his Freedom of Information Act

and New York’s Freedom of Information Law requests. Pilchman v. National Labor Relations

Board, 15-cv-3176 (E.D.N.Y.) (“Pilchman II”). In the third, he sued only the Library and alleged

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that the library had violated his First Amendment rights. Pilchman v. Brooklyn Public Library,

E.D.N.Y. 15-cv-3641 (“Pilchman III”). The district court dismissed the first action, reasoning

that it lacked jurisdiction to review a decision of the NLRB general counsel not to issue an unfair

labor practice complaint and declining to exercise supplementary jurisdiction over his remaining

state law claims. The court dismissed the second and third actions for failure to state a claim.

We assume the parties’ familiarity with the underlying facts, procedural history, and

specification of issues for review.

The issue underlying the district court’s dismissals of Pilchman I and II is whether the

district court had jurisdiction to review a decision of the NLRB general counsel not to issue an

unfair labor practice complaint. The district court did not have such jurisdiction.

The district court had jurisdiction “only if authorized by statute.” Bell v. New Jersey, 461

U.S. 773, 777 (1983). Typically, federal court review of agency decisions is governed by the

Administrative Procedure Act, unless some other statute “preclude[s] judicial review.” 5 U.S.C.

§ 701(a)(1). The Supreme Court has held that the National Labor Relations Act is such a statute.

See N.L.R.B. v. United Food and Commercial Workers Union, Local 23, AFL-CIO, 484 U.S.

112, 130–33 (1987). The NLRA provides that “[a]ny person aggrieved by a final order of the

Board … may obtain a review of such order in any United States court of appeals in the circuit

wherein the unfair labor practice in question was alleged to have been engaged in . . . by filing in

such a court a written petition praying that the order of the Board be modified or set aside.” 29

U.S.C. § 160(f) (emphasis added).

Thus, the NLRA does not provide for district court jurisdiction to review NLRB

decisions. This Court lacks jurisdiction over the general counsel’s decision because it is not a

final order within the meaning of 29 U.S.C. § 160(f); see United Food and Commercial Workers

Union Local 23, 484 U.S. at 129. While we have recognized a potential exception when there is

an assertion of a violation of constitutional rights which is “not transparently frivolous.” Fay v.

Douds, 172 F.2d 720, 723 (2d Cir. 1949), Pilchman does not allege any constitutional violations

by the NLRB. Accordingly, the district court lacked jurisdiction to review the NLRB general

counsel’s decision and was required to dismiss Pilchman’s claim against the NLRB. Because

Pilchman’s claim against the NLRB was the only federal claim in his first action, the district

court properly declined to exercise supplemental jurisdiction over his claims against the

remaining defendants. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.

2006).

We have considered the remainder of Pilchman’s arguments and find them to be without

merit. Accordingly, the order of the district court hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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