concluding an argument raised in a footnote but not pressed and adequately briefed is waived
How later courts described this case
- concluding an argument raised in a footnote but not pressed and adequately briefed is waived
- applying the Bennett standard to a petition for review under Section 10(f) of the NLRA
Written by the judges who cited it.
The opinion
Case: 21-60532 Document: 00516723297 Page: 1 Date Filed: 04/24/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 24, 2023
No. 21-60532
Lyle W. Cayce
Clerk
United Natural Foods, Incorporated, doing business as
United Natural Foods, Incorporated and SuperValu,
Incorporated,
Petitioner,
versus
National Labor Relations Board,
Respondent.
Petition for Review of an Order of the
National Labor Relations Board
NLRB No. 19-CA-249264
NLRB No. 19-CB-250856
Before Higginbotham, Higginson, and Oldham, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
After the Acting General Counsel of the National Labor Relations
Board withdrew an unfair labor practice complaint that his predecessor had
issued against a union, the aggrieved employer requested permission to
appeal the complaint’s withdrawal to the Board. The Board denied the
request, concluding that the Acting General Counsel’s decision was an
unreviewable act of prosecutorial discretion. The employer then petitioned
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No. 21-60532
this court for review of the Board’s order. We determine that we have
jurisdiction and DENY the petition.
I.
On October 28, 2019, United Natural Foods Inc. (“UNFI”) filed an
unfair labor practice charge with the National Labor Relations Board
(“NLRB” or “Board”).1 As amended, the charge alleges that International
Brotherhood of Teamsters Local 117 and Local 313 (the “Unions”) violated
the National Labor Relations Act (“NLRA”) by (1) attempting to impose
union representation on certain of UNFI’s employees, (2) attempting to
cause UNFI to discriminate among its employees, and (3) refusing to
collectively bargain with UNFI. Local 117 also filed an unfair labor practice
charge against UNFI.
On July 29, 2020, NLRB’s Regional Director for Region 19 (the
“Regional Director”), acting on behalf of NLRB’s General Counsel at the
time, Peter B. Robb, issued a Consolidated Complaint alleging that the
Unions had violated subsections 8(b)(1)(A), 8(b)(2), and 8(b)(3) of the
NLRA. The Consolidated Complaint also alleged that UNFI had violated
1
This opinion uses the term “NLRB” when referring either to the agency generally
or to enforcement officials within the agency, such as the agency’s General Counsel and
regional directors. It uses the term “Board” when referring specifically to the five-member
body that performs a quasi-judicial function. Compare 29 U.S.C. § 153(a) (creating a
“National Labor Relations Board” of five members), and id. § 160(c) (authorizing the
“Board” to adjudicate labor disputes), with id. § 153(d) (creating a “General Counsel of
the Board” who “shall exercise general supervision over all attorneys employed by the
Board” and “shall have final authority, on behalf of the Board, in respect of the
investigation of charges and issuance of complaints . . . , and in respect of the prosecution
of such complaints before the Board”); see also Exela Enter. Sols., Inc. v. Nat’l Lab. Rels.
Bd., 32 F.4th 436, 443 (5th Cir. 2022) (explaining that the Board was created “to execute
quasi-legislative, quasi-judicial functions,” in contrast to NLRB’s General Counsel, who
“perform[s] quintessentially prosecutorial functions”).
2
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various provisions of the NLRA. A hearing was scheduled to take place
before an administrative law judge on March 2, 2021.
In January 2021, President Biden removed Robb from the office of
NLRB General Counsel and designated Peter Sung Ohr as Acting General
Counsel. Subsequently, the Unions moved to postpone the scheduled
hearing so that Acting General Counsel Ohr could review the complaint and
determine whether his office wished to continue pursuing the case. The
Regional Director granted the request, rescheduling the hearing to April 6.
The Unions also wrote directly to Ohr to request that he reconsider the
decision to issue a complaint against them.
On February 1, UNFI filed with the Board a motion to sever the case
against UNFI from the case against the Unions, to transfer the case against
the Unions from the administrative law judge to the Board, and for summary
judgment against the Unions. Before the Board ruled on the motion, the
Regional Director, now acting on behalf of Acting General Counsel Ohr,
issued an order (the “RD Order”) severing the claims against UNFI2 and
withdrawing the Consolidated Complaint to the extent that it alleged claims
against the Unions. The RD Order explained that after reviewing “the
allegations in the Consolidated Complaint,” the Acting General Counsel had
decided to exercise “his prosecutorial discretion” and dismiss the charges
against the Unions.
UNFI filed with the Board both a request for special permission to
appeal the RD Order and the appeal itself,3 arguing that the Acting General
2
UNFI ultimately settled this case, leading to a dismissal of the charges.
3
See 29 C.F.R. § 102.26 (providing that the rulings of Regional Directors “may not
be appealed directly to the Board except by special permission of the Board” and that
“[r]equests to the Board for special permission to appeal” must be filed “together with the
appeal”).
3
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Counsel had no authority to unilaterally dismiss the charges against the
Union after UNFI had filed its motion for summary judgment and that the
appointment of Acting General Counsel Ohr was unlawful. UNFI also filed
an appeal with the Acting General Counsel.4
The Board denied UNFI’s request for special permission to appeal
the RD Order on May 11. The Board reasoned that UNFI’s request “is not
properly before the Board” because “the Regional Director has the
prosecutorial discretion to withdraw a complaint sua sponte at any time
before the hearing” and “[h]is exercise of that discretion is not subject to
Board or court review.” The Board explained that even though UNFI had
moved for summary judgment, the complaint had not “advanced so far into
the adjudicatory process that a dismissal takes on the character of an
adjudication.” The Board further stated that because it did not have
jurisdiction to review the RD Order, it would not consider UNFI’s
arguments regarding the appointment of Acting General Counsel Ohr.
However, the Board did note that “UNFI may appeal the Regional
Director’s decision to withdraw the complaint to the General Counsel
consistent with Section 102.19.”
The Acting General Counsel denied UNFI’s appeal on June 22. He
rejected UNFI’s argument that by dismissing the charges against the Unions
he “was adjudicating the merits of the case, rather than acting in his
prosecutorial capacity.” Rather, he stated that he had “simply reviewed the
evidence and determined that a violation had not occurred and a complaint
was not appropriate.”
4
See 29 C.F.R. § 102.19 (providing that a Regional Director’s decision to withdraw
a complaint may be appealed to the General Counsel).
4
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UNFI petitioned this court for review of the Board’s order denying it
permission to appeal the RD Order.5 NLRB subsequently filed a motion to
dismiss the petition for review for lack of jurisdiction. A panel of this court
carried the motion with the case.
II.
We first consider NLRB’s jurisdictional challenge, which the agency
renewed in its brief.
“Except as authorized by statute, a court of appeals does not have
jurisdiction to review actions of the Board.” Shell Chem. Co. v. NLRB, 495
F.2d 1116, 1119 (5th Cir. 1974). Section 10 of the NLRA, 29 U.S.C. § 160, “is
the sole provision vesting review [of Board actions] with the courts of
appeal.” Id. That provision authorizes “[a]ny person aggrieved by a final
order of the Board” to petition for review in an appropriate federal appellate
court. 29 U.S.C. § 160(f). NLRB maintains that we do not have jurisdiction
over UNFI’s petition because the Board order at issue in this case is not
“final.”
“[T]he phrase ‘a final order of the Board’, as used in [§ 160(f)], refers
solely to an order of the Board either dismissing a complaint in whole or in
part or directing a remedy for the unfair labor practices found.” Shell Chem.,
495 F.2d at 1120 (quoting Laundry Workers Int’l Union Loc. 221 v. NLRB, 197
F.2d 701, 703 (5th Cir. 1952)). The Board’s order in this case “denied”
UNFI’s “request for special permission to appeal” the RD Order, which had
itself “withdrawn” part of the Consolidated Complaint and “dismissed” the
charges against the Unions. Because the Board’s order allowed an order
dismissing a complaint to remain in place, the order had the practical effect
5
UNFI did not—and could not—appeal the Acting General Counsel’s denial of
its appeal of the RD Order.
5
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of dismissing the complaint. Accordingly, the Board’s order qualifies as “a
final order of the Board” under Shell Chemical. Cf. U.S. Army Corps of Eng’rs
v. Hawkes Co., 578 U.S. 590, 599-600 (2016) (describing “the ‘pragmatic’
approach” that the Supreme Court has “long taken to finality” (citation
omitted)).
NLRB points us to several cases in which courts dismissed for lack of
jurisdiction petitions for review brought under 29 U.S.C. § 160(f). However,
these cases all prove inapposite. In Laundry Workers, we held that we did not
have jurisdiction to review the Board’s decision not to issue a pre-complaint
subpoena. 197 F.2d at 702-04. In Shell Chemical, we concluded that we could
not review “the quashing of the notice of a section 10(k) proceeding,” an
action that occurs before the issuance of any complaint alleging unfair labor
practices. 495 F.2d at 1121.6 And in J. P. Stevens Employees Educational
Committee v. NLRB, the Fourth Circuit determined that it did not have
jurisdiction to review a Board order denying a request for special permission
to appeal the denial of a motion to intervene, explaining that “the Board’s
denial of a motion to intervene is reviewable in this court after the Board has
concluded the unfair labor practice hearing and issued its final order.” 582
F.2d 326, 328-329 (4th Cir. 1978). Because none of these cases involved a
Board order that effectively dismissed a complaint, they do not support
NLRB’s argument that we lack jurisdiction over this petition.
The most analogous case that the parties have identified is
Boilermakers Union Local 6 v. NLRB, 872 F.2d 331 (9th Cir. 1989). In that
6
Section 10(k) proceedings are a method of resolving jurisdictional disputes
between labor unions “without the cumbersome, fault determining, and coercive process
of an unfair labor practice proceeding under section 8(b)(4)(D).” Shell Chemical, 495 F.2d
at 1121; see 29 U.S.C. §§ 158(b)(4)(D), 160(k). In cases where Section 10(k) applies, “a
complaint on a section 8(b)(4)(D) charge does not issue until after the provisions of section
10(k) have been satisfied.” Shell Chemical, 495 F.2d at 1122.
6
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case, the underlying Board order had held that the General Counsel had
prosecutorial discretion to withdraw a complaint, reversing an administrative
law judge’s order denying the General Counsel’s motion to withdraw. Id. at
331-32. Thus, as in this case, the Boilermakers petitioner was challenging a
Board order concluding that the General Counsel had discretion to withdraw
a complaint. However, NLRB did not ask the Ninth Circuit to dismiss the
petition for lack of jurisdiction. Instead, the agency argued that the “court’s
review is limited to deciding whether the General Counsel’s decision was an
act of prosecutorial discretion,” and the Ninth Circuit agreed. Id. at 332.
Boilermakers thus supports the proposition that we do have jurisdiction to
review the Board’s conclusion that the Acting General Counsel had
prosecutorial discretion to withdraw the complaint against the Unions.7
NLRB argues that, regardless of this pre-1990 lower court caselaw
interpreting the NLRA, the Board’s order does not qualify as “final” under
later-in-time Supreme Court decisions elucidating general principles of
administrative law. The Supreme Court set forth the following test for
finality in a case involving the Administrative Procedure Act (“APA”):
As a general matter, two conditions must be satisfied for agency
action to be “final”: First, the action must mark the
“consummation” of the agency’s decisionmaking process—it
must not be of a merely tentative or interlocutory nature. And
second, the action must be one by which “rights or obligations
have been determined,” or from which “legal consequences
will flow.”
7
As discussed further below, the Ninth Circuit ultimately denied the petition for
review in Boilermakers, holding “that the General Counsel’s decision to withdraw the
complaint was an act of prosecutorial discretion which is non-reviewable.” 872 F.2d at 332,
334.
7
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Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted); see also
Sackett v. EPA., 566 U.S. 120, 126-27 (2012) (applying the Bennett test).
NLRB points out that when the Board issued its order on May 11, 2021,
UNFI’s appeal to the Acting General Counsel remained pending. Therefore,
NLRB argues, the Board’s order did not consummate the agency’s decision-
making process or cause any legal consequences.
However, when applying Bennett to this case, we must keep in mind
that while Bennett interpreted the APA, which authorizes judicial review of
“final agency action,” 520 U.S. at 177 (emphasis added) (quoting 5 U.S.C.
§ 704), UNFI invokes the NLRA as the source of this court’s jurisdiction.
The NLRA “distinguishe[s] orders of the General Counsel from Board
orders,” NLRB v. United Food & Commercial Workers Union, Loc. 23
(UFCW), 484 U.S. 112, 128 (1987) (citing 29 U.S.C. §§ 153, 160), and it
authorizes judicial review only of “final order[s] of the Board.” 29 U.S.C.
§ 160(f) (emphasis added); see also UFCW, 484 U.S. at 129 (explaining that
§ 160(f) “provides that final decisions ‘of the Board’ shall be judicially
reviewable” but “plainly cannot be read to provide for judicial review of the
General Counsel’s prosecutorial function”). Thus, when determining
whether this case satisfies the first Bennett condition, UNFI’s appeal to the
Acting General Counsel is irrelevant. The question is not whether the
Board’s order marked the consummation of the entire agency’s decision-
making process but rather whether the order marked the culmination of the
Board’s decision-making process. And the answer to that question is yes.
When it denied UNFI special permission to appeal the RD Order dismissing
the complaint against the Unions, the Board consummated its decision-
making process. See 29 C.F.R. § 102.26 (providing that a Regional Director’s
order can only be appealed with the Board’s permission); Bennett, 520 U.S.
at 177-78.
8
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The Board’s order also satisfies the second Bennett condition. The
order determined that the Acting General Counsel was “permitted to
withdraw the complaint” against the Unions. Moreover, by permitting the
Acting General Counsel to dismiss the complaint against the Unions, the
order rendered moot UNFI’s pending motion for summary judgment. The
Board’s order thus had “direct and appreciable legal consequences.”
Bennett, 520 U.S. at 178.
In sum, the Board order at issue in this case qualifies as “final” under
the Supreme Court’s decision in Bennett, this court’s decision in Shell
Chemical, and the Ninth Circuit’s decision in Boilermakers. The cases that
NLRB cites provide no reason to think otherwise. An agency must carry a
“heavy burden” to rebut the “strong presumption favoring judicial review
of administrative action,” Salinas v. United States R.R. Ret. Bd., 141 S. Ct.
691, 698 (2021) (quoting Mach Mining, LLC v. EEOC, 575 U.S. 480, 486
(2015)), and NLRB has not carried that burden here. Accordingly, we have
jurisdiction over UNFI’s petition for review. See 29 U.S.C. § 160(f).
III.
UNFI raises two issues in its petition for review. First, it argues that
the Acting General Counsel (acting through the Regional Director)8 lacked
authority to withdraw the complaint against the Unions because UNFI had
filed a motion for summary judgment. Second, it argues that the Acting
General Counsel lacked authority to withdraw the complaint because former
General Counsel Robb had been improperly removed from office.
8
See 29 U.S.C. § 153(d) (providing that the General Counsel has “final
authority . . . in respect of the prosecution of . . . complaints before the Board” and
“exercise[s] general supervision over all attorneys employed by the Board . . . and over the
officers and employees in the regional offices”).
9
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A.
“[T]he language, structure, and history of the NLRA, as amended,
clearly differentiate between ‘prosecutorial’ determinations, to be made
solely by the General Counsel and which are not subject to review under the
[NLRA], and ‘adjudicatory’ decisions, to be made by the Board and which
are subject to judicial review.” UFCW, 484 U.S. at 130. UNFI argues that
when it filed a motion for summary judgment against the Unions, the decision
of whether to withdraw the complaint against the Unions became an
adjudicatory decision to be made by the Board.
The Board rejected this argument as to its own authority. It explained
that even though “UNFI had filed its motion for summary judgment before
the Regional Director withdrew the complaint,” the Board had not “issued
a Notice to Show Cause,” and accordingly “the case had not yet transferred
to the Board.” For this reason, the Board did not view the complaint as
having “advanced so far into the adjudicatory process that a dismissal takes
on the character of an adjudication.” Rather, the Board concluded that “the
Regional Director has the prosecutorial discretion to withdraw a complaint
sua sponte at any time before the hearing” and that “[h]is exercise of that
discretion is not subject to Board or court review.”
“We accord Chevron deference to the Board’s reasonable
interpretations of ambiguous provisions in the NLRA.” Entergy Miss., Inc. v.
NLRB, 810 F.3d 287, 292 (5th Cir. 2015). The NLRA is ambiguous regarding
where to draw the line between prosecutorial and adjudicatory decisions. See
UFCW, 484 U.S. at 125 (explaining that some NLRB decisions “might fairly
be said to fall on either side of the division” between prosecutorial and
adjudicatory). Accordingly, we must uphold the Board’s conclusion that the
Acting General Counsel had discretion to withdraw the complaint if that
conclusion has “a reasonable basis in the law and [is] not inconsistent with
10
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the Act.” Entergy, 810 F.3d at 292; see also UFCW, 484 U.S. at 125
(explaining that when considering the question of whether an NLRB action
is prosecutorial or adjudicatory, a court’s “task . . . is not judicially to
categorize each agency determination, but rather to decide whether the
agency’s regulatory placement is permissible”).9
The NLRA provides that the General Counsel “shall have final
authority . . . in respect of the prosecution of . . . complaints before the
Board.” 29 U.S.C. § 153(d). Given this text, along with the NLRA’s
structure and history, the Supreme Court has “h[e]ld that it is a reasonable
construction of the NLRA to find that until the hearing begins, settlement or
dismissal determinations are prosecutorial.” UFCW, 484 U.S. at 125-26.
The Court reasoned that since the General Counsel has “the concededly
unreviewable discretion to file a complaint,” they must also have “the same
discretion to withdraw the complaint before hearing if further investigation
discloses that the case is too weak to prosecute.” Id. at 126. Here, the
9
UNFI briefly suggests in a footnote that “Chevron should be abandoned in regard
to the NLRB because recurring changes in positions by the Board and/or its General
Counsel—as this case, and many others, illustrate—make de novo court review necessary
to promote ‘stability of labor relations,’ which is the ‘primary objective’ of the NLRA.”
Because UNFI supports this argument with only a “see generally” citation to five law review
articles, without directing the court to specific pages or contentions within those articles,
this argument is waived. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010)
(“A party that asserts an argument on appeal, but fails to adequately brief it, is deemed to
have waived it. It is not enough to merely mention or allude to a legal theory. . . . A party
must ‘press’ its claims. At the very least, this means clearly identifying a theory as a
proposed basis for deciding the case—merely ‘intimating’ an argument is not the same as
‘pressing’ it.” (cleaned up)). Even if we were to consider the merits of this argument,
UNFI conceded at oral argument that it could not cite a single case that supported its
position. Rather, the Supreme Court has made it clear that “[a]gency inconsistency is not
a basis for declining to analyze the agency’s interpretation under the Chevron framework.”
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
Moreover, as explained below, the Board order in this case does not conflict with prior
Board decisions.
11
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Regional Director (acting as an agent of the Acting General Counsel)
withdrew the complaint against the Unions on February 24, 2021, well before
the scheduled hearing date of April 6. Because the Regional Director
withdrew the complaint before the hearing, his action appears to be an
unreviewable act of prosecutorial discretion under the express terms of
UFCW. See 484 U.S. at 125-26, 130; see also 29 C.F.R. § 102.18 (NLRB
regulation providing that “[a] complaint may be withdrawn before the
hearing by the Regional Director on the Director’s own motion”).
UNFI attempts to distinguish UFCW, pointing out that in that case,
the Court stated that it was addressing the “narrow” issue of “whether a
postcomplaint, prehearing informal settlement” between the General
Counsel and a charged party—which, under NLRB regulations, does not
require Board approval—“is subject to judicial review.” UFCW, 484 U.S. at
121, 122-23. Accordingly, UNFI reasons, UFCW does not apply to cases such
as this one, where the General Counsel unilaterally withdraws a complaint
even though a party has filed a motion for summary judgment. UNFI also
emphasizes that under the Board’s own precedents, “[a]t some point . . . a
complaint may be said to have advanced so far into the adjudicatory process
that a dismissal takes on the character of an adjudication,” Sheet Metal
Workers Int’l Ass’n Loc. Union 28 (American Elgen), 306 N.L.R.B. 981, 982
(1992), and that, in drawing the line between prosecutorial and adjudicatory
actions, the Board has stated that “the General Counsel has unreviewable
discretion . . . to withdraw a complaint after the hearing on it has opened but
before any evidence has been introduced, at least so long as there is no
contention that a legal issue is ripe for adjudication on the parties’ pleadings
alone,” id. at 981 (emphasis added). Therefore, UNFI concludes, if a party
has filed a motion for summary judgment in an NLRB unfair labor practice
case, Board precedent supports the proposition that the General Counsel
does not necessarily have discretion to withdraw the complaint any time
12
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before the hearing, and Supreme Court precedent does not compel a different
holding.
Indeed, UNFI maintains, the Board’s conclusion that the General
Counsel can withdraw a complaint after a party has filed a motion for
summary judgment is irrational. After all, whenever the Board receives a
motion for summary judgment, NLRB regulations provide that “the Board
may deny the motion or issue a Notice to Show Cause why the motion may
not be granted.” 29 C.F.R. § 102.24(b). This decision turns on whether
“there is a genuine issue for hearing.” Id. Pointing to Federal Rule of Civil
Procedure 56(a), UNFI argues that the Board’s inquiry into whether a
summary judgment motion has sufficient merit to warrant issuance of a
Notice to Show Cause “is a classic example of an adjudicative
determination.” A federal court plaintiff cannot unilaterally dismiss a
complaint once the defendant has filed a motion for summary judgment,
Fed. R. Civ. P. 41(a)(1)(A)(i), and UNFI insists that an analogous rule
must apply in NLRB proceedings.
In response, NLRB stresses that when the Acting General Counsel
withdrew the complaint, the Board had not yet taken any action on UNFI’s
motion for summary judgment. As explained above, when the Board receives
a summary judgment motion, it may either deny the motion or issue a Notice
to Show Cause. 29 C.F.R. § 102.24(b). Additionally, when “the Board deems
it necessary to effectuate the purposes of the [NLRA] or to avoid unnecessary
costs or delay, it may . . . order that [a] complaint and any proceeding which
may have been instituted with respect thereto be transferred to and
continued before it,” 29 C.F.R. § 102.50, and the Board stated in its order
that it transfers a case whenever it issues a Notice to Show Cause. Here,
although UNFI had filed a summary judgment motion, the Board had neither
issued a Notice to Show Cause nor transferred the case to itself at the time
that the complaint was withdrawn. NLRB argues that “the Board reasonably
13
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determined that before the General Counsel is divested of the prosecutorial
authority to withdraw a pre-hearing complaint, the Board must at least have
taken the initial step to issue a Notice to Show Cause and to transfer the
complaint and related proceedings to itself.”
We agree with NLRB. We are reluctant to place too much weight on
UNFI’s analogies to the Federal Rules of Civil Procedure, since the Supreme
Court has cautioned against “attempt[s] to analogize the role of the General
Counsel in an unfair labor practice setting to other contexts,” stating that
such analogies are “of little aid.” UFCW, 484 U.S. at 126 n.21. More
importantly, while one can reasonably argue that under a de novo
interpretation of the NLRA, the General Counsel might not have discretion
to withdraw a complaint after a motion for summary judgment has been filed,
we are not interpreting the NLRA de novo. Rather, the Supreme Court was
clear in UFCW that our task is only to determine whether the Board’s
categorization of the RD Order as prosecutorial is “permissible,” and in that
case the Court specifically “h[e]ld that it is a reasonable construction of the
NLRA to find that until the hearing begins, settlement or dismissal
determinations are prosecutorial.” Id. at 125-26. This holding might not
govern cases where a Notice to Show Cause has issued, because in such cases
a hearing might never occur. See 29 C.F.R. § 102.24(b) (“If a Notice to Show
Cause is issued, the hearing, if scheduled, will normally be postponed
indefinitely.”). However, because the Board never issued a Notice to Show
Cause in response to UNFI’s motion for summary judgment, the April 6
hearing was still scheduled to take place when the RD Order was issued on
February 24. Accordingly, the Board’s own conclusion that the General
Counsel has discretion to withdraw unfair labor practice complaints in cases
where a motion for summary judgment has been filed but no hearing has
occurred and the Board has neither issued a Notice to Show Cause nor
14
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transferred the case to itself fits squarely within the holding of UFCW. As
such, it is a permissible interpretation of the NLRA.
The dissent’s theory that Federal Rule of Civil Procedure
41(a)(1)(A)(i) applies in unfair labor practices proceedings is similarly flawed.
The dissent relies on 29 U.S.C. § 160(b), which says that “[a]ny such
proceeding shall, so far as practicable, be conducted in accordance with the
rules of evidence applicable in the district court of the United States under
the rules of civil procedure for the district courts of the United States,
adopted by the Supreme Court of the United States pursuant to section 2072
of title 28.” Id. § 160(b) (emphasis added). The dissent reasons that because
“the Board never claimed that following Rule 41 would be impracticable,”
§ 160(b) “requires” the Board to follow Rule 41.
To begin, UNFI never argues that § 160(b) forces the NLRB to follow
Rule 41. Unpersuaded by the arguments that UNFI does make, the dissent
asserts what it thinks is a better one. But our “adversarial system of
adjudication . . . . is designed around the premise that parties represented by
competent counsel know what is best for them, and are responsible for
advancing the facts and argument[s] entitling them to relief.” United States
v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (cleaned up). UNFI did not
ask us to base our holding in § 160(b), and it would be improper for us to cross
the bench to counsel’s table and litigate the case for it.
There are good reasons why UNFI didn’t ask us to interpret § 160(b)
as requiring the NLRB to use Rule 41(a)(1)(A)(i). At least four of our sister
circuits have rejected the dissent’s premise that § 160(b) incorporates the
entire Federal Rules of Civil Procedure into Board proceedings. See DirectSat
USA LLC v. NLRB, 925 F.3d 1272, 1276-77 (D.C. Cir. 2019) (holding that
proper inquiry on review of NLRB denial of a motion to intervene is whether
the NLRB “exercised its discretion in an arbitrary way and not whether its
15
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analysis is consistent with the standards set forth in Fed. R. Civ. P. 24.”);
NLRB v. Valley Mold Co., 530 F.2d 693, 694 (6th Cir. 1976) (holding that this
language “does not require the Board to follow the discovery procedures set
forth in the Federal Rules of Civil procedure”); N. Am. Rockwell Corp. v.
NLRB, 389 F.2d 866, 871 (10th Cir. 1968) (similar); NLRB v. Vapor Blast
Mfg. Co., 287 F.2d 402, 407 (7th Cir. 1961) (similar). But see NLRB v. Consol.
Bus Transit, Inc., 577 F.3d 467, 475 (2d Cir. 2009) (interpreting similar
language in 29 C.F.R. § 101.10(a) as meaning “that the Board’s procedures
are to be controlled by the Federal Rules of Civil Procedure as far as
practicable” (cleaned up)). Indeed, the NLRB has promulgated regulations
adopting some but not all the requirements of the Federal Rules of Civil
Procedure, including different deadlines for filing motions for summary
judgment and to dismiss than those set by the Federal Rules, compare 29
C.F.R. § 102.24(b) with Fed. R. Civ. P. 56(b), Fed. R. Civ. P. 12(b),
and Fed. R. Civ. P. 12(h)(2).
In setting a procedure for withdrawing complaints, the NLRB did not
adopt the requirements of Rule 41(a)(1)(A)(i). Under 29 C.F.R. § 102.18,
“[a] complaint may be withdrawn before the hearing by the Regional
Director on the Director’s own motion.” 29 C.F.R. § 102.18. Unlike Rule
41—which does not permit a plaintiff in a civil action to dismiss the action
after “the opposing party serves . . . a motion for summary judgment,” Fed.
R. Civ. P. 41(a)(1)(A)(i)—§ 102.18 gives the Director the ability to
withdraw a complaint so long as the Director does so “before the hearing.”10
10
The dissent argues that a plaintiff proceeding under Rule 41(a)(1)(A)(i) may
“withdraw[]” “the complaint . . . on the plaintiff’s motion.” But this is an inaccurate
characterization of Rule 41(a)(1)(A)(i). Rather, pursuant to this rule, a “plaintiff may
dismiss an action without a court order” by merely filing “a notice of dismissal,” not a
motion. Fed. R. Civ. P. 41(a)(1)(A)(i) (emphasis added). Notably, the case the dissent
cites in support of this proposition concerns a different rule, Rule 41(a)(2), which provides
for dismissal “by court order.” Fed. R. Civ. P. 41(a)(2); see Templeton v. Nedlloyd Lines,
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Therefore, if Rule 41 did apply to keep the Director from withdrawing a
complaint before the hearing but after “the opposing party serve[d] . . . a
motion for summary judgment,” Fed. R. Civ. P. 41(a)(1)(A)(i), the
phrase “before the hearing” in § 102.18 would be meaningless. This alone
renders enforcement of Rule 41(a)(1)(A)(i) against the Board not
“practicable” within the meaning of § 160(b).
Applying Rule 41(a)(1)(A)(i) instead of § 102.18 would also
undermine the NLRB’s ability to prosecute unfair labor practices charges.
Congress gave the General Counsel “final authority” to “prosecut[e] . . .
complaints before the Board.” 29 U.S.C. § 153(d). It follows that the General
Counsel must “have final authority to dismiss a complaint in favor of an
informal settlement, at least before a hearing begins.” UFCW, 484 U.S. at
422. But under the dissent’s theory, a party who suspects that the NLRB
intended to informally settle a complaint could defeat the settlement—and
Supreme Court precedent—by racing to file a summary judgment motion.
Rule 41(a)(1)(A)(i) is accordingly incompatible with the statutory scheme.
Finally, even assuming that the dissent is right and Rule 41(a)(1)(A)(i)
does apply, the dissent misunderstands how Rule 41(a)(1)(A)(i) would
operate in this case. Under this rule, “the plaintiff may dismiss an action” by
filing a notice of dismissal “before the opposing party serves . . . a motion for
summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i) (emphasis added). To
the extent that we can analogize between civil litigation and an unfair labor
practice proceeding, see UFCW, 484 U.S. at 126 n.21, UNFI is not an
“opposing party” to the NLRB in the instant case. UNFI is a party aggrieved
by the Unions’ alleged unfair labor practices. UNFI filed a charge with the
901 F.2d 1273, 1274 (5th Cir. 1990). The dissent’s confusion on this point belies how poor
of a fit Rule 41 is for unfair labor practice proceedings.
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NLRB, and the NLRB decided to prosecute the charge by issuing a
complaint. Only if the Unions had moved for summary judgment would Rule
41(a)(1)(A)(i) have been triggered to stop the NLRB from unilaterally
dismissing the complaint.
Two further observations support the permissibility of the Board’s
order. First, the order is consistent with the only circuit case identified by the
parties that addresses a similar question. See Boilermakers, 872 F.2d at 333-34
(holding that “Administrative Law Judges and the Board have no authority
to review the NLRB’s General Counsel’s decision to withdraw an unfair
labor practice complaint after the hearing has commenced but before
evidence on the merits,” in part because “the General Counsel always
exercises nonreviewable prosecutorial discretion when he withdraws a
complaint because he no longer believes the evidence supports it”).
Second, we are unpersuaded by UNFI’s argument that the Board’s
order “conflicts with longstanding Board precedent holding that when the
merits of a case are being considered by an ALJ or the Board, the General
Counsel no longer has unreviewable authority over the complaint.” The
Board decisions that UNFI cites all prove readily distinguishable from this
case. In UPMC, an administrative law judge had already conducted a hearing
and issued an order before the Board approved a settlement over the
objections of the General Counsel. 365 N.L.R.B. No. 153, 2017 WL 6350171,
at *1-3 (Dec. 11, 2017). In Independent Stave Co., the Board granted a
summary judgment motion over the General Counsel’s objection, but only
after it had “issued an order transferring the proceeding to the Board and a
Notice to Show Cause.” 287 N.L.R.B. 740, 740-43 (1987). And in Robinson
Freight Lines, the Board affirmed a regional director’s decision to continue
litigating an unfair labor practice charge even though the parties had reached
a private settlement. 117 N.L.R.B. 1483, 1484-86 (1957). The Board did not
hold in any of these cases that the General Counsel’s authority over a
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complaint becomes reviewable at some point before either a hearing has
commenced or the Board has issued a notice to show cause and transferred
the case to itself.11
For the above reasons, the Board’s order is a permissible
interpretation of the NLRA. Accordingly, we must uphold it. See UFCW, 484
U.S. at 125; Entergy, 810 F.3d at 292.
B.
UNFI also argues that Acting General Counsel Ohr lacked authority
to withdraw the complaint “because his designation was invalid.” President
Biden removed General Counsel Robb from his office before the end of
Robb’s four-year term, and UNFI maintains that the President had no
authority to do so without cause. UNFI then reasons that because “the
President had no power to remove Robb, he had no power to designate Ohr
to serve as Acting General Counsel,” making “the actions Ohr took as Acting
General Counsel . . . void.”
This court recently rejected an identical argument. In Exela Enterprise
Solutions v. NLRB, we considered the petitioner’s contention that an unfair
labor practice complaint issued by Acting General Counsel Ohr “was ultra
vires because the President unlawfully removed the former General Counsel
11
We are also unpersuaded by UNFI’s argument that the Board’s emphasis on a
lack of a Notice to Show Cause is “especially arbitrary here because the Unions have
acknowledged in [related] federal district court litigation, which concededly involves the
same disputed issues, that . . . these issues are appropriate for summary-judgment
resolution.” The Unions (who were granted permission to intervene in this case) deny that
the federal district court litigation involves the exact same issues. The record does not
contain the relevant district court filings. But regardless of the status of this parallel
litigation, UNFI cites no authority for the proposition either that the Board must issue a
Notice to Show Cause or that the General Counsel cannot withdraw a complaint in cases
where the charged party has acknowledged in a related case that the issue is ripe for
summary judgment.
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without cause.” 32 F.4th 436, 441 (5th Cir. 2022). After an extensive analysis
of the NLRA’s text and structure, we held “that the NLRA does not provide
tenure protections to the General Counsel of the Board.” Id. at 445.
Accordingly, we concluded that “President Biden lawfully removed former-
General Counsel Robb without cause.” Id.
Given our recent decision in Exela, this issue is foreclosed.
IV.
We conclude that we have jurisdiction over this petition for review,
that Acting General Counsel Ohr’s designation was valid, and that the Board
permissibly determined that Acting General Counsel Ohr had discretion to
withdraw the complaint against the Unions. Accordingly, we DENY both
NLRB’s motion to dismiss the petition for review for lack of jurisdiction and
UNFI’s petition for review.
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Andrew S. Oldham, Circuit Judge, dissenting:
I agree with the majority that we have jurisdiction to review the “final
order of the Board” at issue here. 29 U.S.C. § 160(f). In my view, however,
§ 160 plainly renders unlawful the Board’s decision. I’d grant the petition.
I.
United Natural Foods, Inc. (“UNFI” or “petitioner”) is a wholesale
grocery company. In February 2019, it got into a dispute with various unions
in the Pacific Northwest. On October 28, 2019, UNFI filed a charge with the
National Labor Relations Board (“NLRB” or “the Board”). UNFI
contended that the unions’ activities constituted unfair labor practices under
the National Labor Relations Act (“NLRA”).
On July 29, 2020, the NLRB regional director1 issued a complaint on
UNFI’s charge. ROA.16–27 (reproducing the regional director’s complaint
in Case 19-CB-250856 (N.L.R.B.)). In the same document, the regional
director ordered the unions to respond to UNFI’s allegations by August 12,
2020. Then the regional director noticed a hearing before an administrative
law judge in Seattle, Washington, on March 2, 2021.
Under the NLRB’s rules, any motion for summary judgment was due
28 days before the noticed hearing. See 29 C.F.R. § 102.24(b). The day before
that deadline, on February 1, UNFI filed its motion for summary judgment.
1
Under the NLRB’s rules and regulations, the regional director has authority to
act on a charge like the one filed by UNFI: “After a charge has been filed, if it appears to
the regional director that formal proceedings in respect thereto should be instituted, he
shall issue and cause to be served on all the other parties a formal complaint in the name of
the Board stating the unfair labor practices and containing a notice of hearing before an
administrative law judge at a place therein fixed and at a time not less than 14 days after the
service of the complaint.” 29 C.F.R. § 102.15. In this case, the relevant regional director
was Ronald K. Hooks, Director of Region 19 in Seattle.
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Under the Board’s rules, the receipt of that timely motion vested the Board
with jurisdiction over the dispute:
Upon receipt of the motion, the Board may deny the motion or
issue a Notice to Show Cause why the motion may not be
granted. If a Notice to Show Cause is issued, the hearing, if
scheduled, will normally be postponed indefinitely. . . . The
Board in its discretion may deny the motion where the motion
itself fails to establish the absence of a genuine issue, or where
the opposing party’s pleadings, opposition and/or response
indicate on their face that a genuine issue may exist.
Ibid. (emphasis added).
On February 24, 2021—more than three weeks after UNFI timely
filed its motion for summary judgment—the regional director purported to
withdraw the complaint. The regional director explained: “Having had the
opportunity to review the allegations in the Consolidated Complaint, as well
as having afforded the Division of Advice and Region 19 a chance to re-
examine the allegations, the Acting General Counsel, pursuant to his
prosecutorial discretion, does not wish to continue the prosecution of Case
19-CB250856.” ROA.270. Accordingly, the regional director ordered that
his previous complaint “is withdrawn and the underlying Charge in Case 19-
CB-250856 is dismissed.” Ibid. The regional director cited no other authority
for his decision to withdraw the complaint and dismiss UNFI’s charge.
Pursuant to the Board’s rules, UNFI timely filed a request for “special
permission to appeal” the regional director’s decision to the NLRB. See 29
C.F.R. § 102.26. On May 21, 2021, the Board issued its final decision. The
Board stated that the regional director’s decision terminating the case could
not be appealed to the NLRB. Ibid. Rather, according to the NLRB, the
regional director’s decision could only be appealed to the Acting General
Counsel. See 29 C.F.R. § 102.19. The Board did not explain how such an
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appeal to the Acting General Counsel could be anything more than an empty
formalism given that the Acting General Counsel directed the regional
director to dismiss the case in the first place.
UNFI timely petitioned our court for review of the NLRB’s May 21
order. I agree with the majority that the order is reviewable under 29 U.S.C.
§ 160(f).
II.
The majority and I part company, however, on the lawfulness of the
Board’s May 21 order. In my view, the Board violated the plain text of the
Labor Management Relations Act (“LMRA”).
In the LMRA, Congress authorized the Board to make “such rules
and regulations as may be necessary to carry out the provisions of this
subchapter.” 29 U.S.C. § 156. “[T]he provisions of this subchapter,” in
turn, direct the NLRB to follow certain statutory procedures in combatting
unfair labor practices. Thus, the NLRB has discretion to adopt rules—but
here, as in all areas of administrative law, they must comport with Congress’s
commands. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018).
Two of those commands resolve this case. Both appear in 29 U.S.C.
§ 160(b). That statutory section is one paragraph of unstructured text
spanning 325 words. For ease of reference, I’ll refer to the two relevant
statutory commands by their sentence numbers.
Start with § 160(b)’s first sentence. It provides:
Whenever [a] it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board, or [b] any
agent or agency designated by the Board for such purposes,
shall have power to issue and cause to be served upon such
person [c] a complaint stating the charges in that respect, and
containing [d] a notice of hearing before the Board or a member
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thereof, or before a designated agent or agency, at a place
therein fixed, not less than five days after the serving of said
complaint.
29 U.S.C. § 160(b). The NLRB complied with all of the bracketed
requirements in § 160(b)’s first sentence: [a] the Board received an unfair
labor practice charge from UNFI; [b] the Board designated the regional
director as its agent, see 29 C.F.R. § 102.15; [c] the regional director filed a
complaint; and [d] the complaint noticed a hearing. So far, so good.
The second relevant statutory command appears in the fifth and final
sentence of § 160(b). It provides:
Any such proceeding shall, so far as practicable, be conducted
in accordance with the rules of evidence applicable in the
district courts of the United States under the rules of civil
procedure for the district courts of the United States, adopted by
the Supreme Court of the United States pursuant to section
2072 of title 28.
29 U.S.C. § 160(b) (emphasis added). In accordance with this command, the
Board adopted a summary judgment standard that mirrors Rule 56. Compare
29 C.F.R. § 102.24(b) (requiring denial of summary judgment “where the
motion itself fails to establish the absence of a genuine issue, or where the
opposing party’s pleadings, opposition and/or response indicate on their face
that a genuine issue may exist”), with Fed. R. Civ. P. 56(a) (“The court
shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”). Again, so far, so good.
The Federal Rules governing summary judgment require more,
however. Take for example Federal Rule of Civil Procedure 41. It allows a
plaintiff to dismiss his action without a court order—but only when the
plaintiff does so “before the opposing party serves either an answer or a
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motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). Before
the Supreme Court adopted Rule 41, the preexisting rules allowed a “plaintiff
to dismiss the action up to various points in the proceeding, ranging from
before issue had been joined, before the trial began, before the case was
submitted to the jury, to before the verdict was returned.” 9 Wright &
Miller, Federal Practice & Procedure § 2363 (4th ed.). This
led to a variety of “abuses” that “Rule 41(a)(1) was designed to curb.” Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 397 (1990). “The theory underlying
[Rule 41(a)(1)’s] limitation is that, after the defendant has become actively
engaged in the defense of a suit, he is entitled to have the case adjudicated
and it cannot, therefore, be terminated without either his consent, permission
of the court, or a dismissal with prejudice that assures him against the renewal
of hostilities.” Exxon Corp. v. Maryland Cas. Co., 599 F.2d 659, 661 (5th Cir.
1979).
In this case, however, the NLRB violated Rule 41. The Board itself
conceded that UNFI timely filed its summary judgment motion. Under Rule
41(a)(1)(A)(i), that cut off the unilateral right to dismiss the complaint. While
the fifth sentence of § 160(b) requires the Board to follow the Federal Rules
“so far as practicable,” the Board never claimed that following Rule 41 would
be impracticable. Thus, the Board erred as a matter of law.
III.
In response, the NLRB does not even cite Rule 41. Cf. UNFI Blue Br.
26–28 (relying on Rule 41). Nor does the NLRB even cite § 160(b)—much
less does it explain how or why it was not practicable to follow the commands
laid down by Congress and the Federal Rules. Cf. UNFI Blue Br. 27 (arguing
the Board must explain why it deviates from Federal Rules). These are
extraordinary forfeitures. And I’d hold the Board to them.
The Board instead offers three counterarguments. None has merit.
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A.
First, the Board says the regional director had unilateral and
“unreviewable” prosecutorial discretion to withdraw the complaint. True,
the NLRB’s regulations provide: “A complaint may be withdrawn before the
hearing by the Regional Director on the Director’s own motion.” 29 C.F.R.
§ 102.18. But all that says is the regional director can move to withdraw the
complaint. And that’s consistent with Federal Rule of Civil Procedure 41;
after the defendant files an answer or a motion for summary judgment, the
complaint may be withdrawn on the plaintiff’s motion—when granted by the
district court, of course. See, e.g., Templeton v. Nedlloyd Lines, 901 F.2d 1273,
1274 (5th Cir. 1990) (“Rule 41(a)(2) of the Federal Rules of Civil Procedure
allows plaintiffs to freely dismiss their suits, subject to court approval,
provided the dismissal does not prejudice any party. The district court may
attach conditions to the dismissal to prevent prejudice.” (citations omitted)).
In this case, however, the NLRB urges us to ignore text it wrote by
adding certain words and deleting others. Specifically, the Board would read
§ 102.18 to say: “A complaint may be withdrawn before the hearing by the
Regional Director in his unilateral and unreviewable discretion on the
Director’s own motion.” That regulation would at least purport to give the
regional director unilateral discretion to dismiss a complaint before a hearing.
But it’s well established that we cannot render surplusage the text adopted
by an agency or allow an agency to otherwise ignore the limitations imposed
in its rules. See, e.g., Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“Where the
rights of individuals are affected, it is incumbent upon agencies to follow their
own procedures.”); DHS v. Regents of the Univ. of California, 140 S. Ct. 1891,
1909 (2020) (“[T]he Government should turn square corners in dealing with
the people.” (quotation omitted)).
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Nor can the Board pretend that “on the Director’s own motion” is
code for “his unilateral and unreviewable discretion” to act “sua sponte.”
True, we’ve previously used the phrase “on its own motion” to refer to a
district court’s discretionary and sua sponte powers. See, e.g., Shawnee Int’l,
N.V. v. Hondo Drilling Co., 742 F.2d 234, 236 (5th Cir. 1984) (“[A] district
court may dismiss a complaint on its own motion for failure to state a
claim.”). Of course, the Federal Rules—which are all that matter under the
fifth sentence of 29 U.S.C. § 160(b)—do not speak that way. The Federal
Rules repeatedly and conspicuously differentiate between things that can be
done on a party’s “motion” or in the district court’s discretion without the
word “motion.” See, e.g., Fed. R. Civ. P. 12(f), 21, 26(b)(2)(C), 26(g)(3),
56(f). And in any event, even when a district court can act on its own, the
court’s decision remains bound by the Rules and reviewable on appeal.
And even if all of that’s wrong, the colloquial phrase “on its own
motion” when used to refer to courts’ sua sponte adjudicatory powers cannot
possibly be used to refer to the regional director’s prosecutorial powers. The
entirety of the NLRB’s position in this case is that when the regional director
(acting on his own or at direction of the general counsel) chooses to dismiss
a complaint, it’s a prosecutorial not an adjudicatory act. Were it adjudicatory,
the NLRB concedes, UNFI would have a right to challenge it. So it would
prove far too much—and would undo the Board’s entire case—if § 102.18’s
use of the phrase “on its own motion” gave the regional director court-like
adjudicatory powers.
B.
Second, the Board says the regional director dismissed the complaint
“prior to the Board transferring the complaint to itself.” The NLRB’s brief
on this point is far from pellucid. But the argument appears to go something
like this. If the Board determines that summary judgment is appropriate, it
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will issue a “Notice to Show Cause” under 29 C.F.R. § 102.24(b) and then
transfer the case to itself under 29 C.F.R. § 102.50 before granting the
motion. It’s at that point, and only that point the NLRB contends, that the
regional director loses his power to dismiss a complaint. On the Board’s
telling, these two orders—the Show Cause order under § 102.24(b) and the
transfer order under § 102.50—are acts of jurisdictional significance: They
terminate the regional director’s prosecutorial discretion and begin the
Board’s hearing. It necessarily follows, the Board concludes, that before
these two jurisdictionally significant orders are entered, the regional director
can do whatever he wants.
All of this is a red herring because the text of the relevant regulations
says no such thing. Start with § 102.24. It provides that motions for summary
judgment filed before a hearing must be filed with the Board itself, while
summary judgment motions filed at the hearing must be filed before the ALJ.
See 29 C.F.R. § 102.24(a). This makes some sense. After all, before the ALJ
convenes the hearing, he or she is not present to receive the motion—so that
role is served by the Board as a backstop. Then, for motions filed with the
Board before the hearing, the Board has a choice: “Upon receipt of the
motion [for summary judgment], the Board may deny the motion or issue a
Notice to Show Cause why the motion may not be granted.” Id. § 102.24(b).
Section 102.24(b) says absolutely nothing about entering a transfer order
under § 102.50. It simply says that the Board can act on motions for summary
judgment that are filed with it before the hearing and before the ALJ steps in
to adjudicate the case.
So what about § 102.50? It says nary one word about summary
judgment. It simply authorizes the Board to transfer cases to itself, or to one
of its members, rather than leave them with ALJs. It does not require the
Board to enter transfer orders before granting summary judgment. It does not
suggest § 102.50 orders are jurisdictionally significant. It says nothing at all
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about the commencement of a hearing. And it says nothing at all about
regional directors or the general counsel. It just allows the Board to transfer
cases away from ALJs to “effectuate the purposes of the Act or to avoid
unnecessary costs or delay.” Ibid.
If an administrative agency could reimagine its regulatory text in the
way the Board asks in this case, there would be no limit whatsoever to an
agency’s power to whipsaw regulated entities. The agency could pass a
regulation that says “we’ll do good stuff and nice things.” Cf. Gary Lawson,
Delegation and Original Meaning, 88 Va. L. Rev. 327, 339–40 (2002)
(describing consequences of congressional enactment that requires
“‘goodness and niceness’”). Then, in the heat of a contested proceeding,
the agency could say its understanding of “good stuff and nice things” means
its disfavored party is jurisdictionally barred—not just that it loses but that it
cannot even seek review of the agency’s capriciousness. That has never been
the law.
Finally, suppose § 102.24(a) and § 102.50 said the things the Board
imagines them to. E.g., assume they automated transfers to the Board after a
Show Cause order and clearly addressed the roles of both the general counsel
and the Board after a party’s summary judgment motion. Those
hypothesized facts would have no bearing on this case.
That’s because Congress—and only Congress—can promulgate
jurisdictional rules. See, e.g., Union Pac. R. Co. v. Bhd. of Locomotive Eng’rs &
Trainmen Gen. Comm., 558 U.S. 67, 83–85 (2009) (holding administrative
agency cannot adopt “jurisdictional” rules absent direct statutory
authorization). Thus, Judge Sutton has explained that “an agency cannot
contract its power to hear claims that fall plainly within its statutory
jurisdiction.” Pruidze v. Holder, 632 F.3d 234, 240 (6th Cir. 2011). Thus,
absent a jurisdictional statute enacted by Congress, the Board cannot
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“assume[] authority to interpret [its] regulation as a jurisdictional rule.” Id.
at 238. And the NLRB points to no statute enacted by Congress that would
empower it to make jurisdictional regulations (again, even assuming that
§ 102.24(a) and § 102.50 purport to speak in jurisdictional terms, which they
plainly do not).
In short, § 102.24(a) and § 102.50 are far from jurisdictionally
determinative. They’re completely irrelevant.
C.
Third, the Board relies heavily on NLRB v. United Food & Commercial
Workers Union, 484 U.S. 112 (1987) (“UFCW”). In that case, the general
counsel filed a complaint against grocery store owners. Shortly before the
hearing, and before either party filed for summary judgment, the general
counsel informally settled with the owners. The union petitioned for review
of that informal settlement. Relying heavily on the LMRA’s legislative
history, see id. at 124–26, the Court held that Congress intended to
distinguish “prosecutorial” actions (which are not reviewable in federal
court) from “adjudicatory” actions (which are). It emphasized that Board
actions falling on the adjudicatory side of the line are reviewable: “the
resolution of contested unfair labor practice cases is adjudicatory.” Id. at 125.
But so long as there’s no evidence that the Board or its agents adjudicated
the case, then the general counsel retains prosecutorial discretion to
informally settle a case before the hearing begins: “We hold that it is a
reasonable construction of the [National Labor Relations Act, as amended by
the LMRA] to find that until the hearing begins, settlement or dismissal
determinations are prosecutorial.” Id. at 125–26. And purely prosecutorial
decisions are not reviewable in federal court under either the LMRA, see id.
at 127, or the Administrative Procedure Act, see id. at 130–33.
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UFCW is easily distinguishable. While no party moved for summary
judgment there, both parties so moved here. The general counsel looked at
those motions, weighed them on the merits, and sided with the union. That’s
a quintessential adjudication. Yet on the Board’s telling, it can receive cross-
motions for summary judgment, refer those to a “prosecutor”-cum-
adjudicator like the general counsel, allow or direct the general counsel to
side with the defendant, allow or direct the general counsel to withdraw the
complaint, and then insulate the entire adjudicatory process as an exercise of
“prosecutorial discretion.”
It also bears emphasis that UFCW must be understood in light of the
Supreme Court’s more recent administrative law decisions. The Supreme
Court has directed us to look at regulations—and in particular agencies’
litigation-based reimaginations of their regulations—through a different lens.
See Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); id. at 2432–37, 2447–48
(Gorsuch, J., concurring in the judgment). And the NLRB’s litigation
positions in this case—shifting between its regulations, invoking regulations
that are plainly irrelevant, and pretending that its “Show Cause” orders are
something they are not—warrant no deference. See id. at 2417 (majority
opinion) (denying deference to shifting agency positions that appear to be
“convenient litigating position[s]” and “post hoc rationalization[s]”
(quotation omitted)). Nor can the NLRB explain how its treatment of UNFI
reflects the Board’s “substantive expertise” rather than its caprice. Ibid.
Even if those problems were not dispositive, the NLRB does not articulate
why a question of litigation procedure wouldn’t “fall more naturally into a
judge’s bailiwick.” Ibid. And that’s especially true here, where Congress
specifically directed the Board to follow the Federal Rules that sit at the
epicenter of judicial expertise.
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IV.
The majority offers several responses. The first is unfortunate and
meritless. The others are just meritless.
A.
The majority first accuses of me of acting “improper[ly]” by
“cross[ing] the bench to counsel’s table and litigat[ing] the case.” Ante, at
15. Such rhetoric is unfortunate. It’s also misplaced.
Let’s start where the majority does, with the Supreme Court’s
opinion in United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). The
majority interprets that case to preclude us from “bas[ing] our holding” in
anything not excerpted from a party’s brief. Ante, at 15. But that’s not
remotely what Sineneng-Smith said.
In Sineneng-Smith, the Supreme Court reversed the Ninth Circuit’s
decision to “sally forth each day looking for wrongs to right.” 140 S. Ct. at
1579 (quotation omitted). More specifically, the Supreme Court reversed
after the Ninth Circuit invited three non-parties to brief and orally argue
questions not raised by the appellant and then awarded relief that no party
had asked for. Id. at 1581. When it rejected “the [Ninth Circuit] panel’s
takeover of the appeal,” the Supreme Court made clear why. Ibid. The Court
didn’t reverse because the Ninth Circuit was too thoughtful in its treatment
of a party’s question presented. Rather, the Court reversed because the
Ninth Circuit itself presented questions that no party wanted to present. See
id. at 1575 (indicating courts should “decide only questions presented by the
parties” (quotation omitted)); id. at 1579 (indicating courts are assigned “the
role of neutral arbiter of matters the parties present” (quotation omitted));
id. at 1582 (remanding for reconsideration “shorn of the overbreadth inquiry
interjected by the appellate panel.”).
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The Supreme Court’s focus in Sineneng-Smith on questions
presented, not arguments, reflects older traditions in our law. After all, we
decide only “Cases” or “Controversies,” brought to us via the questions a
party presents. See U.S. Const. art. III, § 2. But once a live question
reaches us, “[i]t is emphatically the province and duty of the judicial
department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177
(1803). That’s presumably why the Court went out of its way to note in
Sineneng-Smith that “the party presentation principle is supple” and “a court
is not hidebound by the precise arguments of counsel.” 140 S. Ct. at 1579, 1581
(emphasis added). That comports with the centuries-old principle that
parties cannot by agreement, error, or omission decide a question of law. See
Marbury, 5 U.S. at 177; Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281,
290 (1917) (“No stipulation of parties or counsel, whether in the case before
the court or in any other case, can enlarge the power, or affect the duty, of
the court.”); NASA v. Fed. Lab. Rels. Auth., 527 U.S. 229, 245 n.9 (1999)
(discussing “the rule that litigants cannot bind us to an erroneous
interpretation of federal legislation”); Roberts v. Galen of Va., Inc., 525 U.S.
249, 253 (1999) (“Concession of a point on appeal by respondent is by no
means dispositive.”); Equitable Life Assurance v. MacGill, 551 F.2d 978, 983
(5th Cir. 1977) (“[I]t is well settled that a court is not bound to accept as
controlling stipulations as to questions of law.”).
It follows from all of this—hundreds of years of precedent and
Sineneng-Smith—that we’re allowed to read the law and apply it to the
parties’ dispute according to our best judgment. We’re not 1L moot court
judges who’re artificially bound by the eight corners of the parties’ two briefs.
Does anyone think that, when a party presents legal question X for decision
in federal court, a federal judge is somehow disabled from reading any case,
statute, regulation, or other authority not cited in the party’s brief?
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Of course not. We are duty-bound to understand the legal questions
presented to us—even when a party presents a question less than perfectly.
That duty isn’t new: for centuries, judges have relied on their best
understanding of the law, and not solely on counsel, to decide questions put
before them. See Harold J. Berman & Charles J. Reid, Jr., The Transformation
of English Legal Science: From Hale to Blackstone, 45 Emory L.J. 437, 468–70,
485–95 (1996); see also Charles E. Clark, History, Systems and Functions of
Pleading, 11 Va. L. Rev. 517, 518 (1925) (noting that common-law pleading
emphasizes the “issue formulating function.”). The majority’s contrary
understanding of Sineneng-Smith has no basis in Supreme Court precedent
or broader principles of Anglo-American law.
In any event, the majority’s accusation is an odd one because UNFI
certainly did raise Rule 41. It did so on pages 26 and 27 of its brief, as you can
see for yourself in the margin.2 We discussed the point at oral argument.
Nearly the entire case concerns whether the general counsel can withdraw a
complaint after the parties cross-file summary judgment motions. I’m
flattered that the majority would attribute the point to me. But UNFI
deserves the credit.
2
“Finally, the Board’s failure to engage in reasoned decision-making is under-
scored by the fact that the Board has chosen to rely on civil litigation concepts (like
summary judgment motions) that have well-understood consequences in our legal system.
As noted above, the Board applies the same standard to summary judgment motions as the
Federal Rules of Civil Procedure, and the Board gives meritorious motions the same effect:
judgment as a matter of law. In ordinary civil litigation, however, a plaintiff’s ability to
unilaterally dismiss its complaint ends if another party moves for summary judgment. See Fed.
R. Civ. P. 41(a)(1)(i). So, the Board would need to provide some reasoned justification if it
wanted to incorporate ordinary summary judgment concepts from federal civil litigation but treat
the effect of a summary judgment motion in an entirely different way.” Blue Br. 26–27 (emphasis
added). What more, precisely, was UNFI required to say?
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B.
Aside from party presentation, the majority offers four substantive
rejoinders. None have merit.
First, the majority offers the strawman that the NLRB need not
“incorporate[] the entire Federal Rules of Civil Procedure into Board
proceedings.” Ante, at 15 (emphasis added). That’s both true and irrelevant.
I’m not suggesting the NLRB must incorporate the entirety of the Federal
Rules, nor am I even suggesting it must incorporate any of the Federal Rules.
What Congress said is that the NLRB must incorporate those Rules as far as
is practicable. See 29 U.S.C. § 160(b); accord NLRB v. Consol. Bus Transit, Inc.,
577 F.3d 467, 475 (2nd Cir. 2009). The NLRB is obviously free to explain
why it chose not to follow this, that, or every Federal Rule. But what it’s not
free to do is to say it’s following the Federal Rules and then deviate from
them without explanation.
Second, the majority asserts that 29 C.F.R. § 102.18, allowing the
Regional Director to move to withdraw a complaint, “would be
meaningless” if the Board had to follow Rule 41. Ante, at 17. That may or may
not be true but either way, again, it’s irrelevant. The agency’s regulation
cannot trump Congress’s statute requiring the agency to conform its
procedure to the FRCP or else to explain why such conformance isn’t
practicable. See 29 U.S.C. § 160(b). Further, as explained above, my view
does not render 29 C.F.R. § 102.18 meaningless. That regulation allows the
regional director to move to withdraw a complaint—just as Rule 41 does.
Neither purports to give the regional director unreviewable discretion to
dismiss a complaint after summary-judgment proceedings have started.
Third, the majority contends that holding the NLRB to § 160(b)
would allow a party, wishing to avoid settlement of their complaint by the
general counsel, to “race[] to file a summary judgment motion” and thus
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circumvent the general counsel’s authority. Ante, at 17. But no one raced to
file anything. Both UNFI and the unions filed motions for summary judgment
on the day before such motions were due. There’s zero evidence that anyone
was racing to avoid any settlement of anything. The MSJs were filed and
ready for disposition in the ordinary course before the general counsel
usurped the Board’s adjudicatory power and deprived UNFI of a Board
decision. If there’s potential for abuse in other cases not before us, that’s
perhaps a matter for the Board to consider in future regulations. Or for future
courts to consider in future cases. But it has zero bearing on the actual
controversy before us.
Fourth, the majority contends that I am “confused” about Rule 41.
Ante, at 16 n.10. The majority notes that in NLRB procedure, UNFI is
technically not the prosecuting party. That’s because, in the fictional
separation of powers arrangement contained within the NLRB, the general
counsel “prosecutes” the claim on UNFI’s behalf. So, the majority says, the
general counsel can file a “notice of dismissal” regardless of UNFI’s
summary judgment motion, because the general counsel opposes the
unions—not UNFI. See Fed. R. Civ. P. 41(a)(1)(A)(i).
This contention is particularly head-scratching. The general counsel
obviously “opposes” UNFI; that’s why the general counsel decided to
dismiss the complaint without explanation. But even if the majority were
right that the general counsel opposes the unions (not UNFI), the unions also
filed a motion for summary judgment. That meant that at minimum, some
stipulation between someone and the general counsel was required by Rule
41(a)(1)(A)(ii). Further, this theory does nothing to dispose of the majority’s
broader problem: by allowing the general counsel to dispose of meritorious
complaints without explanation, the majority affords him forbidden
“adjudicatory” powers and effectively permits the Board to capriciously use
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him as the cat’s paw. See UFCW, 108 S. Ct. at 130; see also Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).
* * *
Finally, a word about the scope of the NLRB’s arguments in this case.
The Board repeatedly and adamantly invokes the phrase “prosecutorial
discretion” as a mantra. It appears to think that phrase operates as a magical
invisibility cloak, a shroud that makes the Board’s decisions disappear behind
a gauzy veil of unreviewability. Our courts, and others across the country,
have seen such arguments with increasing frequency in recent years. See, e.g.,
Regents, 140 S. Ct. at 1906–07 (rejecting Government’s invocation of
“prosecutorial discretion”); Texas v. United States, 809 F.3d 134, 163–70 (5th
Cir. 2015) (same), aff’d by equally divided court, 579 U.S. 147 (per curiam)
(mem.); Citizens for Resp. & Ethics in Washington v. FEC, 55 F.4th 918, 929
(D.C. Cir. 2022) (en banc) (Millett, J., dissenting) (“To begin with, affixing
a brief invocation of prosecutorial discretion to lengthy substantive analyses
in statements of reasons has become commonplace in Commission
proceedings. This court errs in allowing those brief invocations to broadly
insulate dismissal decisions from judicial review.”). Unchecked, such
invocations of “prosecutorial discretion” distort the rule of law. We should
have seen through the Board’s machinations in this case. I respectfully
dissent.
37