Kava Holdings, Llc v. Mori Pam Rubin et al

NOTICE OF MOTION AND MOTION to Dismiss Case , NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction

C.D. Cal.October 24, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dalford Dean Owens, TX Bar 24060907 dean.owens@nlrb.gov (202) 273-2934 Diana Orantes Embree, DC Bar 289306 (202) 273-1082 diana.embree@nlrb.gov National Labor Relations Board 1015 Half Street, S.E., Fourth Floor Washington, DC 20003 Fax: (202) 273-4244 Attorneys for Defendant/Respondent, MORI PAM RUBIN in her capacity as Regional Director, Region 31, of the National Labor Relations Board IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA KAVA HOLDINGS, LLC, a Delaware Limited Liability Company, formerly KAVA HOLDINGS, INC., a Delaware Corporation, d/b/a HOTEL BEL-AIR Plaintiff/Petitioner, v. MORI PAM RUBIN in her capacity as Regional Director, Region 31, of the National Labor Relations Board, Defendant/Respondent. No. 2:16-cv-06955-PSG-GJS DEFENDANT’S NOTICE OF MOTION TO DISMISS UNDER FED.R.CIV.P. 12(b)(1) & (6) Date: January 23, 2017 Time: 1:30 p.m. Judge: Hon. Philip S. Gutierrez Accompanying Pleadings: Memorandum of Points & Authorities Proposed Order Case 2:16-cv-06955-PSG-GJS Document 45 Filed 10/24/16 Page 1 of 5 Page ID #:736 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 23, 2017, or as soon as the matter may be heard by the Honorable Philip S. Gutierrez, United States Judge for the Central District of California, Defendant, Mori Pam Rubin, in her capacity as Regional Director, Region 31, of the National Labor Relations Board (hereafter jointly referenced as “NLRB”) will move the Court, pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure for an order to dismiss Plaintiffs Complaint for lack of subject matter jurisdiction and for failure to state a claim for mandamus relief under 28 U.S.C. § 1361. In support of its motion, the NLRB shows: This motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on October 18, 2016. This suit was instituted on September 15, 2016, by Plaintiff Kava Holdings, LLC d/b/a Hotel Bel-Air (“Hotel”) seeking to permanently enjoin the NLRB from prosecuting and holding a hearing on a complaint alleging that the Hotel has engaged in a number of unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3). As set forth in the accompanying Memorandum of Points and Authorities, controlling Supreme Court and Ninth Circuit authority holds that district courts do not have jurisdiction to review or enjoin NLRB administrative proceedings as the Hotel seeks to do here. See Myers Case 2:16-cv-06955-PSG-GJS Document 45 Filed 10/24/16 Page 2 of 5 Page ID #:737 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48, 51 (1938); Amerco v. NLRB, 458 F.3d 883, 887- 888 (9th Cir. 2006). Instead, any objections that the Hotel may have to the NLRB’s prosecution of these unfair labor practices, including the Hotel’s allegations of purported violations of its constitutional or procedural rights asserted in its Complaint before this Court, must be raised first in the context of the pending administrative proceedings and, if the Hotel remains unsatisfied after a final order issues from the Board, only then on review of the Board order to a United States Court of Appeals under Section 10(f) of the National Labor Relations Act (NLRA). 29 U.S.C. § 160(f). Myers v. Bethlehem Shipbuilding Corp., 303 U.S. at 48, 51; Amerco v. NLRB, 458 F.3d at 887 - 888. The statutory scheme of the NLRA simply does not permit intervening action by a district court to consider the types of claims raised here by the Hotel. Amerco v. NLRB, 458 F.3d at 888. Because the Hotel has an obvious avenue for remedial review and because it does not, and cannot, allege that the NLRB’s prosecutorial decisions here violate statutory mandate, it cannot rely on the “extremely narrow” exception to Myers created by Leedom v. Kyne, 358 U.S. 184 (1958). Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43 (1991); Amerco v. NLRB, 458 F.3d at 888; Pacific Maritime Assoc. v. NLRB, 827 F.3d 1203, 1208, 1211 – 1212 (9 th Cir. 2016). Case 2:16-cv-06955-PSG-GJS Document 45 Filed 10/24/16 Page 3 of 5 Page ID #:738 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In view of the NLRA’s specific statutory review procedure, the Hotel’s reliance on the general jurisdictional grants of authority reflected in 28 U.S.C. §§ 1331 and 1337 is unavailing. Owners-Operators Indep. Drivers Ass’n of Am., Inc. v. Skinner, 931 F.2d 582, 589 (9th Cir. 1991). Finally, neither the Administrative Procedure Act (APA), 5 U.S.C. § 555, et seq., nor the Mandamus Act, 29 U.S.C. § 1361, on their own, provide independent sources of subject matter jurisdiction to review or enjoin NLRB proceedings. Califano v. Sanders, 430 U.S. 99, 106 (1977)(APA); Starbuck v. City and County of San Francisco, 556 F.2d 450, 459 n.18 (9th Cir. 1977)(the Mandamus Act “does not provide an independent ground for jurisdiction.”). Additionally, even if subject matter jurisdiction were available in the district courts, the Hotel’s request for mandamus relief fails as a matter of law because it is unable to meet the required threshold to establish that (1) it has a “clear and certain” claim for the relief it seeks – to wit, a right not to be prosecuted for unfair labor practices because of alleged administrative delay, (2) that the NLRB’s decision to issue complaint and prosecute the administrative case is non- discretionary or ministerial, and (3) that it has no other adequate remedy. Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998). Accordingly, district courts lack jurisdiction to interfere with, by mandamus relief or otherwise, the Agency’s decision to prosecute an unfair labor practice Case 2:16-cv-06955-PSG-GJS Document 45 Filed 10/24/16 Page 4 of 5 Page ID #:739 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complaint involving the Hotel. The request for mandamus relief likewise fails on the merits. The NLRB will move the Court to dismiss the Complaint pursuant to FRCP 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, FRCP 12(b)(6) for its failure to state a claim for which relief may be granted. NATIONAL LABOR RELATIONS BOARD /s/ Dean Owens DEAN OWENS DIANA EMBREE Attorneys for Defendant/Respondent Dated: October 24, 2016 Case 2:16-cv-06955-PSG-GJS Document 45 Filed 10/24/16 Page 5 of 5 Page ID #:740 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dalford Dean Owens, TX Bar 24060907 dean.owens@nlrb.gov Diana Orantes Embree, DC Bar 289306 diana.embree@nlrb.gov National Labor Relations Board 1015 Half Street, S.E., Fourth Floor Washington, DC 20003 Fax: (202) 273-4244 Phone: (202) 273-2934 Attorney for Defendant/Respondent, MORI PAM RUBIN in her capacity as Regional Director, Region 31, of the National Labor Relations Board IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA KAVA HOLDINGS, LLC, a Delaware Limited Liability Company, formerly KAVA HOLDINGS, INC., a Delaware Corporation, d/b/a HOTEL BEL-AIR Plaintiff/Petitioner, v. MORI PAM RUBIN in her capacity as Regional Director, Region 31, of the National Labor Relations Board, Defendant/Respondent. No. 2:16-cv-06955-PSG-GJS DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS Date: January 23, 2017 Time: 1:30 p.m. Judge: Hon. Philip S. Gutierrez Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 1 of 33 Page ID #:741 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page(s) BACKGROUND ....................................................................................................... 1 SUMMARY OF ARGUMENT ................................................................................. 2 FACTUAL BACKGROUND .................................................................................... 3 The 2010 Effects Bargaining Case……..….…………………………………..5 The Current Hiring Discrimination Case…………………………….………..7 ARGUMENT ............................................................................................................. 9 I. The Hotel’s Complaint Must Be Dismissed for Lack of Jurisdiction .............. 9 A. The NLRA’s Statutory Scheme Deprives District Courts of Jurisdiction to Enjoin or Review NLRB Proceedings .............................. 11 B. Because the Hotel has a Statutory Means of Review and Cannot Show Any Statutory Infirmity, the Limited Leedom v. Kyne Exception to the Prohibition on District Court Review of NLRB Proceedings is Unavailable ............................................................................................... 14 C. Neither General Jurisdiction Statutes, Nor the Administrative Procedure Act, Nor the Mandamus Statute Create Subject Matter Jurisdiction for District Courts to Enjoin NLRB proceedings .......................................... 17 II. Even Assuming that Jurisdiction Existed, Mandamus Relief Is Not Available. ........................................................................................................ 19 A. Petitioner’s Right to the Relief it Seeks is Not “Clear and Certain” ........ 18 B. Mandamus is Not Available To Enjoin Wholly Discretionary Prosecutorial Decisions ............................................................................ 23 C. The Hotel Has An Adequate Remedy At Law .......................................... 24 CONCLUSION ........................................................................................................ 24 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 2 of 33 Page ID #:742 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Page(s) Albino v. Baca, 747 F.3d 1162 (9th Cir.) ......................................................................................... 9 Amerco v. NLRB, 458 F.3d 883 (9th Cir. 2006) ....................................................... 11, 12, 13, 14, 15 Ass'n des Eleveurs de Canards et D'Oies du Quebec v. Harris, 79 F. Supp. 3d 1136 (C.D. Cal. 2015) ..................................................................10 Barrick Goldstrike Mines, Inc., v. Babbitt,No. CV-N-93-550-HDM (PHA), 1995 WL 408667 (D. Nev. March 21, 1994).................................................... 19, 20 Barron v. Reich, 13 F.3d 1370 (9th Cir. 1994) ......................................................................... 19, 20 Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32 (1991) ................................................................................................15 Califano v. Sanders, 430 U.S. 99 (1977) ................................................................................................19 Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115 (9th Cir. 2010) ..............................................................................10 Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) ..............................................................................................23 E.G. & H, Inc. v. NLRB, 949 2d 276, 277 (9th Cir. 1991) ...............................................................................11 Goethe House N.Y., German Cultural Ctr. v. NLRB, 869 F.2d 75 (2d Cir. 1989) ...................................................................................14 Heckler v. Comty. Health Servs. of Crawford County, Inc., 467 U.S. 51 (1984) ................................................................................................22 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 3 of 33 Page ID #:743 iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Heckler v. Ringer, 466 U.S. 602 (1984) ..............................................................................................19 Hotel Bel-Air v. NLRB, 637 F. App'x 4 (D.C. Cir. 2016) .........................................................................3, 7 Hotel Bel-Air, 358 NLRB 1527, 1530 (2012) ......................................................................... passim Hotel Bel-Air, 361 NLRB No. 91 (2014) ...................................................................................3, 7 Int’l Union of Operating Eng’rs, Local 70 v. NLRB, 940 F. Supp. 1439 (D. Minn. 1996) ......................................................................15 Japan Whaling Ass’n v. Am. Cetacean Society, 478 U.S. 221 (1986) ..............................................................................................23 Leedom v. Kyne, 358 U.S. 184 (1958) ..................................................................................... passim Lowry v. Barnhart, 329 F.3d 1019 (9th Cir. 2003) ..............................................................................20 Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938) ............................................................................ 11, 12, 13, 14 NLRB v. Katz, 369 U.S. 736 (1962) ..............................................................................................21 NLRB v. Am. Potash & Chem. Corp., 98 F.2d 488 (9th Cir. 1938) ..................................................................................13 NLRB v. Burns, 207 F.2d 434 (8th Cir. 1953) ................................................................................13 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 4 of 33 Page ID #:744 iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Page(s) NLRB v. Electric Vacuum Cleaner Co., 315 U.S. 685 (1942) ..............................................................................................20 NLRB v. International Ass’n of Bridge, Structural & Ornamental Ironworkers, 466 U.S. 720 (1984) ..............................................................................................21 NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258 (1969) ....................................................................................... 20, 22 NLRB v. Noel Canning, __ U.S. __, 134 S.Ct. 2550 (2014) .......................................................................... 6 NLRB v. Quality C.A.T.V., Inc., 824 F.2d 542 (7th Cir. 1987 ) ...............................................................................13 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) ....................................................................... 8, 11, 12, 21, 23 NLRB v. United Food Commercial Workers Union, Local 23, 484 U.S. 112 (1987) ....................................................................................... 16, 23 Nuclear Info. & Res. Serv. v. U.S. Dep't of Transp. Research & Special Programs Admin., 457 F.3d 956 (9th Cir. 2006) ...................................................................18 Owners-Operators Indep. Drivers Ass’n of Am., Inc. v. Skinner, 931 F.2d 582 (9th Cir. 1991) ................................................................................18 Pacific Maritime Assoc. v. NLRB, 827 F.3d 1203 (9th Cir. 2016) ..............................................................................15 Patel v. Reno, 134 F.3d 929 (9th Cir. 1998) ................................................................................19 Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970) ................................................................................23 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 5 of 33 Page ID #:745 v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Page(s) R&S Waste Servs., LLC v. NLRB, 651 F. App'x 34 (2d Cir. 2016) .............................................................................13 Remington Lodging & Hosp., LLC v. Ahearn, 749 F. Supp. 2d 951 (D. Alaska 2010) .................................................................14 Santiago v. Immigration and Naturalization Service, 526 F.2d 488 (9th Cir. 1975) ................................................................................22 Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175 (D.C. Cir. 2000) ............................................................................17 Southwest Merchandising Corp., v. NLRB, 943 F.2d 1354 (D.C. Cir. 1991) ...........................................................................22 Sparks Nugget, Inc. v. Scott, 583 F. Supp. 78 (D. Nev. 1984) ............................................................................24 Starbuck v. City and County of San Francisco, 556 F.2d 450 (9th Cir. 1977) ................................................................................19 Switchmen’s Union v. Nat’l Mediation Bd., 320 U.S. 297 (1943) ..............................................................................................14 Taylor Farms Pac., Inc. v. NLRB, No. 16-CV-00272-TEH, 2016 WL 1446723 (N.D. Cal. Apr. 13, 2016) .............18 U.S. Dep’t of Justice v. FLRA, 981 F.2d 1339 (D.C. Cir 1993) .............................................................................15 UFCW, Local 400 v. NLRB, 694 F.2d 276 (D.C. Cir. 1982) ..............................................................................17 Yu v. Brown, 36 F.Supp.2d 922 (D.N.M.1999) ..........................................................................16 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 6 of 33 Page ID #:746 vi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Statutes Page(s) National Labor Relations Act, as amended (29 U.S.C. § 151 et seq.) ........................................................................................ 1 5 U.S.C. § 555 ................................................................................................... 10, 18 5 U.S.C. § 701 ............................................................................................................ 2 28 U.S.C § 1331 ............................................................................................... passim 28 U.S.C. § 1337 .............................................................................................. passim 28 U.S.C. § 1361 .............................................................................................. passim 29 U.S.C. § 151 .......................................................................................................... 1 29 U.S.C. § 153(a) ..................................................................................................... 2 29 U.S.C. § 160 .......................................................................................................... 2 29 U.S.C. § 160(a) ...................................................................................................11 29 U.S.C. § 160(b) ...................................................................................................16 29 U.S.C. § 160(c) ...................................................................................................11 29 U.S.C. § 160(f) ........................................................................................... 5, 6, 11 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 7 of 33 Page ID #:747 vii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Federal Rules Page(s) Federal Rule of Civil Procedure 81(b) ....................................................................... 1 Federal Rule Civil Procedure 12(b)(1) ................................................................2, 25 Federal Rule Civil Procedure 12(b)(6) ................................................................3, 25 Regulations Page(s) 29 C.F.R. § 102.15 ...............................................................................................1, 17 TABLE OF AUTHORITIES Legislative Materials Page(s) H.R. 1147 .................................................................................................................12 NLRB Casehandling Manual Part 1 ....................................................................8, 17 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 8 of 33 Page ID #:748 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BACKGROUND Plaintiff/Petitioner Kava Holdings, LLC d/b/a Hotel Bel-Air (“Hotel”), in an attempt to derail an unfair labor practice proceeding pending before the National Labor Relations Board (“NLRB”), has filed a Complaint for Injunctive Relief (“Complaint”) (Dkt. 1). 1 The Hotel asks the Court to compel the Respondent, Mori Pam Rubin, in her official capacity as a Regional Director, Region 31, of the NLRB, 2 to cease prosecuting an administrative complaint which alleges that the Hotel engaged in discriminatory hiring practices in violation of the National Labor Relations Act, 29 U.S.C. Section 151 et seq. (“the NLRA”). Further, the Hotel asks the Court to permanently enjoin the NLRB from proceeding with the pending unfair labor practice case and to compel the NLRB to dismiss the administrative complaint. On September 23, 2016, the Hotel filed its renewed motion for a preliminary injunction [Dkt. 23], which is scheduled to be heard on November 21, 2016. 1 Although the Hotel’s complaint refers to a “Petition for Mandamus” [Dkt. 1 at 1, 31], the Federal Rules of Civil Procedure abolished writs of mandamus in district court proceedings; instead, a party may obtain relief from a federal district court that was previously available through a writ of mandamus “by appropriate action or motion under these rules.” Fed. R. Civ. P. 81(b); see also 28 U.S.C. § 1361. 2 The NLRB’s Regional Directors represent the General Counsel in the investigation and prosecution of unfair labor practice cases. See 29 C.F.R. § 102.15. Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 9 of 33 Page ID #:749 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUMMARY OF ARGUMENT The Hotel’s suit is incurably flawed by the absence of subject matter jurisdiction. Controlling authority from both the Supreme Court and the Ninth Circuit unambiguously holds that federal district courts lack subject matter jurisdiction to review or enjoin the NLRB’s handling or prosecution of unfair labor practice proceedings. Section 10 of the NLRA, 29 U.S.C. § 160, instead vests circuit courts with the exclusive power to review NLRB proceedings following the issuance of a final Board 3 order. General jurisdictional statutes, like those on which the Hotel relies – 28 U.S.C §§ 1331, 1337, and 1361 – cannot supply jurisdiction in the face of the NLRA’s exclusive review procedure. The Hotel can secure court review of an NLRB proceeding only after exhausting its administrative remedies and then only in the circuit court through the exclusive procedures established by Section 10. Neither the Administrative Procedures Act, 5 U.S.C. § 701, et seq., nor the Mandamus Act, 28 U.S.C. § 1361, provide an independent basis of jurisdiction for this Court to compel NLRB action. Having no jurisdictional predicate to support its Complaint, the Hotel’s suit fails as a matter of law, and the NLRB moves for dismissal pursuant to Rule 12 (b)(1) of the Federal Rules of Civil Procedure.. 3 The “Board” refers to the appointed final adjudicatory body under the NLRA. 29 U.S.C. § 153(a). Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 10 of 33 Page ID #:750 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As we further show, even if the Hotel could somehow establish that this Court has subject-matter jurisdiction to grant mandamus relief – which it cannot – the Hotel has not met and cannot meet the threshold requirements to obtain such an extraordinary remedy because: (1) it cannot show a “clear and certain” right to the relief it seeks, (2) the decision to issue the administrative complaint involves prosecutorial discretion vested exclusively in the NLRB’s General Counsel, and (3) it is apparent that the Hotel has a direct avenue for relief through the traditional administrative process. Accordingly, the request for mandamus relief fails to state a claim for which relief may be granted. Fed.R.Civ. P. 12(b)(6). FACTUAL BACKGROUND The Hotel operates an historic five-star hotel in Los Angeles, California where it has enjoyed a longstanding collective-bargaining relationship with UNITE HERE, Local 11 (“Union”). Hotel Bel-Air, 358 NLRB 1527, 1530 (2012). 4 The Hotel and the Union have been party to a 4 Citations to 358 NLRB 1527 (2012), specifically reference the fact findings and conclusions of the administrative law judge decision published therein. As explained in the text, infra, the Board’s decision at this citation was later vacated and remanded. On remand, the Board reaffirmed the findings and conclusions of the judge and the rational of the Board in the earlierdecision. Hotel Bel-Air, 361 NLRB No. 91, at 1 (2014) enfd 637 F. App'x 4, 5 (D.C. Cir. 2016). Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 11 of 33 Page ID #:751 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 series of collective-bargaining agreements over the years, the most-recent of which expired on September 30, 2009. On July 31, 2009, the Hotel informed the Union that it would be temporarily shutting down for renovations expected to last approximately two years. Id. The Union and the Hotel thereafter proceeded to engage in bargaining negotiations regarding the effects of the closing on bargaining unit employees. Id. On September 30, 2009, the same day the collective bargaining agreement expired, the Hotel shut down and the entire bargaining unit was laid off. Id.The Hotel reopened two years later, in October 2011. (Dkt 1 at 2, ¶ 2.) Two unfair labor practice proceedings arose in conjunction with the temporary closing and reopening of the Hotel. The first (the effects bargaining case) – which concluded with the issuance of a Court of Appeals decision in May 2016 – was based on charges that in July 2010, while the parties were still in negotiations regarding the effects of the shutdown, the Hotel unilaterally implemented a severance proposal that required employees to waive any recall rights in return for receiving a severance payment. The second (the discriminatory hiring case) – the one that the Hotel is seeking to enjoin here – arose from charges alleging that when the Hotel reopened its facility in October 2011, it bypassed rehiring a majority of its former bargaining-unit employees because of their previous support Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 12 of 33 Page ID #:752 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and activities on behalf of the Union, and that the Hotel thereafter unlawfully refused to bargain with the Union. Although the latter is the only administrative proceeding case at issue here, a brief overview of the first is material to placing the current case in context. The 2010 Effects Bargaining Case Between August 2009 and July 2010, the Hotel and the Union were engaged in negotiations over the effects of the temporary closure. 358 NLRB at 1530-33. On July 12, 2010, after the Hotel unilaterally implemented its own terms which included no recall rights for unit employees, the Union filed a charge alleging that the Hotel had thereby violated of Section 8(a)(5) and (1) of the NLRA. Id. at 1529. Following an evidentiary hearing, the administrative judge issued his decision in August 2011, finding that the Hotel had violated the NLRA by unilaterally implementing its terms at a time when the parties had not reached impasse in negotiations and by dealing directly with unit employees regarding severance pay and the waiver of recall rights. Id. at 1533-34. On September 27, 2012, the Board issued its decision and order affirming the judge’s decision and explicitly finding, among other things, that the bargaining-unit employees had been “laid off, not discharged” and “retained a reasonable expectation of recall from layoff.” Hotel Bel-Air, 358 NLRB 1527, 1528 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 13 of 33 Page ID #:753 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2012). The Board ordered the Hotel to rescind, at the Union’s request, the waiver and release agreements signed by the individual employees and to renew negotiations over the effects of the temporary shutdown. Id. In accordance with its statutory right under Section 10 of the NLRA, 29 U.S.C. § 160(f), the Hotel thereafter filed a petition for review of the Board’s decision with the United States Court of Appeals for the District of Columbia; the NLRB filed a cross-application for enforcement. While the matter was still pending before the Court of Appeals, the Supreme Court issued its decision in NLRB v. Noel Canning, __ U.S. __, 134 S.Ct. 2550 (2014), holding that the President’s recess appointment of two challenged Board members was invalid. Because those two Board members were on the panel that decided the decision below, the Court of Appeals, on August 1, 2014, vacated the Board’s order and remanded the case to the Board for further proceedings. A new Board, composed of three Senate-confirmed appointees, considered the administrative law judge’s decision de novo and issued its decision on October 31, 2014. Hotel Bel-Air, 361 NLRB No. 91, at 1 (2014). This 2014 decision, explicitly “agree[ed] with the rationale set forth” in the earlier Board decision, affirmed “the judge’s rulings, findings, and conclusions[,] and adopt[ed] the judge’s recommended Order to the extent Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 14 of 33 Page ID #:754 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and for the reasons stated in the Decision and Order reported at 358 NLRB No. 152, which is incorporated herein by reference.” Id. The Board’s new order again directed the Hotel, at the Union’s request, to rescind the waiver and release agreements signed by individual bargaining unit employees 5 and to bargain with the Union over the effects of its temporary closure on bargaining unit employees. Id. Once again, the Hotel filed a petition for review with the United States Court of Appeals for the District of Columbia and the NLRB cross- appealed for enforcement. On March 8, 2016, the Court of Appeals issued its decision, denying the Hotel’s request for review and granting full enforcement of the Board’s Order; Mandate issued on May 9. Hotel Bel-Air v. NLRB, 637 F. App'x 4, 5 (D.C. Cir. 2016). The Current Hiring Discrimination Case On February 15, 2012, the Union filed an unfair labor practice charge alleging that when the facility reopened in October 2011 the Hotel 5 According to the Board’s decision, 179 of the 220 unit employees accepted the severance and signed the waivers. The Board declined the General Counsel’s request that the Hotel be ordered not to seek to recoup the severance payments from these individual employees if the Union sought rescission, commenting that in view of the effects bargaining order remedy it preferred “to leave the issue of severance payments for the parties to address in those negotiations as they see fit” and further that the matter could be raised in subsequent related unfair labor practice proceedings if necessary. 361 NLRB No. 91, at 1, n. 2. Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 15 of 33 Page ID #:755 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unlawfully bypassed and failed to hire a majority of former bargaining unit employees because of their support and activities on behalf of the Union. (Dkt. 1-3 at 2.) The Union additionally alleged that the Hotel violated the NLRA after the reopening by refusing to recognize and bargain in good faith with the Union and by failing to bargain with the Union before making changes to the employees’ terms and conditions of employment. Id. As the Hotel acknowledges [Dkt. 1 at 22, ¶ 4], while these charges were being investigated, the Region sought guidance from the NLRB’s Division of Advice as to how the case should be processed. 6 The Hotel admits [Id.] that it was informed in January 2013 that the Region was advised to hold the discriminatory hiring case in abeyance until the United States Court of Appeals issued its decision on the Board’s effects bargaining decision, referenced above. 6 The Division of Advice is a division within the Office of the General Counsel that reviews case submissions and provides direction for case handling and/or the application of appropriate legal theories through advice memoranda. NLRB Casehandling Manual Part 1, Unfair Labor Practice Proceedings (Feb. 2016) ¶ 11750.1,available at https://www.nlrb.gov/reports-guidance/manuals. Two categories of advice memoranda are released to the public: memoranda directing dismissal of the charge that are required to be released pursuant to NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), and memoranda in closed cases that are not required by law to be released but are released in the General Counsel's discretion. See https://www.nlrb.gov/cases-decisions/advice-memos (last accessed Oct. 22, 2016). Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 16 of 33 Page ID #:756 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As noted above, the Court of Appeals issued its mandate in the effects bargaining case on May 9, 2016. Shortly afterwards, the Region resumed its processing of the hiring discrimination charge. On July 29, the Region issued the administrative complaint alleging that the Hotel violated the NLRA by refusing to consider or hire 104 of its former employees because of their affiliation with the Union, and by refusing to recognize and bargain with the Union as the collective bargaining representative of the Hotel’s employees. (Dkt. 1-1.) The Region has scheduled a hearing before an administrative law judge to begin on December 12, 2016. (Dkt. 18.) On September 15, 2016, the Hotel filed the instant action with this Court to enjoin those proceedings. (Dkt. 1.) ARGUMENT I. The Hotel’s Complaint Must Be Dismissed for Lack of Jurisdiction Because subject matter jurisdiction is the fundamental source of a federal district court’s authority to hear a case, it presents a threshold issue that, when raised, the court must address before reaching the merits of the case. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir.), cert. denied sub nom. Scott v. Albino, 135 S. Ct. 403 (2014) (“subject-matter jurisdiction [is] . . . typically decided at the outset of the litigation. . . . a defect in subject-matter jurisdiction, unlike a failure to exhaust, is a nonwaivable defect”). The Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 17 of 33 Page ID #:757 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff bears the burden of establishing subject-matter jurisdiction. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010); Ass'n des Eleveurs de Canards et D'Oies du Quebec v. Harris, 79 F. Supp. 3d 1136, 1140 (C.D. Cal. 2015). In bringing this action to stop the NLRB from prosecuting the unfair labor complaint, the Hotel relies on three purported sources of subject-matter jurisdiction—general federal question jurisdiction (28 U.S.C. § 1331), general commerce clause jurisdiction (28 U.S.C. § 1337), and the Mandamus Act (28 U.S.C. § 1361). (Dkt.1 at 3-4, ¶¶ 10 -12). The Hotel asserts that federal question jurisdiction arises because of its claims under the Fifth Amendment Due Process clause, the NLRA, and the Administrative Procedure Act (APA), 5 U.S.C. § 555, et seq. (Dkt.1 at 3, ¶ 10.) As we show below, none of referenced statutes provides subject-matter jurisdiction for the District Court to enjoin the NLRB proceedings at issue here. First, the NLRA statutorily precludes district court jurisdiction by granting the federal courts of appeals exclusive jurisdiction to review NLRB proceedings. Second, alternative review of these NLRB proceedings in the district courts under Leedom v. Kyne 7 jurisprudence is unavailable because the Hotel has an available avenue for review through the statutory scheme 7 358 U.S. 184 (1958) Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 18 of 33 Page ID #:758 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and because the Hotel does not assert a violation of any statutory rights under the NLRA. Third, where, as here, a statute grants specific jurisdiction to a particular court, that jurisdiction overrides any general grants of jurisdiction, like 28 U.S.C. §§1331 and 1337. Fourth, neither the Mandamus Act nor the Administrative Procedures Act provides an independent source of jurisdiction. A. The NLRA’s Statutory Scheme Deprives District Courts of Jurisdiction to Enjoin or Review NLRB Proceedings Congress gave exclusive jurisdiction to the NLRB to administer in the first instance the unfair labor practice provisions of the NLRA. See 29 U.S.C. § 160(a), (c). Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50 (1938). The Board's adjudication of such cases is subject to judicial review and enforcement only after the issuance of a final Board order at the conclusion of an unfair labor practice proceeding, and then only in a federal court of appeals. 29 U.S.C. § 160(e) & (f). Myers, 303 U.S. at 48, 51; NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138, 155 (1975); Amerco v. NLRB, 458 F.3d 883, 888 (9th Cir. 2006); E.G. & H, Inc. v. NLRB, 949 2d 276, 277 (9th Cir. 1991). Circuit court review of final Board orders affords parties like the Hotel, "an adequate opportunity to secure judicial protection against possible illegal action on the part of the Board." Myers, 303 U.S. at 48; Amerco v. Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 19 of 33 Page ID #:759 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NLRB, 458 F.3d at 888. Congress created this particular method of review with the understanding that it provided the aggrieved party “a full, expeditious and exclusive method of review in one proceeding after a final [Board] order is made.” H.R. 1147, 74th Cong., 1st Sess., p. 24 (1935) (emphasis added). On review of a final order of the Board, circuit courts can address “all questions of the jurisdiction of the Board and the regularity of its proceedings [and] all questions of constitutional right or statutory authority.” Myers, 303 U.S. at 49 (emphasis added); Amerco v. NLRB, 458 F.3d at 887. Such review affords the Hotel “an adequate opportunity” to secure judicial protection from the Board’s proceeding because “until the Board’s order has been affirmed by the appropriate . . . Court of Appeals, no penalty accrues for disobeying it.” Myers, 303 U.S. at 48. For this reason, it has been settled law for almost eighty years that federal district courts do not have subject matter jurisdiction to review or enjoin NLRB unfair labor practice proceedings. Myers, 303 U.S. at 48; NLRB v. Sears, Roebuck & Co., 421 U.S. at 138, 155; Amerco v. NLRB, 458 F.3d at 888. This is so regardless of whether the plaintiff claims to be facing constitutional due process deprivations or violations of administrative procedural rights. As the Ninth Circuit reiterated in Amerco, “[t]he review authorized by Section 10(f) allows an appellate court to consider ‘all Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 20 of 33 Page ID #:760 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 questions of the jurisdiction of the Board and the regularity of its proceedings, [and] all questions of constitutional right or statutory authority.’” 458 F.3d at 887, quoting Myers at 49. Therefore, Myers mandates that “employers exhaust their constitutional claims with the NLRB and vests exclusive jurisdiction in the courts of appeals to review such claims after the NLRB has issued its final order.” Id. at 890-91. In sum, any objection that the Hotel professes to have regarding the fairness or legality of the NLRB’s decision to issue and prosecute the current complaint is one that must first be presented to the administrative law judge and then to the Board in the normal course of the unfair labor practice proceeding, with review of the final Board order thereafter available only in a court of appeals. 8 The Hotel’s patent effort to circumvent the exclusive procedures established by Congress by seeking injunctive relief in this court 8 It obvious from even a cursory review of appellate court decisions that both constitutional and procedural objections to Board proceedings have long been addressed within the framework of the NLRA’s statutory review scheme. See, e.g. NLRB v. Am. Potash & Chem. Corp., 98 F.2d 488 (9th Cir. 1938) (employer not denied due process when given six days to prepare and present evidence); R&S Waste Servs., LLC v. NLRB, 651 F. App'x 34, 35 (2d Cir. 2016) (employer’s due process not violated by amendment to complaint during unfair labor practice hearing); NLRB v. Quality C.A.T.V., Inc., 824 F.2d 542, 543 (7th Cir. 1987 )(employer’s due process rights were violated by failure to allege and provide proper notice in the complaint); NLRB. v. Burns, 207 F.2d 434 (8th Cir. 1953) (refusal to accept material evidence during the hearing violated employer’s due process rights).;. Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 21 of 33 Page ID #:761 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 must be rejected under the controlling authority set out by the Supreme Court in Myers and the Ninth Circuit in Amerco. 9 B. Because the Hotel has a Statutory Means of Review and Cannot Show Any Statutory Infirmity, the Limited Leedom v. Kyne Exception to the Prohibition on District Court Review of NLRB Proceedings is Unavailable. In Leedom v. Kyne, 358 U.S. 184 (1958), the Supreme Court created an “extremely narrow” exception to Myers. Goethe House N.Y., German Cultural Ctr. v. NLRB, 869 F.2d 75, 77 (2d Cir. 1989). The Court held that district courts may exercise jurisdiction under 28 U.S.C. § 1337 “to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act,” 358 U.S. at 188, but only “‘[i]f the absence of jurisdiction of the federal courts [would] mean a sacrifice or obliteration of a right which Congress has created,” id. at 190 (quoting Switchmen’s Union v. Nat’l Mediation Bd., 320 U.S. 297, 300 (1943)). Under Kyne, a plaintiff must show both that the Agency is clearly acting in violation of a specific, statutory mandate of the NLRA, Id. at 188-89, and 9 While the Hotel’s complaint is replete with case citations, it surprisingly makes no reference to the controlling jurisprudence reflected in Myers and Amerco, with which its counsel should be fully conversant. In Remington Lodging & Hosp., LLC v. Ahearn, 749 F. Supp. 2d 951 (D. Alaska 2010) the same counsel unsuccessfully sought mandamus to enjoin another unfair labor practice proceeding. n ruling against their client there, the district court explicitly referenced Amerco, noting that it “is squarely on point and controls this Court’s decision.” Id. at 958-59. Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 22 of 33 Page ID #:762 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that there is no alternative opportunity for review of the Agency’s action. Id. at 190; Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43 (1991). 10 The Hotel cannot satisfy either threshold under Kyne. As shown above, in light of the statutory review process available under the NLRA, it unquestionably cannot meet the second Kyne requirement since, as it is well aware from the earlier unfair labor practice case, it will be able to obtain circuit court review of any final Board order. Such review obviates any the need for extraordinary Kyne jurisdiction. See MCorp, 502 U.S. at 43. Indeed, it is for precisely this reason that the Ninth Circuit holds that Kyne jurisdiction is “inapplicable to Section 10 unfair labor practice hearings.” Amerco v. NLRB, 458 F.3d at 890-91; accord Pacific Maritime Assoc. v. NLRB, 827 F.3d 1203, 1208, 1211 – 1212 (9th Cir. 2016) (alternative means of judicial review forecloses application of Kyne jurisdiction in district courts). Nor can the Hotel meet the first Kyne requirement to show a specific mandatory statutory provision violated by the NLRB’s issuance of the 10 “The limits of Kyne jurisdiction have been described as ‘nearly insurmountable’ by the District of Columbia Circuit,” which is the circuit in which many cases invoking Kyne are filed. Int’l Union of Operating Eng’rs, Local 70 v. NLRB, 940 F. Supp. 1439, 1442 n.3 (D. Minn. 1996) (quoting U.S. Dep’t of Justice v. FLRA, 981 F.2d 1339, 1343 (D.C. Cir 1993)). Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 23 of 33 Page ID #:763 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complaint or prosecution of the underlying unfair labor practices. In fact, the Hotel concedes as much, admitting that “the NLRA does not require the Board, explicitly, to process unfair labor practice charges within a certain time limit.” (Dkt. 1 at 12, ¶ 44.) Its alternative argument (Dkt. 1 at 35 ¶151), that the delay in issuing the administrative complaint somehow violates Congressional policy underlying the NLRA’s six-month statute of limitations, 29 U.S.C. § 160(b), is both misplaced and misleading. The referenced statute of limitations only prohibits issuance of complaints “based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board.” In other words, the Board cannot act on charges filed more than six months after the violation of the NLRA occurred – a situation that does not exist here. Furthermore, as we explain in greater detail below, deciding when to file a complaint falls squarely within the exclusive prosecutorial discretion of the General Counsel and is never subject to judicial review. NLRB v. United Food Commercial Workers Union, Local 23, 484 U.S. 112, 124-126 (1987). 11 11 The Hotel cites to Yu v. Brown, 36 F.Supp.2d 922 (D.N.M.1999), for the proposition that under the APA this Court should have jurisdiction to consider claims in which the NLRB delays processing the claim. (Dkt. 1 at 33, ¶139). Yu v. Brown, however, involves the Immigration and Naturalization Service’s non-discretionary duty to process immigration applications and not, as here, a decision within an agency’s exclusive prosecutorial discretion. Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 24 of 33 Page ID #:764 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Similarly unavailing is the Hotel’s reliance (Dkt. 1 at 32-35, ¶¶ 138- 141, 148-150) on statements in the NLRB Casehandling Manual for the simple reason that they are not the equivalent of a statutory mandate nor do they create any legally enforceable rights. See Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1182 (D.C. Cir. 2000) (“the Casehandling Manual does not bind the Board; it is intended merely as guidance to the Board’s staff”); UFCW, Local 400 v. NLRB, 694 F.2d 276, 279 (D.C. Cir. 1982) (per curiam) (even violations of the Board’s own Rules and Regulations are insufficient to the meet the Kyne exception). 12 C. Neither General Jurisdiction Statutes, Nor the Administrative Procedure Act, Nor the Mandamus Statute Create Subject Matter Jurisdiction for District Courts to Enjoin NLRB Proceedings. The Hotel’s reliance on general jurisdiction statutes to support district court jurisdiction over this action — 28 U.S.C. § 1331 and 28 U.S.C. § 1337 – fails for the fundamental reason that where, as here, a federal statute gives exclusive review jurisdiction to the courts of appeals, this specific grant of jurisdiction overrides any countervailing general grants of jurisdiction 12 The NLRB Casehandling Manual serves as internal guidance tool only and is not even part of the Board’s formally adopted Rules and Regulations. See 29 C.F.R. § Parts 101-103. Moreover, the time targets described in the NLRB’s Case Handling Manual, § 11740, to which the Hotel refers, do not address the processing time for issuance of complaints, which is the question at issue here. Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 25 of 33 Page ID #:765 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 otherwise available to the district courts. The Ninth Circuit law in this area is certain and inescapable: The courts uniformly hold that statutory review in the agency’s specially designated forum prevails over general federal question jurisdiction in the district courts. Specific grants of exclusive jurisdiction to the courts of appeals override general grants of jurisdiction to the district courts. A contrary holding would encourage circumvention of Congress’s particular jurisdictional assignment. It would also result in fractured judicial review of agency decisions, with all of its attendant confusion, delay, and expense. Owners-Operators Indep. Drivers Ass’n of Am., Inc. v. Skinner, 931 F.2d 582, 589 (9th Cir. 1991) (internal citations omitted); accord, Nuclear Info. & Res. Serv. v. U.S. Dep't of Transp. Research & Special Programs Admin., 457 F.3d 956, 958–59 (9th Cir. 2006); Taylor Farms Pac., Inc. v. NLRB, No. 16-CV-00272-TEH, 2016 WL 1446723, at *3 (N.D. Cal. Apr. 13, 2016) (“ a general statute cannot overcome a more specific scheme of review like the one created by the NLRA”). Equally well established is that neither the Administrative Procedure Act (APA), 5 U.S.C. § 555, nor the Mandamus Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 26 of 33 Page ID #:766 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Act, 29 U.S.C. § 1361, on their own, provide independent sources of subject matter jurisdiction to review or enjoin administrative proceedings. Califano v. Sanders, 430 U.S. 99, 106 (1977) (the APA, on its own, does not provide subject-matter jurisdiction permitting review of agency action); Starbuck v. City and County of San Francisco, 556 F.2d 450, 459 n.18 (9th Cir. 1977) (the Mandamus Act “does not provide an independent ground for jurisdiction.”). II. Even Assuming that Jurisdiction Existed, Mandamus Relief Is Not Available. The Hotel’s effort to obtain mandamus relief to enjoin these NLRB proceedings fails for the additional reason that, even if jurisdiction existed, the Hotel cannot not satisfy the essential three-pronged test for obtaining such relief. Mandamus is “an extraordinary remedy.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998). It is only available to compel a federal official to perform a duty if: “(1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available.” Id.; Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994); see also Heckler v. Ringer, 466 U.S. 602, 616 (1984). Here, the Hotel’s claim and right to relief is far from “clear or certain”; the conduct it wants to enjoin – the Regional Director’s decision to issue and prosecute the administrative complaint – is Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 27 of 33 Page ID #:767 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wholly discretionary and non-ministerial; and finally, the Hotel plainly has an adequate remedy through the administrative review process. A. Petitioner’s Right to the Relief it Seeks is Not “Clear and Certain” The purpose of this first prong of the mandamus test is to ensure that any district court order to an agency is sufficiently narrow, affording a petitioner only the relief to which it is entitled. See Barrick Goldstrike Mines, Inc., v. Babbitt, No. CV-N-93-550-HDM (PHA), 1995 WL 408667, at *2 (D. Nev. March 21, 1994). Writing for the Ninth Circuit, Judge Kozinski explains that “[i]f a plaintiff has no legal entitlement to the relief sought, a ‘clear and certain’ claim cannot exist, and the writ will not lie.” Lowry v. Barnhart, 329 F.3d 1019, 1021 (9th Cir. 2003); see also Barron v. Reich, 13 F.3d 1370, 1375 (9th Cir. 1994) (“dubious” mandamus claim cannot be “clear and certain”). Assuming arguendo that a district court had jurisdiction to enjoin the Board proceedings because of the delay that transpired between when the charges were filed and when the administrative complaint issued, the fact remains that “the Board is not required to place the consequences of its own delay, even if inordinate, upon wronged employees to the benefit of wrongdoing employers.” NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265 (1969)(citing NLRB v. Electric Vacuum Cleaner Co., 315 U.S. 685, 698 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 28 of 33 Page ID #:768 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1942). As the Supreme Court explained in reversing the Fifth Circuit’s decision in J.H. Rutter-Rex to reduce a backpay award because of what it concluded was an inordinate delay contrary to the APA’s reasonable time provisions: Either the company or the employees had to bear the cost of the Board’s delay. The Board placed that cost upon the company, which had wrongfully failed to reinstate the employees. In an effort to discipline the Board for its delay, the court shifted part of that cost from the wrongdoing company to the innocent employees. Id.; accord: NLRB v. International Ass’n of Bridge, Structural & Ornamental Ironworkers, 466 U.S. 720, 724-25 (1984); NLRB v. Katz, 369 U.S. 736, 748 n. 16 (1962). To enjoin prosecution of the NLRB’s complaint here would do precisely what the Supreme Court cautioned against in Rutter Rex. As reflected in the administrative complaint, the NLRB alleges that the Hotel violated the employees’ statutory rights by discriminatorily refusing to rehire them when it reopened after renovations because “the employees joined the Union and engaged in concerted activities, and to discourage employees from engaging in these activities.” (Dkt. 1-1 at 3-4, ¶8(a) – (c).) The Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 29 of 33 Page ID #:769 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complaint also alleges that the Hotel violated the employees’ statutory right to union representation – a continuing right recognized in the Board’s decision in the earlier effects bargaining case enforced by the Ninth Circuit – by failing to bargain before it changed terms and conditions of employment upon reopening. (Dkt. 1-1 at 4, ¶ 11.) In short, enjoining these administrative proceedings would both undermine employee statutory rights and presume to place the onus of delay on innocent employees rather than the Hotel. Under Rutter Rex, the determination for where the balance lies in these situations is one to be made by the Board, not the courts. In any event, what is clear from Rutter Rex is that the Hotel can claim no “clear and certain” legal right to avoid prosecution because of the delay resulting from the NLRB’s decision to defer issuance of a complaint until effects bargaining case was resolved. 13 13 For this same reason, the Hotel’s cannot rely on an equitable defense of laches to provide a “clear and certain” right to relief. See Southwest Merchandising Corp., v. NLRB,. 943 F.2d 1354, 1357-58 (D.C. Cir. 1991). Indeed, laches is generally not available against the federal government acting, as here, in a capacity to enforce a public right or protect the public interest. See Heckler v. Comty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 67 (1984) (as a general rule, laches is no defense to a suit brought by the government to enforce a public right or to protect a public interest); Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 493 n. 10 (9th Cir. 1975) (“laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest”) (citations omitted). In any event, nothing precludes the Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 30 of 33 Page ID #:770 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Mandamus is Not Available to Enjoin Wholly Discretionary Prosecutorial Decisions As the Supreme Court has explained, “the duty to make an informed judgment” is precisely the opposite of the type of ministerial duty subject to mandamus. Japan Whaling Ass’n v. Am. Cetacean Society, 478 U.S. 221, 235 n.5 (1986). For this reason, it is well established that governmental prosecutorial decisions are “beyond the power of this Court” to mandamus. Peek v. Mitchell, 419 F.2d 575, 577 (6th Cir. 1970) (Attorney General and U.S. Attorney could not be compelled by mandamus to prosecute civil rights violators). The NLRB General Counsel’s authority to decide whether and how to prosecute an unfair labor practice charge is equally discretionary and not subject to judicial review. UFCW 484 U.S. at 124-26; Detroit Edison Co. v. NLRB, 440 U.S. 301, 316 (1979); Sears, 421 U.S. at 138, 155. Section 3(d) of the NLRA thus grants the General Counsel unreviewable “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 UFCW, Local 23, 484 U.S. at 124. The Regional Director’s decision here, taken on behalf of the General Counsel, both to hold the current case in abeyance since 2012 pending resolution of Hotel from raising its laches defense within the context of the administrative proceedings no rights are lost by denying relief here. Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 31 of 33 Page ID #:771 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the earlier effects bargaining case and to issue complaint and prosecute the unfair labor practices after the earlier case is resolved are all decisions firmly committed to the General Counsel’s prosecutorial discretion and not reviewable by mandamus in a district court. 14 C. The Hotel Has An Adequate Remedy At Law For the same reasons set out above, the Hotel already has perfectly adequate statutory review mechanisms to address its concerns. All its constitutional and procedural complaints may be raised in the context of the currently pending unfair labor practice proceedings, and if the results in those proceedings are deemed unsatisfactory, it may seek ultimate review of the Board’s actions in the circuit court under Section 10(f) of the NLRA. Thus, the Hotel cannot meet the third requirement for mandamus relief – that there be no other adequate remedy. CONCLUSION For the reasons stated above, this Court lacks jurisdiction to interfere with, by mandamus relief or otherwise, the Agency’s decision to prosecute 14 Sparks Nugget, Inc. v. Scott, 583 F. Supp. 78 (D. Nev. 1984), a case cited by the Hotel, is inapposite both because it concerned a representation case proceeding and because the question there was whether the court had the authority to order the Board to affirmatively act, not as here to prevent the NLRB from acting. Crucially, the Sparks Nugget court recognized, as it must, that it was not empowered to “infringe on a matter committed to the discretion of the National Labor Relations Board.” Id. at 82. Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 32 of 33 Page ID #:772 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an unfair labor practice complaint involving the Hotel. The request for mandamus relief likewise fails on the merits. The NLRB requests that the Hotel’s complaint be dismissed pursuant to FRCP 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, FRCP 12(b)(6) for its failure to state a claim for which relief may be granted. Respectfully submitted, NATIONAL LABOR RELATIONS BOARD /s/ Dean Owens DEAN OWENS DIANA EMBREE Attorneys for Defendant/Respondent Dated: October 24, 2016 Case 2:16-cv-06955-PSG-GJS Document 45-1 Filed 10/24/16 Page 33 of 33 Page ID #:773 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dalford Dean Owens, TX Bar 24060907 dean.owens@nlrb.gov (202) 273-2934 Diana Orantes Embree, DC Bar 289306 (202) 273-1082 diana.embree@nlrb.gov National Labor Relations Board 1015 Half Street, S.E., Fourth Floor Washington, DC 20003 Fax: (202) 273-4244 Attorneys for Defendant/Respondent, MORI PAM RUBIN in her capacity as Regional Director, Region 31, of the National Labor Relations Board IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA KAVA HOLDINGS, LLC, a Delaware Limited Liability Company, formerly KAVA HOLDINGS, INC., a Delaware Corporation, d/b/a HOTEL BEL-AIR Plaintiff/Petitioner, v. MORI PAM RUBIN in her capacity as Regional Director, Region 31, of the National Labor Relations Board, Defendant/Respondent. No. 2:16-cv-06955-PSG-GJS [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Date: January 23, 2017 Time: 1:30 p.m. Judge: Hon. Philip S. Gutierrez THIS MATTER HAS COME BEFORE THE COURT on the Motion to Dismiss filed by the Defendant, Mori Pam Rubin, in her capacity as Regional Case 2:16-cv-06955-PSG-GJS Document 45-2 Filed 10/24/16 Page 1 of 5 Page ID #:774 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Director, Region 31, of the National Labor Relations Board. Plaintiff Kava Holdings, LLC d/b/a Hotel Bel-Air brought this suit seeking to permanently enjoin the Defendant from prosecuting and holding a hearing on a complaint alleging that the Hotel has engaged in a number of unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3). THE COURT HAVING READ AND CONSIDERED the Defendant’s Motion, Memorandum of Points and Authorities, and Plaintiff’s response, oral arguments and all other matters of record, THE COURT NOW FINDS that it does not have subject matter jurisdiction to consider or grant the relief sought by Plaintiff’s complaint or to enjoin by way of mandamus or otherwise the unfair labor practice proceedings now pending against Plaintiff before the National Labor Relations Board in Case No. 31-CA-074675. Controlling authority reflected in Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48, 51 (1938) and Amerco v. NLRB, 458 F.3d 883, 884, 888 (9th Cir. 2006) establishes that district courts are without jurisdiction to review or enjoin the National Labor Relations Board’s administrative proceedings. Any constitutional or procedural objections that Plaintiff may have with respect to the current administrative proceedings must be raised, first, in the administrative forum, and is subject to subsequent court review only after a final decision issues by the National Labor Relations Board and, then, only in a United States Courts of Appeals, in Case 2:16-cv-06955-PSG-GJS Document 45-2 Filed 10/24/16 Page 2 of 5 Page ID #:775 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accordance with the applicable statute, 29 U.S.C. § 160(f). Because Plaintiff has an adequate avenue for remedial review, it cannot rely on the “extremely narrow” exception to Myers created by Leedom v. Kyne, 358 U.S. 184 (1958). See Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43 (1991); Amerco v. NLRB, 458 F.3d at 888; Pacific Maritime Assoc. v. NLRB, 827 F.3d 1203, 1208, 1211 – 1212 (9 th Cir. 2016). Because the National Labor Relations Act provides a specific and exclusive grant of review jurisdiction in the federal appellate courts, district court jurisdiction is not available under the general federal and commerce jurisdiction statutes, 28 U.S.C. §§1331 and 1337. Owners- Operators Indep. Drivers Ass’n of Am., Inc. v. Skinner, 931 F.2d 582, 589 (9th Cir. 1991). Finally, neither the Administrative Procedure Act (APA), 5 U.S.C. § 555, et seq., nor the Mandamus Act, 29 U.S.C. § 1361, provide independent sources of subject matter jurisdiction to review or enjoin NLRB proceedings. Califano v. Sanders, 430 U.S. 99, 106 (1977); Starbuck v. City and County of San Francisco, 556 F.2d 450, 459 n.18 (9th Cir. 1977). THE COURT FURTHER FINDS that in addition to having an adequate remedy at law, Plaintiff has failed to establish a “clear and certain” claim for the relief it seeks, and that the NLRB’s decision to issue complaint and prosecute the administrative case is a matter of non-reviewable prosecutorial discretionary or Case 2:16-cv-06955-PSG-GJS Document 45-2 Filed 10/24/16 Page 3 of 5 Page ID #:776 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ministerial. Mandamus relief is accordingly unavailable. Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998). THEREFORE, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss is GRANTED, and IT IS FURTHER ORDERED that Plaintiff’s Complaint is DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction and for failure to state a claim on which relief may be granted. DATED THIS ____day of __________, 2016. By: ____________________________________ The Honorable Philip S. Gutierrez, United States District Court Judge Case 2:16-cv-06955-PSG-GJS Document 45-2 Filed 10/24/16 Page 4 of 5 Page ID #:777 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-06955-PSG-GJS Document 45-2 Filed 10/24/16 Page 5 of 5 Page ID #:778