PILCHMAN v. NATIONAL LABOR RELATIONS BOARD 1482 AFL CIO 37 AFL CIO (2020)

SUMMARY ORDER

Robert Pilchman appeals from the dismissal of his complaints against the National Labor Relations Board (“NLRB”), the New York State Public Employment Relations Board (“PERB”), the New York State Division of Human Rights, his former employer the Brooklyn Public Library (“Library”), and his union. In his first action, Pilchman alleged that the general counsel of the NLRB improperly declined to issue an unfair labor practice complaint, and the PERB improperly denied his application for injunctive relief against the Library. Pilchman v. National Labor Relations Board, 14-cv-7083 (E.D.N.Y.) (“Pilchman I”). In the second, he reiterated his claims and further alleged that the defendants had not complied with his Freedom of Information Act and New York's Freedom of Information Law requests. Pilchman v. National Labor Relations Board, 15-cv-3176 (E.D.N.Y.) (“Pilchman II”). In the third, he sued only the Library and alleged that the library had violated his First Amendment rights. Pilchman v. Brooklyn Public Library, E.D.N.Y. 15-cv-3641 (“Pilchman III”). The district court dismissed the first action, reasoning that it lacked jurisdiction to review a decision of the NLRB general counsel not to issue an unfair labor practice complaint and declining to exercise supplementary jurisdiction over his remaining state law claims. The court dismissed the second and third actions for failure to state a claim. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

The issue underlying the district court's dismissals of Pilchman I and II is whether the district court had jurisdiction to review a decision of the NLRB general counsel not to issue an unfair labor practice complaint. The district court did not have such jurisdiction.

The district court had jurisdiction “only if authorized by statute.” Bell v. New Jersey, 461 U.S. 773, 777, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983). Typically, federal court review of agency decisions is governed by the Administrative Procedure Act, unless some other statute “preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). The Supreme Court has held that the National Labor Relations Act is such a statute. See N.L.R.B. v. United Food and Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 130–33, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987). The NLRA provides that “[a]ny person aggrieved by a final order of the Board ․ may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in ․ by filing in such a court a written petition praying that the order of the Board be modified or set aside.” 29 U.S.C. § 160(f) (emphasis added).

Thus, the NLRA does not provide for district court jurisdiction to review NLRB decisions. This Court lacks jurisdiction over the general counsel's decision because it is not a final order within the meaning of 29 U.S.C. § 160(f); see United Food and Commercial Workers Union Local 23, 484 U.S. at 129, 108 S.Ct. 413. While we have recognized a potential exception when there is an assertion of a violation of constitutional rights which is “not transparently frivolous.” Fay v. Douds, 172 F.2d 720, 723 (2d Cir. 1949), Pilchman does not allege any constitutional violations by the NLRB. Accordingly, the district court lacked jurisdiction to review the NLRB general counsel's decision and was required to dismiss Pilchman's claim against the NLRB. Because Pilchman's claim against the NLRB was the only federal claim in his first action, the district court properly declined to exercise supplemental jurisdiction over his claims against the remaining defendants. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006).

We have considered the remainder of Pilchman's arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.