American Baptist Homes of the West, d/b/a Piedmont Gardens, Petitioner v. National Labor Relations Board, Respondent Service Employees International Union, United Healthcare Workers - West, Intervenor
Upon consideration of the motion to dismiss case for lack of jurisdiction, the opposition thereto, the reply, and the notice of decision by the NLRB, it is
ORDERED that the motion to dismiss be granted. See Clifton Power Corp. v. FERC, 294 F.3d 108, 111 (D.C. Cir. 2002) (“It is the petitioner's request for administrative rehearing, not the agency's authority to reconsider a decision, that renders the agency's decision non-final as to the petitioner and renders the previously-filed petition for judicial review incurably premature.”). Contrary to petitioner's assertion, the agency's denial of the motion for reconsideration does not moot the motion to dismiss. See Clifton Power, 294 F.3d at 110 (“subsequent action by the agency on a motion for reconsideration does not ripen the petition for review or secure appellate review” (internal quotation marks omitted)).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.
FOR THE COURT:
Mark J. Langer, Clerk
Robert J. Cavello Deputy Clerk