Amerijet International, Inc. v. National Labor Relations Board, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14657
________________________
D.C. Docket No. 1:11-cv-22919-JEM
AMERIJET INTERNATIONAL, INC.,
Plaintiff - Appellant,
versus
NATIONAL LABOR RELATIONS BOARD,
ROCHELLE KENTOV,
WILMA B. LIEBMAN,
U.S. ATTORNEY SD FLA,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 29, 2013)
Before BARKETT and MARCUS, Circuit Judges, and CONWAY,* District Judge.
* Honorable Anne C. Conway, Chief Judge, United States District Court for the Middle District
of Florida, sitting by designation.
Case: 12-14657 Date Filed: 05/29/2013 Page: 1 of 7

-- 1 of 7 --

2
PER CURIAM:
This appeal arises out of an NLRB investigation conducted by its General
Counsel of an unfair labor practice charge filed against Amerijet by the
International Brotherhood of Electrical Workers, Local Union 349, on behalf of
several of Amerijet’s cargo handler employees. Amerijet responded to the
investigation by filing suit in the United States District Court for the Southern
District of Florida, seeking a declaratory judgment that the NLRB lacks
jurisdiction to conduct even a preliminary investigation of the charge. The district
court dismissed the complaint for lack of subject-matter jurisdiction.1 We now
affirm.
The text of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et
seq., and binding case precedent have established that section 3(d) of the NLRA,
29 U.S.C. § 153(d), commits to the NLRB’s General Counsel the unreviewable
authority to initially investigate unfair labor practice charges in order to determine
whether to file a formal agency complaint. Thus, the district court properly
concluded that it lacked jurisdiction to prohibit the NLRB from initially
investigating unfair labor practice charges filed against Amerijet.
1 As an initial matter, we reject Amerijet’s claim that the district court’s dismissal relied upon
disputed material facts. The court dismissed the case because it properly concluded that section
3(d) of the NLRA statutorily forecloses federal jurisdiction.
Case: 12-14657 Date Filed: 05/29/2013 Page: 2 of 7

-- 2 of 7 --

3
The Supreme Court has long held that the NLRB’s decision to investigate an
unfair labor practice charge is unreviewable by the federal courts. See Newport
News Shipbuilding & Dry Dock Co. v. Schauffler, 303 U.S. 54 (1938). Many
years ago, the Court explained:
It is suggested that, while the Board has the right and duty to
make, under section 5 of the [NLRA], a preliminary informal inquiry
before public action, for the purpose of informing itself whether a
particular concern is subject to its authority, the District Court may
entertain a suit to prevent the Board from conducting a public
investigation under section 10, if the [employer] claims that it is not
[subject to the Board’s jurisdiction]. The limitation suggested would,
in large measure, defeat the purpose of the legislation. There is no
basis in the act for such a contention.
Id. at 58 (citations omitted). And in Bradley Lumber Co. of Ark. v. N.L.R.B., a
panel of the former Fifth Circuit in binding precedent explained that the
determination of whether the employer is subject to the NLRB’s jurisdiction “is
initially for the investigation of the Board itself, and not to be contested . . . before
any District Court that may get jurisdiction of his person.” 84 F.2d 97, 100 (5th
Cir. 1936).2 The former Fifth Circuit also recognized that, “[e]ven in advance of a
final order by the Board, jurisdiction can regularly be brought under judicial
scrutiny, because no subpoena can be enforced nor any document or book be
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
Case: 12-14657 Date Filed: 05/29/2013 Page: 3 of 7

-- 3 of 7 --

4
compelled to be produced, nor any other order enforced save by appeal to a court,
which would then and there refuse to sanction or aid any clear usurpation.” Id.
In 1947, Congress passed the Taft-Hartley Act, which created the office of
the General Counsel and expressly assigned to the General Counsel the NLRB’s
prosecutorial functions, notably including the authority to investigate unfair labor
practice charges. See Labor-Management Relations (Taft-Hartley) Act, Pub. L.
No. 80-101, 61 Stat. 136 (1947); see generally Frankl v. HTH Corp., 650 F.3d
1334, 1343 (9th Cir. 2011) (explaining effect of Taft-Hartley Act). Moreover, the
NLRB’s longstanding and unreviewable authority to initially investigate unfair
labor practice charges was codified in section 3(d) of the NLRA, which provides
that the NLRB General Counsel “shall have final authority, on behalf of the Board,
in respect of the investigation of charges and issuance of complaints.” 29 U.S.C.
§ 153(d) (emphasis added). In Bova v. Pipefitters & Plumbers Local 60, AFL-
CIO, 554 F.2d 226, 228 (5th Cir. 1977), the former Fifth Circuit once again held in
binding precedent that “[t]he investigation of unfair labor practice charges and
whether an unfair labor practice complaint should be issued are matters committed
by Congress, in 29 U.S.C. § 153(d), to the unreviewable discretion of the NLRB
General Counsel . . . .” 554 F.2d at 228 (citing N.L.R.B. v. Sears, Roebuck & Co.,
421 U.S. 132, 138-39 (1975)); see also Beverly Health and Rehab. Servs., Inc. v.
Feinstein, 103 F.3d 151, 153 (D.C. Cir. 1996) (“Section 153(d) of the NLRA
Case: 12-14657 Date Filed: 05/29/2013 Page: 4 of 7

-- 4 of 7 --

5
dictates that the General Counsel is the ‘final authority . . . in respect of the
investigation of charges and issuance of complaints . . . and in respect of the
prosecution of such complaints before the Board.’ No provision of the Act
provides for judicial review of any of these prosecutorial functions. On the other
hand, the Act specifically provides for judicial review of ‘final order[s] of the
Board.’” (internal citations omitted) (alterations in original)).
Amerijet claims, however, that Leedom v. Kyne, 358 U.S. 184 (1958), and
Fla. Bd. of Bus. Regulation v. N.L.R.B., 686 F.2d 1362 (11th Cir. 1982), provide
an exception that carries the company over the jurisdictional hurdle imposed by
section 3(d) of the NLRA. Amerijet’s reliance on these cases is misplaced,
however, because neither of them addressed section 3(d). Rather, they dealt with
NLRB representation proceedings, which arise under a different section of the
NLRA. Section 3(d), which makes unreviewable the NLRB’s decision to
investigate unfair labor charges filed under section 10 of the NLRA, 29 U.S.C.
§ 160 (Prevention of unfair labor practices), has no application in NLRB
representation proceedings, which arise under section 9 of the NLRA, 29 U.S.C.
§ 159 (Representatives and elections), and are not investigated by the NLRB
General Counsel.
Amerijet also seems to say that the district court may exercise jurisdiction
over the matter anyway because the resolution of the merits is clear. The problem
Case: 12-14657 Date Filed: 05/29/2013 Page: 5 of 7

-- 5 of 7 --

6
is that we cannot create jurisdiction in the district court in the face of a
congressional pronouncement that leaves the power to conduct an initial inquiry
solely in the hands of the NLRB’s General Counsel. See Friends of the Everglades
v. U.S. E.P.A., 699 F.3d 1280, 1288 (11th Cir. 2012) (“Even if the resolution of the
merits were foreordained -- an issue we do not decide -- the Supreme Court has
explicitly rejected the theory of ‘hypothetical jurisdiction.’ . . . [A]n inferior court
must have both statutory and constitutional jurisdiction before it may decide a case
on the merits . . . .” (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
101-02 (1998))).
Finally, we are unpersuaded by Amerijet’s suggestion that this leaves the
company without any other recourse for challenging the NLRB’s jurisdiction in
federal court. If, for example, the NLRB seeks to enforce a subpoena under
section 11(2) of the NLRA, 29 U.S.C. § 161(2), it must do so in the district court,
and Amerijet would be free to challenge the Board’s jurisdiction at that point. See
F.E.C. v. Fla. for Kennedy Comm., 681 F.2d 1281, 1285 n.7 (11th Cir. 1982)
(“[C]ourts should not summarily enforce an administrative subpoena when there is
a question regarding the statutory jurisdiction of the agency to investigate the
organization . . . .”) Moreover, if the NLRB issues a formal complaint and
subsequently orders that relief be granted, Amerijet may challenge the Board’s
final order before this Court, including its jurisdiction. See 29 U.S.C. § 160(f).
Case: 12-14657 Date Filed: 05/29/2013 Page: 6 of 7

-- 6 of 7 --

7
AFFIRMED.
Case: 12-14657 Date Filed: 05/29/2013 Page: 7 of 7

-- 7 of 7 --