Jarvis v. National Labor Relations Board et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
HOLLY JARVIS,
Plaintiff,
vs. 5:26-CV-252
(MAD/MJK)
NATIONAL LABOR RELATIONS BOARD,
OFFICE OF CONGRESSIONAL AND PUBLIC AFFAIRS,
RUTH BESANTIS, DESMOND METZGER, and
JOHN DOE,
Defendants.
____________________________________________
APPEARANCES: OF COUNSEL:
HOLLY JARVIS
Syracuse, New York
Plaintiff, Pro se
Mae A. D'Agostino, U.S. District Judge:
ORDER
Pro se Plaintiff Holly Jarvis filed a complaint in this action on February 18, 2026, against
the National Labor Relations Board ("NLRB"), the NLRB Office of Congressional and Public
Affairs, and NLRB employees Ruth Besantis, Desmond Metzger, and John Doe. See Dkt. No. 1.
Plaintiff alleges she was experiencing unfair treatment at work, and she filed a complaint with her
union and then the NLRB. See id. Plaintiff contends that despite submitting a formal complaint
to the NLRB, "[n]o investigation was opened, no charge number was issued, and no written
determination was provided." Id. at ¶ 26. Plaintiff brings a claim pursuant to the Administrative
Procedures Act ("APA"), 5 U.S.C. § 706, and seeks a writ of mandamus pursuant to 28 U.S.C. §
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1361. See id. at ¶¶ 30-35. Plaintiff also moved to proceed in forma pauperis ("IFP"). See Dkt.
No. 2.
On April 2, 2026, Magistrate Judge Mitchell J. Katz granted Plaintiff's IFP motion and
recommended that the complaint be dismissed without leave to amend. See Dkt. No. 5.
Magistrate Judge Katz explained that (1) Plaintiff "seeks judicial review based on an NLRB
investigation, or lack thereof[, b]ut the Court is not permitted to review an NLRB investigation";
(2) "the NLRB has neither issued any final order on Jarvis's charges, nor has Jarvis alleged a
constitutional violation, so judicial review is precluded at this stage"; (3) Plaintiff "has not alleged
that the NLRB failed to follow express provisions of the [National Labor Relations Act
("NLRA")]—she is only alleging that the NLRB should have prosecuted her case more
expeditiously"; and (4) Plaintiff has not alleged that the individual "[D]efendants have unlawfully
harmed" Plaintiff or that "they are [] proper parties to sue." Id. at 7-11.
On April 28, 2026, Plaintiff filed objections to the Order & Report-Recommendation. See
Dkt. No. 6. Plaintiff argues that she "does not challenge a discretionary determination. Instead,
Plaintiff challenges the complete failure of the NLRB to perform its statutory function, including
the failure to meaningfully investigate, evaluate, or process her complaint." Id. at 2. Plaintiff
contends her "allegations demonstrate a failure to act, not merely disagreement with an outcome."
Id. Plaintiff alleges a due process claim. See id. at 2-3. Plaintiff also argues that dismissal of her
complaint with prejudice and without leave to amend is unwarranted because she is pro se and
should be permitted to "refin[e] and properly present[] her claims." Id. at 3.
When a party files specific objections to a magistrate judge's report-recommendation and
order, the district court makes a "de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." 28 U.S.C. §
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636(b)(1). A proper objection must be timely, specific, and "not raise new arguments not
previously made before the magistrate judge." Nambiar v. Cent. Orthopedic Grp., LLP, 158 F.4th
349, 359 (2d Cir. 2025) (citation omitted). Objections reiterating arguments already made to the
magistrate judge are proper if they are timely and specific. See id. at 360-61. When a party
declines to file objections, or "fails to properly object[,]" the district court reviews the
recommendations for clear error. Id. at 358-59. After the appropriate review, "[a] judge of the
court may accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1).
Plaintiff raises specific objections to Magistrate Judge Katz's recommendation that her
APA claim be dismissed because the Court lacks jurisdiction to review acts of prosecutorial
discretion concerning NLRB claims. See Dkt. No. 6. As such, the Court reviews that issue de
novo. Plaintiff does not, however, object to Magistrate Judge Katz's recommendations concerning
dismissal of the individual Defendants and Plaintiff's mandamus claim. The Court reviews those
portions of the Order & Report-Recommendation for only clear error.
Plaintiff is correct that her complaint does not allege only inappropriate agency action, but
"agency inaction." Dkt. No. 6 at 2. In her complaint, Plaintiff states that "[d]espite [] following
every required procedural step—through her employer, Human Resources, her union, and finally
the NLRB—the agency failed to investigate, failed to process her charges, and failed to respond
in any meaningful way." Dkt. No. 1 at ¶ 2. "Plaintiff seeks declaratory and injunctive relief
compelling the NLRB to accept, investigate, and act upon her complaints . . . ." Id. at ¶ 4.
Plaintiff alleges that an NLRB employee "confirm[ed] that [her] complaint has not been timely
processed" and returned the complaint to her. Id. at ¶ 25. She states, again, that "[n]o
investigation was opened, no charge number was issued, and no written determination was
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provided." Id. at ¶ 26. In some paragraphs of Plaintiff's complaint, she states that her union and
the NLRB did not "meaningfully" represent her or respond to her claim. Id. at ¶¶ 2, 19.
Plaintiff's contention that Magistrate Judge Katz misconstrued her complaint is incorrect.
Magistrate Judge Katz stated that Plaintiff "seeks judicial review based on an NLRB
investigation, or lack thereof," and that "the NLRB has n[ot] issued any final order . . . ." Dkt.
No. 5 at 7-9. Magistrate Judge Katz did not discuss only Plaintiff's statements that the NLRB's
actions were inadequate, and as Magistrate Judge Katz concluded, this Court lacks jurisdiction to
review Plaintiff's claims.
"The NLRB has exclusive jurisdiction over claims asserted against an employer brought
under § 7 and § 8 under the NLRA." Robin v. Bon Secours Cmty. Hosp., No. 23-CV-9222, 2025
WL 623766, *6 (S.D.N.Y. Feb. 25, 2025), appeal dismissed (May 23, 2025) (citing Phillips v.
Russ, No. 23-CV-8283, 2023 WL 8452424, *5 (S.D.N.Y. Dec. 5, 2023) ("[W]hen an activity is
arguably subject to § 7 or § 8 of the NLRA, the States as well as the federal courts must defer to
the exclusive competence of the NLRB if the danger of state interference with national policy is
to be averted"); Moore v. U.S. Postal Serv., No. 18-CV-9967, 2019 WL 13388322, *2 (S.D.N.Y.
July 12, 2019) ("[T]he NLRB has exclusive jurisdiction over claims of unfair labor practices
under section 8 of the NLRA")).
The APA "generally provides an avenue for judicial review of final agency actions 'for
which there is no other adequate remedy in a court.'" Pilchman v. Nat'l Lab. Rels. Bd., No. 14-
CV-7083, 2017 WL 1750300, *3 (E.D.N.Y. May 3, 2017), aff'd, 831 Fed. Appx. 46 (2d Cir.
2020) (quoting 5 U.S.C. § 704). "While there is a strong presumption of reviewability under the
APA, . . . section 701 explicitly excludes judicial review 'to the extent that—(1) [other] statutes
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preclude judicial review; or (2) agency action is committed to agency discretion by law[.]'" Id.
(quoting 5 U.S.C. § 701(a)) (internal citation omitted).
"The Supreme Court has recognized that the NLRA 'preclude[s] judicial review' under the
APA of the decisions of the NLRB's General Counsel concerning whether to investigate or
dismiss charges concerning violations of the NLRA." Raghavendra v. N.L.R.B., No. 08-CV-
8120, 2009 WL 5908013, *10 (S.D.N.Y. Aug. 27, 2009) (citing NLRB v. United Food &
Commercial Workers Union, 484 U.S. 112, 118 n.7 (1987)); see 29 U.S.C. § 153(d) ("The
General Counsel of the Board . . . shall have final authority, on behalf of the Board, in respect of
the investigation of charges and issuance of complaints [concerning unfair labor practices] under
section 160 of this title, and in respect of the prosecution of such complaints before the Board").
"Under the NLRA, the General Counsel's decisions prior to the commencement of a
hearing, including the decision to investigate or to dismiss a complaint, are prosecutorial in nature
and not reviewable by the NLRB's adjudicative body or by the courts for abuse of discretion."
Raghavendra, 2009 WL 5908013, at *10; see also Vaca v. Sipes, 386 U.S. 171, 182 (1967)
("[T]he Board's General Counsel has unreviewable discretion to refuse to institute an unfair labor
practice complaint"). "Courts of Appeal, including the Court of Appeals for the Second Circuit,
have recognized that an exception to the general prohibition against judicial review exists when a
plaintiff alleges a substantial claim that the NLRB's decision has violated the plaintiff's
constitutional rights." Id. (citing, inter alia, McLeod v. Local 476, United Bhd. of Indus. Workers,
288 F.2d 198, 201 (2d Cir. 1961) ("[I]f a plaintiff advances a claim of a denial of constitutional
rights . . . and the claim is 'not transparently frivolous' the District Court should hear the case")).
Plaintiff's argument that this Court has jurisdiction to review the NLRB's decision not to
investigate her complaint is meritless. She has not presented any legal authority that contradicts
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the principles set forth by Magistrate Judge Katz and this Court which establishes that this Court
cannot review the NLRB's discretionary decision on whether to file a complaint against a
plaintiff's employer. See Da Costa v. U.S. Gov't, No. 10-CV- 169, 2011 WL 846701, *6
(S.D.N.Y. Feb. 22, 2011) ("[A]ny [NLRB] adjudication resolving an unfair labor practice
complaint, whether by final order, consent decree, or settlement may be reviewed by a court, but
not General Counsel's decision as to whether to issue a complaint. . . . General Counsel's
decision to dismiss [the plaintiff's] charges and not issue a complaint was, however, a
prosecutorial—not an adjudicatory—act. Accordingly, General Counsel's decision to dismiss his
charges is not subject to judicial review by this Court") (citation and quotation marks omitted);
Becker v. N.L.R.B., 678 F. Supp. 406, 408 (E.D.N.Y. 1987) ("In a long and unbroken series of
decisions by the Supreme Court and the Courts of Appeal, this provision, and the general scheme
of the Act, have been interpreted to preclude judicial review of the General Counsel's processing
of charges and refusal to issue complaints") (collecting cases).
Insofar as Plaintiff attempts to allege a due process claim in her objections, she did not
assert such a claim in her complaint. See Dkt. No. 6 at 2-3. "Rule 72(b)(2) of the Federal Rules
of Civil Procedure permits a party to file specific written objections to the proposed findings and
recommendations of the Magistrate Judge, but 'Rule 72(b) does not provide that new claims may
be raised in objections to a report and recommendation.'" Russell v. Colvin, No. 5:13-CV-1030,
2015 WL 570828, *3 (N.D.N.Y. Feb. 11, 2015) (quoting Pierce v. Mance, No. 08-CV-4736, 2009
WL 1754904, *1 (S.D.N.Y. June 22, 2009)). "'If the Court were to consider formally these
untimely contentions, it would unduly undermine the authority of the Magistrate Judge by
allowing litigants the option of waiting until a Report is issued to advance additional arguments.'"
Id. (quoting Abu-Nassar v. Elders Futures, Inc., No. 88-CV-7906, 1994 WL 445638, *4, n. 2
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(S.D.N.Y. Aug. 17, 1994)). However, "in deference to Plaintiff's pro se status," the Court will
consider whether Plaintiff can state a due process claim. Wilkins v. Soares, No. 8:20-CV-116,
2020 WL 3286507, *4 (N.D.N.Y. June 18, 2020) (citing Rogers v. CPS, No. 20-CV-75, 2020 WL
2059824, *3 (N.D.N.Y. Apr. 29, 2020)).
Courts have held that a plaintiff cannot "invoke [a] court's jurisdiction by casting his
action in terms of alleged due process violations" because ''the General Counsel's refusal to issue
a complaint based upon alleged unfair labor practices does not constitute a violation of a
constitutional right and, therefore, the district court is without subject matter jurisdiction to review
his decision.'" Bonilla v. Nat'l Lab. Rels. Bd. Off. of Gen. Couns., No. 92-CV-4034, 1993 WL
148888, at *1 (S.D.N.Y. Apr. 30, 1993) (quoting Rockford Redi-Mix, Co. v. Zipp, 482 F. Supp.
489, 493 (N.D.Ill. 1979), aff'd, 632 F.2d 30, (7th Cir. 1980), cert. denied, Countryman v. Zipp,
450 U.S. 929 (1981)); see also Mobilab Union, Inc. v. Johansen, 600 F. Supp. 826, 829 (D.N.J.
1985) ("Courts that have considered this issue have stated, contrary to the position taken by the
Board here, that the NLRA vindicates private rights (of the charging party), as well as public
interests. . . . But, these courts have declined to go so far as to hold that charging parties have a
constitutional right to have a complaint issue") (citations omitted); Shimose v. Int'l Longshore &
Warehouse Union, Loc. 142, No. 21-CV-00489, 2022 WL 21778301, *6 (D. Haw. Oct. 5, 2022)
("The General Counsel's mere refusal to issue a complaint on [the p]laintiff's charge was not a
constitutional violation").
Plaintiff is correct that the APA generally permits the Court to review claims that an
administrative agency failed to perform "required duties." Dkt. No. 6 at 2. However, as
Magistrate Judge Katz explained, Plaintiff has not presented any legal authority which requires
the NLRB to investigate her complaint. See Dkt. No. 5 at 10.
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As to the mandamus claim, the Court finds no clear error in Magistrate Judge Katz's
conclusion that Plaintiff has failed to state a claim. See Dkt. No. 5 at 16-17. Magistrate Judge
Katz is correct that "mandamus is an extraordinary remedy, intended to aid only those parties to
whom an official or agency owes 'a clear nondiscretionary duty.'" Escaler v. U.S. Citizenship &
Immigr. Servs., 582 F.3d 288, 292 (2d Cir. 2009) (quoting Heckler v. Ringer, 466 U.S. 602, 616
(1984)); see Dkt. No. 5 at 16-17. "A party who seeks a writ of mandamus must show a 'clear and
indisputable right' to its issuance." Escaler, 582 F.3d at 292 (quoting Miller v. French, 530 U.S.
327, 339 (2000)) (additional quotation marks omitted).
Magistrate Judge Katz noted that "[a]ny person aggrieved by a final order of the Board
granting or denying in whole or in part the relief sought may obtain a review of such order in any
United States court of appeals . . . 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); see Dkt. No. 5 at 16. Plaintiff alleges
in her complaint that her claim to the NLRB was "received" but also "returned . . . confirming that
the complaint had not been timely processed." Dkt. No. 1 at ¶¶ 22-25. It is therefore unclear
whether the NLRB received the complaint, but Plaintiff alleges that the NLRB Office of
Congressional and Public affairs responded to her when she tried "to escalate the matter." Id. at
¶ 27. Plaintiff did not provide the Court with a copy of that response and her conclusory assertion
that the response was "a generic form email" does not establish a due process claim. See Shimose,
2022 WL 21778301, at *6 ("Plaintiff was not entitled to a more fulsome explanation of the
NLRB's decision"). Plaintiff has not established a clear and indisputable right to the relief she
seeks such that her mandamus claim fails.
The Court also finds no clear error in Magistrate Judge Katz's analysis and conclusion
concerning Plaintiff's failure to sufficiently allege any claim against the individual Defendants.
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See Dkt. No. 5 at 11-15. "Indeed, 'the pleading standard [Federal] Rule [of Civil Procedure] 8
announces . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.'" Ong v. Park Manor (Middletown Park) Rehab. & Healthcare Ctr., 51 F. Supp. 3d
319, 351 (S.D.N.Y. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Beyond stating
that her complaint was purportedly received by Defendants Besantis and Metzger, Plaintiff does
not include any allegations concerning them in her complaint. See Dkt. No. 1 at ¶¶ 22-23. That is
insufficient to state a legal claim against them. See also Walker v. Arbesfeld, No. 2:23-CV-75,
2025 WL 2972028, *1-2 (E.D. Tex. Oct. 21, 2025) (dismissing claims against "five different
officials who are all allegedly federal employees working for the NLRB" with prejudice because
"Plaintiff fails to plausibly allege that any of the Defendants at the NLRB caused any of his
alleged injuries or bear any legally cognizable nexus to those injuries").
Finally, in her objections, Plaintiff argues that dismissal with prejudice and without leave
to amend is inappropriate because of her pro se status. See Dkt. No. 6 at 3. Magistrate Judge
Katz recommended dismissal of Plaintiff's complaint with prejudice and without leave to amend
"because APA review is unavailable; the District Court lacks jurisdiction; and Jarvis is not
entitled to mandamus[.]" Dkt. No. 5 at 19. The Court agrees with each of those assertions;
however, "'[a] dismissal for lack of jurisdiction must be without prejudice rather than with
prejudice.'" In re Seganti, 153 F.4th 272, 279 (2d Cir. 2025) (quoting Miller v. Brightstar Asia,
Ltd., 43 F.4th 112, 126 (2d Cir. 2022)) (emphasis added). In N.L.R.B. v. United Food & Com.
Workers Union, Loc. 23, AFL-CIO, 484 U.S. 112, 133 (1987), the Supreme Court "conclude[d]
that the Court of Appeals had no jurisdiction to entertain this action under either the NLRA or the
APA" and "remand[ed the case] with instructions to dismiss the cause for want of subject-matter
jurisdiction." Because this is not a case where Plaintiff is asking the Court to review "a Board
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order," United Nat. Foods, Inc. v. Nat'l Lab. Rels. Bd., 138 F.4th 937, 944 (5th Cir. 2025), and
Plaintiff has not presented any legal authority which permits this Court to review the NLRB's
decision not to file a complaint, the Court agrees with Magistrate Judge Katz that it lacks
jurisdiction to consider Plaintiff's claims. However, the Court will dismiss Plaintiff's complaint
without prejudice. See Citizens United to Protect Our Neighborhoods v. Vill. of Chestnut Ridge,
New York, 98 F.4th 386, 391 (2d Cir. 2024) ("A district court properly dismisses an action for
lack of subject-matter jurisdiction under Rule 12(b)(1) 'if the court lacks the statutory or
constitutional power to adjudicate it . . . .'") (quoting Conn. Parents Union v. Russell-Tucker, 8
F.4th 167, 172 (2d Cir. 2021)).
As to leave to amend, the Court agrees with Magistrate Judge Katz that no leave to amend
is required. Plaintiff has not asserted any claims for which this Court has jurisdiction to review.
Therefore, amendment would be futile. See Rukoro v. Fed. Republic of Germany, 976 F.3d 218,
228 (2d Cir. 2020) (affirming denial of leave to amend because "we agree with the district court
that the real problem is that even taking the allegations in the proposed second amended
complaint as true, Plaintiffs still fail to adequately allege jurisdiction").
After carefully considering the Order & Report-Recommendation, the entire record in this
matter, and the applicable law, the Court hereby
ORDERS that Magistrate Judge Katz's Order & Report-Recommendation (Dkt. No. 5) is
ADOPTED as modified for the reasons set forth herein; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED without prejudice and without
leave amend; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
the case; and the Court further
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ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 28, 2026
Albany, New York
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