Am. Fed'n of Labor & Cong. of Indus. Organizations v. Nat'l Labor Relations Bd., Civ. No. 20-cv-0675 (KBJ)

Decision Date01 July 2020
Docket NumberCiv. No. 20-cv-0675 (KBJ)
Citation471 F.Supp.3d 228
CourtU.S. District Court — District of Columbia

Leon Dayan, Bredhoff & Kaiser, PLLC, Matthew Ginsburg, Washington, DC, for Plaintiff.

Helene Debra Lerner, Portia-Elaine S. Gant, Dawn Laura Goldstein, Molly Gallagher Sykes, Paul Augustus Thomas, Contempt, Compliance & Special Litigation Branch, Washington, DC, Tyler James Wiese, National Labor Relations Board, Minneapolis, MN, for Defendant.


KETANJI BROWN JACKSON, United States District Judge

On March 6, 2020, the American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO" or "Plaintiff") filed a complaint in this Court to challenge a rule that the National Labor Relations Board ("NLRB") recently promulgated in order to regulate union-representation elections. (See Compl., ECF No. 1.) The complaint invokes the Administrative Procedure Act ("APA"), Pub. L. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551 – 559, 701 – 706 ), and claims that the NLRB's 2019 Election Rule is unlawful in several respects. See Compl. ¶¶ 43–50 (Count One) (arguing that the NLRB wrongly eschewed the required notice-and-comment process); ¶¶ 51–59 (Count Two) (claiming that the rule is arbitrary and capricious as a whole); id. ¶¶ 60–69 (Count Three) (asserting that several rule provisions, including the new impoundment requirement, are arbitrary and capricious); id. ¶¶ 70–81 (Count Four) (maintaining that the impoundment provision, among others, violates section 153(b) of the National Labor Relations Act ("NLRA").) This Court has already issued an order that grants summary judgment in favor of the AFL-CIO with respect to the complaint's first claim; i.e., the Court has held that certain provisions of the 2019 Election Rule are unlawful because the NLRB did not engage in the notice-and-comment rulemaking process that the APA requires. (See Order of May 30, 2020, ECF No. 34, at 1–2; see also Compl. ¶ 48.) And based solely upon that conclusion—which, again, pertains only to Count One of the AFL-CIO's complaint—the Court has invalidated the five rule provisions that the complaint identifies as procedurally improper on notice-and-comment grounds, and it has remanded the entire matter back to the NLRB for reconsideration, without proceeding to consider the remaining claims in the AFL-CIO's complaint. (See Mem. Opinion of June 7, 2020, ECF No. 36, at 47–48 (rejecting the AFL-CIO's argument that the rule should be vacated in its entirety on non-severability grounds, and sending the matter back to the NLRB based in part on the AFL-CIO's assertion that the Court need not consider the complaint's remaining claims if summary judgment is entered in Plaintiff's favor with respect to Count One).)1

After this Court issued the Memorandum Opinion that explained its Order of May 30, 2020, see generally AFL-CIO v. N.L.R.B. ("AFL-CIO I") , No. 20-cv-0675, 466 F.Supp.3d 68 (D.D.C. June 7, 2020), the AFL-CIO filed a motion for reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b), asking the Court to revisit its decision not to reach Plaintiff's remaining claims concerning the 2019 Election Rule. (See Pl.’s Mot. for Reconsideration, ECF No. 37, at 1–2.) That motion, which the NLRB opposes (see Def.’s Mem. in Opp'n to Pl.’s Mot. for Reconsideration ("Def.’s Opp'n to Reconsideration"), ECF No. 39), is before this Court at present. The AFL-CIO contends that the Court misinterpreted its "suggestion that the Court did not need to proceed to Counts Two to Four" if the Court agreed that certain provisions of the 2019 Election Rule violated the APA's notice-and-comment requirement, because the remand request "was always premised on the Court's agreement with the AFL-CIO's argument that [those] provisions of the NLRB's rule were non-severable, and therefore, the entire rule was invalid on notice and comment grounds." (Pl.’s Mot. for Reconsideration at 2.) In essence, the AFL-CIO now seeks rescission of the part of the Court's Order that remands this matter to the agency, insofar as the AFL-CIO's motion for reconsideration asks the Court to "proceed to rule on Counts Two, Three, and Four" of the complaint. (Id. at 8)

This Court has the discretion to revise its prior interlocutory order under Federal Rule of Civil Procedure 54(b) and, for the reasons explained fully below, this Court is persuaded that its prior Order was based upon a significant misunderstanding: the Court understood the AFL-CIO to be calling for an unqualified return of the matter to the NLRB if the Court ruled in the AFL-CIO's favor on Count One, when the AFL-CIO actually intended for its remand request to be contingent upon this Court's agreement that the invalidated provisions of the 2019 Election Rule were not severable. Therefore, the AFL-CIO's motion for reconsideration will be GRANTED , and the Court's Order of May 30, 2020, will be AMENDED to rescind the Court's remand of this matter to the agency, in order to facilitate the Court's consideration of the AFL-CIO's remaining claims.

In light of its ruling on the motion for reconsideration, this Court has also proceeded to consider the parties’ summary judgment arguments concerning the remaining counts in the complaint, as the AFL-CIO has requested. As explained herein (see infra Section I.B), the Court concludes that the NLRB is entitled to summary judgment on Counts Two, Three, and Four of the AFL-CIO's complaint. In particular, the Court finds that the NLRB's decisionmaking process with respect to its promulgation of the 2019 Election Rule as whole—and also with respect to the provision that provides for the automatic impoundment of election ballots pending NLRB review—was sufficiently reasoned to clear the APA's arbitrary-and-capricious policymaking hurdle. And the Court has also determined that the impoundment provision does not violate the NLRA, because that statute is silent regarding the issue, and the NLRB advanced a reasonable interpretation of the NLRA's limits when it adopted the impoundment policy.

Consequently, the Court's May 30th Order will be further amended to reflect the Court's conclusion that, ultimately, both partiescross-motions for summary judgment must be granted in part and denied in part. (See Amend. Order, ECF No. 41.) The AFL-CIO's motion for summary judgment will be granted with respect to Count One (for the reasons set forth in the Memorandum Opinion issued on June 7, 2020) and denied with respect to Counts Two, Three, and Four, for the reasons explained below. And the NLRB's cross-motion for summary judgment is denied with respect to Count One (as set forth in the Court's prior Memorandum Opinion) and granted with respect to the remaining counts in the complaint, as discussed in Section I.B of the instant Memorandum Opinion and Order.

A. The AFL-CIO's Motion For Reconsideration, Properly Construed As A Motion To Revise This Court's Prior Interlocutory Judgment Pursuant To Federal Rule Of Civil Procedure 54(b), Will Be Granted
1. The AFL-CIO Is Seeking Reconsideration Of An Interlocutory Order, Not A Final Judgment

The Federal Rules of Civil Procedure provide three avenues for a party to seek reconsideration of a court's ruling: " Rule 54 governs reconsideration of interlocutory orders," while " Rules 59(e) and 60(b) dictate when a party may obtain reconsideration of a final judgment." Ali v. Carnegie Inst. of Washington , 309 F.R.D. 77, 80 (D.D.C. 2015) ; see also Murphy v. Exec. Office for U.S. Attorneys , 11 F. Supp. 3d 7, 8 (D.D.C. 2014), aff'd , 789 F.3d 204 (D.C. Cir. 2015). Indeed, while a motion brought under Rule 59(e) seeks "to alter or amend a judgment," Fed. R. Civ. P. 59(e), and a Rule 60(b) motion requests relief "from a final judgment, order, or proceeding," Fed. R. Civ. P. 60(b) —and thus these two rules indisputably pertain to the court's reconsideration of final judgments, see West v. Holder , 309 F.R.D. 54, 55 (D.D.C. 2015)Rule 54(b) permits a court to revise or reconsider any order "that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties[,]" Fed. R. Civ. P. 54(b). To this end, Rule 54(b) plainly provides that, unless the court says otherwise, "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities." Id.

So it is here. The AFL-CIO filed a complaint that made four separate claims with respect to the alleged unlawfulness of the NLRB's 2019 Election Rule, and in its Order of May 30, 2020, this Court did not purport to resolve the entire case; instead, it granted summary judgment only with respect to one of the AFL-CIO's four claims. (See Order at 2 (ordering that "judgment is entered in Plaintiff's favor with respect to Count One of the Complaint").) The interlocutory nature of the Court's review was entirely transparent; in fact, the Court expressly declined to reach the other APA claims that appear in the AFL-CIO's complaint. See AFL-CIO I , 466 F.Supp.3d at 95–96. And the AFL-CIO's own motion tacitly concedes that the Court has not yet entered a final judgment in this case, for the union's basic ask is that the Court "proceed to rule on Counts Two, Three, and Four." (Pl.’s Mot. for Reconsideration at 8.)

"The district court ordinarily enters a final judgment only after it has disposed of all claims against all parties[,]" Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc. , 630 F.3d 217, 221 (D.C. Cir. 2011) (emphasis added), and until then, a request to reconsider any of its "order[s] or other decision[s]" is governed by...

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