Porter v. Leavitt, Civil Action 22-76-BAJ-SDJ

CourtUnited States District Courts. 5th Circuit. Middle District of Louisiana
Docket NumberCivil Action 22-76-BAJ-SDJ
Decision Date09 March 2023



Civil Action No. 22-76-BAJ-SDJ

United States District Court, M.D. Louisiana

March 9, 2023



Please take note that the attached Magistrate Judge's Report and Recommendation has been filed with the Clerk of the U.S. District Court for the Middle District of Louisiana.

Under 28 U.S.C. § 636(b)(1), you have 14 days from receipt of this Notice to file written objections to the proposed findings of fact and conclusions of law in the Magistrate Judge's Report and Recommendation. A failure to object will constitute a waiver of your right to attack the factual findings on appeal.



Before the Court is a Motion to Dismiss (R. Doc. 13) filed by the National Labor Relations Board[1] on June 21, 2022.[2] Plaintiff filed an Opposition (R. Doc. 18), to which the NLRB submitted a Reply Memorandum (R. Doc. 24). The NLRB primarily argues that, because Plaintiff's cause of action is “time-barred by the statute of limitations set forth in 28 U.S.C. 2401(a),” this Court lacks jurisdiction and dismissal is therefore appropriate under Rule 12(b)(1). (R. Doc. 13-1 at 2). Alternatively, the NLRB suggests the Court lacks subject matter jurisdiction “to review prosecutorial decisions of the NLRB's General Counsel refusing to issue an administrative complaint and dismissing unfair-labor-practice charges.” (R. Doc. 13-1 at 3).


Because the Court agrees that it lacks subject matter jurisdiction and that Plaintiff's claim must be dismissed pursuant to Rule 12(b)(1), it does not reach the NLRB's remaining bases for dismissal under Rule 12(b)(6). See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”).


“Over 22 years ago” Plaintiff was allegedly removed from his job with the United States Postal Service for refusing to “work on official relief days which [were] observe[d] as a religious sabbath by [Plaintiff] in violation of the Joint Arbitration Agreement between the Postal Service and the National Rural Letter Carrier Association.” (R. Doc. 1 at 5). The Complaint's one and only allegation against the NLRB is that it denied Plaintiff “due process by not adjudicating [his] complaints against the USPS and the NRLCA.” (R. Doc. 1 at 15). Nothing more is said of the NLRB throughout the Complaint.

In its Motion to Dismiss, the NLRB clarifies that Plaintiff filed unfair labor practice charges in 1999 against his employer, the United States Postal Service, and his union, the National Rural Letter Carrier Association, following his 1998 termination. (R. Doc. 13-1 at 5).[3] The Regional Director of the NLRB in New Orleans decided (on behalf of the NLRB's General Counsel) not to issue a complaint against either the USPS or the NRLCA and dismissed Plaintiff's charges. (R. Doc. 13-1 at 5); (R. Doc. 18 at 2). Plaintiff appealed, and on February 7, 2000, the NLRB's Office of Appeals denied both appeals on behalf of the NLRB's General Counsel. (R. Doc. 13-1 at 6). The NLRB's summary of events is consistent with the documentation attached to Plaintiff's


Opposition (R. Docs. 18-1 to 18-5) (letters received from the NLRB regarding its refusal to issue unfair labor practice complaints).

Despite being removed from his position with USPS in 1998 (R. Doc. 1 at 7), Plaintiff applied for deferred annuity benefits in June of 2019 (R. Doc. 1 at 3). The Office of Personnel Management denied his request for retirement benefits in July of 2019, as Mr. Porter had not been employed by the USPS for more than 2 decades. (R. Doc. 1 at 3). After appealing this denial to the Merit Systems Protection Board and eventually the United States Court of Appeals for the Federal Circuit, Plaintiff filed this lawsuit on February 2, 2022. (R. Doc. 1). In the Complaint, Plaintiff claims that he is still employed by the USPS because his termination was unlawful, and he is therefore entitled to retirement benefits. (R. Doc. 1 at 3, 16). As relief, he asks the Court to reverse OPM's “denial of his eligibility for retirement” and compute his eligibility for retirement benefits to the “present day.” (R. Doc. 1 at 16). He does not request any relief specific to the NRLB in his Complaint.

In his Opposition, however, Plaintiff raises additional allegations regarding the NLRB's handling of his charge and claims he is “seeking a Mandamus Review of the prosecutorial discretion” exercised by the General Counsel of the NLRB in refusing to issue complaints against the USPS and the NRLCA. (R. Doc. 18 at 7, 8). To be clear, Plaintiff is not only asserting new factual allegations, but an additional basis for jurisdiction under the Mandamus Act—none of which are found in his lengthy Complaint. But because Plaintiff is proceeding pro se, the Court has nonetheless considered his new allegations and basis for jurisdiction in connection with the NLRB's Motion to Dismiss.[4]



The party asserting subject-matter jurisdiction “bears the burden of proof for a motion to dismiss” under Rule 12(b)(1). Davis v. United States, 597 F.3d 646, 649 (5th Cir. 2009). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Smith v. Reg'l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014). The district court is “free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case.” Smith, 756 F.3d at 347. “The standard of Rule 12(b)(1), while similar to the standard of Rule 12(b)(6), permits the court to consider a broader range of materials in resolving the motion.” Martin v. Halliburton, 618 F.3d 476, 481 n.5 (5th Cir. 2010); see also Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (court may consider “(1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts” in resolving Rule 12(b)(1) motion).


The Court agrees with the NLRB that it lacks jurisdiction because the conduct at issue — the General Counsel's failure to issue an unfair labor practice complaint — “is an exercise of prosecutorial discretion, which is not subject to judicial review.” Beverly Health & Rehabilitation Servs., Inc. v. Feinstein, 1996 WL 523729, at *2 (D.D.C. July 25, 1996). What's more, any claim


Plaintiff could conceive of bringing against the NLRB has long prescribed. The Court discusses both bases for dismissal below.[5]

A. Judicial Review Unavailable

Under the NLRA, the General Counsel of the NLRB has “final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints . . . and in respect of the prosecution of such complaints before the Board.” 29 U.S.C. § 153(d). The Act provides “the Board's General Counsel [with] unreviewable discretion to refuse to institute an unfair labor practice complaint.” Vaca v. Sipes, 386 U.S. 171, 182 (1967).

“The words, structure, and history of . . . the NLRA clearly . . . differentiate between the General Counsel's and the Board's ‘final authority' along a prosecutorial versus adjudicatory line.” N.L.R.B. v. United Food & Com. Workers Union, Loc. 23, AFL-CIO, 484 U.S. 112, 124 (1987). The General Counsel has “‘final authority' regarding the filing, investigation, and ‘prosecution' of unfair labor practice complaints.” UFCW, 484 U.S. at 124 (quoting 29 U.S.C.§ 153(d)). But when the “authority of the Board is discussed . . . it is in the context of the adjudication of [unfair labor practice] complaints. Specifically, § 10 of the Act refers to the Board and the procedures it must follow to decide unfair labor practice cases.” Id. at 124 (citing 29 U.S.C. § 160).


Prosecutorial determinations — e.g., the institution of or refusal to institute an unfair labor practice complaint,[6] or the refusal to withdraw an unfair labor practice charge[7] or complaint[8] — are “made solely by the General Counsel,” whereas “‘adjudicatory' decisions” are made by the Board. UFCW, 484 U.S. at 129, 130 (emphasis added). “The structure of § 10 of the NLRA emphasizes this distinction” by providing that “final decisions ‘of the Board' shall be judicially reviewable,[9] thereby disclosing Congress' decision to authorize review of adjudications, not prosecutions” of unfair labor practice complaints. Id. at 129. Given this distinction, the Supreme Court has explicitly found that the NLRA does not “provide for judicial review of the General Counsel's prosecutorial function.” UFCW, 484 U.S. at 129, 130.

To be clear, the decision not to issue an unfair labor practice complaint based on a charge is a discretionary and prosecutorial function of the General Counsel. See UFCW, 484 U.S. at 122 (“General Counsel's approval of a determination not to file an unfair labor practice complaint is not subject to judicial review”); N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 1389 (1975) (“Congress has delegated to the Office of General Counsel on behalf of the Board the unreviewable authority to determine whether a complaint shall be filed.”); Jackman v. NLRB, 784 F.2d 759, 763 (6th Cir. 1986)


(“[N]umerous courts of appeals have routinely concluded that such action by the General Counsel [— refusal to initiate an unfair labor practice complaint —] . . . is merely one of several pretrial discretionary nonreviewable evaluations ....”).

And because it is prosecutorial, as opposed to adjudicatory, it is not subject to judicial...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT