Cummings v. National Labor Relations Board

Filing 36

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 6/28/2016. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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ANNETTE CUMMINGS,
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Plaintiff,

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Civil Action No.: RDB-16-0216

v.
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NATIONAL LABOR RELATIONS
BOARD,

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Defendant.
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MEMORANDUM OPINION
This pro se action arises from Plaintiff Annette Cummings’s (“Plaintiff” or
“Cummings”) efforts to obtain judicial review of a decision by the General Counsel of
Defendant National Labor Relations Board (“Defendant” or the “Board”). Specifically, the
Regional Director of Region 5, acting on behalf of the General Counsel, chose not to issue a
complaint after Plaintiff filed two administrative charges with the Board. Plaintiff seeks
review of this decision because she believes that “the National Labor Board (sic) did not do
a thorough or unfair investigation.” Resp. in Opp’n to Def.’s Mot. to Dismiss, 1, ECF No.
18.
Presently pending are Defendant’s Motion to Dismiss (ECF No. 13); Plaintiff’s
Motion to Consolidate Cases (ECF No. 21); Plaintiff’s Motion to Amend/Correct
Complaint (ECF No. 23); and Plaintiff’s Motion to Appoint Counsel (ECF No. 27). The
parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6
(D. Md. 2014). For the reasons that follow, Defendant’s Motion to Dismiss (ECF No. 13) is
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GRANTED WITH PREJUDICE; Plaintiff’s Motion to Consolidate Cases (ECF No. 21) is
WITHDRAWN;1 Plaintiff’s Motion to Amend/Correct Complaint (ECF No. 23) is
DENIED;2 and Plaintiff’s Motion to Appoint Counsel (ECF No. 27) is DENIED.3 In sum,
it is well established that this Court does not have subject matter jurisdiction to review
prosecutorial decisions of the Board’s General Counsel. Even if Plaintiff is unsatisfied with
the General Counsel’s determination, she may not seek review in this Court. This case is
thus DISMISSED WITH PREJUDICE.
BACKGROUND
This Court accepts as true the facts alleged in the plaintiff’s complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Moreover, a pro se litigant’s complaint should
not be dismissed unless it appears beyond doubt that the litigant can prove no set of facts in
support of his claim that would entitle him to relief. Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978). Yet, a plaintiff’s status as pro se does not absolve him of the duty to plead
adequately. See Stone v. Warfield, 184 F.R.D. 553, 555 (D. Md. 1999) (citing Anderson v. Univ. of
Md. Sch. Of Law, 130 F.R.D. 616, 617 (D. Md. 1989), aff’d, 900 F.2d 249, 1990 WL 41120
(4th Cir. 1990)).

1 In Plaintiff’s Motion to Amend/Correct Complaint (ECF No. 23), she asks that her earlier attempt at
consolidation (ECF No. 21) be “disregard[ed].” The Motion to Consolidate Cases is thus WITHDRAWN.
2 Plaintiff’s Motion to Amend/Correct the Complaint seeks to amend only to the extent that she requests
consolidation of the underlying administrative cases with the present action. Mot. to Amend, 1, ECF No. 23.
For the reasons set forth supra, this Court does not have subject matter jurisdiction over the administrative
cases at issue. Consolidation is thus inappropriate. Accordingly, Plaintiff’s Motion to Amend is DENIED.
3 A federal district court judge’s power to appoint counsel under 28 U.S.C. § 1915(e)(1) is a discretionary one,
and may be considered where an indigent claimant presents exceptional circumstances. Cook v. Bounds, 518
F.2d 779 (4th Cir. 1975); see also Branch v. Cole, 686 F.2d 264 (5th Cir. 1982). The question of whether such
circumstances exist in a particular case hinges on the characteristics of the claim and the litigant. Whisenant v.
Yuam, 739 F.2d 160, 163 (4th Cir. 1984). Where a colorable claim exists but the litigant has no capacity to
present it, counsel should be appointed. Id. As explained supra, Plaintiff does not present a colorable claim for
relief, nor are there any exceptional circumstances that would warrant the appointment of an attorney. As
such, Plaintiff’s Motion to Appoint Counsel is DENIED.
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At some point prior to July 7, 2015, Plaintiff Annette Cummings was terminated
from her employment at MVM, Inc. (“MVM”), a private security contractor, after an
allegedly unintentional discharge of her firearm. Mem. in Support of Mot. to Dismiss Exs. A,
D ECF No. 14 (Board Case No. 05-CB-156648; Dismissal of Charge).4 Cummings
subsequently filed an unfair labor practice charge with her local chapter of Defendant
National Labor Relations Board—Region 5—on July 22, 2015. Mem. in Support of Mot. to
Dismiss Ex. A. She claimed that her union, the Security, Police and Fire Professionals of
America, Local 555 (the “Union”), violated the National Labor Relations Act, 29 U.S.C. §
158(b)(1)(A), by providing inadequate representation after her termination. Id. On
September 14, 2015, Plaintiff filed another unfair labor practice charge with Region 5 against
her former employer, MVM. Mem. in Support of Mot. to Dismiss Ex. B, ECF No. 14
(Board Case No. 05-CA-159905). In this second charge, she alleged that MVM fired her as
retaliation for her participation in Union activity, in violation of 29 U.S.C. § 158(a)(1). Id.; see
also Mem. in Support of Mot. to Dismiss Ex. C, ECF No. 14 (Dismissal of Charge).
After conducting an investigation of Plaintiff’s allegations, the Regional Director of
Region 5 concluded that neither charge had the requisite evidence to proceed to prosecution.
Mem. in Support of Mot. to Dismiss Exs. C, D. The Regional Director accordingly notified
Cummings of the dismissals of Board Case Nos. 05-CA-159905 and 05-CB-156648 on
October 27 and 28, 2015, respectively. Id. Cummings subsequently appealed both dismissals
to the General Counsel of the Board. Mem. in Support of Mot. to Dismiss Ex. E, ECF No.

4 The exhibits to Defendant’s Motion to Dismiss consist of the various documents filed and received by
Cummings during the pursuit of her claims with the Board. These documents are thus incorporated by the
pleadings and do not convert Defendant’s Motion to Dismiss into one for summary judgment.
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14 (Denial of Appeal Letter, Nov. 17, 2015). The General Counsel denied the appeals after a
review “did not disclose that either [MVM or the Union] violated the [National Labor
Relations] Act.” Id. at 26. On December 2, 2015, Plaintiff sought reconsideration of the
denial, but the General Counsel again denied her appeals. Mem. in Support of Mot. to
Dismiss Ex. F, ECF No. 14 (Denial of Appeal Letter, Dec. 16, 2015). Specifically, the
General Counsel stated that the “decision to discipline [the Plaintiff] was based solely on the
firearm incident.” Id. at 29. Neither MVM nor the Union was deemed to have violated the
Act for their alleged actions. Id. at 29-30. At the present time, Cummings has no unfair labor
practice charges pending before the Board.
Plaintiff filed the subject action in the Circuit Court for Baltimore County, Maryland,
seeking judicial review of the dismissal of her charges. Compl., ECF No. 2. Defendant timely
removed to this Court pursuant to 28 U.S.C. § 1442(a). Notice of Removal, 3, ECF No. 1.
The Board now moves to dismiss under Rule 12(b)(1) of the Federal Rules of Civil
Procedure on the ground that this Court lacks the requisite subject matter jurisdiction to
review this agency decision. Mot. to Dismiss, ECF No. 13. Alternatively, the Board contends
that Plaintiff’s Complaint fails to state a claim for which relief may be granted under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Id. As this Court does, indeed, lack subject
matter jurisdiction to adjudicate Plaintiff’s claims, this Court need not consider whether Rule
12(b)(6) also requires dismissal.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for
lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought
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by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This
challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the
allegations in the complaint are insufficient to establish subject matter jurisdiction, or a
factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not
true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With
respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter
jurisdiction “where a claim fails to allege facts upon which the court may base jurisdiction.”
Davis, 367 F. Supp. 2d at 799.
Where the challenge is factual, “the district court is entitled to decide disputed issues
of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. “[T]he court may
look beyond the pleadings and ‘the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine whether in fact subject
matter jurisdiction exists.’” Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003)
(citation omitted). The court “may regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings without converting the proceeding to one for
summary judgment.” Velasco v. Gov’t of Indon., 370 F.3d 392, 398 (4th Cir. 2004); see also
Sharafeldin v. Md. Dep’t of Pub. Safety & Corr. Servs., 94 F. Supp. 2d 680, 684-85 (D. Md. 2000).
A plaintiff carries the burden of establishing subject matter jurisdiction. Lovern v. Edwards,
190 F.3d 648, 654 (4th Cir. 1999).
ANALYSIS
In moving to dismiss the subject action, Defendant contends that Plaintiff’s claim
should be dismissed for lack of subject matter jurisdiction. Plaintiff seeks review of the
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Board’s decision not to prosecute the administrative charges against MVA and the Union.
The Board argues against judicial review of the alleged dismissals on the ground that such
prosecutorial decisions are not subject to judicial review under the National Labor Relations
Act. Defendant’s Motion raises Rule 12(b)(1) facial challenges, as the Board argues that
Plaintiff’s claims fail to raise any facts upon which this Court may base jurisdiction. Davis,
367 F. Supp. 2d at 799.
It is well-established that the General Counsel’s decision not to issue a formal
complaint is not subject to judicial review. George Banta Co. v. N.L.R.B., 626 F.2d 354, 356
(4th Cir. 1980) (quoting 29 U.S.C. § 160(f)); accord N.L.R.B. v. United Food and Commercial
Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 122 (1987); N.L.R.B. v. Sears, Roebuck &
Co., 421 U.S. 132, 138-39 (1975); United Steelworkers of Am., Local 7886 v. Collyer, Civ. A. No.
JFM-87-1772, 1987 WL 109105, at *1 (D. Md. Oct. 9, 1987). The National Labor Relations
Act vests in the General Counsel of the Board the discretion to investigate allegedly unfair
labor practices and to prosecute any resulting claims through formal proceedings. 29 U.S.C.
§§ 153(d), 160. Any such investigation, however, first arises from the filing of a charge by an
individual, employer, or union. Id.; Sears, Roebuck & Co., 421 U.S. at 156. The director of the
region in which the charge is filed, acting under the authority of the General Counsel,
performs the initial investigation to determine whether the claims merit the filing of a formal
complaint. 29 C.F.R. §§ 102.9-102.15, 101.2-101.8. If the director dismisses the charge, the
“charging party may appeal to the General Counsel, but not to the Board.” United Food, 484
U.S. at 119 (quoting 29 C.F.R. § 101.6)).

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If, however, the director issues a complaint, the case then proceeds to a hearing
before an administrative law judge. 29 U.S.C. § 160. The administrative law judge’s decision
is subject to the Board’s review, which releases a final decision and order. 29 U.S.C. § 160(c).
Judicial review to the appropriate court of appeals is only available after the issuance of the
Board’s final decision and order. 29 U.S.C. § 160(f); see also United Food, 484 U.S. at 122.
Quite simply, Cummings seeks review of an unreviewable prosecutorial decision. In
this case, she contests only the dismissal of her charges. She does not contend that the Board
issued any final decision and order after administrative review. The Regional Director, acting
on behalf of the General Counsel, investigated Plaintiff’s unfair labor practice charges and
ultimately concluded that neither charge had the requisite evidence to proceed to
prosecution. Mem. in Support of Mot. to Dismiss Exs. C, D. On appeal to the General
Counsel, the dismissals were affirmed. The General Counsel’s decision was “fundamentally
prosecutorial,” and thus is not subject to judicial review. George Banta Co., 626 F.2d at 356-57.
Even if Plaintiff disagrees with the General Counsel’s determination, this Court does not
have subject matter jurisdiction over her claims.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 13) is
GRANTED WITH PREJUDICE; Plaintiff’s Motion to Consolidate Cases (ECF No. 21) is
WITHDRAWN; Plaintiff’s Motion to Amend/Correct Complaint (ECF No. 23) is
DENIED; and Plaintiff’s Motion to Appoint Counsel (ECF No. 27) is DENIED. In sum, it
is well-established that this Court does not have subject matter jurisdiction to review
prosecutorial decisions of the Board’s General Counsel. Even if Plaintiff is unsatisfied with
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the General Counsel’s determination, she may not seek review in this Court. This case is
thus DISMISSED WITH PREJUDICE.
A separate Order follows.
Date: June 28, 2016

/s/____________________
Richard D. Bennett
United States District Judge

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