United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. TOWNE UNITED STATES DISTRICT JUDGE.
pro se action, Plaintiff Robert Pilchman
("Pilchman") sues the National Labor Relations
Board ("NLRB"), the New York State Public
Employment Relations Board ("PERB"), the Brooklyn
Public Library ("BPL") (his employer), and entities
related to his union, including District Council 37 of the
American Federation of State, County and Municipal Employees
(an AFL-CIO entity) and its affiliated local, Brooklyn
Library Guild Local 1482 of the American Federation of State,
County and Municipal Employees (the union entities will be
collectively referred to as the "Union"). Pilchman
seeks an order "reversing" the NLRB's refusal
to institute an unfair labor practice complaint against BPL
and the Union. He alternatively seeks an order
"reversing" PERB's dismissal of his application
for injunctive relief and unfair labor practice charges.
Currently pending are motions to dismiss filed by NLRB, PERB,
BPL, and the Union. (Docs. 60, 61, 66, and 67.) For the
reasons explained below, the motions are granted and the case
is dismissed for lack of subject matter jurisdiction.
was an employee of BPL and a working member of the Union from
approximately June 1998 until his termination in April 2013.
(Compl., Doc. 1, ¶¶ 1, 19.) In July 2012, the BPL
issued Pilchman a "disciplinary memo" and,
subsequently, a Statement of Charges, for activity related to
a union election that took place in the fall of 2011.
(Id., ¶ 2-3.) Pilchman unsuccessfully disputed
the allegations which, after a series of conversations,
grievances, and appeals, resulted in a ten-day suspension
without pay running from November to December of 2012.
(Id., ¶ 4-11.) Shortly after Pilchman returned
to work from his suspension, BPL issued a new Statement of
Charges recommending Pilchman's termination.
(Id., ¶ 12.) The recommendation was made due to
allegedly "scurrilous and inflammatory" accusations
against the Mayor, the Governor, the Speaker of the City
Council, the Brooklyn Borough President, and the Chief Judge
of the New York State Courts that Pilchman asserted in the
course of his disciplinary actions. (Id.) During a
period of suspension with pay and a paid medical leave,
Pilchman unsuccessfully grieved the second Statement of
Charges, which eventually resulted in his termination on
April 26, 2013. (Id., ¶ 13-19.)
during and after the above-described proceedings, Pilchman
filed four unfair labor practice charges with the NLRB
against BPL, and one against the Union, alleging violations
of the National Labor Relations Act (the "Act"), 29
U.S.C. § 158(a). (Id. ¶¶ 20-21;
see also Doc. 67-1, 2). All of the unfair labor
practice charges were dismissed by NLRB's General Counsel
due to the Board's lack of jurisdiction over BPL.
(See NLRB Memo., Doc. 67-1 at 2.) Specifically, the
charges were dismissed because NLRB's General Counsel
determined that BPL was a "political subdivision of the
City of New York, " under Section 2(2) of the Act, and
therefore not an "employer" covered by the
(See Compl., Ex. 1, 1.)
also filed unfair labor practice claims against BPL and the
Union with PERB, alleging violations of Section 704 of the
State Employment Relations Act ("SERA"), and
Section 209-a.2(c) of the Public Employees' Fair
Employment Act (codified at Article 14 of the New York Civil
Service Law), commonly known as the "Taylor Law."
(See PERB Memo., Doc. 66-1, 2.) Additionally,
Pilchman filed an application for injunctive relief under the
Taylor Law § 209-a.4(b). (Id.) PERB dismissed
all of Pilchman's Taylor Law claims, and denied his
request for injunctive relief. (Id., 3.) The
Administrative Law Judge who dismissed the claims reasoned
that PERB lacked jurisdiction over BPL with respect to these
claims because BPL "is not a public employer under the
Taylor Law." (Murphy Affirmation, Doc. 60-2, Ex. A at p.
6) (citing Rodriguez v. Brooklyn Public Library, 34
Misc.3d 310 (Sup. Ct. Kings County 2011)). Pilchman's
SERA claims against BPL, on the other hand, were not
filed the instant Complaint on December 4, 2014, after his
charges were dismissed, primarily alleging that NLRB erred by
declining to issue unfair labor practice complaints against
BPL. He appears to be motivated by the belief that the
reasoning of the state and federal agencies are somehow
inconsistent. Pilchman requests that the Court "reverse
the NLRB dismissals (and remand to the NLRB for appropriate
continued processing)." (Compl., p. 21.) In the
alternative, "[i]f the Court does not reverse the NLRB
dismissals, " Pilchman requests "reversal" of
PERB's dismissals of his Taylor Law claims.
(Id.) His complaint does not directly assert any
claims against, or request relief with respect to, either BPL
or the Union.
pre-motion conference letters from all the defendants
requesting permission to file motions to dismiss, the Court
bifurcated briefing and ordered the first-stage motions to
address only the issue of subject matter jurisdiction. (Doc.
43.) Each defendant then moved to dismiss for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil
Procedure ("FRCP") 12(b)(1). Primarily, the
defendants each argue that neither statute nor case law
provides for judicial review of the NLRB General
Counsel's prosecutorial decisions not to issue unfair
labor practice complaints. PERB additionally asserts Eleventh
Amendment immunity from suit. Pilchman argues that the
Administrative Procedure Act, 5 U.S.C. § 701 et
seq, permits judicial review of NLRB's refusal to
institute proceedings, a contention he primarily rests on the
Ninth Circuit case Montana Air Chapter No. 29, Ass'n
of Civilian Technicians, Inc. v. Federal Labor Relations
Authority, 898 F.2d 753, 755 (9th Cir. 1990). With
respect to the PERB claims, and presumably all other
defendants, he invokes supplemental jurisdiction under 28
U.S.C. § 1367.
Standard of Review
is "properly dismissed for lack of subject-matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it." Makarova v.United States, 201 F.3d 110,
113 (2d Cir. 2000). "A plaintiff asserting subject
matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists."
Id. (citing Malik v. Meissner, 82 F.3d 560,
562 (2d Cir. 1996)). When "the case is at the pleading
stage and no evidentiary hearings have been held ... [a
court] must accept as true all material facts alleged in the
complaint and draw all reasonable inferences in the
plaintiffs favor." Conyers v. Rossides, 558
F.3d 137, 143 (2d Cir. 2009) (internal citations and
quotations omitted). However, "in adjudicating a motion
to dismiss for lack of subject-matter jurisdiction, a
district court may resolve disputed factual issues by
reference to evidence outside the pleadings, including
affidavits." State Employees Bargaining Agent
Coalition, v. Rowland, 494 F.3d 71, 77, n. 4 (2d Cir.
invokes jurisdiction for judicial review of the General
Counsel's decision not to issue a complaint under the
Administrative Procedure Act, 5 U.S.C. § 701 et
seq. (the "APA"). That statute generally
provides an avenue for judicial review of final agency
actions "for which there is no other adequate remedy in
a court." 5 U.S.C. § 704. While there is a strong
presumption of reviewability under the APA, see Abbott
Labs. v. Gardner, 387 U.S. 136, 140 (1967), section 701
explicitly excludes judicial review "to the extent
that-(1) [other] statutes preclude judicial review; or (2)
agency action is committed to agency discretion by law,
" 5 U.S.C. § 701(a). These are two distinct
jurisdictional exclusions, and judicial review cannot be had
if either subsection applies. See Riverkeeper, Inc. v.
Collins, 359 F.3d 156, 164 (2d Cir. 2004) (citing
Heckler v. Chaney, 470 U.S. 821 (1985)).
jurisdiction to review the General Counsel's decision not
to file an unfair labor practice complaint is squarely
excluded under subsection 701(a)(1). The Supreme Court has
explicitly held that the National Labor Relations Act
("NLRA") is a statute precluding the review
Pilchman seeks here. See N.L.R.B. v. United Food &
Commercial Workers Union, Local 23, AFL-CIO, 484 U.S.
112, 131 (1987). In United Food, the Court
"determined that Congress purposely excluded
prosecutorial decisions from [judicial] review."
Id. More specifically, the Court has explained that
"[t]he NLRA leaves no doubt that it is meant to be, and
is, a comprehensive statute concerning the disposition and
review of the merits of unfair labor practice charges"
and limits judicial review to orders issued by the board that
issue well after the General Counsel has exercised
prosecutorial discretion. Id. In short, as numerous
courts have recognized, the General Counsel's
prosecutorial decisions are categorically excluded from
judicial review. See, e.g., Detroit Edison Co. v.
N.L.R.B.,440 U.S. 301, 316 (1979) (explaining that the
Board's General Counsel could "in his unreviewable
discretion refuse to issue [an unfair labor practice]
complaint."); N.L.R.B. v. Sears, Roebuck &
Co.,421 U.S. 132, 139 (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 ...