Thomas Gabriel Dean v. National Labor Relations Board

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 16, 2024
• Docket: 24-10436
• Status: Unpublished

Opinion

USCA11 Case: 24-10436 Document: 18-1 Date Filed: 08/16/2024 Page: 1 of 3

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 24-10436 Non-Argument Calendar ____________________

THOMAS GABRIEL DEAN, Petitioner, versus NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition for Review of a Decision of the National Labor Relations Board Agency No. 10-CA-326003 / 10-CB-325995 ____________________ USCA11 Case: 24-10436 Document: 18-1 Date Filed: 08/16/2024 Page: 2 of 3

2 Opinion of the Court 24-10436

Before WILSON, GRANT, and BRASHER, Circuit Judges. PER CURIAM: Thomas Dean, pro se, petitions for review of a decision of the General Counsel for the National Labor Relations Board (“NLRB” and “Board”). That decision denied an appeal from the NLRB Regional Director’s dismissal, for lack of jurisdiction, of two unfair labor practice charges Dean filed. The NLRB moves to dis- miss the appeal for lack of jurisdiction because the General Coun- sel’s decision is not subject to judicial review. Upon review of the record, the motion to dismiss the appeal, and the parties’ responses, we conclude that we lack jurisdiction over the appeal. The General Counsel’s decision to not issue a complaint is unreviewable because “[t]he investigation of unfair labor practice charges and whether an unfair labor practice complaint should be issued are matters committed by Congress, in 29 U.S.C. § 153(d), to the unreviewable discretion of the NLRB General Counsel and the Regional Director and other staff personnel who assist him.” Bova v. Pipefitters & Plumbers Local 60, 554 F.2d 226, 228 (5th Cir. 1977). And although the National Labor Relations Act (“NLRA”) allows for judicial review for persons aggrieved by a final order of the Board, binding precedent dictates that this provision of the NLRA does not apply to prosecutorial decisions of the General Counsel, such as the decision not to issue an unfair labor practice complaint. See id.; 29 U.S.C. § 160(f ); NLRB. v. United Food & Com. Workers Un- ion, Loc. 23 (UFCW), 484 U.S. 112, 130 (1987) (“As the decision in this USCA11 Case: 24-10436 Document: 18-1 Date Filed: 08/16/2024 Page: 3 of 3

24-10436 Opinion of the Court 3

case was ‘prosecutorial,’ it cannot be judicially reviewed under the NLRA.”). Thus, the challenged decision of the General Counsel is unreviewable, and we lack jurisdiction over the petition for review. See Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938) (“There can be no question of the power of Congress [] to define and limit the jurisdiction of the inferior courts of the United States.”). Accordingly, the NLRB’s motion to dismiss is GRANTED and this appeal is DISMISSED for lack of jurisdiction. All other pending motions are DENIED as MOOT.