Remington Lodging & Hospitality, LLC v. National Labor Relations Board ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 25, 2014 Decided April 8, 2014
No. 13-1146
REMINGTON LODGING & HOSPITALITY, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
On Petition for Review of an Order
of the National Labor Relations Board
Jared D. Cantor, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
briefs were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Julie B. Broido,
Supervisory Attorney. Milakshmi V. Rajapakse, Attorney,
entered an appearance.
Karl M. Terrell argued the cause and filed the brief for
petitioner. Arch Y. Stokes entered an appearance.
Before: TATEL, BROWN, and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
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TATEL, Circuit Judge: The National Labor Relations
Board moves to transfer this petition for review of one of its
orders to the Ninth Circuit where another petition for review
of the same order has been filed. For the reasons set forth
below, we grant the motion.
I.
Recognizing that those aggrieved by a single agency
action may petition for review in different courts of appeals,
Congress established rules, codified at 28 U.S.C. § 2112(a), to
consolidate such proceedings in a single court. If within ten
days of issuing an order, the agency “receives, from the
persons instituting the proceedings,” 28 U.S.C § 2112(a)(1), a
petition for review that has been “stamped by the court with
the date of filing,” id. § 2112(a)(2), then the agency must file
the relevant record in that court of appeals “notwithstanding
the institution in any other court of appeals of proceedings for
review of that order,” id. § 2112(a)(1). But if within the ten-
day period, the agency “receives, from the persons instituting
the proceedings,” two or more court-and-date-stamped
petitions relating to the same order filed in different courts of
appeals, then the Judicial Panel on Multidistrict Litigation
“shall, by means of random selection,” designate in which
court of appeals the agency shall file the record. Id.
§ 2112(a)(1), (3). In either case, all other courts of appeals
must then transfer any related proceedings to the court in
which the agency files the record. Id. § 2112(a)(5).
Remington Lodging and UNITE HERE! Local 878 (“the
Union”) have both petitioned for review of the same National
Labor Relations Board order, though they have done so in
different circuits. The Union filed its petition for review in the
Ninth Circuit. To satisfy section 2112(a)(1), it then promptly
mailed a court-and-date-stamped copy to the Board.
Remington filed its petition for review in this court. Unlike
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the Union, it never personally transmitted a court-and-date-
stamped copy to the Board. Instead, this court’s Clerk’s
Office, acting pursuant to section 10(f) of the National Labor
Relations Act, which directs the clerk to “forthwith” transmit
“[a] copy of” any filed petition for review to the Board, sent
the Board a copy of Remington’s petition. 29 U.S.C. § 160(f).
Although the Board concedes that it received this court-and-
date-stamped copy within section 2112(a)(1)’s ten-day time
limit, it argues that it did not “receive” the copy “from the
persons [i.e., Remington] instituting the proceedings.” See 28
U.S.C. § 2112(a)(1) (emphasis added). Claiming that it
therefore received only the Union’s petition within the
statutory ten-day period, the Board moves to transfer this case
to the Ninth Circuit. See id. § 2112(a)(5). Remington opposes
the motion, insisting that the Clerk’s Office’s transmission of
the petition pursuant to section 10(f) satisfied section
2112(a)(1).
II.
The parties agree that the question before us turns on
whether the Clerk’s Office’s transmission to the Board of the
court-and-date-stamped copy of Remington’s petition
qualifies as a petition “receive[d]” by the Board “from the
persons instituting the proceedings.” If it does not (the
Board’s position), then we must transfer this petition to the
Ninth Circuit. If it does (Remington’s position), then the
Judicial Panel on Multidistrict Litigation will randomly select
which court of appeals will hear the challenges to the Board’s
order.
According to the Board, section 2112(a)(1)’s language—
requiring receipt “from the persons instituting the
proceedings”—means what it says: that “it is the petitioner’s
(and not the court’s) service of a court-stamped petition on the
agency that is determinative.” Respondent’s Br. 9. This also
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makes policy sense, the Board contends, because it “rightly
places the responsibility in the hands of the party seeking to
secure the protection of Section 2112” and allows the agency
to “promptly move to secure the proper forum without
waiting for a clerk’s office to process and serve the petition
for review.” Respondent’s Br. 10. And, as the Board points
out, both this and the Second Circuit have, in unpublished
opinions, found section 2112(a)(1) unsatisfied where the
Board received the petition for review only from the Clerk’s
Office. See Omaha World-Herald v. NLRB, No. 12-1005
(D.C. Cir. May 14, 2012); Local Union 36 v. NLRB, No. 10-
3448 (2d Cir. Dec. 28, 2010).
The Board’s position finds ample support in section
2112(a)’s text, which expressly requires that the Board
“receive” the petition “from the persons instituting the
proceedings.” The Board may “receive[]” a petition “from the
persons instituting the proceedings” in a number of ways: the
petitioner might deliver the petition personally; send it
through an agent, such as a messenger; or mail it. But under
no ordinary reading of the statutory language would Board
receipt of a mailing from the Clerk’s Office qualify as one
“receive[d] from the persons instituting the proceedings.”
Were we to interpret “receives[] from the persons instituting
the proceedings” to include receipt from the Clerk’s Office—
the only other entity from which the Board might receive a
court-and-date-stamped copy of a petition for review—section
2112(a)’s receipt requirement would become meaningless.
See Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004)
(recognizing “preference for avoiding surplusage
constructions”). If Congress had intended the rule Remington
urges, it would have simply left the critical phrase out, so that
the statute would have read: “[i]f within ten days after
issuance of the order. . . [the Board] receives, from the
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persons instituting the proceedings, the petition for review
. . . .”
Remington’s reliance on the mailing by the Clerk’s
Office ignores the fact that sections 10(f) and 2112(a) perform
very different functions. Compliance with section 10(f)
initiates judicial review of a Board order and notifies the
Board that a petitioner seeks review. Compliance with section
2112(a) informs the Board that the petitioner seeks to take
advantage of the optional procedure for preserving its choice
of forum. Because every petitioner seeking review of a Board
order must comply with section 10(f), section 2112(a) can
serve its separate notice function only if petitioners wishing to
take advantage of that section’s forum selection procedure
comply with it separately.
Finally, far from being “absurd” or a meaningless
formality, Pet’r’s Br. 14, requiring petitioners to comply
personally with section 2112(a) makes a good deal of sense. It
both alerts the agency that the petitioner cares about its
chosen forum and, as the Board explains, imposes the burden
of compliance on the party seeking to benefit from section
2112(a). In any event, Congress can make litigants “turn
square corners.” Rock Island, Arkansas & Louisiana Railroad
Co. v. United States, 254 U.S. 141, 143 (1920).
III.
We grant the Board’s motion to transfer this petition for
review to the Ninth Circuit.
So ordered.