Dale Judd v. Service Employees International Union Local 32BJ ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-7050 September Term, 2021
1:19-cv-02925-RDM
Filed On: March 9, 2022
Dale Judd,
Appellant
v.
Service Employees International Union Local
32BJ and Melwood Horticultural Training
Center, Inc.,
Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEFORE: Henderson, Tatel, and Pillard, Circuit Judges
JUDGMENT
This appeal was considered on the record from the United States District Court
for the District of Columbia, on the briefs filed by the parties, and the supplement
thereto. See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). Upon consideration of the
foregoing, the motion to appoint counsel, and the motion for leave to file a joint
supplemental appendix, it is
ORDERED that the motion to appoint counsel be denied. In civil cases,
appellants are not entitled to appointment of counsel when they have not demonstrated
sufficient likelihood of success on the merits. It is
FURTHER ORDERED that the motion for leave to file a joint supplemental
appendix be granted. See D.C. Cir. Rule 30(e). It is
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-7050 September Term, 2021
FURTHER ORDERED AND ADJUDGED that the district court’s April 14, 2021,
order be affirmed. The district court held that appellant raised a hybrid § 301/fair
representation claim against appellees and that such claim was untimely under the
applicable statute of limitations. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.
151, 163 (1983) (six-month statute of limitations applies to hybrid § 301/duty of fair
representation claims). Appellant does not challenge the district court’s interpretation of
his claim or contend that a different statute of limitation applies and has therefore
forfeited these arguments. Although appellant continues to assert that he timely filed
charges with the National Labor Relations Board (“NLRB”) and that those charges were
mishandled, “when a plaintiff accuses his union of a breach of the duty of fair
representation in a charge filed with the NLRB, he has by then, as a matter of law,
‘discovered’ the grounds for his hybrid § 301 claim.” Simmons v. Howard Univ., 157
F.3d 914, 916 (D.C. Cir. 1998). Thus, the district court correctly determined that
appellant’s hybrid claim accrued no later than November 2, 2017. To the extent
appellant suggests that the NLRB or his mistaken understanding of the law prevented
him from filing suit earlier, appellant does not identify any fraudulent inducement to
delay, see id., and a “litigant’s own misunderstanding of the law or tactical mistakes in
litigation” does not support the application of equitable tolling, Menominee Indian Tribe
of Wisc. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014).
The district court also correctly determined that appellant could not challenge a
decision by NLRB’s General Counsel not to issue an administrative complaint based on
appellant’s charges and correctly denied as futile leave to amend the complaint to bring
any claims against the NLRB. Appellant contends that NLRB’s alleged mishandling of
his charges justifies judicial review, but “the General Counsel has final authority
regarding the filing, investigation, and prosecution of unfair labor practice complaints.”
NLRB v. United Food & Com. Workers Union, Local 23, 484 U.S. 112, 124 (1987)
(internal quotation marks omitted); see 29 U.S.C. § 153(d). And, insofar as the
proposed amended complaint could be liberally construed to challenge some NLRB
action other than the General Counsel’s prosecutorial decision, the district court
correctly determined amendment would be futile because petitions for review of final
orders of the Board may be filed only in the courts of appeal, see 29 U.S.C. § 160(f),
and no final order exists that could support jurisdiction here.
Finally, appellant does not challenge the district court’s dismissal of his
discrimination claims as untimely or his tort claims for failure to state a claim. Thus,
these claims are forfeit as well. See United States ex rel. Totten v. Bombardier Corp.,
380 F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily, arguments that parties do not make on
appeal are deemed to have been waived.”).
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-7050 September Term, 2021
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
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