Fast Food Workers Committee v. NLRB ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2021 Decided April 22, 2022
No. 20-1516
FAST FOOD WORKERS COMMITTEE AND SERVICE EMPLOYEES
INTERNATIONAL UNION,
PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
2MANGAS, INC., ET AL.,
INTERVENORS
On Petition for Review of an Order
of the National Labor Relations Board
John M. West argued the cause for petitioners. On the
briefs were Nicole G. Berner, Kathy L. Krieger, Michael
Ellement, and G. Micah Wissinger.
Joel A. Heller, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick, Deputy
Associate General Counsel, and Elizabeth Heaney,
Supervisory Attorney.
2
Pratik A. Shah argued the cause for intervenor
McDonald’s USA, LLC in support of respondent. With him on
the brief were E. Michael Rossman, James E. Tysse, and
Patricia A. Dunn.
Thomas M. O’Connell, Joseph A. Hirsch, and Louis P.
DiLorenzo were on the brief for intervenors 2Mangas, Inc., et
al. in support of respondent.
Before: ROGERS and RAO, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
Opinion concurring in part and dissenting in part filed by
Circuit Judge ROGERS.
SILBERMAN, Senior Circuit Judge: Petitioners, the Fast
Food Workers Committee and Service Employees
International Union, seek review of the NLRB’s approval of
the settlement agreements between the Board’s General
Counsel on the one hand, and McDonald’s and a group of
McDonald’s franchisees on the other. Although Petitioners
raise a host of objections, their primary concern is the
agreements’ failure to determine whether McDonald’s is a joint
employer with its franchisees. Another significant objection is
directed to the participation of one of the Board’s Members in
this decision. It is claimed that he should have been recused.
We think that the Board’s approval of the settlement
agreements was within the Board’s discretion. As to the claim
that one of the panel members should have been recused,
Petitioners fail to raise a due process challenge, either before
the Board or before us. Therefore, the recusal issue is not
3
properly presented. Accordingly, we deny the petition for
review.
I.
Petitioners—the unions—launched an organizing
campaign directed at McDonald’s franchisees. During the
campaign, Petitioners filed unfair labor practice charges
against McDonald’s and certain franchisees.
The Board’s General Counsel issued complaints in
December 2014 alleging that the franchisees “violated Section
8(a)(1) of the Act by threatening employees, promising
benefits to them, interrogating them, and surveilling their
protected activity.” The complaints also alleged that some of
the franchisees violated Section 8(a)(3) “by unlawfully
discharging 3 employees and suspending, reducing work hours
of, or sending home early 17 others, all in retaliation for their
union and other protected concerted activity.”
Importantly, the complaints alleged that McDonald’s
could be held jointly and severally liable with its franchisees as
a “joint employer,” even though it was not alleged that
McDonald’s independently violated the Act. One of the
General Counsel’s stated objectives was to “update Joint
Employer law within the Board context and to clarify the
relationship between franchisor and franchisee as it fits within
the broader framework of what constitutes a Joint Employer
under the National Labor Relations Act.” McDonald’s
responded that, far from an attempt to “update” and “clarify”
the law, the General Counsel was making an “unprecedented
claim” that McDonald’s is a joint employer and “an
unprecedented attempt to change the law on joint
employment.”
4
The cases were consolidated for hearing before an
administrative law judge. The ALJ severed the New York and
Philadelphia franchisee cases for trial and put the rest in
abeyance. No evidence on the merits was entered in the stayed
cases.
In January 2018, a new General Counsel filed a motion
with the ALJ to stay proceedings so the parties could pursue a
global settlement. The ALJ granted it. And in March 2018,
the General Counsel and McDonald’s presented proposed
settlement agreements between each franchisee and the
affected employees. Concurrently, the Board issued a notice
of proposed rulemaking on the joint employer issue. See 83
Fed. Reg. 46,681 (Sept. 14, 2018). In 2020, the Board
promulgated a final rule. See 85 Fed. Reg. 11,184 (Feb. 26,
2020) (codified at 29 C.F.R. § 103.40).
Among other provisions, the settlements provided the
following: the 10 franchisees whose alleged violations of
Section 8(a)(3) resulted in lost earnings would pay 100% of the
backpay owed to the alleged discriminatees, plus interest; those
10 franchisees would each contribute to a $250,000 Settlement
Fund that would compensate discriminatees if a franchisee
committed the same type of Section 8(a)(3) violation within
nine months of the settlement’s approval; all franchisees would
post a remedial notice for 60 days and mail copies to all former
employees; the notice would contain a statement of employees’
rights, state that the franchisee will not take the unlawful
actions alleged in the complaint, and provide that the
franchisees would comply with the notice. If the settlements
were approved, the General Counsel could move to withdraw
the complaint within ten days after their approval.
5
Although the settlements did not treat McDonald’s as a
joint employer, they did require McDonald’s to take certain
actions to support the settlements. For example, if a franchisee
did not comply with its settlement, McDonald’s would mail a
Special Notice to the employees of the franchisee stating that
the franchisee violated the Act and the settlement, and that
McDonald’s disavows the conduct. McDonald’s was also
required to collect money for the Settlement Fund from the
franchisees and deposit it with the Board. If McDonald’s
violated the settlements, the General Counsel could add
McDonald’s as a party to a new complaint and include a joint
employer allegation.
The ALJ denied the General Counsel’s and McDonald’s
motions to approve the settlements. The ALJ was concerned
that the settlements did not resolve the joint employer issue.
The General Counsel and McDonald’s appealed to the Board.
Petitioners supported the ALJ’s decision. They also moved for
the recusal of two Board Members, Chairman Ring and
Member Emanuel, on grounds that the Members each had a
conflict of interest.
The Board reversed the ALJ and ordered the case
remanded with instructions to approve the settlements. The
Board relied on its “broad discretion” to “approve
settlement[s].” The factors it considers are set forth in
Independent Stave Co., 287 NLRB 740 (1987). See also
UPMC, 365 NLRB No. 153 (2017). In considering
settlements, the Board evaluates:
all the surrounding circumstances including, but not
limited to, (1) whether the charging party(ies), the
respondent(s), and any of the individual
discriminatee(s) have agreed to be bound, and the
position taken by the General Counsel regarding the
6
settlement; (2) whether the settlement is reasonable in
light of the nature of the violations alleged, the risks
inherent in litigation, and the stage of the litigation;
(3) whether there has been any fraud, coercion, or
duress by any of the parties in reaching the settlement;
and (4) whether the respondent has engaged in a
history of violations of the Act or has breached
previous settlement agreements resolving unfair labor
practice disputes.
287 NLRB at 743.
The Board concluded that “the settlement agreements are
reasonable under Independent Stave.” Member McFerran
dissented.
***
In response to the recusal motions, the Board noted that
the motion to recuse Chairman Ring was moot because he did
not participate in the case and that Member Emanuel had
independently decided that he did not need to recuse after
consulting with the Board’s Designated Agency Ethics
Official.
Petitioners moved to reopen the record and for
reconsideration. They sought to introduce a document
purporting to be a recusal list for Member Emanuel that
included McDonald’s. However, the Board noted that
Petitioners had access to this document prior to Member
Emanuel’s decision and the Board’s order. And, in any event,
the Board unanimously (including Member McFerran) denied
the motion, reasoning that Petitioners failed to explain why the
document would require a different result under the applicable
ethics rules.
7
This petition for review followed. Petitioners challenge
both the order approving the settlement agreements and the
order denying the motion to reopen and for reconsideration.
II.
Petitioners face a steep hill in challenging the Board’s
approval of the settlements because our standard of review of
the Board’s decision whether to accept a settlement is quite
narrow, i.e. abuse of discretion. See, e.g., Titanium Metals
Corp. v. NLRB, 392 F.3d 439, 447 (D.C. Cir. 2004). 1
Petitioners present a slew of objections to the settlements,
but only two are significant. (1) Petitioners argue that the
Board was arbitrary and capricious (unreasonable) in
approving the settlements, in light of the unions’ objections.
(2) Petitioners also contend that the Board’s order was invalid
because Member Emanuel should have recused himself.
In determining that the settlements were reasonable, the
Board applied its Independent Stave test, only the first two
factors of which are relevant to the case. 2 Applying the first
1
Petitioners claim that the Board violated its own standard of review
by considering the ALJ’s decision de novo rather than in accordance
with abuse of discretion. But this is rather artificial since the dispute
between the ALJ, the General Counsel, and the Board—the treatment
of the joint employer standard—is a fundamental policy issue. And
it is the Board, not an ALJ, that sets labor policy in accordance with
the National Labor Relations Act. See Beth Israel Hosp. v. NLRB,
437 U.S. 483, 500 (1978).
2
No one disputes that the third and fourth factors weigh in favor of
the settlements. There is no evidence of any fraud, coercion, or
duress in reaching the settlements. Neither McDonald’s nor the
8
factor, the Board considered the views of the parties and agreed
with the ALJ that the factor was “inconclusive.” While the
General Counsel, McDonald’s, the franchisees, and every
affected employee who received front pay instead of
reinstatement agreed to the settlements, Petitioners opposed
them.
It is noteworthy that the Board’s standard specifically
refers to the General Counsel’s view. And the Board
recognized in this case that the General Counsel’s support for
the settlements was “an important consideration.” After all, the
General Counsel—a Presidential appointee confirmed by the
Senate—has virtually unreviewable discretion whether to bring
a complaint in the first instance. See NLRB v. United Food &
Commercial Workers Union, Loc. 23, AFL-CIO, 484 U.S. 112,
126 (1987). So his or her view logically is given considerable
weight. The new General Counsel, who was appointed by a
new President in November 2017, had a different policy view
than the General Counsel who brought the case on whether to
expand the joint employer standard. And that surely influenced
his decision to settle the case without insisting that McDonald’s
be treated as a joint employer.
The Board, applying the second Independent Stave factor,
determined that the settlements were reasonable. The question
remains whether that determination was within its discretion.
We have held that the Board has broad discretion to
approve settlements “in the course of the Board’s prosecution
of an unfair labor practice charge.” See, e.g., Dupuy v. NLRB,
806 F.3d 556, 562 (D.C. Cir. 2015). The Board itself has stated
that it “has long had a policy of encouraging the peaceful,
franchisees have a history of unfair labor practices or have breached
previous settlement agreements.
9
nonlitigious resolution of disputes.” Indep. Stave Co., 287
NLRB at 741. Courts have recognized that policy. See, e.g.,
Wallace Corp. v. NLRB, 323 U.S. 248, 253–54 (1944); Textile
Workers Union of Am. v. NLRB, 294 F.2d 738, 739 (D.C. Cir.
1961).
The Board concluded that the absence of a joint employer
finding for McDonald’s did not make the settlements
inappropriate. The Board observed that the settlements placed
a number of obligations on McDonald’s, even if McDonald’s
was not treated as a joint employer. 3 The ALJ rejected the
settlements because they “[did] not in any way approximate the
remedial effect of a finding of a joint employer status.” But
under Independent Stave, the Board noted, a settlement does
not have to “mirror a full remedy.” 287 NLRB at 742–43. See
also UPMC, 365 NLRB at *4.
Moreover, the Board agreed with the General Counsel that
the value of a joint employer ruling in this case was greatly
diminished by the Board’s undertaking of a rulemaking on the
joint employer standard. Indeed, after the hearing, the Board
issued a notice of proposed rulemaking, 83 Fed. Reg. 46,681,
and then promulgated a final rule, 85 Fed. Reg. 11,184(codified at 29 C.F.R. § 103.40).
3
If that had been done, it would have had a significant impact on like
franchisee structures across the country regarding bargaining units.
See Hy-Brand Indus. Contractors, Ltd., 365 NLRB No. 156 at * 1–6
(2017) (discussing the impact an expanded joint employer rule would
have on “labor relations policy and its effect on the economy” and
the imposition of “unprecedented new joint bargaining obligations”
on entities deemed joint employers) (overruling BFI Newby Island
Recyclery, 362 NLRB No. 186 (2015) (Browning-Ferris), enfd. in
part and remanded, 911 F.3d 1195 (D.C. Cir. 2018), vacated 366
NLRB No. 26 (2018)).
10
To be sure, if the case had proceeded to a conclusion
before the Board and it had put off resolving the joint employer
issue to a rulemaking, that would have been impermissible. It
would have violated the principle of administrative law that “an
agency faced with a claim that a party is violating the law . . .
cannot resolve the controversy by promising to consider the
issue in a prospective legal framework.” City of Miami v.
FERC, 22 F.4th 1039, 1043 (D.C. Cir. 2022). See also MCI
Telecomms. Corp. v. AT&T, 512 U.S. 218, 222 (1994) (quoting
AT&T v. FCC, 978 F.2d 727, 731–32 (D.C. Cir. 1992)). But
this situation is quite different. There is nothing precluding the
parties to the settlements, including the General Counsel, from
determining as part of the settlements that it was unnecessary
to resolve an issue in this litigation. And the Board cannot be
criticized for failing to resolve an issue that was never actually
presented to it.
Essentially then, this case simply involves a new General
Counsel, and Board, determining not to expand the definition
of joint employer. As legal scholars have recognized, the
Board’s legal policies and objectives, including statutory
interpretations, change rather dramatically under different
administrations. See, e.g., Samuel Estreicher, Policy
Oscillation at the Labor Board: A Plea for Rulemaking, 37
ADMIN L. REV. 163 (1985); Jeffrey S. Lubbers, The Potential
of Rulemaking by the NLRB, 5 FIU L. REV. 411, 416 (2010)
(noting that the NLRB’s “shifting majorities often seek to
change past adjudicative precedents”). And we have
consistently affirmed the Board’s policy shifts so long as they
are explained and the relevant statute permits the change. See,
e.g., Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 655 (D.C.
Cir. 1992). This case represents such an example.
The Board determined that the settlements provided full
monetary relief and a that joint employer finding would not
11
result in any additional monetary or substantive remedies. The
Board explained that the settlements “would provide an
immediate remedy for all 181 violations alleged.” The
employees who lost compensation because of the alleged
violations received 100% of backpay plus interest. As the
Board points out, the settlement approved in Independent Stave
provided only 10% backpay. 287 NLRB at 740. Discharged
employees received additional compensation because they
waived their right to reinstatement. Further, the settlements
provided for compensation for violations of the same unfair
labor practices in the future, which ensure relief without
additional litigation. The Board noted that the settlements also
provided relief from past unlawful discipline and included
default provisions that bound McDonald’s and the franchisees.
The Board also observed that further litigation would be
lengthy, uncertain, and risky, while the settlements provided
certain and immediate relief. A losing party could appeal to
the Board and then petition the court of appeals for review. The
end of that litigation would only be conclusive as to the New
York and Philadelphia franchisees, with a substantial number
of outstanding severed cases yet to be tried. Further, the Board
explained that because the joint employer liability issue is a
fiercely contested question, this case carries “unusual litigation
risk” and that a joint employer liability result was “far from
certain.” In light of all these considerations, the Board
reasonably concluded that the benefits of the settlement
agreements outweighed the value of continued litigation.
***
Beyond these main arguments, Petitioners raise a series of
objections to the settlements, each of which was endorsed by
the ALJ, but nevertheless rejected by the Board. We have
considered each of these objections and conclude that they are
12
insignificant. For example, the Board recognized that the
settlements contained both a notice posting requirement and a
requirement that the franchisees mail the notice to former
employees. The Board reasonably found that these provisions
“inform[ed] current and former employees about their . . .
rights,” and “provide[d] assurances that the Franchisees will
not interfere with those rights.”
Petitioners raise two objections to the notice provisions,
but like so many of their objections they amount to a desire that
the settlements be different—not that they were unreasonable.
Petitioners complain that the settlements did not include a
requirement of electronic posting. The Board determined that
there was not enough evidence that the franchisees
“customarily” communicated with employees electronically.
See J. Picini Flooring, 356 NLRB 11, 13 (2010) (requiring
electronic posting only if “the respondent customarily uses
such electronic posting to communicate with its employees”).
Petitioners also contend that the notice should have been posted
at more locations. But the Board thought that it was reasonable
for the notices to be posted at the locations where the alleged
violations occurred. The cases Petitioners cite to support their
argument hold only that broader notice posting is permitted—
not that it is required for a settlement to be reasonable. See,
e.g., Albertson’s, Inc., 351 NLRB 254, 384 (2007).
In sum, given the Board’s discretion to approve
settlements and its careful and comprehensive analysis of the
reasonableness of the settlements here, we conclude that the
Board acted well within its discretion in approving them.
13
III.
Petitioners also argue that the Board’s December 2019
order was invalid because Member Emanuel was required to be
recused.
Under the National Labor Relations Act, we review only
“final order[s] of the Board granting or denying . . . relief.” 29
U.S.C. § 160(f) (emphasis added). Cf. W. Coal Traffic League
v. Surface Transp. Bd., 998 F.3d 945, 952–53 (D.C. Cir. 2021)
(quoting Pub. Serv. Comm’n v. Fed’l Power Comm’n, 543 F.2d
757, 776 (D.C. Cir. 1974)) (holding that “[w]e exercise judicial
review only over the actions of the [Surface Transportation]
Board, not over the substance of the views of the individual
commissioners” because “when we review the actions of a
collective body such as the Board, ‘it is its institutional
decisions—none other—that bear legal significance’”).
Member Emanuel’s recusal decision, made in
consultation with the Designated Agency Ethics Official, was
an individual decision, not a final order of the Board.
Therefore, we cannot directly review Member Emanuel’s
decision.
To be sure, even if the recusal decision was Member
Emanuel’s and not a “final order of the Board,” 29 U.S.C.
§160(f), the Board’s ultimate decision would be invalid if
Member Emanuel’s participation violated Petitioners’ right to
due process. We made this principle clear in Cinderella Career
& Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C. Cir.
1970). In that case, we reversed and remanded an entire FTC
order because a biased commissioner participated in the
decision-making process. See id. at 589. It described the “test
for disqualification” as “whether a disinterested observer may
conclude that the agency has in some measure adjudged the
14
facts as well as the law of a particular case in advance of
hearing it.” Id. at 591 (cleaned up). 4 Reversing and remanding
was necessary in Cinderella because allowing a biased FTC
commissioner to participate in adjudicative proceedings
constituted a violation of due process. Id. at 591–92. And in
another case involving the same FTC commissioner, we
concluded that his participation also “amounted . . . to a denial
of due process.” Texaco, Inc. v. FTC, 336 F.2d 754, 760 (D.C.
Cir. 1964), vacated and remanded on other grounds, 381 U.S.
739 (1965).
But Petitioners have not argued that the proceedings
violated due process either before the Board or before us. The
Supreme Court has held that the NLRA statutorily precludes us
“from considering an objection that has not been urged before
the Board, ‘unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances’” not
present here. Detroit Edison Co. v. NLRB, 440 U.S. 301, 311
n.10 (1979) (quoting 29 U.S.C. § 160(e)). Because Petitioners
did not make a due process argument before the Board—even
if it had been explicitly raised before us—we may not consider
it. See Springsteen-Abbott v. Sec. & Exch. Comm’n, 989 F.3d
4, 7–8 (D.C. Cir. 2021).
Our colleague believes we are insisting on the “magic
words” “due process.” But our point is simply that Petitioners
were obliged to make clear that they were bringing a
4
We have since elaborated on the Cinderella test, stating that “we
will set aside a commission member’s decision not to recuse himself
from his duties only where he has ‘demonstrably made up [his] mind
about important and specific factual questions and [is] impervious to
contrary evidence.’” Metro. Council of NAACP Branches v. FCC, 46
F.3d 1154, 1164–65 (D.C. Cir. 1995) (quoting United Steelworkers
of Am. v. Marshall, 647 F.2d 1189, 1209 (D.C. Cir. 1980), cert.
denied, 453 U.S. 913 (1981)).
15
constitutional challenge before the NLRB (and before us). And
the due process clause is the logical provision. You either
assert a constitutional violation or you don’t. A general
complaint about unfairness or bias is not a constitutional
challenge; nor is there a freestanding cause of action in a
federal court to remedy a general claim of unfairness or bias. 5
Accordingly, we conclude that Petitioners’ argument that
the Board’s 2019 order was invalid because Member Emanuel
should have been recused is not properly before us. 6
***
Because we determine that the Board did not abuse its
discretion in issuing its order approving the settlements, and
that Petitioners’ recusal argument is not properly presented, we
deny the petition for review.
5
The discussions in Cinderella and Metropolitan Council of NAACP
Branches v. FCC, 46 F.3d 1154 (D.C. Cir. 1995), on which our
colleague relies, involve the evidence necessary to make out a due
process violation.
6
Petitioners also argue that the Board abused its discretion in
denying their motion to reopen the record and for reconsideration of
Member Emanuel’s recusal decision in its September 2020 order.
Petitioners sought to reopen the record to show that a purported
recusal list for Member Emanuel included McDonald’s. It is
unnecessary for us to determine whether the Board’s refusal to grant
Petitioners’ motion was legitimate. That is so because Petitioners’
failure to raise a due process challenge to Member Emanuel’s
participation makes the motion to reopen irrelevant.
ROGERS, Circuit Judge, concurring in part and dissenting
in part: Before the National Labor Relations Board, petitioners
filed a motion for the recusal of Member Emanuel on the
ground that, in view of his employment at a law firm
representing McDonald’s in the underlying proceedings, his
participation in the proceedings before the Board “raises the
specter of partiality towards Respondents.” Motion for Recusal
of Chairman Ring and Member Emanuel, at 5 (Aug. 14, 2018).
The motion cited Executive Order No. 13,770, 82 Fed. Reg.
9,333 (Feb. 3, 2017), Ethics Commitments by Executive
Branch Appointees, and 5 C.F.R. § 2635.502, Standards of
Ethical Conduct for Employees of the Executive Branch). See
id. at 5-7.
The Board denied the motion. It found that: (1) Member
Emanuel had consulted with the Board’s Designated Agency
Ethics Official and determined that his recusal from this matter
was not necessary; (2) no party in the ongoing proceeding was
a former client of his; (3) his employment at the Jones Day law
firm was outside the scope of Executive Order No. 13,770; (4)
he did not have a “covered relationship” with a party or its
representative in the pending proceeding; and (5) he had
concluded that his prior affiliations would not “cause a
reasonable person with knowledge of the relevant facts to
question his impartiality.” Order (Dec. 12, 2019), at 1 n.2
(citing 5 C.F.R. § 2635.502).
Petitioners challenge that Order, contending in part that
Member Emanuel’s participation resulted in an “ethically
compromised and invalid Board [O]rder.” Petitioners’ Brief
20; see also Reply Brief 17. Contrary to the court’s opinion,
see Op. at 14, the issue of Member Emanuel’s recusal is
properly before the court.
Two key opinions of this court set forth controlling
authority on the court’s role when a party moves to recuse a
2
member of a decision-making administrative entity. First, in
Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d
583 (D.C. Cir. 1970), the court drew on its precedents and
decisions by our sister circuits in establishing the test for
disqualification as whether “a disinterested observer may
conclude that [the agency] has in some measure adjudged the
facts as well as the law of a particular case in advance of
hearing it.” Id. at 591 (quoting Gilligan, Will & Co. v. SEC,
267 F.2d 461, 469 (2d Cir.), cert. denied, 361 U.S. 896 (1959)).
For instance, the court cited American Cyanamid Co. v. FTC,
363 F.2d 757 (6th Cir. 1966), in which the Sixth Circuit
reversed an order of the Federal Trade Commission because
allowing a biased Commissioner to participate violated “the
requirements of due process.” Cinderella, 425 F.2d at 591.
Further, it “adopt[ed]” the Third Circuit’s position in Berkshire
Employees Ass’n v. NLRB, 121 F.2d 235, 239 (3d Cir. 1941),
that “[l]itigants are entitled to an impartial tribunal whether it
consists of one man or twenty . . . .” Cinderella, 425 F.2d at
592. The Third Circuit had ordered additional factfinding on
whether a Board member’s impartiality might require
disqualification, see Berkshire, 121 F.2d at 239, because the
“essential” concept of “fair play” includes “the resolution of
contested questions by an impartial and disinterested tribunal,”
id. at 238. This court explained that this circuit’s precedent too
requires that “an administrative hearing ‘must be attended, not
only with every element of fairness but with the very
appearance of complete fairness.’” Cinderella, 425 F.2d at 591(quoting Amos Treat & Co. v. SEC, 306 F.2d 260, 267 (D.C.
Cir. 1962)).
Second, in Metropolitan Council of NAACP Branches v.
FCC, 46 F.3d 1154 (D.C. Cir. 1995), this court applied the
Cinderella test, reiterating that the court “review[s] an agency
member’s decision not to recuse himself from a proceeding
under a deferential, abuse of discretion standard.” Id. at 1164
3
(citing Air Line Pilots Ass’n v. U.S. Dep’t of Transp., 899 F.2d
1230, 1232 (D.C. Cir. 1990)). The court explained that in an
adjudicative proceeding the court “will set aside a commission
member’s decision not to recuse himself from his duties only
where he has ‘demonstrably made up [his] mind about
important and specific factual questions and [is] impervious to
contrary evidence.’” Id. at 1165 (quoting United Steelworkers
of Am. v. Marshall, 647 F.2d 1189, 1209 (D.C. Cir. 1980), cert.
denied, 453 U.S. 913 (1981)).
Neither Cinderella nor Metropolitan Council requires
petitioners to articulate an explicit constitutional challenge for
this court to set aside an administrative decision in which a
decisionmaker prejudged the matter. In Cinderella, the court
emphasized the “danger of unfairness through prejudgment”
and evaluated the recusal challenge without citing a
constitutional argument. See 425 F.2d at 590. And in
Metropolitan Council, the court applied the test from
Cinderella without identifying a constitutional challenge. See
Metro. Council, 46 F.3d at 1164-65. Our precedent, then, is
neither an outlier nor opaque in holding that if a biased
decisionmaker participates in an administrative adjudication,
this court can determine that such participation violates the
principles of fair play and impartiality that underlie due
process. See Cinderella, 425 F.2d at 592 (citing Berkshire, 121
F.2d at 239).
Notwithstanding this circuit’s established and well-settled
recusal test, the court denies the petition for review because
petitioners did not raise an explicit constitutional challenge by
arguing that Member Emanuel’s participation “violated due
process either before the Board or before [this court].” Op. at
14 (emphasis added). Although the words “due process” are
not expressly included in petitioners’ recusal motion, nothing
in our precedent or our sister circuits’ precedent establishes a
4
“magic words” test, much less that the absence of those two
words automatically dooms the recusal motion. After all, the
term “due process” is capacious. See, e.g., Ralls Corp. v.
Comm. on Foreign Inv. in U.S., 758 F.3d 296, 317 (D.C. Cir.
2014) (quoting Nat’l Council of Resistance of Iran v. Dep’t of
State, 251 F.3d 192, 205 (D.C. Cir. 2001)); see also Gilbert v.
Homar, 520 U.S. 924, 930 (1997). Indeed, this court has
repeatedly cautioned against requiring litigants to use “‘magic
words’ in order to adequately raise an argument,” explaining
that an “argument is preserved if the party has ‘fairly brought’
the argument ‘to the [agency’s] attention.’” Nat’l Treasury
Emps. Union v. FLRA, 754 F.3d 1031, 1040 (D.C. Cir. 2014)
(quoting Dep’t of Com. v. FLRA, 672 F.3d 1095, 1102 (D.C.
Cir. 2012)); see United States v. Essex, 734 F.2d 832, 842 (D.C.
Cir. 1984). Yet that is what the court requires today.
Furthermore, petitioners’ recusal motion used terms
reflecting the Board’s Ethics Recusal Report, which expressly
recognizes that “there is a risk that a case or other matter could
be decided with a fatal taint due to the recused member’s
participation.” NLRB Ethics Recusal Report, 38-39 (Nov. 19,
2019). And the Report instructs that “a petition for review
under Section 10(f) of the [National Labor Relations Act
(“NLRA”)] in an appropriate court of appeals is the proper
venue for a recusal dispute to ultimately be decided,” id., which
is what petitioners did.
Consequently, unlike in U.S. Dep’t of Commerce v. FLRA,
7 F.3d 243, 245 (D.C. Cir. 1993), petitioners properly raised
the substance of their recusal argument before the Board, see
Motion for Recusal, at 5-7, and petitioned for review of the
Board’s recusal decision pursuant to NLRA Section 10(f), see
Petitioners’ Brief 20-21. The conclusion that this court “may
not consider” petitioners’ recusal challenge because it was not
raised before the Board or this court, Op. at 14, is unfounded.
5
Because petitioners properly challenged Member Emanuel’s
disqualification before the Board, the Board ruled on its merits,
and petitioners sought this court’s review of that ruling, the
court must address it.
Under the abuse of discretion standard, the court “will set
aside a commission member’s decision not to recuse himself
from his duties only where he has ‘demonstrably made up [his]
mind about important and specific factual questions and [is]
impervious to contrary evidence.’” Metro. Council, 46 F.3d at
1165 (quoting United Steelworkers of Am. v. Marshall, 647
F.2d 1189, 1209 (D.C. Cir. 1980), cert. denied, 453 U.S. 913(1981)). The court, therefore, must apply the Cinderella test,
asking whether “a disinterested observer may conclude that
[the decisionmaker] has in some measure adjudged the facts as
well as the law of a particular case in advance of hearing it.”
Id. at 1164-65 (quoting Cinderella, 425 F.2d at 591). In view
of the Board’s reasoning for denying the motion for
disqualification of Member Emanuel, see Order, at 1 n.2, and
petitioners’ failure to timely bring before the Board an
available recusal list for Member Emanuel as to McDonald’s,
see Op. at 6, petitioners have failed to establish that either
Member Emanuel’s denial or the Board’s denial was an abuse
of discretion. Accordingly, upon finding no other error to the
Board’s Order, I concur in denying the petition for review.