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Chamber of Commerce of the United States of America, and v. National Labor Relations Board

July 27, 2012

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, AND COALITION FOR A DEMOCRATIC WORKPLACE,
PLAINTIFFS,
v.
NATIONAL LABOR RELATIONS BOARD, DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

On December 20, 2011, Plaintiffs Chamber of Commerce of the United States of America and the Coalition for a Democratic Workplace filed a lawsuit that sought to invalidate a regulation promulgated by Defendant National Labor Relations Board. On May 14, 2012, they succeeded in that aim. Finding that the Board lacked the statutorily mandated three-member quorum when it voted to adopt the rule, the Court granted Plaintiffs' Motion for Summary Judgment and invalidated the rule. The NLRB has now filed a Rule 59(e) Motion to Alter or Amend that judgment.

Contending that the Court erred in finding that Member Brian Hayes could not be counted toward the quorum requirement, the NLRB both restates an old argument and proffers new evidence. The former is easily disposed of. The Court has already considered and rejected the Board's position that Hayes should be counted toward the quorum based on his prior statements and his participation in preliminary votes. Rule 59(e) is not a vehicle for rehashing arguments that have been previously rejected, and, in any event, the argument is no more persuasive in its expanded and refined form than it was in the first go-round.

The new evidence, though, presents a closer question. An affidavit submitted with the Board's Motion sets forth facts entirely absent from its summary-judgment filings, and those facts do somewhat strengthen the agency's position that Hayes was present for but abstained from the pivotal vote. That said, the Board has neither adequately explained why it could not have presented this evidence at the summary-judgment stage nor established that the Court's contrary finding was "clear error." As a result, the Court will deny Defendant's Motion.

I.Background

Both the factual background of this case and the legal framework at play are set forth more fully in the Court's May 14th Opinion. See Chamber of Commerce v. NLRB, --- F. Supp. 2d ---, 2012 WL 1664028 (D.D.C. May 14, 2012). For purposes of the instant Motion, only a few facts and a bit of procedural history are necessary.

The NLRB, the federal agency tasked with administering the National Labor Relations Act, is a five-member body authorized "to make . . . such rules and regulations as may be necessary to carry out the provisions of [the Act]." 29 U.S.C. § 156; see also generally id. §§ 151-57; New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2638 (2010). Except in limited circumstances not present here, the Board must have a quorum of three members in order to act. See 29 U.S.C. § 153(b); see also New Process Steel, 130 S. Ct. at 2638. In December 2011 the NLRB issued a new rule that purported to change the procedures for resolving disputes about union representation. See Final Rule, 76 Fed. Reg. 80,138 (Dec. 22, 2011). Two of the Board's three members voted in favor of adopting the final rule; the third, Member Hayes, did not cast a vote. See id. at 80,146; Def.'s Opp. to Pls.' Mot. for Summ. J., Exh. 1 (Decl. of Brian Hayes), ¶ 11.

Plaintiffs challenged the rule on multiple grounds, most of which the Court did not reach because their claim that the Board lacked the statutorily mandated three-member quorum when it voted to adopt the rule carried the day. See Chamber of Commerce, 2012 WL 1664028. In granting Plaintiffs' Motion for Summary Judgment, the Court first found that Hayes's participation in the rule's development and in two earlier decisions did not suffice. See id. at *5-6. "[T]he December 16th decision to adopt the final rule, not the earlier votes, was the relevant agency action," and "[a] quorum . . . must have participated in that decision." Id. at *5 (emphasis in original). Second, the Court concluded that Hayes did not participate in the December 16th vote to adopt the final rule and thus could not be counted toward the quorum. See id. at *7-10. While Hayes need not have voted in order to be counted, the mere fact that he held office was not enough. See id. at *8. His failure to be present for or participate in the vote to adopt the rule meant that the Board lacked the required three-member quorum when it purported to promulgate such rule. See id. at *7-10.

A few weeks after the Court granted Plaintiffs' Motion for Summary Judgment and determined that the challenged rule had been promulgated without the participation of quorum, the NLRB filed a Rule 59(e) Motion to Alter or Amend the Judgment. It is to the resolution of that Motion that the Court now turns.

II.Legal Standard

Federal Rule of Civil Procedure 59(e) permits the filing of a motion to alter or amend a judgment when such motion is filed within 28 days after the judgment's entry. The court must apply a "stringent" standard when evaluating Rule 59(e) motions. Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004). "A Rule 59(e) motion is 'discretionary' and need not be granted unless the district court finds that there is an 'intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (quoting Nat'l Trust v. Dep't of State, 834 F. Supp. 453, 455 (D.D.C. 1993)); see also 11 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 2810.1 (2d ed. 1995) ("four basic grounds" for Rule 59(e) motion are "manifest errors of law or fact," "newly discovered or previously unavailable evidence," "manifest injustice," and "intervening change in controlling law"). Rule 59(e), moreover, "is not a vehicle to present a new legal theory that was available prior to judgment." Patton Boggs LLP v. Chevron Corp., --- F.3d ---, 2012 WL 2362593, at *4 (D.C. Cir. June 22, 2012).

III.Analysis

In asking the Court to reconsider its conclusion that the Board lacked a quorum when it voted to adopt the final rule, the NLRB appears to accept -- at least for purposes of this Motion -- much of the Court's reasoning. The agency, for example does not at this juncture dispute that "a member may not be counted toward a quorum simply because he holds office." Chamber of Commerce, 2012 WL 1664028, at *8. Indeed, the NLRB seems to concede that the relevant "line [is] between a present but abstaining voter (who may be counted toward a quorum) and an absent voter (who may not be)," id. at *7, and it contends only that the Court made a "clear error of fact" when it found that Hayes fell on the latter side of that divide. In other words, everyone seems to agree on the standard; only its application to the facts is at issue.

The NLRB makes two distinct arguments in its attempt to show that the Court got the facts wrong when it granted Plaintiffs' Motion for Summary Judgment. First, it refines and expands its suggestion that Hayes's statements and actions prior to the December 16th vote to adopt the rule should qualify him for inclusion in the quorum. Second, it maintains that a newly submitted affidavit constitutes "proof that on December 16 ...


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