United States Court of Appeals, District of Columbia Circuit
Argued February 25, 2014
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.
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.
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 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).
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 ...