     Case: 15-60333   Document: 00513537716        Page: 1   Date Filed: 06/07/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                           Fifth Circuit

                                                                          FILED
                                    No. 15-60333                        June 7, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
SANDERSON FARMS, INCORPORATED; SANDERSON FARMS,
INCORPORATED (PROCESSING DIVISION),

             Plaintiffs - Appellants

v.

NATIONAL LABOR RELATIONS BOARD; M. KATHLEEN MCKINNEY, in
her Official Capacity as Regional Director of Region 15,

             Defendants – Appellees

                                           ________________

                                               No. 15-60820
                                           ________________

NATIONAL LABOR RELATIONS BOARD,

             Plaintiff - Appellee

v.

SANDERSON FARMS, INCORPORATED,

             Defendant - Appellant


                Appeals from the United States District Court
                   for the Southern District of Mississippi
                           USDC No. 2:14-CV-126
                           USDC No. 2:14-MC-201
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                                      No. 15-60333
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       These consolidated appeals require us to determine whether the district
court properly dismissed appellants’ suit against the NLRB for lack of subject-
matter jurisdiction and whether the district court properly enforced the
NLRB’s administrative subpoenas against appellants. For the reasons that
follow, we AFFIRM.
                                             I.
       Local 693 of the Laborers’ International Union of North America
(“LIUNA”) was the recognized collective bargaining representative for certain
employees at two of Sanderson Farms’ 1 processing plants. Between 2011 and
2013, Local 693 and one of its members filed several unfair labor practice
charges with the NLRB (the “Board”) against Sanderson Farms. After an
initial investigation, the Board deferred the charges to the parties’ grievance
procedures. In 2013, LIUNA placed Local 693 into trusteeship. Soon
thereafter, the deputy trustee requested permission to withdraw the unfair
labor practice charges. The Board rejected that request, however, and notified
Sanderson Farms that it would revoke its deferrals, investigate further, and
otherwise resume processing of the charges. In notifying Sanderson Farms, the
Board represented that its decision was based in part on the discriminatees’
wishes to proceed. 2 Sanderson Farms disputed—and continues to dispute—
that the discriminatees actually wished to proceed.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 Two related Sanderson Farms entities are involved in this matter; for ease of
reference, we refer to them collectively as “Sanderson Farms.”
       2 The Board also cited the related nature of the charges and Local 693’s failure to

pursue the grievance procedures.
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                                No. 15-60333
      The Board proceeded to investigate the charges. Because Sanderson
Farms refused to cooperate, the Board issued subpoenas, which Sanderson
Farms resisted by filing petitions with the Board to revoke the subpoenas. The
Board denied those petitions and filed a subpoena enforcement proceeding in
federal district court. The district court held that the subpoenas sought
relevant and necessary information, and thus issued an order enforcing them.
NLRB v. Sanderson Farms, Inc., No. 2:14-MC-201, 2015 WL 7302749 (S.D.
Miss. Nov. 18, 2015). Sanderson Farms appealed that order.
      Meanwhile, Sanderson Farms sued the Board and the involved Regional
Director in district court, alleging that the Board violated the Administrative
Procedure Act, 5 U.S.C. § 701 et seq., by failing to withdraw the charges and
by dishonestly justifying its refusal to withdraw. The Board moved to dismiss
for lack of subject-matter jurisdiction, and the district court granted the
motion. Sanderson Farms v. NLRB, No. 2:14-CV-126, 2015 WL 1711618 (S.D.
Miss. Apr. 15, 2015). Sanderson Farms appealed that order as well.
      A motions panel of this court stayed enforcement of the subpoenas
pending the outcome of the second appeal; consolidated the two appeals; and
expedited them.
                                      II.
      We review a district court’s dismissal for lack of subject-matter
jurisdiction de novo. Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir.
2005). We review a district court’s order enforcing an NLRB subpoena for
abuse of discretion. NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir.
1982).
                                     III.
      The Board has not issued a final order here that would be subject to our
review under section 10(f) of the National Labor Relations Act. 29 U.S.C.
§ 160(f). Put another way, Sanderson Farms has not exhausted its
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                                  No. 15-60333
administrative remedies. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S.
41, 51-52 (1938). And under section 10(f), a final agency determination would
be subject to review by a court of appeals, not by a district court.
      Recognizing its failure to exhaust, Sanderson Farms argues the district
court had subject-matter jurisdiction under the exhaustion exception created
in Leedom v. Kyne, 358 U.S. 184 (1958). There, the Supreme Court outlined
“only a narrow and rarely successfully invoked exception to the doctrine that
exhaustion of administrative procedures is a condition precedent to federal
court jurisdiction.” United States v. Feaster, 410 F.2d 1354, 1368 (5th Cir.
1969). Under Leedom, district courts have subject-matter jurisdiction to review
an agency action (1) “when an agency exceeds the scope of its delegated
authority or violates a clear statutory mandate,” and (2) if the aggrieved party
would be deprived of a meaningful opportunity for judicial review. Am.
Airlines, Inc. v. Herman, 176 F.3d 283, 293 (5th Cir. 1999); see Bd. of Governors
of Fed. Reserve Sys. v. MCorp Fin. Inc., 502 U.S. 32, 43 (1991) (explaining that
deprivation of meaningful review was central to Court’s holding in Leedom).
      But Leedom plainly does not apply here. Sanderson Farms premises
jurisdiction on the Board’s refusal to withdraw the charges against it. Yet as
we have recognized, the decision whether to withdraw a charge is committed
to the Regional Director’s discretion. See, e.g., Gulf States Mfrs., Inc. v. NLRB,
598 F.2d 896, 900-02 (5th Cir. 1979); NLRB v. United Packinghouse Workers
of Am., AFL-CIO, 274 F.2d 816, 817 (5th Cir. 1960); see also 29 C.F.R. § 102.9
(providing that charges may be withdrawn on request “only with the consent
of the regional director”). Thus, Sanderson Farms has not identified a “‘plain’
violation of an unambiguous and mandatory provision of the statute.” Herman,
176 F.3d at 293 (citing Boire v. Miami Herald Pub. Co., 343 F.2d 17, 21 (5th
Cir. 1965)). Sanderson Farms points only to the Board’s exercise of its


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                                 No. 15-60333
prosecutorial discretion, which is unreviewable. See NLRB v. United Food &
Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 129 (1987).
      What is more, even if the Board had exceeded the scope of its delegated
authority or had violated a clear statutory mandate here—which it has not—
Sanderson Farms has not been deprived of “a meaningful and adequate means
of vindicating its statutory rights.” MCorp, 502 U.S. at 43. Rather, following
the Board’s issuance of a final order, Sanderson Farms would be entitled under
section 10(f) to an enforcement proceeding, during which “all questions of the
jurisdiction of the Board and the regularity of its proceedings, all questions of
constitutional right or statutory authority are open to examination.” Myers,
303 U.S. at 49; 29 U.S.C. § 160(f). Sanderson Farms thus met none of Leedom’s
requirements.
      Sanderson Farms disagrees. It asserts that in Bokat v. Tidewater
Equipment Co., 363 F.2d 667 (5th Cir. 1966), we “recognized that falsity, if
established in the record, would meet [Leedom’s] ‘extraordinary circumstances’
test to sustain jurisdiction and court intervention.” We did not. To begin with,
Leedom does not provide a free-floating “extraordinary circumstances” test; it
provides a “narrow” exception with “painstakingly delineated procedural
boundaries.” Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964). As detailed,
the Board’s conduct does not fall within those boundaries. In Bokat, moreover,
we explained—in what constitutes a near-perfect response to our jurisdictional
inquiry here—that the district courts are not “open to police the procedural
purity of the NLRB’s proceedings long before the administrative process is
over, or for that matter, scarcely begun.” Bokat, 363 F.2d at 669. And we set
out how purported misconduct by the Board is to be dealt with:
      If on §§ 10(e), (f), review of the unfair labor practice order [the
      Board’s action] is demonstrated to have denied due process or
      statutory rights, the remedy is denial of enforcement of the order
      or other appropriate relief by the Court of Appeals, not the over-
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                                      No. 15-60333
       the-shoulder supervision of District Courts who, for that matter,
       have a very very minor role to play in this statutory structure.
Id. at 673. So too here: Simply alleging that the Board engaged in dishonest
conduct did not confer on the district court the authority to “sto[p] the Board
in its tracks” and short-circuit the administrative proceedings before they have
concluded. Id. We hold that the district court correctly concluded that it lacked
subject-matter jurisdiction. 3
                                            IV.
       For the foregoing reasons, we AFFIRM the district court’s orders
dismissing Sanderson Farms’ complaint and enforcing the Board’s subpoenas.




       3 In addition, we AFFIRM the district court’s order enforcing the subpoenas for
essentially the same reasons explained in the district court’s thorough opinion. See G.H.R.
Energy Corp., 707 F.2d at 113 (noting that reversal of a district court’s order enforcing an
NLRB subpoena is appropriate “only in the most extraordinary of circumstances”).
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