            10-3448-ag
            Local Union 36 Int’l v. Nat’l Labor Relations Board



 1                                         UNITED STATES COURT OF APPEALS
 2                                               FOR THE SECOND CIRCUIT
 3
 4
 5                                                            August Term, 2010
 6
 7          (Submitted on: October 19, 2010                                       Decided: November 12, 2010)
 8
 9                                                         Docket No. 10-3448-ag
10
11
12              LOCAL UNION 36, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
13                                        AFL-CIO,
14
15                                                                                                 Petitioner,
16
17                                                                 — v.—
18
19                                             NATIONAL LABOR RELATIONS BOARD,
20
21                                                                                                Respondent.
22
23
24
25          B e f o r e:
26
27                                      NEWMAN, WINTER, and LYNCH, Circuit Judges.
28
29                                                           __________________
30
31          Respondent National Labor Relations Board moves to transfer this case to the

32   District of Columbia Circuit. It argues that, because it did not receive from either party a

33   petition for review “stamped by the court with the date of filing,” 28 U.S.C. § 2112(a)(2),

34   the case should be heard in that Circuit, where proceedings in this matter were first

35   instituted pursuant to 28 U.S.C. § 2112(a). We conclude that, where a party files a
 1   petition for review in the Second Circuit and then serves the agency with the petition

 2   accompanied by the email, bearing the date and time of filing, by which the petition was

 3   filed, the party has satisfied the requirements of 28 U.S.C. § 2112(a)(2).

 4                 DENIED.

 5
 6
 7                        James R. LaVaute, Brian J. LaClair, Blitman & King LLP, Syracuse,
 8                        New York, for Petitioner.
 9
10                        Linda Dreeben, Deputy Associate General Counsel, National Labor
11                        Relations Board, Washington, D.C., for Respondent.
12
13                        James S. Gleason, Hinman, Howard & Kattell, LLP, Binghamton,
14                        New York, for Intervener Rochester Gas & Electrical Corporation.
15
16

17   GERARD E. LYNCH, Circuit Judge:

18          Respondent National Labor Relations Board (“NLRB”) moves to transfer this

19   case to the District of Columbia Circuit. It argues that, because it did not receive a

20   petition for review “stamped by the court with the date of filing,” 28 U.S.C. § 2112(a)(2),

21   from either party seeking review of its decision, the case should be heard where

22   proceedings were first instituted, in the D.C. Circuit, pursuant to 28 U.S.C. § 2112(a).

23   We conclude that, where a party files a petition for review in the Second Circuit and then

24   serves the agency with the petition accompanied by the email, bearing the date and time

25   of filing, by which the petition was filed, the party has satisfied the requirements of 28


                                                   2
 1   U.S.C. § 2112(a)(2). We therefore deny the motion.

 2                                        BACKGROUND

 3          On August 16, 2010, the NLRB issued a Decision and Order requiring Rochester

 4   Gas & Electric Corporation (“Rochester Gas”) to bargain with Local Union 36,

 5   International Brotherhood of Electrical Workers, AFL-CIO (“Local Union 36”),

 6   regarding the effects of Rochester Gas’s decision to discontinue the practice of allowing

 7   company employees to take their service vehicles home at the end of their shifts. On

 8   August 20, 2010, Rochester Gas filed a petition for review of the NLRB’s order in the

 9   District of Columbia Circuit. Rochester Gas also served a copy of the petition, via

10   Federal Express, upon the NLRB. The D.C. Circuit court date-stamped Rochester Gas’s

11   petition for review as “filed” on August 20, 2010, but the copy of the petition sent to the

12   NLRB was not date-stamped. On August 26, 2010, Local Union 36 electronically filed a

13   petition for review of the NLRB’s order in this Court, and emailed a copy of the petition,

14   accompanied by a copy of the electronic filing message sent to this Court, to the NLRB.

15   The emailed copy of the petition was not date-stamped directly by the Court with the date

16   of filing, but the copy of the electronic filing message forwarded along with the petition

17   did contain the date and time the petition for review was filed.

18          The NLRB now moves to transfer this case to the D.C. Circuit pursuant to 28

19   U.S.C. § 2112. Separately, Rochester Gas moves to intervene as of right pursuant to Fed.

20   R. App. P. 15(d). It does not address the NLRB’s motion to transfer venue.

                                                  3
 1                                          DISCUSSION

 2          Pursuant to 28 U.S.C. § 2112(a)(1), if, within ten days after the issuance of an

 3   order, the NLRB receives only one “petition for review” filed in a court of appeals, then it

 4   must file the relevant record in that court of appeals, “notwithstanding the institution in

 5   any other court of appeals of proceedings for review of that order.” Id. If, however, the

 6   NLRB receives, within ten days, two “petitions for review” filed in separate courts of

 7   appeals, then it must notify the judicial panel on multidistrict litigation, which “shall, by

 8   means of random selection, designate one court of appeals in . . . which petitions for

 9   review have been filed and received within the ten-day period . . . and shall issue an order

10   consolidating the petitions for review in that court of appeals.” Id. § 2112(a)(3). In any

11   other case, where proceedings respecting the same order were instituted in two or more

12   courts of appeals, but no “petition for review” is filed within ten days of the order, the

13   board “shall file the record in the court in which proceedings with respect to the order

14   were first instituted.” Id. § 2112(a)(1). All courts where proceedings have been instituted

15   regarding the same order must transfer the proceedings to the court where the record is

16   properly filed. Id. § 2112(a)(5).

17          At issue in the instant motion is what constitutes a “petition for review” for

18   purposes of section 2112(a), which in this case turns on the meaning of the seemingly

19   straightforward phrase “stamped with the date of filing.” The statute states that “a copy

20   of the petition or other pleading which institutes proceedings in a court of appeals and

                                                    4
 1   which is stamped by the court with the date of filing shall constitute the petition for

 2   review.” Id. § 2112(a)(2) (emphasis added).

 3          The NLRB acknowledges that it received two copies of petitions instituting

 4   proceedings within ten days of its order and that, if it receives two qualifying “petitions

 5   for review” filed in two different courts of appeals within ten days of an order, then the

 6   court of appeals that will hear the case is determined randomly. Id. § 2112(a)(3).

 7   However, it argues that, because neither of the copies of the petitions it received were

 8   “stamped by the court with the date of filing,” id. § 2112(a)(2), they did not constitute

 9   “petition[s] for review” for purposes of the statute, and, therefore, it received no

10   “petitions for review” within ten days of the order. Accordingly, the NLRB contends that

11   the case should be transferred to the D.C. Circuit where “proceedings with respect to the

12   order were first instituted.” Id. § 2112(a)(1).

13          In opposition to the NLRB’s motion, Local Union 36 argues that the statute did not

14   contemplate mandatory electronic filing – such as is required in the Second Circuit – and

15   therefore its service upon the NLRB of the petition accompanied by a copy of the email in

16   which it was filed – which contained the date and time when the petition was filed –

17   satisfied the “stamped by the court with the date of filing” requirement set forth in section

18   2112(a)(2). Thus, according to Local Union 36, the NLRB received from Local Union 36

19   a proper “petition for review” filed in this Court from Local Union 36 within ten days of

20   the agency’s order, and, because Rochester Gas failed to serve a proper date-stamped

                                                   5
 1   “petition for review” on the NLRB within ten days of the order, the case should remain in

 2   this Court. See id. § 2112(a)(1).

 3          We have not previously addressed whether service upon an agency of a copy of a

 4   petition initiating proceedings in this Court, accompanied by proof of the date of the

 5   electronic filing of that petition, but lacking a date-stamp placed directly by the Court, can

 6   satisfy the “petition for review” definition set forth in 28 U.S.C. § 2112(a)(2). Prior to

 7   our Court’s shift to electronic filing, parties would file hard-copy petitions for review,

 8   which would be physically stamped with the date of filing by the Court. Thus,

 9   compliance with section 2112(a)(2) was straightforward. However, under our new

10   procedures, which require such petitions to be filed electronically, there is no direct

11   replacement for the physical stamping. As we explain below, given the shift in our

12   Court’s procedures, we conclude that service upon an agency of a petition initiating

13   proceedings in this Court, accompanied by the filing email containing the date on which

14   the petition was filed, suffices to constitute a “petition for review” for purposes of section

15   2112(a)(2).

16          Under the Local Rules of the Second Circuit, an “initiating document,” such as a

17   petition for review of an agency proceeding, is filed by emailing an electronic version of

18   the document to a Second Circuit email address, newcases@ca2.uscourts.gov. Second

19   Circuit Local Rule 25.1(c)(2). Such an “initiating document . . . is considered filed as of

20   the date and time indicated on the email submission,” id. 25.1(d)(2), and is to be served

                                                   6
 1   on other parties by email, id. 25.1(h)(3). After a petition for review is received by this

 2   Court, a docket is created in our electronic case management (“CM/ECF”) system.

 3   However, there is no automatic court response to receipt of the petition that would be

 4   analogous to having the petition physically stamped upon receipt of a hard-copy

 5   document at the courthouse.1

 6          This does not, however, leave the opposing party without the ability to verify when

 7   the petition was filed. A copy of the email that filed the petition can be forwarded to the

 8   opposing party, and, if a party desires further confirmation of the date the petition was

 9   filed, it may check the docket sheet – once it is created – which will indicate when the

10   petition was filed. However, as is true in the instant case, the date of filing may differ

11   from the date on which the petition is later docketed by the Court.

12          Under the rules of this Court, then, Local Union 36’s only method of ensuring that

13   it satisfied the requirements of section 2112 was to serve upon the NLRB a copy of the

14   petition accompanied by the email in which the petition was filed indicating the time and

15   date on which it was filed. We conclude that, because, pursuant to this Court’s

16   procedures, there is no direct analogue to a date stamp placed on the petition directly by



            1
              In contrast, once the proceeding is initiated and a docket sheet has been created –
     following the filing of an “initiating document” – whenever subsequent documents are
     electronically filed via the Court’s CM/ECF system, the Court automatically generates a
     “notice of docket activity . . . following the filing transmission.” Second Circuit Local
     Rule 25.1(d)(1).

                                                   7
 1   the Court, and because, under Court rules, the petition for review was filed “as of the date

 2   and time indicated on the email submission,” Second Circuit Local Rule 25.1(d)(2), the

 3   copy of the petition, accompanied by the forwarded email containing the date and time,

 4   was effectively “stamped by the court with the date of filing,” for purposes of section

 5   2112(a)(2). Accordingly, under the technological conditions and filing practices of the

 6   present day, the forwarded email accompanying the copy of the petition for review served

 7   as a “stamp[] by the court with the date of filing.” 28 U.S.C. § 2112(a)(2).

 8          We recognize that a more literal interpretation of the statutory language might

 9   suggest that a document must be physically or at least electronically stamped directly by

10   the court and then served upon the agency to satisfy the definition. However, “[w]here

11   the result of a literal interpretation of statutory language is absurd, or where the obvious

12   purpose of the statute is thwarted by such slavish adherence to its terms, we may look

13   beyond the plain language.” Grand Light & Supply Co. v. Honeywell, Inc., 771 F.2d

14   672, 677 (2d Cir. 1985) (citations omitted); see also id. (“Where such a literal

15   interpretation of the statute’s language would lead to absurd results, we may adopt an

16   alternate construction.”); Local Union No. 38 v. Pelella, 350 F.3d 73, 82-83 (2d Cir.

17   2003), quoting United States v. Perdue Farms, 680 F.2d 277, 280 (2d Cir. 1982) (“The

18   words chosen by Congress ‘are not in all instances a reliable indicator of Congress’

19   intent, and we may look to the legislative history of the enactment to determine whether

20   literal application of the statute would pervert its manifest purpose.’” (brackets omitted));

                                                   8
 1   Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 297 (2d Cir. 1998); Viacom

 2   Int’l Inc. v. F.C.C., 672 F.2d 1034, 1039 (2d Cir. 1982) (“[T]he surest way to misinterpret

 3   a statute . . . is to follow its literal language without reference to its purpose.”).

 4          Prior to the statute’s amendment to its current form in 1988, section 2112 dictated

 5   that “[i]f proceedings have been instituted in two or more courts of appeals with respect

 6   to the same order the agency . . . shall file the record in that one of such courts in which a

 7   proceeding with respect to such order was first instituted.” 28 U.S.C. 2112(a) (1958).

 8   The legislative history of the statute makes evident that the purpose of amending the

 9   statute to provide for random selection where two petitions for review are filed in separate

10   courts of appeals within ten days of the order was to simplify the process by which proper

11   venue was found and to avoid a “race to the courthouse.”

12          In a speech from the floor regarding the amendment, Representative Sam B. Hall

13   Jr. stated that “the purpose of [the 1988 amendment is to] simplify the selection of the

14   proper court to handle the judicial appeal of an agency order in those cases where

15   petitions for review are filed in more than one court of appeals.” 131 Cong. Rec. H 3129-

16   02. Representative Hall recounted that until 1958, each agency had the option of

17   selecting which circuit would have venue over the proceedings, but since this gave an

18   unfair advantage to the agency, the statute was amended in 1958 to provide that the

19   circuit where the petition for review was first filed would have venue. Id. “However, the

20   1958 amendment had an unintended effect. Many lawyers believed that a certain circuit

                                                     9
 1   would be more sympathetic to their client’s arguments than other circuits. Thus, races to

 2   the courthouse began to occur, with each lawyer trying to file first in the circuit he or she

 3   felt would be sympathetic.” Id. These races to the courthouse apparently grew to be

 4   quite sophisticated and petitions would be filed within minutes and even seconds of each

 5   other. Id. Naturally, parties litigated over which petition was first filed, unnecessarily

 6   consuming judicial resources. Id. Moreover, the very notion that parties were filing

 7   petitions in different federal courts because they believed these courts would apply the

 8   law differently was thought to “detract form the public’s perception of the Federal courts

 9   as impartial, consistent arbiters of justice.” Id. The 1988 amendments to the section

10   remedied the situation by removing the incentive to race to the courthouse, by requiring

11   that, where petitions for review were filed in two courts of appeals within ten days of the

12   order, the case would be assigned randomly to one of those courts of appeals. Id.

13          While the broad purpose behind the amendment of the statute is clear, no legislative

14   history has been brought to our attention specifically discussing the “stamped by the court

15   with the date of filing” language which was also added in the 1988 amendments. The

16   obvious purpose behind this particular language appears to be to ensure a mechanism to

17   verify that the petition for review was indeed filed within the ten-day period. We see no

18   reason to read the language to require a physical or even electronic stamp be placed on the

19   document directly by the Court, where, pursuant to the Court’s own procedures, it does not

20   place any such stamp on the document. In fact, reading the language as literally as the NLRB

                                                  10
 1   would have us do would lead to the absurd result that no qualifying “petition” would ever

 2   exist when a party sought to file a petition for review in a court of appeals, such as ours, that

 3   has adopted an electronic filing system.

 4          Under such a reading, any time one party filed its petition for review within ten days

 5   in a court of appeals that did physically stamp such petitions, its choice of venue would

 6   trump any other party that filed its petition, even within ten days, in the Second Circuit or a

 7   different court with similar procedures. Congress could not have intended the choice of

 8   venue of these proceedings to be determined by the technological procedures by which

 9   petitions for review are filed in each particular Circuit. Indeed, reading the language so

10   literally could lead to a new race to the courthouse if two parties sought to file petitions for

11   review in separate courts of appeals that did not stamp petitions for review upon filing. In

12   such a case, the parties would have to rush to file the petition first to guarantee their choice

13   of forum, because if the board does not receive two petitions for review satisfying the

14   definition in section 2112(a)(2) within ten days – which it could not, under this reading, if

15   the petitions were not actually stamped directly by the court – then the record is to be filed

16   “in the court in which proceedings with respect to the order were first instituted.” 28 U.S.C.

17   § 2112(a)(1). That is precisely the result Congress intended to avoid.

18          The broad purpose behind the amendment to the statute was to avoid a race to the

19   courthouse and simplify the procedure by which proper venue is chosen. The specific

20   purpose behind the language at issue was clearly to provide a mechanism to verify that the

                                                    11
 1   party filed the petition for review within ten days. These purposes are satisfied in courts such

 2   as our own by permitting a petition accompanied by the email in which it was filed – which

 3   serves to verify the date on which the petition was filed – to constitute a date-stamped

 4   petition for review. In contrast, at least when dealing with petitions for review filed in courts

 5   such as our own, reading the statutory language to literally require a physical or electronic

 6   stamp be placed on the petition directly by the court would lead to results incompatible with

 7   the legislative purposes. We therefore decline to read the statute so literally. Local Union

 8   36’s service on the NLRB of the petition for review, accompanied by the date-stamped email

 9   in which it was filed, within ten days thus satisfied the requirements of section 2112(a)(2).

10          Rochester Gas’s service of its petition for review on the NLRB, however, failed to

11   satisfy these requirements. Where a court does physically stamp petitions for review upon

12   filing, the petition received by the NLRB must be “stamped by the court with the date of

13   filing,” to satisfy the requirements of 28 U.S.C. § 2112(a)(2). Unlike this Circuit, the D.C.

14   Circuit requires that “[c]ase-initiating documents, including . . . petitions for review . . . from

15   agency action . . . must be filed in paper form.” D.C. Cir. Administrative Order Regarding

16   Electronic Case Filing, ECF-1, May 15, 2009. Moreover, the D.C. Circuit does physically

17   stamp petitions for review, and, in fact, physically stamped Rochester Gas’s petition for

18   review with the date of filing. Rochester Gas, however, failed to serve the NLRB with a

19   copy of the date-stamped petition for review, and therefore its petition for review did not

20   satisfy the requirements of section 2112(a)(2). Because the only petition for review that

                                                     12
1   satisfied the definition of section 2112(a)(2) received by the NLRB within ten days of the

2   agency’s order was filed in this Court, the NLRB must file the record in this Court. See 28

3   U.S.C. § 2112(a)(1). We therefore deny the NLRB’s motion to transfer venue.

4         Finally, we grant Rochester Gas’s motion to intervene.

5                                       CONCLUSION

6         For the foregoing reasons, the NLRB’s motion is DENIED, and Rochester Gas’s

7   motion is GRANTED.

8

9




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