UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

THE SAGINAW CHIPPEWA INDIAN

TRIBE OF MICHIGAN, 

Plaintiff,

v.

MARK G. PEARCE, Chairman, 

KENT Y. HIROZAWA, PHILIP A. 

MISCIMARRA, HARRY I. JOHNSON III,

and LAUREN MCFERRAN in their official 

capacities as Members of the Board, and TERRY

A. MORGAN in her official capacity as

Regional Director of Region 7, 

Defendants.

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Case No. 1:15-cv-12077

Honorable Thomas L. Ludington

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTIONS FOR 

TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

CONCISE STATEMENT OF ISSUES PRESENTED

(1) Whether this Court has subject-matter jurisdiction to enjoin a representation proceeding 

pending before the National Labor Relations Board

(2) Whether the Plaintiff has satisfied its substantial burden to show that it is entitled to a 

temporary restraining order or a preliminary injunction

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CONTROLLING OR MOST APPROPRIATE AUTHORITY

Supreme Court Cases

• Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938)

• Leedom v. Kyne, 358 U.S. 184 (1958)

Court of Appeals Cases

• Blue Cross & Blue Shield of Mich. v. NLRB, 609 F.2d 240 (6th Cir. 1979)

• Detroit Newspaper Agency v. NLRB, 286 F.3d 391 (6th Cir. 2002)

• NLRB v. Little River Band of Ottawa Indians, --- F.3d ----, 2015 WL 3556005, at *12 

(6th Cir. June 9, 2015)

• Hartz Mountain Corp. v. Dotson, 727 F.2d 1308 (D.C. Cir. 1984)

District Court Cases

• Saginaw Chippewa Indian Tribe of Michigan v. NLRB, 838 F. Supp. 2d 598 (E.D. Mich. 

2011)

• Little River Band of Ottawa Indians v. NLRB, 747 F. Supp. 2d 872 (W.D. Mich. 2010)

Statutory Provisions of the National Labor Relations Act

• 29 U.S.C. §§ 159(d), 160(e), (f)

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Defendants, the Chairman and four Members of the National Labor Relations Board and 

Regional Director Terry A. Morgan (collectively, “NLRB” or “the Agency”), oppose the 

Saginaw Chippewa Indian Tribe of Michigan’s (“the Tribe’s”) Emergency Motion for 

Temporary Restraining Order [Dkt. #8] and Emergency Motion for Preliminary Injunction [Dkt. 

#3] (“PI Mem.”).

1 The Tribe has not shown that the Court has subject-matter jurisdiction to 

enjoin a pending NLRB proceeding or “that [it] is likely to succeed on the merits, that [it] is 

likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities

tips in [its] favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. 

Council, Inc., 129 S. Ct. 365, 374 (2008). Therefore, the Tribe has not met its “substantial” 

burden of demonstrating entitlement to either a temporary restraining order or a preliminary 

injunction. Koole v. Wells Fargo Bank, NA, No. 14-13976, 2015 WL 3408944, at *1 (E.D. Mich. 

May 27, 2015).

INTRODUCTION

In 2011, the Tribe filed a lawsuit in this Court seeking to enjoin an unfair labor practice 

proceeding before the NLRB in which the Tribe, as proprietor of the Soaring Eagle Casino and 

Resort (“Casino”), was accused of violating the National Labor Relations Act (“NLRA”). The 

Tribe claimed that the NLRA did not apply to its operation of the Casino and that merely 

litigating its jurisdictional position before the Board would irreparably injure the Tribe’s 

sovereignty. But this Court denied the Tribe’s request for injunctive relief and granted the 

NLRB’s motion to dismiss on the basis of long-settled precedent confirming that district courts 

generally lack jurisdiction to enjoin such proceedings. Saginaw Chippewa Indian Tribe of Mich. 

v. NLRB, 838 F. Supp. 2d 598, 603-06 (E.D. Mich. 2011).

1 In accordance with this Court’s Stipulated Order Establishing Briefing Schedule [Dkt. #15], the 

NLRB files a single brief in opposition to both motions.

 

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Now, less than four years later, the Tribe has filed another lawsuit seeking to enjoin a 

different NLRB proceeding. In this instance, the Tribe seeks to prevent the NLRB from 

conducting a scheduled hearing in a representation case – that is, a case in which a union has 

filed a petition with the Agency seeking certification as exclusive collective bargaining 

representative of certain employees through an NLRB-conducted secret ballot election. See 29 

U.S.C. § 159. The Tribe claims that this Court’s prior decision denying injunctive relief in the 

2011 case does not control here because a representation case is different than an unfair labor 

practice case.

The Tribe is wrong. Just as a district court lacks jurisdiction to enjoin an unfair labor 

practice case, a district court similarly lacks jurisdiction to enjoin a representation case. See, e.g.,

Blue Cross & Blue Shield of Mich. v. NLRB, 609 F.2d 240 (6th Cir. 1979). In addition, the Tribe

does not satisfy the “nearly insurmountable” exception recognized in Leedom v. Kyne, 358 U.S. 

184 (1958), holding that district courts have jurisdiction to strike down Board action if it clearly 

violates the NLRA and would otherwise evade review. U.S. Dep’t of Justice v. FLRA, 981 F.2d 

1339, 1343 (D.C. Cir 1993). This fatal jurisdictional defect aside, the Tribe’s primary merits 

argument has recently been foreclosed by an intervening Sixth Circuit decision: The Tribe urges 

the Court to find that “limited” injunctive relief is warranted because the Sixth Circuit might

soon adopt its view that the NLRA can never apply to an Indian tribe’s operation of a casino on 

its lands. But shortly after the filing of the Tribe’s motions, the Sixth Circuit held otherwise, 

adopting “the Coeur d’Alene framework,” which the Tribe sharply criticizes here, as controlling 

circuit law with respect to NLRB jurisdiction. NLRB v. Little River Band of Ottawa Indians, ---

F.3d ----, 2015 WL 3556005, at *12 (6th Cir. June 9, 2015).

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Because of this, the Tribe cannot show that it has “a strong likelihood of success on the 

merits.” Ohio State Conference of NAACP v. Husted, 768 F.3d 524, 533 (6th Cir. 2014). 

Moreover, since the Tribe’s sole alleged injury in the absence of injunctive relief consists of the 

costs and burdens of litigation, the Tribe has not shown that it “would suffer irreparable injury 

without the injunction.” Id. Finally, injunctive relief would cause substantial harm to the NLRB, 

the union that filed the representation petition at issue herein, and the Casino employees whose 

collective bargaining rights are implicated by that petition. See Boire v. Greyhound Corp., 376 

U.S. 473, 477-79 (1964) (recognizing Congress’s concern that unless the Board can promptly 

hold an election to determine employees’ choice of representation, the union runs the risk of 

impairment of strength by attrition and delay while the case is dragging on). Accordingly, the 

Tribe does not qualify for the emergency injunctive relief which it seeks.2

FACTUAL BACKGROUND

During the past decade, several matters involving the Tribe have been brought before the 

NLRB by outside parties who have filed either unfair labor practice charges or representation 

petitions with the Agency.

3 Only two such matters are directly relevant here.

2 The Tribe’s arguments for emergency injunctive relief focus almost exclusively on the 

allegations contained in Count I of the Tribe’s Complaint, which contests the general 

applicability of the NLRA to the Tribe’s operation of the Casino. (See Compl. ¶¶ 117-129.) The 

counts of the Complaint challenging the Board’s new election rules (see id. ¶¶ 156-191) are not 

pressed in the Tribe’s motions – and with good reason: A court recently ruled that an employer 

did not show that it would suffer irreparable harm from implementation of the new rules in a 

pending case. See Baker DC v. NLRB, --- F. Supp. 3d ----, 2015 WL 1941516, at *1 (D.D.C. Apr. 

22, 2015); see also Associated Builders & Contractors of Tex., Inc. v. NLRB, No. 1-15-CV-026, 

2015 WL 3609116 (W.D. Tex. June 1, 2015) (rejecting on the merits many of the same 

arguments challenging the new election rules made by the Tribe in its Complaint).

3 The Tribe’s assertion that the NLRB has “commenced . . . action[s] against the Tribe” (PI 

Mem. at i), gives the impression that the Agency acts as a roving commission that, on its own 

initiative, commands employers to comply with the NLRA. To the contrary, by statute, the 

NLRB “address[es] unfair labor practice charges and conduct[s] representation elections [only] 

3

 

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1. The 2011 Unfair Labor Practice Case Initiated by the United Automobile 

Workers

In September 2011, upon a charge filed by the United Automobile Workers, Regional 

Director Morgan’s predecessor issued an unfair labor practice complaint accusing the Tribe of 

committing several violations of the NLRA. The issuance of the unfair labor practice complaint 

over the Tribe’s jurisdictional objections prompted the Tribe to file the unsuccessful injunction 

lawsuit described above, resulting in a two-month delay in the processing of the case. When the 

unfair labor practice case resumed, the Tribe’s defense was that the NLRA did not apply to 

Indian tribes. It “did not refute the testimony and other evidence regarding the merits of the 

unfair labor practice charges.” Soaring Eagle Casino & Resort, 359 NLRB No. 92, at *13 (Apr. 

16, 2013).

Ultimately, the unfair labor practice proceedings culminated with an April 16, 2013

Decision and Order in which the Board employed the three-part jurisdictional standard 

articulated in Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985), as well as 

the Board’s own discretionary jurisdictional test, and found that the NLRA applied to the Tribe’s 

operation of the Casino. Id. at *9-*13. The Board therefore ordered the Tribe to remedy its unfair 

labor practices. Id. at *1-*2. The Tribe petitioned for review in the Sixth Circuit, and the Board 

cross-petitioned for enforcement. See 29 U.S.C. § 160(e)-(f). In its brief, the Tribe reiterated its 

jurisdictional objection to the Board’s proceeding. In addition, the Tribe challenged the Board’s 

authority to issue the order under review. Specifically, the Tribe questioned the validity under the 

Constitution of the President’s January 2012 recess appointments of two of the three Board 

members who decided its case. See Brief of Petitioner/Cross-Respondent Saginaw Chippewa 

upon request.” Chamber of Commerce of the U.S. v. NLRB, 721 F.3d 152, 154 (4th Cir. 2013); 

see 29 U.S.C § 159(c)(1) and 160(b).

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Indian Tribe of Michigan at 15-16, Saginaw Chippewa Indian Tribe of Michigan v. NLRB (6th 

Cir.) (Nos. 13-1569 & 13-1629). (See PI Mem. Ex. A at 15-16.)

Oral argument in the Sixth Circuit case was scheduled for June 26, 2014. But on that very 

morning, the Supreme Court decided NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), which held 

that the President’s January 2012 recess appointments to the Board—including the two members 

who participated in the adjudication of the Tribe’s case—were not authorized by the 

Constitution. Since the Tribe had raised the recess appointments argument in its brief, oral 

argument did not occur as planned. Instead, upon motion of the Board, the Sixth Circuit vacated 

the Board’s April 16, 2013 Order and remanded the case to the Board for further consideration in 

light of Noel Canning. On remand, a new Board panel consisting of three presidentially 

appointed and Senate-confirmed members considered the case de novo and adopted the April 26, 

2013 Decision and Order with minor modifications. Soaring Eagle Casino & Resort, 361 NLRB 

No. 73, at *1 (Oct. 27, 2014).

The Tribe then filed a new petition for review and the Board filed a new cross-petition for 

enforcement. The Sixth Circuit adopted the parties’ previously-submitted briefs and held oral 

argument on April 29, 2015. The case has not yet been decided.

In the meantime, a different panel of the Sixth Circuit has issued its decision in Little 

River Band of Ottawa Indians v. NLRB, --- F.3d ----, 2015 WL 3556005 (6th Cir. June 9, 2015). 

Like the Saginaw Tribe, the Little River Band contested the Board’s exercise of jurisdiction over 

its casino. Id. at *2 (noting that “[t]he only argument the Band presented in its defense was that 

the Board lacked jurisdiction”). Over the dissent of Judge McKeague, the Sixth Circuit 

“adopt[ed] the [Ninth Circuit’s] Coeur d’Alene framework to resolve” the applicability of the 

Act to Indian tribes, id. at *12, and concluded that “the NLRA applies to the Band’s operation of 

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[its] . . . casino,” id. at *1. Therefore, the Court of Appeals enforced the Board’s order requiring 

the Little River Band to remedy its unfair labor practices. Id. at *16.

2. The 2015 Representation Case Initiated by the United Steelworkers

On May 12, 2015, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, 

Allied Industrial and Service Workers International Union (the Union) filed a representation 

petition with the NLRB seeking to represent certain of the Tribe’s employees who work at the 

Casino. The filing of the petition, which has been docketed as Case 07-RC-152046, triggered the 

initiation of NLRB procedures to process it. Accordingly, on May 12, 2015, Regional Director 

Morgan served a letter upon counsel for the Tribe informing counsel of the Tribe’s obligations 

under the NLRA. (See attached NLRB Ex. A.) She also enclosed a copy of the petition. The 

letter further notified counsel for the Tribe that, in accordance with the Board’s rules, a hearing 

on the petition was set to be conducted at 10:00 AM on May 20, 2015, in Grand Rapids, 

Michigan. Id; see 29 C.F.R. § 102.63(a)(1) (requiring regional directors to “set the hearing for a 

date 8 days from the date of service of the notice”).

On May 16, 2015, counsel for the Tribe sent an email to Nancy Platt, Deputy Assistant 

General Counsel of the NLRB’s Contempt, Compliance, and Special Litigation Branch. (See

attached NLRB Ex. B.) In the email, counsel for the Tribe indicated that the Tribe had “deep 

concerns” over its ability to adequately prepare for the May 20th hearing and was “poised to file 

a TRO in federal court.” As a result of ensuing discussions, the General Counsel of the Tribe 

sent a letter to the Region on May 18, 2015, formally requesting that the hearing be postponed 

pending the outcome of the Sixth Circuit’s review of the Board’s Decision and Order in the 2011 

unfair labor practice case. Alternatively, the Tribe stated that it “c[ould] be prepared to move 

forward with this [representation] case on or after June 15.” (Compl. Ex. N.) Although Regional 

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Director Morgan refused to stay the proceedings indefinitely, she granted the Tribe’s alternative 

request to postpone the hearing until June 15th. (See NLRB Ex. C.)

On June 8, 2015, exactly one week before the rescheduled hearing was set to occur, the 

Tribe filed a complaint with this Court and requested emergency injunctive relief to prevent the 

representation hearing from taking place. Because the Tribe’s late filings left little time for the 

NLRB to prepare a response or for the Court to carefully consider the issues, the parties agreed 

that Regional Director Morgan would further postpone the hearing until July 21, 2015. Regional 

Director Morgan issued such an order on June 10, 2015. (See NLRB Ex. D.)

ARGUMENT

When courts consider a motion for either a preliminary injunction or a temporary 

restraining order, they must determine whether they have subject-matter jurisdiction to grant the 

requested relief and balance the following four factors: “(1) whether the movant has a strong 

likelihood of success on the merits; (2) whether the movant would suffer irreparable injury 

without the injunction; (3) whether issuance of the injunction would cause substantial harm to 

others; and (4) whether the public interest would be served by issuance of the injunction.” Ohio 

State Conference of NAACP, 768 F.3d at 532-33 (quoting City of Pontiac Retired Employees 

Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014)). In Nken v. Holder, the Supreme Court 

explained that when the government is the opposing party, the third and fourth factors merge. 

556 U.S. 418, 435 (2009). As discussed below, well-established precedent establishes that this 

Court lacks subject matter jurisdiction to enjoin a pending representation case, and for this 

reason, together with other relevant considerations, none of the three equitable factors favors the 

entry of preliminary injunctive relief.

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I. The Tribe has no likelihood of success on the merits because well-established 

legal precedent deprives this court of subject-matter jurisdiction and because the 

Sixth Circuit has largely undermined the Tribe’s primary merits argument. 

The Tribe has no likelihood of prevailing on the merits because district courts generally 

lack subject-matter jurisdiction to review NLRB representation proceedings.4 There is no 

jurisdictional basis for district courts to review the exercise of authority by the Board and its 

agents in representation cases. Congress made the deliberate decision to allow judicial review of 

representation case rulings only by an appropriate court of appeals and only if a subsequent 

unfair labor practice proceeding results in a final Board order. See Mayer v. Ordman, 391 F.2d 

889, 891 (6th Cir. 1968) (per curiam) (“The cases are clear that Congress has provided an 

administrative tribunal, the National Labor Relations Board, to administer the Labor Acts and 

that, other than final orders from the NLRB, which are appealable to the United States Courts of 

Appeals, the power of the Board in disputes between labor and management is exclusive.”). 

A. District courts generally lack jurisdiction to review representation cases.

On its face, the NLRA indicates a purpose to limit judicial review of representation 

decisions. Section 10(e) and (f) provides for review, in the appropriate Court of Appeals, of “a 

final order of the Board” entered in an unfair labor practice proceeding under section 10. 29 

U.S.C. § 160(e), (f). In American Federation of Labor v. NLRB, 308 U.S. 401, 409-11 (1940), 

the Supreme Court held that a certification, which typically terminates a representation case after 

an election has been held, does not constitute a “final order of the Board” within the meaning of 

section 10(e) and (f). Therefore, “as a general rule, Board orders emanating from representation 

4 When a defendant argues that the court lacks subject-matter jurisdiction, the plaintiff has the 

burden of proving jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 

377 (1994); Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1064 (6th Cir. 2014).

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proceedings are not directly reviewable in court.” Hartz Mountain Corp. v. Dotson, 727 F.2d 

1308, 1310 (D.C. Cir. 1984). 

Instead, the NLRA provides an indirect method for judicial review of Section 9 

representation proceedings. Specifically, Section 9(d) provides that when a certification has 

become the basis for a subsequent unfair labor practice order and that order is before an 

appropriate Court of Appeals under section 10(e) or (f), the certification itself is also open to 

review. 29 U.S.C. § 159(d); see Canadian Am. Oil Co. v. NLRB, 82 F.3d 469, 471 n.1 (D.C. Cir. 

1996) (“Although a Board’s decision in a certification proceeding is not directly reviewable in 

the courts, an employer may challenge a certification decision indirectly by refusing to bargain 

with the union and then raising its election objection in the ensuing unfair labor practice 

proceedings.”). “Congress adopted this policy because it wished to avoid delays involved in 

direct judicial review—delays which ultimately could frustrate employees’ bargaining rights 

before the employees had an opportunity to exercise them.” Gold Coast Rest. Corp. v. NLRB, 

995 F.2d 257, 267 (D.C. Cir. 1993).

5 The indirect review process chosen by Congress protects 

this important interest and still “makes full provision for judicial review of the underlying 

certification order.” Boire, 376 U.S. at 477.

5 The Sixth Circuit recognized in Blue Cross & Blue Shield that the legislative history of the 

NLRA is particularly emphatic on this point. As the relevant House Report states, “Section 9(d) 

of the bill makes clear that there is to be no court review prior to the holding of the election.” 609 

F.2d at 244 (quoting Boire, 376 U.S. at 478 n.5). Similarly, the relevant Senate Report states, 

“Section 9(d) makes it absolutely clear that there shall be no right to court review anterior to the 

holding of an election. An election is the mere determination of a preliminary fact, and in itself 

has no substantial effect upon the rights of either employers or employees.” Id. (quoting Boire, 

376 U.S. at 478 n.6).

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B. The jurisdictional exception carved out in Leedom v. Kyne is extremely 

limited.

The cases following the principle of American Federation of Labor over the last seventy 

years “are legion.” Hartz Mountain, 727 F.2d at 1310. Nevertheless, “the Supreme Court has 

established one important and extremely narrow exception to the general rule that Board 

representation orders are not subject to direct judicial review.” Id. at 1311. In Leedom v. Kyne, 

358 U.S. 184, 187 (1958), the Supreme Court held that district courts may exercise jurisdiction 

under 28 U.S.C. § 1337 “to strike down an order of the Board made in excess of its delegated 

powers and contrary to a specific prohibition in the Act,” 358 U.S. at 188, but only “‘[i]f the 

absence of jurisdiction of the federal courts [would] mean[] a sacrifice or obliteration of a right 

which Congress has created,’” id. at 190 (quoting Switchmen’s Union v. Nat’l Mediation Bd., 

320 U.S. 297, 300 (1943)). “Thus, in order to justify the exercise of [Kyne] jurisdiction, a 

plaintiff must show, first, that the agency has acted ‘in excess of its delegated powers and 

contrary to a specific prohibition’ which ‘is clear and mandatory,’ and, second, that barring 

review by the district court ‘would wholly deprive [the party] of a meaningful and adequate 

means of vindicating its statutory rights.’” Nat’l Air Traffic Controllers Ass’n v. Fed. Serv. 

Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006) (second alteration in original) (citation 

omitted).

“The federal courts have consistently recognized the limits imposed by the Kyne

decision.” Physicians Nat’l House Staff Ass’n v. Fanning, 642 F.2d 492, 496 (D.C. Cir. 1980) 

(en banc); see also id. at 503 (dissenting opinion) (“This circuit, like the other lower courts, has 

been frugal in recognizing the Kyne exception.”). The D.C. Circuit, where many cases invoking 

Kyne are filed, has repeatedly emphasized how difficult it is for plaintiffs to establish jurisdiction 

under its auspices. Indeed, “[t]he limits of Kyne jurisdiction have been described as ‘nearly 

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insurmountable’ by the District of Columbia Circuit.” Int’l Union of Operating Eng’rs, Local 70 

v. NLRB, 940 F. Supp. 1439, 1442 n.3 (D. Minn. 1996) (quoting U.S. Dep’t of Justice v. FLRA, 

981 F.2d 1339, 1343 (D.C. Cir 1993)). “In Physicians, [the Court of Appeals] made it 

unmistakably clear that the Kyne exception is extraordinarily narrow.” Hartz Mountain, 727 F.2d 

at 1312. Accordingly, only “in the rarest of circumstances” will Kyne support district court 

jurisdiction. Id. at 1311.

C. Leedom v. Kyne does not support district court jurisdiction in this case.

The Tribe has not shown that its suit involves the “rarest of circumstances” necessary to 

establish jurisdiction under Kyne. Indeed, the Tribe cannot satisfy either of Kyne’s two 

conjunctive requirements. Therefore, this Court lacks jurisdiction to grant the Tribe’s request for

preliminary injunctive relief.

1. Jurisdiction is not available under Leedom v. Kyne because the Tribe has 

a meaningful and adequate opportunity for judicial review.

The Tribe may obtain judicial review of the jurisdictional arguments it makes here by 

following the procedure prescribed by the NLRA. As the Supreme Court explained in Board of 

Governors of the Federal Reserve System v. MCorp Financial, Inc., 502 U.S. 32, 43 (1991), 

there can be no “sacrifice or obliteration” of a right under Kyne where “a meaningful and 

adequate opportunity for judicial review” is available. See Detroit Newspaper Agency v. NLRB, 

286 F.3d 391, 398 (6th Cir. 2002) (noting that the Supreme Court “rested its decision in MCorp

solely on the basis that MCorp had available to it review in the appellate courts, thus making 

district court jurisdiction improper under Leedom [v. Kyne]”); see also Nat’l Air Traffic 

Controllers Ass’n, 437 F.3d at 1263.

Sections 9(d) and 10(e) and (f) of the Act which, together, establish the indirect review 

procedure in representation cases, provide the Tribe with “a meaningful and adequate 

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opportunity for judicial review.” MCorp, 502 U.S. at 43. Case 07-RC-152046 is currently 

scheduled for hearing on July 21, 2015. If, after the hearing, Regional Director Morgan directs 

an election, and if the employees at the Casino decide against union representation, the Union 

will not be certified and the Tribe will not suffer any harm. On the other hand, if the employees 

at the Casino opt for union representation and the Union is certified as their representative, the 

Tribe can simply refuse to bargain with the Union. An employer’s post-certification refusal to 

bargain will either force the union to file an unfair labor practice charge, or, in the absence of a 

charge, permit the employer to ignore the results of the election. See Hartz Mountain, 727 F.2d at 

1311 (“‘Congress declared that the person aggrieved by a Board representation decision is 

obliged to precipitate an unfair labor practice proceeding as a means of securing review in the 

appellate courts.’”) (quoting Robert A. Gorman, Basic Text on Labor Law: Unionization and 

Collective Bargaining 60 (1976)). “In Kyne, by contrast, the plaintiff in the district court was a 

labor organization. As a labor organization, it did not have the option, available to an employer, 

to seek indirect judicial review of the Board’s action.” Goethe House N.Y., German Cultural Ctr. 

v. NLRB, 869 F.2d at 75, 80 (2d Cir. 1989). This is because, as a practical matter, few employers 

will file a refusal-to-bargain charge against a union. See Miami Newspaper Printing Pressmen's 

Union Local 46 v. McCulloch, 322 F.2d 993, 997 n. 7 (D.C.Cir.1963). In addition, a union risks 

losing employee support if it refuses to bargain, especially in the initial period after certification.

In light of all this, the D.C. Circuit has explained that “the Leedom v. Kyne remedy was 

not devised for the benefit of an employer.” Id. (citing Atlas Life Ins. Co. v. Leedom, 284 F.2d 

231 (D.C. Cir. 1960)). “Indeed, the District of Columbia Circuit has opined that had the 

aggrieved party in Kyne been an employer and thus able to seek indirect judicial review, the 

Supreme Court probably would have held that the district court lacked jurisdiction over the 

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case.” Goethe House, 869 F.2d at 80 (citing Hartz Mountain, 727 F.2d at 1312 n.2). 

Accordingly, courts within and outside the Sixth Circuit have repeatedly and consistently 

dismissed lawsuits like this one in which an employer seeks premature judicial review of an 

NLRB representation case. See, e.g., id.; Blue Cross & Blue Shield, 609 F.2d at 245 & n.4; Bd. of 

Trustees of Mem’l Hosp. of Fremont County, Wyo. v. NLRB, 523 F.2d 845, 846 (10th Cir. 1975)

(reversing a district court that had erroneously enjoined a representation election “on the ground 

that the employer was exempt from coverage by the National Labor Relations Act”); McCulloch 

v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917-18 (D.C. Cir. 1968).

The fact that the Tribe has raised an argument with constitutional overtones (PI Mem. at 

24; Compl. ¶¶ 120, 123) does not diminish the availability of meaningful and adequate judicial 

review. In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), the Supreme Court 

examined the various provisions of the NLRA, including the ones supplying judicial review. The 

Court concluded: “Upon that review 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 by the court.” Id. at 47 (emphasis added). Indeed, the Court relied on this 

conclusion the very next year in rejecting an employer’s impermissible attempt to seek district 

court review of its constitutional argument before an NLRB administrative hearing had 

commenced. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49-50 (1938). Other 

courts have likewise refused to exempt constitutional arguments from the NLRA’s prescribed 

review procedure, which is fully capable of resolving such matters. This is so even when 

plaintiffs claim that the NLRB proceeding itself violates the Constitution. See, e.g., AMERCO v. 

NLRB, 458 F.3d 883, 887-88 (9th Cir. 2006); Blue Cross & Blue Shield, 609 F.2d at 244-45; J.P. 

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Stevens Employees Educ. Comm. v. NLRB, 582 F.2d 326, 329 (4th Cir. 1978); Bokat v. 

Tidewater Equip. Co., 363 F.2d 667, 672-73 (5th Cir. 1966).6

Citing its experience in prior representation cases, the Tribe challenges the adequacy of 

the NLRA’s indirect review procedure. In particular, the Tribe complains that because no union 

has ever prevailed in an election conducted by the Board among its employees, the Tribe has not 

yet had a chance to follow the indirect review procedure established by Sections 9(d) and 10(e) 

and (f). This may be so, but it is immaterial. If the Union prevails in the 2015 representation 

case, the Tribe—as the employer—will undoubtedly have means within its control to secure 

judicial review. Moreover, as the Tribe itself repeatedly emphasizes, the Sixth Circuit is 

currently reviewing the applicability of the NLRA to the Tribe in a pending unfair labor practice 

case. Thus, regardless of whether the Union is certified in the representation case, the Tribe 

cannot sensibly complain that its jurisdictional arguments will evade judicial review.

In short, the Tribe has a meaningful and fully adequate opportunity for judicial review. 

The Act, as authoritatively interpreted by over seventy years of precedent, provides a way 

forward. The Tribe cannot create its own nonstatutory path to that destination. On this basis 

alone, Kyne jurisdiction does not lie.

2. Jurisdiction is not available under Leedom v. Kyne because the Tribe has 

not shown that the NLRB has violated a clear statutory command.

Not only has the Tribe failed to show that it has no meaningful and adequate opportunity 

to vindicate its rights, it has also not shown that the Board has violated a clear and mandatory 

6 The very cases that the Tribe relies upon exemplify these points. For instance, in Kindred 

Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), the employer did not 

challenge the Board’s election rulings by filing a district court lawsuit, like the Tribe has done 

here. Instead, the employer followed the statutory procedure and refused to bargain with the 

certified union, thus permitting the employer to obtain judicial review of its election objections at 

the conclusion of the ensuing unfair labor practice case. Id. at 559.

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provision of the NLRA. In Hartz Mountain, where an employer relied on Kyne in an 

unsuccessful attempt to establish district court jurisdiction, the D.C. Circuit emphasized—

literally, using italics—that “any colorable support for the Board’s ruling should be treated as a 

jurisdictional defect dictating dismissal.’” 727 F.2d at 1313 (quoting Gorman, supra, at 64-65). 

This standard prevents district courts from exercising jurisdiction over an NLRB action or order 

if the Agency can muster any nonfrivolous defense in support.

Here, the Board’s reasons for proceeding in the face of the Tribe’s jurisdictional 

objections easily pass this test. As this Court has previously observed, the term “‘Indian tribe’ is 

not among the entities expressly ‘exempted with careful particularity” from the NLRA’s

definition of “employer.” Saginaw Chippewa Indian Tribe of Mich., 838 F. Supp. 2d at 602 

(quoting Little River Band of Ottawa Indians v. NLRB, 747 F. Supp. 2d 872, 885 (W.D. Mich. 

2010)); see 29 U.S.C. § 152(2). Further, as this Court has additionally noted, “it is not obvious 

that the canons [of federal Indian law] . . . mandate a particular conclusion,” on the jurisdictional 

question the Tribe raises. Id. at 607 n.1. The Board has previously applied a widely accepted 

legal test to evaluate its jurisdiction over tribal casinos, and those decisions have been enforced 

by courts of appeals. See, e.g., Little River Band of Ottawa Indians v. NLRB, --- F.3d ----, 2015 

WL 3556005 (6th Cir. June 9, 2015); San Manuel Indian Bingo & Casino, 475 F.3d 1306 (D.C. 

Cir. 2007). At a minimum, the Board is entitled to apply this test to the Saginaw Tribe in the 

pending representation case. Thus, there is more than “colorable support” for the NLRB’s 

decision to continue processing the Union’s representation petition here. Hartz Mountain, 727 

F.2d at 1313 (emphasis removed).

Moreover, as previously noted, the Sixth Circuit just recently adopted the Coeur d’Alene

framework used by the Board to evaluate whether the Act applies to tribal enterprises. Little 

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River Band of Ottawa Indians v. NLRB, 2015 WL 3556005, at *12. This development only 

heightens the “colorable support” for the NLRB’s actions. At the same time, it undercuts the 

Tribe’s supposition, on the sole basis of cherry-picked oral argument excerpts (PI Mem. at 5-7), 

that the Sixth Circuit might rule in its favor on review of the Board’s Decision and Order in the 

2011 unfair labor practice case because the panel had “expressed skepticism with the Board’s 

request that the court follow . . . the Ninth Circuit’s Coeur d’Alene analysis.”7

D. The Tribe’s arguments to avoid the NLRA’s exhaustion requirement are 

unavailing.

The Tribe claims that it need not follow the NLRA’s indirect review process here 

because, unlike unfair labor practice cases decided pursuant to Section 10, “Section 9 

representation cases don’t have an express exhaustion requirement.” (PI Mem. at 24.) The 

Tribe’s simplistic gloss on the statute lacks support. As demonstrated above, see supra Part I-A, 

Section 9 representation cases are only reviewable when they are implicated by a subsequent 

unfair labor practice finding under Section 10. Section 10 “make[s] exhaustion a jurisdictional 

prerequisite.” Chevron Mining, Inc. v. NLRB, 684 F.3d 1318, 1329 (D.C. Cir. 2012). Thus, by 

channeling judicial review of Section 9 cases through the Section 10 procedure, Congress made 

clear its intent to require exhaustion in representation cases, subject only to the Kyne exception

noted above, which the Tribe does not satisfy here.

7 To be clear, this is not to suggest that the Saginaw Tribe will inevitably lose before the Sixth 

Circuit in the Tribe’s challenge to the Board’s Decision and Order arising from the 2011 unfair 

labor practice case. Unlike the Little River Band of Ottawa Indians, the Saginaw Tribe has relied 

on specific treaty language to resist the application of the NLRA to its operation of the Casino. 

See Soaring Eagle Casino & Resort, 359 NLRB No. 92, at *4-*5, *12-*13. The presence of 

treaties is a relevant factor in the Coeur d’Alene framework. See Little River Band of Ottawa 

Indians, 2015 WL 3556005, at *9. Of course, the Board reviewed those very treaties in the 

underlying Decision and Order and determined that they do not preclude application of the Act 

in this instance. Soaring Eagle Casino & Resort, 359 NLRB No. 92, at *12-*13. That conclusion 

has, at the very least, “colorable support.” Hartz Mountain, 727 F.2d at 1313 (emphasis 

removed).

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In any event, the Tribe’s nonexhaustion argument fails on its own terms. Relying on a 

Sixth Circuit case discussing exceptions to non-jurisdictional exhaustion, the Tribe claims that 

this Court has jurisdiction to grant the relief it seeks because it can show “(1) that requiring 

exhaustion will result in irreparable harm; (2) that the administrative remedy is wholly 

inadequate; or (3) that the administrative body is biased.” (PI Mem. at 22 (quoting Kentucky v. 

United States ex rel. Hagel, 759 F.3d 588, 599 (6th Cir. 2014)).

We have already addressed the second prong of the Tribe’s argument, demonstrating that 

the Tribe has an adequate administrative remedy, see supra Part I-C-1. The third prong of the 

Tribe’s argument warrants only a brief response because the only evidence of bias the Tribe sets 

forth is a series of unfavorable rulings from the Board and its delegatees. Such rulings “almost 

never constitute judicial bias.” Gale v. City of Tecumseh, 156 Fed. Appx. 801, 809 (6th Cir. 

2005); see also Houston v. Logan, 674 F.3d 613, 614 (6th Cir. 2012) (“Unfavorable rulings by a 

district court judge are almost never a sufficient basis upon which to infer bias . . . .”). Moreover, 

any allegation of systemic bias is undermined by the Tribe’s own acknowledgement that the 

Board recently declined to assert jurisdiction over a different Indian tribe’s operation of a casino 

on the basis of that tribe’s particular treaty. (See PI Mem. at 22 & n.76 (mentioning the Board’s 

decision in Chickasaw Nation, 362 NLRB No. 100 (June 4, 2015).).8

As discussed below, the remaining prong of the Tribe’s argument is also without merit 

because requiring exhaustion will not result in irreparable harm.

8 The Tribe’s allegation of agency bias is also in tension with the Tribe’s desire, as expressed its 

May 18th letter to the Region (see Compl. Ex. N), to gather and present new evidence in order to 

persuade the NLRB in the pending representation case that the NLRA does not apply to the 

Tribe’s operation of the Casino.

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II. Supreme Court precedent holds that participation in an administrative 

proceeding before the NLRB does not constitute irreparable harm.

As a matter of law, the Tribe is not harmed by participating in Board proceedings because 

the Board has no ability to require the Tribe to do anything without first obtaining circuit court 

enforcement of a final Board order in an unfair labor practice case. See Myers v. Bethlehem 

Shipbuilding Corp., 303 U.S. 41, 48 (1938); see also Detroit Newspaper Agency, 286 F.3d at

400; Little River Band of Ottawa Indians, 747 F. Supp. 2d at 889. 

The Tribe nonetheless argues that, in the absence of an injunction, the Tribe will suffer 

the irreparable injury of “litigat[ing] a single issue on two fronts – once before the Sixth Circuit, 

and once again before the Board.” (PI Mem. at 14.) Specifically, the Tribe complains of the need 

to “present new evidence” and “make a record” in the pending representation case. (Id.) The 

Tribe claims that this injury is intensified because the Board is “a tribunal that lacks jurisdiction 

over the Tribe.” (Id.) But the Supreme Court rejected a nearly identical argument over seventyfive years ago in Myers:

Obviously, the rules requiring exhaustion of the administrative remedy cannot be 

circumvented by asserting that the charge on which the complaint rests is groundless and 

that the mere holding of the prescribed administrative hearing would result in irreparable 

damage. Lawsuits also often prove to have been groundless; but no way has been 

discovered of relieving a defendant from the necessity of trial to establish the fact.

Id. at 51-52. The Court thus recognized that the sufferance of various harms—whether real or 

imagined, quantifiable or abstract—is an unavoidable consequence of any adjudicatory process

and does not generally warrant the issuance of injunctive relief by federal courts. See also Grutka

v. Barbour, 549 F.2d 5, 9-10 (7th Cir. 1977) (vacating, for lack of jurisdiction, a district court 

injunction prohibiting the Board from proceeding in representation and unfair labor practice 

cases involving parochial schools operated by the Catholic Church); Goethe House, 869 F.2d at 

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75 (reversing district court injunction prohibiting the Board from conducting a representation 

election, even though the employer was substantially regulated by the German government).

The Tribe further complains that participation in the representation proceeding will 

“force[ it] to divert valuable government resources toward litigation . . . instead of toward 

governmental programs like police, fire, and education.” It adds that this injury is “irreparable 

because the Tribe can never recover damages from the sovereign-immune Board.” (PI Mem. at 

15.) But “[m]ere litigation expense, even substantial and unrecoupable cost, does not constitute 

irreparable injury.” Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974).

Furthermore, the Tribe’s argument closely parallels one made by employers and rejected 

by the D.C. Circuit in Heller Brothers Co. v. Lind, 86 F.2d 862 (D.C. Cir. 1936) (per curiam). In 

that case, various employers sought injunctions to prevent the NLRB from conducting hearings 

and adjudications on the basis that the NLRA was unconstitutional in whole or in part.9 The 

employers argued that any activity undertaken by the purportedly unconstitutional Board would 

produce irreparable injury and that they had “no plain, adequate, or complete remedy at law.” Id.

at 863. The D.C. Circuit affirmed the district court’s refusal to issue the requested injunctions. 

Without addressing the constitutionality of the Act, the court concluded that “the attendance of 

officers and employees at hearings, the employment of counsel, and like matters” were simply 

“annoying incidents” and were “not enough of themselves to establish a case for equitable 

relief.” Id. The Court found it acceptable that any losses incurred by employers from 

participating in the Board’s proceedings would “have to be borne without redress” if the NLRA 

9 At the time, three courts of appeals had previously concluded that the NLRA was 

unconstitutional as applied to certain employers. See NLRB v. Friedman-Harry Marks Clothing 

Co., 85 F.2d 1 (2d Cir. 1936) (per curiam), rev’d, 301 U.S. 58 (1937); Fruehauf Trailer Co. v. 

NLRB, 85 F.2d 391 (6th Cir. 1936) (per curiam), rev’d, 301 U.S. 49 (1937); NLRB v. Jones & 

Laughlin Steel Corp., 83 F.2d 998 (5th Cir. 1936) (per curiam), rev’d, 301 U.S. 1 (1937).

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were subsequently held to be unconstitutional. Id. at 864. In words that still ring true today, the 

Court observed that “these things are incident to every sort of trial and are part of the social 

burden of living under government. They are not the irreparable damage as to which equity will 

interfere to prevent.” Id. Just as the harms alleged in Heller Brothers did not suffice to justify 

issuing an injunction, the harms alleged here by the Tribe do not justify its attempt to shortcircuit the NLRA’s statutory review process.10

III.The balance of the equities favors the NLRB. 

In addition to its failure to demonstrate likelihood of success or irreparable harm, the 

Tribe also cannot meet the other criteria necessary for a preliminary injunction – that the balance 

of equities tips in the movant's favor and that the injunction is in the public interest. As set forth 

above, the balance of equities factor is intertwined with the public interest consideration because 

the Tribe has brought suit against government officials acting in their official capacities. See 

Nken, 556 U.S. at 435. The Supreme Court has emphasized that “courts of equity should pay 

particular regard for the public consequences in employing the extraordinary remedy of 

injunction.” Winter, 555 U.S. at 24 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 

(1982)). Here, a consideration of the overall public interest and the balance of equities 

overwhelmingly weighs against granting the Tribe’s requested injunctive relief. 

The NLRB was created and empowered by Congress to resolve questions of 

representation and to remedy unlawful labor practices which would otherwise interfere with 

10 In a different section of its memorandum, the Tribe claims that “application of the Act 

necessarily abrogates” the Tribe’s treaty rights. (PI Mem. at 12). But the examples of purported 

abrogation the Tribe posits – i.e., “ordering the Tribe to cease and desist from following tribal 

law” and “requir[ing] the Tribe to allow an elected union into its reservation” – are not 

consequences that could possibly flow from the representation case. Rather, those things could 

only come about if the Board issued a final order so commanding the Tribe in a subsequent 

unfair labor practice case and a court of appeals enforced that order on review. See Myers, 303 

U.S. at 48.

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interstate commerce. See 29 U.S.C. §§ 151 & 160.11 Congress has explicitly determined that 

delays in the representation process should be avoided because they “ultimately could frustrate 

employees’ bargaining rights before the employees had an opportunity to exercise them.” Gold 

Coast Rest., 995 F.2d at 267 (citing Boire, 376 U.S. at 477-78); see also Bishop v. NLRB, 502 

F.2d 1024, 1027 (5th Cir. 1974) (“The underlying purpose of the Act is to maintain industrial 

peace, and to allow employers and unions to rush into federal district court at will to prevent or 

nullify certification elections would encourage dilatory tactics by dissatisfied parties and lead to 

industrial unrest.”) (internal citations omitted).

12 Indeed, as explained above, the indirect review 

of certifications was established because “Congress was concerned that the time required to 

process a direct appeal might cause the erosion of a union's support among bargaining unit 

employees.” Hartz Mountain, 727 F.2d at 1311. Accordingly, issuance of an injunction—even a 

“targeted, limited, temporary” one (PI Mem. at 24)—would harm the public, the Union, and the 

Tribe’s own Casino employees.

By contrast, the equities here do not favor the Tribe. First, it cannot show that it will 

suffer any cognizable harm if an injunction is denied because, as explained above, the statutory 

review scheme affords the Tribe with “an adequate opportunity to secure judicial protection 

against possible illegal action on the part of the Board.” Myers, 303 U.S. at 48. Second, the 

Tribe’s actions do not comport with principles of equity. As explained above, the Board has 

11 The Supreme Court has made clear that the primary congressional purpose of the NLRA is to 

protect the public interest. See, e.g., U.A.W. Local 283 v. Scofield, 382 U.S. 205, 220 (1965); 

Vaca v. Sipes, 386 U.S. 171, 182-83 n.8 (1967) (“The public interest in effectuating the polices 

of the federal labor laws, not the wrong done the individual employee, is always the Board’s 

principal concern in fashioning unfair labor practice remedies.”).

12 The “exceptional need for expedition” in representation cases is the reason why such 

proceedings are exempt from even the minimal requirements of the Administrative Procedure 

Act. Senate Comm. on the Judiciary, comparative print on the revision of S.7, 79th Cong., 1st 

Sess. 7 (1945); see 5 U.S.C. § 554(a)(6).

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sought to accommodate the interests of the Tribe. While Regional Director Morgan denied the 

Tribe’s request for an indefinite postponement of the representation hearing,13 she did grant the 

Tribe’s alternative request for a nearly four-week delay to June 15, 2015, based on the Tribe’s 

representation that it “c[ould] be prepared to move forward with this case on or after” that date. 

(Compl. Ex. N.) Yet, just one week before that hearing was scheduled to commence, the Tribe 

nonetheless filed this lawsuit and moved this Court for emergency injunctive relief, effectively 

forcing the NLRB to delay the hearing once again in order to adequately respond to the motion. 

Particularly in light of this Court’s 2011 decision dismissing the Tribe’s impermissible attempt to 

enjoin an administrative hearing for lack of subject-matter jurisdiction, see Saginaw Chippewa 

Tribe of Michigan, 838 F. Supp. 2d at 605, equity does not favor granting the Tribe emergency 

injunctive relief in these circumstances.

In short, an injunction would interfere with the Board’s procedures and jurisdiction,

contrary to congressional purposes. It would also harm the Union as well as the Tribe’s own 

Casino employees in the attempted exercise of rights provided by the NLRA. By contrast, in the 

absence of an injunction, the Tribe faces only ordinary submission to the Board’s representation 

process. In addition, the Tribe has acted inequitably. Therefore, the balance of equities favors the 

Board.

CONCLUSION

The Sixth Circuit has “emphasize[d] that neither the National Labor Relations Act itself, 

nor any authoritative legislative history, nor Leedom v. Kyne, supra, nor any other Supreme 

Court decision, either commands or authorizes the delay inherent in District Court review of 

interlocutory orders of the Board or its agents.” Blue Cross & Blue Shield, 609 F.2d at 244. To 

13 The Tribe did not request that the five-member Board review that denial. See 29 C.F.R. 

102.67(c).

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the contrary, long-settled precedent commands lower federal courts to scrupulously enforce the 

Act’s exhaustion principles by dismissing preemptive actions like this for lack of subject-matter 

jurisdiction. Accordingly, the Tribe’s attempt to interfere with the pending representation case by 

asking this Court for equitable relief in a case over which it lacks jurisdiction is both 

inappropriate and contrary to law. It follows that the Tribe’s motions for injunctive relief should 

be denied.

Respectfully submitted,

s/ Nancy E. Kessler Platt

NANCY E. KESSLER PLATT

Deputy Assistant General Counsel

(202) 273-2937

Nancy.Platt@nlrb.gov

KEVIN P. FLANAGAN

Supervisory Attorney

(202) 273-2938

Kevin.Flanagan@nlrb.gov

SARAH POSNER

Attorney

(202) 273-2904

Sarah.Posner@nlrb.gov

National Labor Relations Board

Contempt, Compliance, and

Special Litigation Branch

1099 14th Street, NW, Suite 10700

Washington, DC 20570

Date: June 25, 2015 Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on June 25, 2015, I electronically filed the foregoing paper with the 

Clerk of the Court using the ECF system which will send notification of such filing to the 

following:

Jessica S. Intermill

Hogen Adams PLLC

1935 W. County Rd. B2

Suite 460

St. Paul, MN 55113

651-842-9104

651-842-9101 (fax)

jintermill@hogenadams.com

William A. Szotkowski

Hogen Adams PLLC

1935 W. County Road B2

Suite 460

St. Paul, MN 55113

651-842-9100

651-842-9101 (fax)

bszotkowski@hogenadams.com

s/ Nancy E. Kessler Platt

NANCY E. KESSLER PLATT

Deputy Assistant General Counsel

(202) 273-2937

Nancy.Platt@nlrb.gov

1:15-cv-12077-TLL-PTM Doc # 17 Filed 06/25/15 Pg 26 of 26 Pg ID 648