Accardi Limits at the NLRB: Sixth Circuit Holds 29 C.F.R. § 102.19(c) Does Not Restrict the General Counsel’s Unreviewable Pre‑Hearing Discretion to Withdraw Charges

Introduction

In Rieth-Riley Construction Co. v. Kerwin, the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of an employer’s collateral attack on prosecutorial decisions by the National Labor Relations Board’s (NLRB) leadership. The dispute arose out of a 2018 strike by Local 324 of the International Union of Operating Engineers at Rieth-Riley’s Michigan jobsites. After filing unfair labor practice (ULP) charges against the Union, Rieth-Riley obtained a partial victory before the NLRB’s Office of Appeals, which directed issuance of a complaint on multiple allegations. But following the change in administrations, the Acting General Counsel (GC) and the Regional Director withdrew nine of those allegations before any hearing was held.

Rieth-Riley sued in federal district court, arguing that (1) President Biden unlawfully removed former General Counsel Peter Robb and, therefore, Acting General Counsel Peter Sung Ohr lacked authority; and (2) the Regional Director and Acting GC violated the NLRB’s procedural rules—specifically 29 C.F.R. § 102.19(c)—by effectively reconsidering an Office of Appeals decision outside the regulation’s 14-day window. The district court dismissed, and the Sixth Circuit affirmed. The court held that its prior merits decision in Rieth-Riley Construction Co. v. NLRB (Rieth-Riley I), 114 F.4th 519 (6th Cir. 2024), foreclosed the removal claim, and that the Accardi-based procedural claim failed as a matter of law because § 102.19(c) does not constrain the GC’s unreviewable pre-hearing prosecutorial discretion.

Summary of the Opinion

Removal-of-the-GC claim foreclosed: The panel held that Rieth-Riley’s challenge to President Biden’s removal of General Counsel Robb and to the authority of Acting GC Ohr is foreclosed by binding circuit precedent in Rieth-Riley I, which upheld the removal and actions taken thereafter. En banc review was denied, and the Supreme Court denied certiorari.
Prosecutorial discretion controls pre-hearing withdrawals: The court reaffirmed that the GC has “final authority” over the investigation, issuance, and prosecution of ULP complaints under Section 3(d) of the NLRA (29 U.S.C. § 153(d)) and that decisions to file or withdraw complaints before a hearing are “prosecutorial” and generally unreviewable (citing NLRB v. UFCW Local 23, 484 U.S. 112 (1987), and Heckler v. Chaney, 470 U.S. 821 (1985)).
Accardi theory recognized but rejected: While acknowledging that an Accardi claim may lie where an agency violates its own binding rules, the court held that § 102.19(c) merely sets a deadline for parties to seek reconsideration and does not strip the GC of discretion to revisit prosecutorial decisions before a hearing. Accordingly, there was no violation of agency rules to support judicial review.
Affirmance on any ground: Even assuming the Accardi claim was nominally cognizable, the panel affirmed on the merits because the regulation invoked does not constrain the GC’s authority.

Factual and Procedural Background

After Local 324 refused to bargain and then struck Rieth-Riley’s Michigan operations in 2018, Rieth-Riley filed ULP charges alleging picket line misconduct. In May 2020, Region 7’s Regional Director largely rejected the allegations, sustaining only one relating to a physical assault. On appeal, the NLRB’s Office of Appeals (under GC Peter Robb) partly reversed, concluding that the Union had arguably violated Section 8(b)(1)(A) by blocking ingress/egress, impairing visibility, and damaging property. It directed that—absent settlement—the Regional Director issue a complaint and that an ALJ hold a hearing.

The Region issued a complaint with ten allegations (the previously sustained assault allegation plus nine new allegations). Before a hearing occurred, President Biden removed GC Robb and appointed Peter Sung Ohr as Acting GC. The Union then asked the Region to withdraw the charges in the complaint. The Regional Director withdrew the nine added allegations, citing the Acting GC’s prosecutorial discretion and the underlying investigatory record, leaving only the initial assault allegation. The Office of Appeals denied Rieth-Riley’s appeal, again invoking the GC’s final authority under Section 3(d) and stating that the evidence was insufficient to support the withdrawn allegations.

Rieth-Riley filed this separate district court action against the Regional Director and the Acting GC, claiming (1) the Biden administration’s removal of Robb was unlawful, and (2) the withdrawal violated NLRB rules—primarily § 102.19(c)’s 14-day reconsideration mechanism. The district court dismissed. Meanwhile, on the remaining assault allegation, the NLRB and, on review, the Sixth Circuit in Rieth-Riley I rejected Rieth-Riley’s removal challenge and enforced the Board’s order. En banc rehearing and certiorari were denied. In this case, the Sixth Circuit now affirms the district court’s dismissal.

Analysis

Precedents Cited and Their Role

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975): Cited to explain that Regional Directors act under the GC’s delegation to investigate and decide in the first instance whether to issue a complaint, and that the Office of Appeals provides an internal check on regional decisions.
Heckler v. Chaney, 470 U.S. 821 (1985): Establishes the general rule that agency decisions not to prosecute or enforce are presumptively unreviewable as committed to agency discretion.
NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112 (1987): The cornerstone authority distinguishing the GC’s “prosecutorial” role from the Board’s “adjudicatory” role and holding that pre-hearing decisions to file, dismiss, or settle are prosecutorial and unreviewable.
Mayer v. Ordman, 391 F.2d 889 (6th Cir. 1968) (per curiam); Tensing v. NLRB, 519 F.2d 365 (6th Cir. 1975) (per curiam): Sixth Circuit authority confirming that district courts may not review the GC’s decisions whether to investigate or issue a complaint.
U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954): The foundation of the “Accardi doctrine,” i.e., agencies must follow their own regulations where those regulations confer procedural protections or limits.
Battle v. FAA, 393 F.3d 1330 (D.C. Cir. 2005): Quoted to describe Accardi’s scope.
NLRB v. O’Neill, 965 F.2d 1522 (9th Cir. 1992): Supports the proposition that failure by a party to invoke reconsideration does not bar the GC or Regional Director from revisiting a complaint sua sponte.
Rieth-Riley Constr. Co. v. NLRB (Rieth-Riley I), 114 F.4th 519 (6th Cir. 2024): Binding circuit precedent upholding President Biden’s removal of GC Robb and the validity of subsequent actions by Acting GC Ohr; forecloses the removal challenge here.
Wright v. Spaulding, 939 F.3d 695 (6th Cir. 2019): Reinforces that a later panel is bound by prior published circuit precedent.
Angel v. Kentucky, 314 F.3d 262 (6th Cir. 2002): Allows affirmance on any ground supported by the record, used here to reject the Accardi claim on the merits even if arguably reviewable.

Legal Reasoning

The Sixth Circuit’s reasoning proceeds in two steps.

Removal challenge is foreclosed. The court quickly disposes of the argument that President Biden unlawfully removed GC Robb and that Acting GC Ohr’s actions were ultra vires. Rieth-Riley I already decided the issue, and the panel is bound by that holding (Wright v. Spaulding). The denial of en banc review and certiorari cements that result for this litigant.
Accardi-based procedural challenge fails as a matter of law.
- The court recognizes that an Accardi claim can, in principle, provide a vehicle to challenge agency action that violates a binding internal rule. The court even posits a hypothetical regulation that would strip the GC of prosecutorial discretion after the Office of Appeals directs issuance of a complaint—such a rule, if adopted and violated, could be enforceable in court under Accardi.
- But § 102.19(c) is not that rule. By its text, it is a deadline that governs when a party may move the Office of Appeals for reconsideration—“A motion for reconsideration of the decision must be filed within 14 days of service.” It does not limit the GC’s own authority to reassess the merits pre-hearing.
- Under Section 3(d) of the NLRA (29 U.S.C. § 153(d)), the GC has “final authority” over the investigation, issuance, and prosecution of ULP complaints. The Supreme Court has squarely held that, until a hearing begins, settlement and dismissal determinations are prosecutorial and unreviewable (Local 23). The court emphasizes the symmetry: the GC’s discretion to file necessarily includes discretion to withdraw before adjudication commences.
- Here, the nine allegations were withdrawn before any hearing, and the Regional Director expressly invoked the Acting GC’s prosecutorial discretion and the investigative record. The Office of Appeals then affirmed, both on discretion and on evidentiary sufficiency.
- Because § 102.19(c) does not cabin the GC’s discretion—and because no hearing had begun—the Accardi theory collapses. Even if the Union’s request prompted the Region’s action, nothing in statute, regulation, or case law prevented the GC (or the Region by delegation) from re-evaluating and withdrawing allegations at that stage. If anything was amiss, the proper internal check was a renewed appeal to the Office of Appeals, which occurred and confirmed the withdrawal.
- Given Chaney and Local 23, the court could have ended the analysis at nonreviewability. Instead, it assumed arguendo that Rieth-Riley had stated an Accardi claim and affirmed on the independent merits ground that no rule was violated (Angel v. Kentucky).

Impact and Implications

Reaffirmation of GC primacy pre-hearing: The decision strengthens the already formidable shield around the NLRB General Counsel’s pre-hearing charging and prosecutorial decisions. Parties cannot use § 102.19(c)’s reconsideration window to bootstrap judicial review of a pre-hearing withdrawal.
Accardi pathway narrowed in labor cases: The opinion clarifies that an Accardi challenge will not succeed unless the cited regulation genuinely limits the GC’s discretion. Mere procedural mechanisms governing party motions do not suffice. To state a viable Accardi claim, a litigant would need a rule that expressly binds the GC’s charging/prosecution choices.
Practical effects for employers and unions:
- Even after the Office of Appeals directs “issue a complaint” and anticipates a hearing “absent settlement,” the GC remains free to reassess and withdraw allegations until the hearing begins. Parties should not rely on Office of Appeals remands as locking in the complaint’s scope.
- Challenges to the GC’s charging posture should be pursued, if at all, through internal NLRB mechanisms (e.g., appeal to the Office of Appeals) rather than collateral district court litigation.
Removal challenges in the Sixth Circuit: Rieth-Riley I remains controlling in the Sixth Circuit on the lawfulness of President Biden’s removal of GC Robb and the authority of Acting GC Ohr. That issue is closed in this circuit for similarly situated litigants.
Nonprecedential but instructive: Although this opinion is not recommended for publication, it provides a precise application of Local 23 and Chaney to the specific question whether § 102.19(c) curtails GC discretion. Practitioners should assume the same reasoning will be followed in the circuit.

Complex Concepts Simplified

NLRB General Counsel (GC): The GC decides whether to issue unfair labor practice complaints and prosecutes them before the Board. This role is “prosecutorial,” much like a prosecutor in criminal cases. Under Section 3(d), the GC has “final authority” over investigation, complaint issuance, and prosecution.
Regional Director (RD): Acts under the GC’s delegation. The RD investigates charges and can issue or withdraw complaints; those decisions can be internally appealed to the GC’s Office of Appeals.
Board vs. GC: The Board adjudicates; the GC prosecutes. The dividing line often used is the start of the hearing. Before a hearing, decisions to file, settle, or withdraw are generally GC’s prosecutorial calls and are not reviewable in court.
Heckler v. Chaney principle: Courts presume agency decisions not to enforce (or to withdraw enforcement) are committed to agency discretion and are therefore not subject to judicial review.
Accardi doctrine: Agencies must follow their own binding rules. An Accardi claim is viable only if the agency disregarded a regulation that actually constrained its discretion in a way that prejudiced the challenger. A deadline for party motions (like § 102.19(c)) does not, by itself, limit the GC’s independent discretion.
29 C.F.R. § 102.19(c): Sets a 14-day deadline for a party to move the Office of Appeals to reconsider its decision. It does not bar the GC or RD from revisiting the merits of a complaint’s allegations on their own initiative before a hearing.

Conclusion

The Sixth Circuit’s decision delivers two clear messages. First, challenges to President Biden’s removal of NLRB General Counsel Robb are foreclosed in this circuit by Rieth-Riley I. Second, and more broadly significant for NLRB practice, the court underscores that the General Counsel’s pre-hearing charging decisions—including withdrawals—are unreviewable exercises of prosecutorial discretion. Attempts to repackage disagreements with those decisions as Accardi claims will fail unless the underlying regulation truly cabins the GC’s authority. Section 102.19(c) does not do so; it governs only when parties may seek reconsideration, not the GC’s ability to reassess the case.

For practitioners, the opinion confirms that the last word on whether to pursue particular ULP allegations before a hearing lies with the GC. Internal NLRB processes—rather than collateral judicial suits—remain the appropriate forum for contesting those choices. While nonprecedential, this decision maps a clear, practical boundary: unless and until the Board adopts a regulation that expressly binds the GC’s prosecutorial discretion post-appeal, courts in the Sixth Circuit will not entertain Accardi challenges to pre-hearing withdrawals.