File 2: Opinion of Chairman Cabaniss

[ v60 p455 ]

Separate Opinion of Chairman Cabaniss:

      I write separately, not to express disagreement with the dismissal of this case, but with the analysis underlying the belief that this case is even properly before the Authority for resolution.

      Consistent with the court's holding in United States Dep't of the Treasury, United States Customs Serv. v. FLRA, 43 F.3d 682 (D.C. Cir. 1994), I question whether a defamation claim amounts to a grievance under our Statute (§ 7103(a)(9)) because the law of defamation does not appear "to have been issued for the very purpose of affecting the working conditions of employees-not one that merely incidentally does so." Id. at 689. The court also noted that "[t]he term `affecting working conditions,' [found in § 7103(a)(9)(C)(ii)] in turn, must have been thought to impose a real limitation on an arbitrator's authority." Id. If the grievance does not involve a law, rule, or regulation issued for the very purpose of affecting the working conditions of employees, then the grievance is "outside both the arbitrator's and the FLRA's jurisdiction." Id. And, regarding that jurisdictional question, "the Authority may question, sua sponte, whether it has subject matter jurisdiction to consider the merits of a dispute." United States Small Bus. Admin., Washington, D.C., 51 FLRA 413, 423 n.9 (1995) (citing to United States Dep't of the Army, Army Reserve Pers. Ctr., 34 FLRA 319 (1990)).

      I also have concerns about the pursuit of what appears to be a violation of state law through the negotiated grievance procedure/arbitration process. [*]  I am not aware of the defamation claim here being based on anything other than state law, and the initial defamation lawsuit was filed in state court. The relation between Federal and state law is governed by the Supremacy Clause of the United States Constitution, Article VI, clause 2, which provides that the laws of the United States "shall be the supreme law of the Land; . . . any Thing in the Constitution of or Laws of any State to the Contrary notwithstanding." Additionally, "[a] corollary to [the Supremacy Clause] is that the activities of the Federal Government are free from regulation by any state." Mayo v. United States, 319 U.S. 441, 445 (1943). Further, it is "well settled" that the activities of Federal instrumentalities are "shielded by the Supremacy Clause from direct state regulation unless Congress provides `clear and unambiguous' authorization for such regulation." Goodyear Atomic Corporation v. Miller, 486 U.S. 174, 180 (1988); see also McFalls v. OPM, 72 MSPR 252, 261 (1996) (the Merit Systems Protection