United States, Department of Transportation, Federal Aviation Administration, Fort Worth, Texas (Agency) and National Air Traffic Controllers Association (Union)

[ v61 p834 ]

61 FLRA No. 166

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
FORT WORTH, TEXAS
(Agency)

and

NATIONAL AIR
TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

0-AR-4037

_____

ORDER DISMISSING EXCEPTIONS

September 29, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Diane Dunham Massey filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator ordered the grievant's removal converted to a written warning and the grievant reinstated with backpay and benefits. She also ruled that the grievant had substantially prevailed for purposes of a request for attorney fees.

      For the reasons that follow, we dismiss the Agency's exceptions for lack of jurisdiction under § 7122(a) of the Statute.

II.      Background and Arbitrator's Award

      The parties submitted to arbitration the issue of whether the removal of the grievant was for just cause as to promote the efficiency of the service. The Arbitrator determined that the removal was not for just cause as to promote the efficiency of the service. She ordered the removal converted to a written warning and the grievant reinstated with backpay and benefits. She also ruled that the grievant had substantially prevailed for purposes of a request for attorney fees.

III.      Positions of the Parties

      The Agency filed exceptions to the Arbitrator's ruling that the grievant had substantially prevailed for purposes of a request for attorney fees. The Agency contends that this ruling is premature and that the ruling is contrary to law because the grievant's representative is not an attorney. In opposition, the Union contends that the Authority lacks jurisdiction over the Agency's exceptions because the award as it pertains to attorney fees is inextricably intertwined with the grievant's removal, which is a matter covered under 5 U.S.C. § 7512. [n1]  Alternatively, the Union contends that the Agency fails to establish that the award is deficient.

IV.      Order to Show Cause

      The Authority directed the Agency to show cause why its exceptions should not be dismissed for lack of jurisdiction. In response, the Agency asserts that the issue of attorney fees is not intertwined with the issue of the grievant's removal. The Agency argues that the attorney fee issue presents the question of whether the grievant's representative is eligible for an award of attorney fees. Consequently, the Agency claims that the Authority has jurisdiction because this eligibility issue is severable and "is not tied to the outcome of the underlying grievance until the arbitrator or Authority finds that [the grievant's representative] is an attorney or a person otherwise legally qualified to receive attorney fees." Agency Response at 3.

V.      Analysis and Conclusions

      The Authority has uniformly dismissed exceptions to awards pertaining to attorney fees in connection with an award resolving a matter covered under § 7512. Consistent with this precedent, we dismiss the Agency's exceptions.

      Under § 7122(a) of the Statute, the Authority lacks jurisdiction to resolve exceptions to an award "relating to" a matter described in § 7121(f) of the Statute. [n2]  Matters described in § 7121(f) include adverse actions, such [ v61 p835 ] as removals, that are covered under § 7512 and are appealable to the Merit Systems Protection Board (the Board) and reviewable by the United States Court of Appeals for the Federal Circuit. See, e.g., United States Dep't of Commerce, Patent and Trademark Office, Arlington, Va., 61 FLRA 476, 477 (2006). In addition, § 7121(f) provides that 5 U.S.C. § 7703, which pertains to judicial review by the Federal Circuit, "shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board."

      The phrase "relating to" in § 7122(a) is not defined in the Statute. The Authority has held that the phrase "relating to" applies both to the matters described in § 7121(f) and to matters that are connected to the matters explicitly described in § 7121(f). See AFGE Local 2986, 51 FLRA 1549, 1553 (1996) (Member Armendariz dissenting as to other matters). Specifically, the Authority's position is that under § 7122(a), it lacks jurisdiction to resolve exceptions to an award relating to the pure § 7512 matter, as well as to an award relating to a matter that is inextricably intertwined with a § 7512 matter. See id. at 1555.

      The Authority has explained that by dismissing exceptions to awards relating to matters described in § 7121(f), as well as to the matters inextricably intertwined with them, it ensures consistency and uniformity of process and discourages forum shopping, as Congress intended. See id. at 1554. In addition, the Authority has noted that dismissing these exceptions also advances the desirable policy objective of avoiding the multiplicity of litigation over one claim that might result if aspects of the same claim were to be reviewed in more than one forum. See id.

      Consistent with the foregoing, the Authority has uniformly and repeatedly dismissed exceptions to awards pertaining to attorney fees in connection with an award relating to a matter explicitly described in § 7121(f). For example, in United States Dep't of Justice, Immigration and Naturalization Serv., Baltimore, Md., 34 FLRA 79 (1989), the Authority specifically rejected the Union's claim that the Authority had jurisdiction to resolve its exception that the arbitrator's denial of an award of attorney fees in connection with the arbitrator's mitigation of a 30-day suspension to a reprimand was deficient. The Authority ruled that "an award resolving a request for attorney fees which supplements an award relating to a matter described in § 7121(f) is not separate and distinct from the award resolving the § 7121(f) matter." Id. at 81; accord Overseas Educ. Ass'n, 46 FLRA 1145 (1993); United States Dep't of the Army, Army Air Def. Ctr., Fort Bliss, Tex., 35 FLRA 970 (1990).

      Moreover, in order to ensure consistency and uniformity of process and to avoid multiplicity of litigation, the Authority defers to jurisdictional determinations of the Federal Circuit. As relevant here, the Federal Circuit has uniformly and repeatedly ruled that awards pertaining to attorney fees in connection with an award over a matter covered under §§ 4303 or 7512 are judicially reviewable under §§ 7121(f) and 7703. See, e.g., Morrison v. Nat'l Science Found., 423 F.3d 1366 (Fed. Cir. 2005); Raney v. Fed. Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000). Accordingly, the Authority's approach to this issue is consistent with that of the Federal Circuit.

      Finally, the Agency has not established any reason for severing the issue of eligibility for an award of fees from the merits resolution of the request for fees. In our view, this would lead undesirably to even more multiplicity of litigation were the Authority to review the eligibility aspects of a request for attorney fees while the Federal Circuit reviewed the merits of the resolution of the request for fees.

      Accordingly, we dismiss the Agency's exceptions.

VI.      Order

      The Agency's exceptions are dismissed.



Footnote # 1