Patent Office Professional Association v. FLRA, 128 F.3d 751 (D.C. Cir. 1997), cert. denied, 523 U.S. 1006 (1998).


ORAL ARGUMENT SCHEDULED FOR OCTOBER 17, 1997

No. 96-1277

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

PATENT OFFICE PROFESSIONAL ASSOCIATION,
                    Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                    Respondent
_______________________________



ON PETITION FOR REVIEW OF A DETERMINATION BY
THE GENERAL COUNSEL OF THE
FEDERAL LABOR RELATIONS AUTHORITY
NOT TO ISSUE AN UNFAIR LABOR PRACTICE COMPLAINT




BRIEF FOR THE GENERAL COUNSEL OF
THE FEDERAL LABOR RELATIONS AUTHORITY


            DAVID M. SMITH
              Solicitor

            WILLIAM R. TOBEY
              Attorney

            JAMES F. BLANDFORD
              Attorney


            Federal Labor Relations Authority
            607 14th Street, N.W.
            Washington, D.C.  20424
            (202) 482-6620




ORAL ARGUMENT SCHEDULED FOR OCTOBER 17, 1997

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES


A.  Parties and amici
    Appearing below in the administrative proceeding
    before the Federal Labor Relations Authority's General Counsel were the U.S.
    Patent and Trademark Office and the Patent Office Professional Association.
    The Patent Office Professional Association is the petitioner in this court
    proceeding; the Authority is the respondent.

B.  Rulings under review
    The ruling under review in this case is a determination of the
    Authority's General Counsel not to issue an unfair labor practice
    complaint in U.S. Patent & Trademark Office, Case No. WA-CA-50352 on
    June 13, 1996.

C.  Related Cases
    This case has not previously been before this Court or any other court.
    Counsel for the Authority is unaware of any cases pending before this
    Court which are related to this case within the meaning of Local Rule
    28(a)(1)(C).




TABLE OF CONTENTS

STATEMENT OF JURISDICTION  1

STATEMENT OF THE ISSUES  2

STATEMENT OF THE CASE  2

I.  Nature of the case  2

II.  Statement of The Facts  3

A.  Background  3

1.  Negotiations in the early 1980s and the first
arbitration decision  4

2.  The 1988 negotiations, the second arbitration
award, and related proceedings  5

B.  The current dispute  7

1.  The facts  7

2.  The General Counsel's determination not to
issue an unfair labor practice complaint  7

STANDARD OF REVIEW  8

SUMMARY OF ARGUMENT  9

ARGUMENT  11

I.  THIS COURT IS WITHOUT SUBJECT MATTER JURISDICTION
UNDER SECTION 7123 OF THE STATUTE TO REVIEW THE
GENERAL COUNSEL'S DETERMINATION NOT TO ISSUE A ULP
COMPLAINT IN THE INSTANT CASE  11

A.  This Court's decision in Turgeon, as well as
similar decisions by other courts, show that
Congress intended that determinations of the
General Counsel not to issue ULP complaints are unreviewable  12

B.  The language and legislative history of the
Statute support application of the rule of
nonreviewability of General Counsel decisions
not to issue a complaint in this case  13

1.  Language of the Statute  13

2.  Legislative history  14

C.  The similarity between the Statute and the NLRA,
and the cases interpreting both statutes, further
support the FLRA General Counsel's final,
unreviewable discretion not to issue a ULP
complaint in this case  15

D.  Congress' intent to prohibit review of General
Counsel ULP determinations is purposeful and
unqualified  17

E.  Nothing in this case warrants an exception to the
rule in established in Turgeon  18

1.  Congress intended to prohibit judicial
review of General Counsel prosecutorial
determinations, not merely create a rebuttable
presumption against judicial review  19

2.  POPA fails to establish that the General
Counsel consciously and expressly adopted a
general policy so extreme as to amount to an
abdication of statutory responsibility  22

II.  ASSUMING, FOR THE SAKE OF ARGUMENT, THAT THE COURT
HAS JURISDICTION, THE GENERAL COUNSEL PROPERLY
DETERMINED THAT THERE WAS INSUFFICIENT EVIDENCE OF A
VIOLATION OF THE STATUTE TO WARRANT THE ISSUANCE OF A
ULP COMPLAINT  26

A.  The General Counsel reasonably concluded that
PTO was not obligated to implement POPA's proposed
Article 19 because no agreement had been reached  26

B.  POPA's other contentions are without merit  28

1.  Silence by PTO does not create a
"constructive" agreement with respect
to Article 19  28

2.  This Court did not order the parties to
implement a collective bargaining agreement  29

3.  The prospect of additional bargaining does
not justify reversing the General Counsel's
determination  30

CONCLUSION  31



ADDENDUM

Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994) and
other pertinent regulation    A-1



TABLE OF AUTHORITIES

American Fed'n of Gov't Employees, Local 1749 v. FLRA,
    842 F.2d 102 (5th Cir. 1988)  12, 13, 16

Associated Builders and Contractors, Inc. v. Irving,
    610 F.2d 1221 (4th Cir. 1979), cert. denied, 446 U.S. 965
    (1980)  16

Baker v. IATSE, 691 F.2d 1291 (9th Cir. 1982)  16

*Beverly Health and Rehab. Service v. Feinstein,
  103 F.3d 151 (D.C. Cir. 1996), petition for cert. filed,
  65 U.S.L.W. 3826 (U.S. June 2, 1997)  passim

Bishop v. NLRB, 502 F.2d 1024 (5th Cir. 1974)  25

Columbia Power Trades Council v. United States Department
    of Energy, 671 F.2d 325 (9th Cir. 1982)   14

Dunn v. Retail Clerks International Assn, 307 F.2d 285
    (6th Cir. 1962)  16

Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988)  22, 25

*Heckler v. Chaney, 470 U.S. 821 (1985)  passim

International Union, United Automobile, Aerospace &
    Agricultural Implement Workers  v. Brock, 783 F.2d 237
    (D.C. Cir. 1986)  6, 22, 23

Leedom v. Kyne, 358 U.S. 184 (1958)  22

Martinez v. Smith, 768 F.2d 479 (1st Cir. 1985)  12

Mayer v. Ordman, 391 F.2d 889 (6th Cir.), cert. denied,
    393 U.S. 925 (1968)  16

Montana Air Chapter No. 29, Association of Civilian
    Technicians, Inc. v. FLRA, 632 F. Supp. 643
    (D. Mont. 1986)  20

Montana Air Chapter No. 29, Association of Civilian
    Technicians, Inc. v. FLRA, 898 F.2d 753
    (9th Cir. 1990)  19, 20, 22, 23

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975)  16

*NLRB v. United Food & Commercial Workers Union,
    484 U.S. 112 (1987)  13, 17, 21

*Patent Office Professional Association v. FLRA,
    26 F.3d 1148 (D.C. Cir. 1994)  6, 26, 29

Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078
    (D.C. Cir. 1991)  8

*Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982)  passim

U.S. Department of Justice v. FLRA, 981 F.2d 1339
    (D.C. Cir. 1993)  22

Vaca v. Sipes, 386 U.S. 171 (1967)  13, 15

Warren v. Local 1759, AFGE, 764 F.2d 1395 (11th Cir.),
    cert. denied, 474 U.S. 1006 (1985)  13



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

Department of the Interior, Nat'l Park Serv., Colonial
    Nat'l Historical Park, Yorktown, Virginia, 20 FLRA 537
    (1985), aff'd sub nom. National Ass'n of Gov't Employees,
    Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986)  27

Interpretation and Guidance, 15 FLRA 564 (1984),
    affd sub nom. American Federation of Government
    Employees, AFL-CIO v. FLRA, 778 F.2d 850
    (D.C. Cir. 1985)  6

National Treasury Employees Union, Chapter 251 and U.S.
    Department of the Treasury, IRS, Washington, D.C.,
    40 FLRA 985 (1991)  27, 28, 30

Patent Office Professional Association and Patent and
    Trademark Office, Department of Commerce, 25 FLRA 384
    (1987), aff'd, 868 F.2d 458 (D.C. Cir. 1988)  4, 5

Patent Office Professional Association and Patent and
    Trademark Office, Department of Commerce, 29 FLRA 1389
    (1987), aff'd, 873 F.2d 1485 (D.C. Cir. 1989)  5

Patent Office Professional Association and U.S. Department
    of Commerce, Patent and Trademark Office, 41 FLRA 795
    (1991)  26

*Patent Office Professional Association and United States
    Department of Commerce, Patent and Trademark Office,
    Washington, D.C., 47 FLRA 10 (1993), aff'd in part and
    rev'd in part, 26 F.3d 1148 (D.C. Cir. 1994)  passim

U.S. Dep't of the Navy, Portsmouth Naval Shipyard,
    Portsmouth, NH, 44 FLRA 205 (1992)  28



FEDERAL STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994)  1
  5 U.S.C. § 7104(f)(2)(A)  2
  5 U.S.C. § 7104(f)(2)(B)  2
  5 U.S.C. § 7105(a)(2)(E)  6
  5 U.S.C. § 7105(a)(2)(G)  13
  5 U.S.C. § 7114(b)(5)   28
  5 U.S.C. § 7114(c)  6, 26, 27
  5 U.S.C. § 7114(c)(2)  5
  5 U.S.C. § 7116(a)(1)  2, 7
  5 U.S.C. § 7116(a)(2)  2, 7
  5 U.S.C. § 7116(a)(5)  2, 7
  5 U.S.C. § 7116(a)(6)  2, 7
  5 U.S.C. § 7116(a)(8)  2, 7
  5 U.S.C. § 7117  6
  5 U.S.C. § 7118(a)(6)-(8)  13
  5 U.S.C. § 7119  4
  5 U.S.C. § 7122  22
* 5 U.S.C. § 7123  passim
* 5 U.S.C. § 7123(a)  14

  Administrative Procedure Act, 5 U.S.C. §§ 551-59  11, 17

  5 U.S.C. §§ 701-706  11, 17
  5 U.S.C. § 701(a)(1)  17, 21
  5 U.S.C. § 701(a)(2)  21
  5 U.S.C. § 704  17
  29 U.S.C. § 151  15
  29 U.S.C. § 153(d)  15
  29 U.S.C. § 160(e)  15
  29 U.S.C. § 160(f)  15



CODE OF FEDERAL REGULATIONS

  5 C.F.R. § 2423.10(c)  8
  5 C.F.R. Part 2424  6



LEGISLATIVE HISTORY

H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 41 (1978)  14

S. Rep. No. 969, 95th Cong., 2d Sess. 102, reprinted in
    1978 U.S.C.C.A.N. 2723  14


*Cases or authorities chiefly relied upon are marked by asterisks.



GLOSSARY

AFGE    American Fed'n of Gov't Employees, Local 1749
Local 1749  v. FLRA, 842 F.2d 102 (5th Cir. 1988)

APA    Administrative Procedure Act

Beverly Health  Beverly Health and Rehab. Serv. V. Feinstein,
103 F.3d 151 (D.C. Cir. 1996)

Chaney  Heckler v. Chaney, 470 U.S. 821 (1985)

FLRA    Federal Labor Relations Authority

Food &  NLRB v. United Food & Commercial Workers Union,
Com'l Wkrs  484 U.S. 112 (1987)

Montana Air  Montana Air Chapter No. 29, Association of
Civilian Technicians v. FLRA, 898 F.2d 753 (9th Cir. 1990

NLRA    National Labor Relations Act

NLRB    National Labor Relations Board

POPA    Patent Office Professional Association and United
States Department of Commerce, Patent and Trademark Office,
Washington, D.C., 47 FLRA 10 (1993)

POPA v. FLRA  Patent Office Professional Ass'n v. FLRA,
26 F3d 1148 (D.C. Cir. 1994)

PTO    Patent and Trademark Office

Statute  Federal Service Labor-Management Relations Statute,
5 U.S.C. §§7101-7135 (1996)

Turgeon  Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982)

ULP    unfair labor practice





ORAL ARGUMENT SCHEDULED FOR OCTOBER 17, 1997

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-1277

_______________________________

PATENT OFFICE PROFESSIONAL ASSOCIATION,
                  Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                  Respondent
_______________________________



ON PETITION FOR REVIEW OF A DETERMINATION BY
THE GENERAL COUNSEL OF THE
FEDERAL LABOR RELATIONS AUTHORITY
NOT TO ISSUE AN UNFAIR LABOR PRACTICE COMPLAINT




BRIEF FOR THE GENERAL COUNSEL OF
THE FEDERAL LABOR RELATIONS AUTHORITY



STATEMENT OF JURISDICTION

  The administrative action that is the subject of the petition is a
  determination by the General Counsel of the Federal Labor Relations
  Authority ("FLRA") not to issue an unfair labor practice ("ULP") complaint
  under the provisions of the Federal Service Labor-Management Relations
  Statute, 5 U.S.C. §§ 7101-7135 (1994) ("Statute").[1]  The General Counsel
  issued his determination in U.S. Patent and Trademark Office, No. WA-
  CA-50352 on June 13, 1996.
  This Court lacks subject matter jurisdiction under section 7123 of Statute
  to review the General Counsel's determination.  See, e.g., Turgeon v.
  FLRA, 677 F.2d 937, 940 (D.C. Cir. 1982) ("Turgeon").

STATEMENT OF THE ISSUES

  1.  Whether this Court has subject matter jurisdiction under section 7123 of
  the Statute to review the General Counsel's determination not to issue a ULP
  complaint in the instant case.
  2.  Assuming, for the sake of argument, that the Court has jurisdiction,
  whether the General Counsel properly determined that there was insufficient
  evidence of a violation of the Statute to warrant the issuance of a ULP
  complaint.

STATEMENT OF THE CASE

I.  Nature of the Case
  This case arises from the determination of the FLRA's General Counsel,
  pursuant to his authority under section 7104(f)(2)(A) and (B) of the
  Statute, not to issue a ULP complaint based on a charge filed by the Patent
  Office Professional Association ("POPA").
  POPA charged that the United States Patent and Trademark Office (PTO) had
  violated section 7116(a)(1), (2), (5), (6), and (8) of the Statute by
  failing to execute and implement portions of a collective bargaining
  agreement imposed by an interest arbitrator.  After investigation of POPA's
  charge, the FLRA's Washington Regional Director concluded that issuance of a
  complaint was not warranted.  The FLRA's General Counsel subsequently denied
  POPA's appeal of the Regional Director's determination.  POPA then filed the
  instant petition in this Court.
  The FLRA moved to dismiss the petition for review on the ground that the
  Court lacks subject matter jurisdiction under section 7123 of the Statute.
  POPA opposed the FLRA's motion and the FLRA replied.  By order filed on
  March 31, 1997, the Court referred the motion to dismiss to the merits panel
  to which the petition for review was assigned.  The Court's order also
  directed the parties "to include in their briefs the arguments raised in the
  motion to dismiss[.]" (Court's Order filed March 31, 1997).
II.  Statement of The Facts
  A.  Background
  The case arises from events that date back to 1981, concerning negotiations
  between the POPA and PTO over PTO's performance appraisal plan.  Aspects of
  these protracted negotiations have previously been the subject of
  proceedings before the FLRA, the Federal Service Impasses Panel ("Panel"),
  an interest arbitrator, and this Court.  To assist the Court in
  understanding the context in which the instant case arises, a brief history
  of these events is provided.[2]
    1.  Negotiations in the early 1980s and the first arbitration decision
  After beginning negotiations on performance plans in 1981, POPA requested
  the assistance of the Panel, but the Panel took no action and ordered the
  parties to resume negotiations.  (JA at 273).[3]
  The parties resumed negotiations on the performance appraisal system during
  1984 and 1985, as part of their negotiations over a basic collective
  bargaining agreement (CBA). (JA at 257).  They continued to be unable to
  reach agreement and again sought the assistance of the Panel.  (JA at 273).
  Pursuant to the Panel's order, the parties submitted their bargaining
  impasse to an interest arbitrator.  (id.).  The arbitrator issued an award
  on the CBA in June 1986, but declined to include performance appraisal
  issues (now Article 19 of the CBA) in his award.  (JA at 257-58).  Instead,
  he ordered further negotiations on Article 19 and retained jurisdiction to
  resolve any resulting impasse.[4]  (JA at 258).
    2.  The 1988 negotiations, the second arbitration award, and related
    proceedings
  In January 1988, POPA submitted to PTO a revised package of performance
  appraisal proposals. (JA at 253).  This package included new proposals that
  the parties had not discussed and that had not been before the arbitrator in
  the previous impasse proceedings.  (id.).  Once again the parties were
  unable to reach agreement, and proceedings before the arbitrator resumed.
  (JA at 273).
  As a threshold issue before the arbitrator, PTO objected, on jurisdictional
  grounds, to his consideration of those proposals presented for the first
  time in January 1988.  (JA at 273).  The arbitrator overruled PTO's
  objections and held hearings on the continued impasse.  (id.).[5]
  Subsequently, in November 1989 the arbitrator issued his award encompassing
  the provisions to be adopted as Article 19, some of which related to POPA's
  new 1988 proposals.  (id.).  Pursuant to section 7114(c)(2) of the Statute,
  PTO disapproved the imposed Article 19, and POPA appealed the disapproval to
  the FLRA's members (Authority) under Part 2424 of the FLRA's rules (5 C.F.R.
  Part 2424 (1997)).  (id.).[6]
  The Authority, acting pursuant to 5 U.S.C. § 7105(a)(2)(E), declined to
  consider PTO's jurisdictional arguments and proceeded to rule on the
  disputed provisions' negotiability.  POPA, 47 FLRA at 17-18.  With respect
  to negotiability, the Authority found some provisions within PTO's
  obligation to bargain, but upheld PTO's disapproval with respect to others.
  POPA, 47 FLRA at 19-94.
  Both POPA and PTO petitioned this Court for review of the Authority's
  decision.  As relevant here, the Court found that the arbitrator did not
  have jurisdiction over the January 1988 proposals, and held that PTO was not
  contractually bound by those proposals.  Patent Office Professional Ass'n v.
  FLRA, 26 F.3d 1148, 1153-54 (D.C. Cir. 1994) (POPA v. FLRA).[7]  With
  respect to other proposals before it, some of which the Authority had found
  negotiable and some it had not, the Court found that they were all outside
  PTO's obligation to bargain.  26 F.3d at 1154-57.
  B.  The current dispute
    1.  The facts
  In July 1994, following the Court's decision, the parties met once more in
  an attempt to resolve the outstanding issues.  (JA at 273).  After failing
  to reach an agreement, POPA requested that PTO adopt as Article 19 those
  provisions ordered by the arbitrator in 1989, but deleting those provisions
  found nonnegotiable by the Authority and the Court and those the Court found
  beyond the arbitrator's jurisdiction.  (id.).  When PTO did not formally
  respond to POPA's request, POPA resorted for the first time to the Statute's
  ULP procedures, filing a charge with the FLRA's Washington, D.C. Regional
  Office alleging that PTO violated section 7116(a)(1), (2), (5), (6), and (8)
  of the Statute by failing to "sign and implement an agreement on performance
  appraisal based upon a request where all sections of the proposed agreement
  have been awarded as a result of impasse proceedings and court appeals with
  nothing remaining for further impasse."  (JA at 10).
    2.  The General Counsel's determination not to issue an unfair labor
    practice complaint
  After investigating POPA's charge, the FLRA's Regional Office concluded that
  the issuance of a complaint was not warranted.  (JA at 252).  The Regional
  Director first found that PTO's duty to implement Article 19 was "contingent
  on the existence of a [CBA]."  (JA at 254).  Finding that the parties did
  not have an effective CBA into which to incorporate POPA's suggested Article
  19, the Regional Director concluded that PTO had no obligation to implement
  Article 19.  (JA at 255-56).  Accordingly, he refused to issue a ULP
  complaint.  (JA at 256).
  Pursuant to 5 C.F.R. § 2423.10(c), POPA appealed the Regional Director's
  determination to the FLRA's General Counsel.  (JA at 257).  The General
  Counsel, through his Deputy General Counsel, denied the appeal.  (JA at
  273).  The General Counsel found that there was "no meaningful basis . . .
  for concluding that the parties [had] reached an agreement on Article 19"
  such as would obligate PTO to implement its provisions.  (JA at 275).[8]
   STANDARD OF REVIEW
  The principal question in this case is whether the Court has subject matter
  jurisdiction, a matter to be decided by the Court in the first instance.  In
  the event the Court reaches the merits of the General Counsel's
  determination not to issue a ULP complaint, petitioner POPA concedes that
  such a determination is left to the General Counsel's discretion.
  Accordingly, if any review is permitted, it should be for abuse of that
  discretion.  See Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078, 1085
  (D.C. Cir. 1991) (NLRB enjoys "broad discretion" with respect to remedies
  and reviewing court will disturb choice of remedy "only when it amounts to
  an abuse of discretion"); see also Heckler v. Chaney, 470 U.S. 821, 840-41
  (1985) (Chaney) (Marshall, J., concurring) (agency enforcement decisions
  warrant deference when agency has not abused enforcement discretion).

SUMMARY OF ARGUMENT

1.  In Turgeon, this Court held unequivocally that determinations of the FLRA's
General Counsel concerning the issuance of ULP complaints are not subject to
judicial review.  That decision, as well as decisions of other courts reaching
the same result, accurately reflect Congress' clear intentions on this regard.
  Section 7123 of the Statute provides for judicial review of "final order[s]
  of the Authority."  However, under the Statute the Authority may issue
  orders in ULP cases only upon issuance of a complaint by the General
  Counsel.  Accordingly, the General Counsel's determination regarding whether
  to issue a complaint is a not a "final order" of the Authority, subject to
  judicial review under section 7123.  There are no other provisions for
  judicial review in the Statute.  Further, the Legislative History of the
  Statute reflects Congress' intention to insulate General Counsel complaint
  determinations from judicial review.
  All courts that have addressed the judicial review question, including this
  one, have recognized the analogy between the functions and authority of the
  FLRA's General Counsel, with those of the National Labor Relations Board's
  General Counsel, and have applied case law developed under the National
  Labor Relations Act.  As this Court recently concluded, Congress intended to
  "prevent courts from interfering with the [NLRB's] General Counsel's
  exercise of his statutory powers."  Beverly Health and Rehab. Serv. v.
  Feinstein, 103 F.3d 151, 154 (D.C. Cir. 1996), petition for cert. filed, 65
  U.S.L.W. 3826 (U.S. June 2, 1997) (Beverly Health).  Congress' intent was
  the same with respect to the FLRA's General Counsel.
2.  Contrary to POPA's contentions, nothing in this case warrants an exception
to the well-established rule prohibiting judicial review.  First, the exceptions
to the non-reviewability of agency "enforcement decisions" alleged by POPA to be
applicable to General Counsel ULP complaint determinations have been developed
under statutory schemes which lack the purposeful preclusion of judicial review
present here.  Accordingly, these exceptions should not be applied to General
Counsel complaint determinations.
  Second, even if General Counsel complaint determinations are only
  "presumptively unreviewable" and therefore subject to exceptions, POPA has
  not demonstrated that any established exception is applicable in this case.
  POPA contends (Br. at 22-23) that the General Counsel's determination in
  this case is reviewable because he has "'consciously and expressly adopted a
  general policy' that is so extreme as to amount to an abdication of its
  statutory responsibilities."  Yet POPA fails to identify either the "general
  policy" announced in the General Counsel's determination or how he has
  "abdicated" a specific statutory responsibility.
3.  Finally, even assuming judicial review is available in this case, POPA has
not shown that the General Counsel abused his discretion in declining to issue a
ULP complaint based on POPA's charge.  POPA alleged that PTO violated the
Statute by failing to implement certain collective bargaining provisions as
proposed by POPA.  The General Counsel, however, determined that absent evidence
of PTO's agreement to implement POPA's proposal, PTO had no obligation to do so.
The General Counsel's determination was consistent with applicable precedent and
he reasonably found no evidence of an agreement between the parties.  Further,
POPA has not shown that the General Counsel's determination is otherwise
inconsistent with the Statute.

ARGUMENT

I.  THIS COURT IS WITHOUT SUBJECT MATTER JURISDICTION UNDER SECTION 7123 OF THE
STATUTE TO REVIEW THE GENERAL COUNSEL'S DETERMINATION NOT TO ISSUE A ULP
COMPLAINT IN THE INSTANT CASE
  This Circuit, along with virtually all others, has concluded that it lacks
  subject matter jurisdiction to review General Counsel ULP complaint
  determinations.  These decisions conform with both the will of Congress and
  long-standing interpretations concerning the General Counsel's analogous
  authority under the National Labor Relations Act (NLRA).  Unlike review of
  agency discretionary determinations under certain sections of the
  Administrative Procedure Act (APA), 5 U.S.C. §§ 551-59, 701-706, Congress
  has clearly expressed its intent to preclude judicial review of General
  Counsel complaint determinations.  Nothing about the General Counsel's
  determinations in this case warrant an exception to this well-established
  rule.
  A.  This Court's decision in Turgeon, as well as similar decisions by other
  courts, show that Congress intended that determinations of the General
  Counsel not to issue ULP complaints are unreviewable
  This Court has previously ruled unequivocally that it is without subject
  matter jurisdiction to review a decision by the FLRA's General Counsel not
  to issue a ULP complaint.  Turgeon, 677 F.2d at 940; accord Martinez v.
  Smith, 768 F.2d 479, 480 (1st Cir. 1985); American Fed'n of Gov't Employees,
  Local 1749 v. FLRA, 842 F.2d 102, 105 (5th Cir. 1988) (per curiam) ("AFGE
  Local 1749").  In Turgeon an employee had charged that his employing agency,
  the Environmental Protection Agency, had committed ULP violations.  As here,
  the FLRA's General Counsel declined to issue a complaint based on the
  evidence presented.
  This Court held in Turgeon that Congress intended that there be no review of
  the General Counsel's refusal to issue an unfair labor practice complaint
  either by the Authority or in the courts.  The Court stated:
We . . . conclude that Congress clearly intended the General Counsel of the
Federal Labor Relations Authority to have unreviewable discretion to decline to
issue unfair labor practice complaints.  Since there is thus no "final order of
the Authority" subject to judicial review under section 7123 of the [Statute],
the petition for review herein is dismissed for lack of jurisdiction.
677 F.2d at 940.
  In reaching this result, this Court specifically recognized the analogy
  Congress intended in the Statute between the FLRA and its General Counsel,
  on the one hand, and the National Labor Relations Board ("NLRB") and its
  General Counsel on the other.  677 F.2d at 939; see also Warren v. Local
  1759, AFGE, 764 F.2d 1395, 1397 (11th Cir.), cert. denied, 474 U.S. 1006
  (1985); AFGE Local 1749, 842 F.2d at 104-05.  It is well established that
  determinations of the General Counsel of the NLRB not to issue ULP
  complaints are not subject to judicial review.  NLRB v. United Food &
  Commercial Workers Union, 484 U.S. 112, 122 (1987) (Food & Com'l Wkrs); Vaca
  v. Sipes, 386 U.S. 171, 182 (1967); Turgeon, 677 F.2d at 940; Beverly
  Health, 103 F.3d at 154.
  B.  The language and legislative history of the Statute support application
  of the rule of nonreviewability of General Counsel decisions not to issue a
  complaint in this case
  Congress intended the investigation of unfair labor practice charges, and
  the issuance and prosecution of unfair labor practice complaints, to be
  within the unreviewable discretion of the FLRA's General Counsel.  This is
  confirmed by the language of the Statute, as well as its legislative
  history.
    1.  Language of the Statute
  Nothing in the language of the Statute permits any review of the General
  Counsel's action concerning investigation or issuance of an unfair labor
  practice complaint.  More specifically, the Statute affords the Authority no
  opportunity to review such a decision by the General Counsel.  Rather, it is
  only upon the issuance of a complaint that the Authority is empowered to
  exercise its decision-making functions--that is, to conduct a hearing,
  decide the merits of a complaint, and issue any appropriate remedial order
  (5 U.S.C. §§ 7105(a)(2)(G) and 7118(a)(6)-(8)).
  Further, the Statute provides for court review only of a "final order of the
  Authority."  5 U.S.C. § 7123(a).  There is no conceivable way that the
  Authority could issue such an order when
the General Counsel has declined to issue an unfair labor practice complaint.
Consequently, the General Counsel's action challenged here is not a final order
of the Authority subject to court review within the meaning of the judicial
review provisions of section 7123(a) of the Statute.  5 U.S.C. § 7123(a).  See
Turgeon, 677 F.2d at 940.  Thus, the Statute makes no provision whatsoever for
review of the General Counsel's decisions regarding investigation of ULP charges
or the issuance of ULP complaints, either administratively or judicially.  See
Columbia Power Trades Council v. United States Dep't of Energy, 671 F.2d 325,
329 (9th Cir. 1982).
    2.  Legislative history
  The Statute's legislative history also amply supports dismissal of the
  petition for review.  As this Court recognized in Turgeon, both the House
  and Senate independently resolved that decisions of the General Counsel not
  to issue unfair labor practice complaints would be unreviewable, and that
  intent was reflected in the Statute as enacted.  See Turgeon, 677 F.2d at
  939 (quoting H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 41, 52 (1978) and
  S. Rep. No. 969, 95th Cong., 2d Sess. 102, reprinted in 1978 U.S.C.C.A.N.
  2723, 2824).
  C.  The similarity between the Statute and the NLRA, and the cases
  interpreting both statutes, further support the FLRA General Counsel's
  final, unreviewable discretion not to issue a ULP complaint in this case
  The Statute's legislative history establishes, as this Court recognized in
  Turgeon, that the role and functions of the General Counsel and the FLRA,
  including the right of court review under the Statute, were closely
  patterned after the role and functions of the General Counsel and Members of
  the NLRB and the right of court review under the NLRA.[9]  Turgeon, 677 F.2d
  at 940, and cases cited therein.  Accordingly, case law developed under the
  NLRA with respect to judicial review of General Counsel determinations is
  wholly applicable to similar cases arising under the Statute.
  As noted earlier, such precedent establishes beyond doubt that the General
  Counsel of the NLRB may exercise his or her prosecutorial discretion in
  determining whether to issue a ULP complaint, without having that
  determination subjected to judicial review.  As the Supreme Court has
  stated:
Congress has delegated to the Office of General Counsel on "behalf of the Board"
the unreviewable authority to determine whether a complaint shall be filed.  29
U.S.C. § 153(d); Vaca v. Sipes, 386 U.S. 171, 182 (1967).  In those cases in
which he decides that a complaint shall issue, the General Counsel becomes an
advocate before the Board in support of the complaint.  In those cases in which
he decides not to issue a complaint, no proceeding before the Board occurs at
all.  The practical effect of this administrative scheme is that a party
believing himself the victim of an unfair labor practice can obtain neither
adjudication nor remedy under the labor statute without first persuading the
Office of General Counsel that his claim is sufficiently meritorious to warrant
Board consideration.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-39 (1975).  As one court has
observed, "[t]he numerous attempts to secure judicial review of the [NLRB]
General Counsel's decision not to issue unfair labor practice complaints have
....all ended in failure."  Baker v. IATSE, 691 F.2d 1291, 1296 (9th Cir. 1982).
Indeed, the Sixth Circuit has referred to such an attempt as "frivolous and
entirely without merit."  Mayer v. Ordman, 391 F.2d 889, 890 (6th Cir.), cert.
denied, 393 U.S. 925 (1968).  Analogously, the FLRA's General Counsel possesses
the same unreviewable discretion in this case.
  Pursuant to this analogy between the General Counsel of the FLRA and the
  NLRB contemplated by Congress, the authority of the FLRA General Counsel may
  therefore be likened to that of an "attorney general or other executive
  officer of the government," responsible only to the President and Congress.
  Associated Builders and Contractors, Inc. v. Irving, 610 F.2d 1221, 1224
  (4th Cir. 1979), cert. denied, 446 U.S. 965 (1980); Dunn v. Retail Clerks
  Int'l Ass'n, 307 F.2d 285, 288 (6th Cir. 1962).  In fact, the role of the
  FLRA's General Counsel as "prosecutor" has been recognized by this Court and
  others.  Turgeon, 677 F.2d at 939; see also AFGE, Local 1749, 842 F.2d at
  105.
  D.  Congress' intent to prohibit review of General Counsel ULP
  determinations is purposeful and unqualified
  The discussion above demonstrates that in enacting both the Statute and the
  NLRA, Congress clearly intended to preclude judicial review of General
  Counsel determinations with respect to the issuance or nonissuance of ULP
  complaints.  With specific reference to the NLRA, the Supreme Court has
  recognized the complete and unqualified nature of the preclusion of review.
  Food and Com'l Wkrs., 484 U.S. at 128-31.  Responding to contentions that
  even if the NLRA precluded judicial review, review of General Counsel
  determinations was available under the more general provisions of the APA, 5
  U.S.C. §§ 551-59, 701-706, the Court held that since "Congress purposely
  excluded [General Counsel] prosecutorial decisions from [judicial] review .
  . ., it would be illogical in the extreme to hold that Congress did so only
  to permit review under the APA."  484 U.S. at 131.[10]  The Court noted that
  under section 701(a)(1) of the APA, the act's review provisions do not apply
  where "statutes preclude judicial review."  484 U.S. at 130.  The Court
  specifically found that judicial review of General Counsel determinations
  are precluded by statute within the meaning of section 701(a)(1).  Id.
  In a recent case applying Food and Com'l Wkrs, this Court has again
  recognized that under the NLRA, General Counsel determinations are
  "insulated from judicial review."  Beverly Health, 103 F.3d at 154.  Finding
  no suggestion that Congress "intended an exception to its preclusion of
  judicial review over the complaint process in [the circumstances in that
  case]," this Court concluded that "the NLRA's protection of prosecutorial
  decisions is a direct manifestation of Congress' intent to prevent courts
  from interfering with the General Counsel's exercise of his statutory
  powers."  Id. at 154.
  Accordingly, it is clear from the statutory language, legislative history,
  the similarity between the Statute and the NLRA, and the cases interpreting
  both statutes, that Congress intended that the FLRA's General Counsel's
  complaint determinations would not be subject to judicial review.
  E.  Nothing in this case warrants an exception to the rule in established in
  Turgeon
  POPA fails to acknowledge, much less attempt to distinguish,  Turgeon, or
  any other precedent under the Statute or the NLRA that establishes that
  Congress intended to preclude review of General Counsel determinations not
  to issue ULP complaints.  Instead, POPA relies on cases arising under other
  statutory schemes, e.g. Chaney, 470 U.S. 821, to argue that the General
  Counsel's determinations not to issue complaints are only "presumptively"
  unreviewable, and that established exceptions to that presumption are
  present in this case.  Specifically, POPA argues that this Court has
  jurisdiction to review the General Counsel's determination because the
  General Counsel's determination constituted a "[conscious and express
  adoption of] a general policy that is so extreme as to amount to an
  abdication of its statutory responsibilities."  POPA brief at 22, quoting
  from Chaney, 470 U.S. at 833 n.4.
    POPA is mistaken.  First, as demonstrated above, in enacting the Statute,
    Congress purposefully intended to prohibit judicial review of General
    Counsel prosecutorial determinations.  POPA relies heavily on cases arising
    under other statutory schemes where such a purposeful intent to preclude
    review is absent.  Second, even if exceptions to rules precluding judicial
    review established in other contexts are applicable to General Counsel
    determinations, the exception cited by POPA does not fit the facts of this
    case.
    1.  Congress intended to prohibit judicial review of General Counsel
    prosecutorial determinations, not merely create a rebuttable presumption
    against judicial review
  As demonstrated in sections A-D above, Congress purposefully and
  unequivocally precluded judicial review of General Counsel complaint
  determinations.  Nonetheless, POPA, relying on the Ninth Circuit's decision
  in Montana Air Chapter No. 29, Association of Civilian Technicians v. FLRA,
  898 F.2d 753, 756 (9th Cir. 1990) ("Montana Air"), contends that there is
  only a rebuttable presumption against judicial review.  However, Montana Air
  was wrongly decided and should not be adopted by this Court.  The Ninth
  Circuit mistakenly applied cases from administrative schemes which lack the
  purposeful exclusion from judicial review found in the Statute.  This Court
  should hold, consistent with applicable precedent, that General Counsel
  determinations are statutorily precluded from judicial review.
  Montana Air, like the instant case, concerned a decision of the FLRA's
  General Counsel not to issue a ULP complaint.[11]  Rather than look
  primarily to relevant precedent developed under the Statute or the NLRA, the
  Ninth Circuit relied instead on the Supreme Court's decision in Chaney.  The
  court found that the General Counsel's determinations fell under the APA's
  second exception to judicial review, namely, actions committed to agency
  discretion.  Therefore, relying upon Chaney, the court found they were
  "presumptively unreviewable."  898 F.2d at 756.  Applying Chaney, the Ninth
  Circuit found the presumption against judicial review subject to specific
  exceptions.  These exceptions included that asserted by POPA as applicable
  in this case, namely, where an agency has "'consciously and expressly
  adopted a general policy' that is so extreme as to amount to an abdication
  of its statutory responsibilities."  Id. (quoting from Chaney, 470 U.S. at
  833 n.4).[12]
  However, the Ninth Circuit misconstrued the nature of Congress' intent with
  respect to General Counsel ULP determinations.  As the Supreme Court held
  and this Court has recognized, General Counsel determinations with respect
  to ULP complaints are exempt from judicial review, not simply because such
  actions are committed to agency discretion under section 701(a)(2) of the
  APA, but because the applicable statute precludes judicial review, hence
  falling under section 701(a)(1).  Food and Com'l Wkrs., 484 U.S. at 130;
  Beverly Health, 103 F.3d at 154 .
  The Chaney decision is inapplicable to General Counsel complaint
  determinations because it applies only to matters falling under section
  701(a)(2) of the APA.  The Chaney Court carefully distinguished matters
  precluded by statute from judicial review under section 701(a)(1) from those
  "presumptively unreviewable" under section 701(a)(2).  Section 701(a)(1)
  applies "when Congress has expressed an intent to preclude judicial review."
  Chaney, 470 U.S. at 830.  In contrast, section 701(a)(2) applies where
  "Congress has not affirmatively precluded review . . . ."  Id.
  The Ninth Circuit's application of the framework developed in Chaney and its
  progeny to determinations of the General Counsel not to issue ULP complaints
  should not be adopted.  Instead, the Court should reassert its holding
  announced in Turgeon that Congress intended that such determinations are
  unequivocally exempt from judicial review.[13]  Accordingly, the instant
  petition for review should be dismissed for lack of jurisdiction.
    2.  POPA fails to establish that the General Counsel consciously and
    expressly adopted a general policy so extreme as to amount to an
    abdication of statutory responsibility
  Even if the exceptions to the rule against reviewability suggested in
  Montana Air were applicable to General Counsel ULP determinations, POPA has
  failed to show that they apply in this case.  Although POPA asserts in a
  conclusory manner that the General Counsel has "'consciously and expressly
  adopted a general policy' that is so extreme as to amount to an abdication
  of its statutory responsibilities," it provides no support for its
  claim.[14]
  In the first place, POPA can cite no case where this purported exception has
  been applied.  Although both Chaney and Montana Air suggest the availability
  of this exception, in neither case is the exception applied or even
  discussed.  Chaney, 470 U.S. at 832-33 and n.4; Montana Air, 898 F.2d at
  756.  Similarly in Brock (cited by POPA, Br. at 22), this Court noted only
  that "plaintiffs' allegations [were] insufficient," and summarily rejected
  the contention that the agency "ha[d] 'consciously and expressly adopted a
  general policy' that is so extreme as to amount to an abdication of its
  statutory responsibilities."  783 F.2d at 245.
  Even lacking any guidance that judicial construction and application of the
  exception might provide, it is evident that it cannot apply in this case.
  At a minimum, to satisfy the Montana Act and Chaney exception, POPA must
  show that the General Counsel's determination constituted an express
  conscious adoption of "a general policy, and that adoption of that policy
  "amount[s] to an abdication its statutory responsibilities."  Montana Air,
  898 F.2d at 756 (emphasis added).  POPA has neither identified the general
  policy announced in the General Counsel's determination nor shown how his
  statutory responsibilities have been abdicated.
  First, the General Counsel's decision was not the result of his express,
  conscious adoption of any general policy to achieve the result POPA
  disputes.  What POPA identifies as "the most concise statement" of the
  "general policy" adopted by the General Counsel in this case (Br. at 24) is
  not a statement of policy at all.  In the passage quoted by POPA, the Deputy
  General Counsel, speaking for the General Counsel, stated that "the evidence
  [was] insufficient to support a finding that the agency and the Union had
  reached an agreement . . . ."  Ignoring the Deputy General Counsel's express
  statement that this was an evidentiary finding, POPA asserts (Br. at 24),
  without any explanation whatsoever, that "this statement is not an
  evaluation of the weight of evidence, but rather, a conclusion of law."  It
  is clear, however, that the General Counsel's determination is not a
  statement of policy, but is simply the application of law to the particular
  facts of this case.
  Second, POPA fails to identify any statutory responsibility that the General
  Counsel "abdicated."  Even if the General Counsel could be deemed to have
  adopted a "general policy" by insisting, consistent with Authority and other
  precedent, upon sufficient evidence of mutual agreement before concluding
  that a contract had been formed, there are no grounds for finding such an
  adoption "so extreme" as to constitute an abdication of a statutory
  responsibility.  POPA's dispute with the General Counsel appears to focus on
  the evidentiary sufficiency of the record to support a ULP complaint and
  prosecution.  That is, POPA claims that the General Counsel erred as a
  matter of law in determining that there was insufficient evidence to issue a
  ULP complaint.
  But legal error, even if it was present in this case, is not abdication of a
  statutory responsibility "so extreme" as to constitute an exception to
  nonreviewability.  If it were, every alleged error of law would become a
  basis for review, thus defeating congressional intent that there be no
  judicial review of General Counsel determinations not to issue ULP
  complaints.  See Griffith v. FLRA, 842 F.2d 487, 494 (D.C. Cir. 1988).[15]
  In sum, POPA's arguments consist of nothing more than its disagreement with
  the merits of the General Counsel's determination not to issue a ULP
  complaint.[16]  Such disagreement, regardless of whether or not it is
  supportable, is insufficient to establish jurisdiction in this case.  See
  Griffith, 842 F.2d at 493 ("[g]arden-variety" errors of law or fact do not
  make an otherwise nonreviewable agency determination reviewable); see also
  Bishop v. NLRB, 502 F.2d 1024, 1032 (5th Cir. 1974) (same).
II.  ASSUMING, FOR THE SAKE OF ARGUMENT, THAT THE COURT HAS JURISDICTION, THE
GENERAL COUNSEL PROPERLY DETERMINED THAT THERE WAS INSUFFICIENT EVIDENCE OF A
VIOLATION OF THE STATUTE TO WARRANT THE ISSUANCE OF A ULP COMPLAINT
  A.  The General Counsel reasonably concluded that PTO was not obligated to
  implement POPA's proposed Article 19 because no agreement had been reached
  In determining not to issue a complaint, the General Counsel applied
  established principles of law to the facts of the case as disclosed by his
  investigation.  POPA's ULP charge alleged that PTO violated various
  provisions of the Statute when it refused to sign and implement a proposed
  agreement on performance appraisals (Article 19).  The General Counsel
  properly determined, in light of Authority precedent, that there was
  insufficient evidence to establish that PTO was obligated to implement the
  performance appraisal plan as proposed by POPA.
  Pursuant to the impasse resolution provisions of the Statute, an interest
  arbitrator had imposed an article on performance appraisals as part of a
  basic collective bargaining agreement.  The imposed article was submitted to
  the agency head for review under section 7114(c) of the Statute.  See Patent
  Office Professional Ass'n and U.S. Dep't of Commerce, Patent and Trademark
  Office, 41 FLRA 795, 798 (1991) (where Panel orders interest arbitration,
  arbitrator's award is subject to agency head review).  Finding some of the
  imposed provisions to be inconsistent with law or applicable regulation, the
  agency head disapproved the agreement.  After protracted litigation with
  POPA, the agency head's disapproval was upheld to a significant degree.  See
  POPA v. FLRA, 26 F.3d at 1154-57; see also POPA, 47 FLRA at 10-13.
  As established in Authority case law, collective bargaining agreements, not
  specific provisions of those agreements, are approved or disapproved by
  agency heads under section 7114(c).  See National Treasury Employees Union,
  Chapter 251 and U.S. Dep't of the Treasury, IRS, Washington, D.C., 40 FLRA
  985, 990 (1991) (NTEU Chapter 251) (citing Department of the Interior, Nat'l
  Park Serv., Colonial Nat'l Historical Park, Yorktown, Virginia, 20 FLRA 537,
  541 (1985), aff'd sub nom. National Ass'n of Gov't Employees, Local R4-68 v.
  FLRA, 802 F.2d 1484 (4th Cir. 1986)).  Consequently, when provisions of a
  collective bargaining agreement are timely disapproved by the agency head
  under section 7114(c), the collective bargaining agreement does not go into
  effect and is not enforceable under provisions of section 7114(c).  Id.  As
  the Deputy General Counsel noted, the only exception is when agreed-upon
  ground rules dictate otherwise, which they did not in this case.
  Accordingly, agency head disapproval of a collective bargaining agreement
  requires renegotiation by the parties to create an effective and enforceable
  agreement.  Id. at 991.  As POPA recognizes (Br. 24), this is sound policy
  because disapproval of one section of an agreement may affect other
  sections.[17]  Parties may agree to implement specific provisions of the
  agreement not disapproved by the agency, but are not obligated to do so.
  Id. at 990.
  In the instant case, during negotiations following agency head review
  disapproval and the attendant litigation, POPA proposed that the parties
  adopt as Article 19 those provisions imposed by the arbitrator which were
  unaffected by agency head review and not ruled beyond the arbitrator's
  authority to impose.  PTO did not specifically respond to POPA's proposal.
  The General Counsel stated that "investigation [showed] that [PTO] would not
  agree [to the proposal]."  (JA at 274).  Citing NTEU, Chapter 251, the
  General Counsel reasonably concluded that there had been no agreement with
  respect to Article 19 and accordingly, the agency was under no obligation to
  implement the union's proposal.
  B.  POPA's other contentions are without merit
    1.  Silence by PTO does not create a "constructive" agreement with
    respect to Article 19
  POPA first erroneously argues (Br. at 16) that there was "constructive"
  agreement on Article 19 because POPA had withdrawn all proposals awarded by
  the arbitrator but stricken by the Authority or this Court, and PTO had not
  presented any additional proposals for consideration.  POPA essentially is
  asking the General Counsel to presume agreement from PTO's silence.
  However, POPA cites no authority to support its contention.  Cf. U.S. Dep't
  of the Navy, Portsmouth Naval Shipyard, Portsmouth, NH, 44 FLRA 205, 206
  (1992) (Authority did not find implied agreement, noting that the purpose of
  section 7114(b)(5)'s requirement that a written document executing the terms
  of an agreement be signed is to "ensure that, in fact, there is a 'meeting
  of the minds' on the terms of the agreement" (internal citations omitted)).
  2.  This Court did not order the parties to implement a collective
  bargaining agreement
  POPA also incorrectly argues (Br. at 28) that the General Counsel's
  determination fails to give effect to this Court's decision in POPA v. FLRA.
  The Court's decision in POPA v. FLRA was a review of an Authority
  negotiability determination, the result of which was to affirm the
  Authority's decision in part and to reverse it in part.  26 F.3d at 1157.
  The Court did not order PTO to implement any specific collective bargaining
  provisions.
  POPA relies on statements by the Court allegedly to the effect that
  provisions ordered by the arbitrator not affected by its decision or that of
  the Authority "remain part of the parties' agreement."  POPA's reliance is
  misplaced.  First, the Court made no determinations concerning proposed
  contractual provisions not before it.  It thus made no holding concerning
  the ultimate contents of the parties' collective bargaining agreement.
  Second, the Court's statement (26 F.3d at 1154) that provisions "we sustain
  as negotiable will remain part of the parties' agreements" is by its terms
  limited to those provisions actually before the Court.  The Court
  subsequently sustained no provisions as negotiable.  Accordingly, there are
  no provisions of which it could be said that the Court directed their
  inclusion in the parties' agreement.
    3.  The prospect of additional bargaining does not justify reversing the
    General Counsel's determination
  Finally, POPA contends (Br. at 25-28), without merit, that the General
  Counsel's decision frustrates the impasse resolution processes of the
  Statute.  POPA argues that, as a result of the General Counsel's
  determination, POPA's only option is to return to the bargaining table and,
  therefore, the parties will be "back to the initial phase of negotiations in
  which all the proposals will be at issue."  Noting the parties' failure to
  reach an agreement after fifteen years of negotiations, POPA speculates that
  another protracted round of negotiations and litigation will ensue.
  It is true, of course, that under the Authority's case law discussed
  previously (pp. 27-28), parties ordinarily must return to the bargaining
  table after an agency head's disapproval of a contract is upheld, even in
  part.  See NTEU Chapter 251, 40 FLRA at 990.  POPA concedes (Br. at 14) that
  such a result is appropriate under the Statute.  It is therefore apparent
  that, insofar as POPA objects to such renegotiations, POPA's quarrel is with
  the Authority's case law rather than with the General Counsel's
  determination not to issue a ULP complaint, made in part in observance of
  that case law.  Moreover, even assuming that this protracted and contentious
  process will continue, POPA has failed to point to any case law indicating
  that this potential would serve as a basis for reversing the General
  Counsel's determination not to issue a complaint.
  In sum, if the Court determines that it has jurisdiction to review the
  merits of the General Counsel's determination, it should conclude that the
  General Counsel did not abuse his discretion in refusing to issue a
  complaint in this case.  Rather, his determination was reasonable and should
  be upheld.

CONCLUSION

  For the foregoing reasons, the petition for review should be dismissed for
  lack of subject matter jurisdiction.  In the event that the court reaches
  the merits of the case, the petition for review should be denied.
  Respectfully submitted.


            ______________________________
            DAVID M. SMITH
            SOLICITOR


            ______________________________
            WILLIAM R. TOBEY
            DEPUTY SOLICITOR


            ______________________________
            JAMES F. BLANDFORD
            ATTORNEY


            Federal Labor Relations Authority
            607 14th Street, N.W.,
              Suite 330
            Washington, D.C.  20424
            (202) 482-6620

September  1997




IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

PATENT OFFICE PROFESSIONAL ASSOCIATION,
              Petitioner

      v.                                 No. 96-1277

FEDERAL LABOR RELATIONS AUTHORITY,
            Respondent
_______________________________




CERTIFICATE OF SERVICE

I certify that copies of the Final Brief For The General Counsel Of  The
Federal Labor Relations Authority have been served this day, by mail, upon
the following:

        Lynne K. Zusman, Esq.
        Counsel for Appellant Union
        1090 Vermont Avenue, N.W.,
           Suite 920
        Washington, D.C. 20036



                            Thelma Brown
                            Paralegal Specialist

September 17, 1997



I certify that the Final Brief of the Federal Labor Relations Authority does
not exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d).



                            James F. Blandford
                            Attorney

September 17, 1997




[1]         Relevant statutory and regulatory provisions are set forth in
Addendum A.
[2]         For a more detailed exposition of this background see generally
Patent Office Professional Association and United States Department of Commerce,
Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 13-15 (1993)("POPA"),
aff'd in part and rev'd in part, 26 F.3d 1148 (D.C. Cir. 1994).
[3]         The Panel, an entity within the FLRA, is charged with assisting
federal sector parties in resolving negotiation impasses.  The Panel has broad
authority under the Statute and may take whatever action it deems appropriate to
resolve impasses, including the imposition of contract terms.  See generally 5
U.S.C. § 7119.
  References to "JA" are to the Joint Appendix, filed with the Court on
  September 17, 1997.
[4]         In declining to decide performance appraisal issues in his June 1986
award, the arbitrator noted that there were related negotiability appeals
pending before the FLRA.  POPA, 47 FLRA at 14.  The FLRA issued its decisions in
these cases in 1987.  Patent Office Professional Ass'n and Patent and Trademark
Office, Dep't of Commerce, 25 FLRA 384 (1987), aff'd 868 F.2d 458 (D.C. Cir.
1988) (Table) and Patent Office Professional Ass'n and Patent and Trademark
Office, Dep't of Commerce, 29 FLRA 1389 (1987), aff'd 873 F.2d 1485 (D.C. Cir.
1989).
[5]         PTO refused to participate after the first day because of its
objections to the arbitrator's jurisdiction over the January 1988 proposals.
POPA, 47 FLRA at 15.
[6]         Under section 7114(c) of the Statute, the agency head may review a
collective bargaining agreement to assure that its provisions are consistent
with applicable law, rule, or regulation.  A union may appeal an agency head's
disapproval as a negotiability appeal under section 7117.  Interpretation and
Guidance, 15 FLRA 564, 567 (1984), aff'd sub nom. American Fed'n of Gov't
Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985)
[7]         Although finding that PTO was not contractually bound by any of the
1988 proposals, the Court affirmed the Authority's determinations that the
proposals were negotiable under the Statute.  26 F.3d at 1154.
[8]         POPA requested that the General Counsel reconsider his decision.
(JA at 276).  By letter dated September 6, 1996, the General Counsel denied
POPA's request.  (JA at 302).

[9]         See 29 U.S.C. §§ 151, 153(d), and 160(e) and (f) (1994).
[10]         The APA provides for judicial review of final agency actions "for
which there is no other adequate remedy in a court." 5 U.S.C. § 704.
[11]