[ v58 p489 ]
Dissenting Opinion of Member Carol Waller Pope:
I respectfully dissent from my colleagues' conclusion that extraordinary circumstances warrant interlocutory review of the exceptions in this case. The majority acknowledges that the Authority recently modified its standard for granting interlocutory review in United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1232 (2000) (Dep't of the Interior). The majority also acknowledges that, under the modified standard, interlocutory review "should only be undertaken" when: (1) the arguments challenging an award in fact present a plausible jurisdictional defect; and (2) the resolution of the exception will advance the ultimate disposition of the case. Id. The majority then applies the modified standard in a manner that completely undermines its purpose, which is to restrict interlocutory review to "extraordinary situations where it is necessary." Id.
The majority provides no explanation as to why this case is extraordinary or review is necessary. With respect to the requirement in Dep't of the Interior that the jurisdictional argument be "plausible," the Agency has made an argument that, on its face, states a ground under which an award might be found deficient. As the majority's analysis of the argument demonstrates, even a superficial review of the facts found by the Arbitrator, which are uncontested, indicates that the Agency's jurisdictional argument is completely groundless. If the claim in this case is "plausible," I question when -- apart from a rare case where a claim is patently frivolous -- a claim would not be plausible. [*]
In a similar vein, the majority's explanation of why review here would "advance the ultimate disposition of the case" -- because if the Agency is correct then there would be no need to proceed to a hearing on the merits, and if the Agency is incorrect then the parties would be so advised -- applies to every case where interlocutory review is sought. In my view, grants of interlocutory review of jurisdictional claims should be restricted primarily to situations where interlocutory review would actually advance the ultimate disposition of the case because the party seeking such review is correct in asserting a lack of jurisdiction. See, e.g., United States Dep't of Defense, Nat'l Imagery & Mapping Agency, St. Louis, Mo., 57 FLRA 837, 837 n.2 (2002). In fact, this has been the Authority's practice. In this regard, I am aware of no case where the Authority granted review and then denied exceptions challenging arbitral jurisdiction on the merits.
The interpretation of the standard applied by the majority in this case renders both parts of the Dep't of the Interior standard essentially meaningless. Indeed, the majority has, sub silentio, eviscerated that standard and effectively reinstated the previous standard, under which the Authority would grant interlocutory review of a "controlling question of jurisdiction . . . when its immediate resolution could advance the ultimate resolution of the case." Dep't of the Interior, 55 FLRA at 1232 (citing United States Dep't of the Treasury, Internal Revenue Service, Los Angeles District, 34 FLRA 1161, 1164 (1990)). Moreover, the majority's decision encourages duplicative litigation and delay in the ultimate disposition of claims. By granting review in this case, the majority encourages piecemeal arbitration, as any party disputing a jurisdictional ruling by merely stating a possible ground for finding the ruling deficient, including claims under §§ 7116(d) and 7121(c)(5), will be encouraged to file an interlocutory appeal. The result is a waste of not only the parties' resources -- the focus of the majority opinion -- but the Authority's as well.
Accordingly, I dissent.
File 1: Authority's Decision in 58 FLRA No. 120
File 2: Member Pope's Opinion
Footnote * for 58 FLRA No. 120 - Member Popoe's Opinion
The majority is correct in noting that the modified standard requires only a "plausible" argument and not a correct one. Decision at 5. In my view, this permits the Authority to grant interlocutory review where the outcome is uncertain, especially where further briefing is necessary on a novel jurisdictional issue.