ORAL ARGUMENT SCHEDULED FOR NOVEMBER 18, 1997
No. 96-1344
No. 96-1363
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2986,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3006,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITIONS FOR REVIEW OF DECISIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR NOVEMBER 18, 1997
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
A. Parties
Case No. 96-1344:
Petitioner below: American Federation of Government Employees, Local
2986
Respondent below: U.S. Department of Defense, National Guard Bureau,
The Adjutant General, State of Oregon
Petitioner in this Court: American Federation of Government Employees, Local
2986
Respondent in this Court: The Federal Labor Relations Authority
Case No. 96-1363:
Petitioner below: American Federation of Government Employees, Local
3006
Respondent below: U.S. Department of Defense, National Guard Bureau,
Idaho National Guard, Adjutant General, State of Idaho
Petitioner in this Court: American Federation of Government Employees, Local
3006
Respondent in this Court: The Federal Labor Relations Authority
B. Rulings under review
Case No. 96-1344:
The Authority issued its Decision in American Federation of Government
Employees, Local 2986 and U.S. Department of Defense, National Guard
Bureau, The Adjutant General, State of Oregon, Case No. 0-AR-2550 on
July 19, 1996. The Authority's decision is reported at 51 FLRA (No.
126) 1549.
Case No. 96-1363:
The Authority issued its Decision in American Federation of Government
Employees, Local 3006 and U.S. Department of Defense, National Guard
Bureau, Idaho National Guard, Adjutant General, State of Idaho, Case No.
0-AR-2571 on July 31, 1996. The Authority's decision is reported at 51
FLRA (No. 142) 1693.
C. Related Cases
These cases have 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 these cases 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 3
I. Nature of the Case 3
II. Statement of the Facts 4
A. Background 4
1. Pertinent National Guard Technician statutes
and regulations 4
2. Factual background 5
a. AFGE, Local 2986 5
i. Facts 5
ii. The arbitrator's award 6
iii. The Authority's decision 6
b. AFGE, Local 3006 8
i. Facts 8
ii. The arbitrator's award 9
iii. The Authority's decision 10
STANDARD OF REVIEW 11
SUMMARY OF ARGUMENT 12
ARGUMENT 13
I. Pursuant to 5 U.S.C. § 7123(a), this Court lacks
subject matter jurisdiction to review the Authority's
decisions setting aside arbitrators' awards issued
under 5 U.S.C. § 7122 that do not involve an unfair
labor practice 13
A. Introduction 13
B. The Statute's language and legislative history
make clear that Congress intended to bar judicial
review of Authority decisions on exceptions to
arbitrators' awards 14
1. The Statute's language 15
2. The Statute's legislative history 16
II. None of the few exceptions to the general bar to
judicial review of Authority arbitration decisions
under section 7122 are applicable to this case 17
A. The Customs Service exception is inapplicable 18
1. This Court's holding in Customs Service does
not apply to this case and thus does not
provide a basis for jurisdiction 18
2. AFGE mischaracterizes and wrongly relies
upon the Customs Service jurisdictional
exception to the bar to review of
Authority arbitration decisions 21
B. The narrow Leedom v. Kyne exception to nonreview-
ability of Authority arbitration decisions is
inapplicable here because an "open" violation of
a "clear" statutory mandate cannot be shown 23
III. Even if this Court determines that it has jurisdiction
to review the Authority's jurisdictional determination,
the Authority properly found that it had jurisdiction
to review these arbitrators' awards involving severance
pay 27
A. The statutory scheme concerning grievance
arbitration 28
B. The Authority correctly held that an arbitration
award resolving a severance pay dispute is not an
award "relating to a matter described in section
7121(f)" of the Statute 29
C. AFGE's contentions regarding the Authority's
jurisdictional determination are without merit 32
CONCLUSION 34
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
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) 22
AFGE v. FLRA, 850 F.2d 782 (D.C. Cir. 1988) 31
American Fed'n of Gov't Employees, Local 1923 v. FLRA,
675 F.2d 612 (4th Cir. 1982) 14
American Fed'n of Gov't Employees, Local 916 v. FLRA,
951 F.2d 276 (10th Cir. 1991) 15
American Federation of Labor v. NLRB, 308 U.S. 401 (1940) 14
Bureau of Alcohol, Tobacco and Firearms v. FLRA,
464 U.S. 89 (1983) 11
Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir.), cert. denied,
498 U.S. 811 (1990) 28
*Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988) passim
*Leedom v. Kyne, 358 U.S. 184 (1958) passim
Local 32, American Federation of Government Employees v.
FLRA, 774 F.2d 498 (D.C. Cir. 1985) 33
NTEU v. FLRA, 112 F.3d 402 (9th Cir. 1997) 14
Oklahoma Natural Gas Co. v. FERC, 28 F.3d 1281
(D.C. Cir. 1994) 12
Overseas Educ. Ass'n v. FLRA, 824 F.2d 61
(D.C. Cir. 1987) 16, 17
*Oxy USA, Inc. v. FERC, 64 F.3d 679 (D.C. Cir. 1995) 12, 32
Philadelphia Metal Trades Council v. FLRA, 963 F.2d 38
(3d Cir. 1992) 14
Physicians Nat'l House Staff Ass'n v. Fanning, 642 F.2d 492
(D.C. Cir. 1980), cert. denied, 450 U.S. 917 (1981) 24, 25
Ramey v. Bowsher, 9 F.3d 133 (D.C. Cir. 1993) 11
Switchmen's Union of North America v. National Mediation Bd.,
320 U.S. 297 (1943) 23, 24
Tonetti v. FLRA, 776 F.2d 929 (11th Cir. 1985) 14
*United States Dep't of Justice, U. S. Bureau of Prisons
v. FLRA, 981 F.2d 1339 (D.C. Cir. 1993) 13, 14, 23, 26
United States Dep't of Justice v. FLRA, 792 F.2d 25
(2d Cir. 1986) 14, 15, 17
United States Dep't of the Interior, Bureau of Reclamation,
Missouri Basin Region v. FLRA, 1 F.3d 1059
(10th Cir. 1993) 14
*United States Dep't of the Treasury, United States Customs
Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) passim
United States Marshals Serv. v. FLRA, 708 F.2d 1417
(9th Cir. 1983) 14, 17
Wellife Products v. Shalala, 52 F.3d 357 (D.C. Cir. 1995) 25
Workplace Health & Safety Council v. Reich, 56 F.3d 1465
(D.C. Cir. 1995) 24
Wydra v. Law Enforcement Assistance Admin., 722 F.2d 834
(D.C. Cir. 1983) 14
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
American Federation of Government Employees, Local 3529 and
U.S. Department of Defense, Defense Contract Audit
Agency, Central Region, 49 FLRA 1482 (1994) 32, 33
Overseas Educ. Ass'n and U.S. Dep't of Defense Dependents
Schools, 46 FLRA 1145 (1993) 33
U.S. Department of Defense, National Guard Bureau, Arkansas
Army National Guard, North Little Rock, Arkansas and
National Federation of Federal Employees, Local 1671,
48 FLRA 480 (1993) 6
U.S. Dep't of the Army, Army Reserve Personnel Center,
St. Louis, Mo. and American Federation of Government
Employees, Local 900, 34 FLRA 96 (1989) 34
U.S. Department of the Treasury, U.S. Customs Service,
Pacific Region and National Treasury Employees Union,
50 FLRA 656 (1995), aff'd sub nom. NTEU v. FLRA,
112 F.3d 402 (9th Cir. 1997) 19
DECISION OF THE MERIT SYSTEM PROTECTION BOARD
Ward v. U.S. Consumer Product Safety Comm'n, 8 M.S.P.R. 603
(1981) 32
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) 2
5 U.S.C. § 7103(a)(9) 28
5 U.S.C. § 7103(a)(9)(C)(ii) 19
5 U.S.C. § 7105(a)(2)(H) 28
5 U.S.C. § 7116 15
5 U.S.C. § 7118 15
5 U.S.C. § 7121 28
5 U.S.C. § 7121(b)(1)(C)(iii) 28
5 U.S.C. § 7121(d) 28
* 5 U.S.C. § 7121(e) passim
* 5 U.S.C. § 7121(f) passim
5 U.S.C. § 7122 passim
* 5 U.S.C. § 7122(a) passim
* 5 U.S.C. § 7123(a) passim
5 U.S.C. § 7123(a)(1) 12, 16, 17, 18
5 U.S.C. § 2302(b)(1) 28
5 U.S.C. § 4303 passim
* 5 U.S.C. § 5595 passim
5 U.S.C. § 5595(b)(2) 4
5 U.S.C. § 7512 passim
5 U.S.C. § 7703 29
28 U.S.C. §§ 1331, 1337 24
Back Pay Act, 5 U.S.C. § 5596 20
National Guard Technician Act of 1968, 32 U.S.C. § 709
(1994) 4
§ 709(e)(1) 4
National Labor Relations Act, 29 U.S.C. § 159(b)(1) 23
CODE OF FEDERAL REGULATIONS
5 C.F.R. pt. 432 5, 34
* 5 C.F.R. pt. 550, subpt. G 3, 8
5 C.F.R. § 550.703 passim
5 C.F.R. § 550.704 4, 35
5 C.F.R. pt. 752 5, 34
LEGISLATIVE HISTORY
* H.R. Rep. No. 1717, 95th Cong., 2d Sess. 153 (1978),
reprinted in Subcomm. on Postal Personnel and
Modernization of the Comm. on Post Office and Civil
Serv., 96th Cong., 1st Sess., Legislative History
of the Federal Serv. Labor-Management Relations
Statute, Title VII of the Civil Serv. Reform Act
of 1978 16
H. Rep. No. 1717, 95th Cong., 2d Sess. 157 (1978),
reprinted in 1978 U.S.C.A.N. 2891 31
MISCELLANEOUS
National Guard Regulation 600-200, section IV, para. 7-19a 9
National Guard Technician Personnel Regulation 990-2 5, 6, 9, 10
Cases or authorities chiefly relied upon are marked by asterisks.
GLOSSARY
AFGE American Federation of Government Employees,
Local 2986 Local 2986 and U.S. Department of Defense, National
Guard Bureau, The Adjutant General, State of Oregon, 51 FLRA 1549
(1996)
AFGE American Federation of Government Employees,
Local 3006 Local 3006 and U.S. Department of Defense, National
Guard Bureau, Idaho National Guared, Adjutant General, State of Oregon, 51 FLRA
1693 (1996)
AFGE or American Federation of Government Employees,
petitioners Locals 2986 and 3006
Arkansas Army U.S. Department of Defense, National Guard Bureau,
National Guard Arkansas Army National Guard, North Little Rock,
Arkansas and National Federation of Federal
Employees, Local 1671, 48 FLRA 490 (1993)
Bureau of Prisons United States Dep't of Justice, U.S. Federal
Bureau of Prisons v. FLRA, 981 F.2d 1339 (D.C. Cir. 1993)
Customs Service United States Dep't of the Treasury, United States
Customs Serv. v. FLRA, 43 F.3d 682 (D.C. Cir. 1994)
DCAA American Federation of Government Employees,
Local 3529 and U.S. Department of Defense, Defense
Contract Audit Agency, Central Region, 49 FLRA 1482 (1994)
DOJ United States Dep't of Justice v. FLRA,
792 F.2d 25 (2d Cir. 1986)
Fanning Physicians Nat'l House Staff Ass'n v. Fanning,
642 F.2d 492 (D.C. Cir. 1980), cert. denied,
450 U.S. 917 (1981)
Griffith Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988)
Leedom Leedom v. Kyne, 358 U.S. 184 (1958)
Local 1923 American Fed'n of Gov't Employees, Local 1923 v.
FLRA, 675 F.2d 612 (4th Cir. 1982)
Local 2986 American Federation of Government Employees, Local 2986
Local 3006 American Federation of Government Employees, Local 3006
Marshals Serv. United States Marshals Serv. v. FLRA, 708 F.2d 1417
(9th Cir. 1983)
NGB or agency National Guard Bureau
OEA Overseas Educ. Ass'n v. FLRA, 824 F.2d 61 (D.C. Cir. 1987)
OPM Office of Personnel Management
Oxy USA Oxy USA, Inc. V. FERC, 64 F.3d 679 (D.C. Cir. 1995)
Statute Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (1994 & Supp II 1996)
ULP unfair labor practice
ORAL ARGUMENT SCHEDULED FOR NOVEMBER 18, 1997
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 96-1344
No. 96-1363
_______________________________
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2986,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3006,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITIONS FOR REVIEW OF DECISIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
In Case No. 96-1344, the decision under review was issued by the Federal
Labor Relations Authority ("Authority" or "FLRA") on exceptions to an
arbitration award in American Federation of Government Employees, Local 2986
and U.S. Department of Defense, National Guard Bureau, The Adjutant General,
State of Oregon, 51 FLRA 1549 (AFGE, Local 2986) (Joint Appendix ("JA") at
10), on July 19, 1996. In Case No. 96-1363, the decision under review was
issued by the Authority on exceptions to an arbitration award in American
Federation of Government Employees, Local 3006 and U.S. Department of
Defense, National Guard Bureau, Idaho National Guard, Adjutant General,
State of Idaho, 51 FLRA 1693 (AFGE, Local 3006) (JA at 22), on July 31,
1996.[1]
This Court lacks subject matter jurisdiction to review these Authority
decisions involving arbitrators' awards because section 7123(a) of the
Federal Service Labor-Management Relations Statute, as amended, 5 U.S.C. §§
7101-7135 (1994 & Supp. II 1996) ("Statute") bars such review.[2]
STATEMENT OF THE ISSUES
I. Whether this Court lacks subject matter jurisdiction, pursuant to
section 7123(a), to review the Authority's decisions setting aside
arbitrators' awards under 5 U.S.C. § 7122 that do not involve an unfair
labor practice.
II. Whether any of the few exceptions to the general bar to judicial review
of Authority arbitration decisions under section 7122 are applicable to this
case.
III. Assuming, for the sake of argument, that the Court has jurisdiction,
whether the Authority properly determined that it had jurisdiction under 5
U.S.C. § 7122(a) to review arbitrators' awards resolving grievances over
severance pay.
STATEMENT OF THE CASE
I. Nature of the Case
Petitioners in these cases, American Federation of Government Employees,
Locals 2986 and 3006 (collectively referred to as "AFGE" or "petitioners"),
improperly seek to invoke the jurisdiction of this Court to review the
Authority's decisions overturning arbitrators' awards in AFGE, Local 2986
and AFGE, Local 3006. In both decisions, the Authority (former Member
Armendariz dissenting) determined that it had jurisdiction to consider the
agency's exceptions to the arbitrators' awards pursuant to section 7122(a)
of the Statute. The arbitrators' awards ruled that the National Guard
Bureau ("NGB" or "agency") improperly denied the grievants severance pay
pursuant to 5 U.S.C. § 5595 and 5 C.F.R. pt. 550, subpt. G. The Authority
thereafter determined that the awards were contrary to law and regulation
and set them aside. AFGE filed petitions for review in both cases, which
the Court consolidated.[3]
II. Statement of the Facts
A. Background
1. Pertinent National Guard Technician statutes and regulations
The factual backgrounds of the two cases are similar. Both cases concern
the removal of the grievants from National Guard Civilian Technician
positions for failure to maintain military membership and the agency's
subsequent denial of severance pay to the grievants.
National Guard Civilian Technicians are employed pursuant to the National
Guard Technician Act of 1968, 32 U.S.C. § 709 (1994). Section 709(e)(1)
provides: "[A] technician who is employed in a position in which National
Guard membership is required as a condition of employment and who is
separated from the National Guard . . . shall be promptly separated from
his technician employment by the adjutant general of the jurisdiction
concerned." 32 U.S.C. § 709(e)(1). The grievants in these cases were
employed in such positions.
Severance pay is governed by 5 U.S.C. § 5595, which provides that an
employee is entitled to severance pay if the employee "is involuntarily
separated from the service, not by removal for cause on charges of
misconduct, delinquency, or inefficiency." 5 U.S.C. § 5595(b)(2).
According to the severance pay regulations, an employee must be "removed
from Federal service by involuntary separation" in order to be entitled to
severance pay. 5 C.F.R. § 550.704. The regulations define "involuntary
separation" as "separation initiated by an agency against the employee's
will and without his or her consent for reasons other than inefficiency."
"Inefficiency" is defined as "unacceptable performance or conduct that leads
to a separation under part 432 or 752 of this chapter or an equivalent
procedure." 5 C.F.R. § 550.703.
2. Factual background
The specific factual background for each of these cases is set forth below.
a. AFGE, Local 2986
i. Facts
The agency terminated the grievants from their employment as National Guard
Civilian Technicians due to their failure to maintain military membership in
the Oregon National Guard. (JA at 10, 41-42.) Specifically, the grievants
failed to comply with military weight standards. The agency determined that
their noncompliance did not result from a medical condition beyond their
control. (JA at 11, 41.) They were therefore discharged from the military,
and consequently, their civilian positions. (Id.)
The agency denied the grievants severance pay under 5 U.S.C. § 5595, because
the agency determined that their separation from military status was
voluntary. (JA at 42.) In making this determination, the agency relied
primarily on Technician Personnel Regulation (TPR) 990-2. (JA at 11, 42.)
TPR 990-2 provides, "[s]eparation due to loss of military membership for
failure to comply with the weight control program bars a technician's
entitlement to severance pay." (JA at 42.) Local 2986 filed a grievance
challenging the agency's denial of severance pay. (JA at 11, 30.)
ii. The arbitrator's award
The arbitrator determined that the grievants were entitled to severance pay
because, according to the arbitrator and in contrast to the agency's
finding, their separation from service was involuntary. (JA at 55, 59.) In
his opinion and award, the arbitrator analyzed the applicable statutes and
regulations. He concluded that TPR 990-2 conflicts with 5 U.S.C. § 5595 and
5 C.F.R. § 550.703,[4] and that the grievants were "'involuntarily
separated'" from employment. (JA at 59.) As a result, the arbitrator
directed that the grievants be paid severance pay in accordance with 5
U.S.C. § 5595. (JA at 60.)
iii. The Authority's decision
The agency filed exceptions to the arbitrator's award with the Authority
asserting, among other things, that the arbitrator's award was deficient
because it conflicted with the controlling regulation, TPR 990-2, and
because the arbitrator's interpretation of the statute and regulations was
in error. (JA at 10, 12.) In its opposition to these exceptions, Local
2986 alleged, as relevant to this appeal,[5] that the Authority should
dismiss the agency's exceptions for lack of jurisdiction. (JA at 12-13.)
According to Local 2986, the Authority did not have jurisdiction to consider
the agency's exceptions under section 7122(a), because the award "relat[ed]
to a matter described in section 7121(f)"--the grievants' removal from
employment.[6] (Id.)
In its decision setting aside the arbitrator's award, the Authority first
addressed and rejected Local 2986's jurisdictional argument. (JA at 13-14.)
The Authority concluded that it had "jurisdiction to review exceptions to an
award resolving a grievance over severance pay," (JA at 14), because the
arbitrator's award did not "relate[] to a matter described in section
7121(f)," as set forth in section 7122(a) (JA at 13). In making this
determination, the Authority considered the language in the Statute,
congressional intent, and policy considerations. (JA at 15.)
The Authority next considered the merits of the arbitrator's award and,
finding the award to be contrary to law, set it aside. In making this
decision, the Authority considered and followed the advisory opinion it
requested from the Office of Personnel Management ("OPM") regarding the
application of the severance pay statute and regulations to civilian
technicians. (JA at 12, 98.) Consistent with OPM's opinion, the Authority
concluded that the grievants were not entitled to severance pay and that the
arbitrator's award was contrary to 5 U.S.C. § 5595 and 5 C.F.R. pt. 550,
subpt. G. (JA at 17.)
b. AFGE, Local 3006
i. Facts
The agency terminated the grievant from his employment as a National Guard
Civilian Technician due to his failure to maintain military membership in
the Idaho National Guard. (JA at 23, 72.) As in AFGE, Local 2986, the
subsequent denial of severance pay to the affected employee precipitated the
grievance and arbitration in this case. (JA at 23, 72-73.)
The grievant was discharged from the National Guard because the Idaho
National Guard declined to remove a bar to the grievant's reenlistment. (JA
at 23, 72.) In 1989, the Idaho National Guard had extended grievant's
military reenlistment for only three years because of incidents that
"reflected negatively on his leadership abilities and performance." (JA at
67.) In 1992, the agency's continuing concern about the grievant's attitude
and performance resulted in the bar to the grievant's reenlistment[7] and
the grievant's eventual discharge from the National Guard. (JA at 70, 72.)
The agency denied the grievant severance pay under 5 U.S.C. § 5595, because
the agency determined that "his loss of military membership was for cause."
(JA at 72.) In making this determination, the agency relied primarily on
TPR 990-2. (JA at 23, 72.) TPR 990-2, subchapter S7-4 provides that a
civilian technician is not entitled to severance pay "when it can be
reasonably established and documented that failure to accept the application
[for reenlistment] is for reason of misconduct, delinquency, or
inefficiency." (JA at 23, 84.) Because the grievant's denial of
reenlistment was "for cause," the agency concluded that, pursuant to TPR
990-2, he was not entitled to severance pay. (JA at 72.) Local 3006 filed
a grievance challenging the agency's denial of severance pay. (JA at 23,
73.)
ii. The arbitrator's award
The arbitrator determined that the grievant was entitled to severance pay
because his separation from service was involuntary. (JA at 95.) In his
opinion and award, the arbitrator analyzed the severance pay statute and
regulations, 5 U.S.C. § 5595 and 5 C.F.R. § 550.703, as well as TPR 990-2.
(Id.) The arbitrator concluded that the agency did not reasonably establish
and document that the grievant was discharged for misconduct, delinquency,
or inefficiency, as required for denial of severance pay under TPR 990-2.
(Id.) As a result, the arbitrator found the grievant's separation was
involuntary and ruled that the grievant was entitled to severance pay in
accordance with 5 U.S.C. § 5595 and 5 C.F.R. § 550.703. (Id.)
iii. The Authority's decision
The agency filed exceptions to the arbitrator's award with the Authority.
(JA at 22.) The agency asserted, among other things, that the arbitrator's
award was deficient because the arbitrator exceeded his authority by ruling
on the substance of the military's decision not to remove the bar to
reenlistment and by substituting his judgment for that of the military
leadership. (JA at 24.) The agency also maintained that the arbitrator's
decision was deficient because it conflicted with TPR 990-2 and was based on
non-facts. (Id.)
In its opposition, Local 3006 alleged, as relevant to this appeal,[8] that
the Authority should dismiss the agency's exceptions for lack of
jurisdiction. (JA at 24-25.) According to Local 3006, the Authority did
not have jurisdiction to consider the agency's exceptions under section
7122(a),
because the award "relat[ed] to a matter described in section 7121(f) of the
Statute." (Id.)
In its decision setting aside the arbitrator's award, the Authority first
addressed Local 3006's jurisdictional argument and determined that it had
jurisdiction to review the arbitrator's award regarding severance pay. (JA
at 25-26.) The Authority concluded, as it had done in AFGE, Local 2986,
"that awards resolving grievances over denials of severance pay do not
relate to any matters described in section 7121(f), within the meaning of
section 7122(a) of the Statute." (JA at 26.) The Authority next considered
the merits of the arbitrator's award, and, finding the award to be contrary
to agency regulation, set it aside. (JA at 22, 26-27.)
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.
Ramey v. Bowsher, 9 F.3d 133, 136 n.7 (D.C. Cir. 1993). In the event that
the Court determines that it has jurisdiction to consider the Authority's
own jurisdictional determination regarding its review of the arbitrators'
awards here involved, the standard of review is narrow. As the Supreme
Court has stated, the Authority is entitled to "considerable deference when
it exercises its 'special function of applying the general provisions of the
[Statute] to the complexities of federal labor relations.'" Bureau of
Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983). Further,
this Court has held that "an agency's interpretation of the limits of its
jurisdiction is entitled to 'Chevron deference.'" Oxy USA, Inc. v. FERC, 64
F.3d 679, 701 (D.C. Cir. 1995) (Oxy USA); Oklahoma Natural Gas Co. v. FERC,
28 F.3d 1281, 1283-84 (D.C. Cir. 1994).
SUMMARY OF ARGUMENT
This Court is without subject matter jurisdiction over the petitions for
review. The language and legislative history of section 7123(a)(1) of the
Statute, 5 U.S.C. § 7123(a)(1), make clear that Congress intended to bar
judicial review of Authority decisions reviewing arbitration awards that do
not involve an unfair labor practice. All courts of appeals to have
considered this issue, including this one, have recognized this statutory
jurisdictional bar.
None of the few exceptions to the section 7123(a) jurisdictional bar are
applicable here. Petitioners incorrectly suggest in this regard that this
Court has jurisdiction based upon its Customs Service decision, and based
upon the Supreme Court's decision in Leedom v. Kyne. The Customs Service
exception does not apply because the severance pay laws and regulations
involved in these cases, as well as the related statutory provisions
analyzed by the Authority, are integrally related to employee working
conditions. In contrast, as the Customs Service Court indicated,
jurisdiction under Customs Service is available only when the particular
legal authority relied upon by the arbitrator or the Authority was not
"fashioned for the purpose of regulating the working conditions of
employees." (43 F.3d 682, 691.)
The Leedom exception is also inapplicable. Petitioners have not
demonstrated that there is a clear statutory mandate that the Authority has
violated. Further, jurisdiction under the Leedom exception is properly in
the federal district court and not the court of appeals.
Finally, even assuming that judicial review is available in these cases, the
Authority's jurisdictional decisions challenged by petitioners should be
affirmed. The Authority correctly and reasonably interpreted the Statute in
holding that it had jurisdiction to review these arbitration awards
involving severance pay. In making its decisions, the Authority carefully
considered the plain language of section 7122(a), other relevant statutory
provisions, and congressional intent. This reasonable interpretation by the
Authority of its own Statute, which is entitled to deference, should be
affirmed.
ARGUMENT
I. Pursuant to 5 U.S.C. § 7123(a), this Court lacks subject matter jurisdiction
to review the Authority's decisions setting aside arbitrators' awards issued
under 5 U.S.C. § 7122 that do not involve an unfair labor practice
A. Introduction
As this Court has recognized, Authority arbitration decisions issued
pursuant to section 7122 are not subject to judicial review in the courts of
appeals under section 7123(a), unless the order involves an unfair labor
practice ("ULP"). United States Dep't of Justice, U.S. Federal Bureau of
Prisons v, FLRA, 981 F.2d 1339, 1342 (D.C. Cir. 1993)(Bureau of Prisons);
Griffith v. FLRA, 842 F.2d 487, 490-91 (D.C. Cir. 1988) (Griffith).[9] This
holding is supported both by the plain language of the Statute and its
legislative history. Because the instant petitions for review involve just
such Authority decisions, and because it is undisputed that no ULPs are
involved, they must be dismissed as an attempt to evade the specific
strictures Congress placed on judicial review of Authority decisions
reviewing arbitrators' awards.
B. The Statute's language and legislative history make
clear that Congress intended to bar judicial review of
Authority decisions on exceptions to arbitrators' awards
It is axiomatic that federal court jurisdiction is conferred by Congress and
that Congress may limit or foreclose review as it sees fit. American Fed'n
of Labor v. NLRB, 308 U.S. 401 (1940); Wydra v. Law Enforcement Assistance
Admin., 722 F.2d 834, 836 (D.C. Cir. 1983). With respect to the Statute,
examination of its language and legislative history provides "a clear and
convincing showing that Congress intended to prohibit judicial oversight" of
Authority decisions in arbitration cases not involving a ULP. 5 U.S.C. §
7123(a); DOJ, 792 F.2d at 27. As noted by this Court in Griffith, there is
"unusually clear congressional intent generally to foreclose review." 842
F.2d at 490.
1. The Statute's language
The Statute's language embodies the strict limits Congress set on judicial
review of Authority decisions concerning arbitrators' awards. Section
7123(a) of the Statute specifically precludes judicial review of certain
Authority decisions and orders. This section states, in relevant part:
Any person aggrieved by any final order of the Authority other than an order
under--
(1) section 7122 of this title (involving an award by an
arbitrator), unless the order involves an unfair labor practice
under section 7118[10] of this title, . . . .
. . . .
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order . . . .
5 U.S.C. § 7123(a). Thus, the plain language of 5 U.S.C. § 7123(a) bars
judicial review of Authority decisions on exceptions to arbitrators' awards,
narrowly restricting the jurisdiction of the courts of appeals to review an FLRA
arbitration decision to those instances that "involve[] an unfair labor
practice" under the Statute.[11] Overseas Educ. Ass'n v. FLRA, 824 F.2d 61, 63
(D.C. Cir. 1987) (OEA). This broad jurisdictional bar to the review petitioners
seek here has been recognized by all of the courts of appeals, including this
one, that have considered the issue. See cases cited supra, n.9. 2. The
Statute's legislative history
The legislative history of section 7123(a) underscores the tight
restrictions Congress placed on review of Authority decisions in arbitration
cases issued under section 7122. Congress strongly favored arbitrating
labor disputes, and sought to create a scheme characterized by finality,
speed, and economy. To this end, the conferees discussed judicial review in
the following terms:
[T]here will be no judicial review of the Authority's action on those
arbitrators awards in grievance cases which are appealable to the Authority.
The Authority will only be authorized to review the award of the arbitrator on
very narrow grounds similar to the scope of judicial review of an arbitrator's
award in the private sector. In light of the limited nature of the Authority's
review, the conferees determined it would be inappropriate for there to be
subsequent review by the court of appeals in such matters.
H.R. Rep. No. 1717, 95th Cong., 2d Sess. 153 (1978), reprinted in Subcomm. on
Postal Personnel and Modernization of the Comm. on Post Office and Civil Serv.,
96th Cong., 1st Sess., Legislative History of the Federal Serv. Labor-Management
Relations Statute, Title VII of the Civil Serv. Reform Act of 1978, at 821
(1978) (Legis. Hist.) (emphasis added). The conference committee also indicated
its intent that once an arbitrator's award becomes "final and binding," it is
"not subject to further review by any . . . authority or administrative body"
other than the FLRA. Id. at 826 (emphasis added). Thus, "[t]he rationale for
circumscribed judicial review of such cases is not hard to divine." OEA, 824
F.2d at 63. See generally Griffith, 842 F.2d at 491-92; DOJ, 792 F.2d at 28-29;
Marshals Serv., 708 F.2d at 1420.
Accordingly, the language and legislative history of the Statute establish
conclusively that Congress intended that there be "no judicial review of the
Authority's action on . . . arbitrators awards . . . ." Legis. Hist. at
821. Because the Authority's decisions on review of the arbitrators' awards
in these cases concededly did not involve any unfair labor practice, and
because no other jurisdictional basis exists, no review of the decisions is
available in this Court. The petitions for review must therefore be
dismissed.
II. None of the few exceptions to the general bar to judicial review of
Authority arbitration decisions under section 7122 are applicable to this case
The few exceptions that have been recognized to the general bar to judicial
review of Authority arbitration decisions are not applicable in this case.
In addition to the express exception in section 7123(a)(1), concerning
Authority decisions involving a ULP, this Court has indicated that an
exception to the jurisdictional bar may be present where the Authority
exceeds its jurisdiction by upholding an arbitrator's award dealing with a
grievance claiming a violation of a law that was not issued for the purpose
of affecting working conditions, United States Dep't of the Treasury, United
States Customs Serv. v. FLRA, 43 F.3d 682, 689 (D.C. Cir. 1994) (Customs
Service); where the Authority exceeds its delegated powers and acts contrary
to a clear statutory mandate, Griffith, 842 F.2d at 492-93 (citing Leedom v.
Kyne, 358 U.S. 184 (1958) (Leedom)); and where the Authority's proceedings
clearly violate a party's constitutional rights.[12]
Petitioners have failed to show that any of the potential exceptions to
section 7123(a)'s jurisdictional bar is applicable.
A. The Customs
Service exception is inapplicable
1. This Court's holding in Customs Service does not apply to this case and
thus does not provide a basis for jurisdiction
Contrary to petitioners' contentions, this Court's decision in Customs
Service, 43 F.3d 682, provides no basis for finding jurisdiction in this
case. In Customs Service, the Court found limited jurisdiction to review an
Authority arbitration decision. Id. at 690-91. The Authority's decision on
review in Customs Service upheld the arbitrability of a grievance alleging a
violation of a customs law that, the Court held, was not issued for the
"purpose of affecting the working conditions of employees . . . ."[13] Id.
at 689. In these cases, however, the grievances are predicated on a law
integrally related to an employee working condition--severance pay.
The Customs Service Court made clear that its jurisdiction to consider the
Authority's arbitration review decision was based on the nature of the law
that the grievance alleged had been violated. Id. at 689. As the Court
indicated, its jurisdiction was only available if the particular legal
authority relied upon by the arbitrator or the Authority was not "fashioned
for the purpose of regulating the working conditions of employees." Id. at
691.
In contrast to the law involved in Customs Service, all of the laws and
regulations implicated by the Authority's decisions challenged in this
proceeding are "directed toward employee working conditions . . . ." Id. at
689. In the instant cases, the Authority considered federal laws and
regulations concerning severance pay, and the Labor Statute itself.
These cases, therefore, are comparable to the Griffith case, distinguished
by the Court in Customs Service, in which the Court held that judicial
review was not appropriate. 43 F.3d at 689 (citing Griffith, 842 F.2d at
494). Griffith involved the Authority's review and modification of an
arbitrator's award of back pay under the Back Pay Act, 5 U.S.C. § 5596.
Griffith, 842 F.2d at 489. As the Customs Service Court stated, and as
applicable here, "further judicial review of the statutory claim [in
Griffith] was barred," because Griffith "concerned the interstices of a
federal statute that undisputedly was designed to deal directly with
employee working conditions." 43 F.3d at 689.
Moreover, it cannot be said in these cases that the Authority exceeded its
power as the Court found that it did in Customs Service. In Customs
Service, the Court determined that the Authority found grievable and
arbitrable a law not "fashioned for the purpose of regulating the working
conditions of employees." Id. at 691. The Court explained that "a
'grievance' predicated on a claim of violation of a law that is not
directed toward employees working conditions is outside both the
arbitrator's and the FLRA's jurisdiction." Id. at 689. Although
petitioners have challenged the Authority's jurisdiction to consider the
exceptions to the award under section 7122(a), unlike the excepting agency
in Customs Service, id. at 686, petitioners never alleged that the
grievance was not arbitrable. The arbitrability of the grievances was not,
nor should it have been, an issue. Thus, for this reason as well, the
Customs Service jurisdictional exception does not apply.
In short, the Customs Service exception does not apply because these cases
involve a law issued for the purpose of affecting employee working
conditions. Thus, the Court's reasoning in Customs Service, addressing a
law that lacked that purpose, does not apply here.
2. AFGE mischaracterizes and wrongly relies upon the Customs Service
jurisdictional exception to the bar to review of Authority arbitration decisions
Petitioners' reliance upon Customs Service is misplaced for two additional
reasons. First, petitioners erroneously contend that Customs Service ruled
that the Court always has jurisdiction to review Authority arbitration
decisions to determine whether the Authority exceeded its jurisdiction.
(Brief at p. 9, citing Customs Service, 43 F.3d at 691.) However, in so
doing, petitioners focus upon statements by the Court taken out of context.
Although the Customs Service Court stated that its review of Authority
arbitration decisions "is available for the limited purpose of determining
whether the Authority exceeds its jurisdiction," the Court did not go so far
as to suggest that any Authority arbitration decision proceeding in which a
party challenges the Authority's jurisdiction to review an arbitration
award, as in these cases, is subject to judicial review. Id. at 691.
Indeed, under petitioners' theory, any party dissatisfied with the
Authority's action on exceptions to an arbitration decision would be
encouraged to seek judicial review in a court of appeals and assert that the
court had jurisdiction for the limited purpose of determining if the
Authority properly exercised jurisdiction. Instead, as shown above, the
Court in Customs Service indicated that its jurisdiction was available only
if the law in question was not "fashioned for the purpose of regulating the
working conditions of employees." Id.
Second, petitioners posit a general presumption favoring judicial review,
contending that this presumption trumps section 7123(a)'s express bar to
judicial review of Authority arbitration decisions. Petitioners assert in
this regard that the Customs Service determination reflects this Court's
acknowledgment of such a presumption.
What petitioners ignore in making this argument is the fact that this Court
has considered the Court's lack of jurisdiction to review an Authority
arbitration decision under 7123(a) in connection with the general
presumption favoring judicial review and has reconciled the two. Griffith,
842 F.2d at 490. In finding in Griffith that "Congress intended to cut off
judicial review of FLRA decisions regarding arbitral awards," id. at 492,
the Court noted that its "construction of this [section 7123(a) language] is
informed by the general presumption favoring judicial review in the absence
of 'clear and convincing evidence of a contrary legislative intent.'" Id.
at 490 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967)).
In sum, petitioners' suggestions that this Court has jurisdiction to
consider the Authority's decisions reviewing arbitration awards in these
cases based upon Customs Service are without merit and should be rejected.
B. The narrow Leedom v. Kyne exception to nonreviewability of Authority
arbitration decisions is inapplicable here because an "open" violation of a
"clear" statutory mandate cannot be shown
The only other theoretical exception to section 7123(a)'s jurisdictional bar
raised by petitioners--the doctrine articulated in Leedom, 358 U.S. 184--is
also inapplicable in this case. The Leedom exception is extremely narrow.
To establish jurisdiction, Leedom requires a showing that the Authority
"openly violate[d] a clear mandate" of the Statute. Customs Service, 43
F.3d at 688. See also Bureau of Prisons, 981 F.2d at 1343; Griffith, 842
F.2d at 493-94. This petitioners cannot do.
In Leedom, the Supreme Court set forth a narrow exception to the general
rule of nonreviewability of National Labor Relations Board ("Board")
representation proceedings. The Court found that district court equity
jurisdiction existed where the Board had violated a clear mandate of its
enabling statute. 358 U.S. at 188.[14] In that instance, the Court
reasoned, "'[i]f the absence of jurisdiction of the federal courts meant a
sacrifice or obliteration of a right which Congress had created, the
inference would be strong that Congress intended the statutory provisions
governing the general jurisdiction of those courts to control.'" Id. at
190 (quoting Switchmen's Union of North America v. National Mediation Bd.,
320 U.S. 297, 300 (1943)).
There are two reasons why this Court should reject any attempt by
petitioners to invoke jurisdiction on the authority of Leedom. First, only
federal district courts, not the courts of appeals, have original
jurisdiction to consider the merits of such claims under general
jurisdictional provisions such as 28 U.S.C. §§ 1331, 1337 (1994). Leedom,
358 U.S. at 189; Customs Service, 43 F.3d at 688, n.6; Physicians Nat'l
House Staff Ass'n v. Fanning, 642 F.2d 492, 495 (D.C. Cir. 1980), cert.
denied, 450 U.S. 917 (1981) (Fanning). Second, even if the claims were in
the proper forum, under Leedom, petitioners have failed to identify a
specific provision of the Statute which, "although . . . 'clear and
mandatory,' . . . has nevertheless been violated by the [Authority]."
Fanning, 642 F.2d at 496 (emphasis added).
As to the first point, in seeming recognition that a Leedom argument must be
raised in the federal district courts, petitioners ask this Court to
"consider transferring the petitions to the United States District Court for
the District of Columbia . . . ." (Brief at 16.) Petitioners maintain that
the federal district court "could exercise nonstatutory review of the FLRA's
unauthorized actions" based upon Leedom. (Brief at 16.) However, this
Court could only properly transfer these cases to the District Court if
proper jurisdiction lies in that court. Workplace Health & Safety Council
v. Reich, 56 F.3d 1465, 1469 (D.C. Cir. 1995) ("federal court which lacks
jurisdiction over petition for review of agency action 'shall, if it is in
the interest of justice, transfer such action or appeal to any other such
court in which the action or appeal could have been brought . . . .'");
Wellife Products v. Shalala, 52 F.3d 357, 359 (D.C. Cir. 1995) (same).
Leedom provides for jurisdiction in federal district court only if the
Authority has violated a clear statutory mandate. Because petitioners have
failed to make even a colorable Leedom claim, and therefore have not shown
that it would be "in the interest of justice" for this Court to transfer
these cases, id., the Court should deny petitioners' request.
With regard to petitioners' failure to identify the Authority's violation of
a "clear and mandatory" provision of the Statute, Fanning, 642 F.2d at 496,
petitioners suggest, albeit not in specific reference to the Leedom
analysis, that the Authority's section 7122(a) analysis is a violation of
the Statute. (Brief at 14-16.) However, petitioners do not identify any
specific "clear and mandatory" language that the Authority has violated.
Moreover, petitioners' disagreement with the Authority's interpretation of
the "relating to" language in section 7122(a) does not constitute such a
showing. Cf. Customs Service, 43 F.3d at 688 (rejecting the Customs
Service's reliance on Leedom, despite the fact that the Court ultimately
disagreed with the Authority's interpretation of the Statute).[15]
Petitioners' additional assertions, without further explanation, that the
Authority exceeded its jurisdiction do not amount to a colorable Leedom
argument. Petitioners state in this regard that the Authority's actions in
these cases were ultra vires (Brief at 7, 15); that the Authority "violated
statutory limitations on its appellate power" (Brief at 7); and that "the
Statute does not give the FLRA authority to review arbitration awards
related to adverse actions" (Brief at 8). Petitioners' claims consist of
nothing more than bald assertions that the Authority erroneously or
arbitrarily exerted its authority or that it committed an error of law.
Such assertions do not meet the narrow Leedom exception to nonreviewability
of Authority arbitration decisions. Bureau of Prisons, 981 F.2d at 1343;
Griffith, 842 F.2d at 493.
As described in more detail in section III below, the Authority has
fulfilled all aspects of its statutory mandate in these cases. Consistent
with its obligations under the Statute, it considered its authority to
review these arbitration awards based upon section 7122(a). After analysis
of the relevant statutory provisions and consideration of congressional
intent, the Authority determined that it had jurisdiction to review these
awards. In these circumstances, there is no basis for applying the Leedom
exception to these cases.
In sum, the Authority's actions were well within the legal limits imposed by
the Statute. Petitioners' mere disagreement with the merits of the
Authority's jurisdictional determination in this regard does not rise to the
level of a colorable Leedom claim. Because petitioners can present no basis
for finding that either the District Court or this Court has jurisdiction
based on Leedom, petitioners' transfer request should be denied and the
petitions dismissed for lack of subject matter jurisdiction.
III. Even if this Court determines that it has jurisdiction to review the
Authority's jurisdictional determination, the Authority properly found that it
had jurisdiction to review these arbitrators' awards involving severance pay
These cases presented the Authority with the jurisdictional issue of whether
the arbitrators' awards involving severance pay disputes were awards
"relating to a matter described in section 7121(f)" and thus excepted from
review by the Authority under section 7122(a). The Authority correctly
held, contrary to the unions' argument, that it had jurisdiction to review
the awards because severance pay issues do not "relate[] to" the matters in
section 7121(f). To supply a context for a discussion of the issues
resolved by the Authority, a brief review of the relevant statutory
provisions is necessary.
A. The statutory scheme concerning grievance arbitration
Grievance procedures established in a collective bargaining agreement are,
with certain exceptions,[16] the exclusive administrative means for
resolving grievances within the agreement's coverage. 5 U.S.C. § 7121. See
Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir.) (en banc), cert. denied, 498 U.S.
811 (1990). A grievance may allege a violation of the collective bargaining
agreement, or the misapplication of a law, rule or regulations "affecting
conditions of employment." 5 U.S.C. § 7103(a)(9). Unresolved grievances
may be submitted to binding arbitration. 5 U.S.C. § 7121(b)(1)(C)(iii).
Congress has entrusted the Authority with the responsibility for resolving
exceptions to arbitrators' awards. 5 U.S.C. § 7105(a)(2)(H). Either party
to arbitration may file an exception to the arbitrator's award with the
Authority. 5 U.S.C. § 7122(a).
Particularly pertinent to these cases, the Authority has jurisdiction to
consider exceptions to an arbitrator's award, unless, as discussed at p. 7
above, the award "relat[es] to a matter described in section 7121(f)." 5
U.S.C. § 7122(a). If the award "relat[es] to" a section 7121(f) matter - a
removal pursuant to 5 U.S.C. § 4303 or § 7512, or a similar matter under
another personnel system - the United States Court of Appeals for the
Federal Circuit has jurisdiction to review the award as it would a decision
of the Merit Systems Protection Board ("MSPB") regarding such a removal.
See 5 U.S.C. §§ 7121(f), 7703.
B. The Authority correctly held that an arbitration award resolving a severance
pay dispute is not an award "relating to a matter described in section 7121(f)"
of the Statute
Finding that it had jurisdiction under sections 7122(a) and 7121(f) of the
Statute to review arbitrators' awards concerning severance pay, the
Authority focused primarily on the meaning of the phrase "relating to" in
section 7122(a). The Authority's decision in this regard is consistent with
the language of section 7122(a) of the Statute, as well as other relevant
statutory provisions and congressional intent. In particular, the
Authority's decision respects Congress's intent that federal personnel
issues receive consistent and uniform treatment when they are reviewed
administratively and judicially, and that a multiplicity of litigation be
avoided. Similarly, the Authority's decision prevents the possibility that
parties to arbitrators' awards involving severance pay issues would be
deprived of a forum in which to seek review of such awards.
Section 7122(a) is the fundamental statutory provision defining the
Authority's jurisdiction in these cases. Among other things, section
7122(a) limits the Authority's jurisdiction to review arbitrators' awards by
excluding awards "relating to" the matters described in section 7121(f) of
the Statute. Section 7121(f) provides the procedure for review of
arbitration awards resolving grievances filed pursuant to section 7121(e).
Section 7121(e) in turn refers to matters covered under sections 4303 and
7512 of title 5, United States Code, as well as "[s]imilar matters which
arise under other personnel systems . . . ." 5 U.S.C. § 7121(e). These
section 7121(e) matters encompass particular personnel actions, generally of
a serious character, such as removals from employment and lengthy
suspensions for employee misconduct or poor work performance.
Thus, the question for purposes of these cases is the breadth of the phrase
"relating to." As the Authority observed, the phrase "relating to" is not
defined by the Statute, and the phrase "itself is ambiguous." (JA at 14.)
Depending upon how broadly that phrase is interpreted, section 7122(a) might
exclude from the Authority's jurisdiction only awards dealing with matters
that are specifically covered by sections 4303 and 7512 and similar matters
under other personnel systems, or, alternatively, it might be read to
eliminate from the Authority's jurisdiction other matters that are separate
from section 4303 and 7512 personnel actions, but are still connected in
some manner. Id. Because of the phrase's inherent ambiguity, the Authority
appropriately looked for guidance to other indications of congressional
intent.
As the Authority recognized, section 7121(e) establishes an option for an
employee who decides to challenge an adverse action under section 4303 or
section 7512 of title 5, or a similar matter arising under other personnel
systems. 5 U.S.C. § 7121(e). According to section 7121(e), an employee can
file a grievance under the negotiated grievance procedure, or can appeal the
matter to the MSPB or through the comparable appellate procedure under
another personnel system. Id. Section 7121(f) then provides the procedure
for review of arbitration awards resolving grievances filed pursuant to
section 7121(e). Thus, a grievance regarding a matter that could have been
appealed to the MSPB will be subject to the same review as if the matter had
been considered by the MSPB in the first instance--by the U.S. Court of
Appeals for the Federal Circuit rather than the Authority.
This statutory scheme reflects a strong congressional intent to secure a
consistent appellate forum for review of arbitration awards and
administrative decisions involving section 4303 or 7512 actions or similar
matters under other personnel systems, regardless of whether a particular
action is contested through the applicable administrative procedure or in a
grievance before an arbitrator. See also H. Rep. No. 1717, 95th Cong., 2d
Sess. 157 (1978), reprinted in 1978 U.S.C.A.N. 2891 (same). Similarly, the
scheme advances Congress' intent to discourage forum shopping. Id.
Petitioners acknowledge, in this regard, that Congress intended for these
provisions to ensure "'uniformity of direct review of adverse personnel
actions.'" (Brief at 9, quoting AFGE v. FLRA, 850 F.2d 782, 784 (D.C. Cir.
1988).)
Analyzing the severance pay issue with such policy considerations in mind,
the Authority properly determined that severance pay did not "relate to" the
matters set forth in section 7121(f). Consistent with the obvious
congressional intent to avoid multiple proceedings, no other forum has
jurisdiction over severance pay disputes. See, e.g., Ward v. U.S. Consumer
Product Safety Comm'n, 8 MSPR 603, 604 (1981). In this circumstance, for
the Authority to decline jurisdiction would deprive the parties of the
opportunity to have severance pay awards reviewed, clearly not a result
"required by the Statute nor needed to further any discernible public
policy." (JA at 16.)
Based upon the factors set forth above, the Authority reasonably concluded
that a narrow interpretation of the "relating to" phrase in section 7122(a)
was most appropriate. As a consequence, the Authority correctly asserted
jurisdiction to review these arbitration awards involving severance pay
issues. Because the Authority's interpretation of the Statute it
administers was reasonable, and its opinion as to the limits of its own
jurisdiction is entitled to deference, Oxy USA, 64 F.3d at 701, the
Authority's conclusion should be affirmed.
C. AFGE's contentions regarding the Authority's jurisdictional determination
are without merit
Petitioners' contentions that the Authority has improperly disregarded its
prior precedent are erroneous. The Authority explicitly reconciled any such
conflicts in its AFGE, Local 2986 decision.
As petitioners point out, the Authority's jurisdictional determination in
AFGE, Local 2986, which was followed in AFGE, Local 3006, overturned the
Authority's previous conclusion in American Federation of Government
Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit
Agency, Central Region, 49 FLRA 1482 (1994) (DCAA). The Authority ruled in
DCAA that it lacked jurisdiction to consider an arbitration award involving
a severance pay issue.
Contrary to petitioners' assertions, the Authority sufficiently explained
its departure from its DCAA precedent. The Authority specifically noted
that, based upon its careful reexamination of the relevant statutory
provisions, it determined that the DCAA decision "interpreted the phrase
'relating to' in section 7122(a) more broadly than is warranted by the
Statute." (JA at 14.) The Authority is "free to alter its past rulings and
practices," but, in making such alterations, "must supply a reasoned
analysis indicating that prior policies and standards are being deliberately
changed, not casually ignored . . . ." Local 32, American Federation of
Government Employees v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985). That is
precisely what the Authority has done with regard to DCAA.
Petitioners' additional contention (Brief at 17-21) that the Authority's
decisions in these cases are inconsistent with prior precedent that the
Authority did not overturn is also incorrect. As the Authority recognized,
it has declined jurisdiction over arbitration awards that are "'inherently
related'" to section 7121(f) matters. See, e.g., Overseas Educ. Ass'n and
U.S. Dep't of Defense Dependents Schools, 46 FLRA 1145 (1993) (declining
jurisdiction to review supplemental attorney fee awards when the underlying
arbitration award involved a section 7512 removal); U.S. Dep't of the Army,
Army Reserve Personnel Center, St. Louis, Mo. and American Federation of
Government Employees, Local 900, 34 FLRA 96 (1989) (declining jurisdiction
to review exception to arbitrator's award involving a backpay issue related
to grievants' section 7512 removal action).
Severance pay, however, is not "inextricably intertwined with a section 4303
or 7512 matter." By regulation, severance pay is not available in a
"separation under part 432 or 752 of this chapter [section 4303 and 7512
adverse action regulations] or an equivalent procedure." 5 C.F.R. §
550.703. Furthermore, as the Authority pointed out, eligibility for
severance pay depends upon a variety of factors that have no connection to
an employee's removal from service, such as the employee's type of
appointment and the length of the employee's service. See 5 C.F.R. §
550.704 (1997). Severance pay issues are thus distinguishable from such
issues as attorney fees and back pay, that are typically resolved in close
conjunction with the resolution of the 4303 or 7512 matters upon which they
depend.
Petitioners' disagreements with the Authority regarding its interpretation
of the Statute are without merit. The Authority reasonably interpreted the
Statute, and properly determined that it had jurisdiction to review these
arbitration awards.
CONCLUSION
AFGE's petitions for review should be dismissed for lack of subject matter
jurisdiction. If the Court finds that it has jurisdiction over the
consolidated cases, the petitions should be denied.
Respectfully submitted.
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
October 3, 1997
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2986,
Petitioner
v. No. 96-1344
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3006,
Petitioner
v. No. 96-1363
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief For The Federal Labor Relations
Authority, have been served this day, by mail, upon the following:
Mark Roth, Esq.
Anne M. Wagner, Esq.
American Federation of Government Employees, AFL-CIO
80 F Street, N.W.
Washington, D.C. 20001
Thelma Brown
Paralegal Specialist
October 3, 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).
Ann M. Boehm
Attorney
October 3, 1997
[1] On November 1 and November 12, 1996, respectively, the Authority moved
this Court to dismiss the petitions for review in Case No. 96-1344 and Case No.
96-1363 on the ground that the Court lacks subject matter jurisdiction under
section 7123(a). By order dated May 8, 1997, the Court ordered the cases
consolidated and referred the motions to dismiss to the merits panel. The Court
also directed the parties to include in their briefs the arguments raised in the
motions to dismiss.
[2] Relevant statutory and regulatory provisions are set forth in Addendum
A.
[3] In this appeal, AFGE does not challenge the Authority's decision on
the merits, but only the Authority's determination regarding its jurisdiction to
review the arbitrators' awards. (Petitioners' Brief ("Brief") at 12, n.6.)
[4] The arbitrator acknowledged the Authority's decision in U.S.
Department of Defense, National Guard Bureau, Arkansas Army National Guard,
North Little Rock, Arkansas and National Federation of Federal Employees, Local
1671, 48 FLRA 480 (1993) (Arkansas Army National Guard), in which the Authority
found TPR 990-2 controlling regarding severance pay. (JA at 11-12, 59-60.)
Nonetheless, the arbitrator did not follow the Arkansas Army National Guard
decision, because he found that the Authority had failed to consider the
conflict between TPR 990-2 and the severance pay provisions in 5 U.S.C. § 5595
and 5 C.F.R. § 550.703. (Id.)
[5] Because, as noted supra, n.3, AFGE does not challenge the Authority's
decision on the merits, AFGE's merits arguments before the Authority are not
detailed here.
[6] Section 7121(f) establishes the review procedures for arbitration
awards resolving grievances "[i]n matters covered under sections 4303 and 7512"
of title 5 and "[i]n matters similar to those covered under sections 4303 and
7512 . . . which arise under other personnel systems." Section 4303 deals with
removals and reductions-in-grade based upon performance, and section 7512 deals
with removals, suspensions for more than fourteen days, reductions in grade or
pay, and furloughs of thirty days or less based upon employee misconduct. 5
U.S.C. §§ 4303, 7512. The Authority determined that "there is no question that
disputes over severance pay are not covered under section 4303 or 7512." (JA at
15.)
[7] A bar to reenlistment "is a non-punitive probationary device intended
to serve notice that a soldier is not a candidate for reenlistment, immediate
reenlistment or extension and may be discharged if the circumstances that led to
the bar are not overcome." (JA at 82 (quoting National Guard Regulation
600-200, section IV, para. 7-19a).)
[8] As in the companion case, AFGE Local 3006 does not challenge the
merits aspect of the Authority's decision.
[9] Numerous other circuits have also given effect to Congress' intent to
bar judicial review of Authority arbitration review decisions. NTEU v. FLRA,
112 F.3d 402, 405 (9th Cir. 1997); United States Dep't of the Interior, Bureau
of Reclamation, Missouri Basin Region v. FLRA, 1 F.3d 1059 (10th Cir. 1993);
Philadelphia Metal Trades Council v. FLRA, 963 F.2d 38, 40 (3d Cir. 1992);
United States Dep't of Justice v. FLRA, 792 F.2d 25, 27 (2d Cir. 1986) (DOJ);
Tonetti v. FLRA, 776 F.2d 929, 931 (11th Cir. 1985); United States Marshals
Serv. v. FLRA, 708 F.2d 1417 (9th Cir. 1983) (Marshals Serv.); American Fed'n of
Gov't Employees, Local 1923 v. FLRA, 675 F.2d 612, 613 (4th Cir. 1982) (Local
1923).
[10] As the Tenth Circuit has noted, although the text of the Statute
refers to section 7118, that reference "has generally been recognized as an
inadvertent miscitation." American Fed'n of Gov't Employees, Local 916 v. FLRA,
951 F.2d 276, 277, n. 4 (10th Cir. 1991). Section 7116 of the Statute is the
correct reference. Id.
[11] Petitioners acknowledge that "[t]his case does not involve an
allegation of an unfair labor practice." (Brief at p.8, n.3.) Thus, this
Court's jurisdiction cannot be derived from the ULP proviso of section 7123(a)
(1).
[12] Petitioners have not asserted that the Authority deprived them of a
constitutional right, thus warranting judicial intervention notwithstanding the
jurisdictional bar in section 7123(a)(1). As a result, this exception to the
general bar to judicial review will not be addressed herein.
[13] In a subsequent case, the Authority acquiesced in this Court's
conclusion that the law at issue in Customs Service was not a law "affecting
conditions of employment" under section 7103(a)(9)(C)(ii) of the Statute. U.S.
Dep't of the Treasury, U.S. Customs Serv., Pacific Region and National Treasury
Employees Union, 50 FLRA 656 (1995), aff'd sub nom. NTEU v. FLRA, 112 F.3d 402
(9th Cir. 1997).
[14] Specifically, the Board had approved a mixed bargaining unit of
professional and nonprofessional employees without first affording the
professionals an opportunity to elect whether to be separately represented or
included in the mixed unit as required by section 9(b)(1) of the National Labor
Relations Act, 29 U.S.C. § 159(b)(1).
[15] The Dart case relied upon by petitioners in their Customs Service
argument was decided along the lines of the Leedom exception. 848 F.2d 217,
222. In finding that it had jurisdiction to review the administrative action in
that case, this Court found that, because the action constituted a "'facial'"
violation of the statute involved, its review should not be precluded. Id.
Among the examples manufactured by the Court to illustrate "facially invalid"
administrative actions were the Veterans' Administrator's issuance of oil
drilling permits and the Secretary of Labor's rescission of television licenses.
Id. at 224. Obviously, no such flagrant violation of the Statute is present in
these cases.
[16] Under 5 U.S.C. § 7121(d) and (e), an employee has the option of
challenging certain adverse personnel actions covered under 5 U.S.C. §§ 2302(b)
(1), 4303, and 7512 either under the negotiated grievance procedure or under
applicable statutory appeal procedures.
