The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2798, et al.,
Plaintiffs,
Civil Action No. 10-01012 (BAH)
v.
CAROL WALLER POPE, et al.,
Defendants.
MEMORANDUM OPINION
A physician and his labor union brought this lawsuit seeking review of a decision by the
General Counsel of the Federal Labor Relations Authority (“FLRA”) not to issue an unfair labor
practice complaint. The plaintiffs contend that the FLRA General Counsel’s decision not to
issue the unfair labor practice complaint relied on an incorrect interpretation of a statutory term
and that the General Counsel improperly denied as untimely the plaintiffs’ motion for
reconsideration of the decision. As a result, the plaintiffs claim that the defendants – the
Chairman of the FLRA and the FLRA General Counsel – violated their procedural and
substantive due process rights under the United States Constitution and that they misapplied
applicable law, acted beyond their established authority, and engaged in conduct that is arbitrary,
capricious, and an abuse of discretion. As detailed below, since decisions by the FLRA General
Counsel to issue or not to issue unfair labor practice complaints are not subject to judicial
review, the Court dismisses the plaintiffs’ non-constitutional claims for lack of subject matter
jurisdiction. In addition, the Court grants summary judgment for the defendants on the
plaintiffs’ constitutional claims.
I. BACKGROUND
A. The Parties
Plaintiff Mohammed Hussain is a physician who was previously employed at the
Department of Veterans Affairs Medical Center (“VA”) in Washington, D.C. Compl. ¶ 6. The
other plaintiff in this case, American Federation of Government Employees, AFL-CIO,
(“AFGE”) Local 2798, is a labor union that was the bargaining representative for Plaintiff
Hussain and other VA physicians during the period of Hussain’s employment at the VA. Id. ¶¶
4-5. The plaintiffs are suing the Chairman and the General Counsel of the FLRA in their official
capacities. Id. ¶¶ 7-8.
B. Plaintiff Hussain’s Employment at the VA Medical Center
Dr. Hussain worked in the Radiology Therapy Service of the VA for 27 years. See May
20, 2008 Letter from Peter A. Sutton, FLRA Regional Director, to Johnnie A. Landon, Attorney
(“Regional Director Declination Letter”). In June 2003, the VA modified Dr. Hussain’s clinical
privileges and renewed them for only three months as opposed to the previously customary two-
year period. Id. On July 28, 2003, Dr. Hussain received a report from his supervisor which gave
him an overall rating of “low satisfactory.” Id. That day, Dr. Hussain notified the VA that he
felt he had little choice but to resign due to deteriorating work conditions and that he viewed his
resignation as a constructive discharge. Id. Subsequently, Dr. Hussain requested to be placed on
indefinite medical leave and submitted a request for a disability retirement.1 Id.
1
Dr. Hussain’s decision to seek medical leave appears to have arisen directly from his difficulties at work. See Ex.
3 to Pls.’ Opp’n to Defs.’ Mot. to Dismiss or for Summ. J., Arbitration Decision and Award, March 26, 2007, at 16
(“What precipitated this need for sick leave was that . . . Dr. Hussain received his annual performance evaluation . . .
which was a distressingly low evaluation for Dr. Hussain. He felt the evaluation was unfair. . . [His doctors]
recognized that he had an obsession with what he perceived as injustice and discrimination being practiced against
him in the work place which in turn caused him to suffer from intense stress and anxiety.”).
2
On August 5, 2003, the VA informed Dr. Hussain that he could take sick leave until
August 11, but that additional leave would require medical documentation and that if such
documentation were not provided, he would be placed on absent without leave (“AWOL”)
status. Id. The VA subsequently placed Dr. Hussain on AWOL status on August 12, 2003.
Compl. ¶ 13.
C. Equal Employment Opportunity Complaint
On September 5, 2003, Dr. Hussain filed a formal Equal Employment Opportunity
(“EEO”) administrative complaint, alleging that the VA had discriminated against him by
placing him on AWOL status, by denying him leave, by delaying the processing of his retirement
papers, and by constructively discharging him. Regional Director Declination Letter; Compl. ¶
14. Dr. Hussain ultimately brought a Title VII lawsuit in federal court on his discrimination
claims, but the suit resulted in a judgment in favor of the VA. See Hussain v. Principi, 344 F.
Supp. 2d 86 (D.D.C. 2004), aff’d, 435 F.3d 359 (D.C. Cir. 2006).
D. Grievance Procedure
On September 15, 2003, ten days after Dr. Hussain had filed his EEO complaint, AFGE,
pursuant to a negotiated grievance procedure between the VA and its bargaining unit employees,
filed a grievance arising out of the treatment of Dr. Hussain. Compl. ¶¶ 10, 13. The grievance
challenged the VA’s authority to place Dr. Hussain on AWOL status on August 12, 2003 for not
providing medical documentation to the VA and also challenged the VA’s decision to continue
Dr. Hussain’s AWOL status after he provided medical documentation on September 15, 2003.
Id. ¶ 13. The VA rejected the grievance and continued Dr. Hussain in AWOL status because the
VA deemed his September 15, 2003 medical documentation to be inadequate. Id. ¶ 15. AFGE
then elevated the grievance to arbitration. Id.
3
An arbitrator heard the grievance and issued an award and opinion. Id. ¶ 16. According
to the plaintiffs, the arbitrator found that the VA’s initial decision placing Dr. Hussain on AWOL
status and the VA’s decision to continue his AWOL status after September 15, 2003 violated the
union contract, which provided that Dr. Hussain did not have to provide medical documentation
for his illness until returning to work. Id. ¶ 17. The arbitrator also found that the VA
constructively discharged Dr. Hussain by placing and keeping him on AWOL status. Id. The
arbitrator ordered Dr. Hussain be reinstated with back pay and that the VA pay his attorneys’
fees. Id.
The VA refused to implement the arbitrator’s award. Id. ¶ 18.
E. Unfair Labor Practice Charge Before the FLRA
AFGE then filed an unfair labor practice charge with the FLRA Washington Region to
enforce the arbitrator’s award. Id. ¶ 19.
The FLRA “is an independent administrative federal agency that was created by Title VII
of the Civil Service Reform Act of 1978, also known as the Federal Service Labor-Management
Relations Statute and ‘FSLMRS.’” Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 848
(D.C. Cir. 2006) (citing 5 U.S.C. § 7101 et. seq.). The FLRA is “intended to play a role in
Federal sector labor-management relations analogous to that of the National Labor Relations
Board (NLRB) in the private sector.” Turgeon v. Fed. Labor Relations Auth., 677 F.2d 937,
938-39 n.4 (D.C. Cir. 1982). The Federal Service Labor-Management Relations Statute
(“FSLMRS”) divides the FLRA’s powers between the Authority itself and an independent
General Counsel. Id.; see also 5 U.S.C. § 7104.
The General Counsel of the FLRA “serves at the pleasure of the President” and has by
statute “separate authority” from that of the FLRA. Nat’l Air Traffic Controllers Ass’n v. Fed.
4
Serv. Impasses Panel, 606 F.3d 780, 783 (D.C. Cir. 2010) (quoting Turgeon, 677 F.2d at 938
n.4.). “Her principal duties are to investigate unfair labor practice charges, issue unfair labor
practice complaints arising from those charges, and prosecute those complaints before the
FLRA.” Id. “A union or an employer accusing its counterpart of an unfair labor practice first
submits a charge to a Regional Director of the FLRA, 5 C.F.R. § 2423.6(a), who, acting ‘on
behalf of the General Counsel,’ investigates the charge, 5 C.F.R. § 2423.8(a), and decides
whether to issue a complaint, 5 C.F.R. § 2423.10(a).” Id. “If the Regional Director dismisses
the charge, then the charging party may appeal that decision to the General Counsel, 5 C.F.R. §
2423.11(c), but the General Counsel’s decision whether to issue a complaint is not subject to
judicial review.” Id. (citing Turgeon, 677 F.2d at 940). If the General Counsel issues a
complaint, then it prosecutes the complaint at a hearing before the Authority. See 5 U.S.C. §
7118.
In this case, the plaintiffs’ unfair labor practice charge was transferred from the FLRA’s
Washington Regional Director to the Chicago Regional Director.2 Compl. ¶ 19.
The Chicago Regional Director, acting on behalf of the General Counsel, found that there
was no evidence the VA committed an unfair labor practice by declining to implement the
plaintiffs’ arbitration award. Regional Director Declination Letter; Compl. ¶ 20. The Regional
Director based this decision on his conclusion that the arbitrator had actually been precluded
from adjudicating the grievance due to the fact that Dr. Hussain had previously filed an EEO
complaint on the “same matter” as the grievance. Compl. ¶ 20. As the Regional Director noted
in his decision, a relevant part of the Federal Service Labor-Management Relations Statute states
that: “An aggrieved employee affected by a prohibited personnel practice under section
2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure
2
The parties do not address the reasons for the region transfer.
5
may raise the matter under a statutory procedure or the negotiated procedure, but not both.” 5
U.S.C. § 7121(d) (emphasis added); see also Compl. ¶ 20. Since the Regional Director
determined that Dr. Hussain had already raised the same matter under the statutory EEO
procedure as he had raised under the subsequent negotiated grievance procedure, the Regional
Director found that the grievance should have been precluded pursuant to 5 U.S.C. § 7121(d).
Regional Director Declination Letter.
AFGE appealed the Regional Director’s decision to the FLRA General Counsel “on the
basis that the VA’s initial decision that placed Dr. Hussain on AWOL was not the ‘same matter’
as the VA’s subsequent decision to continue him in an AWOL status after he supplied the VA
with medical documentation on September 15, 2003,” Compl. ¶ 21, although, according to the
plaintiffs’ Complaint in this action, the grievance apparently did challenge both Dr. Hussain’s
placement on AWOL status as well as his continuation in that status. See id. ¶ 13. The plaintiffs
contend that the Regional Director’s interpretation of the term “matter” as used in 5 U.S.C §
7121(d) is at odds with a 2007 decision of the Federal Circuit that, according to the plaintiffs,
suggests that the imposition of an employment status and the continuation of that status
constitute separate “matters.” See id. ¶ 22 (citing Rhodes v. Merit Sys. Prot. Bd., 487 F.3d 1377
(Fed. Cir. 2007)).
The General Counsel upheld the Regional Director’s decision not to issue an unfair labor
practices complaint on the plaintiffs’ charge. Id. ¶ 22. In upholding the decision on appeal, the
General Counsel acknowledged the plaintiffs’ argument, but found that the plaintiffs’ appeal had
“established no ground for either reversing the Regional Director’s decision or remanding the
case for further investigation . . . .” Ex. H to Defs.’ Mem., Order Denying Appeal dated
September 9, 2009. Thereafter, AFGE filed a motion for reconsideration of the General
6
Counsel’s decision, which was denied as untimely although AFGE objects that the motion was,
in fact, timely. Compl. ¶¶ 23-31.
F. The Instant Complaint
On June 16, 2010, the plaintiffs brought this action alleging two counts. In Count I, the
plaintiffs allege that “[b]y refusing to consider the plaintiffs’ motion for reconsideration on the
pretext of an untimely filing of the motion, [the defendants] deprived plaintiff Hussain of a
property interest in continued employment as restored by the arbitrator’s award” in violation of
“the rights of plaintiffs to procedural and substantive due process of law and equal protection of
the laws in violation of the Fifth Amendment to the United States Constitution.” Id. ¶ 35.3 In
Count II, the plaintiffs allege that by refusing to issue a complaint, the defendants “violated
plaintiff Hussain’s procedural and substantive due process rights as provided by the United
States Constitution, misapplied applicable law, acted beyond their established authority, and
engaged in conduct that is arbitrary, capricious, and an abuse of discretion by operation of law.”
Id. ¶ 37. The plaintiffs seek declaratory and injunctive relief that would force the defendants to
reinstate the plaintiffs’ motion for reconsideration as timely; declare that the plaintiffs’
interpretation of the term “matter” as used in 5 U.S.C. § 7121(d) is correct and binding on the
General Counsel; and enjoin a particular attorney in the FLRA Office of General Counsel from
further participation in the plaintiffs’ case.4 Id., Prayer for Relief.
On October 7, 2010, the defendants moved to dismiss the Complaint pursuant to Fed. R.
Civ. P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim
upon which relief can be granted. Alternatively, the defendants move for summary judgment on
3
The Complaint has two paragraphs numbered 35.
4
The plaintiffs’ umbrage at this particular attorney appears to have arisen from the circumstances surrounding the
dispute over whether the plaintiffs’ request for reconsideration was timely filed. See Compl. ¶¶ 25-33.
7
the grounds that there are no material facts in dispute and judgment as a matter of law is
warranted.5
The defendants’ motion is presently before the Court.6
II. STANDARDS OF REVIEW
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
A court must dismiss a case when it lacks subject matter jurisdiction. McManus v.
District of Columbia, 530 F. Supp. 2d 46, 62 (D.D.C. 2007). “Plaintiff bears the burden of
proving subject matter jurisdiction by a preponderance of the evidence.” Am. Farm Bureau v.
U.S. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000); accord Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992). It is well established that, in deciding a motion to dismiss for lack of
subject matter jurisdiction, a court must construe the allegations in the Complaint liberally but
“need not accept factual inferences drawn by plaintiffs if those inferences are not supported by
facts alleged in the complaint, nor must the Court accept plaintiffs’ legal conclusions.”
Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006); see also Hohri v. United
States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). The
Court must be assured that it is acting within the scope of its jurisdictional authority and
therefore must give the plaintiffs’ factual allegations closer scrutiny when resolving a Rule
12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim.
See Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Westberg v. FDIC, 759 F.
Supp. 2d 38, 41 (D.D.C. 2011); Dubois v. Wash. Mut. Bank, 2010 U.S. Dist. LEXIS 91855, at
*5-6 (D.D.C. Sept. 2, 2010); Hoffman v. District of Columbia, 643 F. Supp. 2d 132, 135-136
5
The defendants also originally argued that the Complaint should be dismissed for insufficiency of service of
process pursuant to Rule 12(b)(5) because the plaintiffs did not serve both the U.S. Attorney for the district in which
the complaint is filed and the Attorney General, as required by Fed. R. Civ. P. 4(i). It appears that service on these
parties has now been completed, however. See ECF Nos. 9, 11.
6
This case was reassigned to the current presiding judge on February 22, 2011.
8
(D.D.C. 2009); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14
(D.D.C. 2001). In evaluating subject matter jurisdiction, the Court, when necessary, may look
outside the Complaint to “undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.” Herbert v. Nat’l
Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992) (citing Williamson v. Tucker, 645 F.2d 404,
413 (5th Cir. 1981)); see also Alliance for Democracy v. FEC, 362 F. Supp. 2d 138, 142 (D.D.C.
2005).
B. Summary Judgment
The defendants have also moved pursuant to Rule 12(b)(6) for dismissal for failure to
state a claim upon which relief can be granted, or, alternatively, for summary judgment pursuant
to Rule 56. If, on a motion under Rule 12(b)(6), “matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56.” Fed. R. Civ.P. 12(d); see also Strong-Fischer v. Peters, 554 F. Supp. 2d 19, 22 (D.D.C.
2008); Morris v. Lowe’s Home Centers, Inc., No. 10-cv-388, 2011 WL 2417046, at *2-3
(M.D.N.C. June 13, 2011). Since matters beyond the pleadings will be considered here, the
defendant’s motion will be treated as one for summary judgment.
Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for
summary judgment “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law” based upon the pleadings, depositions,
and affidavits and other factual materials in the record. Fed. R. Civ. P. 56(a), (c); Tao v. Freeh,
27 F.3d 635, 638 (D.C. Cir. 1994). The Court “need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court must view all
inferences in a light most favorable to the non-moving party. Tao, 27 F.3d at 638 (citing
9
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986)). The burden is on the moving
party to demonstrate that there is an “absence of a genuine issue of material fact” in dispute.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In this case, the plaintiff does not appear to contest that the defendants’ contention that
there are no material factual disputes.7 Therefore, to the extent that the Court has jurisdiction
over the claims in this action, judgment as a matter of law is appropriate.
III. DISCUSSION
For the reasons explained below, the plaintiffs’ statutory claims that the defendants
“misapplied applicable law, acted beyond their established authority, and engaged in conduct
that is arbitrary, capricious, and an abuse of discretion by operation of law” must be dismissed
for lack of subject matter jurisdiction. In addition, the Court grants summary judgment for the
defendants on the plaintiffs’ constitutional claims.
A. Reviewability of Non-Constitutional Claims
The plaintiffs in this case seek judicial review of the FLRA General Counsel’s decision
not to issue a complaint. The D.C. Circuit has “declared flatly that it has no jurisdiction to
review decisions by the General Counsel of FLRA declining to issue unfair labor practice
complaints because such decisions do not constitute final orders of the [FLRA]” and the judicial
review provisions of the Federal Service Labor-Management Relations Statute only provide for
judicial review of “any final order of the [FLRA].” Patent Office Prof’l Ass’n v. FLRA, 128 F.3d
751, 752 (D.C. Cir. 1997) (hereinafter, “POPA”) (citing Turgeon, 677 F.2d at 938-39); see also
Laird v. FLRA, No. 03-1015, 2003 WL 21195488, at *1 (D.C. Cir. May 19, 2003) (per curiam)
7
Consistent with Local Civil Rule 7(h)(1), the defendants have provided a statement of undisputed facts along with
their motion for summary judgment. The plaintiffs have not provided any counter-statement of genuine issues of
fact in dispute. Accordingly, the Court “may assume that facts identified by the moving party in its statement of
material facts are admitted.” See Local Civil Rule 7(h)(1).
10
(“This court lacks jurisdiction to review a decision by the General Counsel of the Federal Labor
Relations Authority not to issue an unfair labor practice complaint.”); Brookens v. FLRA, No. 02-
1281, 2003 WL 40485, at *1 (D.C. Cir. Jan. 3, 2003) (per curiam) (same). Indeed, the D.C.
Circuit’s pronouncements emphasizing the non-reviewability of decisions of the FLRA General
Counsel have been strikingly unequivocal. See POPA, 128 F.3d at 753 (“Lest there be any
lingering confusion, we write to make clear that . . . it remains the law of this circuit that a
decision of the General Counsel of FLRA not to file a complaint is not judicially reviewable
given that the statute provides for review only of decisions of the Authority.”)
The parties on both sides of this case agree on the general non-reviewability of the
General Counsel’s decisions not to issue an unfair labor complaint. See Pl.’s Opp’n to Defs.’
Mot. to Dismiss or for Summ. J. (“Pls.’ Mem.”) at 2-3; Defs.’ Mem. in Supp. of Mot. to Dismiss
or for Summ. J. (“Defs.’ Mem.”) at 12-14. The plaintiffs argue, however, that their claims are
nonetheless reviewable by this Court under three purported exceptions to this general rule
precluding judicial review of the General Counsel’s decisions. The plaintiffs argue that the
General Counsel’s decision is reviewable because it is a jurisdiction-disclaiming agency
decision, because it embodies an official agency interpretation of a statute, or constitutes an
agency order that violates clear statutory mandates. The Court is not persuaded by these
arguments and will therefore dismiss the plaintiffs’ non-constitutional claims for lack of subject
matter jurisdiction. See POPA, 128 F.3d at 753.
1. No “Disclaimer of Jurisdiction” Exception Applies to the
Plaintiffs’ Claims Against the FLRA.
The plaintiffs argue that, although the General Counsel’s enforcement decisions are
generally non-reviewable, “if an agency’s non-enforcement decision is based on the agency’s
decision that it does not have jurisdiction over the matter to be enforced, the jurisdictional basis
11
of the non-enforcement decision is subject to judicial review.” Pls.’ Mem. at 3. The plaintiffs
argue that the D.C. Circuit’s 1986 ruling in International Longshoreman’s Association, AFL-CIO
v. National Mediation Board recognized an exception to the general non-reviewability of
discretionary agency decisions where an agency’s non-enforcement decision rests on a
disclaimer of jurisdiction. See id. (citing Int’l Longshoreman’s Ass’n,785 F.2d 1098 (D.C. Cir.
1986) (hereinafter, “ILA”)). While this exception may be available in other contexts, the D.C.
Circuit indicated in its ruling in POPA that this exception does not apply to decisions of the
General Counsel about whether to issue complaints. See POPA, 128 F.3d at 753 & n.1.
In ILA, the D.C. Circuit held that federal courts could review otherwise non-reviewable
orders of the National Mediation Board, an agency that coordinates labor relations in the railroad
and airline industry, if the orders in question found that the Board lacked jurisdiction over an
application for mediation. ILA, 785 F.2d at 1101. ILA reaffirmed a similar holding in a previous
decision involving the National Mediation Board. See id. at 1100-1101 (citing Air Line
Dispatchers Ass’n v. Nat’l Mediation Bd., 189 F.2d 685 (D.C. Cir. 1951), cert. denied, 342 U.S.
849 (1951)). The plaintiffs argue that this Court should extend the ILA exception to decisions of
the FLRA General Counsel not to issue a complaint, if those decisions are based on the
conclusion that the General Counsel lacks jurisdiction to issue a complaint.
The D.C. Circuit has indicated, however, that the ILA exception does not apply to the
General Counsel’s decisions about whether to issue complaints. In POPA, the plaintiff argued
for a substantially similar exception to the non-reviewability of a decision of the FLRA General
Counsel not to issue a complaint. Specifically, the plaintiff in POPA pointed to a footnote in the
Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821 (1985), “in which the Supreme
Court noted that it did not decide whether an agency’s discretionary decision not to exercise its
12
enforcement authority might be subject to review if the decision was based either on the
agency’s conclusion that it lacked jurisdiction or on a general policy ‘so extreme as to amount to
an abdication of [the agency’s] statutory responsibilities.’” POPA, 128 F.3d at 753 (quoting
Heckler, 470 U.S. at 833 n.4). The POPA plaintiff, citing this footnote in Heckler, argued that
the “court can review decisions of the General Counsel not to issue unfair labor practice
complaints when such decisions are the result of a misguided agency policy.” Id. The D.C.
Circuit in POPA noted that the Ninth Circuit had relied on this footnote in Heckler to endorse
exceptions to the general rule that discretionary agency enforcement decisions are not
reviewable. Id. (citing Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir. 1990)).8
The D.C. Circuit roundly rejected this argument in the FLRA context, explaining that “[b]oth
this court and the Supreme Court have declared, even after Heckler, that decisions of the General
Counsel of the National Labor Relations Board whether to issue complaints are not subject to
review by this court, and we now reaffirm the same for the General Counsel of FLRA.” Id.
The D.C. Circuit further added: “Our reasoning is specific to the [Federal Service Labor-
Management Relations Statute], and we thus do not question the cases in this circuit that allow
judicial review of agency nonenforcement decisions in certain other contexts. Most importantly,
we do not disturb this circuit’s exceptions to the general rule, under Heckler, that § 701(a)(2) of
the Administrative Procedure Act precludes judicial review over nonenforcement decisions.”
POPA, 128 F.3d at 753 n.1 (citing, inter alia, ILA). Accordingly, in reaffirming the rule that
decisions of the FLRA General Counsel not to issue a complaint are not subject to judicial
review, the D.C. Circuit specifically noted that the ILA exception advanced by the plaintiffs here
8
In Montana Air Chapter No. 29, the Ninth Circuit relied on both Heckler and the D.C. Circuit’s ruling in ILA to
hold that the court did have jurisdiction to review a decision of the FLRA General Counsel not to issue a complaint.
898 F.2d at 756-57. The fact that the D.C. Circuit squarely addressed this Ninth Circuit decision and rejected it
seriously undermines the plaintiffs’ reliance on ILA here.
13
remains valid in other contexts, but does not apply to the General Counsel’s decisions.
Therefore, this Court is bound by Circuit precedent to hold that the ILA exception for
jurisdiction-disclaiming agency orders does not apply to decisions of the General Counsel of the
FLRA regarding whether to issue complaints.9
2. The General Counsel’s Decision Is Not Reviewable Merely
Because It Embodied A Statutory Interpretation.
The plaintiffs’ second argument is that this Court may review the General Counsel’s
decision not to issue a complaint because this Circuit permits unreviewable agency decisions to
be reviewed where a legal challenge focuses on an agency’s announcement of a substantive
statutory interpretation. See Pls.’ Mem. at 15-16 (citing Int’l Union, United Auto., Aerospace &
Agr. Implement Workers of America v. Brock, 783 F.2d 237 (D.C. Cir. 1986) (hereinafter, “Int’l
Union”). This argument fares no better for the plaintiffs.
In Int’l Union, the D.C. Circuit held that “an agency’s statutory interpretation was
presumptively reviewable even if announced in the context of a non-enforcement decision.”
Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 675 (D.C. Cir. 1994) (citing Int’l Union,
783 F.2d at 245-46). Subsequent D.C. Circuit and Supreme Court decisions have substantially
narrowed the viability of the Int’l Union exception, however. See id. at 676. As the D.C. Circuit
explained in Crowley, the Supreme Court has “squarely reject[ed] the notion of carving
reviewable legal rulings out from the middle of non-reviewable actions.” Id. (citing ICC v. Bhd.
of Locomotive Eng’rs, 482 U.S. 270 (1987)). Crowley makes clear that while “an agency’s
statement of a general enforcement policy may be reviewable for legal sufficiency where the
agency has expressed the policy as a formal regulation after the full rulemaking process or has
9
Moreover, even if the ILA exception were to apply to decisions of the FLRA General Counsel regarding whether to
issue complaints, it is not clear that the decision challenged by the plaintiffs in this case is the type of jurisdiction-
disclaiming order that could fall within the exception. Indeed, the defendant contends “the plaintiffs’ suggestion
that the General Counsel made a determination regarding the FLRA’s jurisdiction is misplaced.” Defs.’ Reply at 6.
The Court does not reach this issue, however, since it has concluded that the exception is inapplicable.
14
otherwise articulated it in some form of universal policy statement,” an individual non-
enforcement decision that does not express a broad, general enforcement policy ordinarily should
not be treated as a substantive agency statutory interpretation that rebuts the presumption against
the non-reviewability of agency enforcement decisions. Id. at 676-77. Based on the Court’s
review of the record here, there is no indication that the General Counsel’s decision not to issue a
complaint in the plaintiffs’ case reflected the sort of broad enforcement policy that could give
rise to judicial review under Crowley. Further, the D.C. Circuit’s ruling in POPA suggests that –
like the ILA exception – the Crowley exception is also not available in the context of the FLRA
General Counsel’s decisions about whether to issue complaints. See POPA, 128 F.3d at 753 n.1
(explaining that the D.C. Circuit’s holding about the non-reviewability of the General Counsel’s
nonenforcement decisions is specific to the Federal Service Labor-Management Relations Statute
and does not disturb the holdings of other cases that have identified areas in which judicial
review of agency nonenforcement decisions may be permitted, including, inter alia, Crowley, 37
F.3d at 674-77). Accordingly, the plaintiffs cannot obtain judicial review of the General
Counsel’s decision not to issue a complaint based upon any purported statutory interpretations
embodied in that decision.
3. The Leedom v. Kyne Exception Does Not Apply To The Plaintiffs’
Claims.
The plaintiffs state that the Regional Director and General Counsel made “statutory
interpretation errors” in their decision not to issue a complaint. Pls.’ Mem. at 12. In Leedom v.
Kyne, 358 U.S. 184 (1958), the Supreme Court created a “narrow,” “extremely limited”
exception that confers federal jurisdiction even where Congress is understood generally to have
precluded review. Griffith v. FLRA, 842 F.2d 487, 492 (D.C. Cir. 1988). This narrow exception
may enable judicial review where an agency has clearly acted contrary to a statute, for example,
15
by disregarding “a specific and unambiguous statutory directive.” Griffith, 842 F.2d 487 at
493(citing United Food and Commercial Workers, Local 400 v. NLRB, 694 F.2d 276, 279 (D.C.
Cir. 1982)). “Garden-variety errors of law or fact [committed by an agency] are not enough” to
invoke Leedom jurisdiction. Id.
The plaintiffs state that they do not “rely solely or principally upon [Leedom] as their
basis of review of the instant case.” Pls.’ Mem. at 2. They have not argued in detail in their
brief that Leedom should apply nor have they identified any clear and unambiguous statutory
provision that the General Counsel has violated. To the extent that the plaintiffs do rely on
Leedom, however, that reliance is misplaced because “[g]arden-variety errors of law or fact,”
such as those alleged by the plaintiffs here, are not enough to invoke the Leedom exception.
B. Constitutional Claims
While the plaintiffs’ non-constitutional claims must be dismissed for lack of subject
matter jurisdiction, the plaintiffs’ constitutional claims are reviewable in federal court. See
Griffith, 842 F.2d at 494 (finding judicial review provisions of the FSLMRS did not preclude
plaintiff’s as-applied constitutional due process challenge).10 Accordingly, the Court turns to the
merits of the plaintiffs’ constitutional claims. 11
The plaintiffs contend that the arbitrator’s award restored a constitutionally protected
property interest in continued employment to Dr. Hussain. Pl.’s Mem. at 6. The plaintiffs argue
that Dr. Hussain has been deprived of this property interest by the General Counsel’s purportedly
10
D.C. Circuit authority subsequent to Griffith has, in some instances, questioned the continuing vitality of some of
the premises underlying the rationale for Griffith’s conclusion. See Lepre v. Dep’t of Labor, 275 F.3d 59, 67 (D.C.
Cir. 2001). Griffith’s ultimate conclusion that the FSLMRS’s jurisdictional provisions do not bar review of
constitutional claims has not been overruled, however. Accordingly, the Court considers the plaintiffs’
Constitutional claims on the merits.
11
On July 25, 2011, approximately seven months after the completion of briefing on the defendants’ motion, the
plaintiffs filed a motion requesting “a status conference to determine whether the parties shall provide additional
briefing on the constitutional issues in this case” and requesting oral argument. The Court finds that providing the
plaintiffs with an additional opportunity to brief the issues in this case is unwarranted. In addition, pursuant to Local
Civil Rule 7(f), the request for oral argument is denied.
16
erroneous statutory interpretations and by the General Counsel’s failure to accept the plaintiffs’
motion for reconsideration as timely filed. See Pl.’s Mem. at 6, 15-18. According to the
plaintiffs, these alleged deprivations infringed the plaintiffs’ rights to procedural and substantive
due process of law in violation of the Fifth Amendment to the U.S. Constitution. See id.; Compl.
¶¶ 35-37. The Court disagrees and rules that summary judgment on the plaintiffs’ constitutional
claims should be granted for the defendants.
“The first inquiry in every due process challenge is whether the plaintiff has been
deprived of a protected interest in ‘liberty’ or ‘property.’ Only after finding the deprivation of a
protected interest do we look to see if the government’s procedures comport with due process.”
Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010) (citation omitted); see also
Griffith, 842 F.2d at 495-501 (upholding district court’s rejection of due process challenge to
FLRA’s disposition of plaintiff’s claim because plaintiff had no protected property interest in an
annual within-grade pay increase). Even assuming, arguendo, however, that plaintiff Hussain
has a protected property interest in this case and that the plaintiffs are correct that the General
Counsel’s decision not to issue a complaint was based upon a legal error, “a mere violation of
law does not give rise to a due process claim.” Am. Fed’n of Gov’t Emps., AFL-CIO, Local 446
v. Nicholson, 475 F.3d 341, 353 (D.C. Cir. 2007).
In order to prevail on a substantive due process claim, the plaintiffs would need to
demonstrate “an act of grave unfairness,” such as “a deliberate flouting of the law,” and the
plaintiffs in this action have not done so. Id. (quotations omitted); see also Tri Cnty. Indus., Inc.
v. District of Columbia, 104 F.3d 455, 459 (D.C. Cir. 1997); Elkins v. District of Columbia, 527
F. Supp. 2d 36, 49 (D.D.C. 2007) (“The government’s infringement of the recognized property
interest must constitute a grave unfairness: Inadvertent errors, honest mistakes, agency
17
confusion, even negligence in the performance of official duties, do not warrant redress.”)
(quoting Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988)). Any legal errors in the
General Counsel’s decision not to issue a complaint on the plaintiffs’ unfair labor practice charge
or in the calculation of the timeliness of the plaintiffs’ motion for reconsideration would not rise
to the level of substantive due process violation. To the extent the plaintiffs allege the denial of
the motion for reconsideration as untimely was pretextual or in bad faith, that allegation is not
supported by specific facts or factual allegations that would create a triable issue of fact on that
question.12 Accordingly, the Court grants summary judgment to the defendants on the
substantive due process claim.
Summary judgment is also appropriate on the plaintiffs’ procedural due process claim.
Generally, procedural due process “requires notice and opportunity for hearing appropriate to the
nature of the case.” Pearson v. District of Columbia, 644 F. Supp. 2d 23, 46 (D.D.C. 2009),
aff’d 377 F. App’x 34 (D.C. Cir. 2010) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
The plaintiffs’ allegations here show that they availed themselves of the procedures specified for
requesting that the General Counsel issue an unfair labor practices complaint. The FLRA
12
Plaintiffs currently argue that the motion for reconsideration was originally due on and was timely filed by
September 28, 2009. Pls.’ Mem. at 15. On September 14, 2009, however, plaintiffs’ counsel filed a request for
extension of time to file their motion for reconsideration “up to and including September 28, 2009,” and this request
for extension of time stated the plaintiffs’ view, at that time, that the motion for reconsideration had a “September
21, 2009 deadline date.” See Ex. I to Def.’s Mem., Charging Party’s Request for an Extension of Time, Sept. 14,
2009. This request for extension of time was denied. See Ex. J to Def.’s Mem., Denial of Request for Extension of
Time. Considering that the plaintiffs previously contended that the motion for reconsideration was due on
September 21 – which, even accepting plaintiffs’ position that the motion was filed on September 28, would have
made their filing untimely – the plaintiffs certainly have not established that the government’s treatment of the
motion as untimely was in bad faith. Further, in any event, the FLRA’s regulations do not provide an automatic
right to reconsideration. Rather, a decision of the General Counsel will only be reconsidered upon a showing of
“extraordinary circumstances.” See 5 C.F.R. § 2423.11(g) (“After the General Counsel issues a final decision, the
Charging Party may move for reconsideration of the final decision if it can establish extraordinary circumstances in
its moving papers.”). The defendants state that, far from establishing extraordinary circumstances, a “cursory
review of the plaintiffs’ motion for reconsideration indicates that it does nothing more than repeat the arguments
made in their appeal.” Defs.’ Reply at 10 n.3. Thus, even if the motion were accepted as timely, it is apparent the
General Counsel would deny reconsideration, and that decision would not be reviewable in federal court, as
discussed above.
18
Regional Director considered the plaintiffs’ unfair labor practice charge and issued a decision
declining to file a complaint. Compl. ¶ 20. The plaintiffs appealed this decision to the General
Counsel, who upheld the decision not to file a complaint. Id. ¶ 22. As with the plaintiffs’
substantive due process claim, even assuming, arguendo, that the agency made an error in
calculating the timeliness of the motion for reconsideration, that would not suffice to state a
claim for violation of procedural due process. See Am. Fed’n of Gov’t Emps., Local 2741 v.
District of Columbia, 689 F. Supp. 2d 30, 35-36 (D.D.C. 2009) (dismissing procedural due
process claim where plaintiffs failed to “allege facts that suggest they were deprived of any
process due to them” and noting that “[e]ven assuming the [defendant’s] actions have run awry
of [certain] statutes. . . such violations do not amount to a constitutional violation. ‘A mere
violation of law does not give rise to a due process claim.’”) (citing Nicholson, 475 F.3d at 353).
Accordingly, the Court will grant summary judgment for the defendants on the procedural due
process claim.13
IV. CONCLUSION
For the reasons detailed above, the plaintiffs’ non-constitutional claims are dismissed for
lack of subject matter jurisdiction and summary judgment is granted for the defendants on the
plaintiffs’ constitutional claims. An appropriate Order will issue.
DATED: September 1, 2011 /s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
13
Although the plaintiffs referenced an Equal Protection claim in the Complaint, they have not addressed the legal
basis for this claim in their brief, and no such legal basis is apparent. Therefore, summary judgment for the
defendants on this claim is also appropriate.
19