Clark v. Federal Labor Relations Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2014 Decided April 7, 2015

No. 13-1261

JARED R. CLARK,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

On Petition for Review of a Final Order

of the Federal Labor Relations Authority

D. Zachary Hudson, appointed by the court, argued the

cause as amicus curiae for petitioner. With him on the briefs

was H. Christopher Bartolomucci.

Fred B. Jacob, Solicitor, Federal Labor Relations

Authority, argued the cause for respondent. With him on the

brief was Zachary R. Henige, Deputy Solicitor.

Before: ROGERS, GRIFFITH, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: This case challenges a

decision by the General Counsel of the Federal Labor

Relations Authority to settle an unfair labor charge

2

unilaterally after the issuance of a complaint, but before a

hearing. Because our precedent holds that such a decision is

not a “final order of the Authority” subject to review in this

court under 5 U.S.C. § 7123(a), we dismiss the petition for

lack of subject-matter jurisdiction.

I

The American Federation of Government Employees,

Local 1945 (the Union) is the exclusive representative for all

employees in the collective-bargaining unit at the Anniston

Army Depot in Alabama. 1 Petitioner Jared Clark is a

bargaining-unit employee, but not a dues-paying union

member. In November 2008, the Union learned that the Depot

was assigning some employees to duties beyond their pay

grade without providing additional compensation. The Union

filed a grievance on behalf of all bargaining-unit employees

seeking that compensation.

In April 2010, the Depot and the Union entered a

settlement agreement that provided backpay to the employees

who performed the higher-graded duties. According to the

settlement, the Union and the Depot would together determine

the appropriate settlement amount for the employees from a

list of those who might have valid claims supplied by the

Union. It fell to the Union to notify Depot employees of the

settlement and to gather from them the information needed to

process claims. Though Clark had completed work above his

pay grade, the Union failed to contact him. When Clark

1

These facts are drawn from the final investigative report

prepared by the General Counsel of the FLRA, the allegations in

Clark’s charge and the General Counsel’s complaint, and various

settlement documents.

3

visited the Union office to inquire about the settlement, a

representative asked whether he was a Union member.

Learning that he was not, the representative told Clark he

needed to join that very day. Clark refused to join. Despite

this exchange, the Union representative told Clark what he

needed to do to submit a claim for inclusion in the settlement.

Clark complied, providing the Union log books reporting the

times he worked and affidavits from co-workers stating that

they had seen Clark performing work above his pay grade.

The Depot and the Union eventually agreed to

distribute $303,825 among 218 employees the Union had

included on the list. The Union left Clark off the list and put

only one person on the list who was not a member of the

Union. Depending on the nature of their claims, employees on

the list would receive between $300 and $1,970. Upon

realizing that the proceeds of the settlement went almost

entirely to Union members, Clark filed an unfair labor

practice charge with the Federal Labor Relations Authority

(the Authority). Following an investigation that identified

Clark and fifty-five other nonunion employees whom the

Union cut out of the settlement, the Authority’s Regional

Director issued a complaint on behalf of the General Counsel 2

alleging that the Union had violated 5 U.S.C. §§ 7114(a)(1)

and 7116(b)(8) by giving preferential treatment to union

members in settling the claims.

Before a hearing on the complaint took place, the

Union and the Regional Director agreed to settle. The Union

2

Under the Authority’s regulations, the Regional Director may

act on behalf of the General Counsel to “[a]pprove a request to

withdraw a charge”; “[d]ismiss a charge”; “[a]pprove a written

settlement agreement”; “[i]ssue a complaint”; or “[w]ithdraw a

complaint.” 5 C.F.R. § 2423.10(a).

4

would pay $1,970 to Clark, but only $200 to each of the fifty-

five other nonunion employees. The Union would also inform

the affected employees of the terms of the settlement by

issuing notices describing the charges and their resolution

along with the checks. Clark objected to the settlement. In his

view, the agreement not only failed to adequately compensate

him and the other nonunion employees, but it would not deter

the Union from engaging in such unlawful discrimination in

the future. The Regional Director considered Clark’s

objections but approved the settlement anyway. Clark

appealed the Regional Director’s determination to the

Authority’s General Counsel, who affirmed the decision.

Clark filed this petition for review, arguing that the General

Counsel lacked authority to settle the complaint unilaterally.

II

We may not take up the merits of Clark’s petition

before we consider the Authority’s argument that we lack

jurisdiction to review the General Counsel’s unilateral

settlement of an unfair labor practice charge.

The Federal Service Labor-Management Relations

Statute (FSLMRS) provides that an aggrieved person may

obtain judicial review only of “any final order of the

Authority,” subject to exceptions not relevant here. 5 U.S.C.

§ 7123(a). In Turgeon v. FLRA, we held that we had no

jurisdiction to review the General Counsel’s decision

declining to issue a complaint. 677 F.2d 937 (D.C. Cir. 1982).

We reached this result by looking to the reasoning of the

Supreme Court interpreting the National Labor Relations Act,

which, like the FSLMRS, limits our jurisdiction to challenges

to a “final order of the Board.” Compare 29 U.S.C. § 160(f),

with 5 U.S.C. § 7123(a). Construing the similar language of

5

the NLRA, the Supreme Court held that a decision of the

NLRB’s General Counsel declining to issue an unfair labor

practice complaint is not a “final order of the Board,” and thus

the courts had no jurisdiction to consider its lawfulness. See

Turgeon, 677 F.2d at 940 (citing Lincourt v. NLRB, 170 F.2d

306, 307 (1st Cir. 1948), and NLRB v. Sears, Roebuck & Co.,

421 U.S. 132, 138-39 (1975)).

In Turgeon, we thought it proper to consider the

NLRA because the legislative history of the FSLMRS “makes

clear [that] the structure, role, and functions of the Authority

and its General Counsel were closely patterned after the

structure, role, and functions of the NLRB and its General

Counsel under the National Labor Relations Act.” Turgeon,

677 F.2d at 939. We found evidence of an intent to model the

position of the General Counsel of the Authority after that of

the General Counsel of the NLRB in statements in both the

House and Senate Reports. The House Report noted that the

“Committee intend[ed] that the General Counsel [of the

Authority] be analogous in role and function to the General

Counsel of the National Labor Relations Board.” H.R. REP.

NO. 95-1403, at 41-42 (1978). The Senate Report provided

that “[i]t is intended that unfair labor practice complaints will

be handled by the General Counsel of the Authority in a

manner essentially identical to National Labor Relations

Board practices in the private sector.” S. REP. NO. 95-969, at

106 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2824. We

also relied upon our overview of the Authority’s power in

Department of Defense v. FLRA, where we explained that the

Authority’s “role is analogous to that of the National Labor

Relations Board.” 659 F.2d 1140, 1144 (D.C. Cir. 1981).

Based on these statements in the legislative history and the

NLRA precedent interpreting the analogous provision, we

held that “the General Counsel of the Authority must be

6

accorded the same discretion with respect to issuance of

unfair labor practice complaints as the General Counsel of the

NLRB,” and dismissed the petition for lack of jurisdiction.

Turgeon, 677 F.2d at 940.

Fortunately, the Supreme Court has decided the very

issue before us in the NLRA context. In NLRB v. United Food

& Commercial Workers Union, Local 23, AFL-CIO (UFCW),

the Supreme Court unanimously held that a decision by the

NLRB’s General Counsel to settle a complaint unilaterally

before a hearing is not subject to judicial review under the

NLRA. 484 U.S. 112 (1987). The Court noted that the NLRA

distinguished between the adjudicatory role of the NLRB,

which is reviewable, and the prosecutorial function of the

General Counsel, which is not. The decision whether to file a

complaint is clearly prosecutorial, whereas once a hearing

begins on an unfair labor practice complaint, the process

becomes adjudicative. Id. at 125. “Between these extremes”

however, the Court found that pre-hearing settlements “might

fairly be said to fall on either side of the division.” Id. In light

of this ambiguity, the Court deferred to the agency’s

regulation that placed the power to strike a unilateral

settlement of a complaint prior to a hearing in the

prosecutorial discretion of the Regional Director with review

by the General Counsel, but not the NLRB. See id. at 125-26;

29 C.F.R. § 101.9. The Court remarked that it “fail[ed] to see

why the General Counsel should have the concededly

unreviewable discretion to file a complaint, but not the same

discretion to withdraw the complaint before hearing if further

investigation discloses that the case is too weak to prosecute.”

UFCW, 484 U.S. at 126. The Court thus determined that

“[t]he General Counsel’s unreviewable discretion to file and

withdraw a complaint . . . logically supports a reading that he

or she must also have final authority to dismiss a complaint in

7

favor of an informal settlement, at least before a hearing

begins.” Id.

Together, Turgeon and UFCW make clear that we lack

jurisdiction to review the General Counsel’s settlement in this

case. Turgeon tells us to look to NLRA precedent when

considering the powers of the Authority’s General Counsel.

UFCW tells us that the decision of the NLRB’s General

Counsel to affirm an informal settlement prior to a hearing is

unreviewable. Indeed, this court has cited UFCW approvingly

while reviewing an Authority decision. See Patent Office

Prof’l Ass’n v. FLRA, 128 F.3d 751, 753 (D.C. Cir. 1997) (per

curiam). And just as in UFCW, the Authority has promulgated

a regulation giving the Regional Director authority to settle

complaints before a hearing without the charging party’s

approval. 5 C.F.R. § 2423.25(a)(1). Like the NLRB regime,

the Authority’s regulations give the Regional Director two

ways to withdraw a complaint before a hearing begins:

informal settlements and formal settlements. If the Regional

Director chooses to undertake an informal settlement, he can

withdraw the complaint unilaterally if he concludes that doing

so will further the policies of the FSLMRS. Id. § 2423.25(b).

The charging party can appeal the Regional Director’s action

to the General Counsel, but the agreement is “not subject to

approval by or an order of the Authority.” Id. § 2423.25(a)(1).

Because the Authority is not involved, the agreements are not

subject to court enforcement. On the other hand, if the

Regional Director thinks that court enforcement might be

necessary, he can enter into a formal settlement agreement

that is subject to Authority approval and contains “consent to

the Authority’s application for the entry of a decree by an

8

appropriate federal court enforcing the Authority’s order.” Id.

§ 2423.25(a)(2). 3

Here, the Regional Director used his power to

informally settle the complaint. Therefore, just as in UFCW,

the settlement was not subject to Authority review. See 5

C.F.R. § 2423.25(a)(1), (b). Furthermore, the logic of the

argument the Court relied on in UFCW applies with equal

force here: Just like the General Counsel of the NLRB, the

General Counsel of the Authority has the unreviewable

discretion to file and withdraw a complaint. See Turgeon, 677

F.2d at 940; 5 C.F.R. § 2423.10(a). With that unreviewable

discretion, the General Counsel has “final authority to dismiss

a complaint in favor of an informal settlement” prior to a

hearing. UFCW, 484 U.S. at 126.

Seeking to avoid the force of the Court’s analysis in

UFCW, Clark argues that we should not defer to the

Authority’s position on the reviewability of the General

Counsel’s power. Clark claims that deferring in this

circumstance would violate the principle that “[i]nterpreting

statutes granting jurisdiction to Article III courts is

exclusively the province of the courts.” Ramey v. Bowsher, 9

F.3d 133, 136 n.7 (D.C. Cir. 1993). But neither the Authority

here nor the NLRB in UFCW attempted to interpret the

provisions of the statutes that allowed judicial review only of

“final orders” of the Authority or the NLRB. Instead, the

agencies merely determined the extent of their own power to

review decisions of their General Counsels. While this

determination has an effect on what is subject to judicial

review, the Court in UFCW deferred to the NLRB’s

3

Our decision today has no bearing on whether such formal

settlements are subject to judicial review.

9

interpretation in these precise circumstances under the NLRA.

See UFCW, 484 U.S. at 123-26. Both UFCW and the case

now before us involve an agency interpretation that does not

provide for NLRB or Authority review of the General

Counsel’s settlement decisions, which therefore precludes our

review. We see no way to distinguish this case.

Clark argues in the alternative that the text of the

FSLMRS gives the General Counsel three distinct powers: (1)

“investigat[ing] alleged unfair labor practices”; (2) “fil[ing]

and prosecut[ing] complaints” following such an

investigation; and (3) “exercis[ing] such other powers of the

Authority as the Authority may prescribe.” 5 U.S.C.

§ 7104(f)(2)(A)-(C). Clark claims that one of those “other

powers” the Authority has delegated to the General Counsel is

the ability to settle disputes. Because this power springs from

the Authority, it still qualifies as a “final order of the

Authority” subject to our review. In support of his argument,

Clark states that the Authority—and not the General

Counsel—issued the regulations giving the Regional Director

the power to settle complaints with review from the General

Counsel. This is factually incorrect. The Authority and the

General Counsel jointly promulgated the controlling

regulations initially, see 45 Fed. Reg. 3482, 3483-84 (Jan. 17,

1980), and have continued to revise them together, see, e.g.,

77 Fed. Reg. 33,751, 33,752 (June 25, 2012). The joint

regulation conducted by both the prosecutorial and

adjudicative members of the agency is consistent with the

Court’s holding in UFCW, deferring to the agency’s power to

determine where to draw the line between prosecution and

adjudication. See UFCW, 484 U.S. at 125-26.

Clark also claims support for his argument based on a

1986 Authority opinion, stating that the General Counsel’s

10

power to settle complaints comes from the Authority. In 1986,

the Department of Justice requested guidance from the

Authority on three questions, including the issue before us—

whether the General Counsel can unilaterally settle an unfair

labor practice complaint. The Authority declined to issue a

general policy statement answering all three questions, but did

opine that among the “other powers” given to the General

Counsel is the “full and final authority and responsibility, on

behalf of the Authority . . . to enter into and approve the

informal settlement of charges.” Decision on Request for

General Statement of Policy or Guidance, 23 F.L.R.A. 342,

344 (Sept. 10, 1986) (internal quotation marks omitted).

Because this power comes from and is exercised on behalf of

the Authority, Clark argues that the General Counsel’s

decision in this case is a final order of the Authority. But the

Authority’s opinion on this issue does not have the force of

law. Under Skidmore, the deference it is owed “depend[s] on

the thoroughness evident in its consideration, the validity of

its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to

persuade, if lacking power to control.” Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944).

We find that the Authority’s cursory decision lacks any

power to persuade. As noted, the Authority expressly

indicated that the document was not intended to serve as

general guidance. See Decision on Request for General

Statement of Policy or Guidance, 23 F.L.R.A. at 342 (“The

Authority . . . has determined that it does not satisfy the

standards governing the issuance of general statements of

policy or guidance.”); id. at 346 (“[R]esolution of the

questions presented would not have general applicability

under the Statute.”). Moreover, the Authority provided no

support for its statement that the General Counsel’s power to

11

engage in settlements stemmed from his or her authority to

“exercise such other powers” prescribed by the Authority, and

not from the inherent authority to “file and prosecute

complaints.” To the extent that we can surmise the

Authority’s reasoning, we assume that the Authority was

relying on then-applicable precedent establishing that pre-

hearing settlements of the General Counsel of the NLRB and

the Authority were adjudicatory rather than prosecutorial. See

Int’l Ladies’ Garment Workers Union, Local 415-475, AFL-

CIO v. NLRB, 501 F.2d 823 (D.C. Cir. 1974); Am. Fed’n of

Gov’t Emps., AFL-CIO v. FLRA, 785 F.2d 333 (D.C. Cir.

1986). 4 When the opinion was written, our cases effectively

precluded the Authority from placing the power to settle

disputes in the prosecutorial discretion of the General

Counsel. Since that time, however, UFCW has abrogated

those precedents by holding that NLRB informal settlements

are not reviewable. We therefore discount the relevance of the

Authority opinion because of this significant shift in the law

and hold that the language in the outdated opinion cannot

overcome the holdings of Turgeon and UFCW.

Clark also argues that the power given to the NLRB’s

General Counsel in the NLRA is more expansive than that of

the Authority under the language of the FSLMRS. For

4

When we first decided whether we had jurisdiction over the

General Counsel’s unilateral settlement of a complaint in the NLRB

context, Chevron had not yet been decided. See Chevron U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). We

therefore did not defer to the agency’s regulation declining to

provide for NLRB review. After Chevron, we decided the same

issue in the Authority context, but looked only to our decision

under the NLRA as a guide, based on the “substantially identical

appeal provision[s].” Am. Fed’n of Gov’t Emps., 785 F.2d at 335

n.3.

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example, the NLRB’s General Counsel has “final authority,

on behalf of the Board” with respect to broad categories of

power, whereas the FSLMRS expressly limits the powers of

the Authority’s General Counsel to three narrow categories

and nowhere states that he can act with final authority on his

own. Because the statutory language differs, Clark argues that

the two entities should be treated differently. This argument,

however, runs counter to both our decision in Turgeon and the

legislative history of the FSLMRS. See Turgeon, 677 F.2d at

940. We are bound by our own precedent and its recognition

of the intent of Congress to model the Authority after the

NLRB.

Clark has given us no reason to depart from our

practice of treating the General Counsel of the NLRB and the

General Counsel of the Authority as “essentially identical.”

See S. REP. NO. 95-969, at 106. In keeping with our NLRB

precedent, we therefore hold that we lack jurisdiction to

review a decision by the Authority’s General Counsel

affirming a settlement agreement before a hearing takes place.

III

The petition for review is dismissed for lack of

subject-matter jurisdiction.