American Federation of Government Employees v. FLRA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2023 Decided April 23, 2024

No. 22-5308

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

NATIONAL COUNCIL OF HUD LOCALS COUNCIL 222,

AFL-CIO,

APPELLEE

v.

FEDERAL LABOR RELATIONS AUTHORITY AND SUSAN TSUI

GRUNDMANN, IN HER OFFICIAL CAPACITY AS CHAIRMAN OF

THE FEDERAL LABOR RELATIONS AUTHORITY,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-00998)

Thomas Tso, Solicitor, Federal Labor Relations Authority,

argued the cause for appellants. With him on the briefs were

Rebecca J. Osborne, Deputy Solicitor, and Nariea K. Nelson,

Attorney.

Andres M. Grajales argued the cause for appellee. With

him on the brief were David A. Borer and Mark L. Vinson.

Before: WILKINS and WALKER, Circuit Judges, and

2

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

Opinion concurring in the result filed by Circuit Judge

WILKINS.

RANDOLPH, Senior Circuit Judge:

The salaries for most civilian federal jobs are set out in the

General Schedule, a payscale that spans fifteen “grades.” The

higher the grade the greater the compensation.

In 2002, the Department of Housing and Urban

Development advertised job openings having a promotion

potential to grade thirteen. At the time, existing employees in

comparable positions could be promoted only to grade twelve.

The existing employees were represented by the American

Federation of Government Employees, National Council of

HUD Locals Council 222, AFL-CIO. The union took the

position that the difference in the treatment of existing

employees and those to be hired violated its collective

bargaining agreement with HUD. The union filed a grievance

to that effect. HUD rejected it and the union’s grievance

proceeded to arbitration.

Now, more than twenty years after it began, the controversy

has reached our court.

I.

The Federal Service Labor-Management Relations

Statute—the FSLMRS—established a framework for resolving

disputes between federal agency employers and unions

3

representing agency employees. 5 U.S.C. §§ 7101 et seq.; id.

§ 7121(b)(1)(C)(iii). Most grievances may be settled through

arbitration, but an arbitrator generally has no authority to decide

grievances involving the classification of employees’ positions.1

Id. § 7121(c)(5).

If a dispute goes to arbitration, a party dissatisfied with the

result—commonly called an “award”—may contest the result by

filing exceptions with the Federal Labor Relations Authority.

Id. § 7122(a). If neither party files exceptions, the arbitrator’s

award becomes “final and binding.” Id. § 7122(b). The FLRA

may overturn an arbitrator’s award if it finds that the award is

“contrary to any law, rule, or regulation,” or if the award is

deficient on “grounds similar to those applied by Federal courts

in private sector labor-management relations.” Id. § 7122(a).

In cases not involving an arbitration, a party dissatisfied

with an FLRA decision may obtain judicial review in a federal

court of appeals. Id. § 7123(a).

The law treats FLRA decisions in arbitration cases

differently. Excluded from judicial review are FLRA orders

“involving an award by an arbitrator,” “unless the order involves

an unfair labor practice” as defined elsewhere in the FSLMRS.

Id. § 7123(a)(1); see id. § 7116.

From the outset of this protracted dispute, the union and

HUD disagreed on a fundamental issue: whether the union’s

grievance involved classification. U.S. Dep’t of Hous. & Urb.

Dev. Wash., 59 F.L.R.A. 630, 630 (2004). Was the grievance

based on reclassification—the promotion potential of the

1

Classification-related grievances are arbitrable when

reclassification results in a reduction in pay or grade. 5 U.S.C.

§ 7121(c)(5). That exception does not apply here.

4

employees’ permanent positions—or reassignment—the

employees’ right to be placed in the new positions that HUD had

posted? Only a request for reassignment could be potentially

resolved in arbitration.

The parties submitted the question to the arbitrator, who

concluded in an interim order that the dispute involved the

fairness of the vacancy announcements, not classification. See

id. HUD filed an interlocutory exception challenging the

arbitrator’s jurisdiction. Id. The FLRA declined to resolve the

jurisdictional issue at that time and remanded the matter to the

arbitrator for “clarification.” Id. at 632.

Upon remand, the arbitrator again determined that the

grievance was arbitrable. On the merits, the arbitrator, finding

that HUD had violated the parties’ collective bargaining

agreement, ordered a retroactive “organizational upgrade of

affected positions.” Again, HUD filed exceptions, arguing that

the “organizational upgrade” remedy required reclassification

and therefore violated the FSLMRS.

The FLRA agreed with HUD. U.S. Dep’t of Hous. & Urb.

Dev., 65 F.L.R.A. 433, 436 (2011). So the FLRA vacated the

arbitrator’s remedial award and remanded for an alternative

remedy. Id.

The arbitrator then issued new remedies. During

implementation of these remedies, the parties raised various

exceptions to the arbitrator’s written progress summaries,

resulting in five more FLRA decisions.2 Those FLRA decisions

did not reconsider the arbitrator’s threshold decision that the

dispute was arbitrable.

2

The parties and the district court treat each of the arbitrator’s

interim summaries as separate “awards.”

5

In 2018, the FLRA rendered its eighth decision in this

matter. On review of exceptions to the arbitrator’s tenth written

summary, the FLRA held that “the essential nature of this

grievance . . . concerned classification.” U.S. Dep’t of Hous. &

Urb. Dev., 70 F.L.R.A. 605, 608 (2018) (“HUD VIII”). This

meant that “the [a]rbitrator has always lacked jurisdiction over

the grievance, as a matter of law.” Id. The FLRA therefore

vacated all of the arbitrator’s pronouncements and its own prior

decisions. Id. One Member dissented. Id. at 609–10. The

FLRA denied the union’s motion for reconsideration. U.S.

Dep’t of Hous. & Urb. Dev., 71 F.L.R.A. 17, 20 (2019).

The union then filed a four-count complaint in district court

claiming that the FLRA’s decision was “ultra vires.” The

complaint invoked § 7122(b) of the FSLMRS, a provision

stating that an arbitrator’s award becomes “final and binding” if

no exceptions are filed within thirty days.3 The union claimed

that in vacating awards that had become final and binding, the

FLRA had violated the Administrative Procedure Act, 5 U.S.C.

§ 706. The district court rejected the union’s APA claim but

denied the FLRA’s motion to dismiss the entire complaint for

lack of subject matter jurisdiction, holding that it had

jurisdiction because “the [FLRA] exceeded its delegated

3

Section 7122(b) provides in full:

If no exception to an arbitrator’s award is filed under

subsection (a) of this section during the 30-day period

beginning on the date the award is served on the

party, the award shall be final and binding. An

agency shall take the actions required by an

arbitrator’s final award. The award may include the

payment of backpay (as provided in section 5596 of

this title).

6

powers.” The court concluded that “the Union has stated a

claim as to Count I, which alleges that the [FLRA’s] decision to

vacate final and binding arbitration awards was ultra vires.”

The court later granted the union’s motion for summary

judgment on that count.

The issues on appeal concern the district court’s denial of

the FLRA’s motion to dismiss for lack of jurisdiction and the

court’s grant of summary judgment.

II.

Section 7123(a) of the FSLMRS provides for judicial

review of some FLRA decisions. The provision establishes that:

(a) 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 of

this title, or

(2) section 7112 of this title

(involving an appropriate unit

determination),

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 in the United States court of appeals in the

circuit in which the person resides or transacts

business or in the United States Court of Appeals

for the District of Columbia.

7

5 U.S.C. § 7123(a).

Neither the grievance nor the FLRA’s decision in this case

involves an “unfair labor practice.” Section 7123(a)(1) therefore

“flatly” foreclosed the jurisdiction of this court to conduct direct

judicial review of the FLRA’s order vacating the arbitration

awards. U.S. Dep’t of Just. v. FLRA, 981 F.2d 1339, 1342 (D.C.

Cir. 1993).4 Even so, the union contends that as a matter of

statutory interpretation § 7123(a) prohibits only court of appeals

direct review of FLRA arbitration decisions, not district court

review of agency actions when the agency exceeds its statutory

authority. On this theory, the union claimed that its suit in the

district court circumvented the § 7123(a) bar against judicial

review of arbitration decisions. Our court has already answered

the union’s argument: “We cannot imagine that Congress,

having vested in courts of appeals exclusive jurisdiction to

review all [FLRA] decisions except those relating to appropriate

unit determinations [and arbitration orders], would have

intended that such determinations could nevertheless be

reviewed by district courts.” Ass’n of Civilian Technicians v.

FLRA, 283 F.3d 339, 341–42 (D.C. Cir. 2002).

This brings us to the union’s argument from Leedom v.

Kyne, 358 U.S. 184 (1958), a case dealing with the National

Labor Relations Act. That Act foreclosed direct judicial review

in the courts of appeals of the National Labor Relations Board’s

collective bargaining unit certifications.5 Even so, Kyne upheld

district court review of a particular Board unit certification. Id.

at 190–91. As Judge Friendly explained, the “conflict” between

the Act’s prohibition and the NLRB’s action was “plain”: “[The

4

We have jurisdiction over this appeal from the district court.

See United States v. Corrick, 298 U.S. 435, 440 (1936).

5

See Am. Fed’n of Lab. v. NLRB, 308 U.S. 401, 411 (1940).

8

National Labor Relations Act] declared that the Board ‘shall

not’ decide that any unit including professional and

non-professional employees is appropriate for collective

bargaining unless a majority of the professionals vote for

inclusion. The Board conceded it had done exactly what it was

forbidden to do.” Local 1545, United Brotherhood of

Carpenters & Joiners of Am. v. Vincent, 286 F.2d 127, 132 (2d

Cir. 1960).

Kyne treated the jurisdictional issue as one of statutory

interpretation: did the relevant legislation bar judicial review in

the district court? 358 U.S. at 188–90. The Court answered the

question by declaring that Congress could not possibly have

intended to bar district court review of “an order of the Board

made in excess of its delegated powers and contrary to a specific

prohibition in the Act.” Id. at 188. The Court’s opinion neither

quoted nor cited the statutory language it was interpreting. This

omission may be explained in light of the loose concept of

“legislative intent” dominating statutory interpretation in 1958,

when Leedom v. Kyne issued. Then the Court generally believed

if “the text deviate[d] markedly from [a statute’s] apparent

purpose, Congress must have ‘intended’ to use the statute’s

words in something other than their conventional sense.” John

F. Manning, Textualism and the Equity of the Statute, 101

COLUM. L. REV. 1, 6–7 (2001). But by the close of the twentieth

century, that approach was largely rejected in favor of a stricter

focus on a statute’s text. Id.

Relying on Leedom v. Kyne, the union claims that § 7123(a)

means that only courts of appeals are barred from reviewing

FLRA arbitration rulings, leaving the district courts free to do so

whenever the FLRA violates a “definite statutory prohibition of

conduct.” See Kyne, 358 U.S. at 189 (quoting Tex. & New

Orleans R.R. Co. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S.

548, 568 (1930)). Many decisions of our court have dealt with

9

the meaning of § 7123(a). Griffith v. FLRA, 842 F.2d 487 (D.C.

Cir. 1988), for instance, decided that “the specific language of

§ 7123” precluded not just court of appeals judicial review but

also district court review of FLRA arbitration decisions not

involving unfair labor practices. Id. at 493. The court’s

reasoning deserves full quotation:

To be sure, Congress did not explicitly deny to district

courts the power to review FLRA decisions.

Nevertheless, where Congress has set out a complex

scheme authorizing certain types of review but not

others, the express preclusion of review of FLRA

orders under § 7122 in the one mention of the subject

[(arbitration decisions] powerfully suggests an intent to

preclude review in every court. See United States v.

Fausto, 484 U.S. 439 (1988); Block [v. Community

Nutrition Institute, 467 U.S. 340,] 346–47 [(1984)];

Switchmen’s Union of North America v. National

Mediation Board, 320 U.S. 297, 305–06 (1943). This

is especially true in light of Congress’s having

explicitly given the district courts review authority in

one area, namely temporary relief in unfair labor

practice proceedings. See 5 U.S.C. § 7123(d).

Id. at 491 (italics in original). The Griffith court also relied on

the legislative history of § 7123 and quoted, adding italics, the

Conference Committee’s statement that “there will be no

judicial review of the Authority’s action on those arbitrators’

awards in grievance cases which are appealable to the

Authority.” Id. at 492 (quoting H.R. Rep. No. 95-1717, at 153

(1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2887).6

6

Griffith’s analysis gains further support from the requirement in

§ 7123(c) that “[r]eview of the Authority’s order shall be on the record

in accordance with [5 U.S.C. §] 706,” the judicial review provision of

10

“Congress,” the court concluded, “could hardly have made its

view on the matter clearer.” Id.

The analysis portion of Griffith dealing with non-

constitutional claims was in two parts. Part “A,” from which the

block quotation above is taken, dealt with the question whether

in § 7123(a), Congress precluded judicial review of FLRA

arbitration decisions, not only in the courts of appeals, but also

in the district courts.7 Griffith concluded that Congress had

clearly barred judicial review in both. Id. at 492.

In the second non-constitutional portion of Griffith

concerning Leedom v. Kyne—Part “B”—the court stated that

even if “Congress is understood generally to have precluded

review,” Kyne could, in some circumstances, permit the district

court to exercise judicial review of an FLRA arbitration order.

Id. at 493. The beginning of the Griffith opinion also seemed to

suggest that even though Congress had foreclosed judicial

review in any federal court, the rationale of Leedom v. Kyne

could potentially confer jurisdiction on the district court.8

the Administrative Procedure Act. Yet as the district court held, and

as the union conceded, the APA did not apply in this case.

7

Griffith was on appeal from the judgment of the district court

“holding that 5 U.S.C. § 7123(a) barred judicial review of non-

constitutional claims.” 842 F.2d at 489–90.

8

The court put it this way: “We first address the availability of

judicial review for nonconstitutional claims. We find unusually clear

congressional intent generally to foreclose review. Although we find

that the statute leaves the door ajar for review of clear violations of

statutory authority under Leedom v. Kyne, 358 U.S. 184 (1958), we

conclude that none of the errors asserted here qualifies.” 842 F.2d at

490.

11

By that, Griffith could not have meant that Kyne creates

jurisdiction where Congress has expressly eliminated it. The

problem arises because “the subject-matter jurisdiction of the

lower federal courts is determined by Congress.” Argentine

Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 433

(1989) (italics added). Congress’s constitutional authority to

“constitute Tribunals inferior to the supreme Court,” U.S.

CONST. art I., § 8, cl. 9, “includes [the] lesser power to limit the

jurisdiction of those courts.” Patchak v. Zinke, 583 U.S. ___,

138 S. Ct. 897, 906 (2018) (plurality opinion); see also Mark v.

Republic of Sudan, 77 F.4th 892, 896 (D.C. Cir. 2023) (quoting

Patchak, 138 S. Ct. at 906)). “It is a fundamental precept that

federal courts are courts of limited jurisdiction. The limits upon

federal jurisdiction, whether imposed by the Constitution or by

Congress, must be neither disregarded nor evaded.” Owen

Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).

Thus, at least in non-constitutional cases like this one, the

federal judiciary cannot create its own jurisdiction, even if that

jurisdiction is “extraordinarily narrow,” Hartz Mountain Corp.

v. Dotson, 727 F.2d 1308, 1312 (D.C. Cir. 1984), or “extremely

limited [in] scope.” Griffith, 842 F.2d at 493. So in non-

constitutional cases, if a federal statute clearly bars district court

jurisdiction—as § 7123(a) does over arbitration-related

decisions—that ends the matter.9 See Bd. of Governors of the

Fed. Rsrv. Sys. v. MCorp. Fin., Inc., 502 U.S. 32, 44 (1991).

9

As Judge Easterbrook has explained, there can be no “doubt[]

about the power of Congress to restrict the jurisdiction of district

courts—for until 1875 the inferior courts lacked any federal-question

jurisdiction, and until 1980 the federal-question jurisdiction was

qualified by an amount-in-controversy requirement. No one thinks the

Judiciary Act of 1789 a colossal violation of Article III on this

account.” Czerkies v. Dep’t of Lab., 73 F.3d 1435, 1434–44 (7th Cir.

1996) (Easterbrook, J., concurring).

12

Griffith, in interpreting § 7123(a), did not confront these

constitutional difficulties. The Supreme Court has “repeatedly

held that the existence of unaddressed jurisdictional defects has

no precedential effect.” Lewis v. Casey, 518 U.S. 343, 352 n.2

(1996). We see no need to say more on the subject, except to

emphasize that Griffith interpreted § 7123(a) as a bar to district

court jurisdiction.

Our court has consistently held that § 7123(a) bars district

court review of FLRA arbitration decisions. In American

Federation of Government Employees v. Loy, another panel of

our court held: “If an FLRA order falls within one of

§ 7123(a)’s two exceptions to review in the court of appeals, this

does not mean the district courts are open. It means that review

is precluded in any court.” 367 F.3d 932, 935 (D.C. Cir. 2004).

That considered and succinct statement regarding non-

constitutional claims admits of no qualifications.

Other opinions of our court interpreted § 7123(a) as the

court did in Loy. For example, U.S. Department of Justice v.

FLRA held that “it is not the business of the courts to second-

guess arbitral judgments that fall within the compass of

§ 7123(a)(1).” 981 F.2d 1339, 1344 (D.C. Cir. 1993). In U.S.

Department of Treasury v. FLRA, the court held “that the district

courts lack jurisdiction to review arbitration awards arising

under the FSLMRS.” 43 F.3d 682, 687 (D.C. Cir. 1994). In

Association of Civilian Technicians, Inc. v. FLRA, our court

stated: “Pointing out that FLRA section 7123 mentions only

‘courts of appeals,’ the [plaintiff] insists that the provision does

not bar district courts from reviewing appropriate unit

determinations. . . . [W]e disagree.” 283 F.3d at 341. In

American Federation of Government Employees v. Secretary of

the Air Force, the court held again that under § 7123(a)(1) the

district courts are not available. 716 F.3d 633, 637 (D.C. Cir.

2013). In yet another case, U.S. Department of Homeland

13

Security v. FLRA, the court wrote: “In Griffith, we held that

. . . there was ‘unusually clear congressional intent generally to

foreclose review’ of ‘nonconstitutional claims.’”10 784 F.3d

821, 823 (D.C. Cir. 2015) (quoting Griffith, 842 F.2d at 490).

As against this solid, unbroken line of circuit precedent

dealing with § 7123(a), the union invokes a case dealing with an

entirely different statute, Nyunt v. Chairman, Broadcasting

Board of Governors, 589 F.3d 445 (D.C. Cir. 2009). There we

stated that “[t]he Leedom v. Kyne exception applies . . . only

where (i) the statutory preclusion of review is implied rather

than express.” Id. at 449. The union’s claim, with which the

district court agreed, is that Leedom v. Kyne establishes district

court jurisdiction to review FLRA arbitration decisions because

§ 7123 does not “expressly” preclude it.

There are several reasons why the statement in Nyunt

cannot supplant or even detract from the interpretation of

§ 7123(a) in our circuit precedents just discussed. Assume, for

the moment, that Nyunt is inconsistent with our court’s decisions

under § 7123(a). Even so this would not support the union’s

position. Nyunt, as stated above, involved a different and

unrelated statute. When “a precedent of [our court] has direct

application in a case, yet appears to rest on reasons rejected in

some other line of decisions, [a later panel] should follow the

case which directly controls, leaving to [the court en banc] the

prerogative of overruling” the earlier decision. Rodriguez de

10

The Griffith court held that a constitutional challenge, as

distinguished from a non-constitutional challenge, to an FLRA

arbitration decision could be brought in the district court. 842 F.2d at

495. The Supreme Court drew a similar distinction between

constitutional and non-constitutional claims in Webster v. Doe, 486

U.S. 592, 603 (1988), over Justice Scalia’s dissent. The union’s

claims here are non-constitutional.

14

Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989);

see, e.g., United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir.

1997). Here the directly controlling cases from our circuit are

those dealing with § 7123(a), not Nyunt.

We recognize that even without a reversal en banc, panel

opinions of our court might be overcome by a Supreme Court

decision or decisions. E.g., Dellums v. U.S. Nuclear Regul.

Comm’n, 863 F.2d 968, 978 n.11 (D.C. Cir. 1988). And so we

have considered whether the Supreme Court has ever embraced

Nyunt’s implied-express formula to decide whether a statute

precluded judicial review. We have found that whether “the

statutory preclusion of review” is “express” or “implied” has

never been the test.

The Supreme Court’s opinion in Block v. Community

Nutrition Institute, 467 U.S. 340 (1984), makes this as clear as

can be. The Court held: “Whether and to what extent a

particular statute precludes judicial review is determined not

only from its express language, but also from the structure of the

statutory scheme, its objectives, its legislative history, and the

nature of the administrative action involved.” 467 U.S. at 345.

The Supreme Court reiterated this standard in Thunder Basin

Coal Co. v. Reich, 510 U.S. 200, 207 (1994): “Whether a statute

is intended to preclude initial judicial review is determined from

the statute’s language, structure, and purpose, [and] its

legislative history . . ..” And in 2012—three years after Nyunt

was decided—Justice Scalia wrote for a unanimous Court that

“in determining ‘[w]hether and to what extent a particular

statute precludes judicial review,’ we do not look ‘only [to] its

express language.” Sackett v. EPA, 566 U.S. 120, 128 (2012)

(alterations in original) (quoting Block, 468 U.S. at 345).

Sackett directly contradicted the implied-express dictum in

Nyunt. The holdings in many other Supreme Court cases

dealing with preclusion of judicial review are to the same effect.

15

See, e.g., S. Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S.

444, 456–60 (1979); Lindahl v. Off. of Pers. Mgmt., 470 U.S.

768, 779 (1985); Bowen v. Mich. Acad. of Fam. Physicians, 476

U.S. 667, 673 & n.4 (1986); United States v. Fausto, 484 U.S.

439, 444 (1988).11

Our decisions were therefore on solid ground in construing

§ 7123(a)(1) with the “traditional tools of statutory

construction,”12 including legislative history, and in concluding

that Congress had not only foreclosed direct review in the courts

of appeals but also in the district courts.

We have not attempted to place our court’s construction of

§ 7123(a) into Nyunt’s “express” category, although there are

strong arguments for doing so. Griffith itself ruled that § 7123

contained “specific language” barring judicial review in any

federal court and that Congress “could hardly have made its

view on the matter clearer.” 842 F.2d at 492. To the extent that

Nyunt is inconsistent with our earlier § 7123(a) line of cases,

settled circuit law dictates that those cases, not Nyunt, control.

E.g., De Csepel v. Republic of Hungary, 859 F.3d 1094, 1105

(D.C. Cir. 2017); Sierra Club v. Jackson, 648 F.3d 848, 854

(D.C. Cir. 2011).

11

Nyunt also stated in dictum that application of Leedom v. Kyne

turned on whether the plaintiff had an alternative avenue of review.

589 F.3d at 449. This statement too seems to contradict circuit

precedent. See Physicians Nat’l House Staff Ass’n v. Fanning, 642

F.2d 492, 499 (D.C. Cir. 1980) (en banc) (“[I]t is not the unavailability

of a remedy which triggers the [Leedom v.] Kyne exception, but the

violation of a clear statutory demand.”) (citation omitted).

12

Overseas Educ. Ass’n v. FLRA, 824 F.2d 61, 66 (D.C. Cir.

1987), quoting Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 n.9

(1984), and construing § 7123(a)(1) in a case raising a related issue

about judicial review of FLRA unfair labor practice decisions.

16

We end this part of our opinion where perhaps we should

have begun, with Abbott Laboratories v. Gardner, 387 U.S. 136

(1967). There the Supreme Court held that “the Administrative

Procedure Act . . . embodies the basic presumption of judicial

review to one ‘suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within the

meaning of a relevant statute.’” Id. at 140 (quoting 5 U.S.C.

§ 702). Judicial opinions often cite this presumption in cases

dealing with statutes allegedly foreclosing judicial review, and

with Leedom v. Kyne. See, e.g., Griffith, 842 F.2d at 490; Dart

v. United States, 848 F.2d 217, 221 (D.C. Cir. 1988).

In this case the premise of the Abbott Laboratories

presumption is absent. The APA does not apply when “(1)

statutes preclude judicial review[] or (2) agency action is

committed to agency discretion by law.” 5 U.S.C. § 701(a); see

Abbott Labs., 387 U.S. at 140. When introduced, the bill that

became the APA required for the first exception that “statutes

expressly preclude judicial review.” S. 7, 79th Cong. § 10 (as

introduced in Senate, Jan. 6, 1945) (italics added). The Senate

Committee on the Judiciary deleted the word “expressly.”

ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE

PROCEDURE ACT 94 n.4 (1947). Under the APA as enacted, a

“statute may in terms preclude, or be interpreted as intended to

preclude, judicial review altogether.” Id. at 94.13 As we have

discussed, § 7123(a)(1) has been so interpreted by our court.

13

The Supreme Court has relied on the ATTORNEY GENERAL’S

MANUAL to interpret the APA. See, e.g., Norton v. S. Utah Wilderness

All., 542 U.S. 55, 63–64 (2004); Chrysler Corp. v. Brown, 441 U.S.

281, 302 n.31 (1979); Vt. Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 546 (1978). So too has this court. See, e.g., Am. Min. Cong.

v. Mine Safety & Health Admin., 995 F.2d 1106, 1109, 1111 (D.C. Cir.

1993); Pac. Gas & Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33, 38

n.17 (D.C. Cir. 1974).

17

Even if the presumption applied despite the inapplicability

of the APA from which it is derived, the result here would be no

different. The “presumption favoring judicial review is not to be

applied in the ‘strict evidentiary sense,’” but may be

“‘overcom[e] whenever the congressional intent to preclude

review is ‘fairly discernible in the statutory scheme.’” Block,

467 U.S. at 350–51 (quoting Data Processing Serv. v. Camp,

397 U.S. 150, 157 (1970)). “Here, as in Block, we think

Congress’ intention is fairly discernible, and that ‘the

presumption favoring judicial review . . . [has been] overcome

by inferences of intent drawn from the statutory scheme as a

whole.’” Fausto, 484 U.S. at 452 (quoting Block, 467 U.S. at

349) (alterations in original).

III.

Nor did the FLRA defy the FSLMRS in the same way that

the NLRB had defied the statute in Leedom v. Kyne. In Kyne the

National Labor Relations Board admitted that it had acted “in

excess of its delegated powers and contrary to a specific

prohibition in the Act.” 358 U.S. at 188. The “specific

prohibition” stated that the Board “shall not” take a certain

action. Id. The Board took the action anyway. So for Leedom

v. Kyne to apply here, the FLRA must have violated “a specific

and unambiguous statutory directive” or engaged in an action

that “‘on its face’ violated a statute.” Nat’l Air Traffic

Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel, 437

F.3d 1256, 1264 (D.C. Cir. 2006) (citation omitted); Dart, 848

F.2d at 222. Kyne does not apply if the FLRA made a

“[g]arden-variety error[] of law.” Griffith, 842 F.2d at 493.

Section 7122(b) of the FSLMRS states: “If no exception to

an arbitrator’s award is filed under subsection (a) of this section

during the 30-day period beginning on the date the award is

18

served on the party, the award shall be final and binding.” 5

U.S.C. § 7122(b). If exceptions are filed, the award becomes

final and binding when appellate procedures are exhausted.

Dep’t of Health & Hum. Servs. Soc. Sec. Admin., 41 F.L.R.A.

755, 766 (1991); see also Dep’t of Health & Hum. Servs., Soc.

Sec. Admin. v. FLRA, 976 F.2d 1409, 1413 (D.C. Cir. 1992).

The union’s argument is that the FLRA, in vacating for lack

of jurisdiction the arbitrator’s award and summaries and the

FLRA’s own prior decisions in the matter, violated § 7122(b).

But at most, that is a “[g]arden-variety error[] of law,” and we

express no opinion about whether it even is that. Griffith, 842

F.2d at 493. To begin with, § 7122(b) may only govern the

conduct of the parties to the arbitration. If neither party files an

exception within thirty days, the employing “agency shall take

the actions required by an arbitrator’s final award.” 5 U.S.C.

§ 7122(b). After thirty days, if neither party files an exception,

the award becomes final and binding—on the parties. Under

this theory, § 7122(b) is not, as in Kyne, a “specific prohibition”

directing the FLRA to refrain from vacating an arbitrator’s

finalized award because of a jurisdictional defect.

That the FLRA may reconsider an arbitrator’s jurisdiction

when hearing exceptions after deciding earlier exceptions in the

same case seems fairly obvious. The union’s contrary

claim—that Congress prohibited the FLRA from having second

thoughts about the arbitrator’s jurisdiction—creates some

tension with FLRA precedents14 and with the judicial principle

14

In the challenged decision, the FLRA reasoned that not only

can it sua sponte consider whether an arbitration matter involves

classification, but it “is required to address” the arbitrator’s

jurisdiction “regardless of whether the issue is also presented to the

arbitrator.” HUD VIII, 70 F.L.R.A. at 607 & n.35; see also Off. &

Pro. Emps. Int’l Union, Local 2001, 62 F.L.R.A. 67, 69 (2007); U.S.

19

that jurisdictional questions may be raised at any time, including

by the court itself. See Capron v. Van Noorden, 6 U.S. (2

Cranch) 126, 127 (1804); Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94–95 (1998). True, the FLRA is not a court. But

Congress “intended that in the area of arbitral awards the

[FLRA] would play in federal labor relations the role assigned

to district courts in private sector labor law.” Griffith, 842 F.2d

at 491. So, like a court, the FLRA could have the prerogative to

verify subject-matter jurisdiction at every stage of a proceeding.

Institutional reform cases dealing with prisons, for example,

provide another comparison. A district court may enter multiple

decrees or injunctions over time, revising and amending its

initial order. See, e.g., Miller v. French, 530 U.S. 327, 331–32

(2000). While a particular injunction or decree is in effect, it

binds the parties. But the district court retains the power to

modify the ongoing equitable relief. See, e.g., Rufo v. Inmates

of Suffolk Cnty. Jail, 502 U.S. 367, 380–81 (1992); United States

v. W. Elec. Co., 46 F.3d 1198, 1203 (D.C. Cir. 1995). In short,

an order that is final and binding on the parties is often not final

and binding on the court. See Rufo, 502 U.S. at 380–81.

The same principle arguably applies here. After the

arbitrator issued the operative remedial award, the parties began

implementation proceedings. During those proceedings, the

arbitrator created ten written summaries.15 See HUD VIII, 70

Dep’t of the Army, 61 F.L.R.A. 8, *4–7 (2005); USDA, Food &

Consumer Serv., 60 F.L.R.A. 978, 981 (2005); U.S. EEOC, Memphis

Dist. Off., 18 F.L.R.A. 88, 89 n.2 (1985).

15

Early on, HUD filed exceptions claiming that the arbitrator

impermissibly modified the remedial award through the summaries,

which had, among other things, expanded the class of employees

covered by the remedy. HUD VIII, 70 F.L.R.A. at 606. The FLRA

20

F.L.R.A. at 607. Through the summaries, the arbitrator “slightly

changed the award at every implementation meeting.” Id. at

608. Given that an arbitrator can adjust an award throughout its

implementation, awards are not categorically “final and binding”

on arbitrators. See Am. Fed. of Gov’t Emps. Local 3615, 54

F.L.R.A. 494, 496, 498 (1998). It would be somewhat

anomalous to suppose that § 7122(b) restricts the FLRA but not

arbitrators.

Other than § 7122(b), the union also relies on § 7122(a), the

provision dealing with FLRA review of exceptions to arbitration

awards. Section 7122(a) provides that “[i]f upon review [of

exceptions] the Authority finds that the award is deficient[,]

. . . the Authority may take such action and make such

recommendations concerning the award as it considers

necessary . . ..” 5 U.S.C. § 7122(a). The union claims that the

word “the” in “the award” (italics added) is an affirmative

command: the FLRA can only review the singular award before

it. The district court, too, emphasized that “the award” refers to

a “single object.”

Perhaps. But it is debatable whether § 7122(a)’s use of the

term “the award” is a statutory mandate that amounts to a

specific prohibition. Section 7122(a) gives the FLRA the power

to review exceptions. It does not, by its text, limit the FLRA’s

review of jurisdictional defects. Section 7122(a) thus lacks the

clarity required to support the application of Leedom v. Kyne.

“[T]he distinction between violation of a clear and of a not

so clear statutory command is neither completely satisfying nor,

save where the violation is conceded, as it was in Leedom v.

dismissed the exceptions as untimely without considering the merits

of HUD’s argument. U.S. Dep’t of Hous. & Urb. Dev., 68 F.L.R.A.

631, 634–36 (2015).

21

Kyne, readily applied.” Local 1545, 286 F.2d at 133 (italics

added). To sum up, in holding that the arbitrator lacked

jurisdiction over the parties’ dispute, the FLRA did not violate

an obvious statutory prohibition.

Still another problem with the union’s argument is that the

FSLMRS says nothing about the finality of awards when

exceptions are filed. Because exceptions were filed to the

arbitrator’s operative remedial award, the FLRA might well

have violated no statutory provision when it vacated that award.

Once the FLRA vacated the remedial award, the arbitrator’s

implementation summaries—whether vacated or not—at least

arguably became unenforceable.

* * *

Accordingly, we vacate the district court’s orders denying

the FLRA’s motion to dismiss and granting summary judgment

to the union and remand the case to the district court with

instructions to dismiss the complaint.

So ordered.

WILKINS, Circuit Judge, concurring in the result:

In order to avail itself of Leedom jurisdiction, see Leedom

v. Kyne, 358 U.S. 184 (1958), the American Federation of

Government Employees, National Council of HUD Locals,

Council 222 (the “Union”) needed to show that the Federal

Labor Relations Authority (“FLRA”) decision below was

plainly ultra vires. Because the Union cannot meet that high

bar, the Leedom exception does not apply, the District Court

had no jurisdiction to entertain the present lawsuit, and its

judgment must be reversed. That should end the matter.

The majority wanders further, opining that 5 U.S.C. §

7123(a) categorically bars district court review of FLRA

arbitration decisions even if a party can show that the FLRA

action was ultra vires. The majority also declares that our

decision in Nyunt v. Chairman, Broadcasting Board of

Governors, 589 F.3d 445 (D.C. Cir. 2009) (Kavanaugh, J.), is

both irrelevant and incorrect, even though no party made those

contentions. Those musings are not only unnecessary to the

result, but they are also inconsistent with precedent. I therefore

cannot join the majority opinion and must write separately.

I.

The Leedom exception is one of vanishingly few avenues

that provide the “availability of nonstatutory review for

statutory claims,” 33 CHARLES ALAN WRIGHT, CHARLES H.

KOCH & RICHARD MURPHY, FEDERAL PRACTICE AND

PROCEDURE § 8362 (2d ed. 2018). Jurisdiction for ultra vires

review does not arise out of an agency’s statutory scheme but

instead “evolved out of courts’ use of their equitable

jurisdiction to enjoin illegal agency action.” Id. § 8307.

Indeed, “[j]udicial review for ultra vires agency action ‘rests

on the longstanding principle that if an agency action is

unauthorized by the statute under which [the agency] assumes

to act, the agency has violate[d] the law and the courts

2

generally have jurisdiction to grant relief.’” Fed. Express

Corp. v. U.S. Dep’t of Com., 39 F.4th 756, 763 (D.C. Cir. 2022)

(quoting Nat’l Ass’n of Postal Supervisors v. U.S. Postal Serv.,

26 F.4th 960, 970 (D.C. Cir. 2022) (internal quotation marks

omitted)).

Accordingly, the Leedom exception, “premised on the

original federal subject matter jurisdiction of the district

courts,” Am. Fed’n of Gov’t Emps. Local 3690 v. FLRA, 3 F.4th

384, 390 (D.C. Cir. 2021) (emphasis in original) (quoting Am.

Fed’n of Gov’t Emps., Local 2510 v. FLRA, 453 F.3d 500, 506

(D.C. Cir. 2006)), “permits, in certain limited circumstances,

judicial review of agency action for alleged statutory violations

even when a statute precludes review,” Nyunt, 589 F.3d at 449.

This Circuit employs the test articulated in Nyunt to guide

application of the Leedom exception. See generally Changji

Esquel Textile Co. Ltd. v. Raimondo, 40 F.4th 716, 722 (D.C.

Cir. 2022); Fed. Express Corp., 39 F.4th at 763; DCH Reg’l

Med. Ctr. v. Azar, 925 F.3d 503, 509 (D.C. Cir. 2019); Am.

Fed’n of Gov’t Emps. v. Sec’y of the Air Force, 716 F.3d 633,

639 n.6 (D.C. Cir. 2013); see also N. Am. Butterfly Ass’n v.

Wolf, 977 F.3d 1244, 1263 (D.C. Cir. 2020). Relying on

existing caselaw, then-Judge Kavanaugh devised a three-factor

test that explains the Leedom exception applies “only where (i)

the statutory preclusion of review is implied rather than

express,” “(ii) there is no alternative procedure for review of

the statutory claim,” and “(iii) the agency plainly acts ‘in

excess of its delegated powers and contrary to a specific

prohibition in the’ statute that is ‘clear and mandatory[.]’”

Nyunt, 589 F.3d at 449 (quoting Leedom, 358 U.S. at 188) (first

citing Bd. of Govs. of the Fed. Reserve Sys. v. MCorp Fin., Inc.,

502 U.S. 32, 44 (1991); then citing McBryde v. Comm. to Rev.

Cir. Council Conduct & Disability Ords. of the Jud. Conf. of

the U.S., 264 F.3d 52, 63–64 (D.C. Cir. 2001); and then citing

3

Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed. Serv.

Impasses Panel, 437 F.3d 1256, 1263–64 (D.C. Cir. 2006)).

Thus, if the party seeking review cannot show that the

agency action being challenged was taken plainly in excess of

the agency’s powers and contrary to a statutory prohibition, it

loses. That is the case here.

II.

In its complaint, the Union alleged that the FLRA “acted

contrary to a clear and mandatory provision of [5 U.S.C. §

7122(b)]” when it “refus[ed] to uphold the final and binding

arbitral decisions underlying and in HUD I through HUD VII

and Summaries 1 [through] 9.” J.A. 391. In the contested

action, upon review of HUD’s exception to the tenth summary

of the arbitrator, the FLRA vacated all of the arbitrator’s

previous awards, set aside all of her summaries (except the

tenth summary), and vacated all of the agency’s own prior

decisions in HUD I through HUD VII on the grounds “the

[a]rbitrator has always lacked jurisdiction over the grievance,

as a matter of law” and “should have declared this grievance to

be non-arbitrable from the outset.” U.S. Dep’t of Hous. & Urb.

Dev., 70 F.L.R.A. 605, 608 (2018) (“HUD VIII”).

The FLRA rejected the contention that vacating the

arbitrator’s decisions violated 5 U.S.C. § 7122(b), which

provides that arbitral decisions are “final and binding” once

any exceptions are resolved. As it explained, while “the prior

arbitration awards and written summaries, with the exclusion

of the tenth written summary, were final and binding[,]” the

“[FLRA] may consider jurisdictional questions even where the

merits of an underlying final and binding award are not at

issue.” U.S. Dep’t of Hous. & Urb. Dev., 71 F.L.R.A. 17, 18

4

(2019) (“HUD IX”). Unfortunately for the Union, the FLRA is

correct.

A.

The Union claims that the “final and binding” language in

the statute compelled the FLRA to treat its prior jurisdictional

finding as law of the case and consequently prevented the

FLRA from revisiting that finding. There are several

weaknesses to this argument. First, it is not even clear that the

law of the case doctrine, which provides that “the same issue

presented a second time in the same case in the same court

should lead to the same result,” LaShawn A. v. Barry, 87 F.3d

1389, 1393 (D.C. Cir. 1996) (en banc) (emphasis in original),

even applies to administrative agencies like the FLRA. See

Biltmore Forest Broad. FM, Inc. v. Fed. Commc’ns Comm’n,

321 F.3d 155, 163 (D.C. Cir. 2003) (noting “that the law of the

case doctrine is of uncertain force in the context of

administrative litigation”); see also 18B CHARLES ALAN

WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL

PRACTICE AND PROCEDURE § 4478 (3d ed. 2019) (while

“agencies . . . may find it desirable to invoke law-of-the-case

principles[,] . . . [t]he increased flexibility that distinguishes

administrative procedure from judicial procedure may,

however, lead agencies to take a somewhat more relaxed view

of the need for consistency[.] . . .”). And even if the law of the

case doctrine applied to the FLRA, “[t]he doctrine is a

discretionary prudential doctrine, not a jurisdictional bar[.] . .

.” Guedes v. Bureau of Alcohol, Tobacco, Firearms, and

Explosives, 45 F.4th 306, 312 (D.C. Cir. 2022). Thus, because

“[l]aw of the case directs a court’s discretion [and] does not

limit the tribunal’s power[,]” Arizona v. California, 460 U.S.

605, 618 (1983), the FLRA’s failure to employ the doctrine

cannot support a claim that the FLRA acted ultra vires (in

excess of its power), even if the doctrine applied.

5

B.

The Union’s argument that the “final and binding”

language in Section 7122(b) precludes the FLRA from vacating

these arbitral awards also falls flat. First, the most natural

reading of the text is that “final and binding” refers to the

parties to the award because it is the parties to the dispute who

are bound by the decisions and remedial provisions set forth by

the arbitrator. At most, whether the “final and binding”

language applies to the FLRA—upon review of the arbitrator’s

decision—is ambiguous.

The FLRA has concluded that it has the obligation to

review and set aside even “final and binding” awards if it

determines that the underlying grievance was outside of the

arbitrator’s statutory jurisdiction, HUD IX, 71 F.L.R.A. at 18,

which is consistent with the approach it has taken for many

years, see U.S. Dep’t of Agric. Food & Consumer Serv., 60

F.L.R.A. 978, 981 (2005) (noting FLRA precedent from 1999

holding that “the Authority’s subject matter jurisdiction may

be raised at any stage of the Authority’s proceedings” has

“been applied subsequently in several decisions”). Given the

ambiguity of the statute, we must defer to the FLRA’s

interpretation of its statutory jurisdiction, if it is reasonable.

See Bureau of Alcohol, Tobacco, and Firearms v. FLRA, 464

U.S. 89, 97 (1983) (“[R]eviewing courts should uphold

reasonable and defensible constructions of an agency’s

enabling Act”); see also City of Arlington, Tex. v. Fed.

Commc’ns Comm’n, 569 U.S. 290, 303 (2013) (“The U.S.

Reports are shot through with applications of Chevron to

agencies’ constructions of the scope of their own

jurisdiction.”). And the FLRA’s interpretation does appear to

be reasonable, as it is consistent with the view of the Federal

Circuit that “the arbitrator’s jurisdiction cannot extend to a case

over which the statute does not grant him authority, and such

6

jurisdictional issue may be raised at any time.” Devine v.

Levin, 739 F.2d 1567, 1570 (Fed. Cir. 1984).

***

In sum, because the Union cannot show that the FLRA

plainly acted “‘in excess of its delegated powers and contrary

to a specific prohibition in the statute’ that is ‘clear and

mandatory,’” Nyunt, 589 F.3d at 449 (quoting Leedom, 358

U.S. at 188), it cannot avail itself of district court review under

Leedom. As we observed recently when applying this third

prong of the Nyunt test, “[t]o be ruled ultra vires, the

challenged action must ‘contravene[] a clear and specific

statutory mandate[,]’ . . . and the statutory construction adopted

by an agency will be held ‘impermissible’ only if it is ‘utterly

unreasonable[.]’” Fed. Express Corp., 39 F.4th at 766

(citations and quotations omitted).

III.

Reaching the conclusion that the Union cannot meet the

third prong of the Nyunt test was all that was necessary for the

majority to decide this case. See Dobbs v. Jackson Women's

Health Org., 597 U.S. 215, 348 (2022) (Roberts, C.J.,

concurring in judgment) (“If it is not necessary to decide more

to dispose of a case, then it is necessary not to decide more.”).

I am tempted to ignore this surplusage, but I would be remiss

if I did not call attention to a couple of major problems.

A.

First, the majority stretches the holding of Griffith v. FLRA

to proclaim a rule that conflicts with our precedent. 842 F.2d

487 (D.C. Cir. 1988).

7

The majority asserts that Griffith and subsequent

authorities demonstrate that “in non-constitutional cases, if a

federal statute clearly bars district court jurisdiction—as §

7123(a) does over arbitration-related decisions—that ends the

matter.” Maj. Op. 11. The majority’s assertion directly

contradicts Griffith’s statement that “we find that the statute [§

7123(a)] leaves the door ajar for clear violations of statutory

authority under Leedom v. Kyne. . . .” Griffith, 842 F.2d at 490

(emphasis added). The majority acknowledges the

contradiction, Maj. Op. 10 n.8, but nonetheless protests that we

did not really mean what we said in Griffith, id. at 11. The

majority’s strained protests are belied by what we said barely

one year later, when we observed—in a case about the scope of

review of FLRA arbitration decisions—that we really did mean

what we said in Griffith:

[O]ur earlier opinion in Griffith . . . h[eld] that

the merits of arbitration awards appealed to the

FLRA are not further reviewable in any federal

court unless the arbitrators’ decision (and the

FLRA’s affirmance) is challenged as

unconstitutional or falls within the narrow

bounds of the Leedom v. Kyne[.] . . exception to

statutory provisions.

Dep’t of Treasury, Off. of Chief Couns. v. FLRA, 873 F.2d

1467, 1472 (D.C. Cir. 1989) (Supplemental Opinion) (second

emphasis added).

More of our precedent undermines the majority’s reading

of Griffith. If the majority were correct, Griffith established a

rule that in cases challenging an FLRA arbitration decision as

contrary to a statute (rather than contrary to the constitution),

Leedom jurisdiction is absolutely foreclosed because “that ends

the matter.” Maj. Op. 11. Accordingly, under the majority’s

8

rule, we would not need to determine whether the challenged

FLRA arbitration decision violated a plain statutory command

in order to disclaim Leedom jurisdiction because only

constitutional violations can confer Leedom jurisdiction in

FLRA arbitration cases in the first place. But we did just that

in U.S. Department of Justice v. FLRA, where notwithstanding

our citation of Griffith, we examined whether the challenged

FLRA arbitration order was a “facial violation or a patent

misconstruction of the Statute” before we ruled there was no

Leedom jurisdiction. 981 F.2d 1339, 1344 (D.C. Cir. 1993).

Likewise, in U.S. Department of Treasury, U.S. Customs

Service v. FLRA, another case involving an FLRA arbitration,

we said—notwithstanding our citation of Griffith—that

“Leedom stands for the proposition that if an agency openly

violates a clear mandate of a statute even a preclusion of

judicial review (in that case implied) will not bar judicial

intervention. . . . There is no such clear transgression of a

substantive statutory mandate here.” 43 F.3d 682, 688 (D.C.

Cir. 1994) (emphases added). Again, there would have been

no need for us to examine whether a statute was “clear[ly]

transgress[ed]” if non-constitutional challenges to FLRA

arbitration decisions were indeed unqualifiedly outside of

Leedom review.

The majority’s categorical reading of Griffith cannot be

squared with precedent where we did not treat the fact that the

plaintiffs raised statutory violations in FLRA arbitration cases,

rather than constitutional violations, as if it were the “end of

the matter.” I grant that the majority cites language from our

cases that supports its view, see Maj. Op. 12–13, but where

resolution of this case does not turn on which reading of

Griffith is correct, I would think it wise for us to avoid trying

to solve that riddle today.

9

B.

Second, the majority insists that our precedent in Nyunt is

not controlling because it “deal[s] with an entirely different

statute[,]” Maj. Op. 13, even though no one made or briefed

that argument. To the contrary, both sides asked us to apply

the Nyunt test to resolve this case. Appellant Br. 57, 62;

Appellee Br. 22, 38; Appellant Reply Br. 1–2. Furthermore, it

was unnecessary to decide whether Nyunt “controlled” this

case or not because the Union could not satisfy the Nyunt test

anyway.

As explained above, the third prong of the Nyunt test

requires a plaintiff to show that the “agency plainly act[ed] ‘in

excess of its delegated powers and contrary to a specific

prohibition in the’ statute that is ‘clear and mandatory[.]’”

Nyunt, 589 F.3d at 449 (quoting Leedom, 358 U.S. at 188). The

majority found that the Union’s contention that the FLRA

violated Section 7122(a) was at best “debatable,” Maj. Op. 20,

and that the FLRA “might well have violated no statutory

provision” at all, id. 21. Accordingly, because the Union did

not show that the FLRA had “plainly acted” in excess of its

powers or in violation of any statute, the Union crashed at

Nyunt’s third prong and there was no need to deem Nyunt

irrelevant to this dispute.

C.

Third, the majority piled onto Nyunt even further, by

suggesting that certain language in the opinion is erroneous,

even though, as noted above, none of the parties argued that

Nyunt was wrong.

This tack is especially curious. After all, if, as the majority

contends, Nyunt does not supply the correct test for FLRA

10

arbitration cases, all the majority had to do was to say so. That

would make Nyunt immaterial to the present dispute.

Apparently, the majority wasn’t finished with Nyunt. My

colleagues hazard on, asserting that they have reviewed

“whether the Supreme Court has ever embraced Nyunt’s

implied-express formula to decide whether a statute precluded

judicial review[,]” and concluding that “[they] have found that

whether ‘the statutory preclusion of review’ is ‘express’ or

‘implied’ has never been the test.” Maj. Op. 14. Conscious

that a subsequent panel of our court cannot overrule an earlier

panel decision without the assent of a majority of the full court,

see LaShawn A., 87 F.3d at 1395, the majority invokes

authority holding that a panel can discard one of our precedents

if that precedent has been subsequently “eviscerated” by the

Supreme Court. See Dellums v. U.S. Nuclear Regul. Comm’n,

863 F.2d 968, 978 n.11 (D.C. Cir. 1988) (cited at Maj. Op. 14).

But Nyunt has never been “eviscerated” by the Supreme

Court. Not even close.

The majority cites Supreme Court cases to support the

proposition that a court can find Congress expressly precluded

judicial review not only by examining the statutory text by

itself, but also by examining the text in conjunction with the

statutory scheme, the statute’s purpose and any other tool of

statutory construction. Maj. Op 15–16. I agree with this

proposition, but I disagree that Supreme Court cases

expounding this proposition somehow “eviscerate” Nyunt. To

the contrary, Nyunt says nothing about what interpretive tools

a court can (or cannot) use to construe a statute that is claimed

to preclude judicial review, and the majority cites to no such

language.

11

The majority appears to take exception to the fact that

Nyunt says that “statutory preclusion of review” can be either

“express” or “implied.” Nyunt, 589 F.3d at 449 (cited at Maj.

Op. 13). But this language from Nyunt only means that when

the statute is fairly construed as “expressly” evincing

congressional intent to preclude judicial review, that is the end

of the matter—the courts have no jurisdiction. On the other

hand, if a fair construction of the statute is ambiguous or merely

“implies” that Congress may have intended to preclude judicial

review, then we should review other considerations to ensure

that the presumption of judicial review has been clearly

overcome. Far from being eviscerated, this understanding of

the law is absolutely consistent with Supreme Court precedent,

both before and after Nyunt.

Indeed, the Supreme Court has never considered the

concept of “implied” preclusion of judicial review as

anathema. In Bowen v. Michigan Academy of Family

Physicians, which is favorably cited by the majority, see Maj.

Op. 15, the Court first examined the statutory text and found

no express preclusion of judicial review of the matter in

dispute, and then went on to hold that the asserted claim was

“not impliedly insulated from judicial review” by the statute.

476 U.S. 667, 678 (1986) (emphasis added). In Barlow v.

Collins, the Court first concluded that none of the pertinent

statutes “expressly preclude[d] judicial review,” 397 U.S. 159,

165 (1970), and then, citing Leedom, stated that “[t]he question

then becomes whether nonreviewability can fairly be inferred”

before ruling that there was no preclusion, id. at 166 (emphasis

added). In De Martinez v. Lamagno, the Court reviewed the

statutory text, context, scheme and history to conclude there

was no express preclusion of judicial review “[b]ecause the

statute [was] reasonably susceptible to divergent

interpretation[.]” 515 U.S. 417, 434 (1995). Thus, the Court

“adopt[ed] the reading that accords with traditional

12

understandings and basic principles: that executive

determinations generally are subject to judicial review,” and

found no preclusion to judicial review. Id. But implied

preclusion is no one-way ratchet. In Block v. Community

Nutrition Institute, also favorably cited by my colleagues, see

Maj. Op. 17, the Court held that “[t]he structure of this Act

implies that Congress intended to preclude consumer

challenges to the Secretary’s market orders[,]” and thus denied

review. 467 U.S. 340, 352 (1984) (emphasis added).

In each of these cases, the Court examined statutes where

preclusion of judicial review was deemed to be ambiguous,

“implied,” or “inferred,” rather than express. Sometimes the

implication (or inference) of preclusion was strong enough to

overcome the presumption favoring review. Sometimes it was

not.

Thus, in Nyunt, we were absolutely correct to say that

Leedom jurisdiction “applies . . . only where . . . the statutory

preclusion of review is implied rather than express[.]” 589

F.3d at 449. If the preclusion of review is express, then the

answer is that there is no jurisdiction; but if the preclusion of

review is implied, then the answer to whether a court has

jurisdiction is that “it depends.” MCorp is not to the contrary.

There, the Court noted that the pertinent statutory provision

expressly precluded judicial review of the asserted claim,

which distinguished that statute from the law at issue in

Leedom, which only “implied, by its silence, a preclusion of

review of the contested determination.” MCorp, 502 U.S. at

44. If the distinction between an implied preclusion of review

and an express preclusion of review were completely

irrelevant, as the majority contends, the Court would have had

no need to comment on the difference between the two statutes.

13

But perhaps the best defense of then-Judge Kavanaugh’s

opinion in Nyunt is an opinion from now-Justice Kavanaugh.

Writing for the Court in American Hospital Association v.

Becerra, Justice Kavanaugh considered the government’s

argument that the district court had no jurisdiction to review

the agency determination because “Congress implicitly granted

the agency judicially unreviewable discretion[.]” 596 U.S.

724, 733 (2022); see also id. at 733 (“[T]he detailed statutory

formula for the reimbursement rates undermines HHS’s

suggestion that Congress implicitly granted the agency

judicially unreviewable discretion”) (emphasis added). The

Court rejected the asserted “implicit” preclusion of review,

holding that “[the government’s] arguments against judicial

review cannot override the text of the statute and the traditional

presumption in favor of judicial review of administrative

action.” Id. at 734.

The moral to the story is that implied preclusion of review

is different than express preclusion. Unlike with express

preclusion, implied preclusion sometimes does not override the

presumption in favor of judicial review. That is the point of

Nyunt and that principle has not been “eviscerated.” See

Dellums, 863 F.2d at 978, n.1. To the contrary, that principle

has been confirmed.

***

My colleagues in the majority went too far and said too

much. I agree with the result, but I cannot join their opinion. I

respectfully concur.