Opposition Brief — National Aeronautics & Space Administration v. Federal Labor Relations Authority

— —

Supreme Pourt, U.

wi FIL ED

N. SEP 21 1998

No. 98-369 OFFICE oF . CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1998

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

WASHINGTON, D.C.,

AND NATIONAL AERONAUTICS

AND SPACE ADMINISTRATION,

OFFICE OF THE INSPECTOR GENERAL, PETITIONERS

U.

FEDERAL LABOR RELATIONS AUTHORITY, AND

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MEMORANDUM FOR THE

FEDERAL LABOR RELATIONS AUTHORITY

DavibD M. SMITH*

Solicitor

ANN M. BoEHM

Attorney

Federal Labor Relations Authority

607 14th Street, N.W.

Washington, D.C. 20424-0001

(202) 482-6620

*Counsel of Record

|

TABLE OF CONTENTS

INTRODUCTION

STATEMENT

A. Background - The Federal Service Labor-

Management Relations Statute

B. Proceedings in the Present Case

1. The Authority’s Decision

a. The NASA-OIG Agent Acted as a

“Representative of the Agency” ....

b. NASA-OIG Committed an Unfair

Labor Practice, for which

NASA-HQ Was Equally

Responsible

2. The Court of Appeals’ Decision in the

Instant Case

THE AUTHORITY DOES NOT OPPOSE

THE PETITION

TABLE OF AUTHORITIES

Cases:

Austin Co., 101 NLRB 1257 (1952)

Bureau of Alcohol, Tobacco and Firearms v.

F LRA, 464 U.S. 89 (1983)

II

Cases Continued

Department of Defense, Defense Criminal

Investigative Serv.; Defense Logistics Agency

and Defense Contract Admin. Servs. Region,

New York, 28 FLRA 1145 (1987), enforced sub

nom. Defense Criminal Investigative Serv.,

Dep't of Defense v. FLRA, 855 F.2d 93

GG ² AAA AA. 6

Defense Criminal Investigative Serv.,

Dep't of Defense v. FLRA, 855 F.2d 93

(3d Cir. 1988), enforcing Department of Defense,

Defense Criminal Investigative Serv.; Defense

Logistics Agency and Defense Contract

Admin. Servs. Region, New York,

8 ee 7 Bi ̃ 6, 7, 13, 14

Federal/Postal/Retiree Coalition v. Devine,

751 F.2d 1424 (D.C. Cir. 198500ſũ/ e 3

FLRA v. U.S. Dep't of Justice, Washington, D.C.,

U.S. Dep't of Justice, Immigration and

Naturalization Serv., New York Dist., N. V.,

and Dep't of Justice, Office of the Inspector

General, Washington, D.C., 137 F.3d 683

h ( bases 13, 14

Headquarters, Defense Logistics Agency,

Washington, D.C., 22 FLRA 875 (1986) ....... 9, 10

Hudgens v. NLRB, 424 U.S. 507 (1976) .......... 9

Internal Revenue Serv., Wash., D.C. v. FLRA,

671 F.2d 560 (D.C. Cir. 1982) 0)0)0ĩ⸗ 4

Morton v. Mancari, 417 U.S. 535 (1974) .......... 12

NLRB v. J. Weingarten, Inc.,

, ³ A ain de ere y= 4,5

III

Cases Continued

United States Dep't of Justice v. FLRA,

39 F.3d 361 (D.C. Cir. 1994) ............. 7, 10, 13, 14

United States Nuclear Regulatory Comm’n v.

FLRA, 25 F.3d 229 (4th Cir. 1994) ............. 13

U.S. Dep't of Justice, Washington, D.C. and

U.S. Dep't of Immigration and Naturalization

Serv., Northern Region, Twin Cities, Minnesota

and Office of Prof Responsibility,

Washington, D.C., 46 FLRA 1526 (1993) 10

U.S. Dep't of Veterans Affairs, Washington, D.C.,

i ⅛ ˙ 5 10

U.S. Immigration and Naturalization Serv.,

N.Y. Dist. Office, N.Y., N. V, 46 FLRA 1210

(1993), review denied sub nom. American

Fed n of Gov't Employees v. FLRA, 22 F.3d

r ͤͤ a 4

Statutes and regulations:

Federal Service Labor-Management Relations

Statute, 5 U.S.C. 7101-7135

(1904 & Supp. 11.1906) )):: 2

ET a 7,13

r ̃ ..... eee 3

EEE a 3

r a 3

F ee passim

r ̃ TT 3

D ↄ . 0. 3

IV

Statutes and regulations—Continued

SULA Fee .. ⁊ - awaddctess 14

Inspector General Act of 1978, 5 U.S.C. App. 3

$§ 1-12 (1994 & Supp. II 199))˖/iõ::'̃: f 6

SUG. BADGES eee eee 12

SUBL. Ape. nds 10

BOR BUG ov owes cose ccsedctcdvetedsscesd 14

Miscellaneous:

124 Cong. Rec. 29,184 (1978), reprinted in

Subcommittee on Postal Personnel and

Modernization of the Committee on Post Office

and Civil Service, 96th Cong., 1st Sess.,

Legislative History of the Federal Service

Labor-Management Relations Statute,

Title VII of the Civil Service Reform Act of

0... ... eee 4

In the Supreme Court of the United States

OCTOBER TERM 1998

No. 98-369

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

WASHINGTON, D.C.,

AND NATIONAL AERONAUTICS

AND SPACE ADMINISTRATION,

OFFICE OF THE INSPECTOR GENERAL, PETITIONERS

v.

FEDERAL LABOR RELATIONS AUTHORITY, AND

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MEMORANDUM FOR THE

FEDERAL LABOR RELATIONS AUTHORITY

INTRODUCTION

On August 28, 1998, the National Aeronautics and

Space Administration Headquarters (NASA-HQ) and

Office of the Inspector General (NASA-OIG) (jointly

referred to as “the agency”), petitioned for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit. The opinion

of the court of appeals is reported at 120 F.3d 1208.

(1)

2

(Pet. App. la-20a.)! The decision and order of the

Federal Labor Relations Authority (Authority) is

reported at 50 FLRA 601. (Pet. App. 21a-57a.)

It is the position of the respondent Authority that the

Eleventh Circuit decision is correct and should be

affirmed. However, a division among the circuits exists

over the resolution of the major issue in this case: the

entitlement of an exclusive representative of federal

employees to be present when a bargaining unit

employee is examined by an Office of the Inspector

General (OIG) agent as provided for in 5 U.S.C.

7114(a)(2)(B). This division causes uncertainty for all

participants in federal government labor-management

relations. Moreover, resolution of the issue is of

considerable import because it impacts on this

fundamental representational right that Congress

provided to federal employees in the Federal Service

Labor-Management Relations Statute (Statute), 5

U.S.C. 7101-7135 (1994 & Supp. II 1996). Accordingly,

the Authority does not oppose granting the present

petition.

STATEMENT

A. Background - The Federal Service Labor-

Management Relations Statute

The Statute governs labor-management relations in

the federal service. Under the Statute, the

responsibilities of the Authority include adjudicating

unfair labor practice complaints, negotiability disputes,

bargaining unit and representational election matters,

The court’s denial of the agency's petition for rehearing and sug-

gestion of rehearing en banc is also appended to the petition. (Pet.

App. 75a-76a.)

3

and resolving exceptions to arbitration awards. See 5

U.S.C. 7105(a)(1), (2); see also Bureau of Alcohol,

Tobacco and Firearms v. FLRA, 464 U.S. 89, 93 (1983)

(BATF). The Authority thus ensures compliance with

the statutory rights and obligations of federal

employees, labor organizations that represent such

federal employees, and federal agencies. The Authority

is further empowered to take such actions as are

necessary and appropriate to effectively administer the

Statute’s provisions. See 5 U.S.C. 7105(a)(2)(1); BATF,

464 U.S. at 92-93.

The Authority performs a role analogous to that of

the National Labor Relations Board (NLRB) in the

private sector. See BATF, 464 U.S. at 92-93;

Federal/Postal/Retiree Coalition v. Devine, 751 F.2d

1424, 1430 (D.C. Cir. 1985). Congress intended the

Authority, like the NLRB, “to develop specialized

expertise in its field of labor relations and to use that

expertise to give content to the principles and goals set

forth in the [Statute].” BAT, 464 U.S. at 97.

The Statute makes it an unfair labor practice for a

federal agency employer to, among other things,

“interfere with, restrain, or coerce any employee in the

exercise by the employee of any right under [the

Statute],” or “otherwise fail or refuse to comply with

any provision” of the Statute. 5 U.S.C. 7116(a)(1) and

(8). The instant case involves an unfair labor practice

under section 7116(a)(1) and (8) and concerns the

Authority’s interpretation of the representational right

set forth in section 7114(a)(2)(B) of the Statute.

Section 7114(a)(2)(B) provides that an exclusive

representative “shall be given the opportunity to be

represented at any examination of an employee in the

unit by a representative of the agency in connection

with an investigation” if the employee reasonably

1

believes that discipline may result from the examination

and the employee requests representation. 5 U.S.C.

7114(a)(2)(B). This statutory provision extends to

federal employees the right to union representation

provided in the private sector by the NLRB through its

interpretation of the National Labor Relations Act

(NLRA) and the Supreme Court’s decision in NLRB v.

J. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten).

See 124 Cong. Rec. 29,184 (1978), reprinted in

Subcommittee on Postal Personnel and Modernization

of the Committee on Post Office and Civil Service, 96th

Cong., 1st Sess., Legislative History of the Federal

Service Labor-Management Relations Statute, Title VII

of the Civil Service Reform Act of 1978, at 926 (1979)

(Legis. Hist.) (Congressman Udall explained that the

House bill provisions which led to the enactment of

section 7114(a)(2)(B) were intended to reflect the

Supreme Court’s decision in Weingarten); Internal

Revenue Serv., Wash., D.C. v. FLRA, 671 F.2d 560, 563

(D.C. Cir. 1982) (same).

Although representational rights under section

7114(a)(2)(B) and Weingarten were intended to be

similar, Congress also recognized that the right to

representation might evolve differently in the private

and federal sectors, and that NLRB decisions would not

necessarily be controlling in the federal sector. See

Legis. Hist. at 824; U.S. Immigration and

Naturalization Serv., N.Y. Dist. Office, N. V., N.Y., 46

FLRA 1210, 1218 (1993), review denied sub nom.

American Fed’n of Gov't Employees v. FLRA, 22 F.3d

1184 (D.C, Cir. 1994). Moreover, in the federal sector

the Weingarten representation right is expressly

codified in the Statute, whereas the same right in the

private sector inheres in the employee’s guarantee to

5

5 id and protection. See

act in concert for mutual aid anesentation right set

Weingarten, 420 U.S. at 256, 260. Authority has

In interpreting the statutory represen@&"t to be a

forth in section 7114(a)(2)(B), the Aut 40a.) As

established that it considers an OIG agen seeks

“representative of the agency.” (Pet. App. 37a, 40, O16

such, when a bargaining unit employee properly gcted

and is denied union representation in an OI?

investigation, the employee’s and the union’s protected

rights under section 7114(a)(2)(B) are violated and an

unfair labor practice has occurred. See id. at 48a.

B. Proceedings in the Present Case

1. The Authority's Decision

In this unfair labor practice decision and order, the

Authority held that the NASA-OIG investigator was a

“representative of the agency” within the meaning of

section 7114(a)(2)(B) of the Statute. Jd. at 40a.

Therefore, the actions of the NASA-OIG agent during

the course of an investigation and examination of a

bargaining unit employee violated the employee’s and

the union’s protected rights under section 7114(a)(2)(B)

of the Statute.* Id. at 48a. The Authority then found

that both NASA-HQ and NASA-OIG were responsible

for NASA-OIG’s violation of the Statute. Id. at 48a-

49a. Accordingly, the Authority issued an appropriate

remedial order. Id. at 52a- ga.

*The NASA-OIG agent allowed the union representative to be

present during the investigation of the bargaining unit employee,

but the Authority concluded that because of restrictions placed on

the union representative's participation, the conduct of the investi-

gatory interview violated section 7114(a)(2)(B). Jd. at 46a. In the

court below, this finding was not contested by the agency. Id. at 6a

n. 4.

6

a. The NASA-OIG Agent Acted as a

“Representative of the Agency”

The Authority based its finding that the NASA-OIG

agent was acting as a “representative of the agency,”

NASA-HQ, on three fundamental conclusions:

(1) the term “representative of the agency” under

section 7114(a)(2)(B) should not be so narrowly

construed as to exclude management personnel

employed in other subcomponents of the agency; (2)

the statutory independence of agency OIGs is not

determinative of whether the investigatory

interviews implicate section 7114(a)(2)(B) rights;

and (3) section 7114(a)(2)(B) and the [Inspector

General] Act® are not irreconcilable.

Id. at 40a-41a. The Authority reached these conclusions

after review of the relevant case law, and the statutory

language and legislative history of both the Statute and

the Inspector General Act.

In reviewing the relevant case law, the Authority first

noted its holding in Department of Defense, Defense

Criminal Investigative Service; Defense Logistics

Agency and Defense Contract Administration Services

Region, New York, 28 FLRA 1145 (1987) (DOD, DCIS),

enforced sub nom. Defense Criminal Investigative

Service, Department of Defense v. FLRA, 855 F.2d 93

(3d Cir. 1988) (DCIS), and explained that it has long held

that an OIG investigator is considered to be a

“representative of the agency” within the meaning of

section 7114(a)(2)(B). (Pet. App. 37a.) It further

explained that although the Third Circuit affirmed this

conclusion in DCIS, the D.C. Circuit rejected the

The statutory scheme governing OIGs is set forth in the Inspec-

tor General Act of 1978, 5 U.S.C. App. 3 §§ 1-12 (1994 & Supp. II

1996) (Inspector General Act).

7

Authority’s interpretation of section 7114(a)(2)(B) as it

pertained to an OIG representative in United States

Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir.

1994) (DOJ). (Pet. App. 37a.)

The Authority carefully reviewed the facts and

findings of both DCIS and DOJ, to include both courts’

analyses of the statutory language of section

7114(a)(2)(B) as well as the language and legislative

history of the Inspector General Act. (Pet. App. 37a-

40a.) After its review of the two cases, the Authority

reaffirmed its holding in DOD, DCIS and agreed with

the Third Circuit’s DCIS reasoning by concluding that

the NASA-OIG investigator was acting as a

“representative of the agency” under section

7114(a)(2)(B). (Pet. App. 40a-41a.)

In analyzing the instant case, the Authority first

considered which management personnel are obligated

to recognize the section 7114(a)(2)(B) representational

right, and concluded, consistent with DCIS, that the

statutory right is not “dependent upon the

organizational entity within the agency to whom the

person conducting the examination reports.” Id. at 41a.

In other words, the term “representative of the agency”

should not be so narrowly construed as to exclude

management personnel employed in different

components of the agency, such as the OIG.* Id. at 41a-

42a. As it cautioned, Hilf such were the case, agencies

could abridge bargaining unit rights and evade

statutory responsibilities under section 7114(a)(2)(B),

and thus thwart the intent of Congress, by utilizing

personnel from other subcomponents (such as the OIG)

The Authority observed that it is “clear and unchallenged that

NASA is an ‘agency’ under 5 U.S.C. § 7103(a)(3).” Id. at 42a.

8

to conduct investigative interviews of bargaining unit

employees.” Id. at 41a n.22.

Next, the Authority analyzed the statutory

independence of the OIG, pursuant to the inspector

General Act, and concluded that this independence does

not necessarily exempt OIG investigatory examinations

from the provisions of section 7114(a)(2)(B). Id. at 42a.

Although the Authority explicitly recognized this

statutory independence, it determined that the

independence is not absolute—especially when the OIG

conducts an interview of an employee and reports the

findings to the agency for possible disciplinary action, as

in the instant case. Id.

The Authority then considered the statutory

provisions and legislative histories of section

7114(a)(2)(B) and the Inspector General Act and

concluded that the two are not incompatible. Id. at 43a.

First, the statutory language of the two provisions

revealed no inconsistencies. Id. at 44a. Second, despite

the recognized congressional intent that the inspector

general be independent from the agency, the Authority

found that the purpose of this independence is to

insulate the inspector general from agency management

pressure—not from compliance with federal labor

relations requirements. Jd. at 45a. Third, based upon

the limited representational function of a union

representative under section 7114(a)’2)(B), and the

benefits to the investigatory process that may result

from union involvement, the Authority determined that

compliance with section 7114(a)(2)(B) would not place

any undue restraint on the conduct of OIG investigative

interviews. Id. at 46a-47a.

Finally, the Authority noted that even if the two

statutes conflicted, it found no congressional intent

suggesting that either the Statute or the Inspector

9

General Act is preemptive of the other. Jd. at 47a.

Thus, the Authority concluded that the Inspector

General Act should not trump the Statute. Jd. at 48a.

b. NASA-OIG Committed an Unfair Labor

Practice, for which NASA-HQ Was Equally

Responsible

In the final analysis, the Authority held that NASA-

OIG failed to comply with section 7114(a)(2)(B) and

therefore violated the Statute. Jd. This finding

comports with the Authority’s decision in Headquarters,

Defense Logistics Agency, Washington, D.C., 22 FLRA

875, 884 (1986) (DLA), in which the Authority found that

a component of the agency violates the Statute if it

engages in behavior that infringes upon the protected

rights of employees of another component of the

agency. (Pet. App. 48a.) In other words, because the

conduct of the NASA-OIG agent, as a “representative of

the agency,” interfered with the rights of employees in

another component of the agency, NASA-OIG violated

the Statute. Id.

The Authority disagreed, however, with the ALJ’s

decision to dismiss the complaint against NASA-HQ.

Id. at 49a. In reviewing the record evidence, the

Authority found that NASA-OIG, in its investigative

role, represents the interests of NASA-HQ and other

NASA-HQ subcomponents. Id. at 50a. NASA-OIG

shares investigative information with NASA-HQ and

NASA-HQ subcomponents, and such information is

5As the Authority explained, It his concept has its genesis in the

private sector.” (Pet. App. 48a n.26.) Even a non-employer has

been sanctioned for violating the rights of bargaining unit employ-

ees. See Hudgens v. NLRB, 424 U.S. 507, 510 n.3 (1976); Austin Co.,

101 NLRB 1257, 1258-59 (1952). (Pet. App. 48a-49a n.26.)

10

used as a basis for disciplinary action. Id. In addition,

NASA-OIG reports to and is under the supervision of

the Administrator of NASA-HQ. Id. (citing 5 U.S.C.

App. 3 § 30%. Based upon these factors, and the

Authority precedent applying the DLA rationale to the

actions of the parent agency and a subcomponent, see

U.S. Dep’t of Veterans Affairs, Washington, D.C., 48

FLRA 991, 1000-01 (1993), the Authority found NASA-

HQ responsible for a statutory violation based upon its

failure to ensure that NASA-OIG comply with the

Statute. (Pet. App. 50a.)®

2. The Court of Appeals’ Decision in the

Instant Case

The Eleventh Circuit enforced the Authority’s unfair

labor practice decision and order and denied the

agency’s petition for review. (Pet. App. 20a). The court

agreed with essentially every aspect of the Authority’s

decision.

Deferring to the Authority’s interpretation of the

Statute, the court found no error in the Authority’s

determination that an OIG agent is a “representative of

the agency” under section 7114(a)(2)(B). Id. at 9a.

The Authority recognized (Pet. App. 51a.) that in finding the

parent agency liable, it was deviating from its holding in the deci-

sion underlying the D.C. Cireuit’s DOJ decision, U.S. Department of

Justice, Washington, D.C. and U.S. Department of Immigration

and Naturalization Service, Northern Region, Twin Cities, Min-

nesota and Office of Professional Responsibility, Washington, D.C.,

46 FLRA 1526, 1571 (1993). Based upon its analysis in the instant

case, however, the Authority concluded that holding NASA-HQ, as

well as NASA-OIG, responsible for the unfair labor practice com-

mitted by NASA-OIG would effectuate the purposes of the Statute

because it is appropriate for agency headquarters to advise OIG

personnel of their responsibilities under the Statute. Id. at 50a-5la.

11

NASA-OIG had argued to the court that the rights and

duties set forth in section 7114(a)(2)(B) derive from the

collective bargaining relationship, of which the OIG is

not a part. Jd. at 8a-9a. However, the Eleventh Circuit,

like the Authority and the Third Circuit, rejected this

argument. Id. at ga-I Ia.

The court found that reading such a requirement into

section 7114(a)(2)(B) “would undermine Congress’s

purpose in enacting this section.” Id. at 10a. Noting

that section 7114(a)(2)(B) “focuses on the risk of adverse

employment action to the employee,” the court

concluded that “[bJecause the risk does not disappear or

diminish significantly when an investigator is employed

in an agency component that has no collective

bargaining relations with the employee’s union, we see

no reason why the protection afforded by Congress

should be eliminated in such situations.” Jd. Because

the Authority had determined that NASA-OIG

performs an investigatory role on behalf of NASA-HQ

and its components, the court concluded that the

NASA-OIG investigator was a “representative of the

agency.” Id. at Ila.

With regard to the Authority’s interpretation of the

Inspector General Act, the court did not defer to the

Authority, id. at 5a, but nevertheless agreed with the

Authority’s conclusions and its reasoning, id. at 12a-15a.

The court found nothing in the text or legislative history

of the Inspector General Act “to justify exempting OIG

investigators from compliance with the federal

Weingarten provision.“ Id. at 12a.

In considering the congressional intent that OIGs be

independent from the agencies they investigate, the

court found that “the presence of a union representative

at OIG interviews, as mandated by federal statute,” is

not the “type of interference from which Congress

12

sought to insulate OIG investigators.” Id. at 14a. The

court explained that it did not foresee a union

representative hindering an OIG agent’s investigative

process. Id. It thus concluded that compliance with

section 7114(a)(2)(B) is not “sufficiently inconsistent

with the [Inspector General] Act to justify an implied

exemption for OIG investigators.” Jd. at 15a. Without

such a conflict, the court could not justify ruling that the

Inspector General Act “impliedly” repealed section

7114(a)(2)(B). Id. (citing Morton v. Mancari, 417 U.S.

535, 551 (1974)). Therefore, the court concluded that

NASA-OIG committed an unfair labor practice because

the NASA-OIG agent was a “representative of the

agency” within the meaning of section 7114(a)(2)(B) and

the agent’s conduct was in violation of the Statute. Jd.

After finding that NASA-OIG violated the Statute,

the court then agreed with the Authority’s

determination that NASA-HQ, as parent agency for

NASA-OIG, was also responsible for the section

7114(a)(2)(B) violetion. Jd. at 19a. The court

acknowledged the Authority’s holdings finding a parent

agency responsible for a statutory violation by a

subcomponent of the agency. Id. at 18a.

The court analyzed the Authority’s finding that,

because NASA-HQ “failed to ensure that NASA-OIG

complied with § 7114(a)(2)(B),” it was guilty of an unfair

labor practice. Jd. Although the court recognized

NASA-OIG’s role as an “‘independent and objective’

unit” of NASA-HQ, pursuant to 5 U.S.C. App. 3 § 2, it

also recognized that NASA-OIG “is subject to the

general supervision of the agency head.” Id. at 19a.

Moreover, the court highlighted the fact that the

NASA-OIG agent “ordered the employee to answer

questions or face dismissal,” and this suggested that the

NASA-OIG agent was acting on behalf of NASA-HQ.

13

Id. at 19a. The court therefore found no error in the

Authority’s determination. Id.

THE AUTHORITY DOES NOT OPPOSE

THE PETITION

The Authority maintains that the decision of the court

below is correct and effectively rebuts the arguments

raised in the Petition for a Writ of Certiorari. (Pet. 10-

25.) The Authority recognizes, however, that the four

courts of appeals that have considered the issue of

whether an OIG agent is a “representative of the

agency” within the meaning of section 7114(a)(2)(B)?

have reached three different results.“ Although the

Authority disagrees with the agency’s arguments

regarding the decision below, it agrees that further

review by this Court is warranted.

In addition to the four courts that have directly considered this

issue, the agency references the Fourth Circuit’s decision in United

States Nuclear Regulatory Commission v. FLRA, 25 F.3d 229 (4th

Cir. 1994) (NRC), in support of its arguments in favor of Court

review of the issue regarding liability of NASA-HQ. NRC, which

was decided after DCIS but before DOJ, arose in the context of a

negotiability dispute, and not an unfair labor practice like the four

other cases. Further, the Fourth Circuit neither criticized nor

viewed its decision as inconsistent with DCIS. See NRC, 25 F.3d at

235. See also Pet. App. 13a n.8.

It should be noted that with regard to one aspect of this issue

what constitutes an “agency” within the meaning of 5 U.S.C.

7103(a\(3)—three of the four courts have concluded that this refers

to the parent agency. See FLRA v. U.S. Dep't of Justice, Washing-

ton, D.C., U.S. Dep't of Justice, Immigration and Naturalization

Serv., New York Dist., N.Y., and Dep't of Justice, Office of the

Inspector General, Washington, D.C., 137 F.3d 683, 688 (2d Cir.

1998) (DOJ, INS); Pet. App. 9a; DCIS, 855 F.2d at 98. Cf. DOJ, 39

F.3d at 365 (01G qualifies as an ency”).

14

There are currently three distinct standards among

the circuits regarding whether an OIG investigator is a

“representative of the agency.” The court below (Pet.

App. 9a) and the Third Circuit, in DCIS, 855 F.2d at 100,

both affirmed the Authority’s conclusion that an OIG

agent is a “representative of the agency.” In contrast,

the D.C. Circuit in its DOJ decision rejected the

Authority’s holding and concluded that an OIG agent is

not a “representative of the agency.” 39 F.3d at 368.

Finally, the Second Circuit’s determination on this issue

falls somewhere between DOJ and the positions of the

Third and Eleventh Circuits. See DOJ, INS, 137 F.3d at

690-91. According te the Second Circuit, an OIG agent

is not a representative of the agency when the context

of the OIG interrogation involves matters within the

scope of the Inspector General Act. Id. at 686, 690.9

This confusion among the circuits creates uncertainty

for employees, unions, and agencies regarding the

application of this essential, statutory representation

The DOJ, INS case is procedurally unique, and, in the Author-

ity’s view, was erroneously decided as a result. The Authority

never considered the case underlying the Second Circuit's decision

because the agency did not file exceptions to the Administrative

Law Judge's (ALJ) decision and order. Pursuant to the Authority's

regulations, see 5 C.F.R. 2423.29, if no party excepts to an ALJ's

decision, the ALJ's decision anc order is adopted, without preceden-

tial significance, as the Authority’s final decision and order. Because

the agency did not comply with the order, the Authority sought

summary enforcement in the Second Circuit.

As the Authority argued to the Second Circuit, pursuant to the

administrative exhaustion requirements of section 7123(c) of the

Statute, the court did not have jurisdiction to consider the merits of

the case because no exceptions were filed with the Authority. The

court, however, found that it had jurisdiction based upon the “extra-

ordinary circumstances” exception to section 7123(c). 137 F.3d at

687-88. The Authority has received an extension of time to file a

petition for a writ of certiorari in DOJ, INS.

15

right. As a result, employees and unions involved in

OIG investigations are being wrongfully denied this

congressionally created representation right, because,

as even the agency observed, “the circuit conflict

creates uncertainty for OIGs as to which rules apply to

which interviews and investigations.” (Pet. 23.) The

agency’s list of pending unfair labor practice cases

brought by federal employee unions substantiates this

supposition. /d. at 22.

Only this Court can authoritatively rectify the circuit

split by ruling on this issue. The importance of this

issue to federal employees and federal sector labor-

management relations militates for granting the petition

in this case.

Finally, although there is no current circuit conflict

regarding the issue as to whether the parent agency is

liable for the unfair labor practice committed by the

OIG, the Authority interposes no objection to the

Court’s consideration of this issue. The liability of the

parent agency will continue to arise as an issue if this

Court determines that an OIG agent is a

“representative of the agency” within the meaning of

section 7114(a)(2)(B). Therefore, resolution of the

parent agency liability issue will eliminate future

litigation in that regard.

Accordingly, the Authority does not oppose granting

the present petition.

16

Respectfully submitted.!”

DAVID M. SMITH*

Solicitor

ANN M. BOEHM

Attorney

* Counsel of Record

SEPTEMBER 1998

The Solicitor General authorized the filing of this memorandum

and directed the Authority to include the following statement:

I authorize the filing of this memorandum. Seth P. Waxman,

Solicitor General.