# Opposition Brief — Warren v. Local 1759, American Federation of Government Employees

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 1006

## Text

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JOSEPH F. SPANIOL, JF
Supreme Court of the United St

OCTOBER TERM, 1985

No. 85-579

IN THE

WALTER WARREN,

Petitioner,

Vv.

LOCAL 1759, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,

Respondent.

On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Eleventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI

STUART A. KIRSCH
STAFF COUNSEL

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
AFL-CIO (FIFTH DistTRICT)

510 Plaza Drive, Suite 2510

College Park, Georgia 30349

MARK D. ROTH
Counsel of Record
GENERAL COUNSEL
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO
1325 Massachusetts Ave.,
Washington, D.C. 20005
(202) 737-8700
Attorneys for Respondent

Ee

CRAFTSMEN GRAPHICS, INC.—374 MAYNARD TER. SE SUITE 228, ATLANTA, GA. 30316—(404) 371-8359 }

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(i)
QUESTION PRESENTED

Whether a federal employee can invoke the jurisdic-
tion of the Federal courts to adjudicate a duty of fair
representation action against the employee’s exclusive bar-
gaining representative.

(iii)

TABLE OF CONTENTS

Page

Oe ee a ee eee ee eee i

EEA EE Sa Sn a ine l

Ne PERIOD: vc wcdswensccccnncccnces 3

Argument for Denying the Petition for Certiorari 5
I. The Civil Service Reform Act Scheme,

Legislative History and Major
Distinctions with Private Sector Law
Demonstrate Clearly that Congress
Intended No Independent Federal
Court Jurisdiction Over Duty of Fair
Representation Actions by Federal
Employees Against Their Exclusive
ER reer 5

II. There is No Pertinent or Valid
Consideration Dictating Review of this
Question on Certiorari. ........... 13

Comets 6 ATS Fe CVC aE ER Web's Cech ek ces 16

(iv)
TABLE OF AUTHORITIES

Cases: Page

Amalgamated Association of Street, Electrical,
Railway and Motor Coach Employees of

America v. Lockridge, 403 U.S. 274 (1971).. 7
Butler v. AFGE, slip op. Civil Action No.

C-81-482 (N.D. Ohio 1982) ............... 13
Carter v. Kurzejeski, 706 F.2d 835 (8th Cir. 1983) 6
Clark v. Mark, slip op. No. 79-CV 777(N.D. N.Y.

CO ess oh ocak kcal cd Es sketdeee ss 6
Columbia Power Trades Council v. U.S. Dept. of

Energy, 671 F.2d 325 (9th Cir. 1982) ....... 6,7,9,11
DelCostello v. International Brotherhood of

ro a Bai | ae 7,10
Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) 10
Holly v. Local 1534, AFGE, Civ. Action No.

$C4536-82 (D.C. Super. Ct. 1983) ......... 13
In re Carter, 618 F.2d 1083 (Sth Cir. 1980) ... 8
Karaholios v. Defense Language Institute, 543 F.

Supp. 1201 (N.D. Cal. SPMD Ae wesde accuses 13,14
Local 926, Int? Union of Operating Engineers v.

Jones, 460 U.S. 669 (1983)................ 12
Martel v. Carrol, 562 F. Supp. 675 (N.D. Cal.

PE sch ansnccabas\dcseweneskechsuss 64 6
Miranda Fuel Co., 140 NLRB 181 (1962)..... 10

NFFE Local 1263 v. Commandant, Defense Lan-
guage Institute, 493 F. Supp. 675 (N.D. Cal.

SE ba ec ESA RRGN CREA Se Lv KECN ROMER K Aue 6,9
San Diego Building Trades Council v. Garmon,
po Be, A Treen a 12

Sears Roebuck and Co. v. Carpenters, 436 U.S.
ROE 5 ck 1500 Sovwdces eee Wax beecsas 12

(v)

TABLE OF AUTHORITIES—Continued

Cases-Continued
Steele v. Louisville and Nashville RR, 323 U.S.

EL ERR A ret yer eee eee 10
Vaca v. Sipes, 386 U.S. 171 (1967) ........... 7,10,12
Wilson v. United States, Appeal No. 84-5735, slip

Om, CONE CAR Fees ~ keene ceacacsavccccensd 13
Yates v. U.S. Soldiers’ and Airmens’ Home, 553

F Sep. 46) CEATAG, TRS) aa kncveksancas 7,9

Statutes and Court Rules:

Federal Service Labor Management Relations Statute
(Title) VII of Civil Service Reform Act)

S UG Pee Oh Gia sine fice doe cee Levan 3,6,11
De hh hea hae As EWR nde ed wee we 3
DR I Sv bie Hadin's Fs eRe deed dR eS bee 3,8,11
D Mee eS Aaa ke £0 dake Soc bck Ween oe 3,11
FREE Nosh be klbernesN caved Sanwa 3,11
Se TE Nu ahaa pepe deedeeheussaaues 6

Judiciary and Judicial Procedure
PR EO Ros SE No PP err re eee eee 8

Labor Management Relations Act
29 U.S.C. § 185, (Sec. 301 of LMRA) ....4,5,7,8,9,11,12

National Labor Relations Act see e eee eeseeeeeeees 4,11
Supreme Court Rule
eal a kG bi wie aimee ys dee aided 13,14
Treatises:

Moore’s Federal Practice 44 817.21 (2d ed. 1985)

No. 85-579

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1985

WALTER WARREN,

Petitioner,

v.

LocaAL 1759, AMERICAN FEDERATION
Or GOVERNMENT EMPLOYEES,

Respondet.

On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Eleventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

Respondent AFGE Local 1759 supplements the Petitioner's
Statement of the Case as follows to the extent necessary to
correct inaccuracies or omissions in that statement.

AFGE Local 1759 declined to take Mr. Warren's first five
day suspension to arbitration after a thorough consideration
of the matter. The FLRA Regional Director refused to issue
an unfair labor practice complaint after conducting an
investigation of this matter, including procuring sworn
statements from all individuals with relevant information
about the charge. By letter dated August 4, 1983 the Regional
Director found that the evidence clearly shows that “the
Union’s Executive Board met on June 6, 1983, discussed your

2

{Mr. Warren's] grievamce and voted unanimously not to
invoke arbitration on the basis that the grievance lacked merit.
Thereafter, on or about June 12, 1983, Wood [Local 1759
President at that time] informed you of the Executive Board's
decision.” The Regional Director concluded that the charged
party’s refusal to proceed to arbitration was not based on a
lack of membership status, and there was no evidence that the
Union’s actions were discriminatory, arbitrary, in bad faith or
based on any unlawful considerations. Mr. Warren filed an
appeal of that refusal to issue an unfair labor practice
complaint to the FLRA General Counsel, who acknowledged
receipt of this appeal by letter dated October 28, 1983, and
noted an absence of the required notice to the charged party,
Local 1759.

What Petitioner's recitation of the Statement of the Case
fails to elucidate is that Mr. Warren’s institution of a lawsuit
in the U.S. District Court on September 30, 1983 occurred
during the pendency of the appeai of the first unfair labor
practice charge to the FLRA General Counsel and during
the pendency of the investigation of the second unfair labor
practice charge by the Regional Director.

By letter dated January 26, 1984 the General Counsel of
the FLRA denied Mr Warren’s appeal on the first unfair
labor practice charge. The General Counsel indicated, inter
alia, that:

the evidence shows that the Charged Party’s President,
who met with you several times and discussed your
grievance in some detail, thoroughly explained it to the
members of the executive committee. Moreover, it was
concluded, :n agreement with the Regional Director,
that the evidence adduced by the investigation fails to
show that the Charged Party chose not to proceed to
arbitration with your grievance because you are not a
member of Local 1759 or because of any other
unlawful consideration.

3

With respect to the second unfair labor practice charge by
Mr. Warren regarding Local 1759's refusal to take a second
10 day suspension for further alleged misconduct to
arbitration, the Regional Director again, after a thorough
investigation of the matter, refused to issue a complaint. By
letter dated October 31 ,1983, the Regional Director again
found no evidence that the refusal to proceed to arbitration
with Mr. Warren’s grievance was because of lack of
membership status, or the filing of the previous unfair labor
practice charge. Similarly, the General Counsel of the
FLRA, by letter dated January 30, 1984 confirmed the
Regional Director’s finding of no evidence of any arbitrary,
discriminatory or bad faith conduct in refusing to take the 10
day grievance to arbitration. Mr. Warren’s charges were thus
fully considered by the FLRA in both instances.

The decisions of the U.S. District Court for the Northern
District of Georgia and the Eleventh Circuit Court of
Appeals are set forth in the Appendix attached to Mr.
Warren's Petition for a Writ of Certiorari.

SUMMARY OF ARGUMENT

The statutory scheme of Title VII of the Civil Service
Reform Act (CSRA) provides for employee redress of a
breach of the duty of fair representation by his/her exclusive
representative in the nature of back pay and other appropriate
relief, by virtue of the unfair labor practice mechanism. 5
U.S.C. Section 7101. et seq. That statute sets forth in explicit
terms the duty of fair representation owed by labor
organizations to bargaining unit members, 5 U.S.C. Section
7114(a) (1), and the procedures for Federal Labor Relations
Authority (FLRA) investigation, prosecution, and
mandatory relief where unfair labor practices are alleged and
demonstrated, 5 U.S.C. Sections 7105, 7116, 7118. The
unambiguous language of Title VII of the CSRA provides for

4

federal jurisdiction in only three circumstances, permiting an
individual employee, union or employer to seek judicial relief
only to the federal circuit courts of appeals on prescribed final
orders of the FLRA.

The case precedent, in virtual uniformity, has determined
that Congress has vested the FLRA with exclusive jurisdiction
in administering the federal !abor management relations pro-
gram, and that it is manifestly the expressed desire of Con-
gress to create an exclusive statutory scheme, depriving the
district courts of jurisdiction. On the exact issue of duty of fair
representation suits brought by Federal employees, every
court considering the matter, with the sole exception of a
District Court in California, has specifically found that it
lacked subject matter jurisdiction. As recognized by the
Circuit Court below, that California district court’s finding of
general federal question jurisdiction was based on two faulty
premises: the assumed lack of an explicit duty of fair
representation provision in the CSRA (as in the case of its
Nationa! Labor Relations Act [hereinafter NLRA]
counterpart) and the perceived inability of the FLRA to
provide individual relief to an employee aggrieved by a breach
of the duty of fair representation.

Furthermore, Petitioner fails to recognize the hybrid nature
of a duty of fair representation/ breach of contract action. Mr.
Warren’s complaint in the District Court alleged a breach of
the union’s duty of fair representation in its administration of
ihe collective bargaining agreement, which grievance and
arbitration procedure is the sole avenue for challenging the
underlying employer imposition of suspensions. Duty of fair
representation decisions concerning similar issues in the
private sector, i.e. refusal to proceed to arbitration for
allegedly improper reasons, have relied on Section 301 of the
LMRA, 29 U.S.C. Section 185, as the jurisdictional predicate,
recognizing also that Section 301 represents a Congressionally
created exception to the preemption doctrine. However,

5

Section 301 does not confer juristiction in this case because
Section 301 is inapplicable when the federal government is
sued. Congress did not enact in the FLRA a provision
analgous to Section 301 of the LMRA, and indeed deleted a
provision that would have provided a private cause of action.
Congress recognized the special requirements and needs of the
federal government, and entrusted broad powers to the FLRA
to remedy breaches of the duty of fair representation.

Moreover, this case is not an appropriate one for the court’s
exercise of its discretionary writ of certiorari. There is
unanimity among the two federal circuits and various other
courts which have considered this identical issue, and the one
lone dissenting opinion by the aforementioned District Court
in California. The absence of a conflict between the federal
circuits or any constitutional disputes, warrants the denial of
the petition for certiorari.

ARGUMENT FOR DENYING THE
PETITION FOR CERTIORARI

I. The Civil Service Reform Act Scheme, Legislative His-
tory and Major Distinctions with Private Sector Law
Demonstrate Clearly that Congress Intended No
Independent Federal Court Jurisdiction Over Duty of
Fair Representation Actions by Federal Employees
Against Their Exclusive Representatives.

Petitioner, as the Circuit Court below analyzed, refuses to
recognize or acknowledge the significant differences in the
substance and legislative history of the Civil Service Reform
Act (CSRA) and its private sector counterpart. Indeed,
Petitioner has continually failed to address the genesis of the

duty of fair representation suit in the private sector as
compared to its treatment in the federal statute. The simplistic,
though oft-repeated statement in Mr. Warren’s Petition, that

- —

6

Congress did not expressly limit the federal courts’ subject
matter jurisdiction over federal employees’ fair representation
law suits ignores the statutory framework, legislative history
and case law developed under the CSRA.

In Title VII of the CSRA, 5 U.S.C. § 7101 et seg, Congress
gave the Federal Labor Relations Authority (FLRA) the
power and duties to take necessary and appropriate actions to
effectively administer the provisions of the CSRA. As the
Circuit Court below recognized, Congress explicitly
ernpowered the federal courts to act in only three instances.
First, it makes judicial review of final orders of the FLRA
available only in the appropriate federal circuit court of
appeals. 5 U.S.C. § 7123(a). Second, it provides that the
FLRA may petition a circuit court of appeals for enforcement
of its orders and for appropriate temporary relief or
restraining order. 5 U.S.C. § 7123(b). Third, pursuant to 5
U.S.C. § 7123(d), the FLRA, upon issuing an unfair labor
practice complaint, may petition a federal district court for
temporary injunctive relief. As the courts below recognized,
reading the CSRA as a whole, demonstrates that Congress
intended for the statutory pre~dure before the FLRA to be
deemed exclusive.

The exclusivity of the statutory administrative labor man-
agement scheme in the federal sector has been consistently and
uniformly recognized by the courts to foreclose federal court
jurisdiction. NFFE, Local 1263 v. Commandant, Defense
Language Institute, 493 F.Supp. 675 (N.D. Cal. 1980); Carter
v. Kurzejeski, 706 F.2d 835 (8th Cir. 1983); Martel v. Carroll,
562 F.Supp. 443 (D. Mass, 1983). In Clark v. Mark, No. 79-
CV—777, slip op. (N.D.N.Y., 1980) the court stated that the
“FLRS’ (Federal labor relations statute) legislative history
demonstrates, that the FLRA was intended by Congress to
possess and exercise exclusive jurisdiction over cases involving
complaints which allege violations of the FLRS.” In
Columbia Power Trades Council v. U.S. Dept. of Energy, 671

7

F.2d 325 (9th Cir. 1982) the court held that it had no
jurisdiction over a suit by a federal employee's union seeking
mandamus of an agency administator to implement an
arbitrator’s award. Finding the FLRA was vested with
exclusive jurisdiction, the Court stated that “at no point does
the Act entitle a party to petition a district court for relief.” 671
F.2d 327. Accord: Yates v. U.S. Soldiers’and Airmens’ Home,
553 F. Supp. 461, (D.D.C. 1982)

Most significantly, the Petitioner chooses to completely
ignore the core of the opinion of the District and Circuit
Courts below, that despite Congress’ patterning the FLRA in
many respects after the National Labor Relations Board
(NLRB), Congress did not enact a provision in the CSRA that
parallels Section 301 of the Labor Managment Relations Act
(LMRA) (29 U.S.C. 185 (a)). Section 301 of the LMRA pro-
vides in pertinent part:

Suits for violations of contracts between an employer
and a labor organization representing employees inan
industry affecting commerce...or between any such
labor organizations, may be brought in any district
court of the United States having jurisdiction of the
parties.

Thus as the Circuit Court noted, Section 301 confers
jurisdiction of the district court over suits based upon
collective bargaining agreements in the private sector. The
exception to the preemption doctrine created in Vaca v.
Sipes, 386 U.S. 171 (1967) for duty of fair representation
Suits in the private sector was based on the fact that
Congress expressly provided suits for breach of the
collective bargaining agreement in Section 301 of the
LMRA. Accord: Amalgamated Association of Street
Electrical, Railway and Motor Coach Employees of
America v. Lockridge, 403 U.S. 274 (1971); DelCostello v.
Iniernational Brotherhood of Teamsters, 462 U.S.1 (1983).

8

As the Circuit Court below further recognized, there is an
underlying allegation by Mr. Warren that the breach of the
duty of fair representation involved a breach of the collective
bargaining agreement by the Employer in imposing the
suspensions. In addition, as the Court sets forth (Appendix
9a), Mr. Warren in his complaint stated that “Local 1759 has
entered into a collective bargaining agreement with the
plaintiff's employer as a result of its exclusive representation of
the bargaining unit” and “Local 1759 owes plaintiff a statutory
duty to fairly represent plaintiff in all aspects of the
administration of the collective bargaining agreement,
pursuant to Sec. 7114a) (1).” The Circuit Court notes
correctly that “if appellant’s [Mr. Warren’s] action had been in
the private sector, Sec. 301 would have been the jurisdictional
basis because the action involved both the duty of fair
representation and breach of collective bargaining agreement
claims.” As the Fifth Circuit set forth in Jn re Carter, 618 F.2d
1093, 1103 (Sth Cir. 1980) “[i]t is only when the allegations in
the complaint assert a breach of the duty of fair representation
without a corresponding breach of the collective contract, that
Federal question jurisdiction is not grounded on Section
301."1 /

Section 301 of the LMRA governing private sector labor
relations is clearly inapplicable to suits involving the federal
sector. 29 U.S.C. § 152.

The CSRA, governing federal sector labor relations,
contains no provisions analogous to Section 301 of the
LMRA. Not only is there no provision in the CSRA

1/ It is only then that the courts in private sector cases have turned
to 28 U.S.C. i337 regarding actions arising under an Act of
Congress regulating commerce. The Petitioner has never asserted
jurisdiction under 28 U.S.C. 1337 as it is patent that the CSRA is
not an act affecting interstate commerce.

9

analogous to Section 301, but Congress in enacting the CSRA
did in fact consider and rejeci a proposed provision similar to
section 301. As the Circuit Court below set forth, the court in
Yates v. U.S. Soldiers’ and Airmens’ Home, supra, analyzed
the legislative history of the CSRA and discussed the
significance of no Section analogue:

The failure of Congress to provide a clear
jurisdictional grant to district courts over disputes
involving public sector labor agreements is
particularly telling when compared with the approach
taken by Congress in the private sector...The Civil
Service Reform Act contains no provision analogous
to § 301. Not only is the Act silent on the point, but the
legislative record indicates that Congress did in fact,
consider and reject a proposed provision similar to §
301 when it enacted the Act.

Similarly in NF FE v. Commandant, supra, 493 F. Supp. at
681, n. 13, this very analysis of the non-existence of a Section
301 parallel was thoroughly considered, with the court finding
no legislative or judicial exception to the preemption doctrine.
In Columbia Power Trades Council v. U.S. Dept. of Energy,
supra, the court reached the same conclusion and added
“[g]iven the abroad purpose of the Act to meet the special
requirements of government, the leadership role of the
Authority [FLRA], and the limited role of the judiciary in the
statutory scheme, it is manifestly the express desire of
Congress to create an exclusive statutory scheme.”

Moreover the Petitioner ignores the genesis of the duty of
fair representation claims in the private sector and the
significance of an explicit duty of fair representation provision
in the CSRA, not found in its private sector counterpart.

Although the NLRA does not explicitly impose a duty of
fair representation, court decisions have established that
under that Act, as under the Railway Labor Act, a union hasa

10

duty to represent fairly the employees for whom it acts as
exclusive bargaining agent. Steele v. Louisville and Nashville
RR, 323 U.S. 192 (1944); Ford Motor Co v. Huffman, 345
U.S. 330 (1953). The NLRB however did not recognize that a
breach of the duty of fair representation amounted to an
unfair labor practice until its’ decision in Miranda Fuel Co.,
140 NLRB 181, 51 LRRM 1584 (1962) enf. denied, 326 F.2d
172 (2nd Cir. 1963). However, in Vaca v. Sipes supra, this
Court implied, but declined to state specifically, that a breach
of a union’s duty of fair representation constitutes an unfair
labor practice under Section 8(b) of the NLRA. In considering
the preemption issue and rejecting it, the Court declared it
could not assume from the NLRB’s “tardy assumption of
jurisdiction” in duty of fair representation cases that Congress
“intended to oust the courts of their traditional jurisdiction to
curb arbitrary conduct by the individual employee’s statutory
representative.” This Court referenced the fact that the NLRB
waited until 1962 before deciding that such a breach of duty
constituted an unfair labor practice, Miranda Fuel, supra2/.

Thus the concept of a judicial cause of action for breach of
the duty of fair representation arose in the private sector prior
to any recognition by the NLRB of unfair labor practice
jurisdiction over a breach of a duty of fair representation it
later construed as implied in the statute. The history of the
CSRA is profoundly different. The CSRA provides for an
explicit duty of fair representation by unions to employees

2/ Indeed, the Supreme Court has never specifically affirmed
the NLRB’s Miranda Fuel rule again stating in DelCostello v.
International Brotherhood of Teamsters, supra “We have twice
declined to decide the correctness of the Board’s [Miranda Fuel]
position, and we need not address that question today.”
Notwithstanding, this implicit duty in the private sector was not
specifically recognized by the NLRB until after its inception in the
courts.

Il

over which it has exclusive jurisdiction by the language in 5
U.S.C. 7114(aX1). This section provides:

An exclusive representative is responsible for
representing the interests of all employees in the unit it
represents without discrimination and without regard
to labor organization membership.

Therefore, apart from the special needs and requirements
of federal labor management relations, 5 U.S.C. § 7101; the
clearly circumscribed nature of appellate review, Columbia
Power Trades Council v. Dept. of Energy supra; and the
absence of an LMRA Section 301 analogue in the CSRA;
there is a compelling difference in the statutes governing the
union’s obligation to employees it represents in the federal
and private sector. By statute, there is an unequivocal duty

of fair representation owed by federal employee unions to
employees over which they have exclusive jurisdiction, and
any finding of breach of that duty is within the exclusive
purview and remedial powers of the FLRA. Apart from
similar unfair labor practices enunciated in the NLRA, the
CSRA contains an additional catch-all unfair labor
provision at 5 U.S.C. § 7116(b) (8) to “otherwise fail or refuse
to comply with any provision of this chapter,” specifically
here the express duty of fair representation. Furthermore, 5
U.S.C. 7118(a) (7) affords total redress to an individual
employee affected by a breach of duty of fair representation
as it provides that upon finding an unfair labor practice the
FLRA shall issue an order requiring reinstatement, back
pay or such other relief as will carry out the purpose of the
statute. As the court below recognized, the FLRA has not
hesitated to exercise its untrammeled jurisdiction, and
invoke its full remedial powers, where appropriate.
Therefore, the courts which currently have chartered the
parameters of their jurisdiction in these federal sector duty
of fair representation matters, have recognized that they
need not be burdened with their predecessor court’s

12

concerns, in devloping a judicial cause of action in the
private sector for breach of this duty in the 1940’s and 1950's,
that employee actions may not be redressible. Moreover, as
provided infra, Congress explicitly rejected a private cause
of action in the federal sector.

Additionally, the purpose behind the preemption doctrine
is particularly significant in the context of a duty of fair
representation charge under the federal labor management
statute. There is a clear decision by Congress to vest in one
administrative agency nationwide jurisdiction to adjudicate
controversies within the Act’s purview. Local 926, Int?
Union of Operating Engineers v. Jones 460 U.S. 669 (1983).
The alleged conduct at issue is clearly covered by the CSRA,
and does not touch on interests deeply rooted in local feeling
or responsibility. San Diego Building Trades Council v.
Garmon, 359 U.S. 236 (1959), Sears Roebuck and Co. v.
Carpenters 436 U.S. 180 (1978). The subject matter of the
instant complaint is identical to the claims which were
actually presented by Mr. Warren to the FLRA, whose
exclusive function is to carry out the purposes of Title VII of
the CSRA. The risk of interference with the FLRA’s
jurisdiction is obvious and substantial. The FLRA’s
unequivocal unfair labor practice jurisdiction, interpreting
an explicit duty of fair representation statute, dictates
preemption, even assuming any general basis for invoking
the federal court’s jurisdiction, which there is none.

As provided herein, the carving out of an exception to the
preemption doctrine in the private sector in Vaca v. Sipes,
supra was based in large part on considerations not
applicable to the federal statute, because of the rationed
absence of a section 301 analogue. As the circuit courts
considering this issue have uniformly concluded, the
conscious deletion by Congress of a Section 301 analogue in
the CSRA, the capable resolution of all matters exclusively
in the FLRA, the special requirements of government, and

13

the explicit narrowly created judicial scheme, dictate a
different result.

II. There is No Pertinent or Valid Consideration Dictating
Review of this Question on Certiorari

The sole reason formulated by Petitioner for granting the
petition in Part II of his argument is that a decision by this
court is necessary to settle an important question of law
affecting federal employees, on which federal courts have
issued conflicting opinions.

Quite unlike the status of the law on this issue as portrayed
by Petitioner, there is absolute consistency among the federal
circuits and lower courts that have considered this matter, and
one lone dissenting assertion of jurisdiction by a Northern
District of California District Court in Karaholios v. Defense
Language Institute, 543 F. Supp.1201 (N.D. Cal. 1982).

The federal circuit court below and the Third Circuit in
Wilson v. United States, Appeal No. 84-5735, slip op. (3rd Cir.
1985) however have held that federal courts have no subject
matter jurisdiction over duty of fair representation cases
brought by federal employees against their exclusive
representatives. Similarly in Butler v. AFGE, Civil Action No.
C-81-482, slip op. (N. D. Ohio. 1982) the court granted the
exclusive representative’s motion to dismiss the duty of fair
representation complaint for lack of subject matter
jurisdiction. Accord: Holly v. Local 1534, AFGE, Civ. Action
No. SC 4536-82 (D.C. Super. Ct. 1983).

Supreme Court Rule No. 17 provides clearly that a review
on a writ of certiorari is discretionary and will be granted only
when there are special and important reasons therefor. A
recitation in Rule 17 of the general character of reasons that
will be considered in ruling on a petition for certiorari nowhere
suggests that it would be appropriate to consider a petition for

14

certiorari where there is absolute consistency among the
federal circuits that have ruled on the issue and a singular
contrary ruling by a federal district court in a different circuit.
With respect to conflicts in the federal courts, Rule 17 provides
that a consideration of a case could be made if there is conflict
among the federal circuits, although even a conflict among
circuits does not mean an automatic grant of certiorari.

A conflict between a decision of a district court and that ofa
court of appeals is not, absent extraordinary circumstances, a
sufficient ground to grant the wrt. 13 Moore's, Federal
Practice, 4% 817.21 (2ad ed. 1985). As Professor Moore
further recognizes in citing Harlan, Manning the Dikes, 13
Record NYCBA 541,552 (1958).

Generally speaking, nothing short of a difference
of decisions between two Courts of Appeals or
between a Court of Appeals and the Court of
Claims, whose judgments are reviewable directly by
the Supreme Court will suffice to satisfy the conflict
rule.,.A conflict of decisions between two district
courts is not a ground for certiorari since resolution
of such a conflict is a matter resting with the Courts
of Appeals. Nor except in very rare instances will a
conflict between a decision of the Court of Appeals
and that of a district court in some other circuit
suffice. 13 Moore’s Federal Practice, V4 817.21 (2d
ed. 1985).

Indeed, the Circuit Court below specifically addressed and
repudiated the reasoning of the Northern District of
California court in Karaholios, supra based on its patent
reliance on two faulty premises: first, the alleged lack of an
explicit duty of fair representation provision in the CSRA,
and second, the inability of the FLRA to provide individual
relief to employees aggrieved by a breach of the duty of fair
representation. The Circuit Court, as provided infra,

13

the explicit narrowly created judicial scheme, dictate a
different result.

II. There is No Pertinent or Valid Consideration Dictating
Review of this Question on Certiorari

The sole reason formulated by Petitioner for granting the
petition in Part II of his argument is that a decision by this
court is necessary to settle an important question of law
affecting federal employees, on which federal courts have
issued conflicting opinions.

Quite unlike the status of the law on this issue as portrayed
by Petitioner, there is absolute consistency among the federal
circuits and lower courts that have considered this matter, and
one lone dissenting assertion of jurisdiction by a Northern
District of California District Court in Karaholios v. Defense
Language Institute, 543 F. Supp.1201 (N.D. Cal. 1982).

The federal circuit court below and the Third Circuit in
Wilson v. United States, Appeal No. 84-5735, slip op. (3rd Cir.
1985) however have held that federai courts have no subject
matter jurisdiction over duty of fair representation cases
brought by federal employees against their exclusive
representatives. Similarly in Butler v. AFGE, Civil Action No.
C-81-482, slip op. (N. D. Ohio. 1982) the court granted the
exclusive representative’s motion to dismiss the duty of fair
representation complaint for lack of subject matter
jurisdiction. Accord: Holly v. Local 1534, AFGE, Civ. Action
No. SC 4536-82 (D.C. Super. Ct. 1983).

Supreme Court Rule No. 17 provides clearly that a review
on a writ of certiorari is discretionary and will be granted only
when there are special and important reasons therefor. A
recitation in Rule 17 of the genera! character of reasons that
will be considered in ruling on a petition for certiorari nowhere
suggests that it would be appropriate t » consider a petition for

14

certiorari where there is absolute consistency among the
federal circuits that have ruled on the issue and a singular
contrary ruling by a federal district court in a different circuit.
With respect to conflicts in the federal courts, Rule 17 provides
that a consideration of a case could be made if there is conflict
among the federal circuits, although even a conflict among
circuits does not mean an automatic grant of certiorari.

A conflict between a decision of a district court and that ofa
court of appeals is not, absent extraordinary circumstances, a
sufficient und to grant the writ. 13 Moore’s. Federa!
Practice, 4%] 817.21 (2nd ed. 1985). As Pro’exier “Aoore
further recognizes in citing Harlan, Monning i vites, 13
Record NYCBA 541,552 (1958).

Generally speaking, nothing short of a difference
of decisions between two Courts of Appeals or
between a Court of Appeals and the Court of
Claims, whose judgments are reviewable directly by
the Supreme Court will suffice to satisfy the conflict
rule...A conflict of decisions between two district
courts is not a ground for certiorari since resolution
of such a conflict is a matter resting with the Courts
of Appeals. Nor except in very rare instances will a
conflict between a decision of the Court of Appeals
and that of a district court in some other circuit
suffice. 13 Moore’s Federal Practice, 44 817.21 (2d
ed. 1985). |

Indeed, the Circuit Court below specifically addressed and
repudiated the reasoning of the Northern District of
California court in Karaholios, supra based on its patent
reliance on two faulty premises: first, the alleged leck of an
explicit duty of fair representation provision in the CSRA,
and second, the inability of the FLRA to provide individual
relief to employees aggrieved by a breach of the duty of fair
representation. The Circuit Court, as provided infra,

15

recognized that unlike the NLRA or the Railway Labor Act,
the CSRA provides for an explicit duty of fair representation
and that the FLRA is empowered and has diligently sought
relief to federal employees aggrieved by a breach of the duty of
fair representation.

Petitioner’s suggest «a of an uncertainty in the law
somehow perplexing -ivilian federal employees is simpiy
absurd, in light of thc unanimity in the circuits, and the full
redress available through the FLRA. Nor is there any basis
whatsoever for Petitioner’s suggestion that the “FLRA ad-
ministrative processes are also subject to confusion.”

The case presented involves no Consitutional issues nor
conflict among circuits as to an important federal question.
Therefore there is no basis for granting this petition for
certiorari.

16

CONCLUSION:

The Court of Appeals correctly determined that Congress
conferred exclusive jurisdiction over a federal employee’s duty
of fair representation claim in the FLRA. The unanimity of
this position by the Circuit Courts considering this issue,
militates against granting this Petition for Certiorari.

Respectfully submitted,

STUART A. KIRSCH
STAFF COUNSEL
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
AFL-CIO (FiFtH District)
510 Plaza Drive, Suite 2510
College Park, Georgia 30349

MARK D. ROTH
Counsel of Record
GENERAL COUNSEL
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO
1325 Massachusetts Ave.,
Washington, D.C. 20005
(202) 737-8700
Attorneys for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0842%3A2. Public record. Not legal advice.