# Opposition Brief — American Federation of Government Employees v. Martinez

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 904

## Text

RILES |
JUN 11993 =|
TREICE OF TRE ae)
In the Supreme Court of the Gnited States

OCTOBER TERM, 1992

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
ET AL., PETITIONERS

v.
RAMIRO MARTINEZ, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION

DREw S. Days, III
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 514-2217
THOMAS S. WILLIAMSON, JR.
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
STEVEN J. MANDEL
Deputy Associate Solicitor

MARK S. FLYNN
Senior Appellate Attorney
Department of Labor
Washington, D.C. 20210

s, Erne chee y
: ait

QUESTION PRESENTED

Whether a federal district court has jurisdiction under
the Labor-Management Reporting and Disclosure Act
over a federal employee’s claims involving his right to
union office, where the union admits members who are
employed in both the public and private sector.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES
Cases:
Berardi v. Swanson Memoria! Lodge No. 48, 920 F.2d 198
Teen cbuuvcabonepereeeceseccccs. 11
Brotherhood of Locomotive Firemen & Enginemen v.
Bangor & Aroostook R.R., 389 U.S. 327 (1967) ........... 18

Bush v. Lucas, 462 U.S. 367 (1983) ..2.....ccccc.-- 0050-00. 17
Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir.). cert. denied,
498 U.S. 811 (1990)
Donovan v. CSEA Local Union 1000, 784 F.2d 98 (2d
Cir.), cert. denied, 479 U.S. 817 (1986) ......... ; 11

Hawaii Gov't Employees Ass’n, Local 152 v. Martoche.

910 F.20 718 (D.C. Cir. 1990) ..............0....0066............... 1]
Hester v. International Union of Operating Eng’rs, 818
F.2d 1537 (1987), reaffd after remand, 878 F.2d 1309
(11th Cir. 1989), cert. denied, 494 U.S. 1079 (1990) ...... ii. 12.
15-16
Karahalios v. National Federation of Federal Employees,
Local 1263, 489 U.S. 527 (1989) .......ccccccccccccccccceccceeeee. 13, 17
Kennedy v. Metropolitan Suburban Bus Auth. 102
L.R.R.M. (BNA) 2088 (E.D.N.Y. 1979) ................. bene 11
Laity v. Beatty, 766 F. Supp. 92 (W.D.N.Y. 1991). affd.
956 F.2d 1160 (2d Cir. 1992) ...........0.......000..06............ 11, 14. 16
Local 1219, AFGE vy. Donovan, 683 F.2d 511 (D.C. Cir.
Tana eRe Seca sescevadnadanardeierccs renee liMihddntabecentecasuais {
Local 1498, AFGE vy. AFGE, 522 F.2d 486 (3d Cir
ARNE GSLLSaLsd vonwhakusaasavanccesconsasecessacancasceeces, 1]
(IIT)

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Cases—Continued: Page

Local No. 82, Furniture & Piano Moving v. Crowley, 467

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Morton v. Mancari, 417 U.S. 535 (1974) ....... eee eee 14
NEA v. Marshall, 100 L.R.R.M. (BNA) (D.D.C. 1979) ... 11
New Jersey County & Mun. Council #61 v. AFSCME, 478

F.2d 1156 (3d Cir.), cert. denied, 414 U.S 975 (1973) .... 1]
United States v. Fausto, 484 U.S. 489 (1988) .................. 13, 17
Watt v. Alaska, 451 U.S. 259 (1981) ...........cccccccsssccesescees i4
Wright v. Baltimore Teachers Union, 369 F. Supp. 848

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Statutes and regulations:
Federal Service Labor-Managment Relations Act, Tit.
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Labor-Management Reporting and Disclosure Act of 1959,
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Regulations—Continued:
29 C.F.R::

RO GN BING) aistnesnccntectesessenss
I SoA cued eeaistenwscsdeisacendsenseiabncts
NE Ec cedsaneinaneesinn
Sections 458.54-458.57
Section 458.58
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Sections 458.63-458.66
Section 458.64(b) ...............
Se ieekeneanenakie
Section 458.88
Section 458.91

Section 458.92

Miscellaneous:

57 Fed. Reg. (1992):
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§In the Supreme Court of the United States

OCTOBER TERM. 1992

No. 92-1640

AMERICAN FEDBRATION OF GOVERNMENT EMPLOYEES.
ET AL., PETITIONERS

v.

RAMIRO MARTINEZ. ET AL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION

OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-8a)
is reported at 980 F.2d 1039. The opinion of the
district court (Pet. App. 9a-13a) is unreported.
JURISDICTION

The judgment of the court of appeals was entered on
January 12, 1993. The petition for a writ of certiorari
was filed on April 12, 1993. This Court’s jurisdiction
is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

l.a. The Labor-Management Reporting and Disclo-
sure Act of 1959, 29 U.S.C. 401 et seg., was Congress’s
first major attempt to regulate the internal affairs of
labor unions. See generally Local No. 82, Furniture
& Piano Moving v. Crowley, 467 U.S. 526 (1984). The
Act defines covered “[l]abor organization[s]” as
organizations in an industry affecting commerce in
which employees participate and which deal with
“employers” concerning terms and conditions of
employment. 29 U.S.C. 402(i). The Act expressly
excludes from its definition of employer “the United
States or any corporation wholly owned by the
Government of the United States or any State or
political subdivision thereof.” 29 U.S.C. 402(e). Con-
sistent with the statutory definitions, Department of
Labor regulations provide that a union is outside the
L.MRDA’s scope only if it represents solely gov-
ernment workers and does not deal with a private
employer concerning the terms and conditions of
employment. See 29 C.F.R. 451.3(a)(4).

Title I of the LMRDA provides union members
with an extensive “bill of rights” guaranteeing to
each member equal rights to vote and otherwise par-
ticipate in union decisions, freedom from unreason-
able restrictions on speech and assembly, and
procedural safeguards against improper discipline.
See 29 U.S.C. 411. Title I rights are enforceable by
private actions brought by union members against
labor organizations in federal district court. 29
U.S.C. 412.

Title [V of the Act is concerned with the election of
officers of labor organizations. It requires periodic
election of union officers and prescribes minimum

standards to ensure that such electiors are fairly
conducted. See 29 U.S.C. 481. Title IV enforcement
authority resides with the Secretary of Labor: a
union member, after exhausting (or pursuing for
three months) available internal union remedies, may
file a complaint with the Secretary challenging an
election. 29 U.S.C. 482(a). The Secretary then must
investigate the complaint and, if he finds probable
cause to believe that a violation has occurred, file suit
in federal district court seeking a new election. See
29 U.S.C. 482(b). With only one exception not
applicable here, see 29 U.S.C. 481(c), there is no
provision for a private cause of action under Title IV.
b. The Civil Service Reform Act of 1978 (CSRA)
comprehensively overhauled the federal civil service
system. Title VII of the CSRA, also known as the
Federal Service Labor-Management Relations Act, 5
U.S.C. 7101 et seq., governs federal sector labor-
management relations, including the activities of
recognized labor organizations. Title VII covers
“labor organization[s]” “composed in whole or in part
of employees, in which employees participate and pay
dues,” and which deal with federal agencies concern-
ing grievances and conditions of employment. 5
U.S.C. 7103(a)(4); see also 5 U.S.C. 7103(a}(2) (def-
inition of employee), 7103(a)(3) (definition of agency).
Section 7120 of Title VII permits government
agencies to recognize labor organizations only if they
hold periodic elections subject to prescribed safe-
guards, and if they assure that their members will
have the right to participate in the affairs of the union
and will receive fair and equal treatment under its
governing rules and fair process in disciplinary
proceedings. 5 U.S.C. 7120(a). The Act authorizes

the Department of Labor’s Assistant Secretary for
Labor-Management Standards to prescribe regula-
tions implementing those standards of conduct, and
provides that such regulations shall conform gen-
erally to principles applied in the private sector. 5
U.S.C. 7120(d).'. Accordingly, the Assistant Secre-
tary has promulgated a bill of rights for union
members that is virtually identical to the bill of
rights in Title I of the LMRDA. 29 C.F.R. 458.2. He
also has specified that periodic elections shall be
conducted in a “fair and democratic manner” and shall
be governed by the election provisions of Title [V of
the LMRDA to the extent relevant. 29 C.F.R. 458.29.

Although the substantive provisions of 5 U.S.C.
7120 and its accompanying regulations parallel the
IL.MRDA’s provisions, the forum for enforcement is
different. Local 1219, AFGE v. Donovan, 683 F.2d
oll, 515 n.138 (D.C. Cir. 1982). Complaints with
respect to any violation of 5 U.S.C. 7120—including
both “bill of rights” and election violations—are to be
filed with the Assistant Secretary. 5 U.S.C. 7120(d).
Upon receiving a complaint, the Department conducts
an investigation; if there is merit to the allegation,
the case proceeds to a hearing before an admin-
istrative law judge (ALJ). 29 C.F.R. 458.54-458.57,
158.63-458.66. The ALJ is authorized to recommend a
decision to the Assistant Secretary who, if he
sustains the complaint, iS empowered to order the
labor organization to cease and desist from the

As of November 1, 1992, the responsibilities of the Assis
tant Secretary for Labor-Management Standards under 5
U.S.C. 7120 were transferred to the Department of Labor's
Assistant Secretary for Employment Standards. See 57 Fed
Reg. 53,514, 53,516 (1992).

violation and to take other appropriate remedial
action. 29 C.F.R. 458.88, 458.91. Ifa labor organiza-
tion refuses to comply with the order, the Assistant
Secretary may apply to the Federal Labor Relations
Authority (FL RA) for enforcement of the order. 29
C.F.R. 458.92; 5 C.F.R. Pt. 2428 (F LRA regulations).
Orders of the F I.RA are reviewable in the courts of
appeals. 5 U.S.C. 7123.

In cases in which the investigation shows that the
complaint lacks merit, the Department dismisses the
case without referring it to an ALJ for a hearing. 29
C.F.R. 458.58, 458.64(b). The complainant may obtain
review of sucha a before the Assistant Secre-
tary. 29 C.F.R. 458.59, 458.64(c).

2. Petitioners are the American Federation of
Government Employees (AFGE), two of its national
officers, and the presidents of three local AFGE
unions. Pet App. 4a. AFGE is a federation of more
than 1,000 local labor organizations that represent
almost 700,000 employees. Pet. App. 2a. The parties
stipulated that some of those locals represent private
sector employees. Local 1617, an AFGE affiliate, is
the exclusive bargaining representative for federal
employees in recognized bargaining units at Kelly
Air Force Base in San Antonio, Texas; Local 1617
does not represent any private sector employees.
[bid.

Respondent Ramiro M. Martinez, a federal em-
ployee, was the President of Local 1617 when the
events underlying this action began. On January 3
1989, petitioner Peterson, then AFGE National Vice
President, ordered an investigation of a complaint
that Martinez had sold a list of Local 1617 members’
names and addresses to an insurance company. Pet.

6

App. 3a. On March 28, 1989, based on the results of
that investigation, petitioner Sturdivant, the AFGE
President, found probable cause to believe that
respondent had accepted money in exchange for the
membership list. Sturdivant determined that a fair
and impartial trial could not be conducted by Local
1617, and he therefore appointed a trial committee
composed of the presidents of three other AFGE
locals. Jd. at 2a-8a.

After a hearing, the trial committee found that
respondent had accepted monetary consideration in
exchange for the list and that he had not acted in a
responsible manner. Pet. App. 10a. The committee
therefore concluded that Martinez had violated the
union constitution, and it recommended that he be
removed from the presidency of Local 1617 and
thereafter be barred from any union office for a period
of three years. On August 24, 1989, AFGE President
Sturdivant accepted the trial committee’s findings
and recommendations and ordered Martinez’s imme-
diate removal and three-year debarment. /d. at 3a.

In the interim, on February 8, 1989, Local 1617 held
its regularly scheduled election of officers, and
Martinez was reelected as local president. Pet. App.
3a, 10a. Shortly thereafter, six unsuccessful candi-
dates for office in that election filed protests with the
Local 1617 Election Committee, alleging that certain
candidates were afforded access to Local 1617’s news-
paper, while others were denied that opportunity.
The Election Committee dismissed the protests, and
two candidates filed appeals with AFGE Vice Presi-
dent Peterson, who initiated an investigation of the
election. Based on the results of the investigation,
Peterson ordered a new election. /d. at 3a. AFGE

—

President Sturdivant denied Martinez’s appeal of that
decision. Jd. at 10a.

On August 25, 1989, Martinez and other Local 1617
officers filed a complaint with the Department of
Labor, contending that AFGE’s decision to overturn
the February 1989 election and to order a new
election was arbitrary and capricious and politically
motivated, and thereby violated the right of Local
1617’s membership to elect their officers. Pet. App.
sa, 10a. The complaint did not challenge AFGE’s
decision to remove and debar respondent from office.

The Department of Labor conducted an investiga-
tion under its CSRA regulations to determine
whether Local 1617’s election violated 29 C.F.R.
458.29, which, as noted above, requires federal-sector
union elections to conform to the substantive
requirements of Title IV of the LMRDA. Pet. App.
10a. The Department’s investigative findings were
consistent with AFGE’s determination that union
funds had been applied to enhance the incumbent
officers’ candidacy, and the Department therefore
dismissed the complaint. See 29 C.F.R. 458.64(b). The
Assistant Secretary, on April 24, 1990, affirmed the
dismissal and upheld AFGE’s decision to overturn the
local election. Pet. App. 10a.

1. Meanwhile, on September 7, 1989, while his
CSRA administrative complaint was pending, Mar-
tinez filed this action against petitioners under Title
| of the LMRDA, 29 U.S.C. 412. Pet. App. 4a. He
alleged, inter alia, that petitioners violated the Act
by removing him from local union office, by barring
him from any office for three years, and by invalidat-
ing the February 1989 election. /d. at 3a.

Petitioners moved to dismiss, arguing that the

district court lacked jurisdiction under Section 102 of

the LMRDA, 29 U.S.C. 412, over Martinez’s claims
because they related to a federal sector union and
thus must be adjudicated under the administrative
scheme provided by Title VII of the CSRA. The
Acting Assistant Secretary intervened in the suit
and moved to dismiss on the same ground. Pet. App.
4a-5a.

The district court granted the motions to dismiss.
Pet. App. 9a-18a. Because Title VII of the CSRA is
“the controlling authority for resolving issues
involving labor relations in the public sector,” the
court found the relevant question to be “whether
[Martinez] is an employee of the Federal Government
and whether his claim involves rights and obligations
covered by thiat] statute.” Pet. App. lla. The court
held that Martinez is a federal government employee
because he is an “individual employed in an agency,” 5
U.S.C. 7105(a)(2)(A)—2.e., in the Department of the
Air Force at Kelly Air Force Base. Pet. App. Ila.
The ‘court further determined that AFGE and Local
1617 are “labor organizations” covered by the CSRA,
see 5 U.S.C. 7103(a)(4), because they are composed in
whole or part of federal employees and they deal with
federal agencies concerning grievances and condi-
tions of employment. Pet. App. 18a.

The court next held that Martinez’s complaint
involved rights and obligations covered by the CSRA,
because his allegation that AFGE unfairly removed

and barred him from union office stated a violation of

the requirement in 5 U.S.C. 7120(a) that labor organi-
zations provide “fair process in disciplinary proceed-
ings.” Pet. App. 13a. The court similarly ruled that

v

Martinez’s allegations of impropriety in AFGE’s
nullification of the February 8, 1989, election stated a
violation of 5 U.S.C. 7120(a)’s mandate that labor
organizations conduct “periodic elections * * *
subject to recognized safeguards.” Pet. App. 13a.
Ruling that the CSRA applies to Martinez’s claims.
the court concluded that it was “compelled to dismiss
|Martinez’s] Complaint as the CSRA’s comprehensive
statutory scheme precludes judicial review of the
[pllaintiffs claims. Karahalios v. National Feder-
ation of Federal Employees, Local 1263, 109 S. Ct.
1282, 1286 (1989).” Pet. App. 13a.

5. The court of appeals reversed and remanded.
Pet. App. la-8a, holding that the LMRDA definitional
provisions control the jurisdictional question. While
noting that there is some “overlap” between the
CSRA and the LMRDA, id. at 4a n.1, the court
concluded that the question in this case “is not
whether the CSRA provides a remedy, but whether
the LMRDA provides one.” /d. at 5a n.2. On that
issue, the court reasoned that the LMRDA grants
federal courts jurisdiction over disputes between a
union and its members if the union is a “labor
organization” within the meaning of the LMRDA.
Pet. App. 2a, 5a-6a (citing 29 U.S.C. 411, 412)2 The
L.MRDA defines a “labor organization” as any orga-
nization of employees that deals with a statutory
“employer” regarding specified subjects, 29 U.S.C.
402(i), and an “employer” includes any employer
except the United States or a State or political

The court of appeals observed that it was undisputed that
at least some of the rights asserted by Martinez—the rights to
vote and otherwise to participate in union affairs—are pro-
tected by the LMRDA. Pet. App. ba.

10

subdivision of a State, 29 U.S.C. 402(e). The court
concluded that a union is therefore covered by the
LMRDA if it deals with employers other than
governmental bodies, even if it also deals with
governmental employers. Pet. App. 6a-7a.

The court noted that in this case, AFGE had
stipulated that in addition to representing federal
employees, it also “represented” employees of private
sector employers. Pet. App. 7a. The stipulation was
unclear, however, as to whether AFGE “deallt] with”
private sector employers “concerning grievances,
labor disputes, wages, rates of pay, hours, or other
terms or conditions of employment,” 29 U.S.C. 402(i),
which is necessary for AFGE to be a “labor
organization” under the LMRDA. See Pet. App. 7a.
The court of appeals therefore remanded the case to
the district court with instructions to determine
whether AFGE “dealt with” private sector employers
concerning those topics. If it did, the court of appeals
instructed, the case should proceed; if not, the district
court should dismiss the complaint. /bid.

The court noted that, unlike the national AFGE,
Local 1617 is excluded from coverage under the
LMRDA because it is an organization composed
solely of federal government employees. Pet. App. 6a
n.3. The court concluded that that exclusion was
irrelevant, however, because AFGE is the sole union
defendant in the case and its actions are the subject of
the suit. /bid. In addition, the court explained that
under its holding a federal employee may sue under
the LMRDA only if his union happens to deal with
private employers concerning terms and conditions of
employment. Jd. at 8a. That holding, the court
reasoned, merely ensures that all members of a

1]

national union, whether in the private sector or in
government employment, have the same rights with
respect to that union. Jbid.

ARGUMENT

The court of appeals’ interlocutory holding that
Martinez’s claims arising out of his removal from
union office may be cognizable under the Labor-
Management Reporting and Disclosure Act does not
conflict with any decision of this Court or any court
of appeals. Review by this Court therefore is
unwarranted.

1. The court of appeals held that the district court
has jurisdiction under the LMRDA if AFGE deals
with private sector employers (as weil as federal]
agencies) concerning the terms and conditions of its
members’ employment. In so ruling, the court of
appeals correctly recognized the general LMRDA
principle that a “mixed union”—one that represents
both government and private employees—falls within
the scope of the LMRDA’s coverage provisions.’ That

See Berardi v. Swanson Memorial Lodge No. 48, 920 F.2d
198, 201 (3d Cir. 1990); Hawaii Gov’ Employees Ass’n. Loca!
152 v. Martoche, 915 F.2d 718, 720 (D.C. Cir. 1990); Hester v.
International Union of Operating E'ng’rs, 818 F.2d 1537, 1541-
1543 (11th Cir. 1987) (per curiam), reaffd after remand, 878
F.2d 1309 (1989), cert. denied, 494 U.S. 1079 (1990): Donovan V.
CSEA Local Union 1000. AFSCME, 784 F.2d 98, 100 (2d Cir.),
cert. denied, 479 U.S. 817 (1986): New Jersey County & Mun
Council #61 v. AFSCME, 478 F.2d 1156, 1157-1158 (3d Cir.).
cert. denied, 414 U.S. 975 (1973): Laity v. Beatty, 766 F. Supp
92, 98 (W.D.N.Y. 1991), aff'd, 956 F.2d 1160 (2d Cir. 1992)
(table); Ken nedy v. Metropolitan Suburban Bus Auth.. 102
L.R.R.M. (BNA) 2088. 2091 (E.D.N.Y. 1979); NEA v. Mar
shall, 100 L.R.R.M.(BNA) 2565 (D.D.C. 1979). Cf. Local 1498,
AFGE v. AFGE, 522 F.2d 486, 489-490 (3d Cir. 1975) (national

12

principle flows, as the court of appeals explained, Pet.
App. 6a-7a, from a plain reading of the LMRDA’s
definitional provisions. The LMRDA defines a labor
organization by reference to the employers with
which it deals. By defining the term “employer” to
include any private sector employer, the LMRDA
excludes only those unions that deal exclusively with
governmental employers. See 29 U.S.C. 402(e), (i); 29
C.F.R. 451.3(a)(4).4

Before the court of appeals, the Assistant Secre-
tary argued that, even though AFGE is a defendant,
the case should be resolved under the CSRA because
Martinez’s claims related primarily to the affairs of
Local 1617, a labor organization that is composed
exclusively of federal employees and that deals only
with a federal agency in representing those employ-
ees. For example, Martinez’s election charges
related to the overturning of the local union election.°

union that limits its membership to, and represents only,
federal government employees is excluded from LMRDA
coverage); Wright v. Baltimore Teachers Union, 369 F. Supp.
848, 850-855 (D. Md. 1974) (a union that represents government
employees exclusively is not covered by the LMRDA).

* In Hester v. International Union of Operating Engineers,
the Eleventh Circuit correctly recognized that the LMRDA’s
definitions do not focus on the employer of the complaining
employee, but rather on whether the defendant labor union
deals with a covered employer on behalf of any member. See
818 F.2d at 1542. If a union is subject to the LMRDA because it
deals with a private employer, “all members, whether em-
ployed by the private or public sector, are protected by the
Act’s bill of rights.” Jd. at n.13.

For this reason, the Assistant Secretary treated Mar-
tinez’s election complaint as stating a complaint under the

CSRA. See p. 7, supra. Even if his election claim is cognizable

Similarly, his claims relating to his discipline for
misconduct primarily focused on his removal from
local union office and on the fact that local union
members were deprived of the elected officer of their
choice. Because those claims arise out of the affairs
of a “purely federal” local union, it seemed reasonable
to review those claims under the CSRA, which was
intended to create a comprehensive scheme to reg-
ulate labor-management relations in the federal
sector. See generally Karahalios v. National Fed’n
of Fed. Employees, Local 1263, 489 U.S. 527 (1989);
United States v. Fausto, 484 U.S. 139, 443 (1988).

The Assistant Secretary also noted below (see C.A.
sr. 19-20 n.10), however, that to the extent that
Martinez’s complaint could be read as asserting a
denial of his rights as a member of the national union
—as is true of his challenge to his debarment from
office in the national union—the district court would
have jurisdiction over the suit under the LMRDA.
That is so because AFGE had stipulated that it
represented both government and non-government
employees, and thus was subject to the LMRDA.

In ruling that the district court has jurisdiction
under the LMRDA if AFGE deals with private sector
employers, the court of appeals disagreed with the
government’s characterization of Martinez’s claims
as relating primarily to the local union. It instead
viewed this case as implicating his rights with

under the LMRDA, however, it cannot be asserted in this Title
I suit because “the exclusivity provision included in § 403 of
Title IV [29 U.S.C. 483] plainly bars Title I relief when an
individual union member challenges the validity of an election
that has already been completed.” Local No. 82 v. Crowl. y, 467
U.S. at 541.

14

respect to the national union. See Pet. App. 6a n.3
(although respondent is a member of a purely federal
local union, that does not “affect his rights under the
LMRDA as a member of the AFGE”) (emphasis
added); id. at 8a (court of appeals’ decision will ensure
that “all members,” both federal and private sector
employees, “have the same rights vis-a-vis their na-
tional union”) (emphasis added). Because Martinez
did suffer a loss of national rights as a result of the
discipline AF'GE imposed on him, the court of appeals’
view is reasonable. As the court of appeals rec-
ognized, however, an action against Local 1617 would
be “an entirely different case,” Pet. App. 6a n.8,
because such an action arises exclusively under the
CSRA. The court of appeals thus recognized CSRA
jurisdiction over unions composed entirely of federal
employees, and therefore respected the congressional
intent underlying the CSRA.

Petitioners argue (Pet. 16) that the CSRA im
pliedly repealed the LMRDA to the extent that the
ILMRDA authorizes claims by a federal employee
against mixed unions. That argument assumes, of
course, that the CSRA applies to claims against
mixed unions in the first place, a proposition contrary
to the view of the Department of Labor. See Laity v.
Beatty, supra, 766 F. Supp. at 96-97.

In any event, petitioners’ argument founders on the
principle that implied repeals are disfavored and will
be recognized only when there is a clear repugnancy
between the two statutes. See Watt v. Alaska, 451
U.S. 259, 266 (1981). Rather, courts should strive
where “‘there are two acts upon the same subject
*** to give effect to both if possible.’” Morton v.
Mancari, 417 U.S. 535, 550-551 (1974) (citation

15

omitted). Here, the LMRDA definitional provisions
and implementing regulations expressly include
mixed unions, and both the text and purposes of the
CSRA ean reasonably be construed in a manner that
accommodates the LMRDA’s coverage of mixed
unions. In the context of a national “mixed union”
and a purely federal local union, consistency between
the two Acts can be achieved, as the Assistant
Secretary argued below, by providing for claims by
federal local members against the national to be
resolved under the CSRA wher the gravamen of the
claim relates to the local’s affairs and the member’s
rights under the local organization. When, however,
the claim relates primarily to the rights of the
member vis-a-vis the national organization—as the
court of appeals viewed Martinez’s claims—it should
be decided under the LMRDA. That approach
recognizes that in enacting the CSRA, Congress
focused on the unique circumstances in the federal
sector and manifested no intent to affect the rights of
private sector employees. See 5 U.S.C. 7101(b) (“the
purpose of this chapter [is] to prescribe certain rights
and obligations of the employees of the Federal
Government and to establish procedures which are
designed to meet the special requirements and needs
of the Government”). It also respects the purpose of
the LMRDA to ensure that all members of a union
that deals with private employers are entitled to the
protections of that Act.® See generally Hester v.

° AFGE’s argument that the CSRA impliedly repealed the
LMRDA would lead to one of two anomalous results. If the
CSRA impliedly repealed the LMRDA as to federal employees,
then claims by a federal employee against a mixed union would
'« heard under the CSRA, even though the same claims against

16

International Union of Operating Engineers, 818
F.2d at 1542 & n.12.

2. Neither this Court nor any other court of
appeals has addressed the relationship between Title
VII of the CSRA and the LMRDA in this setting.
Moreover, the only district court to consider
LMRDA jurisdiction over a complaint by a federal
agency employee against a “mixed” union has ruled,
like the court of appeals here, that jurisdiction is
conferred by the LMRDA. Laity, 766 F. Supp. at 97-
98. Finally, every court to address the LMRDA
jurisdictional provisions in the context of state and
municipal employees has concluded that the LMRDA
applies to unions consisting of both private sector and
governmental employees. See note 3, supra. Thus,
the decision below does not conflict with any decision
of this Court or of any other court.

Petitioners cite (Pet. 7-11) a number of decisions of
this Court and the courts of appeals that emphasize
the exclusivity of the CSRA scheme in matters of
federal employment. As explained above, however,
those decisions do not address rights guaranteed by
the LMRDA. In particular, the decisions of this
Court upon which petitioners rely do not involve the
question whether the CSRA takes precedence over an
express cause of action under another federal statute.

the same union by a fellow member who is a private sector
employee would be heard under the LMRDA. On the other
hand, if the CSRA were deemed impliedly to repeal the
LMRDA so as to place :aixed “federal/private” unions under
exclusive CSRA jurisdiction, private sector employees who
were members of such unions would be required to utilize
CSRA procedures—a result that would go wel! outside the
focus of the CSRA on federal sector problems.

17

See Karahalios, supra (CSRA does not confer on
federal employees an implied private right of action
against a union for breach of duty of fair rep-
resentation); Fausto, 484 U.S. at 453-454 (absence of
provision in CSRA for administrative and Judicial
review of adverse personnel action alters “impli-
cation” of Back Pay Act that Court of Claims is
appropriate authority to review agency s personnel
determination); Bush v. Lucas, 462 U.S. 367, 388-390
(1983) (in light of elaborate civil service remedial
scheme, Court will not imply cause of action for
damages for constitutional tort).”

In any event, further review is unwarranted at this
time because the court of appeals’ jurisdictional
ruling is interlocutory. AFGE stipulated that it
represented some non-governmental employees. It
argued to the court of appeals, however, that even
though it admits as members some persons who work
in the private sector, it does not “deal with their
private employers” and has no contracts with such
employers. Pet. App. 7a. The court of appeals
remanded the ease to the district court to resolve
whether AFGE indeed deals “with any private sector

Petitioners cite Carter v. Gibbs, 909 F.2d 1452 (Fed. (
(en banc), cert. denied, 498 U.S. 811 (1990). as establishing that
“the preemptive effect of the CSRA reaches federal statutes
which otherwise expressly authorize suits by federal employ
ees.” Pet. 11. In that case, the Federal Circuit held that fed
eral employees could not assert claims for overtime compensa
tion under the Fair Labor Standards Act where their collective
bargaining agreement did not exclude those claims from its
grievance procedure. The court’s holding was based in large
measure on a specific provision, 5 U.S.C. 7121(a), pert aoe to
the exclusivity of grievance procedures that is not applicable
this case. See 909 F.2d at 1455.

employers on behalf of its members concerning the
terms and conditions of employment.” /bid. Should
petitioners establish, as they maintain, that AFGE
does not deal with private employers, this LMRDA
action will be dismissed for lack of jurisdiction and
petitioners will have no need for review by this Court.
On the other hand, if AFGE is found to represent
private sector employees with respect to their terms
and conditions of employment, petitioners may seek
review in this Court in due course, based on a more

complete record. There is, accordingly, no reason for
the Court to depart from its usual practice of

declining to review decisions of the courts of appeals
at an interlocutory stage of a case. See Brotherhood
of Locomotive Firemen & Enginemen v. Bangor «&
Aroostook R.R., 389 U.S. 327, 328 (1967).

CONCLUSION

The petition for a writ of certiorari should be

denied.
Respectfully submitted.

DREWS. DAYS, II]
Solicitor General
THOMAS S. WILLIAMSON, JR
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
STEVEN J. MANDEL
De puty Associate Solicitor
MARK S. FLYNN
Senior Appellate Attorney
De partment of Labor

JUNE 1993

- Pa ae eT (IR TRO Ab PMS IGS

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2324%3A4. Public record. Not legal advice.