Petition for Writ of Certiorari — Patent Office Professional Ass'n v. Federal Labor Relations Authority

Supreme Court brief1997

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No. 97-408 SEP - 8 1997

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Jn The

Supreme Court Of Che Gnited States

OCTOBER TERM 1996

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PATENT OFFICE PROFESSIONAL ASSOCIATION,

Petitioner,

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

On Petition For Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Gene M. Munson

Counsel of Record

Post Office Box 2521

Arlington, Virginia 22202

(703) 308-4925

Counsel for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTIONS PRESENTED

1. Are impermissible statutory interpretations made by the

General Counsel of the Authority subject to judicial review

under 5 U.S.C. 7123?

2. Did D.C. Circuit err in concluding, contrary to Montana Air

Chapter No. 29, Association of Civilian Technicians v. Federal

Labor Relations Authority, 898 F.2d 753 (CA9 1990), that

impermissible statutory interpretations of 5 U.S.C. 7114 (b)(4)

made by the General Counsel of the Authority are not subject

to judicial review?

3. Did D.C. Circuit err in concluding, contrary to Montana Air

Chapter No. 29, Association of Civilian Technicians v. Federal

Labor Relations Authority, 898 F.2d 753 (CA9 1990), that the

General Counsel of the Authority made no statutory

interpretations of 5 U.S.C. 7114 (6)(4) subject to judicial review

in case in which the General Counsel made statutory

interpretations of data, furnish, upon request and necessary?

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page. Petitioner is the Patent Office Professional Association

(POPA or Union), an exclusive representative under Chapter

71 of title 5 of the United States Code. The Federal Labor

Relations Authority (Authority or FLRA) is the Respondent.

lil

TABLE OF CONTENTS

OPINION AND ORDER BELOW ................... ]

FO BN oo 5.0 kk eas onde ee eee eee ae

STATUTES AND REGULATIONS INVOLVED. ..... ]

STATEMENT OF THE CASE...................... 3

REASONS FOR GRANTING THE PETITION.......... 10

I. Impermissible statutory interpretations made by the

General Counsel of the Authority are subject to judicial

review unger ST.S.C. 7520... 0.2500 65 Se. 12

Il. The D.C. Circuit erred in concluding, contrary to

Montana Air Chapter, that impermissible statutory

interpretations of 5 U.S.C. 7114 (b)(4) made by the

General Counsel of the Authority are not subject to

puacaah FOV... i cw tan. essere N ee Nee 19

Ill. The D.C. Circuit erred in concluding, contrary to

Montana Air Chapter, that the General Counsel of the

Authority made no statutory interpretations of 5 U.S.C.

7114 (b)(4) subject to judicial review in case in which the

General Counsel made statutory interpretations of data,

furnish, upon request and necessary...........06..44. 23

COIN EUN oo snie a Vic vb ve we sass eee

INDEX TO APPENDICES

APPENDIX A- Order of the U.S. Court of Appeals for the

District of Columbia Circuit in case No. 96-123],

motion to dismiss granted, filed March 31, 1997.

APPENDIX B.- Final decision of the General Counsel of the

Authority in case No. WA-CA-50607, denial of appeal,

dated May 10, 1996.

APPENDIX C- Decision of the Regional Director in case No.

WA-CA-50607, dated January 24, 1996, and attached

Settlement Agreement.

APPENDIX D- Denial of motion for reconsideration by the

General Counsel of the Authority, corrected copy dated

September 18, 1996.

APPENDIX E- Order of the U.S. Court of Appeals for the

District of Columbia Circuit in case No. 96-1231,

petition for rehearing denied, filed June 23, 1997.

APPENDIX F- 5 U.S.C. 551, 701, 706, 7104, 7105, 7118,

7123.

APPENDIX G- Particularized need for data requested by

questions 3, 5-9, 11-18, 22 and 23 in case No. WA-CA-

50607.

TABLE OF AUTHORITIES CITED

PAGE

COURT CASES

Adams v. Richardson,

156 U.S. App. D.C. 267,

480 F.2d 1159 (1973) (enbanc).............. 16,17

American Federation of Government Employees,

Local 1749, v. FLRA,

842 F.2d 102 (CAS 1988) (per curiam).......... 19

American Federation of Government Employees,

Local 2782 v. FLRA,

702 F.2d 1183 (CADC 1983)................. 13

Crowley Caribbean Transp., Inc. v. Pena,

37 F.3d 671 (CADC 1994)........ ee Sear 23

Heckler v. Chaney,

470 U.S. 821 (1985)............. 10, 11, 15-20, 22

[International Longshoremen’s Ass'n.

v. National Mediation Bd.,

785 F.2d 1098 (CADC 1986)................. 20

International Union, United Automobile,

Aerospace & Agricultural Implement Workers

of America v. Brock,

783 F.2d 237 (CADC 1986)............... 20,23

Interstate Commerce Commission v. Brotherhood

of Locomotive Engineers,

482 U.S. 270 (1987)................11, 17, 18, 23

Martinez v. Smith,

768 F.2d 479 (CA1 1985) (per curiam).......... 19

Montana Air Chapter No. 29, Association of

Civilian Technicians v. FLRA,

898 F.2d 753 (CA9 1990)......... 3, 9-11, 19-25, 28

National Labor Relations Board

v. ACME Industrial Co..,

ome U.S. S52 19ST)... ov vcvkc cece...

NLRB v. FLRA,

oh bed oe) | rs

National Wildlife Federation v. EPA,

980 F.2d 765 (CADC 1992)...................23

Turgeon v. FLRA,

677 F.2d 937 (CADC 1982) (per curiam) . 9, 10, 19, 23

U.S. Dept. of Veterans Affairs v. FLRA,

De SI SIR cea cc icc c ccc eennu eee

U.S. Dept. Of Justice v. FLRA,

988 F.2d 1267 (CADC 1993).................. 27

FLRA CASES

Internal Revenue Service, Washington, D.C. and

Internal Revenue Service, Kansas City Service Center,

Kansas City, Missouri, and NTEU,

arm Ae

Department of the Air Force, Air Force

Logistics Command, and AFGE, Local 1857,

Oe Wee Oe OME. 5 gn cv vac cos ree 26

VA and AFGE, Local 3314,

oe TE Sl a.

STATUTES AND REGULATIONS

IES Fae onal he a Ted eA bc or ee eee 3

os | Ee RE SEE EO AMR mem I |

ce Sr or tre a ue oon to en 3

i oe | es

Lo ts i ae s

ee a ays a a eee Gar ee 3

ED PE ak Pon x sk dus eee var be Lee 2

ES oe. a ree 2-11, 16, 18-20, 22-28

BUS ne) i re i.

kT ty: | Sg ma

PRM FOES ob os cca ere ceo w ous e cede 2-4, 13, 16, 18, 21

Vii

ee eee eee 2

5 U.S.C. 7123 ES ee ey yb

eg eee e ee l

I ee. 3, 8, 15

OTHER

Legislative History of the Federal Service

Labor-Management Relations Statute,

Title VII of the Civil Service Reform Act of 1978,

Committee Print No. 96-7,

November 19, 1979......... ... 9, 10, 12-16, 20, 22, 24

Congressional Record, Vol.-124, Part 28,

October 14, 1978, page 38718 .......... 9, 10, 12, 13, 15,

16, 20, 22, 24

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below.

OPINION AND ORDER BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit in case No. 96-1231 appears at

Appendix A to the petition and is unpublished.

JURISDICTION

The date on which the United States Court of Appeals

dismissed case No. 96-1231 was March 31, 1997. A timely

petition for rehearing was denied by the United States Court of

Appeals on June 23, 1997, and a copy of the order denying

rehearing appears at Appendix E. te

The jurisdiction of this Court is invoked under 5 U.S.C.

7123(c) and 28 U.S.C. 1254(1).

STATUTES AND REGULATIONS INVOLVED

5 U.S.C. 7103. Definitions; applications

(a) For the purpose of this chapter-

* * *

(6) “Authority” means the Federal Labor Relations

Authority described in section 7104(a) of this title;

*” * *

5 U.S.C. 7114. Representational rights and duties

* * a

(b) The duty of an agency and an exclusive

representative to negotiate in good faith under subsection (a) of

this section shall include the obligation-

. « *

(4) in the case of an agency, to furnish to the

exclusive representative involved, or its authorized

representative, upon request and, to the extent not

prohibited by law, data-

(A) which is normally maintained by the

agency in the regular course of business;

(B) which is reasonably available and

necessary for full and proper discussion,

understanding, and negotiation of subjects within

the scope of collective bargaining; and

advice, counsel or training provided for

management officials or supervisors, relating to

collective bargaining;

* ~ *

5 U.S.C. 7123. Judicial Review

(a) Any person aggrieved by any final order of the

Authority other than an order under-

(1) section 7122 of this title (involving an award

by an arbitrator), unless the order involves an unfair

labor practice under section 7118 of this title, or

(2) section 7112 of this title (involving an

appropriate unit determination),

may, during the 60-day period beginning on the date on which

the order was issued, institute an action for judicial review of

the Authority’s order in the United States court of appeals in

the circuit in which the person resides or transacts business or

in the United States Court of Appeals for the District of

Columbia.

* * *

The remainder of 5 U.S.C. 7123 appears in Appendix F.

5 C.F.R. 2423.10 Determination not to issue complaint;

review of action by the regional Director.

* * *

(e) The General Counsel may sustain the Regional Director’s

refusal to issue or re-issue a complaint, stating the grounds of

affirmance, or may direct the Regional Director to take further

action. The General Counsel’s decision shall be served on all

the parties. The decision of the General Counsel shall be final.

The following other statutes involved in this case appear in

Appendix F: 5 U.S.C. 55], 701, 706, 7104, 7105 and 7118.

STATEMENT OF THE CASE

When the General Counsel of the Authority makes

impermissible interpretations of a statute in Chapter 71 of title

5, can a union obtain judicial review? The Ninth Circuit in

Montana Air Chapter No. 29, Association of Civilian

Technicians v. FLRA, 898 F.2d 753 (CA9 1990) (Montana Air

Chapter) holds yes. The D.C. Circuit in this case holds no. The

statute involved in this case is 5 U.S.C. 7114 (b)(4), which

requires an agency to furnish to the union upon request data

which is reasonably available and necessary. In the petition for

review before the D.C. Circuit under 5 U.S.C. 7123, the Union

claims that the General Counsel of the Authority has made

impermissible statutory interpretations of data, furnish, upon

request and necessary. The D.C. Circuit order granted the

motion by the Authority to dismiss for lack of subject matter

jurisdiction. A union has no way to enforce section 7114 (b)(4),

when the General Counsel of the Authority does not follow

established case law and there never can be judicial review.

The Grievance

The case arose out of a grievance proceedings in the U.S.

Patent and Trademark Office (PTO or Office), an agency in the

Department of Commerce. The grievance was filed because

Mr. James Cooper, a personnel employee within the PTO,

decided to prevent the grievant from being admitted to the

Maryland Bar. Mr. Cooper knew that the Maryland Bar would

send an employment inquiry to the PTO. The PTO receives

over 50 State Bar inquires a year. The PTO’s procedure is to

verify the employment and return the inquiry to the State Bar.

Mr. Cooper knew that if a State Bar did not receive a response

from the PTO after numerous attempts to contact the agency by

mail, the State Bar would call the PTO. This telephone call

would be forwarded to Mr. Cooper. Mr. Cooper’s scheme was

to make sure that the PTO did not respond to the grievant’s

Maryland Bar employment inquiry, thereby giving him the

Opportunity to make negative comments about the grievant

during the phone call. Mr. Cooper arranged for the grievant’s

Maryland Bar inquiries to be flagged, so no response would be

made. When the Maryland Bar called, Mr. Cooper implied that

the grievant had committed a serious ethical violation. Had

there been no negative comments by Mr. Cooper, a grievance

would not have been filed.

During the grievance proceedings, the Union made a data

request under 5 U.S.C. 7114 (b)(4). This led to a unfair labor

practice charge filed by the Union with the Federal Labor

Relations Authority under 5 U.S.C. 7118, which led to the

petition for review of impermissible statutory interpretations of

the General Counsel of the Authority, filed by the Union with

the D.C. Circuit under 5 U.S.C. 7123.

The Data Request

On January 23, 1995, the Union made the original request

for data by 26 questions. On July 13 and November 3, 1995,

the Union renewed requests for data by questions #3, 5-9, 11-

18, 22 and 23, which the PTO had not yet furnished. The PTO

had made only a partial response on June 13, almost 5 months

after the data request, and on October 17, over 3 months after

the renewed request for data. An example question is:

3. Provide the Office policy guidelines for making

comments with regard to the character of PTO

employees to a member of a bar character committee.

Only the Agency can provide the data requested. The Agency

does not deny that it has the information, nor has the Agency

raised any countervailing anti-disclosure interest in refusing to

disclose the data requested by #3 and the other questions. The

Union estimates that the PTO could prepare a written copy of

all data requested by questions #3, $-9 and 11-15 within one

hour total time.

The Federal Labor Relations Authority

On July 28, 1995, the Union filed a unfair labor practice

charge with the Authority, because of the lack of a timely

response from the PTO, and because the response on June 13

did not furnish the information requested by most questions. As

remedies, the Union requested that the Agency be ordered to

respond to information requests within two weeks, where

reasonably possible, and be ordered to furnish fully the data not

yet provided.

On December 19, 1995, the Authority sent a unilateral

settlement agreement, which considers only questions #16, 17,

22 and 23. For #22 and 23, the Settlement Agreement requires

the PTO to furnish the data requested within 7 days. However,

for #16 and 17, the Settlement Agreement merely allows the

Union access to boxes of documents. The Settlement

Agreement does not require the PTO to furnish the data

requested by questions #16 and 17. The Settlement Agreement

does not addre7s that the Agency timely furnish information

upon request in the future, nor mention at all data requested by

questions #3, 5-9, 11-15 and 18, to which the Union appears

entitled under section 7114 (b)(4). On December 29, 1995,

Union sent objections to the unilateral settlement, because, as

a matter of law, the settlement does not comply with 5 U.S.C.

7114 (b)(4), with regard to data, furnish and upon request.

The Union next received the Regional Director’s decision,

dated January 24, 1996 (App. C), not to issue a complaint, and

the approval of the Settlement Agreement, which accompanies

the decision. The Regional Director’s decision agrees that

questions #11, 16, 17, 18, 22 and 23 request data. The decision

alleges that questions #3, 5-9 and 12-15 do not request data

and are non-statutory, because there is no requirement under

section 7114 (b)(4) that an agency respond to interrogatory

style questions. The decision alleges data requested by

questions #1] and 18 are not necessary or relevant to the

processing of the grievance at issue.

On February 23, 1996, the Union filed an appeal of the

Regional Director’s decision to the General Counsel of the

Authority because, as a matter of law, the Regional Director’s

decision and Settlement Agreement disregards section 7114

(b)(4), with regard to data, furnish, upon request and

necessary, and furthermore promotes litigation rather than

cooperation between the PTO and Union. The appeal cited

FLRA cases for the proposition that section 7114 (b)(4) does

prescribe a clear and mandatory duty for an agency to respond

to interrogatory style questions.

The Union next received the final decision of the General

Counsel, dated May 10, 1996 (App. B), which denied the

appeal of the Regional Director’s decision. The final decision

for the first time alleged that the information requested but not

furnished was not supported by the establishment of a

“particularized need”, citing Internal Revenue Service,

Washington, D.C. and Internal Revenue Service, Kansas City

Service Center, Kansas C. ity, Missouri, and NTEU, 50 FLRA

661 (1995), which had been decided July 31, 1995, after the

Union had filed the unfair labor practice charge. The final

decision does not explain why the appeal should be denied when

the Regional Director's decision does not mention

“particularized need”, nor cite /nternal Revenue Service. The

final decision also states: “that an activity is required to respond

to interrogatories under the Statute” is “a proposition not

established in the case law”, but cites no case law counter to the

FLRA cases cited by the Union for the proposition.

On May 22, 1996, the Union filed a motion for

reconsideration of the final decision of the General Counsel. In

the motion, the Union articulated the “particularized need” for

each item of data still requested ( App. G), noted that the final

decision did not address the issues raised in the appeal, and

again cited the FLRA cases for the Proposition that section

7114 (b)(4) does prescribe a clear and mandatory duty for an

agency to respond to interrogatory style questions. For

question #3, supra, for example, the “particularized need” was

explained as:

“3. Provide the Office policy guidelines for making

comments with regard to the character of PTO

employees to a member of a bar character committee.

The Agency states that Mr. Cooper’s comment, that

Howard Stern ‘should check the answer to that question

about ethical conduct carefully’, is consistent with Office

policy. This data is necessary to fully understand the

Office policy. The Union will use this data to evaluate

whether or not to pursue the grievance to arbitration:

depending on the content of the data, we may use this

data as evidence at an arbitration hearing. The Union

will also use this data to advise other members of the

bargaining unit.”

The Union needs the policy guidelines requested by question #3,

because the comments of James Cooper of the PTO to Howard

Stern, a member of the Maryland Bar Character Committee, is

the crux of the grievance.

In September 1996, the General Counsel of the Authority

denied the motion for reconsideration (App. D). The General

Counsel did not provide any reason why a particularized need

has not been shown for the data for question #3 and the other

questions. On July 9, 1996 and May 22, 1997, the Union

informed the Authority that the PTO had not complied with the

requirements of the unilateral Settlement Agreement. The PTO

still has not complied. The Union also asked the Authority how

the Union should now proceed to establish a particularized need

for the data requested by question #3 and the other questions.

Under 5 C.F.R. 2423.10(e), the decision of the General

Counsel of the Authority on statutory interpretations is final.

There is no way for a union to obtain review of impermissible

statutory interpretations of the General Counsel from the three

members of the Authority.

The Court of Appeals

On July 3, 1996, the Union filed the Petition for Review with

the D.C. Circuit under 5 U.S.C. 7123. The Union sought

review of impermissible statutory interpretations of 5 U.S.C.

7114 (b)(4) made by the General Counsel of the Authority, with

regard to data, furnish, upon request and necessary. On July

19, 1996, the Union filed the Statement of Issues to be Raised:

(a). Does data under 5 U.S.C. 7114 (b)(4) encompass

more than designated documents?

1(b). Does 5 U.S.C. 7114 (b)(4) require an agency to

respond to interrogatory style questions?

2. Does 5 U.S.C. 7114 (b)(4) require that an agency

furnish a written copy of the data requested?

3. Does upon request under 5 U.S.C. 7114 (b)(4)

require an agency to timely furnish data?

4(a). Under 5 U.S.C. 7114 (b)(4), may the exclusive

representative (union), rather than the agency or the

Federal Labor Relations Authority, determine what data

the union needs to discharge its representational

responsibilities?

4(b). Is data necessary under 5 U.S.C. 7114 (b)(4),

where the union requests the data in order to adequately

represent a grievant during grievance proceedings and

the agency does not state any countervailing anti-

disclosure interest in refusing to disclose the data?

On August 15, 1996, the Authority filed its certificate which

states: “The ruling under review in this case is the Authority’s

decision in U.S. Patent and Trademark Office, Case No. WA-

CA-50607 on May 10, 1996.” The Authority also filed a

motion to dismiss the Petition for Review for lack of subject

matter jurisdiction. The Authority relied on 7; urgeon v. FLRA,

677 F.2d 937 (CADC 1982) (per curiam) (71 urgeon) for the

motion.

On August 22, 1996, the Union filed an Opposition to the

motion to dismiss. The Union cited Montana Air Chapter,

supra, 898 F.2d, at 756-758, 763, for the Proposition that

courts of appeals have subject matter jurisdiction to review

Statutory interpretations made by the General Counsel of the

Authority. The Union noted that the D.C. Circuit did not

consider the issue of its jurisdiction to review statutory

interpretations of the General Counsel of the Authority in

Turgeon. The Union also cited the statement of House manager

William D. Ford in Legislative History of the Federal Service

Labor-Management Relations Statute, Title VII of the Civil

Service Reform Act of 1978, Committee Print No. 96-7,

November 19, 1979, pages 999-1000 (Legislative History),

Congressional Record, Vol. 124, Part 28, October 14, 1978,

page 38718, for the proposition that Congress intended courts

of appeals to review, under 5 U.S.C. 7123, new statutory

interpretations of section 7114 (b)(4) made by the General

Counsel of the Authority. On August 30, 1996, the Authority

filed a reply to the opposition.

On March 31, 1997, the D.C. Circuit order granted the

motion to dismiss the petition for review for lack of subject

matter jurisdiction (App. A). The order cites Jurgeon. The

order does not mention Montana Air Chapter.

On May 15, 1997, the Union filed a petition for rehearing by

the panel and a request for rehearing in banc. The Union

argued that the panel decision is in conflict with the Ninth

Circuit in Montana Air Chapter. On June 23, 1997, one D.C.

Circuit order denied the suggestion for rehearing in banc. The

other D.C. Circuit order by the panel denied the petition for

rehearing (App. E). The order does not mention Montana Air

Chapter.

REASONS FOR GRANTING THE PETITION

This Court should grant the petition in order to resolve the

conflict between the Ninth Circuit in Montana Air Chapter,

supra, and the D.C. Circuit in this case. In Montana Air

Chapter, the Ninth Circuit reviewed the General Counsel’s

decision declining to issue an unfair labor practice complaint

and held that “the General Counsel made impermissible

statutory and regulatory interpretations which formed the basis

of his decision not to issue an unfair labor practice complaint.”

898 F.2d, at 763. The Ninth Circuit found exceptions to the

presumption that the decision of the General Counsel of the

Authority declining to issue an unfair labor practice complaint

is not subject to judicial review, citing this Court in Heckler v.

Chaney, 470 U.S. 821, 833 n.4 (1985) (Chaney) and opinions

of the D.C. Circuit. The exceptions suggested by the Ninth

Circuit in Montana Air Chapter apply in the present case. In

contrast, the D.C. Circuit in this case grants the Authority’s

motion to dismiss and holds the “General Counsel’s decision

declining to issue an unfair labor practice complaint is not

subject to judicial review” (App. A). In contrast to Montana Air

Chapter, this appears to mean that, for the D.C. Circuit, there

can not be judicial review, even when the General Counsel of

the Authority makes new impermissible statutory

interpretations, and does not follow the established law.

By this case, this Court could clarify whether the General

Counsel of the Authority can decide to follow impermissible

Statutory interpretations safe from judicial review. A

presumption of nonreviewability of the General Counsel’s

decision to not issue an unfair labor practice complaint makes

essential that impermissible Statutory interpretations, which

form the basis of the decision, are subject to judicial review. The

General Counsel of the Authority should follow the correct law.

This Court could clarify whether the General Counsel’s exercise

of discretion extends to making impermissible statutory

interpretations not subject to judicial review, in view of Chaney,

supra, and Interstate Commerce Commission vy. Brotherhood of

Locomotive Engineers, 482 US. 270, 283 (1987) (BLE).

In particular, this Court could clarify whether the General

Counsel of the Authority can disregard 5 U.S.C. 7114 (b)(4),

without judicial review. This case is important to federal

employees, because a union has no way to enforce section 7114

(b)(4), when the General Counsel of the Authority does not

follow established case law and there never can be judicial

review. This case is important, because Statutory interpretations

of data, furnish, upon request and necessary arise any time any

union requests data from an agency. A union should have some

way to enforce 5 U.S.C. 7114 (b)(4). When a union claims that

the General Counsel has made impermissible statutory

interpretations, and does not follow established law, then the

union should be able to obtain judicial review.

L_ Impermissible statutory interpretations made by the

General Counsel of the Authority are subject to judicial

review under 5 U.S.C. 7123.

For insight into the crucial need for judicial review in the

context of an unfair labor charge, see the statement of House

manager William D. Ford in Legislative History, supra, at

pages 999-1000, Congressional Record, Vol. 124, Part 28,

October 14, 1978, page 38718:

“But if, in the beginning or later, the Authority refuses

to follow its mandate, we expect the courts to

vigorously defend the rights of employees and their

representatives under title VII against misinterpretation

or half-hearted enforcement by the Authority.

* = *

But when a party arrives in court claiming a failure of

the Authority to follow title VII, we expect the court to

consider the party’s claim and evaluate the Authority’s

decision thoroughly.

* ¥ >

We are, however, also realistic in our recognition that

the Authority’s task is far more difficult than that of the

National Labor Relations Board. When the Authority

is deciding an unfair labor charge against an employer,

for example, it is weighing the possible misconduct of

another Government agency. We are not blind to the

sympathy that may develop between these two Federal

entities. But we have made as clear as we can our

expectation that the Authority is to perform vigorously

its ‘special prosecutor’ functions.

Moreover, in establishing judicial review we expect

that the courts will scrutinize the actions of the

Authority with less of the deference given other

administrative agencies.”

With respect to legislative history, the D.C. Circuit has found

the statement of Representative Ford on October 14, 1978

“illuminating”. American Federation of Government

Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (CADC

1983) (“The following statement by Representative Ford is even

more illuminating”) (Scalia, Circuit Judge, opinion for the

court). The above statements of Representative Ford on the

need for judicial review are also illuminating.

His reference to “misinterpretation or half-hearted

enforcement by the Authority”, “When the Authority is deciding

an unfair labor charge against an employer”, and “our

expectation that the Autnority is to perform vigorously its

‘special prosecutor’ functions” certainly Suggests the Congress

intended some judicial review of decisions of the General

Counsel of the Authority. Under 5 U.S.C. 7118, it is the

General Counsel of the Authority, rather than the three

members, who “shall investigate the charge.” The Congress

would expect that the General Counsel of the Authority “is to

perform vigorously its ‘special prosecutor’ functions.”

Order Includes Decision

Representative Ford referred to “evaluate the Authority’s

decision thoroughly” rather than the “Authority’s order”, as in

section 7123(a). The Congress did not intend to distinguish

between “order” and “decision” in section 7123(a). The

Conference Report No. 95-1717, October 5, 1978, stated:

“B. JUDICIAL REVIEW OF THE DECISIONS OF

THE FEDERAL LABOR RELATIONS AUTHORITY

The Senate bill [S.2640] made reviewable in court

decisions of the Authority concerning unfair labor

practices, including awards of arbitrators relating to

unfair labor practices.

* * *

In the House bill [H.R.11280], unfair labor practice

decisions are appealable as in the Senate.” Legislative

History, at 821.

Thus, in 5 U.S.C. 7123(a), “Authority’s order” includes

Authority’s decision.

Authority Includes General Counsel of the Authority

Also, the Congress did not intend to distinguish between

“Authority” and the “General Counsel of the Authority” in

section 7123(a). According to 5 U.S.C. 7103 (a)(6):

“*Authority’ means the Federal Labor Relations Authority

described in section 7104(a) of this title”. Section 7104(a) then

has: “The Federal Labor Relations Authority is composed of

three members”. Thus “Authority” clearly includes the three

members of the Authority. Furthermore, section 7104 (f)(1)

begins: “The General Counsel of the Authority”, so that

Authority appears to include the General Counsel of the

Authority as well. In §.2640, August 24, 1978, section 7203(b)

had: “The Authority shall consist of three members” while

section 7203(g) had: “There is established within the Authority

an Office of General Counsel.” Legislative History, at 565-566.

The language “within” or “of the Authority” certainly suggests

that the Congress intended “Authority” to include the General

Counsel of the Authority. Moreover, in its certificate, filed

August 15, 1996, the Authority refers to the decision in this

case as the “Authority’s decision”.

Legislative History of Judicial Review

In $.2640, a union could file “complaints of unfair labor

practices... with the Authority.” Legislative History, at 583-

584. Then the General Counsel would “make final decisions as

to whether to issue notices of hearing on unfair labor practice

complaints and prosecute such complaints before the

Authority”. Legislative History, at 570. In S.2640, what

became 5 U.S.C. 7123(a) was section 7216 (f)(1), which stated:

“Any employee or agency adversely affected or

aggrieved by a final order or decision of the Authority

with respect to a matter raised as an unfair labor practice

under this section, or with respect to an exception filed

to any arbitrator’s award under section 7221(j) of this

title which involves an unfair labor practice complaint,

may obtain judicial review of such an order or decision.”

Legislative History, at 584.

The reference to “final decision” as well as “final order”

suggests that a final decision of the General Counsel “within the

Authority” was intended to be subject to judicial review. The

Conference Report, supra, Legislative History, at 821, suggests

that 5 U.S.C. 7123(a) did not change judicial review of unfair

labor practice matters from either the Senate bill or the House

bill. Hence, the Congress intended that some decisions of the

General Counsel of the Authority would be subject to judicial

review under 5 U.S.C. 7123. From the statements of Rep.

Ford, supra, the Congress intended statutory interpretations of

the General Counsel of the Authority to be subject to judicial

review under 5 U.S.C. 7123.

By statute, the three members of the Authority could

probably review statutory interpretations of the General

Counsel. However, under 5 C.F.R. 2423.10(e), the decision of

the General Counsel of the Authority on statutory

interpretations is final. There is no way for a union to obtain

review of impermissible statutory interpretations of the General

Counsel from the three members of the Authority. So then a

union should be abie to obtain judicial review of impermissible

Statutory interpretations of the General Counsel of the

Authority under 5 U.S.C. 7123.

Heckler v. Chaney

Under 5 U.S.C. 701 (a)(2), the General Counsel’s decision

declining to issue an unfair labor practice complaint is presumed

not subject to judicial review, because an agency decision not to

take enforcement action is “committed to agency discretion by

law.” Chaney, supra, 470 U.S., at 832. For the General

Counsel of the Authority, that law appears to be 5 U.S.C. 7118

(a)(1): “the General Counsel . . . may issue and cause to be

served upon the agency or labor organization a complaint.” The

word “may” connotes discretion.

However, neither section 7118 (a)({1) nor any other section

of Chapter 71 commits statutory interpretations to the

discretion of the General Counsel of the Authority. Moreover,

it is inconceivable that the Congress would intend that the

General Counsel would have discretion to make impermissible

interpretations of section 7114 (b)(4) or any statute in Chapter

71 of title 5. From the statements of Representative Ford,

supra, the Congress intended “misinterpretation or half-hearted

enforcement by the Authority” and a “failure of the Authority

to follow title VI [Chapter 71]” to be subject to judicial review.

There is no reason why the General Counsel should be beyond

the law, when exercising discretion under section 7118 (a)(1).

Thus 5 U.S.C. 701 (a)(2) does not preclude judicial review of

impermissible statutory interpretations of the General Counsel

of the Authority. Such judicial review should not restrict the

General Counsel’s discretion under section 7118 (a)(1).

This Court in Chaney noted that there may be some judicial

review in the context of nonenforcement decisions:

“We do not have in this case a refusal by the agency to

institute proceedings based solely on the belief that it

lacks jurisdiction. Nor do we have a situation where it

could justifiably be found that the agency has

‘consciously and expressly adopted a general policy’

that is so extreme as to amount to an abdication of its

Statutory responsibilities. See e.g., Adams v.

Richardson, 156 U.S. App. D.C. 267, 480 F.2d 1159

(1973) (en banc). Although we express no opinion on

whether such decisions would be unreviewable under

701(a)(2), we note that in those situations the statute

conferring authority on the agency might indicate that

such decisions were not “committed to agency

discretion.” 470 U:S., at 833 n.4.

“Thus the Court properly does not decide today that

nonenforcement decisions are unreviewable in cases

where (1) an agency flatly claims that it has no statutory

jurisdiction to reach certain conduct, ante, at 833, n.4:

(2) an agency engages in a pattern of nonenforcement of

clear statutory language, as in Adams v. Richardson,

156 U.S. App. D.C. 267, 480 F.2d 1159 (1973) (en

banc), ante, at 833, n.4;.... It may be presumed that

Congress does not intend administrative agencies, agents

of Congress’ own creation, to ignore clear jurisdictional,

regulatory, statutory, or constitutional commands... .”

470 U.S., at 839 (BRENNAN, J., concurring).

The noted exceptions to the nonreviewability presumption

involve statutory interpretations by an agency. Thus this Court

in Chaney did not appear to preclude judicial review of

impermissible statutory interpretations in nonenforcement

decisions.

ICC v. BLE

This Court in BLE, supra, held that an agency order which

denies reconsideration of a prior order, on the same record, is

not subject to judicial review. 482 U.S., at 280-284. Simply

put, “the agency’s refusal to go back over ploughed ground is

nonreviewable.” 482 U.S., at 284. The holding in BLE clearly

does not apply to this case, because the petition for review

before the D.C. Circuit was for the original final decision of the

General Counsel of the Authority, dated May 10, 1996.

However, this Court in the opinion stated:

“It does not establish, as the concurrence evidently

believes, the principle that if the agency gives a

‘reviewable’ reason for otherwise unreviewable action,

the action becomes reviewable. To demonstrate the

falsity of that proposition it is enough to observe that a

common reason for failure to prosecute an alleged

criminal violation is the prosecutor’s belief (sometimes

publicly stated) that the law will not sustain a

conviction. That is surely an eminently ‘reviewable’

proposition, in the sense that courts are well qualified to

consider the point; yet it is entirely clear that the refusal

to prosecute cannot be the subject of judicial review.”

482 US., at 283.

The statements stand for the proposition that even if the agency

gives a “reviewable” reason for otherwise unreviewable action,

the action remains unreviewable. The proposition is dicta,

unie - the action in question denies reconsideration of a prior

order. The statements responded to the opinion of STEVENS,

J., concurring in judgement, 482 U.S., at 288-291.

Even a prosecutor should follow the law. Even a prosecutor

should not be beyond all judicial review. Even if the refusal of

the General Counsel of the Authority to issue a complaint is not

subject to judicial review, it is separate and compatible that

impermissible statutory interpretations, which form the basis of

the decision, are subject to judicial review.

Unlike the Respondent in Chaney, who asked the D.C.

District Court to require the Food and Drug Administration

(FDA) to take particular enforcement actions, the Union in this

case only sought to have the D.C. Circuit rule on statutory

interpretations of 5 U.S.C. 7114 (b)(4), with regard to data,

furnish, upon request and necessary. Then the General Counsel

of the Authority could follow the correct law, when exercising

discretion under section 7118 (a)(1). The Union believes the

General Counsel should follow the correct law. Without

judicial review, there is no way to insure that the General

Counsel of the Authority will follow the correct law, when the

General Counsel makes impermissible statutory interpretations.

- _— 7

This Court should clarify whether the General Counsel’s

exercise of discretion extends to making impermissible statutory

interpretations not subject to judicial review.

II. The D.C. Circuit erred in concluding, contrary to

Montana Air Chapter, that impermissible statutory

interpretations of 5 U.S.C. 7114 (b)(4) made by the General

Counsel of the Authority are not subject to judicial review.

In Turgeon, the D.C. Circuit did not consider whether

Statutory interpretations made by the General Counsel are

subject to judicial review. In Martinez v. Smith, 768 F.2d 479

(CAl 1985) (per curiam) and American Federation of

Government Employees, Local 1749, v. FLRA, 842 F.2d 102

(CAS 1988) (per curiam), the First and Fifth Circuits considered

subject matter jurisdiction of decisions of the General Counsel

However, neither the First nor the Fifth Circuit considered

whether impermissible statutory interpretations of the General

Counsel of the Authority are subject to Judicial review. The

decision in Turgeon was prior to Chaney. Although the

decisions were after Chaney, neither the First nor the Fifth

Circuit cited Chaney. Only the Ninth Circuit in Montana Air

Chapter cited Chaney, with regard to judicial review of

decisions of the General Counsel. In Montana Air Chapter, the

Ninth Circuit held that impermissible statutory interpretations

made by the General Counsel of the Authority are subject to

judicial review. This Court should grant the petition in order to

resolve the conflict between the Ninth Circuit in Montana Air

Chapter and the D.C. Circuit in Turgeon, since the D.C. Circuit

and the Authority rely on Zurgeon.

Subject Matter Jurisdiction

In Montana Air Chapter, 898 F.2d, at 756, the Ninth Circuit

found that nonenforcement decisions of the General Counsel

may be reviewable when:

“a refusal by the agency to institute proceedings [is]

based solely on the belief that it lacks jurisdiction” or

“where it justifiably could be found that the agency has

‘consciously and expressly adopted a general policy’

that is so extreme as to amount to an abdication of its

statutory responsibilities.” quoting Chaney, 470 U.S., at

833 n. 4.

Also, the Ninth Circuit found two exceptions recognized by the

D.C. Circuit: “1) agency nonenforcement decisions are

reviewable when they are based on a belief that the agency lacks

jurisdiction”, citing Jnternational Longshoremen’s Ass'n. v.

National Mediation Bd., 785 F.2d 1098, 1100 (CADC 1986);

and “‘2) an agency’s statutory interpretations made in the course

of nonenforcement decisions are reviewable”, citing

International Union, United Automobile, Aerospace &

Agricultural Implement Workers of America v. Brock, 783 F.2d

237, 245 (CADC 1986) (/nternational Union). With respect to

the General Counsel of the Authority, the Ninth Circuit found:

“Statutory interpretations promulgated in the course of

an agency’s nonenforcement also are reviewable in their

own nght.... When the FLRA implements a statutory

interpretation in the course of a refusal to issue an unfair

labor practice complaint, ‘courts are emphatically

qualified to decide whether an agency has acted outside

of the bounds of reason.” Montana Air Chapter, 898

F.2d, at 757-758, citing /nternational Union, 783 F.2d,

at 245.

The Ninth Circuit concluded that impermissible statutory

interpretations made by the General Counsel of the Authority

are subject to judicial review.

“evaluate the Authority’s decision thoroughly”

In Montana Air Chapter, the union claimed the General

Counsel had made impermissible statutory interpretations of 5

U.S.C. 7116(a) in the context of alleged violations of 5 U.S.C.

7114(c). On judicial review, the Ninth Circuit found that the

General Counsel had made statutory interpretations:

“Thus we find that the General Counsel’s decision not

to issue an unfair labor practice complaint was based on

his belief that he lacked jurisdiction to issue such a

complaint. We therefore must examine the General

Counsel’s statutory and regulatory interpretations to

determine if his belief that he lacked jurisdiction was

correct.” 898 F.2d, at 757.

“We find that the General Counsel issued a new legal

interpretation of 5 U.S.C. 7116(a), grafting a bad faith

requirement on that section’s definition of unfair labor

practice in the context of alleged violations of 7114(c).

Such an interpretation is subject to judicial review.” 898

F.2d, at 758.

On further evaluation, the Ninth Circuit found that the

General Counsel had made impermissible statutory

interpretations:

“the General Counsel’s decision was based on the

mistaken belief that he lacked jurisdiction to issue an

unfair labor practice complaint. ... We also find that the

General Counsel made impermissible statutory and

regulatory interpretations which formed the basis of his

decision not to issue an unfair labor practice complaint.”

898 F.2d, at 763.

Discretion under 5 U.S.C. 7118 (a)(1)

The Ninth Circuit preserved the discretion of the General

Counsel to issue an unfair labor practice complaint. The Ninth

Circuit remanded the case:

“to direct the General Counsel to exercise his discretion

in accordance with this opinion’s ruling on those

interpretations. We do not hold that the General

Counsel must issue an unfair labor practice in this case.

We hold only that the General Counsel must consider

the merits of the union’s claim in accordance with his

statutory obligations and decide whether to issue such

a complaint.” 898 F.2d, at 763.

As shown in Montana Air Chapter, the General Counsel has

discretion whether to issue an unfair labor practice complaint,

when impermissible statutory interpretations are subject to

judicial review. Montana Air Chapter is consistent with both

Chaney and the statements of Representative Ford, supra, with

regard to judicial review of decisions of the General Counsel.

The Ninth Circuit followed the correct judicial proceedings.

The Court of Appeals ik

In contrast, the D.C. Circuit did not follow the correct

judicial proceedings in this case. As shown in the Union’s

Statement of Issues to be Raised, the Union claimed the General

Counsel of the Authority made impermissible statutory

interpretations of 5 U.S.C. 7114(b)(4). For deciding the

question of subject matter jurisdiction, the D.C. Circuit should

have focused on the Union’s Statement of Issues to be Raised.

Statutory interpretations, as in the Issues to be Raised, should

be subject to judicial review, as in Montana Air Chapter. In the

motion to dismiss the Petition for Review for lack of subject

matter jurisdiction, the Authority ignored the Union’s Statement

of Issues to be Raised. Accordingly, the D.C. Circuit should

have denied the Authority’s motion to dismiss.

The D.C. Circuit then should have evaluated the General

Counsel’s decision thoroughly, as in Montana Air Chapter.

When the D.C. Circuit found that the General Counsel had

made statutory interpretations of section 7114 (b)(4), then the

D.C. Circuit should have evaluated whether the interpretations

were impermissible. When the D.C. Circuit found that the

General Counsel had made _ impermissible _ statutory

interpretations of section 7114 (b)(4), then the D.C. Circuit

should have remanded the case to the Authority for the General

Counsel of the Authority to exercise his discretion whether to

issue an unfair labor practice complaint in accordance with the

D.C. Circuit’s ruling on the correct statutory interpretation of

5 U.S.C. 7114 (b)(4).

In contrast to the Ninth Circuit in Montana Air Chapter, the

D.C. Circuit did not follow the correct judicial proceedings.

This Court should grant the petition in order to resolve the

conflict between the Ninth Circuit in Montana Air Chapter and

the D.C. Circuit in this case.

Ill. The D.C. Circuit erred in concluding, contrary to

Montana Air Chapter, that the General Counsel of the

Authority made no statutory interpretations of 5 U.S.C.

7114 (b)(4) subject to judicial review in case in which the

General Counsel made statutory interpretations of data,

furnish, upon request and necessary.

In the order which denied the rehearing (App. E), in addition

to Turgeon, the D.C. Circuit cited Crowley Caribbean Transp.,

Inc. v. Pena, 37 F.3d 671, 675-677 (CADC 1994) (Crowley):

National Wildlife Federation v. EPA, 980 F.2d 765, 773

(CADC 1992) (National Wildlife Federation), International

Union, supra, 783 F.2d, at 245. Crowley, 37 F.3d, at 676,

quotes and relies upon the noted dicta in BLE, supra, 482 U.S.,

at 283. The Ninth Circuit, in Montana Air Chapter, relied on

International Union, 783 F.2d, at 245. National Wildlife

Federation, 980 F.2d, at 773, cites International Union, 783

F.2d, at 245-246; BLE, 482 U.S., at 289 & n.1 (STEVENS, J.

concurring in judgement); and Montana Air Chapter, 898 F.2d,

at 756. In the opposition to the motion to dismiss and in the

petition for rehearing, the Union cited both Jnternational Union

and National Wildlife Federation to support the Ninth Circuit

in Montana Air Chapter. Both International Union and

National Wildlife Federation appear consonant with Montana

Air Chapter. This Court should grant the petition in order to

resolve the conflict between the Ninth Circuit in Montana Air

Chapter and the D.C. Circuit in Turgeon and Crowley, since the

D.C. Circuit relied on Turgeon and Crowley in this case.

Subject Matter Jurisdiction

The order which denied the rehearing (App. E) states:

“The General Counsel’s decision in Case No. WA-CA-

50607 does not announce a new substantive statutory

interpretation, laying out a policy of general

applicability, which could be reviewable in its own

night.”

However, any interpretation of data, furnish, upon request and

necessary in 5 U.S.C. 7114 (b)(4) made by the General

Counsel, clearly lays out a “policy of general applicability.”

Statutory interpretations of data, furnish, upon request and

necessary arise any time any union requests data from an

agency. The decision of the General Counsel did not limit the

statutory interpretations to this case. They appear to apply to

any union at any time.

The D.C. Circuit did not follow the correct judicial

proceedings. The D.C. Circuit should have subject matter

jurisdiction over statutory interpretations of section 7114 (b)(4),

made by the General Counsel, since the interpretation “could be

reviewable in its own right”, according to the order. The D.C.

Circuit erred in apparently requiring the Union to first prove

that the General Counsel made a “new substantive statutory

interpretation” in order to have judicial review. Note that

Representative Ford, supra, stated:

“But when a party arrives in court claiming a failure of

the Authority to follow title VI [Chapter 71], we expect

the court to consider the party’s claim and evaluate the

Authority’s decision thoroughly.” (Emphasis added).

In contrast to the D.C. Circuit, claiming does not mean

proving. A union’s claim should determine subject matter

jurisdiction. Whether the General Counsel had announced a

“new substantive statutory interpretation” was a question for

judicial review, as in Montana Air Chapter. As shown in the

Union’s Statement of Issues to be Raised, the Union claimed the

General Counsel of the Authority made impermissible statutory

interpretations of 5 U.S.C. 71 14(b)(4), with regard to data,

furnish, upon request and necessary. For deciding the question

of subject matter jurisdiction, the D.C. Circuit should have

focused on the Union’s Statement of Issues to be Raised.

Statutory interpretations, as in the Issues to be Raised, should

be subject to judicial review, as in Montana Air Chapter. In the

motion to dismiss the Petition for Review for lack of subject

matter jurisdiction, the Authority ignored the Union’s Statement

of Issues to be Raised. Accordingly, the D.C. Circuit should

have denied the Authority’s motion to dismiss.

Statutory Interpretations

For example, the General Counsel did not require the PTO

to furnish the policy guidelines requested by question #3:

3. Provide the Office policy guidelines for making

comments with regard to the character of PTO

employees to a member of a bar character committee

According to the General Counsel, #3 does not request data.

Even if #3 did, the General Counsel said the data requested by

#3 was not supported by the establishment of a particularized

need, i.€., not necessary. The decision of the General Counsel

appears based on his statutory interpretations of data and

necessary, rather than on any question of fact.

New Statutory Interpretation of Data

The statutory interpretation of data made by the General

Counsel is stated in the decision by the Regional Director (App.

C-3), for #3 and other questions:

“The information requested in questions 3, 5, 6, 7, 8, 9,

12, 13, 14, and ‘15 constitutes interrogatory style

questions and do not request information which is

considered ‘data’ under section 7114(b)(4) of the

Statute. . . . There is no requirement under section

7114(b)(4) of the Statute that an agency respond to

questions.”

The statement is clearly a general proposition of law, not

restricted to this case. They appear to apply to any union at any

time. No FLRA cases are cited for the proposition. The

General Counsel does not follow established law on data. The

established law is that 5 U.S.C. 7114 (b)(4) does require an

agency to respond to interrogatory style questions. In the

appeal of the Regional Director’s decision to the General

Counsel, the Union cited examples of interrogatory style

questions in Department of the Air Force, Air Force Logistics

Command, and AFGE, Local 1857, 37 FLRA 987, 989, 993

(1990) and VA and AFGE, Local 3314, 28 FLRA 260, 265-

266, 273 (1987). There is no case which supports the General

Counsel. Yet in the final decision (App. B), the General Counsel

stated:

“Even assuming for the sake of argument that an activity

is required to respond to interrogatories under the

Statute (a proposition not established in the case law),

the information requested but not furnished was not

supported by the establishment of a particularized need.”

The General Counsel cited no FLRA cases to counter the Union

proposition that section 7114 (b)(4) does require an agency to

respond to interrogatory style questions. Yet the Genéral

Counsel stated the Union proposition is “not established in the

case law.”

In the motion for reconsideration of the final decision of the

General Counsel, the Union again cited the FLRA cases for the

proposition that section 7114 (b)(4) does prescribe a clear and

mandatory duty for an agency to respond to interrogatory style

questions. In the petition for rehearing before the D.C. Circuit,

the Union also cited those FLRA cases, for the examples of

interrogatory style questions. In addition, the Union cited

examples of interrogatory style questions in National Labor

Relations Board v. ACME Industrial Co., 385 U.S. 432, 434

(1967). Those cases show that the General Counsel has made

a “new substantive statutory interpretation” of data in section

7114 (b)(4), and does not follow established law.

New Statutory Interpretation of Necessary

The General Counsel did not provide any reason why a

particularized need has not been shown for the data for question

#3 and the other questions. The General Counsel did not

provide an opportunity for the Union to make a showing of

“particularized need” for #3 and the other questions. The

General Counsel does not follow the established law on

necessary, which involves the balance between the

particularized need of the union and the countervailing anti-

disclosure interests of the agency. In this case, the PTO did not

raise any countervailing anti-disclosure interest in refusing to

disclose the data requested by #3 and the other questions. The

established case law is that data is necessary under 5 U.S.C.

7114 (b)(4), where the union requests the data in order to

adequately represent a grievant during grievance proceedings

and the agency does not state any countervailing anti-disclosure

interest in refusing to disclose the data. In the petition for

rehearing before the D.C. Circuit, the Union cited the

established law in /nternal Revenue Service, supra, 50 FLRA,

at 669-671; NLRB v. FLRA, 952 F.2d 523, 531-532 (CADC

1992); U.S. Dept. of Veterans Affairs v. FLRA, 1 F.3d 19, 23

(CADC 1993); U.S. Dept. Of Justice v. FLRA, 988 F.2d 1267,

1272 (CADC 1993). The Union requested the data by question

#3 and the other questions in order to adequately represent a

grievant during grievance proceedings. By established case law,

the Union has a particularized need and the data is necessary.

The cases cited dy the Union show that the General Counsel has

made a “new substantive statutory interpretation” of necessary

in section 7114 (b)(4), and does not follow established law.

The General Counsel should follow the correct law. In this

case, the General Counsel has made “new substantive statutory

interpretations” of 5 U.S.C. 7114(b)(4), with regard to data,

furnish, upon request and necessary, which are impermissible.

A union has no way to enforce section 7114 (b)(4), when the

General Counsel of the Authority does not follow established

case law and there never can be judicial review. A union should

have some way to enforce 5 U.S.C. 7114 (b)(4). In contrast to

the Ninth Circuit in Montana Air Chapter, the D.C. Circuit did

not follow the correct judicial proceedings. This Court should

grant the petition in order to resolve the conflict between the

Ninth Circuit in Montana Air Chapter and the D.C. Circuit in

this case.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Gene M. Munson

Counsel of Record

POPA Representative

Post Office Box 2521

Arlington, Virginia 22202

(703) 308-4925

3 September 1997

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-1231 September Term, 1996

Patent Office Professional Association, U.S. COURT

Petitioner, OF APPEALS

FOR DISTRICT

Vv. OF COLUMBIA

CIRCUIT - FILED

Federal Labor Relations Authority, MAR 31 1997

Respondent. CLERK

BEFORE: Wald, Williams, and Tatel, Circuit Judges

ORDER

Upon consideration of the motion to dismiss the

petition for review, the opposition thereto, and the reply, it is

ORDERED that the motion to dismiss be granted.

The General Counsel’s decision declining to issue an unfair

labor practice complaint is not subject to judicial review under

the Civil Service Reform Act of 1978, 5 U.S.C. §7123. See

ity, 677 F.2d 937

(D.C.Cir. 1982) (per curiam).

The Clerk is directed to withhold issuance of the

mandate herein until seven days after disposition of any timely

petition for rehearing. See D.C. Cir. Rule 41.

Per Curiam

(S)

APPENDIX A

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

607 14" Street NW - Washington, D.C. 20424-0001

(202) 482-6600 FAX: (202) 482-6608

OFFICE OF THE GENERAL COUNSEL May 10, 1996

Gene Munson, Representative

Patent Office Professional Association

U.S. Patent & Trademark Office

P.O. Box 2521

Arlington, VA 22202

Re: U.S. Patent & Trademark Office

Case No. WA-CA-50607

Dear Mr. Munson:

Your appeal of the dismissal of certain allegations in the unfair

labor practice charge in this case, and the approval of a

Settlement Agreement concerning other allegations in this

charge by the Acting Washington Regional Director has been

carefully considered.

Your appeal is denied because the Acting Regional Director

correctly concluded that the Activity did not act inconsistent

with section 7114(b)(4) of the Federal Service Labor-

Management Relations Statute by the manner in which it

reSponded to certain of your requests for information. Even

assuming for the sake of argument that an activity is required to

respond to interrogatories under the Statute (a proposition not

established in the case law), the information requested but not

furnished was not supported by the establishment of a

particularized need. Internal Revenue Service, Washington.

APPENDIX B

D.C. andI LR Raiiten City Service C

Kansas City Missoun, 50 FLRA 661 (1995) (requests must

articulate with specificity why the information is needed, the

uses to which the union will put the information and the

connection between those uses and the union’s representational

responsibilities; the request must contain sufficient particularity

to allow an agency to make a decision on the request).

The Settlement Agreement of those allegations found

meritorious also is consistent with the purposes and polices of

the Statute and provides the Union with certain of the requested

information in a manner that is consistent with the Privacy Act

and accommodates the Union’s interests in obtaining the

information and the Activity’s countervailing anti-disclosure

interests. Accordingly, your appeal of the approval of the

Settlement Agreement is denied.

Since the evidence does not establish that the allegations which

are the subject of your appeal are supported by evidence to

establish a violation of the Statute and since the Settlement

Agreement furthers the purposes and polices of the Statute, the

case is returned to the Region and the Settlement Agreement

may now be implemented.

For the General Counsel.

Sincerely yours,

(S)

David L. Feder

Deputy General Counsel

cc: Regional Director, Washington

Barbara Mintz, Esquire, Office of the General Counsel,

Patent & Trademark Office, 2101 Crystal Plaza Arcade,

Suite 225, Arlington, VA 22202

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON REGIONAL OFFICE

1255 22™ Street, N.W., Suite 400

Washington, D.C. 20037-1206

(202) 653-8500 FAX: (202) 653-5091

January 24, 1996

CERTIFIED MAIL,

RETURN RECEIPT REQUESTED

Gene Munson, Representative

Patent Office Professional Association

U.S. Patent & Trademark Office

P.O. Box 2521

Arlington, VA 22202

Re: U.S. Patent & Trademark Office

Case No. WA-CA-50607

Dear Mr. Munson:

This office has investigated the unfair labor practice charge you

filed. I have carefully considered all of the evidence and

conclude that issuance of a complaint is not warranted.

The amended charge alleges that the U.S. Patent and Trademark

Office (PTO) failed to timely provide the Patent Office

Professional Association (Union) with certain requested

information as required by 5 U.S.C. section 71 14(b)(4) of the

Federal Service Labor-Management Relations Statute (Statute).

The investigation shows that on January 23, 1995, the Union,

APPENDIX C

C-2

through you, submitted a request for information under

section 7114(b)(4) of the Statute. The information request

consisted of twenty-six (26) individual questions. The Union

alleges that the information is necessary and relevant to a

grievance it filed which alleged, inter alia, that the PTO

delayed the processing of a bargaining unit employee’s

employment verification request for the character evaluation

section of the Maryland Bar, and that the employee received

disparate treatment on his request to have the appropriate

paperwork processed to facilitate his early-out retirement.

The investigation further shows that from January through

June 1995, you spoke with PTO Labor Relations Specialist

Matthew Kline several times and inquired as to when the PTO

would provide the requested information. According to you,

Kline repeatedly stated that the PTO was “working on it.”

During this time period, PTO and the Union agreed that the

pending grievance would not be decided until the PTO had

responded to the information request. The parties also agreed

that the Union would be given a chance to file additional

grievance papers once it had received the requested

information.

On June 12, 1995, the PTO responded to the Union’s request

for information. According to the Union, PTO’s response

was untimely and incomplete. As a result, on July 13, 1995,

the Union filed a renewed request for information with PTO

with respect to those questions it found unsatisfactory,

specifically, questions 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15,

16, 17, 18, 21, 22 and 23. On July 28, 1995, the Union filed

the instant unfair labor practice. Although, the PTO

submitted its response to the Union’s second information

request on October 16, 1995, the Union remains dissatisfied

with the PTO’s response to all but question 4, and filed a

third request for information on November 3, 1995.

C-3

As the Union alleges that several of the PTO’s responses are

inadequate, I will address each disputed request for

information as follows:

Questions 3, 5, 6, 7, 8, 9, 12, 13, 14, and 15:

Under section 7114(b)(4) of the Statute, the exclusive

representative is entitled to information that is necessary to

enable it to carry out effectively its representational functions

and responsibilities. As relevant here, a union is entitled to

data which will assist it in the investigation, evaluation, and

processing of a grievance. See Department of Health and

Human Services, Social Security Administration, Baltimore,

Maryland and Social Security Administration, New Bedford

District Office, New Bedford, Massachusetts, 37 FLRA 1277,

1286 (1990) and cases cited therein.

The information requested in questions 3, 5, 6, 7, 8, 9, 12, 13,

14, and 15 constitutes interrogatory style questions and do

not request information which is considered “data” under

section 7114(b)(4) of the Statute. For example, in questions

5, 6 and 8 the Union asks if a certain supervisor followed

office policy. In addition, questions 7, 9, 12, 13, 14 and 15

are also interrogatory style questions, which seek to establish

certain facts surrounding the event involved in the grievance

and do not request data. There is no requirement under

section 7114(b)(4) of the Statute that an agency respond to

questions. Such questions are more appropriately handled

during collective bargaining or grievance processing. While

an agency may be required to respond to requests for

information, where it could extract such information from

other existing data, see, for example, Department of the Air

Force, Air Force Logistics Command, Sacramento Air

Logistics Center, McClellan Air Force Base California, 37

FLRA 987 (1990), the questions referenced above do not

seek data which is normally maintained by the PTO. Nor can

C-4

the information requested be extrapolated from existing data

which is normally maintained by the PTO. As such, the PTO

was not required under section 7114(b)(4) to provide answers

to these questions. The fact that the PTO did respond to

these questions does not create any further obligation under

the Statute.

Question 11:

Question 11 requests the style and court date of a law suit

referenced by the PTO in its response to the grievance. The

PTO stated in its response to the informal grievance that the

Employee Relations Division had discontinued the completion

of state bar character questionnaires because of the potential

for lawsuits by employees. The PTO also stated that one such

suit had been filed.

The PTO has stated that it is not their policy to complete

character questionnaires from state bars. The background

and reasoning which motivated the PTO to formulate this

policy is not relevant to the processing of the grievance which

focuses on whether PTO followed its policy with respect to a

particular employee. Thus, the style and court date of a

related law suit is not relevant or necessary to the processing

of this particular grievance.

Questions 16 and 17:

In questions 16 and 17, the Union requested that the PTO

provide the number of employment verification requests

received from the Maryland Bar and other state bars during

1991-1994. The PTO provided this information for 1994, but

maintained that the information reugested for 1991-1993 was

not necessary or relevant for the processing of the grievance

and was not reasonably available. According to the PTO, it

receives thousands of employment verifications each year.

C-5

Those verifications are not categorized in any way and those

received in 1991 through 1993 are presently located in off-site

storage. As such, the PTO did not provide the information

requested for 1991-1993.

While it is the PTO’s position that it is not required to provide

the above noted information, it has offered, as part of a

Settlement Agreement, to provide the Union access to the

boxes of documents in which this information is contained.

The investigation shows that the PTO provided the

information which reasonable available and necessary to the

processing of the grievance, that is the 1994 information, and

that the information requested for 1991 through 1993 is not

reasonably available because it is not normally maintained by

the PTO. Moreover, because the PTO has offered to provide

the Union with access to the remainder of the information, I

find that the PTO has not violated the Statute with respect to

the above noted requests for information.

Question 18:

Question 18 requests that the PTO provide the number of

employment verification inquiries completed by Mr. Cooper

and Mr. Dolder. The investigation shows that the PTO

provided this information in both its June and October _

responses by stating that such forms are filled out by the

payroll processing employees. Mr. Cooper is not a payroll

processing employee, and the Union is aware of this fact. Mr.

Dolder works in the payroll processing division, however, the

Union has not demonstrated that the identity of employees

who fill out employment verification requests is necessary or

relevant to the processing of the grievance at issue.

Question 21:

Question 21 requests that the PTO provide a copy of all

C-6

policy directives that concern plans for discontinued

retirement. I find that the PTO provided the information

requested information in its June response which listed all

such relevant documents and noted that copies of them were

attached to the PTO’s informal grievance response.

Questions 22 and 23:

Questions 22 and 23 request that the PTO list the

discontinued service retirements approved for 1994 and the

early out retirements approved with effective retirement dates

in 1995. PTO initially responded that such information was

not necessary and relevant to the grievance. However, in a

subsequent offer of settlement, the PTO agreed to provide the

information requested in a sanitized form within 7 days of the

signing of the Settlement Agreement.

By letter dated December 19, 1995, you were informed of the

proposed Settlement Agreement, and given an opportunity to

sign the settlement or to present the Union’s written

objections. By letter dated December 29, 1995, you objected

to the Settlement Agreement alleging that it was inadequate

because it did not insure that all information requested would

be provided and because the PTO independently violated the

Statute by its delay in providing the requested information.

I have considered your objections, but conclude that it would

effectuate the purposes of the Statute to go forward with the

Settlement Agreement unilaterally. While the PTO’s initial

response occurred five months after the request, the parties

maintained a dialogue during that time period. In addition,

the grievant was not prejudiced by the delay because the

Union and the PTO agreed that grievant could submit a more

detailed grievance once the information was received. The

grievant did indeed file a more detailed grievance on July 7,

1995. Moreover, the PTO provided a bulk of the information

C-7

it was required to produce under section 71 14(b)(4) of the

Statute, as is willing to provide the remaining information

pursuant to a Settlement Agreement.

Based on the foregoing facts and circumstances, I am refusing

to issue a complaint in this case with regard to certain

allegations hereby dismissed. I am approving unilaterally the

Settlement Agreement attached hereto which effectively

settles those aspects of the charge that would otherwise be

considered meritorious.

If you do not agree with my decision, you may file an appeal

with the General Counsel at the address below. Please send

me a copy of your appeal. You must notify all other parties

that you have filed an appeal with the General Counsel. You

are not required to send a copy of the appeal to the other

parties.

Any appeal which you file must contain a complete statement

of the reasons why you disagree with my decision. Your

appeal must be filed with the General Counsel of the Federal

Labor Relations Authority, 607 14" Street, N.W., Suite 210,

Washington, D.C. 20424-0001. If you file your appeal by

mail, it must be postmarked no later than February 23, 1996.

If there is no postmark evident on the mailing, it will be

presumed to have been mailed 5 days prior to receipt by the

Office of the General Counsel. If you deliver your appeal

personally, it must be received by the Office of the General

Counsel no later than February 23, 1996.

If you need more time to file your appeal, you may write to

the General Counsel to request an extension. A request for

extension, whether mailed or delivered in person, must be

received by the Office of the General Counsel at least 5 days

before the date your appeal is due. You will find the

procedures and time limits for filing an appeal in Vol. 5, Code

C-8

of Federal Regulations, sections 2423.10(c) and (d). These

regulations may be found in any Authority office, public law

library, and some large general purpose libraries and Federal

Personnel Offices.

Sincerely,

(S)

Laurence M. Evans

Acting Regional Director

CC:

Barbara Mintz, Esq

Office of the General Counsel

Patent and Trademark Office

2101 Crystal Plaza Arcade

Suite 2225

Arlington, VA 22202

Michael D. Mossaman

Office of Appeals

Office of the General Counsel

Federal Labor Relations Authority

C-9

United States of America

FEDERAL LABOR RELATIONS AUTHORITY

. )

U.S. PATENT AND TRADEMARK )

OFFICE )

(Respondent) ) CASE NO.

JWA-CA-50607

and )

)

PATENT OFFICE PROFESSIONAL )

ASSOCIATION )

(Charging Party/Union) )

)

SETTLEMENT AGREEMENT

(AGENCY RESPONDENT)

The undersigned Agency and the undersigned Charging

Party in settlement of the above matter, and subject to the

approval of the Regional Director on behalf of the Federal

Labor Relations Authority, HEREBY AGREE AS FOLLOWS:

The Patent Office will provide the following sanitized

information to the Union within 7 days of the Regional

Director’s approval of this agreement:

The Discontinued Service Retirements approved for

fiscal year 1994. For each person: list the position, the

Group, if an examiner, the circumstances for retirement

(e.g. reduction-in-force), when approved, the effective

retirement date at the time of approval and the actual

retirement date.

The early out retirements approved with the effective

: C-10

retirement dates in fiscal year 1995. For each person:

list the position, the Group if an examiner, when

approved, the effective date athe time of the approval

and the actual retirement date.

The Patent Office will also provide the Union with access to the

following information within 7 days of the Regional Director’s

approval of this agreement:

All employment verification inquiries received by the

Patent Office during 1991, 1992 and 1993.

REFUSAL TO ISSUE COMPLAINT - In the event the

Charging Party fails or refuses to become a party to this

Agreement, and if the Regional Director concludes that it will

effectuate the policies of Chapter 71 of Title 5 of the U.S.C., he

shall decline to issue a Complaint herein and this Agreement

shall be between the Agency and the undersigned Regional

Director. A review of such action may be obtained pursuant to

Section 2423.11(b)(2) of the Regulations of the Federal Labor

Relations Authority if an appeal is filed within twenty-five (25)

days thereof. This Agreement is contingent upon the General

Counsel sustaining the Regional Director’s action in the event

of an appeal. Approval of this Agreement by the Regional

Director shall constitute withdrawal of any Complaint(s) and

Notice of Hearing heretofore issued in this case.

PERFORMANCE - Performance by the Agency of the

terms and provisions of this Agreement shall commence

immediately after the Agreement is approved by the Regional

Director or, in the event the Charging Party does not enter into

this Agreement, performance shall commence immediately upon

receipt by the Agency of advice that no appeal has been filed or

that the General Counsel has sustained the Regional Director.

NOTIFICATION OF COMPLIANCE - The undersigned

C-11

(party)(parties) to this Agreement will notify the Regional

Director in writing what steps the Agency has taken to comply

herewith. Such notification shall be made within five (5) days,

and again after sixty (60) days, from the date of the approval of

this Agreement, or, in the event the Charging Party does not

enter into this Agreement, after the receipt of advice that no

appeal has been filed or that the General Counsel has sustained

the Regional Director.

COMPLIANCE WITH SETTLEMENT AGREEMENT -

Contingent upon compliance with the terms and provisions

hereof, no further action shall be taken in the above case.

U.S. Patent and Trademark Office

(Respondent/Agency)

By: Deanna Shepard, Chief

Labor Relations

ls/ J. Carson Cooper for Deanna Shepard

Patent Office Professional Association

(Charging Party/Union)

By: Mr. Gene Munson

POPA Representative

(NS)

(Signature)

Approved: January 22, 1996

By:

Michael W. Doheny

Regional Director

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

607 14™ Street NW - Washington, D.C. 20424-0001

(202) 482-6600 FAX: (202) 482-6608

OFFICE OF THE GENERAL COUNSEL

September 18, 1996

COR R ECTE nr COPY

Gene Munson, Representative

Patent Office Professional Association

U.S. Patent & Trademark Office

P.O. Box 2521

Arlington, VA 22202

Re: U.S. Patent & Trademark Office

Case No. WA-CA-50607

Dear Mr. Munson:

Your Motion for Reconsideration of the denial of your appeal

of the Regional Director’s decision to dismiss your unfair labor

practice charge in this case has been carefully considered.

In your Motion for Reconsideration you maintain that the appeal

decision fails to address whether section 7114(b)(4) of the

Federal Service Labor-Management Relations Statute requires

an agency to provide responses to interrogatory style questions.

Evening assuming that responses to interrogatory style

questions do constitute data under the meaning of the Statute,

the Union has failed to establish a “particularized need” for the

information. As stated in the appeal decision, the Authority has

APPENDIX D

held that a request for information must establish a

“particularized need” for the information. Internal Revenue

Service Washi DC I LR Servi

Kansas City Service Center, Kansas Citv, Missouri, 50 FLRA

661 (1995). Absent a showing of particularized need, there is

no obligation to provide the requested information under section

7114(b)(4).

Moreover, even assuming that the Statute requires good faith

responses to questions to facilitate collective bargaining, in this

case, the agency responded to the request and there is no

evidence that the agency refused to meet with the Union to

discuss settlement of the dispute.

Accordingly, your Motion for Reconsideration is denied.

For the General Counsel.

Sincerely yours,

(S)

David L. Feder

Deputy General Counsel

cc: Regional Director, Washington

Barbara Mintz, Esquire, Office of the General

Counsel, Patent & Trademark Office, 2101 Crystal

Plaza Arcade, Suite 225, Arlington, VA 22202

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-1231 September Term, 1996

Patent Office Professional Association, U.S. COURT

Petitioner, OF APPEALS

FOR THE

v. DISTRICT OF

COLUMBIA

Federal Labor Relations Authority, CIRCUIT - FILED

Respondent. IUN 23 1997

CLERK

BEFORE: Wald. Williams, and Tatel, Circuit Judges

ORDER

Upon consideration of the petition for rehearing by the

panel, it is

ORDERED that the petition be denied. As a general

tule, the General Counsel’s exercise of discretion not to file

an unfair labor practice complaint is not subject to judicial

review under the Civil Service Reform Act of 1978, 5 U.S.C.

§ 7123. See i ity,

677 F.2d 937 (D.C. Cir. 1982) (per curiam). Petitioner has

not rebutted the presumption of unreviewability by

establishing that the case fit under the exception it claimed.

The General Counsel’s decision in Case No. WA-CA-50607

does not announce a new substantive Statutory interpretation,

laying out a policy of general applicability, which could be

reviewable in its own right. See i

Inc. v. Pena, 37 F.3d 671, 675-77 (D.C. Cir. 1994); National

Wildlife Federation vy EPA 980 F.2d 765, 773 (D.C. Cir.

APPENDIX E

1992); International Union, United Automobile, Aerospace &

Agricultural Implement Workers v. Brock, 783 F.2d 237, 245

(D.C. Cir. 1986).

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: (S)

Deputy Clerk/LD

5 U.S.C. 551. Definitions

For the purposes of this subchapter-

x » *

(6) “order” means the whole Or a part of a final

disposition, whether affirmative , negative, injunctive, or

declaratory in form, of an agency in a matter other than

rule making but including licensing:

* ” *

(13) “agency action” includes the whole or a part of an

agency rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act; and

* * *

5 U.S.C. 701. Application; definitions

(a) This chapter applies, according to the provisions thereof,

except to the extent that-

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by

law.

(b) For the purpose of this chapter-

* * *

(2) “Person”, “rule”, “order”, “license”, “sanction”,

“relief”, and” agency action” have the meanings given

them by section 551 of this title.

APPENDIX F

F-2

35 U.S.C. 706. Scope of Review

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency action.

The reviewing court shall--

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings,

and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity,

or limitations, or short of statutory right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title

or otherwise reviewed on the record of an

agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the court shall review

the whole record or those parts of it cited by a party, and due

account shall be taken of the rule of prejudicial error.

F-3

35 U.S.C. 7104. Federal Labor Relations Authority

(a) The Federal Labor Relations Authority is composed of three

members, not more than 2 of whom may be adherents of the

same political party. No member shall engage in any other

business or employment or hold another office or position in the

Government of the United States except as otherwise provided

by law.

(b) Members of the Authority shall be appointed by the

President by and with the advice and consent of the Senate, and

may be removed by the President only upon notice and hearing

and only for inefficiency, neglect of duty, or malfeasance in

office. The President shall designate one member to serve as

Chairman of the Authority. The Chairman is the chief executive

and administrative officer of the Authority.

5 years. An individual chosen to fill a vacancy shall be

appointed for the unexpired term of the member replaced. The

term of any member shall not expire before the earlier of-

(1) the date on which the member’s successor takes

office, or

(2) the last day of the Congress beginning after the date

on which the member’s term of office would (but for

this paragraph) expire.

(d) A vacancy in the Authority shall not impair the right of the

remaining members to exercise all of the powers of the

Authority. ;

(e) The Authority shall make an annual report to the President

for transmittal to the Congress which shall include information

as to the cases it has heard and the decisions it has rendered.

F-4

(f)(1) The General Counsel of the Authority shall be appointed

by the President, by and with the advice and consent of the

Senate, for a term of 5 years. The General Counsel may be

removed at any time by the President. The General Counsel

shall hold no other office or position in the Government of the

United States except as provided by law.

(2) The General Counsel may--

(A) investigate alleged unfair labor practices under this

chapter,

(B) file and prosecute complaints under this chapter, and

Authority may prescribe.

(3) The General Counsel shall have direct authority over, and

responsibility for, all employees in the office of General Counsel,

including employees of the General Counsel in the regional

offices of the Authority.

F-5

35 U.S.C. 7105. Powers and duties of the Authority

(a)(1) The Authority shall provide leadership in

establishing policies and guidance relating to matters under

this chapter, and, except as otherwise provided, shall be

responsible for carrying out the purpose of this chapter.

(2) The Authority shall, to the extent provided in this

chapter and in accordance with regulations prescribed by the

Authority--

(A) determine the appropriateness of units for

labor organization representation under section 7112

of this title;

(B) supervise or conduct elections to

determine whether a labor organization has been

selected as an exclusive representative by a majority of

the employees in an appropriate unit and otherwise

administer the provisions of section 7111 of this title

relating to the according of exclusive recognition to

labor organizations;

relating to the granting of national consultation rights

under section 7113 of this title;

(D) prescribe criteria and resolve issues

relating to determining compelling need for agency

rules or regulations under section 7117(b) of this title;

(E) resolve issues relating to the duty to

bargain in good faith under section 7117(c) of this

title;

(F) prescribe criteria relating to the granting of

F-6

consultation rights with respect to conditions of

employment under section 7117(d) of this title;

(G) conduct hearings and resolve complaints

of unfair labor practices under section 7118 of this

title;

(H) resolve exceptions to arbitrator’s awards

under section 7122 of this title; and

(I) take such other actions as are necessary and

appropriate to effectively administer the provisions of

this chapter.

(b) The Authority shall adopt an official seal which

shall be judicially noticed.

about the District of Columbia, but the Authority may meet

and exercise any or all of its powers at any time or place.

Except as otherwise expressly provided by law, the Authority

may, by one or more of its members or by such agents as it

may designate, make any appropriate inquiry necessary to

carry out its duties wherever persons subject to this chapter

are located. Any member who participates in the inquiry shall

not be disqualified from later participating in a decision of the

Authority in any case relating to the inquiry.

(d) The Authority shall appoint an Executive Director

and such regional directors, administrative law judges under

section 3105 of this title, and other individuals as it may from

time to time find necessary for the proper performance of its

functions. The Authority may delegate to officers and

employees appointed under this subsection authority to

perform such duties and make such expenditures as may be

necessary.

F-7

(e)(1) The Authority may delegate to any regional

director its authority under this chapter--

(A) to determine whether a group of

employees is an appropriate unit;

(B) to conduct investigations and to provide

for hearings;

representation exists and to direct an election; and

(D) to supervise or conduct secret ballot

elections and certify the results thereof.

(2) The Authority may delegate to any

administrative law judge appointed under subsection (d) of

this section its authority under section 7118 of this title to

determine whether any person has engaged in or is engaging

in an unfair labor practice.

(f) If the Authority delegates any authority to any

regional director or administrative law judge to take any

action pursuant to subsection (e) of this section, the Authority

may, upon application by any interested person filed within 60

days after the date of the action, review such action, but the

review shall not, unless specifically ordered by the Authority,

operate as a stay of action. The Authority may affirm,

modify, or reverse any action reviewed under this subsection.

If the Authority does not undertake to grant review of the

action under this subsection within 60 days after the later of--

(1) the date of the action; or

(2) thé date of the filing of any application

under this subsection for review of the action:

the action shall become the action of the Authority at the end

of such 60-day period.

F-8

(g) In order to carry out its functions under this

chapter, the Authority may--

(1) hold hearings;

(2) administer oaths, take the testimony or

deposition of any person under oath, and issue

supbenas as provided in section 7132 of this title; and

(3) may require an agency or a labor

organization to cease and desist from violations of this

chapter and require it to take any remedial action it

considers appropriate to carry out the policies of this

chapter.

(h) Except as provided in section 518 of title 28,

relating to litigation before the Supreme Court, attorneys

designated by the Authority may appear for the Authority and

represent the Authority in any civil action brought in

connection with any function carried out by the Authority

pursuant to this title or as otherwise authorized by law.

(i) In the exercise of the functions of the Authority

under this title, the Authority may request from the Director

of the Office of Personnel Management an advisory opinion

concerning the proper interpretation of rules, regulations, or

policy directives issued by the Office of Personnel

Management in connection with any matter before the

Authority.

F-9

35 U.S.C. 7118. Prevention of unfair labor practices

(a)(1) If any agency or labor organization is charged

by any person with having engaged in or engaging in an unfair

labor practice, the General Counsel shall investigate the

charge and may issue and cause to be served upon the agency

or labor organization a complaint. In any Case in which the

General Counsel does not issue a complaint because the

charge fails to state an unfair labor practice, the General

Counsel shall provide the person making the charge a written

statement of the reasons for not issuing a complaint.

(2) Any complaint under paragraph (1) of this

subsection shall contain a notice--

(A) of the charge;

(B) that a hearing will be held before the

Authority (or any member thereof or before an

individual employed by the authority and designated

for such purpose); and

(3) The labor organization or agency involved shall

have the right to file an answer to the Original and any

amended complaint and to appear in person or otherwise and

give testimony at the time and place fixed in the complaint for

the hearing.

(4)(A) Except as provided in subparagraph (B) of this

paragraph, no complaint shall be issued on any alleged unfair

labor practice which occurred more than 6 months before the

filing of the charge with the Authority.

—_ (B) If the General Counsel determines that the person

filing any charge was prevented from filing the charge during

6-month period referred to in subparagraph (A) of this

F-10

paragraph by reason of--

(i) any failure of the agency or labor

organization against which the charge is made to

perform a duty owed to the person, or

(ii) any concealment which prevented

discovery of the alleged unfair labor practice during

the 6-month period,

the General Counsel may issue a complaint based on the

charge if the charge was filed during the 6-month period

beginning on the day of the discovery by the person of the

alleged unfair labor practice.

(5) The General Counsel may prescribe regulations

providing for informal methods by which the alleged unfair

labor practice may be resolved prior to the issuance of a

complaint.

(6) The Authority (or any member thereof or any

individual employed by the Authority and designated for such

purpose) shall conduct a hearing on the complaint not earlier

than 5 days after the date on which-the complaint is served.

In the discretion of the individual or individuals conducting

the hearing, any person involved may be allowed to intervene

in the hearing and to present testimony. Any such hearing

shall, to the extent practicable, be conducted in accordance

with the provisions of subchapter II of chapter 5 of this title,

except that the parties shall not be bound by rules of evidence,

whether statutory, common law, or adopted by a court. A

transcript shall be kept of the hearing. After such a hearing

the Authority, in its discretion, may upon notice receive

further evidence or hear argument.

(7) If the Authority (or any member thereof or any

individual employed by the Authority and designated for such

F-11

(A) to cease and desist from any such unfair

labor practice in which the agency or labor

Organization is engaged:

(B) requiring the parties to renegotiate a

collective bargaining agreement in accordane with the

order of the Authority and requiring that the

agreement, as amended, be given retroactive effect:

with backpay in accordance with section 5596 of this

title; or

(D) including any combination of the actions

described in subparagraphs(A) through (C) of this

(8) If the individual or indivduals conducting the

hearing determine that the preponderance of the evidence

received fails to demonstrate that the agency or labor

Organization named in the complain has engaged in or is

engaging in an unfair labor practice, the individual or

individuals shall state in writing thei: findings of fact and shall

—

F-12

issue an order dismissing the complaint.

(b) In connection with any matter before the Authority

in any proceeding under this section, the Authority may

request, in accordance with the provisions of section 7105(i)

of this title, from the Director of the Office of Personnel

Management an advisory opinion concerning the proper

interpretation of rules, regulations, or other policy directives

issued by the Office of Personnel Management.

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35 U.S.C. 7123. Judicial review; enforcement

(a) Any person aggrieved by any final order of the

Authority other than an order under--

(1) section 7122 of this title (involving an

award by an arbitrator), unless the order involves an

unfair labor practice under section 7118 of this title, or

(2) section 7112 of this title (involving an

appropriate unit determination), may, during the 60-

day period beginning on the date on which the order

was issued, institute an action for judicial review of

the Authority’s order in the United States court of

appeal in the circuit in which the person resides or

transacts business or in the United States Court of

Appeals for the District of Columbia.

(b) The Authority may petition any appropriate United

States court of appeals for the enforcement of any order of

the Authority and for appropriate temporary relief or

restraining order.

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unless the court specifically orders the stay. Review of the

Authority’s order shall be on the record in accordance with

section 706 of this title. No objection that has not been urged

before the Authority, or its designee, shall be considered by -

the court, unless the failure or neglect to urge the objection is

excused because of extraordinary circumstances. The findings

of the Authority with respect to questions of fact, if supported

by substantial evidence on the record considered as a whole,

shall be conclusive. If any person applies to the court for

leave to adduce additional evidence and shows to the

satisfaction of the court that the additional evidence is

material and that there were reasonable grounds for the failure

to adduce the evidence in the hearing before the Authority, or

its designee, the court may order the additional evidence to be

taken before the Authority, or its designee, and to be made a

part of the record. The Authority may modify its findings as

to the facts, or make new findings by reason of additional

evidence so taken and filed. The Authority shall file its

modified or new findings, which, with respect to questions of

fact, if supported by substantial evidence on the record

considered as a whole, shall be conclusive. The Authority

shall file its recommendations, if any, for the modification or

setting aside of its original order. Upon the filing of the

record with the court, the jurisdiction of the court shall be

exclusive and its judgment and decree shall be final, except

that the judgment and decree shall be subject to review by the

Supreme Court of the United States upon writ of certiorari or

certification as provided in section 1254 of title 28.

(d) The Authority may, upon issuance of a complaint

as provided in section 7118 of this title charging that any

person has engaged in or is engaging in an unfair labor

practice, petition any United States district court within any

district in which the unfair labor practice in question is alleged

to have occurred or in which such person resides or transacts

business for appropriate temporary relief (including a

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restraining order). Upon the filing of the petition, the court

shall cause notice thereof to be served upon the person, and

thereupon shall have jurisdiction to grant any temporary relief

(including a temporary restraining order) it considers just and

proper. A court shall not grant any temporary relief under

this section if it would interfere with the ability of the agency

to Carry out its essential functions or if the Authority fails to

establish probable cause that an unfair labor practice is being

committed.

DATA REQUESTED

Under section 7114 (b)(4), the Union requests the following

data which the Agency has not furnished (the numbers

correspond to the numbers in the original request of January 23,

1995):

3. Provide the Office policy guidelines for making

comments with regard to the character of PTO employees to

a member of a bar character committee.

The Agency states that Mr. Cooper's comment, that Howard

Stern "should check the answer to that question about ethical

conduct carefully", is consistent with Office policy. This data

is necessary to fully understand the Office policy. The Union

will use this data to evaluate whether or not to pursue the

grievance to arbitration: depending on the content of the data,

we may use this data as evidence at an arbitration hearing. The

Union will also use this data to advise other members of the

bargaining unit.

5. Did the Office direct Mr. Cooper to make such a

comment when he said that Howard Stern "should check the

answer to that question about ethical conduct carefully"?

Answer yes or no.

This data is necessary to fully understand the role and

conduct of James Cooper and the Agency in making negative

comments to a member of the Maryland Bar Character

Committee. The Union will use this data to evaluate whether or

not to pursue the grievance to arbitration: depending on the

content of the data, we may use this data as evidence at an

arbitration hearing. ~

6. Did Mr. Cooper follow Office policy when he said to

Howard Stern that Mr. Silverberg had committed a "serious

APPENDIX G

G-2

ethical violation"? Answer yes or no. If yes, did the Office

direct Mr. Cooper to make such a comment? Answer yes or no.

This data is necessary to fully understand the role and

conduct of James Cooper and the Agency in making negative

comments to a member of the Maryland Bar Character

Committee. The Union will use this data to evaluate whether or

not to pursue the grievance to arbitration; depending on the

content of the data, we may use this data as evidence at an

arbitration hearing.

7. With regard to Mr. Silverberg and other PTO employees,

will the Office allow Mr. Cooper or someone else to continue

to tell a member of a bar character committee that he "should

check the answer to that question about ethical conduct

carefully"? Answer yes or no. If no, what will the Office do to

prevent such conduct by Mr. Cooper or someone else in the

future?

This data is necessary to fully understand Office policy. The

Union wil use this data to evaluate whether or not to pursue the

grievance to arbitration, depending on the content of the data,

we may use this data as evidence at an arbitration hearing. The

Union will also use this data to advise other members of the

bargaining unit.

8. Did Mr. Cooper follow Office policy when he said to

Howard Stern that the PTO did not respond to inquiries from

state bar; because of objections from POPA? Answer yes or

no. If yes, did the Office direct Mr. Cooper to make such a

statement? Answer yes or no.

This data is necessary to fully understand Office policy and

the role and conduct of James Cooper and the Agency in

making comments to a member of the Maryland Bar Character

Committee. The Union will use this data to evaluate whether

or not to pursue the grievance to arbitration; depending on the

G-3

content of the data, we may use this data as evidence at an

arbitration hearing. The Union will also use this data to advise

other members of the bargaining unit.

9. When did Deanna Shepherd contact Howard Stern with

regard to his conversation with Mr. Cooper? Provide the

substance of the contact.

The Agency states that Deanna Shepherd of the Agency

spoke with Howard Stern. This data is necessary to fully

understand the Agency role in investigation of the conversation

which is the crux of the grievance. The Union will use this data

to evaluate whether or not to pursue the grievance to

arbitration; depending on the content of the data, we may use

this data as evidence at an arbitration hearing.

11. Give the style, court and date of the alleged lawsuit that

was brought by a former patent examiner?

The Agency merely alleges without evidence that the Agency

had discontinued the completion of employment verification

forms "some time ago" because of a lawsuit by a former

examiner. It is necessary to know the style, court and date of

the alleged lawsuit to fully understand if such a lawsuit, with a

consistent date, exists. If no such lawsuit exists, then the

allegation would be evidence of lack of credibility on the part of

James Cooper and the Agency. If there was a lawsuit, but

which involved James Cooper, then there would be evidence on

the motive, intent and practice of James Cooper in making

comments to a bar inquiry. Note that the Agency raised the

issue of an alleged lawsuit with respect to policy. Thus, the

data on the lawsuit is necessary to fully understand the Agency

policy, with regard to answéring inquiries from state bars. The

Union will use this data to evaluate whether or not to pursue the

grievance to arbitration; depending on the content of the data,

we may use this data as evidence at an arbitration hearing. The

G-4

Union will also use this data to advise other members of the

bargaining unit.

12. Provide the data which supports your statement that

"the accusation was found to have no merit",i.e., the

accusation in 1991 that Mr. Cooper made negative comments

in response to a bar inquiry.

The Agency states that yes, James Cooper had been accused

of making negative comments in response to a bar inquiry once

in 1991, but alleges without evidence that “the accusation was

found to have no merit". This data is necessary to understand

fully if that Agency allegation has factual basis. The Union will

use this data to evaluate whether or not to pursue the grievance

to arbitration; depending on the content of the data, we may use

this data as evidence at an arbitration hearing.

13. Did the Agency through Mr. Cooper refuse to Mr.

Silverberg to verify the employment portion of the Maryland

Bar inquiry? Answer yes or no.

This data is necessary to fully understand the role and

conduct of James Cooper and the Agency in answering state bar

inquiries. The Union will use this data to evaluate whether or

not to pursue the grievance to arbitration; depending on the

content of the data, we may use this data as evidence at an

arbitration hearing.

14. Does Mr. Carl Dolder complete the employment

verifications on bar inquiry forms? Answer yes or no. Who

else?

This data is necessary as the only way to be able to compare

the ordinary Agency processing of bar inquiries to the disparate

treatment given the grievant. The Union will use this data to

evaluate whether or not to pursue the grievance to arbitration;

G-5

depending on the content of the data, we may use this data as

evidence at an arbitration hearing.

15. When bar inquiries are received, to whom are they

Jorwarded for processing? List all persons and their role in

the processing?

This data is necessary as the only way to be able to compare

the ordinary Agency processing of bar inquiries to the disparate

treatment given the grievant. The Union will use this data to

evaluate whether or not to pursue the grievance to arbitration:

depending on the content of the data, we may use this data as

evidence at an arbitration hearing.

16. How many employment verification inquiries did the

Office receive from the Maryland Bar, and how many of those

verifications were completed, in 1993? 1992? 199]?

The Agency alleges that completion of verification forms had

been discontinued "some time ago". The data requested in

items #16 and #17 is necessary as the only way to be able to

compare the ordinary Agency processing of bar inquiries to the

disparate treatment given the grievant. The data for years 1993,

1992 and 1991 appears to be as available as that for 1994,

which the Agency did furnish. The Union will use this data to

evaluate whether or not to pursue the grievance to arbitration;

depending on the content of the data, we may use this data as

evidence at an arbitration hearing.

17. How many employment verification inquiries did the

Office receive from other bars, and how many of those

verifications were completed, in 1993? 1992? 199]?

18. In 1994, how many employment verifications did Mr.

Dolder complete?

The Agency furnished partial data in October 1995 that "Mr.

G-6

Cooper did not complete any employment verification forms in

calendar year 1994." It remains necessary to know how many

employment verifications Carl Dolder completed in 1994 in

order to evaluate and process the grievance. If Mr. Dolder only

completed the one form for the grievant in 1994, then that

would be evidence that Mr. Dolder was part of a disparate

process for the grievant. If, however, Mr. Dolder completed

many employment verifications in 1994, then that would be

evidence that Mr. Dolder had a role in the Agency normal

processing of employment verification inquiries. The Union will

use this data to evaluate whether or not to pursue the grievance

to arbitration; depending on the content of the data, we may use

this data as evidence at an arbitration hearing.

22. List the Discontinued Service Retirements approved in

fiscal year 1994. For each person: list the position, the Group

if an examiner, the circumstances for retirement (e.g.,

reduction-in-force), when approved, the effective retirement

date at the time of approval and the actual retirement date.

The data requested in items #22 and #23 is necessary as the

only way to compare the ordinary Agency processing of early

retirement to the disparate treatment given the grievant. The

Union will use this data to evaluate whether or not to pursue the

grievance to arbitration; depending on the content of the data,

we may use this data as evidence at an arbitration hearing. The

Union will also use this data to advise other members of the

bargaining unit.

23. List the early out retirements approved with effective

retirement dates in fiscal year 1995. For each person: list the

position, the Group if an examiner, when approved, the

effective date at the time of approval and the actual retirement

date.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.