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

Jn The

Supreme Court Of Che Guited States

OCTOBER TERM 1997

+

PATENT OFFICE PROFESSIONAL ASSOCIATION,

Petitioner,

V.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

+

On Petition For Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

eo

PETITION FOR WRIT OF CERTIORARI

. RECEIVED

FEB 2 (WW

pean era oe or.ts,

—

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 | Q

5 X |

Ny

i

QUESTIONS PRESENTED

1. Are some decisions 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) which is

based on Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985), that

no decision made by the General Counsel of the Authority is

subject to judicial review?

ii

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.

iil

TABLE OF CONTENTS

I os Bek we sane ka es ]

Ps ak nee hp a. ons alee) No ee 5 4) ]

STATUTES AND REGULATIONS INVOLVED ....... ]

WU PARRMINS GP NEUE GREE occ tc cence 3

REASONS FOR GRANTING THE PETITION .......... 5

I. Some decisions made by the General Counsel of

the Authority are subject to judicial review under

SEP a rs ced vets oy vow os eee 7

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

Montana Air Chapter which is based on Heckler v.

Chaney, that no decision made by the General Counsel

of the Authority is subject to judicial review........... 17

CRI eas a Ped ok ak ae

INDEX TO APPENDICES

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

District of Columbia Circuit in case No. 96-1277,

decided November 7, 1997.

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

7123.

POG EEE — TEE RNR EO aE a eae erg

iV

TABLE OF AUTHORITIES CITED

PAGE

COURT CASES

Abbott Laboratories v. Gardner,

POR BD 21

Adams v. Richardson,

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

480 F.2d 1159 (1973) (enbanc)......... ,oee SO

American Federation of Government Employees,

Local 1749, v. FLRA,

842 F.2d 102 (CAS 1988) (per curiam)... ... ..17, 18

American Federation of Government Employees,

Local 2782 v. FLRA,

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

Citizens to Preserve Overton Park v. Volpe,

SORE ss 21

Heckler v. Chaney,

470 U.S. 821 (1985)..... ....9°7, 14-18, 20- 22, 24

International Longshoremen’s Ass'n.

v. National Mediation Bd.,

785 F.2d 1098 (CADC 1986)......... iat 18

International Union, United Automobile,

Aerospace & Agricultural Implement Workers

of America v. Brock,

783 F.2d 237 (CADC 1986)....... [eee s

Interstate Commerce Commission v. Brotherhood

of Locomotive Engineers,

482 U.S. 270 (1987)....... hd EN ae 14

Martinez v. Smith,

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

Montana Air Chapter No. 29, Association of

Civilian Technicians v. FLRA,

898 F.2d 753 (CA9 1990)...... .3, 5, 6, 17-21, 23, 24

Vv

NLRB v. United Food & Commercial Workers Union,

Local 23,

I WO ec is aes wa caucehvues 6

POPA v. FLRA,

868 F.2d 458 (CADC 1988).................... 3

POPA v. FLRA,

ek fe 2 a oh) 3

POPA v. FLRA,

ao F.36 1146 (CADC 1994).................00. 4

Turgeon v. FLRA,

677 F.2d 937 (CADC 1982) (per curiam) .. . 5, 17, 18,

21-23

FLRA CASES

POPA and PTO,

st Er 3

POPA and PTO,

Eo , 3

POPA and PTO,

I UP cs vn wdaesse esses 4

STATUTES AND REGULATIONS

ee eye ae vse be ds ca hws 3, 10, 23

5 | 3,6, 10, 12, 14, 15, 18, 21-24

SE SS ee 18

a wea be sak wae 3, 10, 14

ME ceed ces cvssenssowsevee-s 1, 10

es acc eae ww ete eecuceer 1, 3, 10

ek wine bea wees a 44; te

ee gi vee hs cee keuwan 2

Es bcc ebeuruveoascvcecacees 3,19

eg es eh cbse sk sy ead bv 0 eee deens 19

| i 2, 3, 9, 11, 12, 14-16, 20

ge I a a ee 3

lt | hh mm i Ee ne,

Io cigs Plc oe ns pee Che eee 2

| | eT eens 1-4, 7, 9-14, 22-24

ND on ows vies os Bite cuauverccdeaes

TGR Cotieene nena enue wer 2 2,11

RE ee Oe errr tee 2,7, 11, 13

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,

Novemper 19.1979 ..................,. 8-13, 15, 19, 20

Congressional Record, Vol. 124, Part 28,

| October 14, 1978, page 38718......-... 8, 9, 13, 15, 19, 20

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below.

OPINION BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit in case No. 96-1277 appears at

Appendix A to the petition and is reported at 128 F.3d 751

(CADC 1997).

JURISDICTION

The date on which the United States Court of Appeals

decided case No. 96-1277 was November 7, 1997.

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-

* x *

(6) “Authority” means the Federal Labor Relations

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

* * »

2

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 B.

5 C.F.R. 2423.7 Investigation of charges.

(a) The Regional Director, on behalf of the General Counsel,

shall conduct such investigation of the charge as the Regional

Director deems necessary.

- * »

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

review of action by the regional Director.

* = *

(b) If the Regional Di: eer determines not to issue a

complaint on a charge which :3 not withdrawn, the Regional

Director shall provide the parties with a written statement of the

reasons for not issuing a complaint.

* = *

(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

3

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 B: 5 U.S.C. 551, 701, 706, 7104, 7105 and 7118.

STATEMENT OF THE CASE

Are some decisions made by the General Counsel of the

Authority subject to 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) held yes. The D.C. Circuit in this case held no. The

D.C. Circuit dismissed this case for lack of subject matter

jurisdiction. The law of the D.C. Circuit is in direct conflict

with the Ninth Circuit.

Federal Labor-Management Relations

Almost 17 years ago, the Union and the Patent and

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

Department of Commerce, began the negotiations which led to

this case. “This is the latest episode in the interminable struggle

of the Association and the Patent Office to reach an agreement

on employee performance appraisals, a struggle that started in

May 1981.” (App. A). The PTO declared Union proposals

nonnegotiable. The Authority and the D.C. Circuit resolved the

negotiability issues in POPA and PTO, 25 FLRA 384 (1987),

aff'd sub nom. POPA v. FLRA, 868 F.2d 458 (CADC 1988)

and POPA and PTO, 29 FLRA 1389 (1987), aff'd sub nom.

POPA v. FLRA, 873 F.2d 1458 (CADC 1989). But then the

Union and PTO reached impasse in further negotiations.

In November 1990, an interest arbitrator, acting under the

direction of the Federal Services Impasses Panel under 5 U.S.C.

7119(b)(1), issued an award agreement. Under 5 U.S.C.

7114(c) agency head review, the Department of Commerce

4

disapproved award agreement provisions. The Authority and

the D.C. circuit resolved the issues of negotiability and

arbitrator jurisdiction for provisions of the award agreement in

POPA and PTO, 47 FLRA 10 (1993), aff'd in part and rev'd

in part sub nom. POPA v. FLRA, 26 F.3d 1148 (CADC 1994).

In September 1994, the Union asked the PTO to implement

the award agreement, which contained those provisions that had

not been disapproved in the agency head review, plus the

provisions found negotiable by the Authority but not appealed

to the D.C. Circuit. The award agreement would not contain

those provisions found nonnegotiable by the Authority or D.C.

Circuit. After 13 years of negotiations, arbitration and litigation,

the Union wanted implementation of that award agreement,

which contained only those provisions that had survived the

agency head review and subsequent litigation. There were no

other issues left to resolve. The PTO did not respond.

The Federal Labor Relations Authority

In March 1995, the Union filed a unfair labor practice charge

with the Authority over the PTO refusal to implement the award

agreement, Case No. WA-CA-50352. In December 1995, the

Union received the Regional Director’s decision not to issue a

complaint. In February 1996, the Union filed an appeal of the

Regional Director’s decision to the General Counsel of the

Authority. The Union next received the final decision of the

General Counsel, dated June 13, 1996. The General Counsel

denied the appeal. After 15 years, according to the general

policy of the General Counsel, there was no award agreement

to implement, because there was no “meeting of the minds.”

The Union and PTO needed to begin the process of negotiating

over performance appraisals all over again.

The Court of Appeals

On August 12, 1996, the Union filed the Petition for Review

with Se D.C. Circuit under 5 U.S.C. 7123. The Authority filed

a motion to dismiss the Petition for Review for lack of subject

5

matter jurisdiction. The Authority relied on 7Jurgeon v. FLRA,

677 F.2d 937 (CADC 1982) (per curiam) (7urgeon) for the

motion. The Union filed an opposition to the motion to dismiss.

The Union cited Montana Air Chapter, which is based on

Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985) (Chaney), for

the proposition that courts of appeals have subject matter

jurisdiction to review some decisions made by the General

Counsel of the Authority. After briefs were filed, on November

7, 1997, the D.C. Circuit dismissed the Petition for Review for

lack of jurisdiction (App. A).

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, 898 F.2d, at 756, the Ninth Circuit noted that the

General Counsel’s decision was “presumptively unreviewable.”

However, the Ninth Circuit did review 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., at 833 n.4 and opinions of the D.C. Circuit.

In contrast, the D.C. Circuit dismissed this case and held: “Lest

there be any lingering confusion, we write to make clear that,

even after Heckler v. Chaney, it remains the law of this circuit

that a decision of the General Counsel of FLRA not to file a

complaint is not judicially reviewable given that the statute

provides for review only of decisions of the Authority.” (App.

6

A). In contrast to Montana Air Chapter, this means that, for the

D.C. Circuit, there can not be judicial review, even when the

General Counsel of the Authority “has ‘consciously and

expressly adopted a general policy’ that is so extreme as to

amount to an abdication of its statutory responsibilities.”

Chaney, 470 U.S., at 833 n.4. The law of the D.C. Circuit is

in direct conflict with the Ninth Circuit.

The Ninth Circuit held that 5 U.S.C. 701(a)(2), rather than

(a)(1), applies to decisions of the General Counsel of the

Authority. Hence, there is a presumption of no judicial review.

Yet there may be exceptions, as in Montana Air Chapter. In

this case, the D.C. Circuit held that 5 U.S.C. 701 (a)(1), rather

than (a)(2), applies to decisions of the General Counsel of the

Authority. Hence, for the D.C. Circuit, Chaney does not apply

The D.C. Circuit appears to hold that there is no judicial review

with no possible exceptions at all.

This case is one of first impression for this Court, because it

involves the question of whether some decisions of the General

Counsel of the Authority are subject to judicial review. In

NLRB v. United Food & Commercial Workers Union, Local

23, 484 U.S. 112 (1987) (United Food), this Court held that 5

U.S.C. 701(a)(1) precludes judicial review of decisions of the

General Counsel of the Board whether to issue complaints, ,

based on an analysis of the National Labor Relations Act |

(NLRA). However, the General Counsel of the Authority

clearly is not the General Counsel of the Board. The

relationship of the three members and the General Counsel of

the Authority under Chapter 71 of title 5 of the United States

Code is significantly different from that of the Board and

General Counsel under the National Labor Relations Act. Thus

the analysis of this Court in United Food, with regard to 5

U.S.C. 701(a)(1), cannot automatically apply to judicial review

of decisions of the General Counsel of the Authority. Chapter

7

7] is a different statute, which requires a different analysis from

this Court.

By this case, this Court could clarify whether the General

Counsel of the Authority is safe from judicial review even when

the General Counsel “has ‘consciously and expressly adopted

a general policy’ that is so extreme as to amount to an

abdication of its statutory responsibilities.” Chaney, 470 US.,

at 833 n.4. The General Counsel of the Authority should follow

the correct law. This Court could clarify whether some

decisions of the General Counsel are subject to judicial review,

in view of Chaney.

In particular, this Court could clarify whether the General

Counsel of the Authority can disregard Chapter 71 of title 5 of

the United States Code without judicial review. This case is

important to federal employees, because a union has no way to

enforce chapter 71, when the General Counsel of the Authority

does not follow the law and there never can be judicial review.

A union should have some way to enforce Chapter 71. When

a union claims that the General Counsel “has ‘consciously and

expressly adopted a general policy’ that is so extreme as to

amount to an abdication of its statutory responsibilities”, has

made impermissible statutory interpretations, and does not

follow chapter 71, then the union should be able to obtain

judicial review.

I. Some decisions made by the ( <aeral Counsel of the

Authority are subject to judicia’ “eview under 5 U.S.C.

7123.

Under 5 U.S.C. 7123(a), “any final order of the Authority”

is subject to judicial review. Under 5 C.F.R. 2423.10: “The

decision of the General Counsel shall be final.” Since order

includes decision and Authority includes General Counsel of the

Authority, some final decisions of the General Counsel of the

Authority are subject to judicial review, by statute.

8

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 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:

“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.”

9

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

the statement of Representative Ford on October 14, 1978

““lluminating”. 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 Authority is to perform vigorously its

‘special prosecutor’ functions” indicates 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.

* * *

10

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), from legislative history, “Authority’s

order” includes Authority’s decision.

Under 5 U.S.C. 7123(c): “Review of the Authority’s order

shall be on the record in accordance with section 706 of this

title.” Then the definitions under 5 U.S.C. 701 and 551 apply:

“order’ means the whole or a part of a final disposition, whether

affirmative , negative, injunctive, or declaratory in form, of an

agency ....” Clearly, a final decision may be a final disposition

and hence by definition an order. The final decision of the

General Counsel of the Authority to refuse to issue a complaint

is a negative final disposition of the unfair labor practice charge,

which decision then by definition is a final order.

Thus, in 5 U.S.C. 7123(a), by statute and from legislative

history, “Authority’s order” includes Authority’s decision.

Therefore, order in section 7123(a) does not preclude a final

decision of the General Counsel of the Authority.

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. ~

1]

The language “within”, as in the legislative history, or “of the

Authority”, as in the statute, indicates that the Congress

intended “Authority” to include the General Counsel of the

Authority.

Since in 5 U.S.C. 7105, “Authority” must include the

General Counsel of the Authority, the same reading must apply

to section 7123(a), absent clear and convincing evidence to the

contrary. Under section 7105(d), the Authority appoints

Regional Directors and the Authority may delegate to Regional

Directors “authority to perform such duties and make such

expenditures as may be necessary... .” By regulation, such

delegation to Regional Directors by the Authority includes the

authority and duties of the General Counsel of the Authority

under 5 U.S.C. 7118(a). Under sectian~#105(d), such

delegation is legally possible only when “Authority” includes

the General Counsel of the Authority, because only the General

Counsel of the Authority, rather than the three members, has

that authority and duty under 5 U.S.C. 7118(a).

Under 5 C.F.R. 2423.7(a):

“The Regional Director, on behalf of the General

Counsel, shall conduct such investigation of the charge as

the Regional Director deems necessary.”

Under 5 C.F.R. 2423.10(b).:

“If the Regional Director determines not to issue a

complaint on a charge which is not withdrawn, the

Regional Director shall provide the parties with a written

statement of the reasons for not issuing a complaint.”

Yet under 5 U.S.C. 7118(a), only the General Counsel has the

authority and duty to “investigate the charge” and “provide the

the person making the charge a written statement of the reasons

for not issuing a complaint.” Thus under 5 U.S.C. 7105(d),

Authority must include the General Counsel of the Authority,

because only the General Counsel could delegate the authority

and duties of the General Counsel to Regional Directors. The

12

same reading, that “Authority” includes the General Counsel of

the Authority, must apply to section 7123(a), absent clear and

convincing evidence. This Court should reject the bizarre

interpretation that “Authority” includes the General Counsel in

section 7105(d), in order to delegate his authority and duties to

Regional Directors, while “Authority” means only the three

members in section 7123(a), in order to have no decision of the

General Counsel of the Authority subject to judicial review.

The same reading for “Authority” must apply to 5 U.S.C.

7105(d) and 7123(a). With the same reading, “Authority” must

include the General Counsel of the Authority.

In 5 U.S.C. 7118, the three members are distinguished from

the General Counsel of the Authority by context and the

mention of member: “Authority (or any member thereof. . .).”

However, in section 7123(a), there is just “Authority”, with no

mention of members. Nor does the context preclude that

“Authority” includes the General Counsel of the Authority.

Moreover, had the Congress intended to preclude the judicial

review of final decisions of the General Counsel of the

Authority, presumably the Congress would have added a

General Counsel third exception to 5 U.S.C. 7123(a). Thus it

is reasonable to presume that the Congress did not intend to

distinguish between “Authority” and the “General Counsel of

the Authority”, absent mention of the members or an explicit

General Counsel exception to judicial review in section 7123(a).

Thus, in 5 U.S.C. 7123(a), by statute and from legislative

history, “final order of the Authority” includes final decision of

the General Counsel of the Authority. Clearly, section 7123(a)

does not preclude judicial review of a final decision of the

General Counsel of the Authority, under 5 U.S.C. 701(a)(1).

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

13

to whether to issue notices of hearing on unfair labor practice

complaints and prosecute such complaints before the

Authority”. Legislative History, at 570. In §.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”

indicates 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, indicates

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.

In Chapter 71, the decision of the General Counsel is not

final. This is a significant difference from the NLRA. 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. By that regulation, there is no way for a union to obtain

review of the General Counsel from the three members of the

Authority. So then a union should be able to obtain judicial

14

review of some decisions of the General Counsel of the

Authority under 5 U.S.C. 7123.

Heckler v. Chaney

Under 5 U.S.C. 7123(c): “Review of the Authority’s order

shall be on the record in accordance with section 706 of this

title.” Thus, the

“standards to be applied on review are governed by the

provisions of § 706. But before any review at all may be

had, a party must first clear the hurdle of § 701(a).”

Chaney, supra, 470 U.S., at 828.

“[It] is the Administrative Procedure Act (APA) that

codifies the nature and attributes of judicial review,

including the traditional principle of its unavailability ‘to

the extent that . . . agency action is committed to agency

discretion by law.’ 5 U.S.C. § 701(a)(2).” Jnterstate

-Commerce Commission v. Brotherhood of Locomotive

Engineers, 482 U.S. 270, 283 (1987).

5 U.S.C. 701(a)(1) does not preclude judicial review of a

fina] decision of the General Counsel of the Authority, because

no statute in Chapter 71 precludes judicial review. However,

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, 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

Genera] 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

Genera] Counsel would have discretion to disregard any statute

F

£

:

15

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 VII [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 all decisions of the General Counsel of the

Authority. Such judicial review should not restrict the General

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

Counsel could follow the law, when exercising 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 (I‘) an a ency 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

16

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. This Court in

Chaney did not appear to preclude judicial review of all

nonenforcement decisions.

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

there is judicial review when the basis of the decision is that the

General Counsel “has ‘consciously and expressly adopted a

general policy’ that is so extreme as to amount to an abdication

of its statutory responsibilities.” 470 U.S., 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 US., at

839 (BRENNAN, J., concurring).

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. Hopefully, then the General Counsel of the

Authority could follow the correct law, when exercising

discretion under section 7118 (a)(1). Without judicial review,

there is no assurance that the General Counsel of the Authority

will follow the correct law. This Court should clarify whether

some decisions of the General Counsel are subject to judicial

review.

yu. te v

17

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

Montana Air Chapter which is based on Chaney, that no

decision made by the General Counsel of the Authority is

subject to judicial review.

In this case, the D.C. Circuit states: “Jurgeon’s force

continues unabated.” (App. A). However, in Turgeon, the D.C.

Circuit did not consider whether statutory interpretations made

by the General Counsel are subject to judicial review. Turgeon

did not involve a situation as in Montana Air Chapter. Turgeon

did not involve a situation as in this case where the General

Counsel of the Authority “has ‘consciously and expressly

adopted a general policy’ that is so extreme as to amount to an

abdication of its statutory responsibilities.” Chaney, 470 U.S.,

at 833 n.4.

In Martinez v. Smith, 768 F.2d 479 (CA1 1985) (per curiam)

and American Federation of Government Employees, Local

1749, v. FLRA, 842 F.2d 102 (CAS 1988) (per curiam) (AFGE,

Local 1749), 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 7urgeon was prior to Chaney. Although the

decisions were after Chaney, neither the First nor the Fifth

Circuit cited Chaney. 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 some decisions made by the General

Counsel of the Authority are subject to judicial review. In this

case, in contrast, the D.C. Circuit considers that Chaney does

not apply to judicial review of decisions of the General Counsel

of the Authority. This Court should grant the petition in order

18

to resolve the conflict between the Ninth Circuit in Montana Air

Chapter and the D.C. Circuit in this case.

Subject Matter Jurisdiction

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

found that:

“Agency action is judicially reviewable except when

statutes preclude judicial review or when such action is

committed to agency discretion by law. 5 U.S.C. §§

701(a) & 702 (1988). An agency’s decision not to take

enforcement action generally falls under the second

exception and is presumed to be immune from review.”

citing Chaney, 470 U.S., at 832.

“Specifically, the General Counsel’s exercise of discretion

not to file an unfair labor complaint generally is

unreviewable.” citing AFGE, Local 1749 and Turgeon.

However, the Ninth Circuit also 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 /mternational 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

19

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 right .... 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 International 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.

20

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 Counse] 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.

Montana Air Chapter is consistent with the intent of the

Congress. The Ninth Circuit followed the correct judicial

proceedings.

The Opinion Below

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

D.C. Circuit found (App. A):

21

“agency actions are not reviewable under that act [APA]

if other ‘statutes preclude judicial review,’ 5 U.S.C.

§701(a)(1), and Zurgeon definitely establishes such

preclusion by the Labor-Management Relations Act

[Chapter 71 of title 5 of the United States Code].”

Clearly, the Ninth Circuit did not agree that “7urgeon definitely

establishes such preclusion”, since the Ninth Circuit cited

Turgeon for the proposition: “Specifically, the General

Counsel’s exercise of discretion not to file an unfair labor

complaint generally is unreviewable.” Montana Air Chapter,

898 F.2d, at 756. Thus, the Ninth Circuit cited 7urgeon to

support that 5 U.S.C. 701(a)(2), rather than (a)(1), applies to

decisions of the General Counsel of the Authority. Moreover,

in view of 7urgeon, the Ninth Circuit did review the General

Counsel’s decision declining to issue an unfair labor practice

complaint in Montana Air Chapter. Thus it is not correct to say

that “7urgeon definitely establishes such preclusion”, since

Turgeon clearly did not persuade the Ninth Circuit of “such

preclusion.”

Furthermore, the standard to show preclusion is clear and

convincing evidence, as this Court noted with regard to 5

U.S.C. 701(a)(1) in Chaney, 470 U:S., at 830:

“In this case, there is no indication that Congress sought

to prohibit judicial review and there is most certainly no

‘showing of “clear and convincing evidence” of a.. .

legislative intent’ to restrict access to judicial review.”

quoting Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 410 (1971), citing Abbott Laboratories v.

Gardner, 387 U.S. 136, 141 (1967).

Turgeon could not have presented clear and convincing

evidence that 5 U.S.C. 701(a)(1) applies, because the Ninth

Circuit, which cited 7urgeon, clearly was not convinced in

Montana Air Chapter. Along with the Ninth Circuit, this Court

22

also should not be convinced that 7urgeon establishes that

section 701(a)(1) applies.

According to the D.C. Circuit in this case, 5 U.S.C. 7123(a)

itself is a statute which precludes judicial review under 5 U.S.C.

701(a)(1):

“In Turgeon, this court declared flatly that it has no

jurisdiction to review decisions by the General Counsel of

FLRA declining to issue unfair labor practice complaints

because such decisions do not constitute final orders of

the agency. See Turgeon, 677 F.2d at 938-939.

* * ™

Lest there be any lingering confusion, we write to

make clear that, even after Heckler v. Chaney, it remains

the law of this circuit that a decision of the General

Counsel of FLRA not to file a complaint is not judicially

reviewable given that the statute provides for review only

of decisions of the Authority.

* * *

Nothing in Heckler - and especially not the Association’s

favored footnote - affects the reviewability of decisions of

the General Counsel under the Labor-Management

Relations Act, and this court has already held that the

statute does not allow judicial review of the General

Counsel’s decision not to issue unfair labor practice

complaints. See Turgeon, 677 F.2d at 939.” App. A.

“Since the General Counsel has not issued a complaint,

and the Authority has not acted at all in this case, it is

clear that there is no ‘final order of the Authority’ and

hence no decision that we can review pursuant to section

7123.” Turgeon, 677 F.2d at 939.

However, a final decision of the General Counsel of the

Authority is a “final order of the Authority”, because “order”

includes decision and “Authority” includes the General Counsel

23

of the Authority. In this case, the General Counsel has acted by

not issuing a complaint. By definition under 5 U.S.C. 701 and

551, the final decision of the General Counsel, which is the final

negative disposition of the unfair labor practice charge, is a final

order. Section 7123(a) does not preclude judicial review of that

final decision of the General Counsel of the Authority. Section

7123(a) instead provides for judicial review of final orders of

both the three members and the General Counsel of the

Authority. Contrary to the D.C. Circuit in this case, section

7123(a) does not preclude judicial review of a final decision of

the General Counsel of the Authority, under 5 U.S.C. 701(a)(1).

Turgeon does not present clear and convincing evidence that 5

U.S.C. 7123(a)(1) shows such preclusion, since the Ninth

Circuit, which cited 7urgeon, clearly was not convinced in

Montana Air Chapter.

The opinion of the D.C. Circuit has an unstated underlying

premise that, in section 7123(a), “order” does not include

decision and “Authority” does not include the General Counsel

of the Authority. However, a premise is not evidence at all,

least of all clear and convincing evidence. The opinion of the

D.C. Circuit has no showing that the premise is correct by clear

and convincing evidence. Faced with “any final order of the

Authontty” in 5 U.S.C. 7123(a), the question asked should have

been whether “order” includes decision and “Authority”

includes the General Counsel of the Authority. Instead of an

analysis of the question, the D.C. Circuit has just assumed the

answer is no as the major premise of the opinion in this case.

In Jurgeon, the D.C. Circuit states: “Similarly, under the Act

in question here, the decisions of the General Counsel are not

denominated ‘orders.” 677 F.2d at 940. This then leads to the

D.C. Circuit’s premise that “order” in section 7123(a) does not

include decision. However, under 5 U.S.C. 701 and 551, by

definition a final decision of the General Counsel of the

Authority, which is a final negative disposition, is a final order.

24

Hence, by statute, the premise of the D.C. Circuit is wrong.

Also under 5 U.S.C. 7105(d), Authority must include the

General Counsel of the Authority, because only the General

Counsel could delegate the authority and duties of the General

Counsel to Regional Directors. The same reading for

“Authority” must apply to 5 U.S.C. 7105(d) and 7123(a). With

the same reading, Authority must include the General Counsel

of the Authority. Thus the D.C. Circuit relied on the wrong

premise. Consistent with Montana Air Chapter, but contrary

to the opinion in this case, “final order of the Authority”

includes final decision of the General Counsel of the Authority.

A wise premise to adopt is:

“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 opinion of the D.C. Circuit provides no reason why the

Congress would intend that the General Counsel of the

Authority may ignore any statute of Chapter 71 of title 5,

without judicial review. Based on Chaney, the Ninth Circuit

has the better position: “the General Counsel’s exercise of

discretion not to file an unfair labor complaint generally is

unreviewable.” Montana Air Chapter, 898 F.2d, at 756.

However, there may be exceptions. Montana Air Chapter is an

example exception. The D.C. Circuit should have determined

whether this case is another exception.

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, in favor of the Ninth Circuit.

Consistent with Chaney, 470 U.S., at 833 n.4, this Court should

find that the law of the D.C. Circuit should be that 5 U.S.C.

701(a)(2), rather than (a)(1), applies to a final decision of the

25

General Counsel of the Authority declining to issue an unfair

labor practice complaint.

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

30 January 1998