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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1006

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2153%3A1. Public record. Not legal advice.