Opposition Brief — Association of Civilian Technicians, Inc. v. Federal Labor Relations Authority

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| OCT 23 2002

No. 02-283

ASAE TOO: I

,

Jn the Supreme Court of the United States

ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,

PETITIONER

Vv.

FEDERAL LABOR RELATIONS AUTHORITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

Department of Justice

DAVID M. SMITH Washington, D.C. 20530-0001

Solicitor (202) 514-2217

Federal Labor Relations

Authority

Washington, D.C. 20424-0001

QUESTIONS PRESENTED

1. Whether a federal district court has jurisdiction

under the Administrative Procedure Act to review an

appropriate unit determination of the Federal Labor

Relations Authority.

2. Whether a federal district court has jurisdiction

to review the legal interpretations that underlie an

appropriate unit determination.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 186 (1967) .......ceeeseees s

Block v. Community Nutrition Inst., 467 U.S. 340

SITIES a cisiisieheliiesininndadecncniiesinitnnisentinenenbienanemmeneenenenncnnaaes 8,9

Boire v. Greyhound Corp., 376 U.S. 473 (1964) ....eesesesee 7

Bowen v. Massachusetts, 487 U.S. 879 (1988) ......seseeeee 8

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d

eR Gs BED. cesesesiescvivvevnesntenvensiiesesenninensonnpesccesmaneseeore 5

ICC v. Brotherhood of Locomotive E'ng’rs, 482 U.S.

IIIT cin ciriosebiehacnienenienneetbonpbins vntensantaeseninnanniseneeneetionsosnaionne 6,9

McNary v. Haitian Refugee Ctr., 498 U.S. 479

SII scnsdeisadssidesananiiesncanneniinnerinewnssianrinnsmmbanveseneenevsneornnien 5,9

NLRB v. United Food & Commercial Workers Union,

Ree OE, GRO TE. BIS CIF) cxsccrscvessvesereceiesessovsevreceseneseveves 5,8

Statutes:

Administrative Procedure Act, 5 U.S.C. 551 et seq.:

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BEBE. FOG siceccuvavsveseenssssesneoosenonevvcnsvonneseonnsesvoonensausvensovseetonees 4,6

Federal Service Labor-Management Relations Act,

5 U.S.C. 7101 et seq.:

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(IIT)

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IV

Statute—Continued: Page

. National Guard Technicians Act of 1968, 32 U.S.C. 709 .... 2

Jn the Supreme Court of the Gnited States

No. 02-283

ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,

PETITIONER

Vv.

FEDERAL LABOR RELATIONS AUTHORITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-10a)

is reported at 283 F.3d 339. The opinion of the district

court (Pet. App. 1la-23a) is unreported. The opinion of

the Federal Labor Relations Authority (Pet. App. 27a-

5la) is reported at 55 F.L.R.A. 657. The decision of

the Regional Director of the Federal Labor Relations

Authority (Pet. App. 52a-83a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 22, 2002. Pet. App. 84a. A petition for rehearing

was denied on May 22, 2002. The petition for a writ of

certiorari was filed on August 20, 2002. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. National Guard dual status technicians are full-

time civilian employees of the United States Depart-

ments of the Army and Air Force. Pet. App. 2a. Pur-

suant to the National Guard Technicians Act of 1968, 32

U.S.C. 709, dual status technicians are employed and

administered by the Adjutant General of the state

Guard for whom they work. Pet. App. 2a. As a con-

dition of their federal civilian employment, dual status

technicians are required to maintain military member-

ship in the state National Guard in which they are

employed. Jbid.

The Association of Civilian Technicians, Inc. (peti-

tioner) represents bargaining units of dual status tech-

nicians in 42 territories and States. Pet. App. 53a.

Petitioner filed a petition with a regional office of the

Federal Labor Relations Authority (F LRA), seeking to

consolidate those individual state units into a single

unit pursuant to Section 7112(a) of the Federal Service

Labor-Management Relations Act (FSLMRA), 5 U.S.C.

7112(a). Pet. App. 53a. Section 7112(a) provides that:

[t]he Authority shall determine in each case

whether, in order to ensure employees the fullest

freedom in exercising the rights under this chapter,

the appropriate unit should be established on any

agency, plant, installation, function, or other basis

and shall determine any unit to be an appropriate

unit only if the determination will ensure a clear and

identifiable community of interest among the em-

ployees in the unit and will promote effective

dealings with, and efficiency of the operations of the

agency involved.

5 U.S.C. 7112(a).

3

Finding that the proposed consolidated unit was-not

“appropriate” within the meaning of Section 7112(a),

Pet. App. 79a, the FLRA Regional Director dismissed

the petition. The Regional Director specifically found

that, while the extent of interchange of technicians

among the various state National Guards favored a

finding of appropriateness, id. at 75a, the individual

missions, unique to each state National Guard, dis-

favored such a finding. Jd. at 76a. The Regional

Director also relied on the fact that state Adjutants

General employ and administer the technicians in their

respective States. Jd. at 78a.

The Regional Director rejected petitioner’s conten-

tion that the expanded bargaining rights petitioner

would obtain if the conselidated unit was found to be

appropriate should weigh in favor of a finding of

appropriateness. Pet. App. 79a-80a. The Regional

Director concluded that expanded bargaining rights

that may accrue after a bargaining unit has been found

to be appropriate are not relevant in assessing the

appropriateness of a unit in the first instance. Jd. at

80a.

2. The FLRA dismissed petitioner’s application for

review of the Regional Director’s determination. Pet.

App. 27a-51a. The FLRA affirmed the Regional Direc-

tor’s holding that the proposed consolidated unit met

neither the “community of interest” nor the “effective

dealings” and the “efficiency of [agency] operations”

criteria for finding a bargaining unit to be appropriate

under Section 7112(a). Jd. at 50a. The FLRA found

that the Regional Director correctly held that the day-

to-day authority over the employment of technicians is

vested in the state Adjutants General, and that this

factor mitigates against finding a consolidated unit

appropriate. /d. at 40a-42a. The FLRA also held that

4

the Regional Director properly declined to consider the

expanded bargaining rights that may accrue to peti-

tioner upon consolidation as a factor in determining the

appropriateness of the proposed unit. Jd. at 47a-48a.

3. Petitioner filed suit in the United States District

Court for the District of Columbia, seeking review of

the FLRA’s decision under the Administrative Pro-

cedure Act (APA), 5 U.S.C. 703, 704. Pet. App. lla.

Petitioner argued that the FLRA erred in failing to

give weight to the expanded bargaining rights that

would result from a consolidated unit, and in relying on

the authority of state Adjutants General to employ and

administer technicians. Jd. at 18a, 20a-2la. In reliance

on 5 U.S.C. 7123, the FLRA moved to dismiss peti-

tioner’s complaint. Section 7123(a) provides in relevant

part that:

Any person aggrieved by any final order of the

Authority other than an order under * * * section

7112 of this title (involving an appropriate unit

determination), may * * * 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.

5 U.S.C. 7123(a).

The district court granted the FLRA’s motion to

dismiss. Pet. App. lla-24a. The court held that “be-

cause § 7123 is the ‘exclusive statutory scheme’ for

judicial review of Authority decisions, and because the

section precludes judicial review of appropriate unit

decisions, [petitioner] may not obtain review of the final

decision pursuant to any statute, including the judicial

review provisions of the APA.” Jd. at 16a.

5

The district court rejected petitioner’s argument that

the court had jurisdiction to review the legal inter-

pretations that formed the basis for the Authority’s

appropriate unit determination pursuant to Crowley

Caribbean Transport, Inc. v. Pevia, 37 F.3d 671 (D.C.

Cir. 1994), and McNary v. Haitian Refugee Center, 498

U.S. 479 (1991). Pet. App. 22a. The court explained

that the FLRA had engaged in “the kind of analysis

and explanation used in the ordinary course of adjudi-

cating a particular case, not the kind of ‘general policy’

pronouncement that would subject the decision (or any

portion thereof) to judicial review under the narrow

exceptions established in Crowley and McNary.” Ibid.

4. The court of appeals affirmed, Pet. App. la-10a,

holding that Section 7123(a)(2) precludes a district

court from reviewing an appropriate unit determina-

tion. The court could not “imagine that Congress,

having vested in courts of appeals exclusive jurisdiction

to review all Authority decisions except those relating

to appropriate unit determinations, would have in-

tended that such determinations could nevertheless be

reviewed by district courts.” Jd. at 5a. The court also

noted that its interpretation of Section 7123 is con-

sistent with this Court’s interpretation of the judicial

review provision in the National Labor Relations Act.

Ibid. (citing NLRB v. United Food & Commerical

Workers Union, Local 28, 484 U.S. 112 (1987)).

The court of appeals concluded that, under Section

7123, an appropriate unit determination may be re-

viewed indirectly in a court of appeals after an ex-

clusive representative for the bargaining unit has been

certified, one of the parties to the bargaining relation-

ship refuses to bargain with the other, and the FLRA

finds that refusal to constitute an unfair labor practice.

Pet. App. 6a. However, the court rejected petitioner’s

EE

6

contention that the existence of that mechanism for re-

view suggests that a district court may review an

appropriate unit determination directly. /bid.

Relying on Interstate Commerce Commission v.

Brotherhood of Locomotive Engineers, 482 U.S. 270,

283 (1987), the court of appeals also rejected peti-

tioner’s argument that the district court had jurisdic-

tion to review statutory interpretations in the FLRA’s

decision, even if it lacked jurisdiction to review the

decision itself. Pet. App. 7a. The court concluded that

the narrow exceptions to that principle set forth in

McNary and Crowley “are inapplicable here.” Jd. at

7a-8a.

ARGUMENT

The court of appeals correctly held that a district

court lacks jurisdiction to review an appropriate unit

determination. That holding does not conflict with any

decision of this Court or any other court of appeals.

Review by this Court is therefore not warranted.

1. Petitioner contends (Pet. 4-7) that a district court

has authority to review an appropriate unit deter-

mination under 5 U.S.C. 703 and 704, which generally

permit review of final agency action for which there is

no other adequate remedy in a court. The general

review provisions of the APA do not apply, however,

when a “statute[] preclude[s] judicial review.” 5 U.S.C.

701(a). That is the situation here.

Section 7123 cf the FSLMRA provides for judicial re-

view in a court of appeals of “any final order of the

Authority,” except an order “involving an appropriate

unit determination.” 5 U.S.C. 7123(a). While Section

7123 refers only to the authority of a court of appeals,

the inescapable implication of that provision is that no

court may engage in direct review of an appropriate

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unit determination. As the court of appeals explained,

“having vested in courts of appeals exclusive juris-

diction to review all Authority decisions except those

relating to appropriate unit determinations,” Congress

could not have intended that “such determinations

could nevertheless be reviewed by district courts.” Pet.

App. 5a.

As the court of appeals recognized (Pet. App. 6a), an

appropriate unit determination may be reviewed in-

directly in an action challenging a final decision finding

an unfair labor practice. But the existence of that

indirect method for review of an appropriate unit

determination by a court of appeals does not in any way

suggest that a district court may directly review an

appropriate unit determination. By authorizing a court

of appeals to review final decisions finding an unfair

labor practice, Section 7123 authorizes a court of ap-

peals, not the district court, to review the underlying

appropriate unit determinations that served as a

predicate for that decision. In contrast, both by limiting

review of Authority decisions to courts of appeals, and

by excluding direct review of appropriate unit deter-

minations, Section 7123 clearly precludes a district

court from directly reviewing an appropriate unit

determination.

This Court’s construction of the analogous review

scheme in the National Labor Relations Act reinforces

that conclusion. Under the NLRA, a district court may

not directly review an NLRB certification decision,

except in the extraordinary case in which the NLRB

flouts a clear statutory mandate. See, e.g., Bowre v.

Greyhound Corp., 376 U.S. 473, 476-482 (1964). Absent

that kind of exceptional circumstance, this Court’s

NLRB decisions make clear that a party may seek

review of a certification decision only in a court of

8

appeals, and then only in the context of a review of a

finding of an unfair labor practice. [bid.; accord NLRB

v. United Food & Commercial Workers Union, Local

23, 484 U.S. 112, 133 (1987). Because the Congress that

enacted ‘Section 7123 “had in mind a review scheme

identical to the NLRB’s” (Pet. App. 5a), the court of

appeals correctly held that Section 7123 bars district

court review of appropriate unit determinations.

Nothing in Abbott Laboratories v. Gardner, 387 U.S.

136 (1967), relied on by petitioner (Pet. 4), warrants a

contrary conclusion. In that case, the Court held that

judicial review is available under the APA unless there

is “clear and convincing evidence” that Congress in-

tended to withhold review. That standard is satisfied

here. Section 7123 supplies clear and convincing evi-

dence that Congress intended to bar direct judicial

review of appropriate unit determinations.

Petitioner also errs in relying (Pet. 6) on Bowen v.

Massachusetts, 487 U.S. 879 (1988), and Block v. Com-

munity Nutrition Institute, 467 U.S. 340 (1984). In

Bowen, the Court held that the availability of a suit in

the Court of Claims under the Tucker Act for damages

does not preclude a suit for equitable relief under the

APA. 487 U.S. at 904. That holding has no bearing on

the question whether Section 7123 forecloses direct

district court review of appropriate unit determina-

tions.

Block fully supports the court of appeals’ holding that

judicial review is foreclosed in this case. In that case,

the Court held that consumers of dairy products could

not obtain judicial review under the APA of certain

orders issued by the Secretary of Agriculture when a

special review provision authorized only handlers of

dairy products to obtain judicial review of such orders.

The Court explained that while there is a presumption

9

favoring judicial review, that presumption is overcome

when a special review provision authorizes some

persons, but not others, to obtain judicial review. 467

USS. at 349.

The situation is similar here. Section 7123 is a special

review provision that provides the exclusive mecha-

nism for review of Authority decisions, and it precludes

direct review of an appropriate unit determination. A

party may not circumvent that scheme by seeking

direct review of an appropriate unit determination in a

district court.

2. Petitioner next contends (Pet. 7-9) that even if

Section 7123 forecloses direct review of appropriate

unit determinations, it does not foreclose review of

legal interpretations made in connection with appropri-

ate unit determinations. That contention is foreclosed

by this Court’s decision in Interstate Commerce Com-

mission v. Brotherhood of Locomotive Engineers, 482

U.S. 270 (1987). In that case, the Court squarely re-

jected the contention that “if the agency gives a ‘re-

viewable’ reason for otherwise unreviewable action, the

action becomes reviewable.” Jd. at 283.

Contrary to petitioner’s contention (Pet. 8), nothing

in McNary suggests that a party may obtain judicial

review of the reasons for an unreviewable action. In

McNary, the Court held that a statutory prohibition on

judicial review of individual agency denials of relief did

not foreclose judicial review of a class action suit alleg-

ing that the agency had engaged in a pattern of pro-

cedural due process violations in processing applica-

tions for relief. The Court reasoned that the text of the

provision at issue barred “direct judicial review of

individual denials,” not “collateral challenges to uncon-

stitutional practices and policies used by the agency in

processing applications.” 498 U.S. at 492.

10

This case is distinguishable from McNary in every

relevant respect. First, petitioner challenges the

underlying basis of the FLRA’s substantive decision;

petitioner does not make a collateral challenge to the

procedures that the FLRA uses in processing petitions.

Second, petitioner argues that the FLRA has misinter-

preted the statutory standards for making appropriate

unit determinations; petitioner makes no claim that the

FLRA has acted unconstitutionally. -McNary is

therefore inapplicable here.

Petitioner’s “legal interpretation” exception is not

only inconsistent with Brotherhood of Locomotive Engi-

neers, and unsupported by McNary; it also cannot be

reconciled with Section 7123. In making an appropriate

unit determination, the FLRA always applies its legal

interpretations of the FSLMRA to the facts of a parti-

cular case. Acceptance of petitioner’s theory that a

party may challenge the FLRA’s legal interpretations

would therefore expose every appropriate unit deter-

mination to direct judicial review. That result cannot

be reconciled with Congress’s considered judgment ex-

pressed in Section 7123 that appropriate unit deter-

minations should not be subjected to direct judicial re-

view.

3. Finally, petitioner contends (Pet. 9-18) that the

FLRA’s appropriate unit determination in this case

rests on an erroneous interpretation of the FSLMRA.

That contention does not fall within either of the

questions presented by petitioner. It is therefore not

properly presented here. Review of that contention is

also unwarranted because, for the reasons already

discussed, Section 7123 precludes direct judicial review

of appropriate unit determinations.

11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

DAVID M. SMITH

Solicitor

Federal Labor Relations

Authority

OCTOBER 2002