808 F. Supp. 2d 99
D.D.C.2011Background
- Dr. Hussain, a physician at the VA, and AFGE Local 2798 challenge FLRA General Counsel’s decision not to issue an unfair labor practice complaint related to Hussain’s AWOL status and arbitration award.
- Hussain’s 2003 AWOL status followed a reduced privileges decision and a low performance evaluation; he sought medical leave and retirement, leading to disputes over timing and classification of his status.
- AFGE pursued a grievance under the VA–union contract; the arbitrator found the VA violated the contract and constructively discharged Hussain, awarding reinstatement with back pay and fees, which the VA did not implement.
- The grievance was then brought to the FLRA, where the Chicago Regional Director (acting for the General Counsel) declined to issue a complaint, determining Hussain’s grievance was precluded under 5 U.S.C. § 7121(d) because the matter had been raised in the EEO process.
- AFGE appealed within FLRA; the General Counsel upheld the Regional Director’s decision, and AFGE filed a separate motion for reconsideration, which was denied as untimely (though plaintiffs dispute timeliness).
- The plaintiffs filed suit challenging the GC’s non-enforcement decision and timeliness ruling, arguing due process and misapplication of law; defendants moved to dismiss or for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GC decision not to issue a complaint is reviewable | AFGE contends exceptions apply to jurisdiction or statutory interpretation. | Waller Pope argues such decisions are not reviewable under POPA and related precedent. | Non-reviewable; GC decisions not to issue complaints are not subject to judicial review. |
| Whether ILA-disclaimer exception applies to GC decisions | ILA exception allows review when non-enforcement rests on lack of jurisdiction. | POP A controls; ILA exception does not apply to GC decisions not to issue complaints. | ILA exception does not apply to GC decisions about whether to issue complaints. |
| Whether Crowley-type statutory-interpretation review could apply | GC’s interpretation of § 7121(d) could be reviewed as a statutory interpretation. | Crowley does not apply to isolated non-enforcement decisions by the GC under FLRA. | Crowley-based review is not available; no judicial review for such interpretation here. |
| Whether Leedom v. Kyne exception applies | Governs limited review where agency acts contrary to a statute. | Leedom is inapplicable for garden-variety legal errors. | Leedom exception does not apply; no jurisdiction to review the GC decision. |
| Whether constitutional claims are reviewable and meritorious | Plaintiffs seek procedural and substantive due process protections for alleged deprivations. | No protected property interest or grave due process violation; timeliness errors do not amount to due process denial. | Constitutional claims are reviewable, but grant to defendants on merits; non-constitutional claims dismissed for lack of jurisdiction. |
Key Cases Cited
- National Treasury Employees Union v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006) (context for FLRA authority and reviewability framework)
- Policy Opinion of the Federal Labor Relations Authority (POPA), 128 F.3d 751 (D.C. Cir. 1997) (non-reviewability of GC not to issue unfair labor practice complaints)
- Int’l Longshoremen’s Ass’n, AFL-CIO v. National Mediation Board, 785 F.2d 1098 (D.C. Cir. 1986) (disclaimer of jurisdiction in some agency orders; limited applicability)
- Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) (statutory-interpretation review narrowed; general enforcement policy reviewable only in certain contexts)
- Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988) (jurisdiction to review constitutional claims despite non-reviewability)