AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2510, PETITIONER v. FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT
No. 05-1123
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2006 Decided June 27, 2006
Stuart A. Kirsch argued the cause for petitioner. With him on the briefs was Mark D. Roth.
William E. Persina, Attorney, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief was William R. Tobey, Acting Solicitor. James F. Blandford, Attorney, entered an appearance.
Before: GINSBURG, Chief Judge, and ROGERS, Circuit Judge, and EDWARDS, Senior Circuit Judge.
GINSBURG, Chief Judge: Local 2510 of the American Federation of Government Employees petitions for review of an order of the Federal Labor Relations Authority reducing the
I. Background
William Roach, an accounting technician for the Defense Finance and Accounting Service (DFAS) of the United States Department of Defense and president of Local 2510, was suspended on the grounds that, by failing to return promptly to work аfter attending an out-of-town union meeting, he had been absent (for four hours) without leave and, in a conversation with his supervisor regarding his absence, had shown a “lack of candor.” The Union filed a grievance on behalf of Mr. Roach, challenging the suspension and, when the grievance was denied, took the mattеr to arbitration. The arbitrator described the grievance as follows:
[A] union grievance was filed protesting Roach‘s
suspension; the action barring him from the Charleston Operating Location and management‘s refusal to furnish requested information as required by 5 U.S.C. § 7114(b)(4) and Article 4 of the master agreement .... Management‘s conduct was protested as a separаte unfair labor practice as well as a contract grievance.
The arbitrator held the discipline was imposed without just cause and ordered the DFAS to rescind the suspension and give Roach back pay. He also ordered the DFAS to “cease and desist” from two practices he held were viоlations both of law and of the collective bargaining agreement between the Union and the DFAS. First, the arbitrator held the employer‘s refusal to permit Roach “access to the facility to perform union duties during the time he was serving his suspension” was an unfair labor practice within the meaning of
In a later opinion, the arbitrator concluded the Union was entitled to reimbursement of its attorney‘s fee pursuant to the Back Pay Act,
The DFAS filed with the Authority various exceptions to the fee award but did not challenge the arbitrator‘s decision on the merits. See
The Authority rejected the first exception because the DFAS had not raised the argument before the arbitrator; it rejected the third and fourth exceptions on their merits. The Authority agreed the fee award was excessive, however, and it reduced by more than half the number of compensable hours (to 148.5) and hence the amount of the award (to $33,412.50). Specifically, the Authority reduced the number of hоurs for research and preparation of a brief to 31 from the 77 claimed, on the ground that the hours claimed were excessive in light of the attorney‘s “extensive experience in labor and employment law”; reduced the number of hours for the “preparation of time charges and calculating fees” to nine from the 31 claimed because that work was “mostly clerical”; and discounted the remaining hours by 25% “to account for a failure to exercise billing judgment” and by another 25% because the fee award was “significantly disproportionate to the amount [of money] involved in the case.” When the Authority denied its requеst for reconsideration, the Union petitioned for review in this court.
II. Analysis
We do not have jurisdiction to review an order of the Authority reviewing the decision of an arbitrator unless the order of the Authority “involves an unfair labor practice.”
A. The Statutory Exception
First the Union argues we have jurisdiction because the
We explicated the meaning of the just-quoted standard in OEA. There we observed, “An [Authority] holding that there was (or was not) a statutory unfair labor practice committed in a particular case would obviously satisfy this somewhat amorphous standard, but something short of a paradigm case may also sufficiently ‘involve’ a statutory unfair labor practice to confer jurisdiction.” OEA, 824 F.2d at 65. That the standard is amorphous, however, does not mean it is met in every case. A mere “passing reference” to an unfair labor practice will not suffice. See U.S. Dep‘t of the Interior v. FLRA, 26 F.3d 179, 184 (D.C. Cir. 1994) (DOI). The unfair labor practice “must be eithеr an explicit ground for, or be necessarily implicated by, the Authority‘s decision.” OEA, 824 F.2d at 68.
The Union also suggests the order involves an unfair labor practice because the Authority must have considered the arbitrator‘s holding that the employer had engaged in an unfair labor practice when the Authority approved the arbitrаtor‘s finding that the DFAS knew or should have known it would not prevail on the merits, which finding was the basis for its holding that an award of the attorney‘s fee was in the interest of justice.
The Union‘s most promising, but ultimately unpersuasive, argument is that an unfair labor practice was “necessarily implicated” in the Authority‘s decision, OEA, 824 F.2d at 68, because it would have been “impossible for the [Authority] to review the reasonableness of the fee determination, without analyzing the research, briefing, and presentation of [the unfair labor practice] issues” raised in the grievance. As the Union acknowledged at oral argument, by this logic we would аlways have jurisdiction to review an order of the Authority reviewing an arbitrator‘s award of attorneys’ fees if the underlying dispute involved an unfair labor practice. As explained below, we cannot read the exception to the jurisdictional bar so broadly.
Although the Statute does not expressly tell us “how broadly ‘invоlves [an unfair labor practice]’ should be construed,” id. at 65, we are guided by the rationale for this exception to the otherwise absolute bar to judicial review in
We see no plausible rationale for the alternative rule implicitly advanced by the Union, namely, that our review extends to any order in a case in which an unfair labor practice was involved -- regardless whether the unfair labor practice is involved in the particular order of which review is sought. We have previously aсknowledged that an order may be reviewable even if the Authority did not therein address an unfair labor practice “on the merits,” OEA, 824 F.2d at 71, but we cautioned at the same time that to be reviewable the substance of the unfair labor practice must at least “be discussed in some way in, or be some part of, the Authority‘s ordеr.” Id. at 65. Without even that much involvement there is no risk the Authority will leave the path of the law of unfair labor practices and yet escape the review that would bring it back to the straight and narrow. Where there is no such risk, neither is there any reason for the Congress to have departed from its established policy “favоring arbitration of labor disputes and accordingly granting arbitration results substantial finality,” which policy underlies the general rule in
Thus, in OEA we held an order did involve an unfair labor practice because the Authority had reviewed an arbitrator‘s decision that arbitration was precluded by a previous unfair labor practice charge. Id. at 71. The Authority did not address the unfair labor practice on the merits but it did more than
Here, in contrast, the Authority did not engage at all with the substance of the unfair labor practice. The Authority considered only whether the hours charged by the union attorney were reasonable, taking into account both his experience and the relatively uncomplicated nature of the case. Because the Authority‘s decision has no bearing upon the law of unfair labor practices, its order does not “involve[] an unfair labor practice,”
Contrary to the position the Government took at oral argument, our decision should not be read to establish a simplistic rule barring review of an order that deals solely with a fee award while allowing review of an order in which the Authority addresses both an unfair labor practice and a fee issue. In the latter case, the rationale for review of the order would obtain to the extent, and only to the extent, the unfair labor practice was involved.
B. The Leedom Exception
The Union also argues we should exercise jurisdiction pursuant to Leedom v. Kyne, in which the Supreme Court held a district court may, in what we have called “exceptional circumstances,” Council of Prison Locals v. Brewer, 735 F.2d 1497, 1500 (1984), review the decision of an agency even in thе face of a statutory provision that precludes judicial review. 358 U.S. 184. More particularly, the agency‘s alleged conduct must be “contrary to a specific [statutory] prohibition” that is both “clear and mandatory,” id. at 188, and the party aggrieved must
The Union‘s argument from Leedom v. Kyne comes too late. A dozen years ago we rejected the suggestion that Leedom v. Kyne authorizes the court of appeals to enforce a clear statutory prohibition in the first instance. “The Leedom exception,” we explained, “is premised on the original federal subject matter jurisdiction of the district courts. Even if Leedom did apply to the [Authority‘s alleged] actions, it would therefore not confer jurisdiction uрon us to hear the case.” U.S. Dep‘t of the Treasury v. FLRA, 43 F.3d 682, 688 n.6 (D.C. Cir. 1994) (citation omitted).
National Ass‘n of Government Employees, Local R5-136 v. FLRA, No. 03-1230, 2003 U.S. App. LEXIS 25934, at *1-2 (D.C. Cir. Dec. 19, 2003), and American Federation of Government Employees, Local 2986 v. FLRA, 130 F.3d 450, 451 (D.C. Cir. 1997), are not precedents to the contrary. There we examined whether the Authority had violated a clear and mandatory statutory prоhibition but we did not consider our jurisdiction to do so. And, as the Supreme Court has “repeatedly held[,] ... the existence of unaddressed jurisdictional defects has no precedential effect.” Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996). Therefore, neither Leedom v. Kyne nor its progeny support jurisdiction in this court to consider the present petition.
III. Conclusion
For the foregoing reasons, the petition for review is
Dismissed.