United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2006 Decided June 27, 2006
No. 05-1123
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2510,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of an Order of the
Federal Labor Relations Authority
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
2
attorney’s fee an arbitrator awarded the Union for representing
a member in a grievance arbitration. We do not have
jurisdiction to review a final order of the Authority “involving
an award by an arbitrator” unless “the order involves an unfair
labor practice under section [7116]” of Title V,* 5 U.S.C. §
7123(a)(1), as the Union argues this order does. In the
alternative the Union argues we have jurisdiction pursuant to
Leedom v. Kyne, 358 U.S. 184 (1958). We reject the first
argument because the Authority’s order addresses only the
attorney’s fee, and therefore does not involve an unfair labor
practice; we reject the second argument because Leedom v. Kyne
implicates the jurisdiction of the district court, not that of the
court of appeals. Therefore, we dismiss the Union’s petition for
lack of jurisdiction.
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 after 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 matter to arbitration. The arbitrator described the
grievance as follows:
[A] union grievance was filed protesting Roach’s
*
Although the statute refers to “section 7118,” the reference
“has been recognized to be an error; the correct reference is to section
7116.” Overseas Educ. Ass’n v. FLRA, 824 F.2d 61, 63 n.2 (D.C. Cir.
1987) (OEA).
3
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 separate
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 violations 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 5 U.S.C. § 7116 and a
violation of 5 U.S.C. § 7102 (right to assist labor organization).
Second, he held the employer’s refusal to provide the Union
with certain information and documents the Union needed in
order to assess the strength of Roach’s grievance was also a
violation of § 7102, Article 4 of the master labor agreement, and
of 5 U.S.C. § 7114(b)(4) (duty to furnish data maintained by the
agency).
In a later opinion, the arbitrator concluded the Union was
entitled to reimbursement of its attorney’s fee pursuant to the
Back Pay Act, 5 U.S.C. § 5596. He awarded a fee of $74,700,
at a rate of $225 per hour for 332 hours of work, and $1,978.48
in expenses.
The DFAS filed with the Authority various exceptions to
the fee award but did not challenge the arbitrator’s decision on
the merits. See id. § 7122. The employer argued: (1) the
arbitrator lacked authority under the collective bargaining
agreement to award fees; (2) the fee awarded was unreasonable;
4
(3) the award was not in the interest of justice; and (4) the award
was not supported by a reasoned decision.
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 hours 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 request 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.” 5
U.S.C. § 7123(a)(1). In this case the order of the Authority
deals only with the issue of the union attorney’s fee. The Union
raises two arguments in an attempt to overcome the
jurisdictional bar to our review of such an order.
A. The Statutory Exception
First the Union argues we have jurisdiction because the
5
Authority’s order “involves an unfair labor practice” within the
meaning of § 7123(a)(1). As we explained in OEA, the Federal
Service Labor-Management Relations Statute, 5 U.S.C. § 7101
et seq., establishes a “two-track system for resolving labor
disputes.” 824 F.2d at 62. A party aggrieved by an unfair labor
practice may go down either track but not both. 5 U.S.C. §
7116(d). A party starts down the first track by filing an unfair
labor practice charge with the Authority. Id. § 7118(a). If the
General Counsel issues a complaint, then the Authority will
adjudicate the matter, and its decision will be subject to judicial
review. Id. § 7123(a). A party starts down the second track, as
did the Union in this case, by filing a grievance and pursuing it
through the procedures provided in the collective bargaining
agreement between the employer and the union. Id. §
7121(a)(1). If the grievance is denied, then the union may seek
binding arbitration. Id. § 7121(b)(1)(C)(iii). If either party is
dissatisfied with the decision of the arbitrator, then it may file
exceptions thereto with the Authority. Id. § 7122. Judicial
review of the Authority’s decision, however, is foreclosed unless
its order “involves an unfair labor practice.” Id. § 7123(a)(1).
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
either an explicit ground for, or be necessarily implicated by, the
Authority’s decision.” OEA, 824 F.2d at 68.
6
In the order now before us the Authority addressed only the
fee award, but the Union contends the order is nonetheless
reviewable because the arbitrator’s “principal award,” meaning
his award on the merits of the grievance, “is replete with
findings of statutory [unfair labor practices]” and there are
“repeated references to these findings in the [Authority’s]
decision.” Actually, the arbitrator found only one unfair labor
practice in his decision on the merits, namely, the employer’s
refusal to permit Roach access to the DFAS facility. That other
statutory violations or violations of the collective bargaining
agreement “could be characterized as ... statutory unfair labor
practice[s] will not suffice” to make the order reviewable. Id. at
67; see 5 U.S.C. § 7116(a)(8) (unfair labor practice for agency
to “fail or refuse to comply with any provision of” Statute). But
more to the point, it is not the arbitrator’s award on the merits of
the grievance that must involve an unfair labor practice as the
predicate for judicial review; it is the order of the Authority that
is the subject of the petition for judicial review -- in this case the
Authority’s order reviewing the arbitrator’s fee award -- that
must involve an unfair labor practice. See 5 U.S.C. § 7123(a).
In the latter order, there is neither a single mention of § 7116
(unfair labor practices) nor any discussion of the arbitrator’s
finding of an unfair labor practice other than passing references
when the Authority recounts the issues presented in this “fairly
straightforward case.” As we have said before, a “passing
reference does not satisfy the requirement” that the order
involve an unfair labor practice. DOI, 26 F.3d at 184.
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 arbitrator’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.
7
Both the Authority and the arbitrator, however, considered the
likelihood the DFAS would not prevail only with respect to
issues resolved under the collective bargaining agreement
between the union and the employer, namely, the validity of
Roach’s discipline for being absent without leave and for a lack
of candor. Neither the arbitrator nor the Authority considered
whether the DFAS should have known it would be unable to
defend its having denied Roach access to its facility, which is
what the arbitrator held was an unfair labor practice. If the
Authority in the order under review had considered whether the
DFAS should have known it would not prevail with respect to
the only unfair labor practice the arbitrator found, then perhaps
the order would have “involved” an unfair labor practice, but
that is not what happened. In the order under review, there was
no discussion at all of the arbitrator’s finding of an unfair labor
practice in his earlier decision on the merits of the Union’s
grievance.
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 always
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 ‘involves [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 §
8
7123(a)(1). The exception functions, as the Authority
persuasively explains, to insure uniformity in the case law
concerning unfair labor practices. By making reviewable every
order involving an unfair labor practice claim, whether it arises
from a complaint issued by the General Counsel or from a
dispute submitted to an arbitrator, the Congress made certain
there would be a single, uniform body of case law concerning
unfair labor practices.
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 acknowledged 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 order.” 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 “favoring
arbitration of labor disputes and accordingly granting arbitration
results substantial finality,” which policy underlies the general
rule in § 7123 barring judicial review of arbitral awards. Id. at
63.
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
9
simply refer to the finding; it was required “to make a detailed
assessment of the precise nature of a statutory unfair labor
practice charge, and then to compare the substance of that
charge with the substance of the grievance before the arbitrator”
prior to concluding the two claims were identical. Id. at 71.
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,”
5 U.S.C. § 7123(a)(1), and is not judicially reviewable.
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 the
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
10
have no other “meaningful and adequate means of vindicating
its statutory rights,” Bd. of Governors, Fed. Reserve Sys. v.
MCorp Fin., Inc., 502 U.S. 32, 43 (1991).
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 upon 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 prohibition 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.