Railway Labor Executives' Ass'n v. National Mediation Board

RANDOLPH, Circuit Judge, concurring, with whom MIKVA, Chief Judge, WALD, HARRY T. EDWARDS, and SENTELLE, Circuit Judges, join:

Professor Henry M. Hart’s celebrated “Dialogue” describes Switchmen’s Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), as “too weakly reasoned to have much growing power.” Hart & Wesohler’s The Federal Courts and The Federal System 409 (Paul M. Bator et al. eds., 3d ed. 1989). Yet grow it must, by leaps and bounds, to cover this very different ease.

Years ago we held Switchmen’s in one hand and Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), in the other, looked back and forth at the opinions and extrapolated the following: “peek at the merits” and if you see the National Mediation Board committing an “obvious” error in performing its certification duties, an error “gross” enough to constitute defiance of a statutory mandate, then and only then review the Board’s action. International Bhd. of Teamsters v. Brotherhood of Ry., Airline & S.S. Clerks, 402 F.2d 196, 205 (D.C.Cir.), *672cert. denied, 393 U.S. 848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968). In my view, whether the original majority opinion in this case just peeked or whether, as Judge Williams thought in dissent, it threw the door wide open and looked the merits straight in the eye, is beside the point. To ask the questions is to assume, incorrectly, that Switch-men’s applies to the case before us.

“Generalizations,” Justice Douglas wrote for the Court, “as to when judicial review of administrative action may or may not be obtained are of course hazardous.” Switchmen’s, 320 U.S. at 301, 64 S.Ct. at 97. That was 1943; the hazards are now long gone. Federal courts run little risk in generalizing, as they now often do, that judicial review of agency action is presumptively available. See, e.g., Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 794, 7 L.Ed.2d 809 (1962); Armstrong v. Bush, 924 F.2d 282, 291 (D.C.Cir.1991). Enactment of the Administrative Procedure Act, and particularly 5 U.S.C. § 704, made it safe to say that judicial review “will not be cut off unless there is a persuasive reason to believe that such was the purpose of Congress.” Abbott Labs., 387 U.S. at 140, 87 S.Ct. at 1511. This principle derived from the APA, and not Switchmen’s, controls.

Not Switchmen’s because the Supreme Court’s decision and the Court’s explanation for it do not speak to the type of Board action at issue here. In Switchmen’s, one union sued to set aside the Board’s order certifying, pursuant to § 2, Ninth of the Railway Labor Act, 45 U.S.C. § 152 Ninth, a rival union as the authorized collective bargaining agent. The union argued that the Board had misconstrued its authority under the Act with respect to the appropriate bargaining unit. The Board issued its certificate in an adjudication as the APA defines it, that is, an “agency process for the formulation of an order.” 5 U.S.C. § 551(7). An inter-union dispute of the sort involved in Switch-men’s, the Court said, raised an “explosive problem,” a problem Congress — through its silence — left to the Board alone to decide without any “dragging out of the controversy into other tribunals of law.” 320 U.S. at 303, 305, 64 S.Ct. at 98, 99. To allow the dispute to fester while it worked its way through the courts would, in other words, tend to defeat the Act’s purpose of “preventing], if possible, wasteful strikes and interruptions of interstate commerce.” Detroit & Toledo Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 148, 90 S.Ct. 294, 298, 24 L.Ed.2d 325 (1969). As the Court wrote in the companion case to Switchmen’s, “[h]owever wide the range of jurisdictional disputes [between unions] embraced within § 2, Ninth, Congress did not select the courts to resolve them.” General Comm. v. Missouri-Kansas-Texas R.R., 320 U.S. 323, 336, 64 S.Ct. 146, 152, 88 L.Ed. 76 (1943) (footnote omitted).

In case number 91-5223, however, we are not faced with a feud between rival unions.† The Board has not adjudicated such a jurisdictional dispute. It has not issued a certificate pursuant to § 2, Ninth. There is no “explosive problem,” no simmering controversy demanding swift and final settlement. We are asked to review the Board’s issuance of the Merger Procedures described in the majority’s opinion. These are plainly “rules” within the meaning of the APA — that is, “agency statements] of general ... applicability and future effect designed to implement ... policy” (5 U.S.C. § 551(4)). I would therefore follow the analysis in Air Line Dispatchers Ass’n v. National Mediation Board, 189 F.2d 685, 687-89 (D.C.Cir.1951). Switchmen’s or not, the APA still controls. Under the APA, there is judicial review unless the statute, by its terms or as judicially interpreted, precludes it. 189 F.2d at 688, citing The ATTORNEY Genehal’s Manual ON THE ADMINISTRATIVE PROCEDURE ACT 136 (1947). Switchmen’s interpreted the Railway Labor Act to bar judicial review of Board adjudications. But that interpretation and the reasons behind it do not reach the Board’s rulemaking in this case. In light of the presumption in favor of judicial review *673and because there is no “clear and convincing evidence,” Abbott Labs., 387 U.S. at 141, 87 S.Ct. at 1511 (quoting Rusk, 369 U.S. at 379-80, 82 S.Ct. at 794), that Congress intended to insulate Board rulemaking from judicial scrutiny, the APA gives petitioners the right to a decision on the merits and the APA obligates this court to give it. Air Line Dispatchers Ass’n, 189 F.2d at 689.

Why, the dissent nevertheless asks, should Switchmen’s not be stretched to insulate Board rulemaking as well as Board adjudications of inter-union disputes? The APA gives the answer. After the APA, judicial review may be “preelude[d]” only “to the extent” a statute so provides. 5 U.S.C. § 701. No statute, certainly not § 2, Ninth of the Railway Labor Act, bars judicial review of Board rulemaking and no court, before or after enactment of the APA, has ever ruled otherwise. According to the Attorney General’s Manual, the concept embodied in the APA’s “to the extent” (or, as it then read, “so far as”) clause is “a most important principle of construction”; it is a principle intended to recognize that statutes do not always bar “judicial review altogether” and it is a principle the dissent completely disregards. Manual at 95; see also III Kenneth Culp Davis & Riohaed J. PieRCe, JR., Administrative Law Treatise § 17.8, at 153-58 (1994). The Attorney General’s Manual illustrates the point with a case in which a fired federal employee cannot challenge the agency’s judgment to remove him from office, but can obtain judicial review of the question whether the agency followed the required procedures. Id Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986), supplies a more contemporary example. Athough United States v. Erika, Inc., 456 U.S. 201, 102 S.Ct. 1650, 72 L.Ed.2d 12 (1982), held that under Part B of the Medicare program, computations of awards are not subject to judicial review, Michigan Academy held that regulations governing how the awards are computed are reviewable. Switchmen’s is to Erika as this case is to Michigan Academy. Unlike most other agencies, the National Mediation Board’s exercise of adjudicatory authority is generally immune from judicial scrutiny, but like other agencies its exercise of rule-making power is not.

As to the merits, I fully agree with the majority’s well-reasoned decision that the Merger Procedures are contrary to the Act.

I agree with the majority’s decision to remand case number 91-5310 in light of our disposition of case number 91-5223.