United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2002 Decided March 22, 2002
No. 01-5170
Association of Civilian Technicians, Inc.,
Appellant
v.
Federal Labor Relations Authority,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 99cv02562)
Daniel M. Schember argued the cause and filed the briefs
for appellant.
William E. Persina, Attorney, Federal Labor Relations
Authority, argued the cause for the appellee. With him on
the brief were David M. Smith, Solicitor, and William R.
Tobey, Deputy Solicitor.
Before: Tatel and Garland, Circuit Judges, and Williams,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: This case presents a straightforward
question of statutory interpretation: Does the statute that
gives federal courts of appeals jurisdiction to review decisions
of the Federal Labor Relations Authority "other than ...
order[s] ... involving an appropriate unit determination,"
leave district courts free to review such determinations pursu-
ant to the Administrative Procedure Act? Answering no, we
affirm the district court's dismissal of this challenge to an
appropriate unit determination.
I.
National Guard "dual status technicians" (mechanics, ma-
chinists, and supply technicians) are federal employees who,
pursuant to the National Guard Technicians Act (NGTA), 32
U.S.C. s 709, are separately employed and supervised by the
Adjutant General of their respective State Guards. As a
condition of employment, they must maintain membership in
the state unit of the National Guard for which they work. Id.
s 709(b). For collective bargaining purposes, dual status
technicians are represented by appellant, the Association of
Civilian Technicians. Though a national union, the Associa-
tion bargains separately on behalf of each state-based unit.
This case began when the Association filed a petition with
the Federal Labor Relations Authority seeking to have dual
status technician bargaining units consolidated into a single,
national unit. The Federal Labor Relations Act (FLRA)
directs the Authority to determine whether unit determina-
tion petitions are "appropriate," based on such factors as
whether the determination "will ensure a clear and identifi-
able community of interest among the employees in the unit
and will promote effective dealings with, and efficiency of the
operations of the agency involved." 5 U.S.C. s 7112(a). Ap-
plying these standards, the Authority's Regional Director
denied the petition. On review, the Authority acknowledged
that some evidence--particularly the "interchange" of techni-
cians among State Guards--supported the appropriateness of
the proposed national unit. The Authority, however, affirmed
the Regional Director's conclusion that more evidence justi-
fied maintaining state-based units: Each National Guard
state unit has "an individual mission unique to its state or
territory"; the NGTA invests Adjutants General with "overall
authority over all personnel and labor relations matters in
their respective State Activities"; and national collective bar-
gaining would be ineffective because "authority over the day-
to-day employment of the technicians ... is designated by
statute to the states." The Association urged the Authority
to consider the increased bargaining rights that consolidation
would purportedly bring to union members, but the agency
declined to do so, agreeing with the Regional Director that
the statutory obligation to "ensure employees the fullest
freedom in exercising the rights guaranteed under this chap-
ter," id., applies only to units already determined to be
appropriate. On the basis of this analysis, the Authority
denied the petition for review.
Invoking section 702 of the Administrative Procedure Act--
"[a] person ... aggrieved by agency action ... is entitled to
judicial review thereof," id. s 702--the Association sued the
Authority in the United States District Court for the District
of Columbia, arguing that the unit determination was "arbi-
trary [and] capricious," id. s 706(a)(2)(A). The district court
dismissed the case for lack of jurisdiction, relying on FLRA
section 7123: "Any person aggrieved by any final order of the
[Federal Labor Relations] 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 [appropriate] United
States court of appeals." Id. s 7123(a) (emphasis added).
The district court concluded that this exception deprives not
just courts of appeals, but all federal courts, of jurisdiction to
review appropriate unit determinations.
The Association appeals. Our review is de novo. Nat'l
Taxpayers Union v. United States, 68 F.3d 1428, 1432 (D.C.
Cir. 1995) ("In a case ... involving a District Court's dismiss-
al of a complaint for lack of subject matter jurisdiction, our
standard of review is de novo.").
II.
Notwithstanding eighty-two pages of briefing, this case is
not difficult. FLRA section 7123 gives courts of appeals
jurisdiction to review Authority decisions "other than ...
order[s] under ... section 7112 of this title (involving an
appropriate unit determination)." 5 U.S.C. s 7123(a). The
APA expressly provides that its general review provisions,
pursuant to which the Association filed this suit, do not apply
where "statutes preclude judicial review." Id. s 701(a)(1); cf.
id. s 702 ("Nothing herein ... confers authority to grant
relief if any other statute that grants consent to suit express-
ly or impliedly forbids the relief ... sought."). Because
FLRA section 7123 "precludes judicial review" of appropriate
unit determinations, the district court properly held that it
lacked jurisdiction to hear this case.
Pointing out that FLRA section 7123 mentions only "courts
of appeals," the Association insists that the provision does not
bar district courts from reviewing appropriate unit determi-
nations. Like the district court, we disagree. We cannot
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
intended that such determinations could nevertheless be re-
viewed by district courts. See Columbia Power Trades
Council v. United States Dep't of Energy, 671 F.2d 325, 327
(9th Cir. 1982) ("At no point does the Act entitle a party to
petition a district court for relief. Given the broad purpose of
the Act[,] ... and the limited role of the judiciary in this
statutory scheme, it is manifestly the expressed desire of
Congress to create an exclusive statutory scheme.") (footnote
omitted).
Although FLRA section 7123's clarity makes resort to
legislative history unnecessary, we think it worth noting that
the Joint Committee Report on the bill that became the
FLRA declared: "As in the private sector, there will be no
judicial review of the Authority's determination of the appro-
priateness of bargaining units." H.R. Rep. No. 95-1717, at
153 (1978). The Report does not say that there will be "no
circuit court review"; it says there will be "no judicial re-
view." Moreover, the Joint Committee's comparison to the
"private sector" demonstrates that Congress had in mind a
review scheme identical to the NLRB's, and the Supreme
Court has determined that the National Labor Relations Act's
preclusion of direct court of appeals review of certain matters
also bars district court APA review. See NLRB v. United
Food & Commercial Workers Union, Local 23, 484 U.S. 112,
133 (1987). "It would be absurd," the Supreme Court de-
clared, to allow district court review of settlement determina-
tions when the NLRA expressly precludes direct review of
such determinations in courts of appeals. Id.
In holding that FLRA section 7123 precludes direct review
of Authority appropriate unit determinations, we emphasize
that the Association remains free to obtain indirect judicial
review by refusing to bargain, drawing an unfair labor prac-
tice charge, and appealing that charge to the Authority and
then to a court of appeals. See, e.g., Dep't of Energy v.
FLRA, 880 F.2d 1163, 1163-65, 1164 n.3 (10th Cir. 1989)
(reviewing the Authority's unit determination in the context
of an unfair labor practice proceeding). It is in this way, as
the Joint Committee indicated, see supra at 4-5, that the
FLRA parallels the NLRA. The Association claims that the
existence of this indirect method of review implies that direct
review should be available as well, but we rejected a virtually
identical argument in Physicians National House Staff Ass'n
v. Fanning, where a union sought APA review of an NLRB
denial of a certification petition. 642 F.2d 492, 495 (D.C. Cir.
1980). Pointing out that the denial occurred in the course of
an unreviewable representation proceeding, we rejected the
union's argument that the district court nevertheless had
jurisdiction because the union's only other means of review
was through an onerous unfair labor practice proceeding.
Our analysis in Fanning applies here as well:
[I]t may be unlikely that the correctness of these deci-
sions may be tested in an unfair labor practice proceed-
ing reviewable in a court of appeals, but we think this is
not a reason to permit District Court review. Congress
has considered the likelihood that some Board decisions
in representation proceedings may evade all judicial re-
view. Nevertheless, it has rejected attempts to provide
review in such cases.
Id. at 499.
Undeterred by all this "clear and convincing evidence" of
Congressional intent to preclude judicial review, Abbott Labs.
v. Gardner, 387 U.S. 136, 141 (1967) (citation and internal
quotation marks omitted), the Association offers four unper-
suasive arguments in support of its belief that the district
court nevertheless had jurisdiction to entertain its challenge
to the appropriate-unit determination in this case. Citing a
Supreme Court case, McNary v. Haitian Refugee Center,
Inc., 498 U.S. 479 (1991), and a decision of this circuit,
Crowley Caribbean Transportation, Inc. v. PeNa, 37 F.3d 671
(D.C. Cir. 1994), the Association first argues that two aspects
of the Authority's decision amount to "broad legal interpreta-
tion[s]" that the district court had jurisdiction to review even
though they were embedded in an otherwise unreviewable
decision. Appellant's Opening Br. at 24. The "broad legal
determinations" the Association has in mind are the Authori-
ty's holding that the NGTA invests Adjutants General with
responsibility for personnel and labor relations matters in
their respective state activities, and the agency's finding that
an increase in employee rights resulting from consolidation is
not a relevant factor in appropriate unit determinations. The
Supreme Court, however, has generally rejected "the princi-
ple that if the agency gives a reviewable reason for otherwise
unreviewable action, the action becomes reviewable." Inter-
state Commerce Comm'n v. Bhd. of Locomotive Eng'rs, 482
U.S. 270, 283 (1987) (citation and internal quotation marks
omitted). Although the cases the Association cites reveal
limited exceptions to this principle, those exceptions are
inapplicable here. In McNary, the Supreme Court held that
a district court could exercise subject matter jurisdiction over
a general due process challenge to the Immigration and
Naturalization Service's administration of "Special Agricultur-
al Worker" status, even though the controlling statute made
individual status determinations unreviewable. 498 U.S. at
494. Just because district courts may in some cases review
generic, constitutional challenges to otherwise unreviewable
agency actions hardly means that the district court in this
case had jurisdiction over the Association's non-constitutional,
individualized claim. Nor does our assumption in Crowley
that a district court might have jurisdiction over an agency's
articulation of its general enforcement policy, 37 F.3d at 677,
support the Association's argument that district courts may
review any agency legal interpretation made in the context of
otherwise unreviewable individual adjudications. On the con-
trary, Crowley echoes the Supreme Court's "square[ ] re-
ject[ion of] the notion of carving reviewable legal rulings out
from the middle of non-reviewable actions." Id. at 676 (citing
Bhd. of Locomotive Eng'rs, 482 U.S. at 283).
The Association next argues that the Authority's findings
regarding the scope of Adjutant General responsibility and
the relevance of increased employee rights are reviewable
pursuant to the "rule" giving federal courts authority to
review agency decisions that "erroneously disclaim jurisdic-
tion to enforce the law[.]" Appellant's Opening Br. at 33. In
support of this proposition, the Association cites a Ninth
Circuit decision, Montana Air Chapter No. 29 v. FLRA, 898
F.2d 753 (1990). That case, however, as well as a similar
decision of this circuit, International Longshoremen's Ass'n
v. National Mediation Board, 785 F.2d 1098, 1100 (D.C. Cir.
1986), held that agency nonenforcement decisions, normally
unreviewable, see Heckler v. Chaney, 470 U.S. 821, 832 (1985),
may be reviewed if they rest on the agency's erroneous belief
that it lacks jurisdiction. That rule does not apply here, for
the Authority neither disclaimed jurisdiction nor declined to
enforce the FLRA. On the contrary, the agency affirmative-
ly exercised its statutory jurisdiction, evaluated the merits of
the consolidation petition, and concluded that the proposed
unit was not appropriate.
Third, the Association attempts to bring this case within
the ambit of Adams v. Richardson, which held that district
courts may exercise jurisdiction over agency action that
amounts to "an abdication of ... Congress' clear statement of
an affirmative enforcement duty." 480 F.2d 1159, 1162 (D.C.
Cir. 1973). Citing the agency's same two rulings about
Adjutant General responsibility and the relevance of in-
creased bargaining rights, the Association argues that the
Authority abdicated its responsibility "to determine appropri-
ate bargaining units" and "to enforce [the] mandate of [sec-
tion 7112 of the Act]." Appellant's Opening Br. at 34-35. In
our view, these two rulings do not come close to the "abdica-
tion" that justified district court jurisdiction in Adams. In
that case, the Secretary of Health, Education, and Welfare
declined to enforce an entire statutory scheme, Title VI of the
Civil Rights Act of 1964. Adams, 480 F.2d at 1161. The
evidence showed that the Secretary, in violation of an unam-
biguous statutory directive that HEW "effectuate the provi-
sions of ... this title," 42 U.S.C. s 2000d-1, failed to take
appropriate action to terminate federal funding to segregated
school systems, a failure we called "a dereliction of duty,"
Adams, 480 F.2d at 1163. The record in this case reflects no
such dereliction. As we indicated above, the Authority exer-
cised jurisdiction over the consolidation petition and ruled
against the Association. The Association's claim that the
agency abdicated its enforcement responsibility represents
nothing more than substantive disagreement with the agen-
cy's legal rulings.
Finally, the Association argues that the Authority's ruling
amounts to the kind of "open violation of statutory authority"
that the Supreme Court found reviewable in Leedom v. Kyne,
358 U.S. 184, 188 (1958). "The invocation of Leedom jurisdic-
tion," we have emphasized, "is extraordinary; to justify such
jurisdiction, there must be a specific provision of the Act
which, although it is clear and mandatory, was nevertheless
violated by the [agency]." Council of Prison Locals v. Brew-
er, 735 F.2d 1497, 1501 (D.C. Cir. 1984) (citations and internal
quotation marks omitted). In this case, the Association
points to no clear violation of an unambiguous statutory
provision. Instead, its arguments--that the Authority openly
violated the clear mandate of the Act by determining that the
NGTA prohibits nationwide consolidation of bargaining units
and (again) by failing to include increased bargaining rights
as a factor in its decision--merely repeat its disagreement
with the agency's ruling. This falls well short of the require-
ments for Leedom jurisdiction. "That the [agency] may have
made an error of fact or law is insufficient; the [agency] must
have acted without statutory authority." Fanning, 642 F.2d
at 496.
The dismissal of this case for want of jurisdiction is af-
firmed.
So ordered.