American Federation of Government Employees v. FLRA, 130 F.3d 450 (D.C. Cir. 1997)

ORAL ARGUMENT SCHEDULED FOR NOVEMBER 18, 1997

No. 96-1344
No. 96-1363

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2986,
                    Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                    Respondent


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3006,
                    Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                    Respondent
_______________________________



ON PETITIONS FOR REVIEW OF DECISIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY




BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY


            DAVID M. SMITH
              Solicitor

            WILLIAM R. TOBEY
              Deputy Solicitor

            ANN M. BOEHM
              Attorney


            Federal Labor Relations Authority
            607 14th Street, N.W.
            Washington, D.C.  20424
            (202) 482-6620




ORAL ARGUMENT SCHEDULED FOR NOVEMBER 18, 1997

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

A.  Parties

Case No. 96-1344:

Petitioner below:   American Federation of Government Employees, Local
2986

Respondent below:   U.S. Department of Defense, National Guard Bureau,
The Adjutant General, State of Oregon

Petitioner in this Court:  American Federation of Government Employees, Local
2986

Respondent in this Court:  The Federal Labor Relations Authority


Case No. 96-1363:

Petitioner below:   American Federation of Government Employees, Local
3006

Respondent below:   U.S. Department of Defense, National Guard Bureau,
Idaho National Guard, Adjutant General, State of Idaho

Petitioner in this Court:  American Federation of Government Employees, Local
3006

Respondent in this Court:  The Federal Labor Relations Authority

B.  Rulings under review

Case No. 96-1344:
    The Authority issued its Decision in American Federation of Government
    Employees, Local 2986 and U.S. Department of Defense, National Guard
    Bureau, The Adjutant General, State of Oregon, Case No. 0-AR-2550 on
    July 19, 1996.  The Authority's decision is reported at 51 FLRA (No.
    126) 1549.

Case No. 96-1363:
    The Authority issued its Decision in American Federation of Government
    Employees, Local 3006 and U.S. Department of Defense, National Guard
    Bureau, Idaho National Guard, Adjutant General, State of Idaho, Case No.
    0-AR-2571 on July 31, 1996.  The Authority's decision is reported at 51
    FLRA (No. 142) 1693.

C.  Related Cases
    These cases have not previously been before this Court or any other
    court.  Counsel for the Authority is unaware of any cases pending before
    this Court which are related to these cases within the meaning of Local
    Rule 28(a)(1)(C).




TABLE OF CONTENTS

STATEMENT OF JURISDICTION  1

STATEMENT OF THE ISSUES  2

STATEMENT OF THE CASE  3

I.  Nature of the Case  3

II.  Statement of the Facts  4

A.  Background  4

1.  Pertinent National Guard Technician statutes
and regulations  4

2.  Factual background  5

a.  AFGE, Local 2986  5

i.  Facts  5
ii.  The arbitrator's award  6
iii.  The Authority's decision  6

b.  AFGE, Local 3006  8

i.  Facts  8
ii.  The arbitrator's award  9
iii.  The Authority's decision  10

STANDARD OF REVIEW  11

SUMMARY OF ARGUMENT  12

ARGUMENT  13

I.  Pursuant to 5 U.S.C. § 7123(a), this Court lacks
subject matter jurisdiction to review the Authority's
decisions setting aside arbitrators' awards issued
under 5 U.S.C. § 7122 that do not involve an unfair
labor practice  13

A.  Introduction  13

B.  The Statute's language and legislative history
make clear that Congress intended to bar judicial
review of Authority decisions on exceptions to
arbitrators' awards  14

1.  The Statute's language  15

2.  The Statute's legislative history  16

II.  None of the few exceptions to the general bar to
judicial review of Authority arbitration decisions
under section 7122 are applicable to this case  17

A.  The Customs Service exception is inapplicable  18

1.  This Court's holding in Customs Service does
not apply to this case and thus does not
provide a basis for jurisdiction  18

2.  AFGE mischaracterizes and wrongly relies
upon the Customs Service jurisdictional
exception to the bar to review of
Authority arbitration decisions  21

B.  The narrow Leedom v. Kyne exception to nonreview-
ability of Authority arbitration decisions is
inapplicable here because an "open" violation of
a "clear" statutory mandate cannot be shown  23

III.  Even if this Court determines that it has jurisdiction
to review the Authority's jurisdictional determination,
the Authority properly found that it had jurisdiction
to review these arbitrators' awards involving severance
pay  27

A.  The statutory scheme concerning grievance
arbitration  28

B.  The Authority correctly held that an arbitration
award resolving a severance pay dispute is not an
award "relating to a matter described in section
7121(f)" of the Statute  29

C.  AFGE's contentions regarding the Authority's
jurisdictional determination are without merit  32

CONCLUSION  34



ADDENDUM

Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994) and
other pertinent regulation    A-1



TABLE OF AUTHORITIES

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)  22

AFGE v. FLRA, 850 F.2d 782 (D.C. Cir. 1988)   31

American Fed'n of Gov't Employees, Local 1923 v. FLRA,
    675 F.2d 612 (4th Cir. 1982)  14

American Fed'n of Gov't Employees, Local 916 v. FLRA,
    951 F.2d 276 (10th Cir. 1991)  15

American Federation of Labor v. NLRB, 308 U.S. 401 (1940)  14

Bureau of Alcohol, Tobacco and Firearms v. FLRA,
    464 U.S. 89 (1983)  11

Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir.), cert. denied,
    498 U.S. 811 (1990)  28

*Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988)  passim

*Leedom v. Kyne, 358 U.S. 184 (1958)  passim

Local 32, American Federation of Government Employees v.
    FLRA, 774 F.2d 498 (D.C. Cir. 1985)  33

NTEU v. FLRA, 112 F.3d 402 (9th Cir. 1997)  14

Oklahoma Natural Gas Co. v. FERC, 28 F.3d 1281
    (D.C. Cir. 1994)  12

Overseas Educ. Ass'n v. FLRA, 824 F.2d 61
    (D.C. Cir. 1987)   16, 17

*Oxy USA, Inc. v. FERC, 64 F.3d 679 (D.C. Cir. 1995)  12, 32

Philadelphia Metal Trades Council v. FLRA, 963 F.2d 38
    (3d Cir. 1992)  14

Physicians Nat'l House Staff Ass'n v. Fanning, 642 F.2d 492
    (D.C. Cir. 1980), cert. denied, 450 U.S. 917 (1981)  24, 25

Ramey v. Bowsher, 9 F.3d 133 (D.C. Cir. 1993)  11

Switchmen's Union of North America v. National Mediation Bd.,
    320 U.S. 297 (1943)   23, 24

Tonetti v. FLRA, 776 F.2d 929 (11th Cir. 1985)  14

*United States Dep't of Justice, U. S. Bureau of Prisons
    v. FLRA, 981 F.2d 1339 (D.C. Cir. 1993)  13, 14, 23, 26

United States Dep't of Justice v. FLRA, 792 F.2d 25
    (2d Cir. 1986)   14, 15, 17

United States Dep't of the Interior, Bureau of Reclamation,
    Missouri Basin Region v. FLRA, 1 F.3d 1059
    (10th Cir. 1993)  14

*United States Dep't of the Treasury, United States Customs
    Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994)  passim

United States Marshals Serv. v. FLRA, 708 F.2d 1417
    (9th Cir. 1983)  14, 17

Wellife Products v. Shalala, 52 F.3d 357 (D.C. Cir. 1995)  25

Workplace Health & Safety Council v. Reich, 56 F.3d 1465
    (D.C. Cir. 1995)  24

Wydra v. Law Enforcement Assistance Admin., 722 F.2d 834
    (D.C. Cir. 1983)  14



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

American Federation of Government Employees, Local 3529 and
    U.S. Department of Defense, Defense Contract Audit
    Agency, Central Region, 49 FLRA 1482 (1994)  32, 33

Overseas Educ. Ass'n and U.S. Dep't of Defense Dependents
    Schools, 46 FLRA 1145 (1993)  33

U.S. Department of Defense, National Guard Bureau, Arkansas
    Army National Guard, North Little Rock, Arkansas and
    National Federation of Federal Employees, Local 1671,
    48 FLRA 480 (1993)  6

U.S. Dep't of the Army, Army Reserve Personnel Center,
    St. Louis, Mo. and American Federation of Government
    Employees, Local 900, 34 FLRA 96 (1989)  34

U.S. Department of the Treasury, U.S. Customs Service,
    Pacific Region and National Treasury Employees Union,
    50 FLRA 656 (1995), aff'd sub nom. NTEU v. FLRA,
    112 F.3d 402 (9th Cir. 1997)  19



DECISION OF THE MERIT SYSTEM PROTECTION BOARD

Ward v. U.S. Consumer Product Safety Comm'n, 8 M.S.P.R. 603
    (1981)  32



STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996)  2
  5 U.S.C. § 7103(a)(9)  28
  5 U.S.C. § 7103(a)(9)(C)(ii)  19
  5 U.S.C. § 7105(a)(2)(H)  28
  5 U.S.C. § 7116  15
  5 U.S.C. § 7118  15
  5 U.S.C. § 7121  28
  5 U.S.C. § 7121(b)(1)(C)(iii)  28
  5 U.S.C. § 7121(d)  28
* 5 U.S.C. § 7121(e)  passim
* 5 U.S.C. § 7121(f)  passim
  5 U.S.C. § 7122  passim
* 5 U.S.C. § 7122(a)  passim
* 5 U.S.C. § 7123(a)  passim
  5 U.S.C. § 7123(a)(1)  12, 16, 17, 18
  5 U.S.C. § 2302(b)(1)  28
  5 U.S.C. § 4303  passim
* 5 U.S.C. § 5595   passim
  5 U.S.C. § 5595(b)(2)   4
  5 U.S.C. § 7512  passim
  5 U.S.C. § 7703   29
  28 U.S.C. §§ 1331, 1337  24
  Back Pay Act, 5 U.S.C. § 5596   20

  National Guard Technician Act of 1968, 32 U.S.C. § 709
    (1994)   4
  § 709(e)(1)   4

  National Labor Relations Act, 29 U.S.C. § 159(b)(1)  23



CODE OF FEDERAL REGULATIONS

  5 C.F.R. pt. 432   5, 34
* 5 C.F.R. pt. 550, subpt. G   3, 8
  5 C.F.R. § 550.703   passim
  5 C.F.R. § 550.704   4, 35
  5 C.F.R. pt. 752   5, 34



LEGISLATIVE HISTORY

* H.R. Rep. No. 1717, 95th Cong., 2d Sess. 153 (1978),
    reprinted in Subcomm. on Postal Personnel and
    Modernization of the Comm. on Post Office and Civil
    Serv., 96th Cong., 1st Sess., Legislative History
    of the Federal Serv. Labor-Management Relations
    Statute, Title VII of the Civil Serv. Reform Act
    of 1978  16

H. Rep. No. 1717, 95th Cong., 2d Sess. 157 (1978),
    reprinted in 1978 U.S.C.A.N. 2891  31



MISCELLANEOUS

National Guard Regulation 600-200, section IV, para. 7-19a  9

National Guard Technician Personnel Regulation 990-2  5, 6, 9, 10


Cases or authorities chiefly relied upon are marked by asterisks.



GLOSSARY

AFGE    American Federation of Government Employees,
Local 2986  Local 2986 and U.S. Department of Defense, National
Guard Bureau, The Adjutant General, State of Oregon, 51 FLRA 1549
(1996)

AFGE    American Federation of Government Employees,
Local 3006  Local 3006 and U.S. Department of Defense, National
Guard Bureau, Idaho National Guared, Adjutant General, State of Oregon, 51 FLRA
1693 (1996)

AFGE or    American Federation of Government Employees,
petitioners  Locals 2986 and 3006

Arkansas Army  U.S. Department of Defense, National Guard Bureau,
National Guard  Arkansas Army National Guard, North Little Rock,
Arkansas and National Federation of Federal
Employees, Local 1671, 48 FLRA 490 (1993)

Bureau of Prisons    United States Dep't of Justice, U.S. Federal
Bureau of Prisons v. FLRA, 981 F.2d 1339 (D.C. Cir. 1993)

Customs Service    United States Dep't of the Treasury, United States
Customs Serv. v. FLRA, 43 F.3d 682 (D.C. Cir. 1994)

DCAA    American Federation of Government Employees,
Local 3529 and U.S. Department of Defense, Defense
Contract Audit Agency, Central Region, 49 FLRA 1482 (1994)

DOJ    United States Dep't of Justice v. FLRA,
        792 F.2d 25 (2d Cir. 1986)

Fanning    Physicians Nat'l House Staff Ass'n v. Fanning,
        642 F.2d 492 (D.C. Cir. 1980), cert. denied,
        450 U.S. 917 (1981)

Griffith    Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988)

Leedom    Leedom v. Kyne, 358 U.S. 184 (1958)

Local 1923  American Fed'n of Gov't Employees, Local 1923 v.
FLRA, 675 F.2d 612 (4th Cir. 1982)

Local 2986  American Federation of Government Employees, Local 2986

Local 3006  American Federation of Government Employees, Local 3006

Marshals Serv.  United States Marshals Serv. v. FLRA, 708 F.2d 1417
(9th Cir. 1983)

NGB or agency  National Guard Bureau

OEA    Overseas Educ. Ass'n v. FLRA, 824 F.2d 61 (D.C. Cir. 1987)

OPM    Office of Personnel Management

Oxy USA    Oxy USA, Inc. V. FERC, 64 F.3d 679 (D.C. Cir. 1995)

Statute    Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (1994 & Supp II 1996)

ULP    unfair labor practice




ORAL ARGUMENT SCHEDULED FOR NOVEMBER 18, 1997

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-1344
No. 96-1363

_______________________________

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2986,
                  Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                  Respondent


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3006,
                  Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                  Respondent
_______________________________



ON PETITIONS FOR REVIEW OF DECISIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY




BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY



STATEMENT OF JURISDICTION

  In Case No. 96-1344, the decision under review was issued by the Federal
  Labor Relations Authority ("Authority" or "FLRA") on exceptions to an
  arbitration award in American Federation of Government Employees, Local 2986
  and U.S. Department of Defense, National Guard Bureau, The Adjutant General,
  State of Oregon, 51 FLRA 1549 (AFGE, Local 2986) (Joint Appendix ("JA") at
  10), on July 19, 1996.  In Case No. 96-1363, the decision under review was
  issued by the Authority on exceptions to an arbitration award in American
  Federation of Government Employees, Local 3006 and U.S. Department of
  Defense, National Guard Bureau, Idaho National Guard, Adjutant General,
  State of Idaho, 51 FLRA 1693 (AFGE, Local 3006) (JA at 22), on July 31,
  1996.[1]
  This Court lacks subject matter jurisdiction to review these Authority
  decisions involving arbitrators' awards because section 7123(a) of the
  Federal Service Labor-Management Relations Statute, as amended, 5 U.S.C. §§
  7101-7135 (1994 & Supp. II 1996) ("Statute") bars such review.[2]

STATEMENT OF THE ISSUES

  I.  Whether this Court lacks subject matter jurisdiction, pursuant to
  section 7123(a), to review the Authority's decisions setting aside
  arbitrators' awards under 5 U.S.C. § 7122 that do not involve an unfair
  labor practice.
  II.  Whether any of the few exceptions to the general bar to judicial review
  of Authority arbitration decisions under section 7122 are applicable to this
  case.
  III.  Assuming, for the sake of argument, that the Court has jurisdiction,
  whether the Authority properly determined that it had jurisdiction under 5
  U.S.C. § 7122(a) to review arbitrators' awards resolving grievances over
  severance pay.

STATEMENT OF THE CASE

I.  Nature of the Case
  Petitioners in these cases, American Federation of Government Employees,
  Locals 2986 and 3006 (collectively referred to as "AFGE" or "petitioners"),
  improperly seek to invoke the jurisdiction of this Court to review the
  Authority's decisions overturning arbitrators' awards in AFGE, Local 2986
  and AFGE, Local 3006.  In both decisions, the Authority (former Member
  Armendariz dissenting) determined that it had jurisdiction to consider the
  agency's exceptions to the arbitrators' awards pursuant to section 7122(a)
  of the Statute.  The arbitrators' awards ruled that the National Guard
  Bureau ("NGB" or "agency") improperly denied the grievants severance pay
  pursuant to 5 U.S.C. § 5595 and 5 C.F.R. pt. 550, subpt. G.  The Authority
  thereafter determined that the awards were contrary to law and regulation
  and set them aside.  AFGE filed petitions for review in both cases, which
  the Court consolidated.[3]
II.  Statement of the Facts
  A.  Background
1.  Pertinent National Guard Technician statutes and regulations
  The factual backgrounds of the two cases are similar.  Both cases concern
  the removal of the grievants from National Guard Civilian Technician
  positions for failure to maintain military membership and the agency's
  subsequent denial of severance pay to the grievants.
  National Guard Civilian Technicians are employed pursuant to the National
  Guard Technician Act of 1968, 32 U.S.C. § 709 (1994).  Section 709(e)(1)
  provides:  "[A] technician who is employed in a position in which National
  Guard membership is required as a condition of employment and who is
  separated from the National Guard . . . shall be promptly separated from
  his technician employment by the adjutant general of the jurisdiction
  concerned."  32 U.S.C. § 709(e)(1).  The grievants in these cases were
  employed in such positions.
  Severance pay is governed by 5 U.S.C. § 5595, which provides that an
  employee is entitled to severance pay if the employee "is involuntarily
  separated from the service, not by removal for cause on charges of
  misconduct, delinquency, or inefficiency."  5 U.S.C. § 5595(b)(2).
  According to the severance pay regulations, an employee must be "removed
  from Federal service by involuntary separation" in order to be entitled to
  severance pay.  5 C.F.R. § 550.704.  The regulations define "involuntary
  separation" as "separation initiated by an agency against the employee's
  will and without his or her consent for reasons other than inefficiency."
  "Inefficiency" is defined as "unacceptable performance or conduct that leads
  to a separation under part 432 or 752 of this chapter or an equivalent
  procedure."  5 C.F.R. § 550.703.
2.  Factual background
  The specific factual background for each of these cases is set forth below.
  a.  AFGE, Local 2986
        i.  Facts
  The agency terminated the grievants from their employment as National Guard
  Civilian Technicians due to their failure to maintain military membership in
  the Oregon National Guard.  (JA at 10, 41-42.)  Specifically, the grievants
  failed to comply with military weight standards.  The agency determined that
  their noncompliance did not result from a medical condition beyond their
  control.  (JA at 11, 41.)  They were therefore discharged from the military,
  and consequently, their civilian positions.  (Id.)
  The agency denied the grievants severance pay under 5 U.S.C. § 5595, because
  the agency determined that their separation from military status was
  voluntary.  (JA at 42.)  In making this determination, the agency relied
  primarily on Technician Personnel Regulation (TPR) 990-2.  (JA at 11, 42.)
  TPR 990-2 provides, "[s]eparation due to loss of military membership for
  failure to comply with the weight control program bars a technician's
  entitlement to severance pay."  (JA at 42.)  Local 2986 filed a grievance
  challenging the agency's denial of severance pay.  (JA at 11, 30.)
ii.  The arbitrator's award
  The arbitrator determined that the grievants were entitled to severance pay
  because, according to the arbitrator and in contrast to the agency's
  finding, their separation from service was involuntary.  (JA at 55, 59.)  In
  his opinion and award, the arbitrator analyzed the applicable statutes and
  regulations.  He concluded that TPR 990-2 conflicts with 5 U.S.C. § 5595 and
  5 C.F.R. § 550.703,[4] and that the grievants were "'involuntarily
  separated'" from employment.  (JA at 59.)  As a result, the arbitrator
  directed that the grievants be paid severance pay in accordance with 5
  U.S.C. § 5595.  (JA at 60.)
iii.  The Authority's decision
  The agency filed exceptions to the arbitrator's award with the Authority
  asserting, among other things, that the arbitrator's award was deficient
  because it conflicted with the controlling regulation, TPR 990-2, and
  because the arbitrator's interpretation of the statute and regulations was
  in error.  (JA at 10, 12.)  In its opposition to these exceptions, Local
  2986 alleged, as relevant to this appeal,[5] that the Authority should
  dismiss the agency's exceptions for lack of jurisdiction.  (JA at 12-13.)
  According to Local 2986, the Authority did not have jurisdiction to consider
  the agency's exceptions under section 7122(a), because the award "relat[ed]
  to a matter described in section 7121(f)"--the grievants' removal from
  employment.[6]  (Id.)
  In its decision setting aside the arbitrator's award, the Authority first
  addressed and rejected Local 2986's jurisdictional argument.  (JA at 13-14.)
  The Authority concluded that it had "jurisdiction to review exceptions to an
  award resolving a grievance over severance pay," (JA at 14), because the
  arbitrator's award did not "relate[] to a matter described in section
  7121(f)," as set forth in section 7122(a) (JA at 13).  In making this
  determination, the Authority considered the language in the Statute,
  congressional intent, and policy considerations.  (JA at 15.)
  The Authority next considered the merits of the arbitrator's award and,
  finding the award to be contrary to law, set it aside.  In making this
  decision, the Authority considered and followed the advisory opinion it
  requested from the Office of Personnel Management ("OPM") regarding the
  application of the severance pay statute and regulations to civilian
  technicians.  (JA at 12, 98.)  Consistent with OPM's opinion, the Authority
  concluded that the grievants were not entitled to severance pay and that the
  arbitrator's award was contrary to 5 U.S.C. § 5595 and 5 C.F.R. pt. 550,
  subpt. G.  (JA at 17.)
    b.  AFGE, Local 3006
      i.  Facts
  The agency terminated the grievant from his employment as a National Guard
  Civilian Technician due to his failure to maintain military membership in
  the Idaho National Guard.  (JA at 23, 72.)  As in AFGE, Local 2986, the
  subsequent denial of severance pay to the affected employee precipitated the
  grievance and arbitration in this case.  (JA at 23, 72-73.)
  The grievant was discharged from the National Guard because the Idaho
  National Guard declined to remove a bar to the grievant's reenlistment.  (JA
  at 23, 72.)  In 1989, the Idaho National Guard had extended grievant's
  military reenlistment for only three years because of incidents that
  "reflected negatively on his leadership abilities and performance."  (JA at
  67.)  In 1992, the agency's continuing concern about the grievant's attitude
  and performance resulted in the bar to the grievant's reenlistment[7] and
  the grievant's eventual discharge from the National Guard.  (JA at 70, 72.)
  The agency denied the grievant severance pay under 5 U.S.C. § 5595, because
  the agency determined that "his loss of military membership was for cause."
  (JA at 72.)  In making this determination, the agency relied primarily on
  TPR 990-2.  (JA at 23, 72.)  TPR 990-2, subchapter S7-4 provides that a
  civilian technician is not entitled to severance pay "when it can be
  reasonably established and documented that failure to accept the application
  [for reenlistment] is for reason of misconduct, delinquency, or
  inefficiency."  (JA at 23, 84.)  Because the grievant's denial of
  reenlistment was "for cause," the agency concluded that, pursuant to TPR
  990-2, he was not entitled to severance pay.  (JA at 72.)  Local 3006 filed
  a grievance challenging the agency's denial of severance pay.  (JA at 23,
  73.)
ii.  The arbitrator's award
  The arbitrator determined that the grievant was entitled to severance pay
  because his separation from service was involuntary.  (JA at 95.)  In his
  opinion and award, the arbitrator analyzed the severance pay statute and
  regulations, 5 U.S.C. § 5595 and 5 C.F.R. § 550.703, as well as TPR 990-2.
  (Id.)  The arbitrator concluded that the agency did not reasonably establish
  and document that the grievant was discharged for misconduct, delinquency,
  or inefficiency, as required for denial of severance pay under TPR 990-2.
  (Id.)  As a result, the arbitrator found the grievant's separation was
  involuntary and ruled that the grievant was entitled to severance pay in
  accordance with 5 U.S.C. § 5595 and 5 C.F.R. § 550.703.  (Id.)
iii.  The Authority's decision
  The agency filed exceptions to the arbitrator's award with the Authority.
  (JA at 22.)   The agency asserted, among other things, that the arbitrator's
  award was deficient because the arbitrator exceeded his authority by ruling
  on the substance of the military's decision not to remove the bar to
  reenlistment and by substituting his judgment for that of the military
  leadership.  (JA at 24.)  The agency also maintained that the arbitrator's
  decision was deficient because it conflicted with TPR 990-2 and was based on
  non-facts.  (Id.)
  In its opposition, Local 3006 alleged, as relevant to this appeal,[8] that
  the Authority should dismiss the agency's exceptions for lack of
  jurisdiction.  (JA at 24-25.)  According to Local 3006, the Authority did
  not have jurisdiction to consider the agency's exceptions under section
  7122(a),
  because the award "relat[ed] to a matter described in section 7121(f) of the
  Statute."  (Id.)
  In its decision setting aside the arbitrator's award, the Authority first
  addressed Local 3006's jurisdictional argument and determined that it had
  jurisdiction to review the arbitrator's award regarding severance pay.  (JA
  at 25-26.)  The Authority concluded, as it had done in AFGE, Local 2986,
  "that awards resolving grievances over denials of severance pay do not
  relate to any matters described in section 7121(f), within the meaning of
  section 7122(a) of the Statute."  (JA at 26.)  The Authority next considered
  the merits of the arbitrator's award, and, finding the award to be contrary
  to agency regulation, set it aside.  (JA at 22, 26-27.)

STANDARD OF REVIEW

  The principal question in this case is whether the Court has subject matter
  jurisdiction, a matter to be decided by the Court in the first instance.
  Ramey v. Bowsher, 9 F.3d 133, 136 n.7 (D.C. Cir. 1993).  In the event that
  the Court determines that it has jurisdiction to consider the Authority's
  own jurisdictional determination regarding its review of the arbitrators'
  awards here involved, the standard of review is narrow.  As the Supreme
  Court has stated, the Authority is entitled to "considerable deference when
  it exercises its 'special function of applying the general provisions of the
  [Statute] to the complexities of federal labor relations.'"  Bureau of
  Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983).  Further,
  this Court has held that "an agency's interpretation of the limits of its
  jurisdiction is entitled to 'Chevron deference.'"  Oxy USA, Inc. v. FERC, 64
  F.3d 679, 701 (D.C. Cir. 1995) (Oxy USA); Oklahoma Natural Gas Co. v. FERC,
  28 F.3d 1281, 1283-84 (D.C. Cir. 1994).

SUMMARY OF ARGUMENT

  This Court is without subject matter jurisdiction over the petitions for
  review.  The language and legislative history of section 7123(a)(1) of the
  Statute, 5 U.S.C. § 7123(a)(1), make clear that Congress intended to bar
  judicial review of Authority decisions reviewing arbitration awards that do
  not involve an unfair labor practice.  All courts of appeals to have
  considered this issue, including this one, have recognized this statutory
  jurisdictional bar.
  None of the few exceptions to the section 7123(a) jurisdictional bar are
  applicable here.  Petitioners incorrectly suggest in this regard that this
  Court has jurisdiction based upon its Customs Service decision, and based
  upon the Supreme Court's decision in Leedom v. Kyne.  The Customs Service
  exception does not apply because the severance pay laws and regulations
  involved in these cases, as well as the related statutory provisions
  analyzed by the Authority, are integrally related to employee working
  conditions.  In contrast, as the Customs Service Court indicated,
  jurisdiction under Customs Service is available only when the particular
  legal authority relied upon by the arbitrator or the Authority was not
  "fashioned for the purpose of regulating the working conditions of
  employees."  (43 F.3d 682, 691.)
  The Leedom exception is also inapplicable.  Petitioners have not
  demonstrated that there is a clear statutory mandate that the Authority has
  violated.  Further, jurisdiction under the Leedom exception is properly in
  the federal district court and not the court of appeals.
  Finally, even assuming that judicial review is available in these cases, the
  Authority's jurisdictional decisions challenged by petitioners should be
  affirmed.  The Authority correctly and reasonably interpreted the Statute in
  holding that it had jurisdiction to review these arbitration awards
  involving severance pay.  In making its decisions, the Authority carefully
  considered the plain language of section 7122(a), other relevant statutory
  provisions, and congressional intent.  This reasonable interpretation by the
  Authority of its own Statute, which is entitled to deference, should be
  affirmed.

ARGUMENT

I.  Pursuant to 5 U.S.C. § 7123(a), this Court lacks subject matter jurisdiction
to review the Authority's decisions setting aside arbitrators' awards issued
under 5 U.S.C. § 7122 that do not involve an unfair labor practice
A.  Introduction
  As this Court has recognized, Authority arbitration decisions issued
  pursuant to section 7122 are not subject to judicial review in the courts of
  appeals under section 7123(a), unless the order involves an unfair labor
  practice ("ULP").  United States Dep't of Justice, U.S. Federal Bureau of
  Prisons v, FLRA, 981 F.2d 1339, 1342 (D.C. Cir. 1993)(Bureau of Prisons);
  Griffith v. FLRA, 842 F.2d 487, 490-91 (D.C. Cir. 1988) (Griffith).[9]  This
  holding is supported both by the plain language of the Statute and its
  legislative history.  Because the instant petitions for review involve just
  such Authority decisions, and because it is undisputed that no ULPs are
  involved, they must be dismissed as an attempt to evade the specific
  strictures Congress placed on judicial review of Authority decisions
  reviewing arbitrators' awards.
  B.  The Statute's language and legislative history make
      clear that Congress intended to bar judicial review of
      Authority decisions on exceptions to arbitrators' awards
  It is axiomatic that federal court jurisdiction is conferred by Congress and
  that Congress may limit or foreclose review as it sees fit.  American Fed'n
  of Labor v. NLRB, 308 U.S. 401 (1940); Wydra v. Law Enforcement Assistance
  Admin., 722 F.2d 834, 836 (D.C. Cir. 1983).  With respect to the Statute,
  examination of its language and legislative history provides "a clear and
  convincing showing that Congress intended to prohibit judicial oversight" of
  Authority decisions in arbitration cases not involving a ULP.  5 U.S.C. §
  7123(a); DOJ, 792 F.2d at 27.  As noted by this Court in Griffith, there is
  "unusually clear congressional intent generally to foreclose review."  842
  F.2d at 490.
1.  The Statute's language
  The Statute's language embodies the strict limits Congress set on judicial
  review of Authority decisions concerning arbitrators' awards.  Section
  7123(a) of the Statute specifically precludes judicial review of certain
  Authority decisions and orders.  This section states, in relevant part:
Any person aggrieved by any final order of the   Authority other than an order
under--
      (1) section 7122 of this title (involving an award by an
      arbitrator), unless the order involves an unfair labor practice
      under section 7118[10] of this title, . . . .
      . . . .
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order . . . .
5 U.S.C. § 7123(a).  Thus, the plain language of 5 U.S.C. § 7123(a) bars
judicial review of Authority decisions on exceptions to arbitrators' awards,
narrowly restricting the jurisdiction of the courts of appeals to review an FLRA
arbitration decision to those instances that "involve[] an unfair labor
practice" under the Statute.[11]  Overseas Educ. Ass'n v. FLRA, 824 F.2d 61, 63
(D.C. Cir. 1987) (OEA).  This broad jurisdictional bar to the review petitioners
seek here has been recognized by all of the courts of appeals, including this
one, that have considered the issue.  See cases cited supra, n.9.      2.  The
Statute's legislative history
  The legislative history of section 7123(a) underscores the tight
  restrictions Congress placed on review of Authority decisions in arbitration
  cases issued under section 7122.  Congress strongly favored arbitrating
  labor disputes, and sought to create a scheme characterized by finality,
  speed, and economy.  To this end, the conferees discussed judicial review in
  the following terms:
[T]here will be no judicial review of the Authority's action on those
arbitrators awards in grievance cases which are appealable to the Authority.
The Authority will only be authorized to review the award of the arbitrator on
very narrow grounds similar to the scope of judicial review of an arbitrator's
award in the private sector.  In light of the limited nature of the Authority's
review, the conferees determined it would be inappropriate for there to be
subsequent review by the court of appeals in such matters.
H.R. Rep. No. 1717, 95th Cong., 2d Sess. 153 (1978), reprinted in Subcomm. on
Postal Personnel and Modernization of the Comm. on Post Office and Civil Serv.,
96th Cong., 1st Sess., Legislative History of the Federal Serv. Labor-Management
Relations Statute, Title VII of the Civil Serv. Reform Act of 1978, at 821
(1978) (Legis. Hist.) (emphasis added).  The conference committee also indicated
its intent that once an arbitrator's award becomes  "final and binding," it is
"not subject to further review by any  . . . authority or administrative body"
other than the FLRA.  Id. at 826 (emphasis added).  Thus, "[t]he rationale for
circumscribed judicial review of such cases is not hard to divine."  OEA, 824
F.2d at 63.  See generally Griffith, 842 F.2d at 491-92; DOJ, 792 F.2d at 28-29;
Marshals Serv., 708 F.2d at 1420.
  Accordingly, the language and legislative history of the Statute establish
  conclusively that Congress intended that there be "no judicial review of the
  Authority's action on . . . arbitrators awards . . . ."  Legis. Hist. at
  821.  Because the Authority's decisions on review of the arbitrators' awards
  in these cases concededly did not involve any unfair labor practice, and
  because no other jurisdictional basis exists, no review of the decisions is
  available in this Court.  The petitions for review must therefore be
  dismissed.
II.  None of the few exceptions to the general bar to judicial review of
Authority arbitration decisions under section 7122 are applicable to this case
  The few exceptions that have been recognized to the general bar to judicial
  review of Authority arbitration decisions are not applicable in this case.
  In addition to the express exception in section 7123(a)(1), concerning
  Authority decisions involving a ULP, this Court has indicated that an
  exception to the jurisdictional bar may be present where the Authority
  exceeds its jurisdiction by upholding an arbitrator's award dealing with a
  grievance claiming a violation of a law that was not issued for the purpose
  of affecting working conditions, United States Dep't of the Treasury, United
  States Customs Serv. v. FLRA, 43 F.3d 682, 689 (D.C. Cir. 1994) (Customs
  Service); where the Authority exceeds its delegated powers and acts contrary
  to a clear statutory mandate, Griffith, 842 F.2d at 492-93 (citing Leedom v.
  Kyne, 358 U.S. 184 (1958) (Leedom)); and where the Authority's proceedings
  clearly violate a party's constitutional rights.[12]
  Petitioners have failed to show that any of the potential exceptions to
  section 7123(a)'s jurisdictional bar is applicable.
  A.  The Customs
  Service exception is inapplicable
  1.  This Court's holding in Customs Service does not apply to this case and
  thus does not provide a basis for jurisdiction
  Contrary to petitioners' contentions, this Court's decision in Customs
  Service, 43 F.3d 682, provides no basis for finding jurisdiction in this
  case.  In Customs Service, the Court found limited jurisdiction to review an
  Authority arbitration decision.  Id. at 690-91.  The Authority's decision on
  review in Customs Service upheld the arbitrability of a grievance alleging a
  violation of a customs law that, the Court held, was not issued for the
  "purpose of affecting the working conditions of employees . . . ."[13]  Id.
  at 689.  In these cases, however, the grievances are predicated on a law
  integrally related to an employee working condition--severance pay.
  The Customs Service Court made clear that its jurisdiction to consider the
  Authority's arbitration review decision was based on the nature of the law
  that the grievance alleged had been violated.  Id. at 689.  As the Court
  indicated, its jurisdiction was only available if the particular legal
  authority relied upon by the arbitrator or the Authority was not "fashioned
  for the purpose of regulating the working conditions of employees."  Id. at
  691.
  In contrast to the law involved in Customs Service, all of the laws and
  regulations implicated by the Authority's decisions challenged in this
  proceeding are "directed toward employee working conditions . . . ."  Id. at
  689.  In the instant cases, the Authority considered federal laws and
  regulations concerning severance pay, and the Labor Statute itself.
  These cases, therefore, are comparable to the Griffith case, distinguished
  by the Court in Customs Service, in which the Court held that judicial
  review was not appropriate.  43 F.3d at 689 (citing Griffith, 842 F.2d at
  494).  Griffith involved the Authority's review and modification of an
  arbitrator's award of back pay under the Back Pay Act, 5 U.S.C. § 5596.
  Griffith, 842 F.2d at 489.  As the Customs Service Court stated, and as
  applicable here, "further judicial review of the statutory claim [in
  Griffith] was barred," because Griffith "concerned the interstices of a
  federal statute that undisputedly was designed to deal directly with
  employee working conditions."  43 F.3d at 689.
  Moreover, it cannot be said in these cases that the Authority exceeded its
  power as the Court found that it did in Customs Service.  In Customs
  Service, the Court determined that the Authority found grievable and
  arbitrable a law not "fashioned for the purpose of regulating the working
  conditions of employees."  Id. at 691.  The Court explained that "a
  'grievance' predicated on a claim of violation of a law that is not
  directed toward employees working conditions is outside both the
  arbitrator's and the FLRA's jurisdiction."  Id. at 689.  Although
  petitioners have challenged the Authority's jurisdiction to consider the
  exceptions to the award under section 7122(a), unlike the excepting agency
  in Customs Service, id. at 686, petitioners never alleged that the
  grievance was not arbitrable.  The arbitrability of the grievances was not,
  nor should it have been, an issue.  Thus, for this reason as well, the
  Customs Service jurisdictional exception does not apply.
  In short, the Customs Service exception does not apply because these cases
  involve a law issued for the purpose of affecting employee working
  conditions.  Thus, the Court's reasoning in Customs Service, addressing a
  law that lacked that purpose, does not apply here.
2.  AFGE mischaracterizes and wrongly relies upon the Customs Service
jurisdictional exception to the bar to review of Authority arbitration decisions
  Petitioners' reliance upon Customs Service is misplaced for two additional
  reasons.  First, petitioners erroneously contend that Customs Service ruled
  that the Court always has jurisdiction to review Authority arbitration
  decisions to determine whether the Authority exceeded its jurisdiction.
  (Brief at p. 9, citing Customs Service, 43 F.3d at 691.)  However, in so
  doing, petitioners focus upon statements by the Court taken out of context.
  Although the Customs Service Court stated that its review of Authority
  arbitration decisions "is available for the limited purpose of determining
  whether the Authority exceeds its jurisdiction," the Court did not go so far
  as to suggest that any Authority arbitration decision proceeding in which a
  party challenges the Authority's jurisdiction to review an arbitration
  award, as in these cases, is subject to judicial review.  Id. at 691.
  Indeed, under petitioners' theory, any party dissatisfied with the
  Authority's action on exceptions to an arbitration decision would be
  encouraged to seek judicial review in a court of appeals and assert that the
  court had jurisdiction for the limited purpose of determining if the
  Authority properly exercised jurisdiction.  Instead, as shown above, the
  Court in Customs Service indicated that its jurisdiction was available only
  if the law in question was not "fashioned for the purpose of regulating the
  working conditions of employees."  Id.
  Second, petitioners posit a general presumption favoring judicial review,
  contending that this presumption trumps section 7123(a)'s express bar to
  judicial review of Authority arbitration decisions.  Petitioners assert in
  this regard that the Customs Service determination reflects this Court's
  acknowledgment of such a presumption.
  What petitioners ignore in making this argument is the fact that this Court
  has considered the Court's lack of jurisdiction to review an Authority
  arbitration decision under 7123(a) in connection with the general
  presumption favoring judicial review and has reconciled the two.  Griffith,
  842 F.2d at 490.  In finding in Griffith that "Congress intended to cut off
  judicial review of FLRA decisions regarding arbitral awards," id. at 492,
  the Court noted that its "construction of this [section 7123(a) language] is
  informed by the general presumption favoring judicial review in the absence
  of 'clear and convincing evidence of a contrary legislative intent.'"  Id.
  at 490 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967)).
  In sum, petitioners' suggestions that this Court has jurisdiction to
  consider the Authority's decisions reviewing arbitration awards in these
  cases based upon Customs Service are without merit and should be rejected.
B.  The narrow Leedom v. Kyne exception to nonreviewability of Authority
arbitration decisions is inapplicable here because an "open" violation of a
"clear" statutory mandate cannot be shown
  The only other theoretical exception to section 7123(a)'s jurisdictional bar
  raised by petitioners--the doctrine articulated in Leedom, 358 U.S. 184--is
  also inapplicable in this case.  The Leedom exception is extremely narrow.
  To establish jurisdiction, Leedom requires a showing that the Authority
  "openly violate[d] a clear mandate" of the Statute.  Customs Service, 43
  F.3d at 688.  See also Bureau of Prisons, 981 F.2d at 1343; Griffith, 842
  F.2d at 493-94.  This petitioners cannot do.
  In Leedom, the Supreme Court set forth a narrow exception to the general
  rule of nonreviewability of National Labor Relations Board ("Board")
  representation proceedings.  The Court found that district court equity
  jurisdiction existed where the Board had violated a clear mandate of its
  enabling statute.  358 U.S. at 188.[14]  In that instance, the Court
  reasoned, "'[i]f the absence of jurisdiction of the federal courts meant a
  sacrifice or obliteration of a right which Congress had created, the
  inference would be strong that Congress intended the statutory provisions
  governing the general jurisdiction of those courts to control.'"  Id. at
  190 (quoting Switchmen's Union of North America v. National Mediation Bd.,
  320 U.S. 297, 300 (1943)).
  There are two reasons why this Court should reject any attempt by
  petitioners to invoke jurisdiction on the authority of Leedom.  First, only
  federal district courts, not the courts of appeals, have original
  jurisdiction to consider the merits of such claims under general
  jurisdictional provisions such as 28 U.S.C. §§ 1331, 1337 (1994).  Leedom,
  358 U.S. at 189; Customs Service, 43 F.3d at 688, n.6; Physicians Nat'l
  House Staff Ass'n v. Fanning, 642 F.2d 492, 495 (D.C. Cir. 1980), cert.
  denied, 450 U.S. 917 (1981) (Fanning).  Second, even if the claims were in
  the proper forum, under Leedom, petitioners have failed to identify a
  specific provision of the Statute which, "although . . . 'clear and
  mandatory,' . . . has nevertheless been violated by the [Authority]."
  Fanning, 642 F.2d at 496 (emphasis added).
  As to the first point, in seeming recognition that a Leedom argument must be
  raised in the federal district courts, petitioners ask this Court to
  "consider transferring the petitions to the United States District Court for
  the District of Columbia . . . ."  (Brief at 16.)  Petitioners maintain that
  the federal district court "could exercise nonstatutory review of the FLRA's
  unauthorized actions" based upon Leedom.  (Brief at 16.)  However, this
  Court could only properly transfer these cases to the District Court if
  proper jurisdiction lies in that court.  Workplace Health & Safety Council
  v. Reich, 56 F.3d 1465, 1469 (D.C. Cir. 1995) ("federal court which lacks
  jurisdiction over petition for review of agency action 'shall, if it is in
  the interest of justice, transfer such action or appeal to any other such
  court in which the action or appeal could have been brought . . . .'");
  Wellife Products v. Shalala, 52 F.3d 357, 359 (D.C. Cir. 1995) (same).
  Leedom provides for jurisdiction in federal district court only if the
  Authority has violated a clear statutory mandate.  Because petitioners have
  failed to make even a colorable Leedom claim, and therefore have not shown
  that it would be "in the interest of justice" for this Court to transfer
  these cases, id., the Court should deny petitioners' request.
  With regard to petitioners' failure to identify the Authority's violation of
  a "clear and mandatory" provision of the Statute, Fanning, 642 F.2d at 496,
  petitioners suggest, albeit not in specific reference to the Leedom
  analysis, that the Authority's section 7122(a) analysis is a violation of
  the Statute.  (Brief at 14-16.)  However, petitioners do not identify any
  specific "clear and mandatory" language that the Authority has violated.
  Moreover, petitioners' disagreement with the Authority's interpretation of
  the "relating to" language in section 7122(a) does not constitute such a
  showing.  Cf. Customs Service, 43 F.3d at 688 (rejecting the Customs
  Service's reliance on Leedom, despite the fact that the Court ultimately
  disagreed with the Authority's interpretation of the Statute).[15]
  Petitioners' additional assertions, without further explanation, that the
  Authority exceeded its jurisdiction do not amount to a colorable Leedom
  argument.  Petitioners state in this regard that the Authority's actions in
  these cases were ultra vires (Brief at 7, 15); that the Authority "violated
  statutory limitations on its appellate power" (Brief at 7); and that "the
  Statute does not give the FLRA authority to review arbitration awards
  related to adverse actions" (Brief at 8).  Petitioners' claims consist of
  nothing more than bald assertions that the Authority erroneously or
  arbitrarily exerted its authority or that it committed an error of law.
  Such assertions do not meet the narrow Leedom exception to nonreviewability
  of Authority arbitration decisions.  Bureau of Prisons, 981 F.2d at 1343;
  Griffith, 842 F.2d at 493.
  As described in more detail in section III below, the Authority has
  fulfilled all aspects of its statutory mandate in these cases.  Consistent
  with its obligations under the Statute, it considered its authority to
  review these arbitration awards based upon section 7122(a).  After analysis
  of the relevant statutory provisions and consideration of congressional
  intent, the Authority determined that it had jurisdiction to review these
  awards.  In these circumstances, there is no basis for applying the Leedom
  exception to these cases.
  In sum, the Authority's actions were well within the legal limits imposed by
  the Statute.  Petitioners' mere disagreement with the merits of the
  Authority's jurisdictional determination in this regard does not rise to the
  level of a colorable Leedom claim.  Because petitioners can present no basis
  for finding that either the District Court or this Court has jurisdiction
  based on Leedom, petitioners' transfer request should be denied and the
  petitions dismissed for lack of subject matter jurisdiction.
III.  Even if this Court determines that it has jurisdiction to review the
Authority's jurisdictional determination, the Authority properly found that it
had jurisdiction to review these arbitrators' awards involving severance pay
  These cases presented the Authority with the jurisdictional issue of whether
  the arbitrators' awards involving severance pay disputes were awards
  "relating to a matter described in section 7121(f)" and thus excepted from
  review by the Authority under section 7122(a).  The Authority correctly
  held, contrary to the unions' argument, that it had jurisdiction to review
  the awards because severance pay issues do not "relate[] to" the matters in
  section 7121(f).  To supply a context for a discussion of the issues
  resolved by the Authority, a brief review of the relevant statutory
  provisions is necessary.
  A.  The statutory scheme concerning grievance arbitration
  Grievance procedures established in a collective bargaining agreement are,
  with certain exceptions,[16] the exclusive administrative means for
  resolving grievances within the agreement's coverage.  5 U.S.C. § 7121.  See
  Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir.) (en banc), cert. denied, 498 U.S.
  811 (1990).  A grievance may allege a violation of the collective bargaining
  agreement, or the misapplication of a law, rule or regulations "affecting
  conditions of employment."  5 U.S.C. § 7103(a)(9).  Unresolved grievances
  may be submitted to binding arbitration.  5 U.S.C. § 7121(b)(1)(C)(iii).
  Congress has entrusted the Authority with the responsibility for resolving
  exceptions to arbitrators' awards.  5 U.S.C. § 7105(a)(2)(H).  Either party
  to arbitration may file an exception to the arbitrator's award with the
  Authority.  5 U.S.C. § 7122(a).
  Particularly pertinent to these cases, the Authority has jurisdiction to
  consider exceptions to an arbitrator's award, unless, as discussed at p. 7
  above, the award "relat[es] to a matter described in section 7121(f)."  5
  U.S.C. § 7122(a).  If the award "relat[es] to" a section 7121(f) matter - a
  removal pursuant to 5 U.S.C. § 4303 or § 7512, or a similar matter under
  another personnel system - the United States Court of Appeals for the
  Federal Circuit has jurisdiction to review the award as it would a decision
  of the Merit Systems Protection Board ("MSPB") regarding such a removal.
  See 5 U.S.C. §§ 7121(f), 7703.
B.  The Authority correctly held that an arbitration award resolving a severance
pay dispute is not an award "relating to a matter described in section 7121(f)"
of the Statute
  Finding that it had jurisdiction under sections 7122(a) and 7121(f) of the
  Statute to review arbitrators' awards concerning severance pay, the
  Authority focused primarily on the meaning of the phrase "relating to" in
  section 7122(a).  The Authority's decision in this regard is consistent with
  the language of section 7122(a) of the Statute, as well as other relevant
  statutory provisions and congressional intent.  In particular, the
  Authority's decision respects Congress's intent that federal personnel
  issues receive consistent and uniform treatment when they are reviewed
  administratively and judicially, and that a multiplicity of litigation be
  avoided.  Similarly, the Authority's decision prevents the possibility that
  parties to arbitrators' awards involving severance pay issues would be
  deprived of a forum in which to seek review of such awards.
  Section 7122(a) is the fundamental statutory provision defining the
  Authority's jurisdiction in these cases.  Among other things, section
  7122(a) limits the Authority's jurisdiction to review arbitrators' awards by
  excluding awards "relating to" the matters described in section 7121(f) of
  the Statute.  Section 7121(f) provides the procedure for review of
  arbitration awards resolving grievances filed pursuant to section 7121(e).
  Section 7121(e) in turn refers to matters covered under sections 4303 and
  7512 of title 5, United States Code, as well as "[s]imilar matters which
  arise under other personnel systems . . . ."  5 U.S.C. § 7121(e).  These
  section 7121(e) matters encompass particular personnel actions, generally of
  a serious character, such as removals from employment and lengthy
  suspensions for employee misconduct or poor work performance.
  Thus, the question for purposes of these cases is the breadth of the phrase
  "relating to."  As the Authority observed, the phrase "relating to" is not
  defined by the Statute, and the phrase "itself is ambiguous."  (JA at 14.)
  Depending upon how broadly that phrase is interpreted, section 7122(a) might
  exclude from the Authority's jurisdiction only awards dealing with matters
  that are specifically covered by sections 4303 and 7512 and similar matters
  under other personnel systems, or, alternatively, it might be read to
  eliminate from the Authority's jurisdiction other matters that are separate
  from section 4303 and 7512 personnel actions, but are still connected in
  some manner.  Id.  Because of the phrase's inherent ambiguity, the Authority
  appropriately looked for guidance to other indications of congressional
  intent.
  As the Authority recognized, section 7121(e) establishes an option for an
  employee who decides to challenge an adverse action under section 4303 or
  section 7512 of title 5, or a similar matter arising under other personnel
  systems.  5 U.S.C. § 7121(e).  According to section 7121(e), an employee can
  file a grievance under the negotiated grievance procedure, or can appeal the
  matter to the MSPB or through the comparable appellate procedure under
  another personnel system.  Id.  Section 7121(f) then provides the procedure
  for review of arbitration awards resolving grievances filed pursuant to
  section 7121(e).  Thus, a grievance regarding a matter that could have been
  appealed to the MSPB will be subject to the same review as if the matter had
  been considered by the MSPB in the first instance--by the U.S. Court of
  Appeals for the Federal Circuit rather than the Authority.
  This statutory scheme reflects a strong congressional intent to secure a
  consistent appellate forum for review of arbitration awards and
  administrative decisions involving section 4303 or 7512 actions or similar
  matters under other personnel systems, regardless of whether a particular
  action is contested through the applicable administrative procedure or in a
  grievance before an arbitrator.  See also H. Rep. No. 1717, 95th Cong., 2d
  Sess. 157 (1978), reprinted in 1978 U.S.C.A.N. 2891 (same).  Similarly, the
  scheme advances Congress' intent to discourage forum shopping.  Id.
  Petitioners acknowledge, in this regard, that Congress intended for these
  provisions to ensure "'uniformity of direct review of adverse personnel
  actions.'" (Brief at 9, quoting AFGE v. FLRA, 850 F.2d 782, 784 (D.C. Cir.
  1988).)
  Analyzing the severance pay issue with such policy considerations in mind,
  the Authority properly determined that severance pay did not "relate to" the
  matters set forth in section 7121(f).  Consistent with the obvious
  congressional intent to avoid multiple proceedings, no other forum has
  jurisdiction over severance pay disputes.  See, e.g., Ward v. U.S. Consumer
  Product Safety Comm'n, 8 MSPR 603, 604 (1981).  In this circumstance, for
  the Authority to decline jurisdiction would deprive the parties of the
  opportunity to have severance pay awards reviewed, clearly not a result
  "required by the Statute nor needed to further any discernible public
  policy."  (JA at 16.)
  Based upon the factors set forth above, the Authority reasonably concluded
  that a narrow interpretation of the "relating to" phrase in section 7122(a)
  was most appropriate.  As a consequence, the Authority correctly asserted
  jurisdiction to review these arbitration awards involving severance pay
  issues.  Because the Authority's interpretation of the Statute it
  administers was reasonable, and its opinion as to the limits of its own
  jurisdiction is entitled to deference, Oxy USA, 64 F.3d at 701, the
  Authority's conclusion should be affirmed.
C.  AFGE's contentions regarding the Authority's jurisdictional determination
are without merit
  Petitioners' contentions that the Authority has improperly disregarded its
  prior precedent are erroneous.  The Authority explicitly reconciled any such
  conflicts in its AFGE, Local 2986 decision.
  As petitioners point out, the Authority's jurisdictional determination in
  AFGE, Local 2986, which was followed in AFGE, Local 3006, overturned the
  Authority's previous conclusion in American Federation of Government
  Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit
  Agency, Central Region, 49 FLRA 1482 (1994) (DCAA).  The Authority ruled in
  DCAA that it lacked jurisdiction to consider an arbitration award involving
  a severance pay issue.
  Contrary to petitioners' assertions, the Authority sufficiently explained
  its departure from its DCAA precedent.  The Authority specifically noted
  that, based upon its careful reexamination of the relevant statutory
  provisions, it determined that the DCAA decision "interpreted the phrase
  'relating to' in section 7122(a) more broadly than is warranted by the
  Statute."  (JA at 14.)  The Authority is "free to alter its past rulings and
  practices," but, in making such alterations, "must supply a reasoned
  analysis indicating that prior policies and standards are being deliberately
  changed, not casually ignored . . . ."  Local 32, American Federation of
  Government Employees v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985).  That is
  precisely what the Authority has done with regard to DCAA.
  Petitioners' additional contention (Brief at 17-21) that the Authority's
  decisions in these cases are inconsistent with prior precedent that the
  Authority did not overturn is also incorrect.  As the Authority recognized,
  it has declined jurisdiction over arbitration awards that are "'inherently
  related'" to section 7121(f) matters.  See, e.g., Overseas Educ. Ass'n and
  U.S. Dep't of Defense Dependents Schools, 46 FLRA 1145 (1993) (declining
  jurisdiction to review supplemental attorney fee awards when the underlying
  arbitration award involved a section 7512 removal); U.S. Dep't of the Army,
  Army Reserve Personnel Center, St. Louis, Mo. and American Federation of
  Government Employees, Local 900, 34 FLRA 96 (1989) (declining jurisdiction
  to review exception to arbitrator's award involving a backpay issue related
  to grievants' section 7512 removal action).
  Severance pay, however, is not "inextricably intertwined with a section 4303
  or 7512 matter."  By regulation, severance pay is not available in a
  "separation under part 432 or 752 of this chapter [section 4303 and 7512
  adverse action regulations] or an equivalent procedure."  5 C.F.R. §
  550.703.  Furthermore, as the Authority pointed out, eligibility for
  severance pay depends upon a variety of factors that have no connection to
  an employee's removal from service, such as the employee's type of
  appointment and the length of the employee's service.  See 5 C.F.R. §
  550.704 (1997).  Severance pay issues are thus distinguishable from such
  issues as attorney fees and back pay, that are typically resolved in close
  conjunction with the resolution of the 4303 or 7512 matters upon which they
  depend.
  Petitioners' disagreements with the Authority regarding its interpretation
  of the Statute are without merit.  The Authority reasonably interpreted the
  Statute, and properly determined that it had jurisdiction to review these
  arbitration awards.

CONCLUSION

  AFGE's petitions for review should be dismissed for lack of subject matter
  jurisdiction.  If the Court finds that it has jurisdiction over the
  consolidated cases, the petitions should be denied.



  Respectfully submitted.


              DAVID M. SMITH
              Solicitor

              WILLIAM R. TOBEY
              Deputy Solicitor

              ANN M. BOEHM
              Attorney


              Federal Labor Relations Authority
              607 14th Street, N.W.
              Washington, D.C. 20424
              (202) 482-6620

October 3, 1997




IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2986,
          Petitioner

       v.                           No. 96-1344

FEDERAL LABOR RELATIONS AUTHORITY,
          Respondent

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3006,
          Petitioner

       v.                           No. 96-1363

FEDERAL LABOR RELATIONS AUTHORITY,
          Respondent
_______________________________




CERTIFICATE OF SERVICE

I certify that copies of the Brief For The Federal Labor Relations
Authority, have been served this day, by mail, upon the following:

        Mark Roth, Esq.
        Anne M. Wagner, Esq.
        American Federation of Government Employees, AFL-CIO
        80 F Street, N.W.
        Washington, D.C. 20001



                            Thelma Brown
                            Paralegal Specialist

October 3, 1997



I certify that the Final Brief of the Federal Labor Relations Authority does
not exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d).


                  Ann M. Boehm
                  Attorney

October 3, 1997




[1]      On November 1 and November 12, 1996, respectively, the Authority moved
this Court to dismiss the petitions for review in Case No. 96-1344 and Case No.
96-1363 on the ground that the Court lacks subject matter jurisdiction under
section 7123(a).  By order dated May 8, 1997, the Court ordered the cases
consolidated and referred the motions to dismiss to the merits panel.  The Court
also directed the parties to include in their briefs the arguments raised in the
motions to dismiss.
[2]      Relevant statutory and regulatory provisions are set forth in Addendum
A.
[3]      In this appeal, AFGE does not challenge the Authority's decision on
the merits, but only the Authority's determination regarding its jurisdiction to
review the arbitrators' awards.  (Petitioners' Brief ("Brief") at 12, n.6.)
[4]      The arbitrator acknowledged the Authority's decision in U.S.
Department of Defense, National Guard Bureau, Arkansas Army National Guard,
North Little Rock, Arkansas and National Federation of Federal Employees, Local
1671, 48 FLRA 480 (1993) (Arkansas Army National Guard), in which the Authority
found TPR 990-2 controlling regarding severance pay.  (JA at 11-12, 59-60.)
Nonetheless, the arbitrator did not follow the Arkansas Army National Guard
decision, because he found that the Authority had failed to consider the
conflict between TPR 990-2 and the severance pay provisions in 5 U.S.C. § 5595
and 5 C.F.R. § 550.703.  (Id.)
[5]      Because, as noted supra, n.3, AFGE does not challenge the Authority's
decision on the merits, AFGE's merits arguments before the Authority are not
detailed here.
[6]      Section 7121(f) establishes the review procedures for arbitration
awards resolving grievances "[i]n matters covered under sections 4303 and 7512"
of title 5 and "[i]n matters similar to those covered under sections 4303 and
7512  . . . which arise under other personnel systems."  Section 4303 deals with
removals and reductions-in-grade based upon performance, and section 7512 deals
with removals, suspensions for more than fourteen days, reductions in grade or
pay, and furloughs of thirty days or less based upon employee misconduct.  5
U.S.C. §§ 4303, 7512.  The Authority determined that "there is no question that
disputes over severance pay are not covered under section 4303 or 7512."  (JA at
15.)
[7]      A bar to reenlistment "is a non-punitive probationary device intended
to serve notice that a soldier is not a candidate for reenlistment, immediate
reenlistment or extension and may be discharged if the circumstances that led to
the bar are not overcome."  (JA at 82 (quoting National Guard Regulation
600-200, section IV, para. 7-19a).)
[8]      As in the companion case, AFGE Local 3006 does not challenge the
merits aspect of the Authority's decision.
[9]      Numerous other circuits have also given effect to Congress' intent to
bar judicial review of Authority arbitration review decisions.  NTEU v. FLRA,
112 F.3d 402, 405 (9th Cir. 1997); United States Dep't of the Interior, Bureau
of Reclamation, Missouri Basin Region v. FLRA, 1 F.3d 1059 (10th Cir. 1993);
Philadelphia Metal Trades Council v. FLRA, 963 F.2d 38, 40 (3d Cir. 1992);
United States Dep't of Justice v. FLRA, 792 F.2d 25, 27 (2d Cir. 1986) (DOJ);
Tonetti v. FLRA, 776 F.2d 929, 931 (11th Cir. 1985); United States Marshals
Serv. v. FLRA, 708 F.2d 1417 (9th Cir. 1983) (Marshals Serv.); American Fed'n of
Gov't Employees, Local 1923 v. FLRA, 675 F.2d 612, 613 (4th Cir. 1982) (Local
1923).
[10]       As the Tenth Circuit has noted, although the text of the Statute
refers to section 7118, that reference "has generally been recognized as an
inadvertent miscitation."  American Fed'n of Gov't Employees, Local 916 v. FLRA,
951 F.2d 276, 277, n. 4 (10th Cir. 1991).  Section 7116 of the Statute is the
correct reference.  Id.
[11]      Petitioners acknowledge that "[t]his case does not involve an
allegation of an unfair labor practice." (Brief at p.8, n.3.)  Thus, this
Court's jurisdiction cannot be derived from the ULP proviso of section 7123(a)
(1).
[12]      Petitioners have not asserted that the Authority deprived them of a
constitutional right, thus warranting judicial intervention notwithstanding the
jurisdictional bar in section 7123(a)(1).  As a result, this exception to the
general bar to judicial review will not be addressed herein.
[13]      In a subsequent case, the Authority acquiesced in this Court's
conclusion that the law at issue in Customs Service was not a law "affecting
conditions of employment" under section 7103(a)(9)(C)(ii) of the Statu