Association of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339 (D.C. Cir. 2002)

CASE SCHEDULED FOR ORAL ARGUMENT ON FEBRUARY 7, 2002

No. 01-5170

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

_______________________________

ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,
                  Appellant

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                  Appellee
_______________________________



ON APPEAL FROM A JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA




BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY


            DAVID M. SMITH
              Solicitor

            WILLIAM R. TOBEY
              Deputy Solicitor

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




CASE SCHEDULED FOR ORAL ARGUMENT ON FEBRUARY 7, 2002
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A.  Parties and Amici
    Appearing below in the proceeding before the district court were the
    Association of Civilian Technicians, Inc. (plaintiff) and the Federal
    Labor Relations Authority (defendant).   The Association of Civilian
    Technicians, Inc., is the appellant in this court proceeding; the
    Authority is the appellee.

B.  Ruling Under Review
    The ruling under review in this case is the district court's March 31,
    2001,  Memorandum Opinion and Order dismissing the union's complaint
    seeking review of an Authority's decision declining to order
    consolidation of bargaining units.  U.S.  Dep't of Defense, Nat'l Guard,
    55 FLRA 657 (1999).

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




TABLE OF CONTENTS

STATEMENT OF JURISDICTION  1

STATEMENT OF THE ISSUE  2

STATEMENT OF THE CASE  2

STATEMENT OF THE FACTS  3

A.  Factual Background  3

B.  The Authority's Decision  6

C.  The District Court's Decision  7

STANDARD OF REVIEW  9

SUMMARY OF ARGUMENT  10

ARGUMENT  13

THE DISTRICT COURT CORRECTLY HELD THAT IT WAS
WITHOUT SUBJECT MATTER JURISDICTION OVER A
COMPLAINT SEEKING REVIEW OF AN AUTHORITY
DECISION  IN A UNION REPRESENTATION CASE, WHEN
THAT TYPE OF DECISION IS EXPRESSLY BARRED FROM
DIRECT JUDICIAL REVIEW BY STATUTE, AND NO
EXCEPTION TO THE BAR IS APPLICABLE  13

A.  The Express Statutory Ban On Judicial Review of Authority
Representation Case Decisions Cannot Be Avoided By A
District Court Suit Under the APA  13

B.  The District Court Correctly Rejected the Union's Argument
That Certain Authority Rulings In This Case Constitute
Reviewable "Legal Interpretations"  18

1.  The Crowley And McNary Cases Upon Which The
Union Relies Are Inapposite  19

2.  The Authority Did Not Make A Reviewable General
Policy Decision In This Case  21

C.  The District Court Correctly Held That the Authority
Did Not Erroneously Disclaim Jurisdiction, Abdicate
Enforcement Authority, Or Openly Violate the Clear
Mandate of § 7112(a)  25

CONCLUSION  29

CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT
RULE 28  30



ADDENDUM

Relevant portions of the Federal Service Labor-Management
    Relations Statute, 5 U.S.C. §§ 7101-7135 (2000) and other
    pertinent statutory provisions  A-1



TABLE OF AUTHORITIES

Am. Fed'n of Labor  v. NLRB, 308 U.S. 401 (1940)   13, 14

Bowen v. Massachusetts, 487 U.S. 879 (1988)   17

Bureau of Alcohol, Tobacco, and Firearms v. FLRA, 464 U.S. 89
  (1983)   10, 24

*  Columbia Power Trades Council v. Dep't of Energy, 671 F.2d 325
  (9th Cir. 1982)   16

*  Council of Prison Locals v. Brewer, 735 F.2d 1497
  (D.C. Cir. 1984)   15, 16, 17

*  Crowley Caribbean Transp., Inc. v. Pe¤a, 37 F.3d 671
  (D.C. Cir. 1994)   passim

Darby v. Cis¤eros, 509 U.S. 137 (1993)   18

Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988)   27

Hartz Mountain Corp. v. Dotson, 727 F.2d 1308 (D.C. Cir. 1984)   16

Heckler v. Chaney, 470 U.S. 821 (1985)   26

Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192 (D.C. Cir. 1992)   9

*  ICC v. Bhd. of Locomotive Eng'rs, 482 U.S. 270 (1987)   11, 19

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

*  McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991)   passim

Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir. 1990)   27

Nat'l Taxpayers Union v. United States, 68 F.3d 1428
  (D.C. Cir. 1995)   9

*  NLRB v. United Food and Commercial Workers Union, 484 U.S. 112
  (1987)   10, 16, 17

Patent Office Prof'l Ass'n v. FLRA, 128 F.3d 751 (D.C. Cir. 1997),
    cert. denied, 523 U.S. 1006 (1998)   20

*  Physicians Nat'l House Staff Ass'n v. Fanning, 642 F.2d 492
  (D.C. Cir. 1980), cert. denied, 450 U.S. 917 (1981)   14

State of Neb., Military Dep't, Office of the Adjutant General v. FLRA,
  705 F.2d 945 (8th Cir. 1983)   4

Switchmen's Union of N. Am. v. Nat'l Mediation Bd., 320 U.S. 297
  (1943)   16

United States Dep't of Justice, Fed. Bureau of Prisons v. FLRA,
  981 F.2d 1339 (D.C. Cir. 1993)   27

United States Dep't of the Treasury, United States Customs Serv.
  v. FLRA, 43 F.3d 682 (D.C. Cir. 1994)   27

U.S. Dep't of Defense, Nat'l Guard Bureau v. FLRA, 982 F.2d 577
  (D.C. Cir. 1993)  4

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



STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (2000)   2
  5 U.S.C. § 7112   6, 14
  5 U.S.C. § 7112(a)  passim
  5 U.S.C. § 7112(d)  3
  5 U.S.C. § 7117(a)(3)   6, 23, 24, 28
  5 U.S.C. § 7123  14
  5 U.S.C. § 7123(a)  passim
 *5 U.S.C. § 7123(a)(2)  passim
  28 U.S.C. § 1291   2

  Administrative Procedures Act, 5 U.S.C. §§ 701, et seq.  passim
  * § 701(a)(1)  10, 11, 16, 20
    § 701(a)(2)  11, 20

  National Guard Technicians Act of 1968, 32 U.S.C. § 709  passim
    § 709(c)  5



CODE OF FEDERAL REGULATIONS

  5 C.F.R. § 2422.18(a) (2001)  12, 26



LEGISLATIVE HISTORY

H.R. Rep. No. 95-1717, at 153 (1978), reprinted in 1978 U.S. Code
    Cong. & Ad. News 2860, 2887   15



MISCELLANEOUS

Fed. R. App. P. 4(a)(1)   2


*Authorities upon which we chiefly rely are marked by asterisks.



GLOSSARY

APA        Administrative Procedures Act

App.        Appendix

Authority      Federal Labor Relations Authority

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

Br.        Brief

Crowley      Crowley Caribbean Transp., Inc. v. Pe¤a,
37 F.3d 671 (D.C. Cir. 1994)

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

Fanning      Physicians National House Staff Association v. Fanning,
642 F.2d 492 (D.C. Cir. 1980)

Hartz        Hartz Mountain Corp. v. Dotson, 727 F.2d 1308
(D.C. Cir. 1984)

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

McNary      McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991)

NLRA      National Labor Relations Act

NLRB      National Labor Relations Board

Statute      Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (2000)

Union      Association of Civilian Technicians

United Food and Commercial Workers    NLRB v. United Food and Commercial
Workers Union, 484 U.S. 112 (1987)





CASE SCHEDULED FOR ORAL ARGUMENT ON FEBRUARY 7, 2002

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

No. 01-5170

_______________________________

ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,
                Appellant

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                Appellee
_______________________________



ON APPEAL FROM A JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA




BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY




STATEMENT OF JURISDICTION

  The judgment of the district court under review in this case was issued on
  March 31, 2001.  A copy of the district court's unpublished memorandum
  opinion and order is at Appendix (App.) 53.  The district court concluded
  that it was without subject matter jurisdiction over the complaint and
  dismissed the action.  The appellant filed its notice of appeal of the
  district court's judgment on May 23, 2001, within the 60 day period for
  filing such an appeal under Fed. R. App. P. 4(a)(1).  This Court has
  jurisdiction to review the district court's decision and order pursuant to
  28 U.S.C. § 1291.

STATEMENT OF THE ISSUE

  Whether the district court correctly held that it was without subject matter
  jurisdiction over a complaint seeking review of a Federal Labor Relations
  Authority decision in a union representation case, when that type of
  decision is expressly barred from direct judicial review by statute, and no
  exception to the bar is applicable.

STATEMENT OF THE CASE

  This case arose from a petition filed with the Appellee Federal Labor
  Relations Authority (Authority) by the Appellant Association of Civilian
  Technicians (union) under the Federal Service Labor-Management Relations
  Statute, 5 U.S.C. §§ 7101-7135 (2000) (Statute).[1]  The union's petition
  sought to consolidate into a single unit various bargaining units of
  National Guard civilian technicians in forty-two individual states and
  territories.  These individual units at that time were represented by the
  union as exclusive bargaining agent.  The Authority denied the petition on
  the ground that the proposed consolidated unit was not appropriate under the
  statutory criteria for making such determinations.  The union then filed the
  instant law suit in the district court, alleging that the Authority had
  committed various legal errors in its decision warranting review.  The
  Authority moved to dismiss the complaint for lack of subject matter
  jurisdiction, and the district court granted the Authority's motion.  This
  appeal followed.

STATEMENT OF THE FACTS

A.  Factual Background
  This case originated with the union's petition under § 7112(d) of the
  Statute, 5 U.S.C. § 7112(d), to consolidate into a single unit various
  bargaining units of National Guard civilian technicians in forty-two
  individual states and territories.[2]  At the time the petition was filed,
  these individual units were represented by the union as exclusive bargaining
  agent.[3]  (App. at 35.)
  An Authority Regional Director considered the union's consolidation petition
  and concluded that the proposed consolidated unit would not be appropriate
  for exclusive recognition under the Statute.  He therefore dismissed the
  petition.  (App. at 49.)
  The Regional Director based his conclusion on the criteria specified in §
  7112(a) of the Statute for making such appropriate unit determinations, 5
  U.S.C. § 7112(a), and on established Authority precedent applying that
  statutory provision.  Specifically, the Regional Director considered whether
  under § 7112(a) the proposed consolidated unit would ensure a "clear and
  identifiable community of interest among the employees in the unit," and
  whether it would "promote effective dealings with, and efficiency of the
  operations of, the agency involved."  (App. at 46.)  After weighing all the
  record evidence, both in favor of and against consolidation, the Regional
  Director held that the proposed consolidated unit would not satisfy these
  appropriate unit criteria.  (App. at 47.)
  The Regional Director found that certain evidence in the case, such as the
  interchange of technicians among the various state National Guards,
  supported a finding that a consolidated unit would be appropriate.  (App. at
  47.)  However, the Regional Director found that other record evidence did
  not support an appropriate unit finding.  In this connection, he determined,
  among other things, that each of the state Guards "has an individual mission
  unique to its state or territory and each performs slightly different
  functions based on that mission."  (Id.)
  The Regional Director also ruled that under the Technicians Act, 32 U.S.C. §
  709(c), each individual state Adjutant General has "overall authority over
  all personnel and labor relations matters arising in their respective State
  Activities."  (App. at 41.)  As a result, because the decision making
  authority for setting working conditions was at the state level, the
  Regional Director held there would not be sufficient commonality of working
  conditions to ensure a community of interest among technicians nationwide.
  (App. at 48.)  This was an additional factor contributing to the Regional
  Director's finding that a consolidated unit is inappropriate.
B.  The Authority's Decision
  On appeal the Authority affirmed the Regional Director's dismissal of ACT's
  consolidation petition, finding that the Regional Director "properly
  construed the provisions of the Technicians Act and properly applied the
  appropriate unit test."  (App at 29.)  More specifically, the Authority
  first held that the Regional Director correctly found that the State
  Adjutants General are the locus of labor relations and personnel functions
  for technicians.  (App. at 31.)
  Next, the Authority concluded that the Regional Director properly applied
  established law in determining that the proposed consolidated unit is not
  appropriate.  (App. at 31.)  In this connection, the Authority stated that
  the proposed consolidated unit met neither the "community of interest" nor
  the "effective dealings and the efficiency of [agency] operations" criteria
  for establishing a consolidated unit under § 7112 of the Statute.  (App. at
  31-33.)
  The Authority also rejected the union's contention that the Authority should
  find the proposed consolidated unit appropriate because if the Authority did
  so find, the union would be able to enjoy expanded representational rights
  under § 7117(a)(3) of the Statute.  (App. at 32.)  That section provides
  that if a union represents a majority of employees who are subject to an
  agency regulation for which a compelling need exists, the union can bargain
  on the subject matter of the regulation. Thus, if the consolidation petition
  was granted by the Authority, the union would be able to bargain with the
  National Guard Bureau on the substance of all regulations issued by the
  Bureau governing dual status National Guard technicians nationwide.[4]  The
  Authority held that such expanded bargaining rights come about only after a
  unit is found appropriate under the criteria set out in § 7112(a).  The
  expanded rights are not themselves a basis for finding a unit appropriate in
  the first place.  (Id.)  Accordingly, the Authority denied the union's
  Application for Review of the Regional Director's decision.  (App. at 33.)
C.  The District Court's Decision
  The union filed suit in the district court seeking judicial review of the
  Authority's decision.  The district court, on the Authority's motion,
  dismissed the complaint for lack of jurisdiction.  (App. at 66.)
  First, the court held that the statutory ban on judicial review of Authority
  representation case decisions in § 7123(a)(2) of the Statute applies both to
  suits brought by a petition for review directly in a court of appeals under
  § 7123(a), and to suits like this one, brought by complaint in a district
  court under general jurisdictional statutes.  (App. at 56 - 59.)
  Second, the court held that the exception to the bar on judicial review in §
  7123(a)(2), based on Leedom v. Kyne, 358 U.S. 184 (1958) (Leedom), does not
  apply in this case.  (App. at 61.)  The district court ruled that there was
  not the kind of open violation of a clear mandate of a statute on which
  Leedom jurisdiction must be based.  (App. at 59-60.)  Specifically, the
  union claimed that the Authority violated § 7112(a) of the Statute, which
  states in relevant part that the Authority shall make appropriate unit
  determinations in each case consistent with ensuring employees the "fullest
  freedom in exercising their rights" guaranteed under the Statute.  (App. at
  60.)  The district court concluded that, regardless of whether the Authority
  correctly interpreted § 7112(a), it is not the kind of provision that can
  form the basis for Leedom jurisdiction.  (App. at 61.)
  Finally, the district court rejected the union's argument that the court had
  jurisdiction to review certain "legal interpretations" in the Authority's
  otherwise unreviewable final decision, pursuant to this Court's decision in,
  among other cases, Crowley Caribbean Transport, Inc. v. Pe¤a, 37 F.3d 671
  (D.C. Cir. 1994) (Crowley); and McNary v. Haitian Refugee Center, 498 U.S.
  479 (1991) (McNary).  The district court held that the Authority's decision
  "evaluated a specific set of facts  . . . ; nowhere in the decision is there
  a conclusion by the Authority that the Technicians Act, 32 U.S.C. § 709,
  'prohibits' the existence of a consolidated technician bargaining unit as a
  matter of law under all circumstances."  (App. at 62-65.)  Thus, the court
  held that the Authority's decision was "simply the kind of analysis and
  explanation used in the ordinary course of adjudicating a particular case,
  not the kind of 'general policy' pronouncement that would subject the
  decision (or any portion thereof) to judicial review under the narrow
  exceptions established in Crowley and McNary."  (App. at 65.)
  Based on the foregoing, the district court dismissed the union's complaint
  for lack of subject matter jurisdiction.  This appeal then followed.

STANDARD OF REVIEW

  The standard for this Court's review of the district court's dismissal of
  the complaint for lack of jurisdiction is de novo.  Nat'l Taxpayers Union v.
  United States, 68 F.3d 1428, 1432 (D.C. Cir. 1995); Herbert v. Nat'l Acad.
  of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).  However, to the extent that
  the Court finds it necessary to construe and apply provisions of the
  Statute, the Court must defer to the Authority's interpretation of those
  provisions.  E.g., Bureau of Alcohol, Tobacco, and Firearms v. FLRA, 464
  U.S. 89, 97 (1983) (BATF).

SUMMARY OF ARGUMENT

  1.  The district court correctly held that the prohibition on judicial
  review of Authority representation case decisions in § 7123(a)(2) of the
  Statute extends to a suit brought in a district court under the
  Administrative Procedures Act (APA).  Contrary to the union's claim, §
  7123(a)(2) is not limited to barring just a petition for review of a
  representation case decision filed directly in a circuit court of appeals.
  This conclusion is supported by § 701(a)(1) of the APA, which bans suits
  under the APA if, as here, "statutes preclude judicial review."  The lower
  court's holding is also supported by the Supreme Court's decision in NLRB v.
  United Food and Commercial Workers Union, 484 U.S. 112, 133 (1987) (it would
  be "absurd" to allow an APA suit when Congress has barred judicial review
  under a specific review scheme like the Statute).  The cases cited by the
  union are inapplicable to this case because they do not involve a
  prohibition on judicial review like § 7123(a)(2) of the Statute.
  2.  The district court also correctly rejected the union's claim that the
  Authority made supposedly reviewable holdings that can be "carved out" of
  the Authority's otherwise unreviewable decision.  The Supreme Court has
  squarely rejected this approach to judicial review in ICC v. Brotherhood of
  Locomotive Engineers, 482 U.S. 270 (1987).
  Moreover, the cases relied on by the union do not have even threshold
  relevance to this case.  Crowley Caribbean Transport, Inc. v. Pe¤a, 37 F.3d
  671 (D.C. Cir. 1994) (Crowley), concerned judicial nonreviewability under §
  701(a)(2) of the APA, based on an agency's discretionary decision not to
  take enforcement action.  It did not implicate § 701(a)(1) of the APA,
  concerning nonreviewability based on an express statutory bar to judicial
  review, as is involved in the instant case.  McNary v. Haitian Refugee
  Center, Inc., 498 U.S. 479 (1991) (McNary), concerned a law suit that
  challenged on constitutional grounds an agency's across-the-board procedures
  applied to an entire class of cases.  The suit did not challenge an
  individual agency action in a particular case, which challenge would have
  been barred by a statutory prohibition on judicial review of individual
  agency actions.  Thus, both Crowley and McNary are readily distinguished
  from the instant case.
  Even assuming that those two cases have some threshold relevance to this
  case, they are nonetheless distinguishable.  The Authority did not make the
  kind of general policy decision that the courts in Crowley and McNary
  suggested might be subject to judicial review.  Instead, the Authority here
  made an individualized adjudication, based on the specific facts of this
  case and how established law applies to those facts.  There is no basis to
  conclude that the Authority might not reach a different result, given a
  different factual record.  This is not the kind of agency action that, under
  Crowley and McNary, can be subject to judicial review in the face an express
  prohibition on such review as set out in § 7123(a)(2) of the Statute.
  3.  The court below also correctly held that the Authority did not disclaim
  jurisdiction, abdicate enforcement responsibility, or violate a "clear
  mandate" of the Statute.  The Authority asserted jurisdiction over the
  union's consolidation petition, and simply reached a decision on the merits
  of the matter that the union does not like.  Further, the Authority did not
  improperly fail to assert enforcement responsibility.  Authority
  representation cases are not enforcement actions, but rather are
  nonadversarial fact gathering proceedings.  5 C.F.R. § 2422.18(a) (2001).
  Finally, the Authority did not violate a clear mandate of the Statute, such
  that jurisdiction under Leedom v. Kyne, 358 U.S. 184 (1958), is properly
  invoked.

ARGUMENT

THE DISTRICT COURT CORRECTLY HELD THAT IT WAS WITHOUT SUBJECT MATTER
JURISDICTION OVER A COMPLAINT SEEKING REVIEW OF AN AUTHORITY DECISION IN A UNION
REPRESENTATION CASE, WHEN THAT TYPE OF DECISION IS EXPRESSLY BARRED FROM DIRECT
JUDICIAL REVIEW BY STATUTE, AND NO EXCEPTION TO THE BAR IS APPLICABLE

  The district court correctly held: 1) the prohibition on judicial review of
  Authority representation case decisions in § 7123(a) of the Statute cannot
  be circumvented by a law suit brought in district court under the
  Administrative Procedures Act (APA), 5 U.S.C. §§ 701, et seq.; 2) there is
  no judicially reviewable "legal interpretation" in the Authority's otherwise
  unreviewable decision; and 3) the Leedom v. Kyne exception to the bar on
  judicial review in § 7123(a) is not applicable here, nor has the Authority
  improperly declined to assert jurisdiction or enforcement power over this
  matter.   The union's contrary arguments are without merit and should be
  rejected.
  A.  The Express Statutory Ban On Judicial Review of Authority Representation
  Case Decisions Cannot Be Avoided By A District Court Suit Under the APA
  1.  It is axiomatic that federal court jurisdiction is conferred by Congress
  and that Congress may limit or foreclose review as it sees fit.  Am. 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).  The district court correctly
  recognized  (App. at 56-59) that Congress in the Statute prescribed a
  specific statutory scheme for judicial review of Authority orders.  The only
  provision for judicial review jurisdiction is set forth at § 7123 of the
  Statute.  5 U.S.C. § 7123.
  Pursuant to § 7123(a), a party who is aggrieved by a final Authority order
  may petition a United States Court of Appeals for judicial review.  However,
  Congress limited the opportunity for judicial review in two areas, one of
  which is relevant here:
  Any person aggrieved by any final order of the Authority other than an order
  under--
      . . .
(2) section 7112 of this title (involving an appropriate unit determination),
may . . . institute an action for judicial review of the Authority's order . . .
.
5 U.S.C. § 7123(a)(2) (emphasis added).  Thus, the plain language of § 7123(a)
(2) bars judicial review of Authority decisions involving appropriate unit
determinations, such as is involved in the instant case.[5]
  As the district court also recognized (App. at 57-58), the legislative
  history of § 7123(a)(2) provides further support for this conclusion.  A
  House-Senate Conference Committee, on the bill that eventually became the
  Statute, said that "[a]s in the private sector, there will be no judicial
  review of the Authority's determination of the appropriateness of bargaining
  units" under § 7123(a)(2).  H.R. Rep. No. 95-1717, at 153 (1978), reprinted
  in 1978 U.S. Code Cong. & Ad. News 2860, 2887.  This provides further proof,
  if any was necessary, of Congress' intent to bar judicial review of the kind
  of Authority decision at issue in this case.
  2.  The district court correctly rejected the union's argument that §
  7123(a)(2) only bars petitions for review of Authority orders filed directly
  in the circuit courts under § 7123(a).  (App. at 57-58.)  Contrary to the
  union's claim (Brief (Br.) at 20-22), in addition to foreclosing circuit
  court review of certain types of Authority decisions, the specific statutory
  scheme in § 7123(a) for judicial review of Authority orders also renders
  inapplicable general jurisdictional grants that might otherwise provide
  original jurisdiction in federal district courts.  See Council of Prison
  Locals v. Brewer, 735 F.2d 1497, 1500 (D.C. Cir. 1984) (in a case involving
  a component of the FLRA, this Court held that the specific review procedure
  in § 7123(a) bars general federal question and mandamus jurisdiction over
  district court suit); see also Columbia Power Trades Council v. United
  States Dep't of Energy, 671 F.2d 325, 327 (9th Cir. 1982).[6]  This includes
  suits brought under the APA.
  The union's argument is patently wrong under the terms of the APA itself, as
  well as case law of the Supreme Court and the D.C. Circuit, as the district
  court recognized.  (App. at 57-58.)  Under § 701(a)(1) of the APA, 5 U.S.C.
  § 701(a)(1), judicial review under the APA is unavailable if "statutes
  preclude judicial review."  It could not be plainer that § 7123(a)(2) of the
  Statute does just that.  Thus, by its own terms, APA review is unavailable,
  as the district court correctly held.
  The Supreme Court has also made abundantly clear that a party cannot "end
  run" a congressional prohibition on judicial review in a specific statutory
  scheme by bringing a case under the general review provisions of the APA.
  In NLRB v. United Food and Commercial Workers Union, 484 U.S. 112 (1987)
  (United Food and Commercial Workers), a union sought judicial review of a
  determination by the General Counsel of the National Labor Relations Board
  (NLRB) to enter into an informal settlement agreement after having issued an
  unfair labor practice complaint, but before a hearing was held on the
  complaint.  Such a determination, like the Authority appropriate unit
  decision here at issue, is barred from judicial review under the National
  Labor Relations Act (NLRA).  The Court held that it would be "absurd" to
  allow judicial review in a district court under the APA, thereby destroying
  Congress's purpose of barring direct judicial review in the courts of
  appeals under the NLRA.  United Food and Commercial Workers, 484 U.S. at
  133; see also Council of Prison Locals v. Brewer, 735 F.2d at 1501.  As the
  district court correctly recognized (App. at 57-58), it would be equally
  absurd to do so here.
  The Supreme Court decisions relied on by the union (Br. 21-23) are
  inapposite, as neither involves an express prohibition on judicial review
  like § 7123(a)(2) in this case.  Bowen v. Massachusetts, 487 U.S. 879
  (1988), involved an action for equitable relief that was found not to come
  within the meaning of the APA's bar on suits for money damages.  The issue
  then became whether the action should have been filed under the APA or
  another statute that may have provided a jurisdictional basis for the suit.
  This situation is irrelevant to the instant case.
  Similarly, Darby v. Cis¤eros, 509 U.S. 137 (1993), is inapposite, as the
  district court held (App. at 59 n.6).  That case concerned whether a
  plaintiff who had failed to take a discretionary administrative appeal
  before filing suit in district court had exhausted his administrative
  remedies as called for under the APA.  The Court found that he was not
  required to take the discretionary agency appeal to satisfy the exhaustion
  requirement.  Because exhaustion is not an issue in this case, Darby is
  irrelevant.
  In sum, the district court correctly concluded that the ban on judicial
  review of Authority representation case decisions in § 7123(a)(2) of the
  Statute applies to this suit brought under the APA.
  B.  The District Court Correctly Rejected the Union's Argument That Certain
  Authority Rulings In This Case Constitute Reviewable "Legal Interpretations"
  The union also erroneously argues (Br. 23-31) that the district court erred
  in not finding subject matter jurisdiction to review two supposedly
  reviewable "legal interpretations" in the Authority's otherwise unreviewable
  decision in this case.  The two supposed Authority "interpretations" the
  union asserts are reviewable are that: 1) the Technicians Act, 32 U.S.C. §
  709, prohibits a consolidated unit; and 2) the enhanced bargaining rights
  that would result from the Authority's finding a consolidated unit
  appropriate are not a basis for determining appropriateness.  The district
  court again correctly rejected these union claims.  (App. at 62-66.)
  First and foremost, the union's entire premise of "carving out" reviewable
  holdings in an otherwise unreviewable agency decision was squarely rejected
  by the Supreme Court in ICC v. Brotherhood of Locomotive Engineers, 482 U.S.
  270 (1987).  The union tries to overcome this obstacle by relying on Crowley
  Caribbean Transport, Inc. v. Pe¤a, 37 F.3d 671 (D.C. Cir. 1994) (Crowley);
  and McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991) (McNary).
  As discussed below, and as the district court pointed out, neither of these
  decisions is applicable to the instant case.  (App. at 62-66).  Moreover,
  the Authority did not make the kind of general policy decisions in this case
  that the courts have suggested might be subject to judicial review.
  1.  The Crowley And McNary Cases Upon Which The Union Relies Are Inapposite
  a.  Crowley is inapposite because there was no express bar to judicial
  review at issue in that case, as there is here in the form of § 7123(a)(2)
  of the Statute.  As previously discussed at p. 16, above, this express bar
  to review implicates § 701(a)(1) of the APA, which prohibits judicial review
  under the APA if review is precluded by statute.
  Furthermore, Crowley concerned an agency decision not to seek enforcement
  action.  The case therefore implicated the APA's prohibition on judicial
  review of agency action that is "committed to agency discretion by law"
  under § 701(a)(2) of the APA.  Accordingly, all of the Court's discussion in
  Crowley, 37 F.3d at 676, concerning distinctions between non-reviewable
  "single shot non-enforcement decision[s]" versus reviewable "general
  enforcement policy" expressed in regulations, is entirely irrelevant in this
  case.  These distinctions concerning discretionary agency enforcement action
  have never been applied in cases where, as here, there is an express
  statutory bar to judicial review.  See Patent Office Prof'l Ass'n v. FLRA,
  128 F.3d 751, 753 (D.C. Cir. 1997), cert. denied, 523 U.S. 1006 (1998).[7]
  b.  McNary is equally far afield.  That case concerned a class action law
  suit alleging a pattern of procedural due process violations by an agency in
  its administration of a program.  The Court held that a statutory
  prohibition on judicial review of individual agency actions was inapplicable
  to the class action suit, which did not focus on reversing such an
  individual agency action.
  This is obviously distinguishable from the instant case, where the union
  attacks only the Authority's specific resolution of how the facts of the
  case before it relate to the statutory criteria for appropriate unit
  determinations.  The union is not pursuing a claim that the Authority has
  adopted procedures that are violating parties' constitutional rights in
  representation cases across-the-board.  McNary is therefore not applicable
  here either.
  2.  The Authority Did Not Make A Reviewable General Policy Decision In This Case
  Even if the circumstances of this case were comparable to Crowley and
  McNary, the Authority did not make the kind of general policy decision in
  this case that the courts in Crowley and McNary suggested might be subject
  to judicial review.  E.g., Crowley, 37 F.3d at 676-77.  The union's contrary
  claim (Br. at 24-25) should therefore be rejected.
  The types of decisions reviewable under the rulings cited by the union are
  commonly embodied in regulations or interpretive rules, "abstracted from the
  particular combinations of facts the agency would encounter in individual
  enforcement proceedings."  Id.  Instead, the Authority here made an
  individualized adjudication decision, based on a "mingled assessment[] of
  fact, policy, and law that drive[s] an individual [agency] decision," that
  the Court recognized is not subject to judicial review.  Id.
  Even the most cursory review of the Regional Director's and the Authority's
  decisions in this case makes clear the individualized, adjudicative nature
  of those decisions.  For example, the Regional Director discussed at length
  the particular facts and circumstances in the case, and how they supported,
  or did not support, a finding of appropriateness of the proposed
  consolidated unit under the Statute's criteria for making such
  determinations.  (App. at 46-49.)  This analysis of the facts under the
  statutory appropriate unit criteria was adopted by the Authority.  (App. at
  29.)
  a.  The Authority certainly did not hold, as the union claims (Br. at 24),
  that the Technicians Act "prohibit[s], as a matter of law" nationwide
  consolidation of technician bargaining units.  Thus, although the Regional
  Director and the Authority did consider that the state Adjutants General
  employ and administer the technicians under the Technicians Act, and that
  the proposed consolidated unit would therefore "require a structuring of the
  National Guard inconsistent with the dictates of the Technicians Act" (App.
  at 30-31, 33, 47-48), this was only one of a number of factors that went
  into the eventual decision to find the consolidated unit inappropriate.
  For example, if a future unit consolidation proceeding were to establish a
  marked increase in the movement of technicians from state to state, this
  could theoretically be sufficient to outweigh the Adjutants' General
  authority to employ and administer technicians, resulting in a finding by
  the Authority that a consolidated unit is appropriate.[8]
  b.  Additionally, the Authority did not make a reviewable general policy
  decision when it held that the enhanced bargaining rights to which the union
  would be entitled under § 7117(a)(3), if a consolidated unit was found
  appropriate, were not a basis for finding the consolidated unit appropriate
  in the first place.  (App. at 32.)  The Authority determined that the
  enhanced bargaining rights that might accrue under § 7117(a)(3) apply only
  after the proposed unit is found appropriate under the criteria of §
  7112(a).[9]  (Id.)
  The Authority reached this conclusion solely by way of rejecting the union's
  reliance on § 7117(a)(3), that enhanced bargaining rights should be a factor
  in determining the appropriateness of a unit under § 7112(a).  Such an
  agency ruling concerning the applicability of a particular legal provision
  to a case's facts in an individual adjudication is not the kind of
  generalized policy action that the Crowley and McNary Courts suggested may
  be subject to judicial review.  This is so even if, as the union suggests
  (Br. at 25), the agency consistently adheres to that response in subsequent
  adjudications in which a party raises the same legal argument.
  In sum, the district court correctly held that no aspect of the Authority's
  decision-making in this case comes within the scope of reviewable agency
  actions discussed in Crowley and McNary.  Indeed, if the lower court held
  otherwise, virtually every Authority representation case decision would be
  subject to judicial review.  This is so because the instant case is by no
  means unique in terms of the Authority's application of law to facts.
  Therefore, if this case contains reviewable Authority holdings, then so will
  virtually every Authority representation case decision.  This untenable
  result must be rejected.
  C.  The District Court Correctly Held That the Authority Did Not Erroneously
  Disclaim Jurisdiction, Abdicate Enforcement Authority, Or Openly Violate the
  Clear Mandate of § 7112(a)
  The union's final effort at pounding the square peg of this case into the
  round hole of judicial review is to argue (Br. 33-35) that the two Authority
  "legal interpretations" mentioned at p. 19, above, constitute improper
  disclaimers of jurisdiction, abdication of enforcement responsibility, and
  "open[] violat[ion] [of] the clear mandate" of § 7112(a) by the Authority.
  Again, the district court correctly rejected these union arguments.  (App.
  at 59-62.)
  It could not be plainer that the Authority in no way disclaimed jurisdiction
  or abdicated enforcement authority in this case.[10]  Rather, as indicated
  at pp. 22 to 24, above, the Authority merely ruled on the merits of the
  Union's consolidation petition, consistent with the record in the case, the
  provisions of the Statute, and Authority case law.  The Authority never even
  hinted that it was without jurisdiction to resolve the Union's consolidation
  petition on the merits.  The union's inaccurate claim is simply a reflection
  of its displeasure with the Authority's determination on the merits of the
  union's petition.  This is obviously not a basis for the Court to assert
  jurisdiction.
  None of the cases cited by the union (Br. at 33) support its jurisdictional
  claim.  As the district court pointed out (App. at 61 n.9), Heckler v.
  Chaney, 470 U.S. 821 (1985), concerned an agency decision not to seek
  enforcement of a statutory provision.  However, the Authority here has not
  refused to take enforcement action.  Similarly, the Authority did not find
  itself to be without jurisdiction to act, as was the case with the
  Authority's General Counsel in Montana Air Chapter No. 29 v. FLRA, 898 F.2d
  753 (9th Cir. 1990).
  The district court correctly held (App. at 62) that the union's reliance on
  Leedom to establish jurisdiction is also misplaced because the union cannot
  establish that the Authority "openly violate[d] a clear mandate" of the
  Statute.  United States Dep't of the Treasury, United States Customs Serv.
  v. FLRA, 43 F.3d 682, 688 (D.C. Cir. 1994) (Customs Service).  The Leedom
  exception is "intended to be of extremely limited scope."  Griffith v. FLRA,
  842 F.2d 487, 493 (D.C. Cir. 1988) (Griffith).
  The circumstances of this case are not comparable to Leedom.  In making its
  decision, the Authority followed its ordinary process of considering and
  interpreting the relevant statutory provisions regarding appropriate unit
  determinations; applying the provisions to the facts in the record; and
  making the bargaining unit determination with which the union now disagrees.
  At most, the union's challenge to the Authority's decision merely raises the
  "'garden-variety' error of law" claims that fall outside the Leedom
  exception.  United States Dep't of Justice, Fed'l Bureau of Prisons v. FLRA,
  981 F.2d 1339, 1343 (D.C. Cir. 1993) (quoting Griffith, 842 F.2d at 493).
  The union's mere disagreement with the merits of the Authority's holding in
  this regard does not rise to the level of a colorable Leedom claim because,
  as the district court held (App. at 61), under Leedom, whether the
  Authority's statutory interpretation is correct is irrelevant for
  jurisdictional purposes.
  The union alleges (Br. at 34-35) that the Leedom standard for review is met
  because the Authority held that the goal of § 7112, i.e., to ensure
  employees the "fullest freedom in exercising the rights guaranteed" under
  the Statute, was not a factor in determining the appropriateness of the
  consolidated unit.  This claim does not establish Leedom jurisdiction.
  The "fullest freedom" passage in § 7112(a) does not mandate that the
  expanded bargaining rights of § 7117(a)(3) be considered in determining unit
  appropriateness. Yet this is the kind of clear statutory mandate that the
  union would have to identify, to be able to prevail on this issue.  As
  pointed out at page 23, fn. 9, above, the Authority reasonably construed §
  7117(a)(3) rights not to apply to appropriate unit determinations.  In other
  words, the Authority held that it "puts the cart before the horse" to say
  that a right gained, if consolidation is otherwise appropriate, is a basis
  for granting the petition.  The union's mere disagreement with the
  Authority's reasonable interpretation of the Statute is not a basis for
  Leedom jurisdiction, as the district court correctly recognized.

CONCLUSION

  The district court's dismissal of the union's complaint for lack of subject
  matter jurisdiction should be affirmed.
  Respectfully submitted.

            ____________________________
            DAVID M. SMITH
            Solicitor


            ____________________________
            WILLIAM R. TOBEY
            Deputy Solicitor

            ____________________________
            WILLIAM E. PERSINA
            Attorney


            Federal Labor Relations Authority
            607 14th Street, N.W.
            Suite 330
            Washington, D.C. 20424-0001
            (202) 482-6620

OCTOBER 2001



CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 28

  Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 28, I
  certify that the attached brief is proportionately spaced, utilizes 14-point
  serif type, and contains 6,215 words.


              ___________________________
              William E. Persina

October 17, 2001




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

_______________________________

ASSOCIATION OF CIVILIAN TECHNICIANS,
INC.,
            Appellant

        v.                            No. 01-5170

FEDERAL LABOR RELATIONS AUTHORITY,
            Appellee
_______________________________



SERVICE LIST

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

        Daniel M. Schember
        Gaffney & Schember, P.C.
        1666 Connecticut Ave., NW,
            Suite 225
        Washington, D.C. 20009


                                Thelma Brown
                                Paralegal Specialist

October 17, 2001



TABLE OF CONTENTS

1.  5 U.S.C. § 7112(a), (d)   A-1
2.  5 U.S.C. § 7117(a)(3)   A-2
3.  5 U.S.C. § 7123(a), (a)(2)  A-3
4.  Administrative Procedures Act, 5 U.S.C. § 701   A-4
5.  National Guard Technicians Act of 1968, 32 U.S.C. § 709   A-5

  § 7112. Determination of appropriate units for labor organization
  representation
  (a) The Authority shall determine the appropriateness of any unit. The
  Authority shall determine in each case whether, in order to ensure employees
  the fullest freedom in exercising the rights guaranteed under this chapter,
  the appropriate unit should be established on an agency, plant,
  installation, functional, or other basis and shall determine any unit to be
  an appropriate unit only if the determination will ensure a clear and
  identifiable community of interest among the employees in the unit and will
  promote effective dealings with, and efficiency of the operations of the
  agency involved.

* * * * * * *

  (d) Two or more units which are in an agency and for which a labor
  organization is the exclusive representative may, upon petition by the
  agency or labor organization, be consolidated with or without an election
  into a single larger unit if the Authority considers the larger unit to be
  appropriate. The Authority shall certify the labor organization as the
  exclusive representative of the new larger unit.

§ 7117. Duty to bargain in good faith; compelling need; duty to consult

* * * * * * *

  (a)(3) Paragraph (2) of the subsection applies to any rule or regulation
  issued by any agency or issued by any primary national subdivision of such
  agency, unless an exclusive representative represents an appropriate unit
  including not less than a majority of the employees in the issuing agency or
  primary national subdivision, as the case may be, to whom the rule or
  regulation is applicable.

* * * * * * *§ 7123. Judicial review; enforcement

  (a) Any person aggrieved by any final order of the Authority other than an
  order under-

* * * * * * *

  (2) section 7112 of this title (involving an appropriate unit
  determination),
  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 in the
  United States court of appeals in the circuit in which the person resides or
  transacts business or in the United States Court of Appeals for the District of
  Columbia.

* * * * * * *




[1]      Relevant statutory and regulatory provisions are set out in the
addendum to this brief.
[2]      Section 7112(d) provides as follows:
(d)  Two or more units which are in an agency and for which a labor organization
is the exclusive representative may, upon petition by the agency or labor
organization, be consolidated with or without an election into a single larger
unit if the Authority considers the larger unit to be appropriate.  The
Authority shall certify the labor organization as the exclusive representative
of the new larger unit.
[3]      National Guard dual status technicians are full-time civilian employees
of the federal government, but they are employed and administered by the
Adjutant General of the State Guard for whom they work under the National Guard
Technicians Act of 1968, 32 U.S.C. § 709.  Technicians are required, as a
condition of their civilian employment, to maintain military membership of
appropriate rank in the State Guard in which they are employed.  United States
Dep't of Defense, Nat'l Guard Bureau v. FLRA, 982 F.2d 577, 578 (D.C. Cir.
1993).  Thus, they are "hybrid" employees, i.e., federal civilian employees who
work in a military environment under the immediate control of state officers.
State of Neb., Military Dep't, Office of the Adjutant Gen. v. FLRA, 705 F.2d
945, 951 (8th Cir. 1983).
[4]      As the Regional Director found (App. at 41), the National Guard Bureau
is responsible for "liaison and coordination" between the United States
Department of Defense and the various state National Guards.  It issues
regulations governing, among other things, working conditions for dual status
technicians.
[5]      However, an underlying unit determination by the Authority can be
reviewed by a court of appeals if the Authority subsequently renders an unfair
labor practice holding based on a refusal to bargain.  Cf. Physicians Nat'l
House Staff Ass'n v. Fanning, 642 F.2d 492, 495 (D.C. Cir. 1980) (en banc)
(Fanning), cert. denied, 450 U.S. 917 (1981).  Contrary to the union's claim
(Br. at 21-22), the adequacy of this indirect review scheme is irrelevant to
determining whether Congress intended to bar all direct review of Authority
representation case decisions in § 7123(a)(2) of the Statute.  The district
court noted the availability of this indirect review scheme (App. at 59 n.5, 66
n.11), but did not find it determinative of the district court's holding on the
application of § 7123(a)(2).
[6]      The courts have reached the same conclusion in analogous cases
involving other labor statutes.  See Switchmen's Union of N. Am. v. Nat'l
Mediation Bd., 320 U.S. 297, 301 (1943) (federal district court was without
jurisdiction to review a National Mediation Board representation decision where
Congress specified how the representation rights it created were to be
enforced); Hartz Mountain Corp. v. Dotson, 727 F.2d 1308, 1311 (D.C. Cir. 1984)
(Hartz) ("except in the rarest of circumstances, district courts are without
jurisdiction to entertain direct appeals of [National Labor Relations] Board
actions in representation" cases).
[7]      The court below chose not to distinguish Crowley on the basis set out
in the text above.  Rather, the court below relied on this Court's distinction
in Crowley, 37 F.3d at 676-77, between general agency statements of enforcement
policy contained in regulations or interpretive rules, which may be judicially
reviewable; and "single shot" discretionary agency enforcement decisions, which
are not reviewable.  As set out at pp. 21 to 24, below, even applying this
aspect of Crowley, the district court ruled correctly.
[8]      Because of its faulty premise as to what the Authority held, the
union's lengthy critique of the Authority's decision concerning the significance
of the Technicians Act (Br. at 25-31) is much ado about nothing.  As indicated
in the text, the Authority viewed the Adjutants' General role in employing and
administering technicians as established in the Technicians Act as only one of a
number of factors in applying the appropriate unit criteria of § 7112(a) of the
Statute.
[9]      Although the merits of this Authority holding are not properly before
the Court, it is noteworthy that, contrary to the union's assertion (Br. at
31-33), the Authority reasonably rejected the union's claim on this point.
First, the Authority's holding involves a construction of the Statute which is
entitled to deference from a reviewing court.  E.g., BATF, 464 U.S. at 97.
Second, the Authority reasonably concluded that bargaining rights enjoyed after
a unit is found appropriate are not a factor in deciding whether a unit is
appropriate in the first instance.  As the Authority pointed out (App. at 32),
the expanded bargaining righ