JEFFREY W. EISINGER, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.


Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Case Name:
EISINGER V FLRA
Case Number: Date Filed:
98-70866 07/17/00


FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY W. EISINGER,
Petitioner,                                           No. 98-70866


v.                                                    FLRA No.
                                                     SF-RP-80004
FEDERAL LABOR RELATIONS
AUTHORITY,                                            OPINION
Respondent.


Petition to Review a Decision of the
Federal Labor Relations Authority


Argued and Submitted
February 10, 2000--San Francisco, California


Filed July 17, 2000

Before: Procter Hug, Jr., Chief Judge, Dorothy W. Nelson,
and M. Margaret McKeown, Circuit Judges.


Opinion by Judge D. W. Nelson

_________________________________________________________________


COUNSEL

Lisa R. Sattler, McDermott, Will & Emery, Menlo Park, Cali-
fornia, for the petitioner.


                               8301


James F. Blandford, attorney, Federal Labor Relations
Authority, Washington, D.C., for the respondent.


_________________________________________________________________

OPINION

D.W. NELSON, Circuit Judge:

Eisinger petitions this court for review of the Federal Labor
Relations Authority's ("FLRA") decision affirming the dis-
missal of his "clarification of unit" ("CU") petition for lack of
standing. In his CU petition, Eisinger sought to clarify
whether the employees of the Small Business Administra-
tion's ("SBA") Fresno Commercial Loan Servicing Center
were subject to the agency's collective bargaining agreement
with the American Federation of Government Employees
("AFGE"). Eisinger argues that: (1) we have jurisdiction to
review the FLRA's final order pursuant to 5 U.S.C.S 7123(a)
(1994); and (2) the FLRA's regulation on standing, 5 C.F.R.
S 2422.2, contravenes the plain language in 5 U.S.C. SS 7103
and 7111. We grant the petition for review and reverse the
FLRA's decision.


I. FACTUAL BACKGROUND

From 1985 to 1997, Eisinger was employed in the Fresno
District Office of the SBA. Employees in this office are part
of a nationwide consolidated bargaining unit of SBA employ-
ees, a unit represented exclusively by AFGE. As an SBA
employee, Eisinger was subject to the collective bargaining
agreement ("Master Agreement") between the SBA and the
AFGE.


In 1997, Eisinger was transferred from the district office to
the Fresno Commercial Loan Servicing Center (the "Servic-
ing Center"), an office of about 50 employees that the SBA
created in 1989 and that became a separate office in 1995. On


                               8302


October 20, 1997, Eisinger filed a petition with the FLRA's
Regional Office in San Francisco requesting a determination
that the employees of the Servicing Center, particularly its
professional employees, were not subject to the Master Agree-
ment.1


The FLRA is the agency in charge of overseeing labor-
management relations in the federal government pursuant to
the Federal Services Labor-Management Relations Statute, 5
U.S.C. SS 7101 et seq. On October 31, 1997, the FLRA's
Regional Director ordered Eisinger "to show cause, in writ-
ing, why the petition should not be dismissed as improperly
filed pursuant to the Rules and Regulations" of the FLRA.
Although Eisinger's response conceded that he lacked stand-
ing under FLRA regulations, he argued that the statutory lan-
guage of 5 U.S.C. S 7111(b)(2) permits "any person" to file
a petition and that S 7103(a)(1) defines a person as "an indi-
vidual, labor organization, or agency." Eisinger contended
that the statute "has precedence over the Regulations."


On December 2, 1997, the Regional Director issued a deci-
sion and order dismissing Eisinger's petition, which was
described as "seeking clarification of, or an amendment to, a
certification in effect or a matter relating to representation."
The director found that 5 C.F.R. S 2422.2 provides that only
an agency or labor organization may file such a petition. Fur-
thermore, he found that the regulation "clearly limits the abil-
_________________________________________________________________
1 Eisinger wrote:


      The agency and the union take the position that the employees
      of the FCLSC ["Servicing Center"] are subject to the Master
      Agreement. I disagree. No vote has ever been taken to determine
      whether the employees of the FCLSC wish to be represented by
      the AFGE. Further, no vote has ever been conducted among the
      professional employees of the AFGE as to union representation.


      I believe it is inappropriate for the agency and the union to
      continue to insist that the employees of the FCLSC, particularly
      the professional employees, are subject to the Master Agreement.


                               8303


ity of certain `persons' to file particular petitions and have
them processed."2 On December 8, 1997, Eisinger timely filed
pro se an application for review of the director's decision with
the FLRA. The FLRA granted review.


In a 2-1 decision, the FLRA affirmed the Regional Direc-
tor's dismissal of Eisinger's petition. Chair Segal and Mem-
ber Wasserman filed separate concurring opinions and
Member Cabaniss dissented. Although there was no majority
opinion, the two concurring members agreed that"5 C.F.R.
S 2422.2 is not inconsistent with the statute. " Eisinger timely
appealed the FLRA's decision to this Court. After initial
briefing, we appointed Eisinger pro bono counsel and estab-
lished a supplemental briefing schedule.


II. STANDARD OF REVIEW

Although the "interpretation of a statute is a question of law
reviewed de novo, the court must give deference to an agen-
cy's interpretation of a statute that it administers." Herman v.
Tidewater Pacific, Inc., 160 F.3d 1239, 1241 (9th Cir. 1998)
(citations omitted). "[L]egislative regulations promulgated
pursuant to . . . express authority will be upheld`unless they
are arbitrary, capricious, or manifestly contrary to the stat-
_________________________________________________________________
2 Section 2422.2 provides:


      S 2422.2 Standing to file a petition

      A representation petition may be filed by: an individual; a
      labor organization; two or more labor organizations acting as a
      joint-petitioner; an individual acting on behalf of any
      employee(s); an agency or activity; or a combination of the
      above: Provided, however, that


***

      (c) only an agency or labor organization may file a petition pur-
      suant to section 2422.1(b) or (c) [clarification or amendment peti-
      tions].


5 C.F.R. S 2422.2 (2000).

                               8304


ute.' " Bicycle Trails Council of Marin v. Babbitt, 82 F.3d
1445, 1454 (9th Cir. 1996) (quoting Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984)).3


The FLRA is entrusted with broad authority to interpret the
Labor-Management Relations Statute and to promulgate regu-
lations that carry out the statute's provisions. See 5 U.S.C.
SS 7105, 7134. The Supreme Court has addressed the proper
deference accorded to the FLRA:


      [T]he FLRA was intended to develop specialized
      expertise in its field of labor relations and to use that
      expertise to give content to the principles and goals
      set forth in the Act. Consequently, the Authority is
      entitled to considerable deference when it exercises
      its "special function of applying the general provi-
      sions of the Act to the complexities" of federal labor
      relations.


      On the other hand, the "deference owed to an expert
      tribunal cannot be allowed to slip into a judicial iner-
      tia which results in the unauthorized assumption by
      an agency of major policy decisions properly made
      by Congress." Accordingly, while reviewing courts
      should uphold reasonable and defensible construc-
      tions of an agency's enabling Act, they must not
      "rubber-stamp . . . administrative decisions that they
      deem inconsistent with a statutory mandate or that
      frustrate the congressional policy underlying a stat-
      ute."
_________________________________________________________________
3 The statute's jurisdictional provision instructs us not to set aside the
FLRA's decision unless it is "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law." Department of Veterans
Affairs Med. Ctr. v. FLRA, 16 F.3d 1526, 1529 (9th Cir. 1994) (citing 5
U.S.C. S 7123(c), incorporating 5 U.S.C. S 706) (other citations omitted).


                               8305


Bureau of Alcohol, Tobacco and Firearms v. FLRA , 464 U.S.
89, 97 (1983) (citations omitted).


We recognize that "[a]n agency's interpretation of a statu-
tory provision . . . [that] it is charged with administering is
entitled to a high degree of deference." Rainsong Co. v. Fed-
eral Energy Regulatory Comm'n, 106 F.3d 269, 272 (9th Cir.
1997) (citations omitted). However, " `[t]he judiciary is the
final authority on issues of statutory construction and must
reject administrative constructions which are contrary to clear
congressional intent.' " Natural Resources Defense Council v.
United States Dep't of the Interior, 113 F.3d 1121, 1124 (9th
Cir. 1997) (quoting Chevron, 467 U.S. at 843 n.9).


III. DISCUSSION

We are presented with two questions of first impression:
(1) whether we have jurisdiction under S 7123 to review a
petition filed under S 7111; and (2) whether the FLRA's regu-
lation, 5 C.F.R. S 2422.2(c), which limits standing to file peti-
tions to agencies and unions, is contrary to the statutory
language authorizing "any person" to file such a petition.
Both questions turn on statutory construction.


A. JURISDICTION

[1] Our jurisdiction to review a final decision of the FLRA
is governed by 5 U.S.C. S 7123(a), which provides, in rele-
vant part:


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


      ***

      (2) section 7112 of this title (involving an appropri-
      ate unit determination),


                               8306


      may . . . institute an action for judicial review of the
      Authority's order in the United States court of
      appeals . . . .


5 U.S.C. S 7123(a) (emphasis added). The plain language of
the statute clearly states that we have jurisdiction over all final
orders from the FLRA, with one of the two exceptions being
orders issued under S 7112.4


[2] Section 7112 discusses the "[d]etermination of appro-
priate units for labor organization representation " and clearly
states that "[t]he Authority shall determine the appropriate-
ness of any unit." 5 U.S.C. S 7112(a). An appropriate unit
determination involves "whether . . . the appropriate unit
should be established on an agency, plant, installation, func-
tional, or other basis . . . ." Id.


[3] In this case, Eisinger filed his petition under S 7111, not
S 7112. Section 7111(b)(2) involves the "clarification of, or
amendment to" an existing unit. The statute says that "[i]f a
petition is filed with the Authority . . . by any person seeking
clarification of, or amendment to, a certification then in effect
or a matter relating to representation; the Authority shall
investigate the petition, . . . ." 5 U.S.C. S 7111(b)(2) (empha-
sis added). A clarification of unit (CU) petition is a type of
"representation petition" that is "appropriate where there is
uncertainty about the status of an employee with respect to the
bargaining unit or in cases where reorganization has altered
the scope of the unit." Robert T. Simmelkjaer, Representation
and Election, in Federal Civil Service Law and Procedures
213, 216 (Ellen M. Bussy ed., 1990).


[4] Ordinarily, the investigation of a CU petition under
S 7111 results in an appropriate unit determination under
S 7112:
_________________________________________________________________
4 The other exception is S 7122 (arbitration awards), which is not rele-
vant to this case. See 5 U.S.C. S 7123(a)(1).


                               8307


      Following the filing of a representation petition in
      accordance with 7111(b), the regional director . . .
      must conduct an investigation to determine whether
      the proposed unit is appropriate for the purposes of
      collective bargaining. The regional director's investi-
      gation not only applies the criteria for determining
      appropriateness contained in section 7112(a)(1) but
      also ensures that the unit does not contain excluded
      categories of employees identified in section
      7112(b)(1)-7112(b)(7).


Simmelkjaer, Representation and Elections, 222-23. The
FLRA is "bound by the three criteria for determining the
appropriateness of any unit as mandated by section
7112(a)(1)." International Communication Agency, 5
F.L.R.A. 97, 99 (1981). Thus, FLRA review of S 7111/CU
petitions typically involves application of the substantive
criteria required by S 7112(a). See, e.g. , Department of
Defense Dependents Schools, 6 F.L.R.A. 297 (1981); Depart-
ment of Agriculture, Animal Plant Health Inspection Serv., 6
F.L.R.A. 261 (1981); International Communication Agency, 5
F.L.R.A. at 99.


[5] The primary reason for our jurisdiction over this case is
the plain language of S 7123. It is a well-recognized rule of
statutory construction that "[t]he plain meaning of the statute
controls, and courts will look no further, unless its application
leads to unreasonable or impracticable results." United States
v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999) (citing Seattle-
First Nat'l Bank v. Conaway, 98 F.3d 1195, 1197 (9th Cir.
1996)). The plain meaning of S 7123 is unambiguous: If the
FLRA's final order is not an "appropriate unit determination"
under S 7112 and if no other exception applies, then we have
jurisdiction. We reject the FLRA's argument that in this case
it made an "appropriate unit determination" under S 7112.
The FLRA dismissed Eisinger's petition on standing grounds.
It did not conduct an investigation, it did not make an appro-
priate unit determination, and it did not consider the three


                               8308


criteria for determining the appropriateness of a unit as man-
dated by S 7112(a). Neither the Regional Director nor the
FLRA moved beyond the procedures of S 7111 and into the
substance of S 7112. Therefore, this is an atypical case where
a CU petition filed under S 7111 does not implicate S 7112.


We have jurisdiction because we are not interfering with
the FLRA's unreviewable authority to decide the merits of
representation petitions. We do not believe that we should
limit our jurisdiction because Eisinger may have other ave-
nues of relief.5 Nor do we believe that our decision will lead
to a bifurcated review of FLRA decisions based on whether
or not they are decided on procedural grounds (such as moot-
ness, ripeness, or standing) or on the merits. Section 7111
commands that if a CU petition is filed by "any person," the
FLRA "shall investigate the petition[ ] . . . ." 5 U.S.C.
S 7111(b)(2) (emphasis added). By using the word "shall,"
Congress mandated an FLRA investigation of everyS 7111
petition under S 7112. See Mallard v. United States Dist.
Court, 490 U.S. 296, 302 (1989) (finding that use of the word
"shall" indicates a command). Thus, before dismissing this
case on procedural grounds, the FLRA should have investi-
gated the petition according to the procedures ofS 7111 and
_________________________________________________________________

5 The FLRA, citing National Treasury Employees Union (NTEU) v.
FLRA, 112 F.3d 402, 406 (9th Cir. 1997) (per curiam), noted that if its
regulations on standing are "in excess of its delegated powers and contrary
to a specific [statutory] provision," then the district court has original
jurisdiction. Leedom v. Kyne, 358 U.S. 184, 188 (1958). The district court,
however, has original jurisdiction only if appellate review is presump-
tively foreclosed. See id. at 187. In order for Eisinger to prevail at the dis-
trict court, the FLRA must have completely exceeded its jurisdictional
authority, rather than just acted arbitrarily and capriciously. Furthermore,
the FLRA fails to acknowledge that our decision in NTEU held that we
lacked jurisdiction over that arbitration case because the statutory lan-
guage of S 7123 was clear. See NTEU, 112 F.3d at 404-05. In this case,
we likewise find that the plain meaning of S 7123 is clear, but this time
it indicates that we have jurisdiction. Given this clear statutory language,

it is unnecessary to abdicate our jurisdiction because Eisinger may have
other avenues of relief.


                               8309


the criteria of S 7112. Indeed, if the FLRA had investigated
the merits of Eisinger's petition, or if it ever considers the
merits of his petition in the future, we will not have jurisdic-
tion to review the FLRA's decision. As it currently stands,
however, asserting jurisdiction over this case based on the
statute's plain language will not lead to an "unreasonable or
impracticable" result.


We also reject the FLRA's contention that the legislative
history is clearly contrary to the statute's plain language. We
are mindful that "access to judicial review should be limited
`only upon a showing of "clear and convincing evidence" of
a contrary legislative intent.' " NTEU, 112 F.3d at 404-05
(quoting Lindahl v. OPM, 470 U.S. 768, 778 (1985)). The
"presumption of judicial review `has never turned on a talis-
manic test.' " Id. at 405 (quoting Lindahl, 470 U.S. at 778-
79). " `Rather, the question whether a statute precludes judi-
cial review "is determined not only from its express language,
but also from the structure of the statutory scheme, its objec-
tives, its legislative history, and the nature of the administra-
tive action involved." ' " Id. (quoting Lindahl, 470 U.S. at 779
(quoting Block v. Community Nutrition Inst., 467 U.S. 340,
345 (1984))).


The express language and the nature of the administrative
action in this case indicate that we have jurisdiction. We
reject the FLRA's reliance on United States Dep't of Justice
v. FLRA ("Justice"), 727 F.2d 481 (5th Cir. 1984), which the
FLRA cites in support of its argument that the statute's legis-
lative history suggests otherwise. The Fifth Circuit held that
it did not have jurisdiction to review an FLRA decision under
S 7111 that overturned the results of a representation election
and ordered a second election. See id. at 494. The Fifth Cir-
cuit read the statute's legislative history as bearing "strong
indicia of an intent on the part of Congress to exclude section
7111 election decisions from direct appellate review." Id. at
492. Furthermore, in dicta, the Fifth Circuit reads the legisla-
tive history as suggesting that Congress also intended "to treat


                               8310


the Authority's decisions in representation proceedings as
`non-final' orders, which were not reviewable . .. ." Id. at
493.


The Fifth Circuit's reading of the legislative history is over-
broad. The Senate version of the bill allowed appeals only of
unfair labor practices. See H.R.Rep. No. 1717, 95th Cong., 2d
Sess. 153 (1978), reprinted in 1978 U.S.C.C.A.N. 2860, 2887
(Conference Report). The House version allowed appeals
from unfair labor practice decisions and "all other final deci-
sions of the Authority involving an award by an arbitrator,
and the appropriateness of the unit an organization seeks to
represent . . . ." Id. The conference committee compromised
by excluding arbitration awards and appropriate unit determi-
nations from judicial review, but by allowing review of all
other decisions:


      In the case of those other matters that are appealable
      to the Authority the conference report authorizes
      both the agency and the employee to appeal the final
      decision of the Authority except in two instances
      where the House recedes to the Senate. As in the pri-
      vate sector, there will no judicial review of the
      Authority's determination of the appropriateness of
      bargaining units, and there will be no judicial review
      of the Authority's action on those arbitrators awards
      in grievance cases which are appealable to the
      Authority.


Id. We find this conference report to be consistent with the
plain language of the statute: All final FLRA orders are
appealable, except those relating to appropriate unit determi-
nations and arbitration awards.


The Fifth Circuit argued by implication that sinceS 7111
"election decisions" were not mentioned in either the House
or Senate bills, they were not appealable. Furthermore, it con-
tended that the reference to "the private sector " and a state-


                               8311


ment by one of the bill's co-sponsors indicate that we should
follow NLRB case law that any order during a representation
proceeding is not a final order. See Justice, 727 F.2d at 492.
The Fifth Circuit's reading, however, ignores the consistency
between the statutory language and the legislative history.


The Fifth Circuit downplayed the plain meaning argument
by characterizing it as "expressio unius est exclusio alterius."
Id. at 491. This canon of statutory construction means "the
[expression] of one thing implies the exclusion of all the oth-
ers." William N. Eskridge, Jr., The New Textualism, 37
U.C.L.A. L. Rev. 621, 664 (1990). The statute in this case
does not by implication require excluding anything. Its plain
language explicitly includes everything within our judicial
review, with two well-defined exceptions. The Fifth Circuit's
opinion argued that the legislative history implies additional
exceptions. We leave that task for Congress.


[6] Finally, the Fifth Circuit's decision is distinguishable
because it rested on a finding that ordering a second election
is not a "final order" under S 7123. See Justice, 727 F.2d at
493 ("With regard to the particular order here, it is especially
clear that it is not final . . . . [S]etting aside the first election
and directing a second election does not have any conclusive
legal consequences nor does it finally determine any rights or
obligations . . . . That matter is left to a second election and
subsequent certification proceedings."). In contrast, the FLRA
order in this case was a "final order." By dismissing Eis-
inger's petition on standing grounds, the FLRA precluded
subsequent proceedings on the merits. Thus, unlike the Fifth
Circuit's refusal to review an order of a second election, this
order was final for the purposes of our jurisdiction under
S 7123.


In summary, we have jurisdiction over this case because (1)
the plain language of the statute clearly grants us jurisdiction
over all final FLRA orders other than those underS 7112; (2)
the FLRA's order addressed only standing under S 7111 and


                               8312


never reached the merits under S 7112; and (3) the statute's
legislative history is not inconsistent with its plain language.


B. STANDING

[7] We reverse the FLRA's decision on standing because
its regulation contravenes the applicable statutory language.
Once again, we find that the plain meaning of the statute is
clear -- an individual has standing to file a petition under
S 7111.


[8] The FLRA's regulation on standing provides that "only
an agency or labor organization may file a petition " to clarify
or amend a unit determination. 5 C.F.R. S 2422.2(c).
Although Eisinger conceded that the regulation denies him
standing, he argues that the FLRA's regulation is contrary to
the plain language of the statute. Section 7111(b)(2) provides,
in relevant part:


      (b) If a petition is filed with the Authority --

      ***

      (2) by any person seeking clarification of, or an
      amendment to, a certification then in effect or a mat-
      ter relating to representation;


      the Authority shall investigate the petition, and if it
      has reasonable cause to believe that a question of
      representation exists, it shall provide an opportunity
      for a hearing (for which a transcript shall be kept)
      after a reasonable notice.


      ***

5 U.S.C. S 7111(b)(2) (emphasis added). Furthermore, Sec-
tion 7103 provides definitions for the terms inS 7111, includ-
ing a definition for "person":


                               8313


      (a) For the purpose of this chapter--

      (1) "person" means an individual, labor organi-
      zation, or agency;


      ***

5 U.S.C. S 7103(a)(1) (emphasis added).

[9] In reviewing an agency's construction of a statute that
it administers, we apply the well-established test in Chevron.
Under Chevron, the first step is "whether Congress has
directly spoken to the precise question at issue. If the intent
of Congress is clear, that is the end of the matter, for the
court, as well as the agency, must give effect to the unam-
biguously expressed intent of Congress." Chevron, 467 U.S.
at 842-43. The court only takes the second step ("whether the
agency's answer is based on a permissible construction of the
statute") "if the statute is silent or ambiguous." Id. at 843.
Furthermore, Chevron noted that we have final authority on
issues of statutory construction and that "[i]f a court, employ-
ing traditional tools of statutory construction, ascertains that
Congress had an intention on the precise question at issue, the
intent is the law and must be given effect." Id. n.9 (citations
omitted).


In this case, the statutory language permitting "any person"
to file a S 7111 petition is neither silent nor ambiguous. " `A
fundamental canon of statutory construction is that, unless
otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning.' " Smith v. United
States, 155 F.3d 1051, 1057 (9th Cir. 1998) (quoting Perrin
v. United States, 444 U.S. 37, 42 (1979)). Section 7103(a)(1),
however, goes one step further by explicitly defining a "per-
son" as an "individual, labor organization, or agency." " `As
a rule, "[a] definition which declares what a term `means' . . .
excludes any meaning that is not stated." ' " Smith, 155 F.3d
at 1057 (quoting Colautti v. Franklin, 439 U.S. 379, 392-93


                               8314


n.10 (1979) (quoting 2A C. Sands, Statutes and Statutory
Construction S 47.07 (4th ed. Supp. 1978), overruled on other
grounds by Webster v. Reproductive Health Servs., 492 U.S.
490 (1989))).


[10] We conclude that the intent of Congress was unambig-
uous. Congress has permitted "any person" to file a S 7111
petition and specifically defined a "person" as an "individu-
al." Given the clarity of Congress's intent in this case, we will
not in