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 inquire beyond
the first step of the Chevron test. There-
fore, we will not address
the policy and practical consider-
ations advanced by the FLRA. We will,
however, briefly
address the FLRA's textual arguments.
First, the FLRA contends that S 7111(b) does not establish
the
requirements for filing representation petitions because it
says "If a
petition is filed with the Authority . . ." 5 U.S.C.
S 7111(b)(2) (emphasis
added). This argument presumes that
Congress intended for the FLRA to
define what constitutes a
valid petition and to define who may file it.
This presumption,
however, ignores the statute's plain meaning that such a
peti-
tion may be filed "by any person."
Second, the FLRA
argues that the statutory definition of a
"person" is stated in the
disjunctive ("individual, labor organi-
zation, or agency") and therefore
may be limited by context.
While this may be true in some cases, the
argument is inappli-
cable here. The statutory definition expanded the
traditional
definition of "person" to include labor organizations and
agencies. In this case, a "person" at a minimum refers to natu-
ral
persons. Furthermore, the statute says -- without limita-
tion -- "any
person," suggesting that in this context either an
individual, labor
organization, or agency may file such a peti-
tion. The FLRA attempts to
provide an alternative meaning in
the face of an explicit statutory
definition, thus violating the
traditional canons of statutory
construction. Therefore, under
Chevron, the FLRA's regulation denying
individuals the
8315
standing to file a S 7111 petition is invalid because it
contra-
venes the unambiguous intent of Congress.
IV.
CONCLUSION
[11] We recognize that in most cases the FLRA
deserves
considerable deference in interpreting statutes and in making
policy in the complex world of federal labor relations. Our
opinion does
not disturb the FLRA's unreviewable authority
to clarify and make
appropriate unit determinations. This is
one of the rare cases, however, in
which the FLRA's regula-
tion oversteps the bounds established by Congress.
The plain
language of the statutes is clear and unambiguous -- we find
that we have jurisdiction over final FLRA orders except those
under S 7112,
and that the FLRA regulation denying individu-
als standing to file S 7111
petitions is invalid. The petition for
review is granted. The FLRA's
decision is reversed.
REVERSED.
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