The opinion of the court was delivered by: GREEN
The Federal Services Labor-Management Relations Statute (Statute or Act)
provides for indirect review in the courts of appeals of decisions of the Panel if they form the basis of a final order by the FLRA in unfair labor practice proceedings.
In the absence of one of the few recognized statutory or judicial exceptions, that scheme is exclusive. 5 U.S.C. § 7123(a); see Columbia Power Trades Council v. Department of Energy, 671 F.2d 325, 327 (9th Cir. 1982)(". . . It is manifestly the expressed desire of Congress to create an exclusive statutory scheme." [footnote omitted]). Because it is determined that plaintiff has not comported with the statutory requirements for review, nor demonstrated that this case presents an exception to the rule of non-reviewability, this cause must be dismissed for want of subject matter jurisdiction.
Upon request, the Panel serves "to provide assistance in resolving negotiation impasses between agencies and exclusive representatives." 5 U.S.C. § 7119(b), (c)(1). It enjoys broad power to achieve the conciliatory goals of the statute and its decisions are binding on the parties unless they agree otherwise. 5 U.S.C. § 7119(c)(5); 5 C.F.R. § 2471.11. Failure to comply with a Panel decision by an agency or a labor organization constitutes an unfair labor practice. 5 U.S.C. §§ 7116(a)(6), (8), (b)(6), (8). In an unfair labor practice proceeding before the FLRA the charged party may defend such noncompliance on the ground that the Authority should set aside the allegedly illegal Panel decision. 5 U.S.C. § 7118. A party aggrieved by a final order of the Authority may institute an action in a court of appeals where the agency record subject to review will contain both the Panel proceedings and the unfair labor practice proceedings. 5 U.S.C. § 7123.
The legislative history of the relevant provisions expressly indicates that direct review of a Panel decision is unavailable:
Final action of the Panel under this section is not subject to appeal, and failure to comply with any final action ordered by the Panel constitutes an unfair labor practice by an agency under section 7116(a)(6) and (8) or a labor organization under section 7116(b)(6) and (8).
H.R. Rep. No. 1403, 95th Cong., 2d Sess. 54-55, reprinted in Subcommittee on Postal Personnel and Modernization of the House of Representatives Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 700-01. The existence of specific statutory review procedure forecloses this Court's assumption of general federal question or mandamus jurisdiction.
See, e.g., City of Rochester v. Bond, 603 F.2d 927, 931, 934-35 (D.C. Cir. 1979). Cf. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 301, 88 L. Ed. 61, 64 S. Ct. 95 (1943).
In this instance the circuitous route to court prescribed by the Statute implements the legislative purpose of promoting collective bargaining by requiring quick resolution of negotiation impasses. See 5 U.S.C. § 7101.
"It may well be that the occasional injustice which results from this statutory scheme is too high a price to pay for expediting the vast majority of [collective bargaining agreements]." Physicians Nat. House Staff Ass'n v. Fanning, 206 U.S. App. D.C. 87, 642 F.2d 492, 499 (D.C. Cir. 1980) (en banc), cert. denied, 450 U.S. 917, 67 L. Ed. 2d 342, 101 S. Ct. 1360 (1981)(quoting National Maritime Union v. NLRB, 375 F. Supp. 421, 439 (E.D. Pa.) aff'd without opinion, 506 F.2d 1052 (3d Cir. 1974), cert. denied, 421 U.S. 963, 95 S. Ct. 1950, 44 L. Ed. 2d 449 (1975)). Plaintiff's complaint that this scheme is inefficacious or unfair must be raised with Congress. Characterizing the issue here as whether or not it must exhaust administrative remedies by disobeying the Panel's decision, thereby potentially
triggering an unfair labor practice proceeding, does not advance plaintiff's attempt to obtain review of an agency action outside the specific statutory review procedure. See Bendure v. United States, 213 Ct. Cl. 633, 554 F.2d 427, 433 (Ct. Cl. 1977).
In the alternative, plaintiff argues substantively that, because the Panel allegedly violated the Administrative Procedure Act by failing to articulate the reasons for its decision, and the Statute itself by forcing the Union to accept contract proposals, the Panel's decision is reviewable under the doctrine of Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180 (1958).
Leedom authorized exceptional district court jurisdiction to strike down an order of the National Labor Relations Board made "in excess of its delegated powers and contrary to a specific prohibition in the Act." 358 U.S. at 188.
This exception has been narrowly construed. See, e.g., Boire v. Greyhound, 376 U.S. at 481; United Food and Commercial Workers v. NLRB, 224 U.S. App. D.C. 156, 694 F.2d 276, 278-79 (D.C. Cir. 1982); Baker v. International Alliance of Theatrical Stage Employees, 691 F.2d 1291, 1294 (9th Cir. 1982). It cannot be invoked to review
a decision of the Board [or Panel] made within its jurisdiction. . . . [A] plaintiff must be able to identify a specific provision of the Act which, although it is 'clear and mandatory' . . . has nevertheless been violated by the Board. That the Board may have made an error of fact or law is insufficient; the Board must have acted without statutory authority.
Physicians Nat. House Staff Ass'n v. Fanning, 642 F.2d at 496 (citations and footnote omitted).