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September 24, 1984


The opinion of the court was delivered by: GREENE

 Plaintiffs, the American Federation of Government Employees, AFL-CIO (AFGE) and several of its affiliated locals and councils, challenge the failure of the Federal Labor Relations Authority (FLRA) to rule upon requests for stays submitted to it in connection with its review of arbitration awards. Plaintiffs allege that the FLRA's practice violates the Administrative Procedure Act, 5 U.S.C. §§ 555(b) and 706(1); *fn1" the Federal Service Labor-Management Relations Act (FLRA's enabling statute), 5 U.S.C. §§ 7105(a)(2)(H) and (I), 7121, and 7122; and the FLRA's own regulations, 5 C.F.R. § 2429.8. FLRA has filed a motion to dismiss or, in the alternative, for summary judgment, and plaintiffs have filed a cross-motion for summary judgment. *fn2" For the reasons stated below, plaintiffs' motion will be granted and defendant's will be denied.


 There are no material facts in dispute. The Federal Service Labor-Management Relations Act (the Labor Act), 5 U.S.C. §§ 7101-7135, requires federal agencies and unions representing federal employees to bargain over terms and conditions of employment. Section 7121 of the Act directs that "any collective bargaining agreement shall provide procedures for the settlement of grievances." Grievances not satisfactorily settled under the negotiated procedures may be submitted to binding arbitration by either party. § 7121(b)(3)(C); American Fed. of Gov't Employees v. FLRA, 229 U.S. App. D.C. 326, 712 F.2d 640, 641 (D.C. Cir. 1983). Section 7122 establishes a procedure and sets forth the standard by which a party may take exceptions from an arbitration award to the FLRA. The FLRA may modify or set aside an award only on the ground that it is contrary to law, rule, or regulation, or on "other grounds similar to those applied by Federal courts in private sector labor-management relations." If neither party files exceptions to the award within 30 days of its issuance, the award becomes final and binding. § 7122(b).

 A party to an arbitration proceeding may request a stay of the award, pending the FLRA's resolution of exceptions to that award. However, under the regulations, the filing of exceptions does not itself operate as a stay of an award. 5 C.F.R. § 2429.8(a). On the other hand, a timely request for a stay does operate as a "temporary stay," and it remains in effect "until the Authority issues its decision and order on the exceptions, or the Authority or its designee otherwise acts with respect to the request for a stay." § 2429(b). Subsection (c) of this regulation provides the standard for granting a request for a stay as follows:

(1) There is a strong likelihood of success on the merits of the appeal; and
(2) A careful balancing of all the equities, including the public interest, warrants issuance of a stay.

 When the complaint in this action was filed, 253 arbitration cases were pending before the Authority. Of these, 131 were brought by agencies, virtually all of them requesting stays of the arbitrator's award. The remaining 122 pending cases were brought by Unions, 9 of them requesting stays. The FLRA has not acted on any of these stay requests. Indeed, in the past five years, it has never either granted or denied a single stay request3 but has instead adjudicated the merits of the case and rendered a final decision. That process, however, takes an average of 9.5 months. *fn4"

 Plaintiffs object to the FLRA's practice of not ruling on requests for stays on the basis that this practice amounts de facto to the grant of stays without regard to the likelihood of success on the merits or the interests of the parties, including those of the public. This, according to plaintiffs, has two detrimental effects: (1) because of the FLRA practice, many agencies file exceptions and accompanying requests for stays simply to delay compliance with the award; *fn5" and (2) between the time the exceptions are filed and the time of the FLRA renders its final decision, the nonmoving party -- usually the union -- is denied its rights to enforce important, bargained for provisions. *fn6"

 The FLRA does not deny that its failure to rule on such requests constitutes a de facto stay, but it simply argues that its practice regarding stays is within its sole discretion. The discretion is appropriately exercised as it has been because, it is said, by not allocating agency resources for the consideration of stay requests, it can conclude the proceedings and issue a final decision more promptly than would otherwise be possible.


 Before addressing the merits of the parties' arguments, the Court must first resolve the question of its jurisdiction.

 According to the FLRA, the Court lacks subject matter jurisdiction over plaintiffs' claims for two reasons: First, Congress intended to preclude judicial review of the FLRA's actions in cases involving exceptions to arbitration awards; and second, the agency's decisions on stays are ...

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