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 interlocutory and therefore not reviewable. Neither contention has merit.
The issue here is not one of judicial review of the merits of arbitral awards or of the FLRA's decisions thereon but the broader question whether the FLRA's policy on stay requests generally adheres to the requirements of the Administrative Procedure Act, the agency's enabling statute, and its own regulations. There is no support for FLRA's argument that Congress intended to preclude federal courts from reviewing claimed violations of these statutes and regulations. The case law, statutory language, and the legislative history relied upon by the FLRA are not to the contrary.
In light of the heavy presumption in favor of judicial review of agency action and the absence of any congressional intent to preclude judicial review in a case such as this, the Court finds that it has subject matter jurisdiction to entertain plaintiffs' claims. See Dunlop v. Bachowski, 421 U.S. 560, 567, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); International Ladies' Garment Union v. Donovan, 232 U.S. App. D.C. 309, 722 F.2d 795, 807 (D.C. Cir. 1983); and Local 1219, AFGE v. Donovan, 221 U.S. App. D.C. 170, 683 F.2d 511, 517-18 (D.C. Cir. 1982).
The Court also rejects FLRA's argument that its practice concerning stay requests is nonreviewable under section 10(c) of the APA, 5 U.S.C. § 704, which provides that "final agency action" is subject to judicial review. If the FLRA did in fact grant or deny stay requests based on the factors listed in 5 C.F.R. § 2429.8(c), its actions would be interlocutory in nature and therefore not reviewable. Here, however, the FLRA has not decided the individual stay requests submitted to it, but instead has adopted and applied, without exception, a practice not to address a party's request for a stay and thereby to allow the "temporary stay" to remain in effect until it decides the merits of appeal. It is this practice that constitutes the "final agency action" which plaintiffs challenge and which the Court may and will review.
5 U.S.C. § 555(b) requires administrative agencies to decide issues presented to them within a reasonable time, and 5 U.S.C. § 706(1) requires reviewing courts to "compel agency action unlawfully withheld or unreasonably delayed." See Nader v. FCC, 172 U.S. App. D.C. 1, 520 F.2d 182, 206 (D.C. Cir. 1975).
The FLRA argues that these provisions of the APA apply only to agency action which facilitates a speedier resolution of a final decision on the merits,
and that if the Court required it to act on stay requests prior to issuing a decision on the merits, this would not speed the final resolution of the case and could prolong the time needed to conclude an arbitration proceeding.
This argument has no support in the statutory language, case law, or common sense. Section 706(1) refers to "agency action unlawfully withheld or unreasonably delayed," not to "final agency action" so withheld or delayed. The agency has cited to no cases in which the reviewing court made the distinction that the FLRA would have this Court make -- that is, that agency action unlawfully withheld may only be compelled if that would finally resolve or expedite the resolution of the administrative proceeding.
It is unlikely, however, that FLRA consideration and action on stay requests will prolong the time needed to conclude an arbitration proceeding. The factors that the FLRA must consider in deciding whether to grant a stay -- particularly likelihood of success on the merits -- are not only relevant to the substantive decision but in some cases are the identical factors as those it will consider when it makes that decision.
In any event, the Court finds that the alleged strain that an order requiring the FLRA to decide all stay requests would have on its "scarce staff resources" are greatly exaggerated, and are entitled to little weight. As the court noted in Caswell v. Califano, supra, "the vindication of almost every legal right has an impact on the allocation of scarce resources." 583 F.2d at 17. It may also be noted that, as many commentators have pointed out, the resources of the courts for dealing with increasing caseloads are not only scarce, they are in some areas greatly overtaxed. Yet it would hardly occur to a court -- whether this Court or the Court of Appeals or indeed the Supreme Court -- to deny all requests for stays or injunctions because of its overall workload.
The Court therefore concludes that the FLRA's practice violates the Administrative Procedure Act. Beyond that, that practice is also violative of the agency's own regulations.
Subsection (c) of the FLRA regulations provides that
A request for a stay of an arbitrator's award will be granted only where it appears, based upon the facts and circumstances presented, that: