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AFGE v. FEDERAL LABOR RELS. AUTH.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


September 24, 1984

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Defendant

The opinion of the court was delivered by: GREENE

MEMORANDUM

 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.

 I

 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:

 

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:

 

(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.

 II

 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 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. *fn7" 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. *fn8"

 III

 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). *fn9"

 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, *fn10" 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. *fn11"

 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. *fn12"

 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. *fn13" 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:

 

(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 the stay.

 5 C.F.R. § 2429.8(c). This regulation has the force of law and is fully binding on the agency. Connecticut Light & Power Co. v. NRC, 218 U.S. App. D.C. 134, 673 F.2d 525, 536 (D.C. Cir. 1982).

 The FLRA maintains that 5 C.F.R. § 2429.8 gives it an option -- either it may decline to act on a stay request (in which case the award is effectively stayed by the request itself), or it may act on the request before resolving the merits of the exceptions to the award. *fn14" Under the FLRA's interpretation, the standard for granting a stay in subsection (c) applies only if it chooses the latter option -- a choice that it argues is within its "unfettered discretion."

 Although an agency's interpretation of its own regulations is entitled to deference, there are limits on when and how far a reviewing court should defer to the agency. Shepherd v. MSPB, 209 U.S. App. D.C. 243, 652 F.2d 1040, 1043 (D.C. Cir. 1981). This is such a case. The Court finds that the FLRA's interpretation and actions to be totally inconsistent with the actual language of the regulation and its obvious meaning. *fn15" The FLRA's reliance on subsection (b) *fn16" does not alter that conclusion because the provision for a "temporary stay" under that subsection cannot rationally be interpreted to permit such a stay to remain in effect, as a matter of course, until the merits of an appeal are decided.

 Section 2429.8, read in its entirety, requires the FLRA to exercise its discretion and decide whether to issue a stay based upon the particular facts and circumstances of the individual case presented. The Court rejects the FLRA's interpretation which would not only render subsection (c) superfluous, but it would also deny any effect to the term "temporary stay" in subsection (b). *fn17"

 IV

 Plaintiffs suggest that the Court compel the FLRA to issue rulings on requests for stays in all arbitration cases now pending before it no later than 35 days from the date of this Court's order. Plaintiffs would also have the Court require the FLRA to submit to the Court a list of all pending cases, their disposition, and the date of rulings on the stay request. Finally, plaintiffs request the Court to order the FLRA to develop within 35 days a proposed procedure for the expeditious ruling upon stay requests in future arbitration cases. *fn18"

 A reviewing court has considerable discretion in formulating an equitable remedy to vindicate the rights of plaintiffs. However, it should be mindful not to deprive the agency of the flexibility it needs in individual cases. The Court notes that several courts faced with claims of unreasonable delay by administrative agencies have required agency action within specified time limits. See Potomac Electric Power Co. v. ICC, 226 U.S. App. D.C. 289, 702 F.2d 1026, 1035 (D.C. Cir. 1983); Caswell v. Califano, 583 F.2d 9, 17 (1st Cir. 1978); Barnett v. Califano, 580 F.2d 28 (2d Cir. 1978); White v. Mathews, 559 F.2d 852 (2d Cir. 1977); Nader v. FCC, 172 U.S. App. D.C. 1, 520 F.2d 182 (D.C. Cir. 1975).

 The case at bar, however, differs in at least one significant respect from the cases cited above -- here the agency action (or rather inaction) challenged is not that the FLRA has not decided the requests for stays within a reasonable time, but that it has refused to decide them altogether. The Court assumes that, once the agency understands its obligation to decide requests for stays rather than to ignore them, it will act in a lawful manner. The Court is therefore not prepared, at this time, to impose a specific deadline for the disposition of the pending stay requests. Instead, the Court will order (1) that the FLRA promptly decide all such pending requests in accordance with the standard set forth in 5 C.F.R. § 2429.8(c), and (2) that within 35 days hereof it develop and publish a procedure for the prompt disposition of all future stay requests. Should the agency fail to do so, there will be time enough to impose specific deadlines. The Court will retain jurisdiction for a period of six months for that purpose.


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