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American Federation of Government Employees, Afl-Cio, Local 2798, et al v. Carol Waller Pope

September 1, 2011


The opinion of the court was delivered by: Beryl A. Howell United States District Judge


A physician and his labor union brought this lawsuit seeking review of a decision by the General Counsel of the Federal Labor Relations Authority ("FLRA") not to issue an unfair labor practice complaint. The plaintiffs contend that the FLRA General Counsel's decision not to issue the unfair labor practice complaint relied on an incorrect interpretation of a statutory term and that the General Counsel improperly denied as untimely the plaintiffs' motion for reconsideration of the decision. As a result, the plaintiffs claim that the defendants -- the Chairman of the FLRA and the FLRA General Counsel -- violated their procedural and substantive due process rights under the United States Constitution and that they misapplied applicable law, acted beyond their established authority, and engaged in conduct that is arbitrary, capricious, and an abuse of discretion. As detailed below, since decisions by the FLRA General Counsel to issue or not to issue unfair labor practice complaints are not subject to judicial review, the Court dismisses the plaintiffs' non-constitutional claims for lack of subject matter jurisdiction. In addition, the Court grants summary judgment for the defendants on the plaintiffs' constitutional claims.


A.The Parties

Plaintiff Mohammed Hussain is a physician who was previously employed at the Department of Veterans Affairs Medical Center ("VA") in Washington, D.C. Compl. ¶ 6. The other plaintiff in this case, American Federation of Government Employees, AFL-CIO, ("AFGE") Local 2798, is a labor union that was the bargaining representative for Plaintiff Hussain and other VA physicians during the period of Hussain's employment at the VA. Id. ¶¶ 4-5. The plaintiffs are suing the Chairman and the General Counsel of the FLRA in their official capacities. Id. ¶¶ 7-8.

B.Plaintiff Hussain's Employment at the VA Medical Center

Dr. Hussain worked in the Radiology Therapy Service of the VA for 27 years. See May 20, 2008 Letter from Peter A. Sutton, FLRA Regional Director, to Johnnie A. Landon, Attorney ("Regional Director Declination Letter"). In June 2003, the VA modified Dr. Hussain's clinical privileges and renewed them for only three months as opposed to the previously customary two-year period. Id. On July 28, 2003, Dr. Hussain received a report from his supervisor which gave him an overall rating of "low satisfactory." Id. That day, Dr. Hussain notified the VA that he felt he had little choice but to resign due to deteriorating work conditions and that he viewed his resignation as a constructive discharge. Id. Subsequently, Dr. Hussain requested to be placed on indefinite medical leave and submitted a request for a disability retirement.*fn1 Id.

On August 5, 2003, the VA informed Dr. Hussain that he could take sick leave until August 11, but that additional leave would require medical documentation and that if such documentation were not provided, he would be placed on absent without leave ("AWOL") status. Id. The VA subsequently placed Dr. Hussain on AWOL status on August 12, 2003. Compl. ¶ 13.

C.Equal Employment Opportunity Complaint

On September 5, 2003, Dr. Hussain filed a formal Equal Employment Opportunity ("EEO") administrative complaint, alleging that the VA had discriminated against him by placing him on AWOL status, by denying him leave, by delaying the processing of his retirement papers, and by constructively discharging him. Regional Director Declination Letter; Compl. ¶14.Dr. Hussain ultimately brought a Title VII lawsuit in federal court on his discrimination claims, but the suit resulted in a judgment in favor of the VA. See Hussain v. Principi, 344 F. Supp. 2d 86 (D.D.C. 2004), aff'd, 435 F.3d 359 (D.C. Cir. 2006).

D.Grievance Procedure

On September 15, 2003, ten days after Dr. Hussain had filed his EEO complaint, AFGE, pursuant to a negotiated grievance procedure between the VA and its bargaining unit employees, filed a grievance arising out of the treatment of Dr. Hussain. Compl. ¶¶ 10, 13. The grievance challenged the VA's authority to place Dr. Hussain on AWOL status on August 12, 2003 for not providing medical documentation to the VA and also challenged the VA's decision to continue Dr. Hussain's AWOL status after he provided medical documentation on September 15, 2003. Id. ¶ 13. The VA rejected the grievance and continued Dr. Hussain in AWOL status because the VA deemed his September 15, 2003 medical documentation to be inadequate. Id. ¶ 15. AFGE then elevated the grievance to arbitration. Id.

An arbitrator heard the grievance and issued an award and opinion. Id. ¶ 16. According to the plaintiffs, the arbitrator found that the VA's initial decision placing Dr. Hussain on AWOL status and the VA's decision to continue his AWOL status after September 15, 2003 violated the union contract, which provided that Dr. Hussain did not have to provide medical documentation for his illness until returning to work. Id. ¶ 17. The arbitrator also found that the VA constructively discharged Dr. Hussain by placing and keeping him on AWOL status. Id. The arbitrator ordered Dr. Hussain be reinstated with back pay and that the VA pay his attorneys' fees. Id.

The VA refused to implement the arbitrator's award. Id. ¶ 18.

E.Unfair Labor Practice Charge Before the FLRA AFGE then filed an unfair labor practice charge with the FLRA Washington Region to enforce the arbitrator's award. Id. ¶ 19.

The FLRA "is an independent administrative federal agency that was created by Title VII of the Civil Service Reform Act of 1978, also known as the Federal Service Labor-Management Relations Statute and 'FSLMRS.'" Nat'l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 848 (D.C. Cir. 2006) (citing 5 U.S.C. § 7101 et. seq.). The FLRA is "intended to play a role in Federal sector labor-management relations analogous to that of the National Labor Relations Board (NLRB) in the private sector." Turgeon v. Fed. Labor Relations Auth., 677 F.2d 937, 938-39 n.4 (D.C. Cir. 1982). The Federal Service Labor-Management Relations Statute ("FSLMRS") divides the FLRA's powers between the Authority itself and an independent General Counsel. Id.; see also 5 U.S.C. § 7104.

The General Counsel of the FLRA "serves at the pleasure of the President" and has by statute "separate authority" from that of the FLRA. Nat'l Air Traffic Controllers Ass'n v. Fed. Serv. Impasses Panel, 606 F.3d 780, 783 (D.C. Cir. 2010) (quoting Turgeon, 677 F.2d at 938 n.4.). "Her principal duties are to investigate unfair labor practice charges, issue unfair labor practice complaints arising from those charges, and prosecute those complaints before the FLRA." Id. "A union or an employer accusing its counterpart of an unfair labor practice first submits a charge to a Regional Director of the FLRA, 5 C.F.R. § 2423.6(a), who, acting 'on behalf of the General Counsel,' investigates the charge, 5 C.F.R. § 2423.8(a), and decides whether to issue a complaint, 5 C.F.R. § 2423.10(a)." Id. "If the Regional Director dismisses the charge, then the charging party may appeal that decision to the General Counsel, 5 C.F.R. § 2423.11(c), but the General Counsel's ...

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