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American Federation of Government Employees v. Federal Labor Relations Authority

United States District Court, District of Columbia

August 2, 2019

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Plaintiff,
v.
FEDERAL LABOR RELATIONS AUTHORITY, et al., Defendants.

          MEMORANDUM OPINION

          JAMES E. BOASBERG, UNITED STATES DISTRICT JUDGE

         The American Federation of Government Employees and one of its local chapters sought clarity from the Federal Labor Relations Authority about whether certain employees at two federal agencies were properly considered within or without the union's bargaining purview. When the FLRA's initial determination was mostly favorable to AFGE, the federal agencies sought review of that decision within the Authority. Likely concerned with a potentially adverse result, AFGE and the local chapter got cold feet and attempted to withdraw their original petitions. The FLRA first determined that withdrawal was improper; it then reversed some of their gains on the merits. AFGE responded by bringing suit in this Court, alleging multiple violations of the Administrative Procedure Act. Defendants now move to dismiss, maintaining that this Court lacks subject-matter jurisdiction because the agency action at issue is unreviewable and also positing that AFGE has not stated a claim. Agreeing with the former point, the Court will grant the Motion to Dismiss without reaching the latter.

         I. Background

         The FLRA is an independent agency that oversees labor-management relations for the federal government. See 5 U.S.C. §§ 7101-7135. At issue here are four agency decisions concerning so-called “appropriate-unit determinations.” The Federal Service Labor-Management Relations Statute provides that the FLRA “shall determine the appropriateness of any [bargaining] unit.” 5 U.S.C. § 7112(a). That is, it must ensure that employees are appropriately included or excluded from representation by a union. Specifically, it deems a unit appropriate “only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of, the operations of the agency involved.” Id.

         In this case, AFGE and its Local 12 - which the Court will refer to jointly as the “Unions” - sought appropriate-unit determinations from the FLRA. The Unions disagreed with two federal agencies - the Department of Veterans Affairs (V A) and the Department of Labor (DOL) - about whether certain employees were within the bargaining units they represented. They consequently petitioned FLRA regional offices to clarify the employees' status. See ECF No. 1 (AFGE VA Complaint), ¶ 17; ECF No. 1, No. 19-665 (Local 12 DOL Complaint), ¶ 16.

         The regional directors issued their decisions in March and July of 2017, largely siding with the Unions in finding that the disputed employees should - for the most part - properly be considered as included in the bargaining units. See VA Compl., ¶¶ 21-22; DOL Compl., ¶¶ 20-21. VA and DOL each responded by filing with the FLRA applications for review of those decisions. See VA C ompl., ¶ 23; DOL Compl., ¶ 22. Both applications for review were granted, although the Authority “deferred action on the merits until a later date.” VA Compl., ¶ 26; DOL Compl., ¶ 26. After the applications were granted but before the FLRA issued a merits decision on either, the Unions sought to withdraw entirely their unit-clarification petitions - that is, those petitions that were then effectively pending on appeal. See VA Compl., ¶ 27; DOL Compl., ¶ 28.

         The F L R A did not respond specifically to the withdrawal requests. See V A C ompl., ¶¶ 28, 34; DOL Compl., ¶ 30, 41. Instead, it issued decisions on the merits several months later. It initially found that “nothing in the Authority's Regulations permits the Union to withdraw its petition at this late stage of the proceedings.” U.S. Department of Veterans Affairs, Kansas City VA Medical Center, Kansas City, Missouri, 70 FLRA 465, 466 (2018) (V A I); U.S. Department of Labor, 70 FLRA 452, 453 (2018) (DOL I). Rather, the Authority observed that “once a proceeding has reached a certain stage, [it] has institutional interests in resolving the dispute.” VA I, 70 FLRA at 466; DOL I, 70 FLRA at 453. In addition, it reasoned that the affected agencies, rather than the Unions, had filed the applications for review, and those agencies had not expressed any wish to withdraw their applications. If it were to grant the withdrawal, it would be permitting the “Union[s] to unilaterally terminate proceedings.” DOL I, 70 FLRA at 453; see also VA I, 70 FLRA at 467. On the merits, FLRA next found that the regional directors' decisions were inconsistent with portions of the statute excluding from the Unions' purview certain employees “engaged in personnel work” and certain “confidential employee[s].” VA I, 70 FLRA at 467-69 (citing 5 U.S.C. § 7112(b)(3)); DOL I, 70 FLRA at 454-56 (citing 5 U.S.C. § 7112(b)(2)). It consequently directed the regional directors to clarify the affected bargaining units to exempt those employees. See V A I, 70 FLRA at 469; DOL I, 70 FLRA at 456.

         The F L R A subsequently denied the Unions' motions for reconsideration. See U.S. Department of Veterans Affairs, Kansas City VA Medical Center, Kansas City, Missouri, 70 F L R A 960, 962 (2018) (V A I I); U.S. Department of Labor, 70 FLRA 953, 957 (2018) (D O L II). Those motions argued that the Authority had erred in denying their withdrawal requests and had, inter alia, therefore impermissibly issued advisory opinions. See VA Compl., ¶¶ 36-37; DOL Compl., ¶¶ 43-44. The FLRA ruled that the withdrawal requests did not moot the controversy and that it had thus not issued advisory opinions. It based that finding on the timing of the requests and the observation that the agencies, not the Unions, had sought the appeal. It also determined that there was a reasonable expectation that the disputes would recur, thus defeating mootness. See VA I I, 70 FLRA at 961 & n.20, 962; DOL II, 70 FLRA at 954 & n.23, 955.

         The Unions then filed two suits in this Court, which were consolidated. See Minute Order of May 3, 2019. They allege multiple violations of the APA, including that FLRA issued advisory opinions in contravention of its own regulations, was arbitrary and capricious in failing to enumerate a defined withdrawal process, and impermissibly repealed without notice and comment its regulation forbidding the issuance of advisory opinions. See VA Compl., ¶¶ 40-42, 44-48, 50-52; DOL Compl., ¶¶ 48-50, 52-54, 59-60. The Unions request that this Court “[v]acat[e]” and “[d]eclar[e] . . . void” the four decisions at issue and “[o]rder[] the Authority to grant” their “withdrawal of [their] petition[s].” VA Compl. at 8-9; DOL Compl. at 10.

         Defendants have now moved to dismiss. See ECF No. 11. They contend both that this Court lacks subject-matter jurisdiction and that the Unions have not stated a claim. The Court need consider only the first point.

         II. Legal Standard

         The Government has moved to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction. In considering the Motion, the Court must “treat the complaint's factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.'” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted). The Court need not accept as true, however, “a legal conclusion couched as a factual allegation, ” nor an inference “unsupported by the facts set out in the complaint.” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (citations omitted).

         Under Rule 12(b)(1), a plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court also has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, “‘the plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)).

         III. ...


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