Griffith v. Federal Labor Relations Authority

• Decision Date: 25 March 1988
• Docket Number: No. 86-5720,86-5720
• Citation: 842 F.2d 487
• Parties: 127 L.R.R.M. (BNA) 3148, 268 U.S.App.D.C. 491, 56 USLW 2604 Jacqueline A. Tommas GRIFFITH, Appellant, v. FEDERAL LABOR RELATIONS AUTHORITY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 487

842 F.2d 487

127 L.R.R.M. (BNA) 3148, 268 U.S.App.D.C.

491, 56 USLW 2604

Jacqueline A. Tommas GRIFFITH, Appellant, v. FEDERAL LABOR RELATIONS AUTHORITY.

No. 86-5720.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 29, 1987.

Decided March 25, 1988.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-01614).

Elaine Kaplan, with whom Lois G. Williams, Washington, D.C., was on brief for appellant.

William E. Persina, Deputy Sol., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., and Elsa D. Newman, Atty., Federal Labor Relations Authority, Washington, D.C., were on brief for appellee.

Before BUCKLEY and WILLIAMS, Circuit Judges, and OBERDORFER, ^* District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

This case requires us to answer two important questions in the area of federal employment. First, we must decide the scope of Congress's preclusion of judicial review of decisions of the Federal Labor Relations Authority ("FLRA" or "Authority"). Second, because we conclude that Congress did not intend to cut off review of constitutional claims, we must decide whether federal civil service employees have a "property" interest, of the sort protected by the Due Process clause of the Fifth Amendment, in annual within-grade pay increases. We find that they do not.

I. BACKGROUND

In June 1982 the Internal Revenue Service denied a within-grade pay increase to one of its employees, Jacqueline Tommas Griffith, on the grounds that she was not performing at "an acceptable level of competence." See 5 U.S.C. Sec. 5335(a)(3)(B) (1982) (establishing that standard for such increases). Pursuant to 5 C.F.R. Sec. 531.410 (1982), Griffith asked the agency to reconsider its decision. In preparing for this process, Griffith asked that her supervisor allow her to review documents relating to the denial. The supervisor refused to supply them, stating that they were either reports Griffith had prepared or reviews that she had previously received. The arbitrator later held, and the FLRA appeared to concede, that this withholding violated applicable regulations. See 5 C.F.R. Sec. 531.410(a)(2); Joint Appendix ("J.A.") at 9; NTEU v. IRS, 17 FLRA 1058, 1059 (May 13, 1985). On reconsideration, the IRS again denied the increase. In so doing, it relied on several documents not provided to Griffith, again in violation of 5 C.F.R. Sec. 531.410(a)(2).

Griffith next turned to arbitration under the grievance procedure established by the collective bargaining agreement between the National Treasury Employees Union and the IRS. Before the arbitrator, the union argued that the IRS had violated relevant procedural regulations in its reconsideration of the denial of Griffith's pay increase, and that these violations entitled her to a retroactive pay increase with back pay under the Back Pay Act, 5 U.S.C. Sec. 5596 (1982). The arbitrator largely agreed and awarded Griffith the retroactive pay hike.

The IRS filed exceptions with the FLRA pursuant to 5 U.S.C. Sec. 7122 (1982), and prevailed there. The FLRA held that the Back Pay Act authorized retroactive awards of within-grade increases only where there is a finding that "but for" the procedural violation the agency would have viewed the employee's performance as meeting the statutory standard. The Authority held the arbitrator's award to be contrary to the Back Pay Act because he had not made such a finding. Additionally, the Authority held that the "harmful error" standard of 5 U.S.C. Sec. 7701(c) applied only to the appellate procedures of the Merit Systems Protection Board, and not to decisions by arbitrators.

The FLRA responded to these flaws in the arbitrator's decision not by remanding to him but by striking the retroactive within-grade increase. The union then moved for reconsideration of the decision on several grounds, specifically requesting remand to the arbitrator. The Authority denied the motion, asserting that the arguments presented by the union "constitute nothing more than disagreement with the merits of the Authority's decision." J.A. at 32.

Having exhausted her administrative remedies, the plaintiff turned to the district court. In June 1986 she brought a suit for declaratory and injunctive relief against the Authority, alleging that the FLRA had erred as a matter of law in its construction of the Back Pay Act and, in the alternative, that the refusal of the Authority to remand her case to an arbitrator denied her due process. The district court granted the Authority's motion for summary judgment, holding that 5 U.S.C. Sec. 7123(a) (1982) barred judicial review of non-constitutional claims, and that Griffith could not make out a colorable due process claim because she had no legitimate claim of entitlement to a within-grade pay increase. This appeal followed.

We first address the availability of judicial review for nonconstitutional claims. We find unusually clear congressional intent generally to foreclose review. Although we find that the statute leaves the door ajar for review of clear violations of statutory authority under Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), we conclude that none of the errors asserted here qualifies.

Turning to constitutional challenges, we find that under this court's decision in Ralpho v. Bell, 569 F.2d 607 (D.C.Cir.1977), Congress's language was not specific enough to foreclose review. However, finding no interest protected by the Due Process clause, we find no constitutional defect in the Authority's action.

II. REVIEWABILITY OF NON-CONSTITUTIONAL CLAIMS

A. General preclusion of review

The controlling statute is a provision of the Civil Service Reform Act of 1978 ("CSRA"), ¹ 5 U.S.C. Sec. 7123(a) (1982), which provides so far as is relevant:

Any person aggrieved by any final order of the Authority other than an order under --

(1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title ...,

may ... institute an action for judicial review of the Authority's order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia.

5 U.S.C. Sec. 7123(a) (1982) (emphasis added).

Our construction of this language is informed by the general presumption favoring judicial review in the absence of "clear and convincing evidence of a contrary legislative intent," Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1512, 18 L.Ed.2d 681 (1967) (internal quotes omitted). The Supreme Court has cautioned, however, that the clear and convincing evidence standard is neither a "talismanic test," Lindahl v. Office of Personnel Management, 470 U.S. 768, 778, 105 S.Ct. 1620, 1627, 84 L.Ed.2d 674 (1985), nor an irrebuttable presumption, Block v. Community Nutrition Institute, 467 U.S. 340, 349, 104 S.Ct. 2450, 2455, 81 L.Ed.2d 270 (1984).

We are convinced that as a general matter Congress intended to preclude judicial review in the district courts of FLRA decisions concerning arbitral awards. Sec. 7123 provides for circuit court review of FLRA final orders, but then explicitly excludes orders under Sec. 7122 relating to FLRA decisions on arbitral awards. ² From that exclusion Congress makes a discrete exception for orders involving unfair labor practices. No one suggests that the exception is applicable here. Therefore, contrary to the appellant's contention, we need not resort to "negative inference" to find a preclusion of review in Sec. 7123; although the statute authorizes certain types of review and fails to mention others, it specifically excludes review of the type of Authority decisions here at issue.

Thus it is hardly surprising that all circuit courts addressing the matter have concluded that Sec. 7123 bars circuit court review of arbitral decisions not involving unfair labor practices. Overseas Education Ass'n v. FLRA, 824 F.2d 61, 63-69 (D.C.Cir.1987); United States Dept. of Justice v. FLRA, 792 F.2d 25, 28 (2d Cir.1986); Tonetti v. FLRA, 776 F.2d 929, 931 (11th Cir.1985); AFGE, Local 1923 v. FLRA, 675 F.2d 612, 613 (4th Cir.1982).

To be sure, Congress did not explicitly deny to district courts the power to review FLRA decisions. Nevertheless, where Congress has set out a complex scheme authorizing certain types of review but not others, the express preclusion of review of FLRA orders under Sec. 7122 in the one mention of the subject powerfully suggests an intent to preclude review in every court. See United States v. Fausto, --- U.S. ----, 108 S.Ct. 668, 673, 98 L.Ed.2d 830 (1988); Block, 467 U.S. at 346-47, 104 S.Ct. at 2454; Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 305-06, 64 S.Ct. 95, 99, 88 L.Ed. 61 (1943). This is especially true in light of Congress's having explicitly given the district courts review authority in one area, namely temporary relief in unfair labor practice proceedings. See 5 U.S.C. Sec. 7123(d).

Further, Congress specified that the FLRA was to review arbitrators' decisions on grounds "similar to those applied by Federal courts in private sector labor-management relations." 5 U.S.C. Sec. 7122(a). Congress thus appears to have intended that in the area of arbitral awards the Authority would play in federal labor relations the role assigned to district courts in private sector labor law. The conference report on the Civil Service Reform Act confirms this view, stating that, "The Authority will only be authorized to review the award of the arbitrator on very narrow grounds similar to the scope of judicial review of an arbitrator's award in the public sector." H.R.Rep. No. 1717, 95th Cong., 2d Sess. 153 (1978), U.S.Code Cong. & Admin.News 1978, pp. 2723, 2887. To give district courts review of FLRA decisions would...