Devine v. Goodstein, 81-1230
| Decision Date | 01 October 1981 |
| Docket Number | No. 81-1230,81-1230 |
| Citation | 669 F.2d 736 |
| Parties | 109 L.R.R.M. (BNA) 2385, 215 U.S.App.D.C. 350 Donald J. DEVINE, Director, Office of Personnel Management, Petitioner, v. Barnett M. GOODSTEIN, Arbitrator, et al. . Filed |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Motion to Direct Filing of the Record.
Before WILKEY, WALD and MIKVA, Circuit Judges.
On consideration of petitioner's Motion to Direct Filing of the Record and respondent Goodstein's Opposition thereto, it is
ORDERED by the Court that the motion is granted. Arbitrator Barnett M. Goodstein shall, within ten (10) days of the date of this order, file with the Clerk of this Court the record of proceedings in the Matter of Arbitration Between I.N.S. and American Fed. Govt. Employees.
It is FURTHER ORDERED by the Court that the Director of the Office of Personnel Management shall, upon receipt of an accounting from the arbitrator, reimburse the arbitrator for reasonable expenses incurred in production of the record.
Opinion Per Curiam.
The Director of the Office of Personnel Management has petitioned this court for review of an arbitrator's decision pursuant to the Civil Service Reform Act of 1978. See 5 U.S.C. §§ 7121(f), 7703(d). The binding arbitration is the end product of a negotiated grievance procedure as provided for in the Act. See 5 U.S.C. § 7121(b)(3)(C). Because the Director did not intervene in the matter when it was before the arbitrator, he petitioned the arbitrator for reconsideration as required by section 7703(d). After the Arbitrator affirmed his earlier decision, the Director petitioned this court for review and requested that the arbitrator file the record of the proceedings before him. The arbitrator has refused to file the record, arguing that this is the responsibility of the agency which was party to the arbitration.
Rule 17(a) of the Federal Rules of Appellate Procedure, dealing with administrative appeals, states: "The agency shall file the record with the clerk of the court of appeals within 40 days after service upon it of the petition for review unless a different time is provided by the statute authorizing review." Fed.R.App.P. 17(a).
Rule 15 indicates the usage of "agency" throughout the rules dealing with administrative review:
Review of an order of an administrative agency, board, commission or officer (hereinafter, the term "agency" shall include agency, board, commission or officer) shall be obtained by filing with the clerk of a court of appeals which is authorized to review such order, within the time prescribed by law ....
Fed.R.App.P. 15(a). It is clear from this excerpt that it is the decision-making characteristic that gives rise to the term "agency." That the "agency" is also a party is not important.
The provision of the Civil Service Reform Act calling for parallel treatment of an arbitrator's award and the decision of the Merit Systems Protection Board (MSPB) leads to the same conclusion. See 5 U.S.C. § 7121(f). See also S.Rep.No. 95-969, 95th Cong., 2d Sess. 111 (1978), U.S.Code Cong. & Admin.News 1978, p. 2723, 2833. 1 The petitioner states, and the arbitrator does not dispute, that the MSPB normally files the record in the case of judicial review of its decisions. This parallel treatment would require that the arbitrator, and not the agency party to the arbitration, should file the record.
Most importantly, the practicalities of the situation reinforce this conclusion. The arbitrator has possession of the record and best knows what is in it. His delivery of the record to the court acts as certification of its genuineness. Further, rule 17(b) allows the agency to provide "certified copies" of original papers or a list of all documents and exhibits. The arbitrator is in the best position to perform all of these functions.
This need not be unduly burdensome to the arbitrator. Rule 17(b) allows the agency to file a certified list describing the documents which comprise the record:
Instead of filing the record or designated parts thereof, the agency may file a certified list of all documents, transcripts of testimony, exhibits and other material comprising the record, or a list of such parts thereof as the parties may designate, adequately describing each, and the filing of...
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