Lipscomb v. Federal Labor Relations Authority, Civ.A. 401CV158LN.

• Decision Date: 19 December 2001
• Docket Number: No. Civ.A. 401CV158LN.,Civ.A. 401CV158LN.
• Citation: 200 F.Supp.2d 650
• Parties: Major General LIPSCOMB III, in his Official Capacities as the Adjutant General of the State of Mississippi, of the Mississippi Militia, of the Mississippi National Guard, and as the Executive Head of the Mississippi Military Department, and the Mississippi Militia, the Mississippi National Guard, and the Mississippi Military Department, Plaintiffs, v. FEDERAL LABOR RELATIONS AUTHORITY, Nancy Speight, in her Official Capacity as Regional Director of the Federal Labor Relations Authority, Atlanta Region, and Linda J. Norwood, in her Former Official Capacity as Acting Regional Director of the Federal Labor Relations Authority, Atlanta Region, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

Page 650

200 F.Supp.2d 650

Major General LIPSCOMB III, in his Official Capacities as the Adjutant General of the State of Mississippi, of the Mississippi Militia, of the Mississippi National Guard, and as the Executive Head of the Mississippi Military Department, and the Mississippi Militia, the Mississippi National Guard, and the Mississippi Military Department, Plaintiffs, v. FEDERAL LABOR RELATIONS AUTHORITY, Nancy Speight, in her Official Capacity as Regional Director of the Federal Labor Relations Authority, Atlanta Region, and Linda J. Norwood, in her Former Official Capacity as Acting Regional Director of the Federal Labor Relations Authority, Atlanta Region, Defendants.

No. Civ.A. 401CV158LN.

United States District Court, S.D. Mississippi, Jackson Division.

December 19, 2001.

Jeffrey A. Walker, Emerson Barney Robinson, III, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, MS, T. Hunt Cole, Jr., Office of the Attorney General, Jackson, MS, for plaintiff or petitioner.

David M. Smith, William R. Tobey, William E. Persina, Federal Labor Relations Authority, Washington, DC, for defendant or respondent.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

There are pending at this time a motion by the plaintiffs for preliminary injunction and for summary judgment, and a motion by defendants to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Each has responded to the others' motion of the other, and having now considered the parties' memoranda of authorities with accompanying evidentiary submissions, and having considered the parties' arguments at the hearing on the motions, the court concludes that it does have jurisdiction over plaintiffs' claims, but that plaintiffs' complaint is due to be dismissed since, in the court's opinion, plaintiffs' claims for relief are without merit as a matter of law.

This action was filed by Major General James H. Lipscomb, III, Adjutant General of the State of Mississippi, in his official capacities As head of the Mississippi Militia and the Mississippi National Guard, and as Executive Head of the Mississippi Military Department, and by the Mississippi Militia, the Mississippi National Guard and the Mississippi Military Department against the Federal Labor Relations Authority (Authority), and the current and former regional directors of the Authority, Nancy Speight and Linda Norwood, respectively (to all of whom the court will refer collectively as the Authority), challenging as unconstitutional and on other grounds the Authority's order directing that an election be held to determine whether "[a]ll wage grade and general schedule employees employed by the Mississippi Army National Guard statewide" wish to be represented for purposes of collective bargaining by the Association of Civilian Technicians as their exclusive representative.

The Authority is a federal agency charged with the responsibility of administering the Federal Service Labor Relations Act (FSLRA), 5 U.S.C. § 7101 et seq., the exclusive statutory scheme governing labor relations between federal agencies (other than those expressly excepted from the FSLRA) and their employees. In enacting the FSLRA, Congress found that "labor organizations and collective bargaining in the [federal] civil service are in the public interest," 5 U.S.C. § 7101(a),¹ and thus, as in private industry, the Act recognizes and protects the rights of federal employees "to form, join, or assist any labor organization, or to refrain from any such activity," id. § 7102, and causes certain actions by "executive agencies" (or labor organizations) to be deemed unfair labor practices, id. § 7116, against which the Authority may take appropriate administrative or judicial action, § 7123(b). See American Federation of Gov't Employees, Local 3936, AFL—CIO v. Federal Labor Relations Auth., 239 F.3d 66, 70 (1st Cir.2001). As set forth in § 7105 of the Act, the Authority is charged with providing leadership in establishing policies and guidance relating to federal service labor-management relations and carrying out the purpose of the Act. Generally speaking, its duty is to ensure compliance with the statutory rights and obligations of federal employees, labor organizations and federal agencies. Among other things, the Authority is specifically charged with the responsibility of "(A) determin[ing] the appropriateness of units for labor organization representation under section 7112 of this title;² (B) supervis[ing] or conduct[ing] elections to determine whether a labor organization has been selected as an exclusive representative by a majority of the employees in an appropriate unit and otherwise administer[ing] the provisions of section 7111 of this title relating to the according of exclusive recognition to labor organizations;³ ... and (I) tak[ing] such other actions as are necessary and appropriate to effectively administer the provisions of this chapter."

In April 2000, the Association of Civilian Technicians, a private union, filed a petition with the Authority seeking an election to determine if it should be the exclusive representative of "all wage grade and general schedule [technician] employees employed by the Mississippi Army National Guard statewide." Pursuant to 5 C.F.R. § 2422.17, the Mississippi National Guard (MSNG) made a request to the Authority for a hearing on the appropriateness of the proposed bargaining unit and "associated issues." The request was granted, and an evidentiary hearing was held in December 2000, following which defendant Norwood, the Authority's then-acting regional director, issued her decision and order on February 28, 2001, rejecting the MSNG's opposition and granting the union's petition for an election. MSNG sought review by the Authority pursuant to 5 C.F.R. § 2422.31, asserting constitutional and statutory challenges to the actions of the Authority and Norwood; Norwood's decision was upheld by a decision of the Authority, Washington, D.C. issued June 29, 2001. Thereafter, and upon being informed by an Authority official that the regional director intended to order a union election if the parties did not first agree to an election voluntarily, plaintiffs filed this lawsuit seeking declaratory and injunctive relief. Specifically, plaintiffs seek a declaratory judgment that (1) the Authority lacks subject matter jurisdiction over the underlying administrative proceeding because the Mississippi Army National Guard is not a federal agency within the meaning of the FSLRA; (2) the Authority's order of an election unconstitutionally compels a state agency to perform a federal function in violation of the Tenth Amendment and Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), and in violation of the plaintiffs' Eleventh Amendment immunity; and (3) the employees here involved cannot be represented by a union because they are military personnel in a military organization and union representation would run afoul of the Feres doctrine. By their motion for preliminary injunction, plaintiffs seek to enjoin the Authority from carrying out its election.⁴

DEFENDANTS' MOTION TO DISMISS

In response to plaintiffs' complaint, the Authority has moved to dismiss, taking the position that this court is without subject matter jurisdiction because Congress, by providing in the FSLRA an exclusive appeals process for those seeking review of an "appropriate unit determination" by the Authority, has foreclosed all other avenues of review of such determinations. It further submits that the case is not yet ripe for judicial review since there has as yet been no representation election and since the results of any such election may favor plaintiffs, with the result that they have to date suffered no cognizable harm and may never suffer harm. Defendant contends further that even if the court has jurisdiction, it still must dismiss plaintiffs' complaint pursuant to Rule 12(b)(6) for failure to state a claim on which relief may be granted. As a matter of procedure, since defendant's motion calls into question the court's jurisdiction, it must be addressed first.

The Authority takes the position that in accordance with 5 U.S.C. § 7123, plaintiffs are expressly foreclosed from pursuing any direct challenge in this court to its decision pursuant to 5 U.S.C. § 7112 that the Mississippi Army National Guard's technicians constitute an "appropriate unit."⁵ Section 7123 provides that

(a) Any person aggrieved by any final order of the Authority other than an order under—

...

(2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, 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.

Defendant maintains that the plain language of this statute bars direct judicial review of Authority decisions involving appropriate unit determinations, such as it claims is the subject of this case, and that it operates to render inapplicable general jurisdictional grants which might otherwise provide original jurisdiction in the federal district courts.

As is clear from the plain terms of the statute, Authority "appropriate unit determinations" are normally reviewable only where the dispute concerning the correctness of the Authority's determination "eventuates in a finding by the Board that an unfair labor practice has been committed as, for example, where an employer refuses to bargain with a certified representative on the ground that the election was held in an inappropriate bargaining unit." Boire v. Greyhound Corp., 376 U.S. 473, 477, 84 S.Ct. 894, 896-97, 11 L.Ed.2d 849 (1964). Although this is the normal procedure for review, the courts have recognized "[t]hree...