Sinai Hosp. of Baltimore, Inc. v. Horvitz, AFL-CI

• Citation: 621 F.2d 1267
• Decision Date: 01 May 1980
• Docket Number: No. 78-1863,AFL-CI,D,78-1863
• Parties: 104 L.R.R.M. (BNA) 2171, 88 Lab.Cas. P 12,058 SINAI HOSPITAL OF BALTIMORE, INC., Appellant, v. Wayne L. HORVITZ, Individually and as National Director of the Federal Mediation and Conciliation Service, Appellee, and District 1199E, National Union of Hospital and Health Care Employees, RWDSR,efendants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1267

621 F.2d 1267

104 L.R.R.M. (BNA) 2171, 88 Lab.Cas. P 12,058

SINAI HOSPITAL OF BALTIMORE, INC., Appellant, v. Wayne L. HORVITZ, Individually and as National Director of the Federal Mediation and Conciliation Service, Appellee and District 1199E, National Union of Hospital and Health Care Employees, RWDSR, AFL-CIO, Defendants.

No. 78-1863.

United States Court of Appeals Fourth Circuit.

Argued Dec. 3, 1979.

Decided May 1, 1980.

Leonard E. Cohen, Baltimore, Md. (Monte Fried, Frank, Bernstein, Conaway & Goldman, Baltimore, Md., on brief), for appellant.

M. David Vaughn, Associate Gen. Counsel (Scott A. Kruse, Gen. Counsel, Nancy B. Broff, Asst. Gen. Counsel, Federal Mediation and Conciliation Service, Washington, D. C., on brief), for appellee.

Before WINTER, RUSSELL and HALL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This case is largely a repeat of Sinai Hospital of Baltimore, Inc. v. Scearce (4th Cir. 1977) 561 F.2d 547. Both cases have their origin in the 1974 amendments to the National Labor Relations Act, bringing non-profit hospital employees within the coverage of the Act. ¹ There is identity, both of parties and of relief sought. The validity of an establishment of a Board of Inquiry by the defendant Director of the Federal Mediation and Conciliation Services under § 183(a), 29 U.S.C. is the common issue. There are only two differences in the two cases. The first is of no significance. The earlier case involved the appointment of a Board after notice to the Director of termination of a labor contract between the Hospital and its employees on December 1, 1976, whereas the present case arises out of a notice of termination of such a contract two years later on December 1, 1978. The real point of difference in the two cases is the nature of the Hospital's challenge to the appointment. In the earlier case, the Hospital claimed invalidity because (a) the appointment of the Board was alleged to be untimely and (b) it was made "without formal findings of facts" in support of the Director's action. In deciding that case, this Court held the appointment untimely and thus found it unnecessary to address the second point of attack by the Hospital on the appointment. ² In this case, on the other hand, the timeliness of the appointment is conceded, and the Hospital's claim of invalidity in the Board's appointment is directed at the absence of any specific findings of fact in support of the opinion of the Director justifying the appointment. This is the question we found unnecessary to decide in the earlier case.

The district judge held that, so long as the Director made his appointment within the prescribed time limits for such appointment and accompanied such appointment with an opinion on his part in the language of the statute, the appointment was valid, even though the Director did not set forth any findings of fact on which he based his opinion. He accordingly denied the Hospital any injunctive relief and dismissed the action. From this decision the Hospital has appealed. We affirm. ³

There can be no dispute that the authority to establish a Board of Inquiry under § 183(a) is within the discretion of the Director. In fact, the Hospital recognizes this, for, in its letter to the Director prior to the appointment of the Board in this case, it described the power of appointment as "discretionary" and expressed the hope that the Director would "form the opinion that the establishment of a Board of Inquiry would be both unwarranted and improper under the statute and would not effectuate the purposes of the Act."

When any exercise of a discretionary power, which lacks the elements of a final resolution of the rights of either party and is simply advisory in character as it is in this case, it is generally held that the action is not subject to judicial review. Fieldcrest Mills, Inc. v. OSHA, (4th Cir. 1976) 545 F.2d 1384, 1386; Mezines, Stein and Gruff, 5 Administrative Law, § 48.03(1), pp. 48-7, 48-10 (1978). A recognized exception to this principle is that, whenever the Director's action, even though discretionary and intended to be non-reviewable, is contrary to the enabling statutory authority itself, it is subject to a limited right of judicial review. Leedom v. Kyne, (1958) 358 U.S. 184, 188, 79 S.Ct. 180, 183, 3 L.Ed.2d 210; Arizona Power Authority v. Morton, (9th Cir. 1977) 549 F.2d 1231, 1240, cert. denied, 434 F.2d 835, 98 S.Ct. 124, 54 L.Ed.2d 97; Grace Towers Ten. Ass'n. v. Grace Hous. Dev. Fund Co., (2d Cir. 1976) 538 F.2d 491, 496; cf., Gravitt v. Southwestern Bell Tel. Co., (1977) 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1. That was the situation in our earlier case. Section 183(a) strictly limits the authority of the Director to establish a Board thereunder to the 30 day period after receipt by him of a notice of the termination. However, the appointment in that earlier case was beyond the 30 day period. The appointment of the Board under those circumstances was beyond the Director's statutory authorization and we so declared. Sinai Hospital of Baltimore, Inc. v. Scearce, supra. We do not have that situation here; the appointment was made within the 30 day period. We are concerned here solely with that provision of the statute which fixes the right of the Director to establish a Board if in his opinion "a threatened or actual strike or lockout affecting a health care institution will, if permitted to occur or to continue, substantially interrupt the delivery of health care in the locality concerned."

We do not understand there to be any dispute that this opinion is a necessary predicate for the exercise of the Director's power of appointment. ⁴ The point in dispute between the parties is whether, in certifying such opinion in the language of the statute, the Director must in addition supply detailed specific findings of fact in support of that opinion in order to provide a basis for judicial review of the Director's action. The Hospital asserts that such findings are required. Because of the district court's contrary conclusion the Hospital has appealed.

The contention of the Hospital on this appeal thus in essence poses the question whether the jurisdictional opinion prescribed by the statute is properly subject to judicial review. If it is, then, according to the Hospital, there must be supplementary findings of fact in order to provide a factual basis on which judicial review can be had. If, on the other hand, judicial review is inappropriate, such findings of fact are unnecessary. Since the statute does not in express terms preclude judicial review of the Director's appointment, the issue is whether nonreviewability is to be fairly inferred. Morris v. Gressette, (1977) 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506; Switchmen's Union v. Board, (1943) 320 U.S. 297, 301, 64 S.Ct. 95, 97, 88 L.Ed. 61. In resolving that issue, the Courts are generally guided by a consideration of three factors. These are (1) "the need for judicial supervision to safeguard the interests of the plaintiff;" (2) "the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role;" and (3) "the appropriateness of the issues raised for judicial review." Natural Resources Defense Council, Inc. v. S. E. C., (D.C. Cir. 1979) 606 F.2d 1031, 1044; Davis Associates, Inc. v. Secretary, Dept. of Hous. & U. D., (1st Cir. 1974) 498 F.2d 385, 390; Hahn v. Gottlieb, (1st Cir. 1970) 430 F.2d 1243, 1249; Kletschka v. Driver, (2d Cir. 1969) 411 F.2d 436, 443; Saferstein, Nonreviewability: A Functional Analysis of "Committed to Agency Discretion", 82 Harv.L.Rev. 367, 371 (1968).

Measured by these standards or factors, the opinion of the Director on which he bases his establishment of the board is manifestly not judicially reviewable. In the first place, there is no "need for judicial supervision" of the exercise by the Director of his discretionary power "in order to safeguard the interest of" the Hospital. The board has no substantive adjudicatory powers; its recommendations are purely advisory, without binding authority on either employer or union. The board is in effect no more than a mediating arm of the Director. Absent any prejudice or harm to the Hospital from the board's establishment and operation, and we find none, there can be no need for judicial supervision of the board's appointment. We find no merit in the contrary argument of the Hospital that the failure to participate in the proceedings of the board may be an unfair labor practice and this gives the opinion the necessary finality and possible prejudice in the appointment to support a requirement for judicial review. The fact that the Hospital does not cooperate with the board by participating in its proceedings may be a labor violation but neither...