Jared R. Clark v. Federal Labor Relations Authority

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2014 Decided April 7, 2015
No. 13-1261
J ARED R. C LARK,
P ETITIONER
v.
FEDERAL LABOR R ELATIONS AUTHORITY,
R ESPONDENT
On Petition for Review of a Final Order
of the Federal Labor Relations Authority
D. Zachary Hudson, appointed by the court, argued the
cause as amicus curiae for petitioner. With him on the briefs
was H. Christopher Bartolomucci.
Fred B. Jacob, Solicitor, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief was Zachary R. Henige, Deputy Solicitor.
Before: R OGERS , GRIFFITH , and W ILKINS , Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: This case challenges a
decision by the General Counsel of the Federal Labor
Relations Authority to settle an unfair labor charge

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unilaterally after the issuance of a complaint, but before a
hearing. Because our precedent holds that such a decision is
not a “final order of the Authority” subject to review in this
court under 5 U.S.C. § 7123(a), we dismiss the petition for
lack of subject-matter jurisdiction.
I
The American Federation of Government Employees,
Local 1945 (the Union) is the exclusive representative for all
employees in the collective-bargaining unit at the Anniston
Army Depot in Alabama.1 Petitioner Jared Clark is a
bargaining-unit employee, but not a dues-paying union
member. In November 2008, the Union learned that the Depot
was assigning some employees to duties beyond their pay
grade without providing additional compensation. The Union
filed a grievance on behalf of all bargaining-unit employees
seeking that compensation.
In April 2010, the Depot and the Union entered a
settlement agreement that provided backpay to the employees
who performed the higher-graded duties. According to the
settlement, the Union and the Depot would together determine
the appropriate settlement amount for the employees from a
list of those who might have valid claims supplied by the
Union. It fell to the Union to notify Depot employees of the
settlement and to gather from them the information needed to
process claims. Though Clark had completed work above his
pay grade, the Union failed to contact him. When Clark
1 These facts are drawn from the final investigative report
prepared by the General Counsel of the FLRA, the allegations in
Clark’s charge and the General Counsel’s complaint, and various
settlement documents.

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visited the Union office to inquire about the settlement, a
representative asked whether he was a Union member.
Learning that he was not, the representative told Clark he
needed to join that very day. Clark refused to join. Despite
this exchange, the Union representative told Clark what he
needed to do to submit a claim for inclusion in the settlement.
Clark complied, providing the Union log books reporting the
times he worked and affidavits from co-workers stating that
they had seen Clark performing work above his pay grade.
The Depot and the Union eventually agreed to
distribute $303,825 among 218 employees the Union had
included on the list. The Union left Clark off the list and put
only one person on the list who was not a member of the
Union. Depending on the nature of their claims, employees on
the list would receive between $300 and $1,970. Upon
realizing that the proceeds of the settlement went almost
entirely to Union members, Clark filed an unfair labor
practice charge with the Federal Labor Relations Authority
(the Authority). Following an investigation that identified
Clark and fifty-five other nonunion employees whom the
Union cut out of the settlement, the Authority’s Regional
Director issued a complaint on behalf of the General Counsel2
alleging that the Union had violated 5 U.S.C. §§ 7114(a)(1)
and 7116(b)(8) by giving preferential treatment to union
members in settling the claims.
Before a hearing on the complaint took place, the
Union and the Regional Director agreed to settle. The Union
2 Under the Authority’s regulations, the Regional Director may
act on behalf of the General Counsel to “[a]pprove a request to
withdraw a charge”; “[d]ismiss a charge”; “[a]pprove a written
settlement agreement”; “[i]ssue a complaint”; or “[w]ithdraw a
complaint.” 5 C.F.R. § 2423.10(a).

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would pay $1,970 to Clark, but only $200 to each of the fifty-
five other nonunion employees. The Union would also inform
the affected employees of the terms of the settlement by
issuing notices describing the charges and their resolution
along with the checks. Clark objected to the settlement. In his
view, the agreement not only failed to adequately compensate
him and the other nonunion employees, but it would not deter
the Union from engaging in such unlawful discrimination in
the future. The Regional Director considered Clark’s
objections but approved the settlement anyway. Clark
appealed the Regional Director’s determination to the
Authority’s General Counsel, who affirmed the decision.
Clark filed this petition for review, arguing that the General
Counsel lacked authority to settle the complaint unilaterally.
II
We may not take up the merits of Clark’s petition
before we consider the Authority’s argument that we lack
jurisdiction to review the General Counsel’s unilateral
settlement of an unfair labor practice charge.
The Federal Service Labor-Management Relations
Statute (FSLMRS) provides that an aggrieved person may
obtain judicial review only of “any final order of the
Authority,” subject to exceptions not relevant here. 5 U.S.C.
§ 7123(a). In Turgeon v. FLRA, we held that we had no
jurisdiction to review the General Counsel’s decision
declining to issue a complaint. 677 F.2d 937 (D.C. Cir. 1982).
We reached this result by looking to the reasoning of the
Supreme Court interpreting the National Labor Relations Act,
which, like the FSLMRS, limits our jurisdiction to challenges
to a “final order of the Board.” Compare 29 U.S.C. § 160(f),
with 5 U.S.C. § 7123(a). Construing the similar language of

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the NLRA, the Supreme Court held that a decision of the
NLRB’s General Counsel declining to issue an unfair labor
practice complaint is not a “final order of the Board,” and thus
the courts had no jurisdiction to consider its lawfulness. See
Turgeon, 677 F.2d at 940 (citing Lincourt v. NLRB, 170 F.2d
306, 307 (1st Cir. 1948), and NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 138-39 (1975)).
In Turgeon, we thought it proper to consider the
NLRA because the legislative history of the FSLMRS “makes
clear [that] the structure, role, and functions of the Authority
and its General Counsel were closely patterned after the
structure, role, and functions of the NLRB and its General
Counsel under the National Labor Relations Act.” Turgeon,
677 F.2d at 939. We found evidence of an intent to model the
position of the General Counsel of the Authority after that of
the General Counsel of the NLRB in statements in both the
House and Senate Reports. The House Report noted that the
“Committee intend[ed] that the General Counsel [of the
Authority] be analogous in role and function to the General
Counsel of the National Labor Relations Board.” H.R. R EP .
NO. 95-1403, at 41-42 (1978). The Senate Report provided
that “[i]t is intended that unfair labor practice complaints will
be handled by the General Counsel of the Authority in a
manner essentially identical to National Labor Relations
Board practices in the private sector.” S. R EP . NO . 95-969, at
106 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2824. We
also relied upon our overview of the Authority’s power in
Department of Defense v. FLRA, where we explained that the
Authority’s “role is analogous to that of the National Labor
Relations Board.” 659 F.2d 1140, 1144 (D.C. Cir. 1981).
Based on these statements in the legislative history and the
NLRA precedent interpreting the analogous provision, we
held that “the General Counsel of the Authority must be

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accorded the same discretion with respect to issuance of
unfair labor practice complaints as the General Counsel of the
NLRB,” and dismissed the petition for lack of jurisdiction.
Turgeon, 677 F.2d at 940.
Fortunately, the Supreme Court has decided the very
issue before us in the NLRA context. In NLRB v. United Food
& Commercial Workers Union, Local 23, AFL-CIO (UFCW),
the Supreme Court unanimously held that a decision by the
NLRB’s General Counsel to settle a complaint unilaterally
before a hearing is not subject to judicial review under the
NLRA. 484 U.S. 112 (1987). The Court noted that the NLRA
distinguished between the adjudicatory role of the NLRB,
which is reviewable, and the prosecutorial function of the
General Counsel, which is not. The decision whether to file a
complaint is clearly prosecutorial, whereas once a hearing
begins on an unfair labor practice complaint, the process
becomes adjudicative. Id. at 125. “Between these extremes”
however, the Court found that pre-hearing settlements “might
fairly be said to fall on either side of the division.” Id. In light
of this ambiguity, the Court deferred to the agency’s
regulation that placed the power to strike a unilateral
settlement of a complaint prior to a hearing in the
prosecutorial discretion of the Regional Director with review
by the General Counsel, but not the NLRB. See id. at 125-26;
29 C.F.R. § 101.9. The Court remarked that it “fail[ed] to see
why the General Counsel should have the concededly
unreviewable discretion to file a complaint, but not the same
discretion to withdraw the complaint before hearing if further
investigation discloses that the case is too weak to prosecute.”
UFCW, 484 U.S. at 126. The Court thus determined that
“[t]he General Counsel’s unreviewable discretion to file and
withdraw a complaint . . . logically supports a reading that he
or she must also have final authority to dismiss a complaint in

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favor of an informal settlement, at least before a hearing
begins.” Id.
Together, Turgeon and UFCW make clear that we lack
jurisdiction to review the General Counsel’s settlement in this
case. Turgeon tells us to look to NLRA precedent when
considering the powers of the Authority’s General Counsel.
UFCW tells us that the decision of the NLRB’s General
Counsel to affirm an informal settlement prior to a hearing is
unreviewable. Indeed, this court has cited UFCW approvingly
while reviewing an Authority decision. See Patent Office
Prof’l Ass’n v. FLRA, 128 F.3d 751, 753 (D.C. Cir. 1997) (per
curiam). And just as in UFCW, the Authority has promulgated
a regulation giving the Regional Director authority to settle
complaints before a hearing without the charging party’s
approval. 5 C.F.R. § 2423.25(a)(1). Like the NLRB regime,
the Authority’s regulations give the Regional Director two
ways to withdraw a complaint before a hearing begins:
informal settlements and formal settlements. If the Regional
Director chooses to undertake an informal settlement, he can
withdraw the complaint unilaterally if he concludes that doing
so will further the policies of the FSLMRS. Id. § 2423.25(b).
The charging party can appeal the Regional Director’s action
to the General Counsel, but the agreement is “not subject to
approval by or an order of the Authority.” Id. § 2423.25(a)(1).
Because the Authority is not involved, the agreements are not
subject to court enforcement. On the other hand, if the
Regional Director thinks that court enforcement might be
necessary, he can enter into a formal settlement agreement
that is subject to Authority approval and contains “consent to
the Authority’s application for the entry of a decree by an

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appropriate federal court enforcing the Authority’s order.” Id.
§ 2423.25(a)(2).3
Here, the Regional Director used his power to
informally settle the complaint. Therefore, just as in UFCW,
the settlement was not subject to Authority review. See 5
C.F.R. § 2423.25(a)(1), (b). Furthermore, the logic of the
argument the Court relied on in UFCW applies with equal
force here: Just like the General Counsel of the NLRB, the
General Counsel of the Authority has the unreviewable
discretion to file and withdraw a complaint. See Turgeon, 677
F.2d at 940; 5 C.F.R. § 2423.10(a). With that unreviewable
discretion, the General Counsel has “final authority to dismiss
a complaint in favor of an informal settlement” prior to a
hearing. UFCW, 484 U.S. at 126.
Seeking to avoid the force of the Court’s analysis in
UFCW, Clark argues that we should not defer to the
Authority’s position on the reviewability of the General
Counsel’s power. Clark claims that deferring in this
circumstance would violate the principle that “[i]nterpreting
statutes granting jurisdiction to Article III courts is
exclusively the province of the courts.” Ramey v. Bowsher, 9
F.3d 133, 136 n.7 (D.C. Cir. 1993). But neither the Authority
here nor the NLRB in UFCW attempted to interpret the
provisions of the statutes that allowed judicial review only of
“final orders” of the Authority or the NLRB. Instead, the
agencies merely determined the extent of their own power to
review decisions of their General Counsels. While this
determination has an effect on what is subject to judicial
review, the Court in UFCW deferred to the NLRB’s
3 Our decision today has no bearing on whether such formal
settlements are subject to judicial review.

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interpretation in these precise circumstances under the NLRA.
See UFCW, 484 U.S. at 123-26. Both UFCW and the case
now before us involve an agency interpretation that does not
provide for NLRB or Authority review of the General
Counsel’s settlement decisions, which therefore precludes our
review. We see no way to distinguish this case.
Clark argues in the alternative that the text of the
FSLMRS gives the General Counsel three distinct powers: (1)
“investigat[ing] alleged unfair labor practices”; (2) “fil[ing]
and prosecut[ing] complaints” following such an
investigation; and (3) “exercis[ing] such other powers of the
Authority as the Authority may prescribe.” 5 U.S.C.
§ 7104(f)(2)(A)-(C). Clark claims that one of those “other
powers” the Authority has delegated to the General Counsel is
the ability to settle disputes. Because this power springs from
the Authority, it still qualifies as a “final order of the
Authority” subject to our review. In support of his argument,
Clark states that the Authority—and not the General
Counsel—issued the regulations giving the Regional Director
the power to settle complaints with review from the General
Counsel. This is factually incorrect. The Authority and the
General Counsel jointly promulgated the controlling
regulations initially, see 45 Fed. Reg. 3482, 3483-84 (Jan. 17,
1980), and have continued to revise them together, see, e.g.,
77 Fed. Reg. 33,751, 33,752 (June 25, 2012). The joint
regulation conducted by both the prosecutorial and
adjudicative members of the agency is consistent with the
Court’s holding in UFCW, deferring to the agency’s power to
determine where to draw the line between prosecution and
adjudication. See UFCW, 484 U.S. at 125-26.
Clark also claims support for his argument based on a
1986 Authority opinion, stating that the General Counsel’s

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power to settle complaints comes from the Authority. In 1986,
the Department of Justice requested guidance from the
Authority on three questions, including the issue before us—
whether the General Counsel can unilaterally settle an unfair
labor practice complaint. The Authority declined to issue a
general policy statement answering all three questions, but did
opine that among the “other powers” given to the General
Counsel is the “full and final authority and responsibility, on
behalf of the Authority . . . to enter into and approve the
informal settlement of charges.” Decision on Request for
General Statement of Policy or Guidance, 23 F.L.R.A. 342,
344 (Sept. 10, 1986) (internal quotation marks omitted).
Because this power comes from and is exercised on behalf of
the Authority, Clark argues that the General Counsel’s
decision in this case is a final order of the Authority. But the
Authority’s opinion on this issue does not have the force of
law. Under Skidmore, the deference it is owed “depend[s] on
the thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.” Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944).
We find that the Authority’s cursory decision lacks any
power to persuade. As noted, the Authority expressly
indicated that the document was not intended to serve as
general guidance. See Decision on Request for General
Statement of Policy or Guidance, 23 F.L.R.A. at 342 (“The
Authority . . . has determined that it does not satisfy the
standards governing the issuance of general statements of
policy or guidance.”); id. at 346 (“[R]esolution of the
questions presented would not have general applicability
under the Statute.”). Moreover, the Authority provided no
support for its statement that the General Counsel’s power to

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engage in settlements stemmed from his or her authority to
“exercise such other powers” prescribed by the Authority, and
not from the inherent authority to “file and prosecute
complaints.” To the extent that we can surmise the
Authority’s reasoning, we assume that the Authority was
relying on then-applicable precedent establishing that pre-
hearing settlements of the General Counsel of the NLRB and
the Authority were adjudicatory rather than prosecutorial. See
Int’l Ladies’ Garment Workers Union, Local 415-475, AFL-
CIO v. NLRB, 501 F.2d 823 (D.C. Cir. 1974); Am. Fed’n of
Gov’t Emps., AFL-CIO v. FLRA, 785 F.2d 333 (D.C. Cir.
1986).4 When the opinion was written, our cases effectively
precluded the Authority from placing the power to settle
disputes in the prosecutorial discretion of the General
Counsel. Since that time, however, UFCW has abrogated
those precedents by holding that NLRB informal settlements
are not reviewable. We therefore discount the relevance of the
Authority opinion because of this significant shift in the law
and hold that the language in the outdated opinion cannot
overcome the holdings of Turgeon and UFCW.
Clark also argues that the power given to the NLRB’s
General Counsel in the NLRA is more expansive than that of
the Authority under the language of the FSLMRS. For
4 When we first decided whether we had jurisdiction over the
General Counsel’s unilateral settlement of a complaint in the NLRB
context, Chevron had not yet been decided. See Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). We
therefore did not defer to the agency’s regulation declining to
provide for NLRB review. After Chevron, we decided the same
issue in the Authority context, but looked only to our decision
under the NLRA as a guide, based on the “substantially identical
appeal provision[s].” Am. Fed’n of Gov’t Emps., 785 F.2d at 335
n.3.

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example, the NLRB’s General Counsel has “final authority,
on behalf of the Board” with respect to broad categories of
power, whereas the FSLMRS expressly limits the powers of
the Authority’s General Counsel to three narrow categories
and nowhere states that he can act with final authority on his
own. Because the statutory language differs, Clark argues that
the two entities should be treated differently. This argument,
however, runs counter to both our decision in Turgeon and the
legislative history of the FSLMRS. See Turgeon, 677 F.2d at
940. We are bound by our own precedent and its recognition
of the intent of Congress to model the Authority after the
NLRB.
Clark has given us no reason to depart from our
practice of treating the General Counsel of the NLRB and the
General Counsel of the Authority as “essentially identical.”
See S. R EP . NO. 95-969, at 106. In keeping with our NLRB
precedent, we therefore hold that we lack jurisdiction to
review a decision by the Authority’s General Counsel
affirming a settlement agreement before a hearing takes place.
III
The petition for review is dismissed for lack of
subject-matter jurisdiction.

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