NATIONAL LABOR RELATIONS BOARD AND ROSEMARY M. COLLYER, GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, PETITIONERS V. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 23, AFL-CIO No. 86-595 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit The Solicitor General, on behalf of the National Labor Relations Board and its General Counsel, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulations involved Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-13a) is reported at 788 F.2d 178. The decisions of the regional director of the National Labor Relations Board and the General Counsel of the National Labor Relations Board rejecting respondent's objections to the withdrawal of the complaints (App., infra, 14a-18a) are unreported. JURISDICTION The judgment of the court of appeals (App., infra, 19a) was entered on May 15, 1986. A petition for rehearing was denied on June 13, 1986 (App., infra, 20a-21a). On August 22, 1986, Justice Brennan extended the time for filing a petition for a writ of certiorari to and including October 11, 1986. The jurisdiction of this Court rests upon 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED The relevant provisions of the National Labor Relations Act, 29 U.S.C. (& Supp. II) 151 et seq., the Administrative Procedure Act, 5 U.S.C. (& Supp. II) 551 et seq., and the Board's Rules and Regulations and Statements of Procedure 29 C.F.R. 101.1 et seq., are set forth at pages 22a-30a of the appendix to this petition. QUESTIONS PRESENTED 1. Whether the withdrawal of an unfair labor practice complaint by the General Counsel of the National Labor Relations Board pursuant to an informal settlement agreement entered into prior to the commencement of a hearing on the complaint constitutes agency action subject to judicial review. 2. Whether, assuming the General Counsel's action is subject to judicial review, the General Counsel must hold an evidentiary hearing whenever the party who filed the unfair labor practice charge objects to the settlement and requests such a hearing. STATEMENT 1. The National Labor Relations Act provides that "(i)t shall be an unfair labor practice" for an employer or labor organization to engage in conduct that infringes in specified ways upon the rights guaranteed employees under the Act (see 29 U.S.C. 158). The Act confers upon the National Labor Relations Board (NLRB) the authority "to prevent any person from engaging in any unfair labor practice* * * affecting commerce" (29 U.S.C. 160(a)). It states that the Board's General Counsel "shall have final authority, on behalf of the Board, in respect of the investigation of (unfair labor practice) charges and issuance of complaints* * *, and in respect of the prosecution of such complaints before the Board" (29 U.S.C. 153(d)), and sets forth in general terms the procedures to be followed by the Board in determining whether an employer or labor organization has engaged in an unfair labor practice (29 U.S.C. 160(b) and (c)). The Board has promulgated detailed regulations containing the procedural rules applicable to the adjudication of an unfair labor practice charge (29 C.F.R. 102.9-102.59). /1/ An unfair labor practice case is initiated by the filing of a charge with the regional director of the NLRB for the region in which the alleged unfair labor practice occurred. The charge must be submitted in writing and under oath, identify the charging party and the person against whom the charge is made, and contain a statement of the facts relating to the alleged unfair labor practice. The regional director then conducts an investigation of the charge, obtaining evidence from both the charging party and the person against whom the charge is filed. If the investigation indicates that the charge lacks merit, the charge may be withdrawn by the charging party or dismissed by the regional director. 29 C.F.R. 101.2, 101.4-101.6, 102.9-102.12. /2/ When the regional director concludes that the charge may have merit, he normally affords an opportunity for the negotiation of an informal settlement agreement. A settlement at this stage of the proceedings does not require the entry of a Board order or court decree. It consists of a commitment by the party named in the charge to take the agreed upon remedial action; the case is closed upon compliance with the terms of the settlement. See 29 C.F.R. 101.7. /3/ The concurrence of the charging party is not a prerequisite for an informal settlement, but the charging party generally is consulted in connection with the proposed settlement and may obtain review of the regional director's approval of the settlement by appealing to the General Counsel. 29 C.F.R. 101.7, 102.19. In the event that a settlement cannot be reached in a case that the regional director has found to be meritorious, the regional director issues a complaint. The charged party must file an answer and is entitled to a hearing before an administrative law judge (ALJ). The ALJ's recommended decision is subject to review by the Board; the Board's determination is in turn subject to judicial review. 29 U.S.C. 160(b)-(f); 29 C.F.R. 101.10-101.15, 102.20-102.50. Although the charged party is entitled to the protections of a hearing and review by the Board prior to a final decision on the merits, the issuance of the complaint is not a bar to settlement. The Board's regulations provide that a complaint "may be withdrawn before the hearing by the regional director on his own motion" (29 C.F.R. 102.18). Thus, prior to the commencement of the hearing before the ALJ, the regional director retains his authority to enter into an informal settlement. Rather than agreeing not to issue a complaint, the regional director agrees to withdraw the complaint in exchange for the charged party's promise to provide the agreed upon relief. A charging party that objects to the terms of such an informaal settlement may present its objections to the regional director and may appeal to the General Counsel in the event the regional director rejects the objections and accepts the settlement. 29 C.F.R. 101.7, 101.9(b)(2) and (c), 102.19. /4/ Alternatively, the charged party and the regional director may enter into a formal settlement. A formal settlement consists of the entry of a remedial order by the Board and, ordinarily, the charged party's consent to entry of an enforcement order by the appropriate court of appeals. A settlement of this type is subject to review and approval by the Board; a charging party that objects to the terms of a formal settlement may present its objections to the Board. 29 C.F.R. 101.9(b)(1), 101.9(c)(2). 2. In August 1984, respondent filed with the Board's Pittsburgh Regional Office various unfair labor practice charges against Charley Brothers, Inc., the owner and operator of a grocery store in Mars, Pennsylvania, and the United Steelworkers of America and Local 14744 of that union. Respondent alleged that Charley Brothers had entered into a collective bargaining agreement with the United Steelworkers at a time when the union did not represent an uncoerced majority of Charley Brothers' employees. It also asserted that Charley Brothers had contributed both financial support and other forms of assistance to the union. App., infra, 2a-3a; A.R. 1-3. /5/ The regional director investigated the charges and issued complaints against both Charley Brothers and the United Steelworkers. The complaint against Charley Brothers alleged that the company had engaged in a variety of unlawful conduct that interfered with respondent's efforts to organize its employees and had assisted the United Steelworkers' organizational efforts, all of which culminated in Charley Brothers' recognition of the United Steelworkers as the exclusive representative of the United Steelworkers as the exclusive representative of its employees. App., infra, 3a-4a; A.R. 8-15. The complaint against the United Steelworkers alleged that the union had unlawfully accepted assistance and recognition from Charley Brothers, bargained for and executed the collective bargaining agreement at a time when it did not enjoy majority support among the employees, and unlawfully accepted dues deducted from employees' wages under that agreement. App., infra, 4a; A.R. 16-22. The regional director sought orders requiring Charley Brothers to withdraw recognition of the United Steelworkers until the union was certified by the NLRB as the representative of the store's employees. App., infra, 4a-5a; A.R. 13, 21. On September 24, 1984, Vic's Markets, Inc., acquired from Charley Brothers the Mars, Pennsylvania, grocery store that was the subject of the complaints. Respondent filed charges against Vic's Markets similar to those it had filed against Charley Brothers, and the regional director issued complaints against Vic's Markets and the United Steelworkers incorporating the charges in the prior complaints. The four complaints were consolidated and a hearing before an administrative law judge was scheduled for December 4, 1984. App., infra, 5a-6a; A.R. 4-7, 38-47, 60-61. The regional director, Charley Brothers, Vic's Markets, and the United Steelworkers reached an informal settlement prior to commencement of the hearing on the complaints. Under the proposed settlement agreements, Charley Brothers and Vic's Markets agreed that they would not assist the United Steelworkers' organizing efforts or interrogate employees concerning their union sympathies; would not recognize the United Steelworkers or give effect to the Steelworkers' contract unless that union was selected by a majority of the employees in an election conducted by the Board, and would not in any other manner restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act, 29 U.S.C. 157. The employers also agreed to reimburse employees for the dues deducted from employee's wages pursuant to the contractual checkoff provisions and to post for sixty days a notice reciting the terms of the settlement. A.R. 74-86. The United Steelworkers agreed that it would not accept any assistance from the employers, give effect to the existing collective bargaining agreement, act as the bargaining representative of the companies' employees or enter into future collective bargaining agreement unless it was selected in an election conducted by the Board, or restrain or coerce employees in any other manner in the exercise of their rights under Section 7 of the Act. The union further agreed to mail to employees a notice that set forth the terms of the settlement agreement. A.R. 74-77. In exchange for these commitments, the regional director agreed to withdraw the unfair labor practice complaints. The agreements expressly provided that the employers and the Steelworkers did not admit that they had violated the Act (id. at 74, 78, 82). On November 28, 1984, the Regional Director mailed the proposed informal settlement agreements to respondent and asked respondent to join in the agreements "inasmuch as it is my opinion that the proposed Settlement Agreements fully remedy any violative conduct alleged in your charges" (A.R. 73). The regional director advised respondent of its right to file objections to the proposed settlements (ibid.). Respondent objected to the proposed settlements on six separate grounds. It asserted that it had not been "afforded full opportunity to dispose of the cases by amicable adjustment"; that the sixty-day period for posting notice was "of insufficient duration to dissipate the effect of the unfair labor practices and * * * permit a free representation election"; that because the settlement agreements did not bar employees from engaging in union activity on behalf of the United Steelworkers during the sixty-day notice period, respondent should have been provided with "countervailing special access remedies" to enable respondent to conduct organizational activities at the store; that the agreements were deficient because they did not provide for formal Board orders and consent decrees; that the charged parties should have been required to admit that they had violated the Act; and that the notices to be posted to provide information to employees were ambiguous (App., infra, 6a-7a). On December 12, 1984, the Regional Director advised respondent that he had approved the settlement agreements and withdrawn the complaints. The regional director modified the notice directed to employees in response to respondent's claim that the notice was ambiguous; he concluded that respondent's objections to the settlements were otherwise "without merit." App., infra, 16a-18a. The regional director found that respondent "had ample opportunity to reach a non-Board adjustment if it so desired" and that formal settlements were not appropriate under the circumstances of the case (id. at 17a). With respect to respondent's claim that the sixty-day period for posting of the notice was too short, the regional director observed that sixty days "is the period of time historically used * * * to correct unlawful conduct like that alleged in the Complaints and is the posting period the Board normally would order upon a finding of a violation" (ibid.). The regional director rejected respondent's assertion that the settlement agreements would give the United Steelworkers an advantage in gaining the right to represent the employees, noting that the employers were barred "from granting assistance or support (to a union) and from denying (respondent) access while granting access to the Steelworkers" (App., infra, 17a). He stated that if these restrictions were violated "additional charges may be filed and a determination will be made after all the facts have been gathered" (ibid.). Finally, the regional director explained that the provisions of the settlement agreements providing that the charged parties did not admit liability were included pursuant to "agency practice * * * in order to promote settlement" (id. at 18a). Respondent appealed the regional director's determination to the General Counsel; the General Counsel denied the appeal (App., infra, 14a-15a). The General Counsel found that the informal settlement agreements adequately remedied the violations charged in the complaint "substantially for the reasons set forth in the Regional Director's letter of December 12, 1984" (id. at 14a). She also rejected respondent's assertion that the regional director was required to hold a hearing regarding respondent's objections to the settlement agreements. Noting that the Board's rules and regulations make no provision for a hearing on objections to a settlement and that "the evidence indicates that (the Board's) procedures were properly followed," the General Counsel concluded that "insufficient basis exists to invalidate the settlement agreement on those grounds" (id. at 14a-15a). 3. Respondent filed a petition for review in the court of appeals seeking to invalidate the settlement agreements. The Board and the General Counsel argued that the petition should be dismissed because the General Counsel's decision to withdraw the complaints and approve the settlements was not a "final order of the Board" within the meaning of Section 10(f) of the Act, 29 U.S.C. 160(f), and therefore was not subject to judicial review. The court of appeals followed its earlier decision in Leeds & Northrup Co. v. NLRB, 357 F.2d 527 (3d Cir. 1966), holding that it had jurisdiction to review the General Counsel's action and that the General Counsel erred by denying respondent's request for an evidentiary hearing concerning its objections to the settlement agreements (App., infra, 1a-13a). The court of appeals in Leeds & Northrup held that the General Counsel's withdrawal of a complaint pursuant to an informal settlement was subject to judicial review under Section 10(f) and the judicial review provisions of the Administrative Procedure Act (357 F.2d at 531). The court observed that the Board's decision to approve a formal settlement agreement is subject to judicial review and stated that "(t)he absence of a formal order of the Board" does not preclude review of the General Counsel's decision to withdraw a complaint (ibid.). Noting that "(a)bsent judicial review, substantial rights of both the Company and its employees * * * are adversely affected," the court stated that "(t)o propose that United States Courts of Appeal are powerless, in a jurisdictional sense, to review quasi-judicial administrative action, either because rules and regulations, or policy, do not provide an adequate avenue of review up to the door of the court, or because of the absence of precise Congressional articulation for such review, poses inadequacy and injustice which Congress would never intend" (id. at 531-532). The court therefore found that "once a complaint issues the statutory scheme contemplates Board action. Anything less, such as informal actions of its agents in dismissing such complaint over the objections of the charging party is arbitrary and capricious" (id. at 533). After finding jurisdiction to review the General Counsel's action, the Leeds & Northrup court held that "once a complaint has issued, the charging party is entitled to an evidentiary hearing upon its objections to the proposed settlement agreement, be it formal or informal" (357 F.2d at 533). The court stated that the issuance of the complaint triggers "an adjudicatory phase of the administrative process * * * necessitating appropriate avenues of review, both administrative and judicial" (id. at 535); it concluded that an evidentiary hearing was an indispensible element of the required administrative review (id. at 535-536). The court of appeals in the present case concluded that it could "discern no principled distinction between Leeds and the instant case" (App., infra, 11a). The court noted that respondent's objections to the settlement agreements raised no "material disputes of fact," but rather "involve(d) merely procedural matters or discretionary determinations concerning the remedy" and that "a Leeds evidentiary hearing might therefore result in mere adherence to an empty formality" (ibid.). The court stated (id. at 12a) that it was required to follow its prior decision with respect to both the jurisdictional issue and the need for an evidentiary hearing but noted the existence of "ostensible precedents to the contrary" including this Court's decision in Cuyahoga Valley Railway Co. v. United Transportation Union, No. 84-1634 (Nov. 4, 1985) (per curiam). The court of appeals vacated the settlement agreements and remanded the case for an evidentiary hearing concerning respondent's objections. REASONS FOR GRANTING THE PETITION This case presents two important questions concerning the procedural requirements applicable to the settlement of an unfair labor practice charge by the General Counsel of the National Labor Relations Board. The conclusion of the court below that the General Counsel's decision to withdraw a complaint, prior to the commencement of a hearing, is subject to judicial review squarely conflicts with the recent decision of another court of appeals and cannot be reconciled with the plain language of the National Labor Relations Act, which endows the General Counsel with "final authority" over the prosecution of such complaints (29 U.S.C. 153(d)). The court below compounded this initial error by concluding that a charging party that is dissatisfied with the settlement of an unfair practice charge must always be afforded an evidentiary hearing regarding its objections to the settlement, even if the objections do not in any way rest upon a dispute over the relevant facts. This determination squarely conflicts with the views of other courts of appeals that have addressed this question, is completely without statutory support, and defies common sense. The court of appeals itself acknowledged that its procedural rule "might result in mere adherence to an empty formality" (App., infra, 11a). These questions touch upon matters of substantial importance in the administration of the National Labor Relations Act. The overwhelming majority of unfair labor practice charges are expeditiously resolved pursuant to settlement agreements; the burdensome procedural requirements imposed by the court of appeals threaten to impede the effectiveness of this important enforcement tool. Review by this Court is therefore plainly warranted. 1. a. There is a square conflict between courts of appeals concerning the reviewability of the General Counsel's decision to withdraw a complaint prior to hearing in connection with an informal settlement. The Third Circuit, in the present case and in Leeds & Northrup Co. v. NLRB, 357 F.2d 527 (3d Cir. 1966), and the District of Columbia Circuit, in International Ladies' Garment Workers Union v. NLRB, 501 F.2d 823, 828-831 (D.C. Cir. 1974), have concluded that judicial review of the General Counsel's decision is authorized by the National Labor Relations Act. The Sixth Circuit held in Jackman v. NLRB, 784 F.2d 759 (1986), that it was "without jurisdiction to review the General Counsel's decision to withdraw the unfair labor practice complaint" (784 F.2d at 764 (footnote omitted)). /6/ Indeed, the courts of appeals themselves have acknowledged the existence of this conflict. Thus, the Sixth Circuit observed in Jackman that the Third and District of Columbia Circuits had reached a "conflicting conclusion()," and stated that those courts had "misconstrue(d) the purposes and policies of the (National Labor Relations) Act" (784 F.2d at 764 n. 13). The court below noted the differing view of the Sixth Circuit and stated that "(d)espite the conflict among the Circuits which today's affirmance of Leeds perpetuates, we are nevertheless constrained to adhere to Leeds" (App., infra, 12a n.8). b. Moreover, the court of appeals' decision is plainly incorrect. The language and legislative history of the National Labor Relations Act make clear that the General Counsel's decision to withdraw an unfair labor practice complaint is not subject to judicial review. The National Labor Relations Act itself provides for judicial review only of "a final order of the Board" (29 U.S.C. 160(f)). The General Counsel's withdrawal of a complaint obviously is not an order of the Board; the General Counsel's decision involves no action by the Board at all. See American Federation of Labor v. NLRB, 308 U.S. 401, 409 (1940). Section 3(d) of the National Labor Relations Act, 29 U.S.C. 153(d), endows the General Counsel with "final authority, on behalf of the Board" regarding both "the issuance of complaints" and "the prosecution of such complaints before the Board." As Judge Friendly observed, "the General Counsel's authority 'in respect of the prosecution of such complaints before the Board' must include the power to determine whether a complaint can be successfully prosecuted and, if he thinks not, to drop it; by the same token he has power to consider and decide whether the public interest would be better served by settlement" (Local 282, International Brotherhood of Teamsters v. NLRB, 339 F.2d 795, 799 (2d Cir. 1964)). Section 3(d) therefore makes clear that the General Counsel's withdrawal of a complaint is an action independent of the Board. The legislative history of Section 3(d) strongly supports this conclusion. Section 3(d) was enacted in response to the criticism directed against the NLRB because, under the original statute, the Board was responsible for both the prosecution and adjudication of unfair labor practice charges; Representative Hartley noted that "(t)he National Labor Relations Board has been investigator, prosecutor, jury and judge all rolled into one" (93 Cong. Rec. 3423-3424 (1947)). Congress decided to separate these functions, establishing a General Counsel with "the final authority to act in the name of, but independently of any direction, control, or review by, the Board in respect of the investigation of charges and the issuance of complaints of unfair practices, and in respect of the prosecution of such complaints before the Board" (H.R. Conf. Rep. 510, 80th Cong., 1st Sess. 37 (1947)). In view of this strict separation of responsibilities, the General Counsel's decision cannot be characterized as an order issued by the Board. Indeed, this Court's recent decision in Cuyahoga Valley Railway Co v. United Transportation Union, No. 84-163 (Nov. 4, 1985) (per curiam), provides further support for this result. That case concerned the enforcement scheme established by the Occupational Safety and Health Act. The Secretary of Labor is authorized to issue citations to employers that he finds to be in violation of the Act; an employer may contest the validity of a citation before the Occupational Safety and Health Review Commission. The question present in Cuyahoga Valley Railway Co. was whether the Commission could review the Secretary's decision to withdraw a citation. This Court found that "(a) necessary adjunct of (the Secretary's power to establish substantive standards and issue citations) is the authority to withdraw a citation and enter into settlement discussions" (slip op. 4). Observing that "the Commission itself was created to avoid giving the Secretary both prosecutorial and adjudicatory powers," the Court noted that permitting the Commission to review the Secretary's decision "would * * * allow the Commission to make both prosecutorial decisions and to serve as the adjudicator of the dispute, a commingling of roles that Congress did not intend" (id. at 4-5). In view of the essentially identical division of authority between the General Counsel and the Board, the General Counsel's decision to withdraw a complaint cannot be considered to be an order of the Board and, therefore, that decision is not subject to judicial review under the National Labor Relations Act. /7/ The Third Circuit in Leeds & Northrup also rested its conclusion that the General Counsel's withdrawal of a complaint is subject to judicial review upon the provision of the Administrative Procedure Act providing for judicial review of agency action (see 357 F.2d at 531, 532). It is clear, however, that the APA does not authorize judicial review of the General Counsel's determination. /8/ The APA specifies that judicial review of agency action is not available when "agency action is committed to agency discretion by law" (5 U.S.C. 701(a)(2)). This Court stated in Heckler v. Chaney, No. 83-1878 (Mar. 20, 1985), that the inquiry under this provision is whether "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion" (slip op. 9). It found in that case that "an agency's decision not to take enforcement action" is presumptively immune from judicial review; the presumption may be rebutted "where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers" (slip op. 11 (footnote omitted)). A decision to exercise prosecutorial discretion by withdrawing a complaint and entering into an informal settlement implicates the precise considerations that led this Court to conclude in Chaney that a decision not to take enforcement action is not subject to judicial review. Indeed, there is no basis for drawing a distinction between accepting an informal settlement in lieu of issuing a complaint and withdrawing a previously-issued complaint in favor of such a settlement; the latter decision is simply a delayed version of the former. In both situations the decisionmaker must consider "not only * * * whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed * * * , whether the particular enforcement action requested best fits the agency's overall policies, and indeed, whether the agency has enough resources to undertake the action at all" (Chaney, slip op. 10). The selection of the terms upon which a complaint should be settled turns upon a variety of additional factors such as the strength of the evidence, the seriousness of the offense and the likelihood of its repetition, and the willingness of the charged party to settle. /9/ The agency is "far better equipped than the courts" to assess these variables (Chaney, slip op. 10), and its decision to enter into such a settlement should therefore be presumptively immune from judicial review. This presumption plainly applies in the case of the General Counsel's decision to withdraw a complaint. The statute creating the Office of the General Counsel expressly endows the General Counsel with plenary authority over prosecutorial decisions (29 U.S.C. 153(d)). It is well settled that this provision grants the General Counsel "unreviewable discretion to refuse to institute an unfair labor practice complaint." Vaca v. Sipes, 386 U.S. 171, 182 (1967); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138, 155 (1975). And nothing in the language of Section 3(d) suggests that the General Counsel's prosecutorial discretion terminates upon the issuance of the complaint. Indeed, the provision expressly confers upon the General Counsel "final authority, on behalf of the Board, * * * in respect of the prosecution of such complaints before the Board" (emphasis added), and therefore plainly encompasses a decision whether to dismiss a complaint in favor of an informal settlement (see pages 13-15, supra). Moreover, the very structure of the statute indicates that Congress did not intend to subject the General Counsel's decisions to judicial review. As we have discussed, Congress enacted Section 3(d) in order to separate the Board's prosecutorial authority from its adjudicatory authority. Congress most likely intended that the well-settled rule that prosecutorial decisions are not subject to judicial review (see, e.g., Ball v. United States, No. 84-5004 (Mar. 26, 1985), slip op. 4; United States v. Goodwin, 457 U.S. 368, 381-382 (1982)) would apply in respect to the General Counsel's exercise of her prosecutorial discretion. Thus, the National Labor Relations Act expressly subjects final decisions of the Board to judicial review, but in creating the Office of the General Counsel Congress did not enact a similar provision applicable to the General Counsel's decisions. Moreover, even though the Administrative Procedure Act was passed only one year before the creation of the Office of the General Counsel and figured in the debates over some aspects of the General Counsel's role (see, e.g., 93 Cong. Rec. 6455 (1947)), Congress nowhere indicated that it intended to subject the General Counsel's decisions to judicial review under that statute. The legislative history instead confirms that the General Counsel's prosecutorial decisions should not be subject to any form of judicial review. The principal criticism advanced by opponents of the plan to create an Office of the General Counsel was that too much authority would be concentrated in the General Counsel. Senator Pepper observed that "one man is made the arbiter of every case that comes before the attention of the Board. The Board has no authority to decide whether a case should be brought, or whether a complaint should be acted upon. That exclusive power is given to one lawyer" (93 Cong. Rec. 6513 (1947)). Another Senator specifically referred to the unreviewability of the General Counsel's decisions, stating that "(o)ne person will determine when complaints shall issue in all cases, how investigations shall be conducted, how cases shall be tried, which cases shall be enforced. Much of this action will not be subject to appeal, either to the Board or the courts" (id. at 6496 (remarks of Sen. Murray)). Senator Taft, one of the principal sponsors of the legislation, rebutted this criticism by observing that the decisions that would be entrusted to the General Counsel were not at that time subject to review by the Board, and instead were reviewed by "an anonymous committee of subordinate employees" (93 Cong. Rec. 6859 (1947)). Senator Taft's statement continued (ibid.): What the conference amendment does is simply to transfer this "vast and unreviewable power" from this anonymous little group to a statutory officer responsible to the President and to the Congress. So far as having unfettered discretion is concerned he, of course, must respect the rules of decision of the Board and of the courts. In this respect his function is like that of the Attorney General of the United States or a State attorney general. Senator Taft thus did not respond to critics of the legislation by asserting that the General Counsel's decisions would be subject to judicial review; he confirmed the unreviewability of those decisions by analogizing the General Counsel's authority to the authority exercised by the Attorney General. A decision by the Attorney General to dismiss an action in favor of an informal settlement is not subject to judicial review in the absence of a statute specifically providing for such review. Congress plainly intended that the same rule would apply to prosecutorial decisions made by the General Counsel. Jackman v. NLRB, 784 F.2d at 763-764. /10/ 2. Even if the court below had properly asserted jurisdiction to review the settlement agreement, its additional holding that the charging party is always entitled to an evidentiary hearing regarding its objections to a settlement cannot be supported by reference to the National Labor Relations Act or the APA and conflicts with the decisions of other courts of appeal. a. The courts of appeals have adopted three conflicting approaches to the need for an evidentiary hearing when the charging party objects to an unfair labor practice settlement agreement. /11/ Some courts have concluded that the charging party need only be given an opportunity to state its objections and, if its objections are rejected, a statement of reasons why. Oshkosh Truck Corp. v. NLRB, 530 F.2d 744 (7th Cir. 1976); Local 282, International Brotherhood of Teamsters v. NLRB, 339 F.2d at 799-801; see also International Ladies' Garment Workers Union v. NLRB, 501 F.2d at 832 (charging party must be given either an evidentiary hearing or a statement of the reasons for accepting the settlement). Other courts have indicated that an evidentiary hearing must be held if the charging party's objections raise a dispute regarding a material fact. George Ryan Co. v. NLRB, 609 F.2d 1249, 1252-1253 (7th Cir. 1979); NLRB v. Oil, Chemical and Atomic Workers International Union, 476 F.2d 1031, 1034-1037 (1st Cir. 1973); NLRB v. International Brotherhood of Electrical Workers, Local Union 357, 445 F.2d 1015 (9th Cir. 1971); Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d 61, 68 (5th Cir. 1971). The court below is alone in concluding that the charging party always must be accorded an evidentiary hearing. App., infra, 11a; Leeds & Northrup Co., 357 F.2d at 533. The courts of appeals themselves have acknowledged the existence of a conflict regarding the General Counsel's obligation to hold a hearing. See, e.g., App., infra, 11a; International Ladies' Garment Workers Union v. NLRB, 501 F.2d at 831; Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d at 67-68. b. There simply is no statutory support for the hearing requirement imposed by the court of appeals in this case. The National Labor Relations Act grants the charged party a right to a hearing in an unfair labor practice proceeding; the Board "(i)n (its) discretion" may permit any other person, such as a charging party, to intervene and present testimony. 29 U.S.C. 160(b); Amalgamated Utility Workers v. Consolidated Edison Co. of N.Y., 309 U.S. 261, 264-265 (1940). The Board's rules permit a charging party to present evidence and cross examine witnesses at the unfair labor practice hearing (29 C.F.R. 102.38). With respect to a settlement, however, a charging party is limited to the submission of a written statement setting forth its objections to the settlement. 29 C.F.R. 101.6, 101.9(c)(1) and (2). /12/ Thus, neither the statute nor the Board's regulations grant charging parties a right to an evidentiary hearing. Nor does the Administrative Procedure Act require a hearing. The provision of that statute relating to settlements provides "all interested parties" with certain procedural rights in connection with settlements (5 U.S.C. 554(c)). But the purpose of that provision was to ensure "that informal means of settlement be made available, and not at all to broaden the category of those entitled to demand a hearing-an issue left for determination under the relevant substantive statutes" (Local 282, 339 F.2d at 801). Since the National Labor Relations Act does not entitle a charging party to a hearing in connection with the consideration of a complaint on the merits, such a party surely cannot demand a hearing in connection with the settlement of a complaint. Id. at 800-801; see also NLRB v. Oil, Chemical & Atomic Workers International Union, 476 F.2d at 1034-1035; Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d at 68 n.9. /13/ The Third Circuit's determination that a charging party is always entitled to an evidentiary hearing on its objections to a settlement agreement thus contravenes this Court's admonition that "(a)bsent constitutional constraints or extremely compelling circumstances, the 'administrative agencies "should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties"'" (Vermont Yankee Nuclear Corp. v. NRDC, 435 U.S. 519, 543-544 (1978)). Indeed, such a hearing requirement could, as a practical matter, force the General Counsel to litigate many cases in which the charging party opposed the settlement. The delay that would result from the evidentiary hearing-and the cost of participating in the hearing-might well discourage charged parties from entering into settlements. The Board's rules permitting charging parties to file objections to settlements, and requiring the General Counsel or the Board to issue a statement of reasons in the event the settlement agreement is approved, properly accommodate the relevant interests, ensuring that charging parties have an opportunity to present their views while preserving settlements as a useful enforcement tool. /14/ 3. Amicable settlements are "the life-blood of the administrative process" (Attorney General's Committee on Administrative Procedure, Administrative Procedure in Government Agencies, Final Report, S. Doc. 8, 77th Cong., 1st Sess. 35 (1941)). The National Labor Relations Board "has from the very beginning encouraged compromises and settlements" (Wallace Corp. v. NLRB, 323 U.S. 248, 253-254 (1944) (footnote omitted)). Informal settlement agreements of the type involved in this case "permit the Board to concentrate its quasi-judicial activities on other matters, thereby enhancing its overall efficient administration" (Jackman v. NLRB, 784 F.2d at 764). Indeed, the General Counsel currently settles approximately 95% of all meritorious cases. /15/ Informal settlements following the issuance of a complaint constitute a significant number of those cases. /16/ The decision of the court below, if allowed to stand, will adversely affect this settlement process. The General Counsel's ability to secure informal settlements prior to the commencement of a hearing depends substantially on her ability to assure the charged party that it will be able to avoid the costs of a hearing and appeals to the Board and the courts. Permitting judicial review of such informal settlements, and requiring an evidentiary hearing whenever the charging party objects to a settlement, will provide a strong disincentive to settlement negotiations and "obstruct expeditious Board dispositions without concomitant benefit to its decision-making process" (NLRB v. Oil, Chemical and Atomic Workers, 476 F.2d at 1036). That result is inconsistent with Congress's desire to achieve the prompt and peaceful resolution of industrial labor disputes. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General LOUIS R. COHEN Deputy Solicitor General ANDREW J. PINCUS Assistant to the Solicitor General ROSEMARY M. COLLYER General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel ROBERT C. BELL, JR. Attorney National Labor Relations Board OCTOBER 1986 /1/ The NLRB also had adopted a statement of procedure describing the process that it follows in adjudicating unfair labor practice cases (29 C.F.R. 101.2-101.16). /2/ The charging party may obtain review by the General Counsel of the regional director's decision to dismiss a charge. 29 C.F.R. 101.6, 102.19. /3/ In the event the charged party fails to comply with an informal settlement agreement, the General Counsel, through the regional director, may set aside the agreement and institute formal complaint proceedings. 29 C.F.R. 101.9(e)(2). /4/ After the commencement of the hearing, a regional director's request for withdrawal of the complaint must be approved by the administrative law judge. A party aggrieved by the ALJ's decision may appeal to the Board. 29 C.F.R. 101.9(d). /5/ "A.R." refers to the administrative record filed in the court of appeals. We have consecutively numbered the pages of the record and our citations refer to those page numbers. /6/ Some courts have found that the General Counsel's decision to withdraw a complaint is not subject to judicial review where the reason for the withdrawal is the General Counsel's determination that the case could not be successfully prosecuted. These courts have suggested, however, that a decision to withdraw a complaint on those grounds is different from a settlement because a settlement "involves the restructuring of the charging party's 'private rights.'" International Association of Machinists v. Lubbers, 681 F.2d 598, 604 (9th Cir. 1982), cert. denied, 459 U.S. 1201 (1983); George Banta Co., v. NLRB, 626 F.2d 354, 356-357 (4th Cir. 1980), cert. denied, 449 U.S. 1080 (1981). Although these decisions do not squarely address the question presented here, they provide additional evidence of the confusion among the courts of appeals regarding the reviewability of the General Counsel's decision to withdraw a complaint. /7/ The District of Columbia Circuit concluded that the fact that Section 3(d) provides that the General Counsel exercises her authority "on behalf of the Board" suggests that the General Counsel's decisions are equivalent to orders issued by the Board (International Ladies' Garment Workers Union v. NLRB, 501 F.2d at 829-831). However, the reference to the Board in Section 3(d) reflects Congress's intent that the General Counsel would function as a part of the same agency as the Board, exercise her authority "in the name of * * * the Board," and follow applicable Board precedents. It does not in any way indicate that the General Counsel's decisions should be considered equivalent to orders issued by the Board. See H.R. Conf. Rep. 510, 80th Cong., 1st Sess. 37 (1947); 93 Cong. Rec. 6383 (1947) (remarks of Rep. Hartley). Indeed, if the court's view of the statute were accepted, all decisions of the General Counsel presumably would constitute Board actions subject to judicial review; as we discuss below (at 17), however, it is clear that the General Counsel's decision not to issue a complaint is not subject to judicial review. /8/ As a threshold matter, the APA could not provide a basis for direct review by a court of appeals of the General Counsel's action. The APA creates a cause of action and is not a grant of jurisdiction. See 5 U.S.C. 703; Califano v. Sanders, 430 U.S. 99, 104-107 (1977). In the absence of a statute establishing jurisdiction to seek direct review in a court of appeals, the cause of action created by the APA may only be asserted in the appropriate district court pursuant to the general grant of jurisdiction over cases raising a federal question (see 28 U.S.C. 1331). The APA issue is properly presented in this case even though respondent commenced this action in the court of appeals, however, because this Court could order the action transferred to the appropriate district court pursuant to 28 U.S.C. 1631 if it concludes that the APA does authorize judicial review. /9/ These determinations are often made before a complaint has issued, but that is not always the case. Circumstances may change or events come to light after a complaint has issued that make it advisable to terminate the proceeding or accept a settlement. Indeed, the charged party may not indicate a willingness to settle until a complaint has issued. /10/ The Court stated in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), that the analogy between an unfair labor practice proceeding and a criminal prosecution was "far from perfect" (421 U.S. at 156 n. 22), but the only limitation upon the General Counsel's prosecutorial discretion cited by the Court was that the General Counsel may issue a complaint only after a private party has filed an unfair labor practice charge. The Court also noted that the Board's rules and regulations accord a charging party the status of "party" to the unfair labor practice proceeding once a complaint issues, but the Board's rules and regulations expressly limit the charging party's participation (see note 13, infra) and do not affect the General Counsel's prosecutorial discretion either to refuse to issue a complaint or to withdraw a complaint as part of an informal settlement prior to the hearing. /11/ Although this question arises in the present case in the context of an informal settlement agreement, the identical question frequently arises in connection with formal settlement agreements subject to review by the Board. /12/ In the case of informal settlements entered into prior to the commencement of the hearing before the ALJ, charging parties may submit written statements to the regional director and obtain review of the regional director's decision by the General Counsel. 29 C.F.R. 101.6, 101.9(c)(1). A charging party may submit objections to proposed formal settlements and, if the formal settlement is entered, it may appeal to the Board. 29 C.F.R. 101.9(c)(2). If an informal settlement agreement is reached after the hearing has begun, the charging party may submit a written statement or state on the record its objections to the settlement. 29 C.F.R. 101.9(d)(1) and (2). /13/ The Board's regulations include a charging party within the definition of "party," but go on to provide that the definition does not "prevent the Board or its designated agent from limiting any parts to participate in the proceedings to the extent of his interest only" (29 C.F.R. 102.8). The Board has exercised the latter authority by declining to accord charging parties an automatic right to a hearing regarding a proposed settlement agreement. /14/ United Automobile Workers v. Scofield, 382 U.S. 205 (1965), is not to the contrary. The Court held in that case that a successful charging party may intervene in a proceeding in a court of appeals seeking review of a Board order. The Court observed that a private party could not institute a contempt proceeding because that situation involved "the Board's expertness in achieving compliance with (its) orders" (382 U.S. at 221). As we have discussed, affording a charging party an evidentiary hearing on its objections to a settlement would also intrude upon the Board's ability to utilize settlements in achieving compliance with the requirements of the Act. /15/ Summary of Operations for Fiscal Year 1985, Office of the General Counsel, National Labor Relations Board 9 (June 23, 1986). /16/ In fiscal year 1983, the most recent year for which statistics are available, the NLRB settled a total of 10,632 cases. Of those, 3,931 were settled after the issuance of a complaint and before the commencement of a hearing before an administrative law judge; almost all of those settlements-3,803-were informal settlements identical to the settlement at issue in this case. 48 NLRB Ann. Rep. 183-185 (1983). Appendix