No. 98-667
In the Supreme Court of the United States
OCTOBER TERM, 1998
FEDERAL LABOR RELATIONS AUTHORITY, PETITIONER
v.
DEPARTMENT OF JUSTICE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE RESPONDENTS
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
WILLIAM KANTER
WILLIAM G. COLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
The Federal Service Labor-Management Relations Statute, 5 U.S.C. 7114(a)(2)(B),
gives a federal employee the right to the participation of a union representative
at an interview by a "representative of the agency" when the employee
reasonably believes the interview may result in disciplinary action. The
questions presented are:
1. Whether the "extraordinary circumstances" provision of 5 U.S.C.
7123(c) permitted the court of appeals to deny enforcement of an order of
the Federal Labor Relations Authority (FLRA) applying 5 U.S.C. 7114(a)(2)(B)
when the order had not been challenged before the FLRA.
2. Whether an investigator from the Office of Inspector General (OIG) is
a "representative of the agency" within the meaning of 5 U.S.C.
7114(a)(2)(B), notwithstanding the provisions of the Inspector General Act
of 1978, 5 U.S.C. App. 3, §§ 1 et seq., that insulate the OIG
from agency control.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-667
FEDERAL LABOR RELATIONS AUTHORITY, PETITIONER
v.
DEPARTMENT OF JUSTICE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE RESPONDENTS
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-16a) is reported at 137
F.3d 683, amending an opinion reported at 125 F.3d 106. The decision and
order of the Federal Labor Relations Authority (Pet. App. 19a-46a) are unreported.
JURISDICTION
The judgment of the court of appeals was originally entered on September
25, 1997. The opinion was modified on rehearing on February 5, 1998. A second
petition for rehearing was denied on June 4, 1998. Pet. App. 17a-18a. On
August 18, 1998, Justice Ginsburg extended the time within which to file
a petition for a writ of certiorari to November 2, 1998, and the petition
was filed on October 22, 1998. The jurisdiction of this court is invoked
under 28 U.S.C. 1254(1).
STATEMENT
1. The Federal Service Labor-Management Relations Statute (FSLMRS or Statute),
5 U.S.C. 7101 et seq. (1994), provides generally for collective bargaining
between federal agencies and the union representatives of their employees.
5 U.S.C. 7111-7114. The FSLMRS makes it an unfair labor practice for a federal
agency to "interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under [the Statute]," or "otherwise
fail or refuse to comply with any provision" of the FSLMRS. 5 U.S.C.
7116(a)(1) and (8).
The Statute provides that an "exclusive representative of an appropriate
unit"-ordinarily a union-"shall be given the opportunity to be
represented at any examination of an employee in the unit by a representative
of the agency in connection with an investigation" if the employee
reasonably believes that discipline may result from the examination and
the employee requests representation. 5 U.S.C. 7114(a)(2) (B). That provision
is frequently referred to as the "Weingarten" provision of the
FSLMRS, because it is similar to a right available to private sector employees
recognized by this Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
2. In November 1994 and January 1995, three Immigration and Naturalization
Service (INS) inspectors working at JFK International Airport were interrogated
by special agents of the Office of the Inspector General, U.S. Department
of Justice (OIG). Pet. App. 3a. The interrogations concerned, in part, allegations
of involvement in espionage, participation in an alleged group of INS inspectors
termed the "night riders," and acceptance of bribes from Chinese
nationals. Id. at 25a-26a. The "night riders" were alleged to
be a group of immigration inspectors who patrolled the streets during their
off duty time actively searching for criminal activity so that they could
make arrests. Id. at 25a & n.4.
In August 1995, three INS detention officers working at a holding center
for criminal aliens were also interrogated by OIG special agents. Those
interviews focused on whether the officers had violated the INS District
Director's policy prohibiting detention officers from purchasing or carrying
personal firearms. Pet. App. 30a.
3. Some of the INS inspectors and detention officers requested union representation
when directed by their INS supervisors to appear at the interviews conducted
by the OIG agents. The OIG agents rejected those requests. Pet. App. 3a.
The union representing those INS employees filed unfair labor practice charges
with the FLRA, alleging that the OIG, DOJ, and New York office of the INS
(INS-NY) had improperly prohibited the attendance of a union representative
during questioning of employees. Ibid. In August and November 1995, the
Boston region of the FLRA issued complaints and notices of hearing to the
OIG, DOJ, and INS-NY. Id. at 41a-46a. After a consolidated hearing, an administrative
law judge (ALJ) found that the OIG had committed an unfair labor practice
by prohibiting the attendance of a union representative during the interrogations,
that the DOJ had committed an unfair labor practice by failing to exercise
its supervisory authority over the OIG, and that INS-NY had committed an
unfair labor practice by failing to inform its employees that they could
insist on the attendance of a union representative. Id. at 3a. The ALJ recommended
that the FLRA issue an order requiring the OIG, INS, and INS-NY to cease
and desist from denying employees in INS-NY their right to have a union
representative present during interrogations. The ALJ also recommended various
affirmative actions and ordered that no disciplinary action could be taken
against the six INS employees based on their interrogations by OIG agents
in November 1994, and January and August 1995. Id. at 39a.
4. None of the three federal respondents filed exceptions with the FLRA
to challenge the ALJ's order. Pet. App. 4a. On July 30, 1996, the FLRA issued
an order adopting the findings, conclusions, decision, and order of the
ALJ. Id. at 20a. More than five months later, the FLRA brought an enforcement
proceeding in the court of appeals. The federal respondents filed an answer
opposing the FLRA petition. Id. at 7a. After requesting and receiving briefs
from the parties, the court of appeals denied enforcement. Id. at 4a, 16a.
5. The court of appeals ruled first that it had jurisdiction to decide whether
to enforce the FLRA's order. The court noted (Pet. App. 6a) that the FSLMRS
provides that, on appeals to courts from FLRA orders, "No objection
that has not been urged before the Authority, or its designee, shall be
considered by the court, unless the failure or neglect to urge the objection
is excused because of extraordinary circumstances." 5 U.S.C. 7123(c).
The court explained that the FLRA had in earlier rulings come to the conclusion
that 5 U.S.C. 7114(a)(2)(B) applies to questioning by OIG agents, based
on the theory that OIG agents are "representatives of" the agencies
to which they are assigned. Pet. App. 7a-8a. The court stated that, since
that established rule had rendered futile any attempt to persuade the FLRA
to the contrary, the agencies' failure to file an objection before the Authority
was "excused because of extraordinary circumstances." Id. at 6a-7a.
The court also noted with approval a decision by the District of Columbia
Circuit holding that a court considering an FLRA's petition for enforcement
may review the contentions of a respondent who has not previously raised
them in a petition for review. Id. at 8a (citing FLRA v. United States Dep't
of Commerce, 962 F.2d 1055, 1057-1059 (D.C. Cir. 1992)).
On the merits of the case, the court recognized that 5 U.S.C. 7114(a)(2)(B)
requires that a union representative have the opportunity to be at an investigative
interview of an employee in the appropriate unit in an agency when that
interview is conducted by "a representative of the agency." The
court ruled, however, that an OIG agent, when questioning agency employees
for bona fide purposes within the authority of the Inspector General Act
of 1978 (Inspector General Act), 5 U.S.C. App. 3, §§ 1 et seq.
(1994), is not "a representative" of the employee's agency for
purposes of Section 7114(a)(2)(B). Pet. App. 14a. Since the court concluded
that this case involved interrogations about matters within the scope of
bona fide OIG functions under the Inspector General Act, the court concluded
that none of the respondents had committed an unfair labor practice, and
denied the FLRA's petition for enforcement. Id. at 16a.
DISCUSSION
The jurisdictional decision of the court of appeals is correct and does
not conflict with the decisions of this Court or of any other court of appeals.
The first question presented in the petition, therefore, does not warrant
further review. The second question presented, whether an OIG investigator
is a "representative of the agency" within the meaning of 5 U.S.C.
7114(a)(2)(B), is currently before this Court in National Aeronautics and
Space Administration v. Federal Labor Relations Authority, cert. granted,
No. 98-369 (November 2, 1998). Accordingly, the petition should be held
pending this Court's decision in NASA, and disposed of as appropriate in
light of the resolution of that case.
1. The court of appeals held that it had jurisdiction under 5 U.S.C. 7123(c)
to decide this case, because it concluded that the federal respondents were
excused from objecting to the FLRA's order due to "extraordinary circumstances."
The court followed circuit precedent in ruling that the "extraordinary
circumstances" exception to Section 7123(c) excuses a litigant from
presenting an issue to the FLRA if doing so would be futile. See Overseas
Education Ass'n (OEA) v. FLRA, 961 F.2d 36, 38 (2d Cir. 1992) (When it is
futile to challenge "deeply rooted and well-documented" FLRA precedent,
the court will not require "the party to make hopeless arguments for
no other purpose than to preserve them on appeal."). The court of appeals'
continuing adherence to that interpretation of the "extraordinary circumstances"
exception to 5 U.S.C. 7123(c) does not conflict with any decision of this
Court or any other court of appeals.
Petitioner advances four reasons why the court of appeals should have required
exhaustion of administrative remedies, but each is unpersuasive.
a. Petitioner contends that the FLRA's previously expressed view that an
OIG agent is a "representative of the agency" within the meaning
of Section 7114(a)(2) (B) was not, in fact, "deeply rooted and well-documented"
under the OEA v. FLRA standard. Pet. 19. The court of appeals held that
the FLRA had left no doubt, in a July 1995 decision filed less than a year
before the ALJ's ruling in this case, that OIG agents would be subject to
the Weingarten provision of the FSLMRS. Pet. App. 7a-8a. See Headquarters
Nat'l Aeronautics & Space Admin., 50 F.L.R.A. 601 (1995), enforced,
120 F.3d 1208 (11th Cir. 1997), cert. granted, No. 98-369 (Nov. 2, 1998).
In that case the FLRA noted that, "[t]he Authority has long held that
an OIG investigator can, under certain circumstances, be a 'representative
of the agency' within the meaning of section 7114(a)(2)(B) of the [FSLMRS]."
50 F.L.R.A. at 612 (citations omitted and emphasis added). The ALJ in the
present case made its decision "[i]n light of" the Authority's
decision in NASA. Pet. App. 36a. The court of appeals thus did not err in
concluding that established FLRA precedent made filing exceptions to the
ALJ's decision an exercise in futility.
Petitioner contends that FLRA precedent was not "deeply rooted and
well-accepted" since the NASA decision "was only two years old"
and a circuit split existed "regarding the application of section 7114(a)(2)
(B) to OIG investigations." Pet. 17-18. But neither the circuit split
nor the date of the NASA decision casts any doubt on the firmness of the
Authority's position, because the Authority explained in NASA that it did
not intend at that time to change its precedent. 50 F.L.R.A. at 612.1
b. The FLRA also argues that administrative exhaustion would not have been
futile because it would have given the FLRA the opportunity to review two
elements of this case that might have caused it to reach a contrary result.
Pet. 17-19. But neither issue could in fact have changed the outcome. First,
petitioner suggests that the "criminal" aspect of the allegations
of this case might have led it to approve of the OIG conducting the interview
outside the presence of the union representative. Pet. 18. Elsewhere, however,
petitioner states that in its view the OIG investigation was not a "criminal"
probe since the U.S. Attorney had declined criminal prosecution. Pet. 6.
Moreover, the possible "criminal" aspect of the investigation
was irrelevant to the court of appeals' decision, which upheld the exclusion
of the union representative because the questioning was "bona fide"
under the Inspector General Act. See Pet. App. 14a. Given petitioner's disagreement
with that approach, the court below was correct to hold that any presentation
of this case to the Authority would have been an exercise in futility.
Second, petitioner suggests that administrative exhaustion would not have
been futile, because the Authority might have wished to consider whether
the agency component, INS-NY, was liable in this case. Pet. 18-19. Petitioner
argues that it had never before held a component agency liable for a Section
7114(a)(2) (B) violation by an OIG and that filing an exception with the
Authority on that issue would not have been futile. The court of appeals,
however, considered only the "contention that agents of the OIG are
not 'representatives of the agency' within the meaning of section 7114(a)(2)(B),"
Pet. App. 6a, and did not consider the liability of component agencies.
Once it concluded that an unfair labor practice claim against the OIG was
not justified, there was no basis for inquiring into the possibility of
holding responsible not only the OIG but also DOJ or INS-NY. Because the
court of appeals did not reach that issue, the failure to present it to
the FLRA was of no consequence.2
c. Petitioner also contends that the decision by the court of appeals cannot
be reconciled with this Court's ruling in United States v. L.A. Tucker Truck
Lines, Inc., 344 U.S. 33 (1952). Pet. 15-16. In that case the Court held
that a court reviewing the action of the Interstate Commerce Commission
should have refused to consider a technical error that had been raised for
the first time in federal court and was "brought forward at the last
possible moment to undo the administrative proceedings without consideration
of the merits and can prevail only from technical compulsion irrespective
of considerations of practical justice." 344 U.S. at 36. But the reasons
for requiring exhaustion in that case are not present here. In L.A. Tucker,
the court was diverted from the merits by an unpreserved question of procedural
law; here, by contrast, the court decided the merits of a question that
was unpreserved only because it would have been futile to present the question
to the Authority. Thus, "considerations of practical justice"
(ibid.) required judicial review in this case.
d. Finally, petitioner argues (Pet. 19-21) that the court of appeals erred
in holding in the alternative that it had jurisdiction pursuant to 5 U.S.C.
7123(c), which provides that when a party seeks review upon a petition for
enforcement, "the court * * * shall have jurisdiction of the proceeding
and of the question determined therein * * * and may make and enter a decree
affirming and enforcing, modifying and enforcing as so modified, or setting
aside in whole or in part the order of the Authority." The decision
below is, as petitioner points out (Pet. 19), consistent with FLRA v. Commerce,
in which the D.C. Circuit held that 5 U.S.C. 7123(c) allows a court of appeals
to review the lawfulness of FLRA orders in an enforcement action brought
by the Authority and to set them aside if they are contrary to law. 962
F.2d at 1058. That unremarkable conclusion in FLRA v. Commerce is, as the
Second Circuit noted, directly applicable to the present case. Pet. App.
8a. Petitioner's efforts to re-argue the correctness of FLRA v. Commerce
(Pet. 20 n.8) are misplaced, and petitioner can point to no conflict among
the courts of appeals on that issue.
2. On the merits, this case presents the question whether an OIG investigator
is a "representative of the agency" for purposes of the Weingarten
rule, 5 U.S.C. 7114(a)(2)(B). That issue is before this Court in NASA v.
FLRA, No. 98-369. As we have argued in that case, the better reading of
the Weingarten provision in the FSLMRS, in conjunction with the Inspector
General Act, is that an OIG investigator is not a representative of the
agency for that purpose. Since the Court's resolution of NASA v. FLRA will
likely be dispositive of the merits issue in this case, the petition should
be held for NASA on that issue and disposed of in light of the decision
in that case.
CONCLUSION
The petition for writ of certiorari should be denied as to the first issue.
As to the second issue, the petition should be held pending this Court's
decision in NASA v. FLRA, No. 98-369, and disposed of as appropriate in
light of the resolution of that case.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
WILLIAM KANTER
WILLIAM G. COLE
Attorneys
NOVEMBER 1998
1 Nor has the Authority subsequently suggested any mechanism to reconsider
its conclusion in this case. Instead, as the court noted, "the FLRA's
petition for rehearing has fully informed [the court] of its views on the
merits." Pet. App. 11a n.6.
2 A similar issue, whether an agency headquarters commits an unfair labor
practice by failing to require the OIG to comply with the Weingarten rule,
is now before this Court in NASA v. FLRA, No. 98-369.