AFGE Local 1617; Arthur Celestino; and AFGE Council 214 v. FLRA, Civ. No. SA-03-58-FB (W.D. Tex, August 4, 2003).

The Magistrate Judge of the San Antonio Division of the U.S. District Court, Western District of Texas, recommended that the court dismiss the union's request that the court vacate the Authority's decision in 58 FLRA No. 13, finding that the court lacked jurisdiction. (In 58 FLRA No. 23 the Authority had set aside an award involving environmental differential pay (EDP) for exposure to asbestos. It disagreed with the arbitrator's determination that the agency's regulation, adopting the OSHA standard for permissible exposure to asbestos, wasn't binding on the union unless there was evidence that the union consented to the standard.) The Magistrate Judge said that "§ 7123 precludes district courts from reviewing the Authority's decision on an exception to an arbitration award." He also held that "[b]ecause plaintiffs have not shown the Authority committed an egregious error," the Kyne exception to § 7123(a)'s statutory preclusion of any judicial review of FLRA's decisions on exceptions to arbitration awards wasn't applicable.

In 58 FLRA No. 13, the Authority set aside an arbitration award in which the arbitrator sustained a grievance concerning environmental differential pay and awarded back pay. In that case the agency had prescribed, by agency regulation, the standard for entitlement to EDP for exposure to airborne asbestos. FLRA noted that in 53 FLRA at 51 it had said that an arbitrator's freedom to determine the quantitative level of exposure for payment of EDP was limited by law and regulation. "We find," said FLRA, "no basis for not interpreting the reference to 'regulation' to include an agency regulation."

FLRA noted that the agency regulation required that exposure to asbestos had to be at, or in excess of, the OSHA standard to qualify for EDP. Moreover, "[w]here, as here, an agreement does not set a specific standard and an applicable agency regulation does set a specific standard, the agreement does not conflict with the agency regulation and the agency regulation governs the matter in dispute."

FLRA had disagreed with the arbitrator's view that the agency regulation wasn't binding on the union unless there was evidence that the union consented to the standard and set aside the award in its entirety.

When the plaintiff filed a complaint with the court and asked that it issue an order vacating FLRA's decision, the Authority responded by claiming that the court had no jurisdiction. The plaintiff then argued, among other things, that § 7123 didn't specifically preclude a district court from reviewing Authority decisions. It also contended that the court had jurisdiction under the exception created by the Supreme Court in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180 (1958).

After reviewing the statutory language, its legislative history, and the purpose of the arbitration and review provisions, the Magistrate Judge concluded that "§ 7123 precludes district courts from reviewing the Authority's decision on an exception to an arbitrator's award." Regarding the language of § 7123 he said the following:

Congress expressly denied to courts of appeals the right of review of awards of arbitrators, unless the order involves an unfair labor practice. Other than the limited express grant of juridical review by the courts of appeals, there is no other express grant of judicial review in § 7123(a). Therefore, the wording of the statute itself supports the conclusion that Congress did not grant district court the authority to review the Authority's decisions, in addition to the review afforded the courts of appeals or of matters in which review is precluded in the courts of appeals.

Because § 7123(a) does not mention district courts, an argument can be made that Congress did not expressly preclude review of certain Authority decisions in district courts. But[] the express grant of review authority[] to courts of appeals in § 7123(a) and to district courts in § 7123(d) to grant temporary relief when an unfair labor practice is at issue, does not support such a conclusion. If Congress had intended in § 7123(a) to give district courts the authority to conduct judicial review of certain Authority decisions, it is likely the grant would have been express.

The court also rejected the plaintiffs claim that the Kyne exception applied.

Although in Kyne, the Supreme Court has recognized a possible exception to § 7123's preclusion of jurisdiction, plaintiffs have not shown the Authority acted in excess of its statutory powers or violated a clear mandate of its own enabling statute. Because plaintiffs have not shown the Authority committed an egregious error, Kyne is not applicable and the Court lacks subject matter jurisdiction to resolve the issues presented by this case. Therefore, the Authority's Rule 12(b)(1) motion to dismiss should be granted and plaintiff's cause of action should be dismissed.