United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2006 Decided June 27, 2006

No. 05-1123

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

LOCAL 2510,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

On Petition for Review of an Order of the

Federal Labor Relations Authority

Stuart A. Kirsch argued the cause for petitioner. With him

on the briefs was Mark D. Roth.

William E. Persina, Attorney, Federal Labor Relations

Authority, argued the cause for respondent. With him on the

brief was William R. Tobey, Acting Solicitor. James F.

Blandford, Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and ROGERS, Circuit

Judge, and EDWARDS, Senior Circuit Judge.

GINSBURG, Chief Judge: Local 2510 of the American

Federation of Government Employees petitions for review of an

order of the Federal Labor Relations Authority reducing the
2

*

Although the statute refers to “section 7118,” the reference

“has been recognized to be an error; the correct reference is to section

7116.” Overseas Educ. Ass’n v. FLRA, 824 F.2d 61, 63 n.2 (D.C. Cir.

1987) (OEA).

attorney’s fee an arbitrator awarded the Union for representing

a member in a grievance arbitration. We do not have

jurisdiction to review a final order of the Authority “involving

an award by an arbitrator” unless “the order involves an unfair

labor practice under section [7116]” of Title V,

* 5 U.S.C. §

7123(a)(1), as the Union argues this order does. In the

alternative the Union argues we have jurisdiction pursuant to

Leedom v. Kyne, 358 U.S. 184 (1958). We reject the first

argument because the Authority’s order addresses only the

attorney’s fee, and therefore does not involve an unfair labor

practice; we reject the second argument because Leedom v. Kyne

implicates the jurisdiction of the district court, not that of the

court of appeals. Therefore, we dismiss the Union’s petition for

lack of jurisdiction.

I. Background

William Roach, an accounting technician for the Defense

Finance and Accounting Service (DFAS) of the United States

Department of Defense and president of Local 2510, was

suspended on the grounds that, by failing to return promptly to

work after attending an out-of-town union meeting, he had been

absent (for four hours) without leave and, in a conversation with

his supervisor regarding his absence, had shown a “lack of

candor.” The Union filed a grievance on behalf of Mr. Roach,

challenging the suspension and, when the grievance was denied,

took the matter to arbitration. The arbitrator described the

grievance as follows: 

[A] union grievance was filed protesting Roach’s
3

suspension; the action barring him from the Charleston

Operating Location and management’s refusal to

furnish requested information as required by 5 U.S.C.

§ 7114(b)(4) and Article 4 of the master agreement ....

Management’s conduct was protested as a separate

unfair labor practice as well as a contract grievance.

The arbitrator held the discipline was imposed without just

cause and ordered the DFAS to rescind the suspension and give

Roach back pay. He also ordered the DFAS to “cease and

desist” from two practices he held were violations both of law

and of the collective bargaining agreement between the Union

and the DFAS. First, the arbitrator held the employer’s refusal

to permit Roach “access to the facility to perform union duties

during the time he was serving his suspension” was an unfair

labor practice within the meaning of 5 U.S.C. § 7116 and a

violation of 5 U.S.C. § 7102 (right to assist labor organization).

Second, he held the employer’s refusal to provide the Union

with certain information and documents the Union needed in

order to assess the strength of Roach’s grievance was also a

violation of § 7102, Article 4 of the master labor agreement, and

of 5 U.S.C. § 7114(b)(4) (duty to furnish data maintained by the

agency). 

In a later opinion, the arbitrator concluded the Union was

entitled to reimbursement of its attorney’s fee pursuant to the

Back Pay Act, 5 U.S.C. § 5596. He awarded a fee of $74,700,

at a rate of $225 per hour for 332 hours of work, and $1,978.48

in expenses. 

The DFAS filed with the Authority various exceptions to

the fee award but did not challenge the arbitrator’s decision on

the merits. See id. § 7122. The employer argued: (1) the

arbitrator lacked authority under the collective bargaining

agreement to award fees; (2) the fee awarded was unreasonable;
4

(3) the award was not in the interest of justice; and (4) the award

was not supported by a reasoned decision. 

The Authority rejected the first exception because the

DFAS had not raised the argument before the arbitrator; it

rejected the third and fourth exceptions on their merits. The

Authority agreed the fee award was excessive, however, and it

reduced by more than half the number of compensable hours (to

148.5) and hence the amount of the award (to $33,412.50).

Specifically, the Authority reduced the number of hours for

research and preparation of a brief to 31 from the 77 claimed, on

the ground that the hours claimed were excessive in light of the

attorney’s “extensive experience in labor and employment law”;

reduced the number of hours for the “preparation of time

charges and calculating fees” to nine from the 31 claimed

because that work was “mostly clerical”; and discounted the

remaining hours by 25% “to account for a failure to exercise

billing judgment” and by another 25% because the fee award

was “significantly disproportionate to the amount [of money]

involved in the case.” When the Authority denied its request for

reconsideration, the Union petitioned for review in this court.

II. Analysis

We do not have jurisdiction to review an order of the

Authority reviewing the decision of an arbitrator unless the

order of the Authority “involves an unfair labor practice.” 5

U.S.C. § 7123(a)(1). In this case the order of the Authority

deals only with the issue of the union attorney’s fee. The Union

raises two arguments in an attempt to overcome the

jurisdictional bar to our review of such an order.

A. The Statutory Exception

First the Union argues we have jurisdiction because the
5

Authority’s order “involves an unfair labor practice” within the

meaning of § 7123(a)(1). As we explained in OEA, the Federal

Service Labor-Management Relations Statute, 5 U.S.C. § 7101

et seq., establishes a “two-track system for resolving labor

disputes.” 824 F.2d at 62. A party aggrieved by an unfair labor

practice may go down either track but not both. 5 U.S.C. §

7116(d). A party starts down the first track by filing an unfair

labor practice charge with the Authority. Id. § 7118(a). If the

General Counsel issues a complaint, then the Authority will

adjudicate the matter, and its decision will be subject to judicial

review. Id. § 7123(a). A party starts down the second track, as

did the Union in this case, by filing a grievance and pursuing it

through the procedures provided in the collective bargaining

agreement between the employer and the union. Id. §

7121(a)(1). If the grievance is denied, then the union may seek

binding arbitration. Id. § 7121(b)(1)(C)(iii). If either party is

dissatisfied with the decision of the arbitrator, then it may file

exceptions thereto with the Authority. Id. § 7122. Judicial

review of the Authority’s decision, however, is foreclosed unless

its order “involves an unfair labor practice.” Id. § 7123(a)(1).

We explicated the meaning of the just-quoted standard in

OEA. There we observed, “An [Authority] holding that there

was (or was not) a statutory unfair labor practice committed in

a particular case would obviously satisfy this somewhat

amorphous standard, but something short of a paradigm case

may also sufficiently ‘involve’ a statutory unfair labor practice

to confer jurisdiction.” OEA, 824 F.2d at 65. That the standard

is amorphous, however, does not mean it is met in every case.

A mere “passing reference” to an unfair labor practice will not

suffice. See U.S. Dep’t of the Interior v. FLRA, 26 F.3d 179,

184 (D.C. Cir. 1994) (DOI). The unfair labor practice “must be

either an explicit ground for, or be necessarily implicated by, the

Authority’s decision.” OEA, 824 F.2d at 68. 
6

In the order now before us the Authority addressed only the

fee award, but the Union contends the order is nonetheless

reviewable because the arbitrator’s “principal award,” meaning

his award on the merits of the grievance, “is replete with

findings of statutory [unfair labor practices]” and there are

“repeated references to these findings in the [Authority’s]

decision.” Actually, the arbitrator found only one unfair labor

practice in his decision on the merits, namely, the employer’s

refusal to permit Roach access to the DFAS facility. That other

statutory violations or violations of the collective bargaining

agreement “could be characterized as ... statutory unfair labor

practice[s] will not suffice” to make the order reviewable. Id. at

67; see 5 U.S.C. § 7116(a)(8) (unfair labor practice for agency

to “fail or refuse to comply with any provision of” Statute). But

more to the point, it is not the arbitrator’s award on the merits of

the grievance that must involve an unfair labor practice as the

predicate for judicial review; it is the order of the Authority that

is the subject of the petition for judicial review -- in this case the

Authority’s order reviewing the arbitrator’s fee award -- that

must involve an unfair labor practice. See 5 U.S.C. § 7123(a).

In the latter order, there is neither a single mention of § 7116

(unfair labor practices) nor any discussion of the arbitrator’s

finding of an unfair labor practice other than passing references

when the Authority recounts the issues presented in this “fairly

straightforward case.” As we have said before, a “passing

reference does not satisfy the requirement” that the order

involve an unfair labor practice. DOI, 26 F.3d at 184.

The Union also suggests the order involves an unfair labor

practice because the Authority must have considered the

arbitrator’s holding that the employer had engaged in an unfair

labor practice when the Authority approved the arbitrator’s

finding that the DFAS knew or should have known it would not

prevail on the merits, which finding was the basis for its holding

that an award of the attorney’s fee was in the interest of justice.
7

Both the Authority and the arbitrator, however, considered the

likelihood the DFAS would not prevail only with respect to

issues resolved under the collective bargaining agreement

between the union and the employer, namely, the validity of

Roach’s discipline for being absent without leave and for a lack

of candor. Neither the arbitrator nor the Authority considered

whether the DFAS should have known it would be unable to

defend its having denied Roach access to its facility, which is

what the arbitrator held was an unfair labor practice. If the

Authority in the order under review had considered whether the

DFAS should have known it would not prevail with respect to

the only unfair labor practice the arbitrator found, then perhaps

the order would have “involved” an unfair labor practice, but

that is not what happened. In the order under review, there was

no discussion at all of the arbitrator’s finding of an unfair labor

practice in his earlier decision on the merits of the Union’s

grievance.

The Union’s most promising, but ultimately unpersuasive,

argument is that an unfair labor practice was “necessarily

implicated” in the Authority’s decision, OEA, 824 F.2d at 68,

because it would have been “impossible for the [Authority] to

review the reasonableness of the fee determination, without

analyzing the research, briefing, and presentation of [the unfair

labor practice] issues” raised in the grievance. As the Union

acknowledged at oral argument, by this logic we would always

have jurisdiction to review an order of the Authority reviewing

an arbitrator’s award of attorneys’ fees if the underlying dispute

involved an unfair labor practice. As explained below, we

cannot read the exception to the jurisdictional bar so broadly. 

Although the Statute does not expressly tell us “how

broadly ‘involves [an unfair labor practice]’ should be

construed,” id. at 65, we are guided by the rationale for this

exception to the otherwise absolute bar to judicial review in §
8

7123(a)(1). The exception functions, as the Authority

persuasively explains, to insure uniformity in the case law

concerning unfair labor practices. By making reviewable every

order involving an unfair labor practice claim, whether it arises

from a complaint issued by the General Counsel or from a

dispute submitted to an arbitrator, the Congress made certain

there would be a single, uniform body of case law concerning

unfair labor practices.

We see no plausible rationale for the alternative rule

implicitly advanced by the Union, namely, that our review

extends to any order in a case in which an unfair labor practice

was involved -- regardless whether the unfair labor practice is

involved in the particular order of which review is sought. We

have previously acknowledged that an order may be reviewable

even if the Authority did not therein address an unfair labor

practice “on the merits,” OEA, 824 F.2d at 71, but we cautioned

at the same time that to be reviewable the substance of the unfair

labor practice must at least “be discussed in some way in, or be

some part of, the Authority’s order.” Id. at 65. Without even

that much involvement there is no risk the Authority will leave

the path of the law of unfair labor practices and yet escape the

review that would bring it back to the straight and narrow.

Where there is no such risk, neither is there any reason for the

Congress to have departed from its established policy “favoring

arbitration of labor disputes and accordingly granting arbitration

results substantial finality,” which policy underlies the general

rule in § 7123 barring judicial review of arbitral awards. Id. at

63.

Thus, in OEA we held an order did involve an unfair labor

practice because the Authority had reviewed an arbitrator’s

decision that arbitration was precluded by a previous unfair

labor practice charge. Id. at 71. The Authority did not address

the unfair labor practice on the merits but it did more than
9

simply refer to the finding; it was required “to make a detailed

assessment of the precise nature of a statutory unfair labor

practice charge, and then to compare the substance of that

charge with the substance of the grievance before the arbitrator”

prior to concluding the two claims were identical. Id. at 71.

Here, in contrast, the Authority did not engage at all with

the substance of the unfair labor practice. The Authority

considered only whether the hours charged by the union attorney

were reasonable, taking into account both his experience and the

relatively uncomplicated nature of the case. Because the

Authority’s decision has no bearing upon the law of unfair labor

practices, its order does not “involve[] an unfair labor practice,”

5 U.S.C. § 7123(a)(1), and is not judicially reviewable. 

Contrary to the position the Government took at oral

argument, our decision should not be read to establish a

simplistic rule barring review of an order that deals solely with

a fee award while allowing review of an order in which the

Authority addresses both an unfair labor practice and a fee issue.

In the latter case, the rationale for review of the order would

obtain to the extent, and only to the extent, the unfair labor

practice was involved. 

B. The Leedom Exception

The Union also argues we should exercise jurisdiction

pursuant to Leedom v. Kyne, in which the Supreme Court held

a district court may, in what we have called “exceptional

circumstances,” Council of Prison Locals v. Brewer, 735 F.2d

1497, 1500 (1984), review the decision of an agency even in the

face of a statutory provision that precludes judicial review. 358

U.S. 184. More particularly, the agency’s alleged conduct must

be “contrary to a specific [statutory] prohibition” that is both

“clear and mandatory,” id. at 188, and the party aggrieved must
10

have no other “meaningful and adequate means of vindicating

its statutory rights,” Bd. of Governors, Fed. Reserve Sys. v.

MCorp Fin., Inc., 502 U.S. 32, 43 (1991). 

The Union’s argument from Leedom v. Kyne comes too late.

A dozen years ago we rejected the suggestion that Leedom v.

Kyne authorizes the court of appeals to enforce a clear statutory

prohibition in the first instance. “The Leedom exception,” we

explained, “is premised on the original federal subject matter

jurisdiction of the district courts. Even if Leedom did apply to

the [Authority’s alleged] actions, it would therefore not confer

jurisdiction upon us to hear the case.” U.S. Dep’t of the

Treasury v. FLRA, 43 F.3d 682, 688 n.6 (D.C. Cir. 1994)

(citation omitted).

National Ass’n of Government Employees, Local R5-136 v.

FLRA, No. 03-1230, 2003 U.S. App. LEXIS 25934, at *1-2

(D.C. Cir. Dec. 19, 2003), and American Federation of

Government Employees, Local 2986 v. FLRA, 130 F.3d 450, 451

(D.C. Cir. 1997), are not precedents to the contrary. There we

examined whether the Authority had violated a clear and

mandatory statutory prohibition but we did not consider our

jurisdiction to do so. And, as the Supreme Court has

“repeatedly held[,] ... the existence of unaddressed jurisdictional

defects has no precedential effect.” Lewis v. Casey, 518 U.S.

343, 352 n.2 (1996). Therefore, neither Leedom v. Kyne nor its

progeny support jurisdiction in this court to consider the present

petition.

III. Conclusion

For the foregoing reasons, the petition for review is

 Dismissed.