TABLE OF CONTENTS

FLRA INITIAL BRIEF..............................................................................1

FLRA REPLY BRIEF..............................................................................88
ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED 

No. 22-5308

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 

NATIONAL COUNCIL OF HUD LOCALS COUNCIL 222, 

AFL-CIO,

Appellee,

v.

FEDERAL LABOR RELATIONS AUTHORITY AND SUSAN 

TSUI GRUNDMANN, IN HER OFFICIAL CAPACITY AS 

CHAIRMAN OF THE FEDERAL LABOR RELATIONS 

AUTHORITY,

Appellant.

APPEAL OF DISTRICT COURT DECISIONS

BRIEF FOR APPELLANT 

FEDERAL LABOR RELATIONS AUTHORITY

REBECCA J. OSBORNE

Acting Solicitor

NARIEA K. NELSON

Attorney

Federal Labor Relations Authority 

1400 K Street, N.W. Suite 200

Washington, D.C. 20424

(771) 444-5775

solmail@flra.gov

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CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES

A. Parties

The following parties appeared before the Federal Labor Relations 

Authority (the “FLRA” or “Authority”): the American Federation of 

Government Employees, National Council of HUD Locals Council 222, 

AFL-CIO (the “Union”) and the Department of Housing and Urban 

Development (“HUD”). 

The following parties appeared before the District Court for the 

District of Columbia (“District Court”): the Union; the FLRA; and 

Colleen Duffy Kiko, in her official capacity as a Chairman of the FLRA.

The following parties are in this Court: the Union; the FLRA; and 

Susan Grundmann, in her official capacity as Chairman of the FLRA.

B. Rulings Under Review

The rulings under review in this matter are:

1. The District Court’s order and decision denying the 

Authority’s Motion to Dismiss, American Federation of 

Government Employees, National Council of HUD Locals 

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Council 222, AFL-CIO v. FLRA, No. 19-cv-00998 (D.D.C.) 

ECF Nos. 24 and 25; and 

2. the District Court’s order and decision granting the Union’s 

Motion for Summary Judgment and denying the Authority’s 

Motion for Reconsideration and Cross-Motion for Summary 

Judgment, American Federation of Government Employees, 

National Council of HUD Locals Council 222, AFL-CIO v. 

FLRA, No. 19-cv-00998 (D.D.C.) ECF No. 37.

C. Related Cases

This case is an appeal of orders and decisions rendered by the 

District Court in American Federation of Government Employees, 

National Council of HUD Locals Council 222, AFL-CIO v. FLRA, No. 

19-cv-00998 (D.D.C.). 

Other than the District Court case, this case has not previously 

been before this Court or any other court, nor is the Authority aware of 

any related cases pending before this Court or any other court.

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TABLE OF CONTENTS

CERTIFICATE OF PARTIES, RULINGS, AND RELATED 

CASES .............................................................................................i

A. Parties ....................................................................................i

B. Rulings Under Review ...........................................................i

C. Related Cases ........................................................................ii

TABLE OF CONTENTS ........................................................................iii

TABLE OF AUTHORITIES................................................................... vi

GLOSSARY ...........................................................................................xii

STATEMENT REGARDING JURISDICTION ...................................... 1

RELEVANT STATUTORY PROVISIONS ............................................. 2

STATEMENT OF ISSUES PRESENTED.............................................. 2

STATEMENT OF THE CASE ................................................................ 3

A. Relevant Statutory Background ........................................... 3

B. Procedural History ................................................................ 6

STATEMENT OF THE FACTS ............................................................ 10

A. Background ......................................................................... 10

B. Summaries 9 and 10 ........................................................... 11

C. The Union’s District Court Case......................................... 15

SUMMARY OF THE ARGUMENT ...................................................... 16

STANDARD OF REVIEW..................................................................... 20

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ARGUMENT ......................................................................................... 21

I. The District Court Lacked Jurisdiction to Review the 

Authority’s Decisions ................................................................... 21

A. Section 7123(a) bars all judicial review, including 

Leedom review..................................................................... 21

B. Griffith’s limited “constitutional challenges” exception 

to § 7123(a)’s express preclusion of judicial review does 

not apply.............................................................................. 24

II. The Authority’s Decisions Were Within Its StatutorilyDelegated Powers Under § 7122(a).............................................. 27

A. The Statute grants the Authority broad powers to take 

such actions as the Authority deems necessary................. 29

B. Finding that the underlying grievance concerned 

classification and was not arbitrable was an 

“action...concerning” Summary 10 under § 7122(a)........... 30

C. Vacating Summaries 1-9 was a necessary predicate act 

for the Authority’s permissible action “concerning” 

Summary 10. ....................................................................... 35

III. The Authority’s Decisions Do Not Run Afoul of any Specific 

Affirmative Command in § 7122.................................................. 39

A. The Authority’s decisions are not contrary to a specific 

prohibition in the Statute that is clear and mandatory..... 39

B. “Final” is not clear because it is not clear what effect 

finality has on subsequent proceedings.............................. 41

C. “Binding” is unclear because who is bound is 

ambiguous. .......................................................................... 47

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D. “Final and binding” is not clear or mandatory because 

it is ambiguous what preclusive effect “final and 

binding” status has, and on whom...................................... 49

E. The Statute’s grant of power to take necessary actions 

“concerning the award” under § 7122(a) is not a “clear 

and mandatory” negative prohibition against taking 

actions concerning more than one award. .......................... 53

IV. Any Authority Error was not Sufficiently “Extreme” to 

Constitute a Leedom Violation..................................................... 57

CONCLUSION ...................................................................................... 64

FED. R. APP. P. RULE 32(A) CERTIFICATION................................. 65

CERTIFICATE OF SERVICE............................................................... 65

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TABLE OF AUTHORITIES

Page(s)

Cases

Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

850 F.2d 782 (D.C. Cir. 1988)............................................. 51, 52, 53, 61

Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

778 F.2d 850 (D.C. Cir. 1985)...............................................................38

Am. Fed’n of Gov’t Emps., AFL-CIO, Loc. 446 v. Nicholson,

475 F.3d 341 (D.C. Cir. 2007)...........................................................5, 51

Am. Fed’n of Gov’t Emps., AFL-CIO v. Loy,

367 F.3d 932 (D.C. Cir. 2004)...............................................................18

Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump,

929 F.3d 748 (D.C. Cir. 2019)...............................................................20

Am. Fed’n of Gov’t Emps. Local 3615

54 FLRA 494 (1998)..............................................................................50

Am. Fed’n of Gov’t Emps. Local 3690 v. FLRA,

3 F.4th 384 (D.C. Cir. 2021) ...................................................................5

Am. Fed’n of Gov’t Emps., Nat’l Council of HUD Locs. Council 222,

AFL-CIO v. FLRA,

19-cv-00998, ECF No. 25 (D.D.C. Aug. 23, 2021)...................................1

Am. Fed’n of Gov’t Emps., Nat’l Council of HUD Locs. Council 222, 

AFL-CIO,

19-cv-00998, ECF No. 37 (D.D.C. Sept. 27, 2021)..................................1

Ass’n of Admin. L. Judges v. FLRA,

397 F.3d 957 (D.C. Cir. 2005)...............................................................52

Ass’n of Civilian Technicians, Inc. v. FLRA,

283 F.3d 339 (D.C. Cir. 2002).....................................................5, 22, 23

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Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019)...........................................................................42

Bd. of Governors of Fed. Rsrv. Sys. v. MCorp Fin.,

502 U.S. 32 (1991).................................................................................21

Buffkin v. Dep’t of Def.,

957 F.3d 1327 (Fed. Cir. 2020) .............................................................45

Bureau of Alcohol, Tobacco, and Firearms v. FLRA,

464 U.S. 89 (1983).................................................................................20

City of Arlington, Tex. v. FCC,

569 U.S. 290 (2013)...............................................................................34

Comm’r of Internal Revenue v. Lundy,

516 U.S. 235 (1996)...............................................................................48

Dep’t of Health & Hum. Servs., Soc. Sec. Admin. v. FLRA,

976 F.2d 1409 (D.C. Cir. 1992).............................................................44

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002)...............................................................................49

Fed. Educ. Ass’n v. FLRA,

927 F.3d 514 (D.C. Cir. 2019)...............................................................56

Griffith v. FLRA,

842 F.2d 487 (D.C. Cir. 1988)...............................................6, 22, 25, 26

Hall St. Assocs., L.L.C. v. Mattel, Inc.,

552 U.S. 576 (2008)...............................................................................63

Herrera v. Dep’t of Homeland Sec.,

498 F. App’x 35 (Fed. Cir. 2012)...........................................................45

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Impact Energy Res., LLC v. Salazar,

693 F.3d 1239 (10th Cir. 2012).............................................................43

Jordan Hosp. v. Leavitt,

571 F. Supp. 2d 108 (D.D.C. 2008) ..................................................52,53

Kreis v. Sec’y of Air Force,

866 F.2d 1508 (D.C. Cir. 1989).............................................................29

Lamar, Archer & Cofrin, LLP v. Appling,

138 S. Ct. 1752 (2018).....................................................................31, 32

Leedom v. Kyne,

358 U.S. 184 (1958).................................................................3, 6, 16, 26

Lepre v. Dep’t of Labor,

275 F.3d 59 (D.C. Cir. 2001)...........................................................24, 57

Lopez v. Davis,

531 U.S. 230 (2001)...............................................................................29

Luis v. United States,

136 S. Ct. 1083 (2016)...........................................................................35

Morales v. Soc. Sec. Admin.,

107 M.S.P.R. 360 (2007) .................................................................45, 46

Nat’l Air Traffic Controllers Ass’n AFL-CIO v. FSIP,

437 F.3d 1256 (D.C. Cir. 2006).............................................................57

Nat’l Treasury Emps. Union v. FLRA,

392 F.3d 498 (D.C. Cir. 2004).....................................................4, 42, 61

Nyunt v. Broad. Bd. of Governors,

589 F.3d 445 (2009)...............................................................6, 17, 57, 62

Off. and Prof. Emps. Int’l Union Loc. 2001,

62 FLRA 67 (2007)................................................................................58

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Railway Lab. Execs.’ Ass’n v. Nat’l Mediation Bd.,

29 F.3d 655 (D.C. Cir. 1994)...........................................................53, 54

Shaughnessy v. Pedreiro,

349 U.S. 48 (1955).................................................................................41

Tokyo Kikai Seisakusho, Ltd. v. United States,

529 F.3d 1352 (Fed. Cir. 2008) .............................................................36

U.S. Dep’t of Agric. Food & Consumer Serv. Dall., Tex.,

60 FLRA 978 (2005)........................................................................37, 58

U. S. Dep’t of the Army, Fort Polk, La.,

61 FLRA 8 (2005)..................................................................................58

U.S. Dep’t of Def. Educ. Activity,

70 FLRA 84 (2016)................................................................................56

U.S. Dep’t of Homeland Sec., U.S. Customs & Border Prot., Scobey, 

Mont. v. FLRA,

784 F.3d 821 (D.C. Cir. 2015)...............................................6, 18, 26, 27

U.S. Dep’t of Hous. & Urb. Dev.,

71 FLRA 17 (2019).............................................. 9, 14, 23, 25, 38, 51, 62

U.S. Dep’t of Hous. & Urb. Dev.,

70 FLRA 605 (2018)...........................8, 13, 19, 23, 28, 35, 38, 39, 59, 60

U.S. Dep’t of Hous. & Urb. Dev.,

70 FLRA 38 (2016)............................................................................7, 11

U.S. Dep’t of Hous. & Urb. Dev.,

69 FLRA 213 (2016)..........................................................................7, 11

U.S. Dep’t of Hous. & Urb. Dev.,

69 FLRA 60 (2015)............................................................................7, 11

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U.S. Dep’t of Hous. & Urb. Dev.,

68 FLRA 631 (2015)..........................................................................7, 11

U.S. Dep’t of Hous. & Urb. Dev.,

65 FLRA 433 (2011)..............................................................................10

U.S. Dep’t of Hous. & Urb. Dev.,

59 FLRA 630 (2004)..............................................................................10

U.S. Dep’t of the Interior v. FLRA,

1 F.3d 1059 (10th Cir. 1993)...........................................................62, 63

U.S. Dep’t of the Interior, U.S. Park Police,

67 FLRA 345, 345 (2014) ......................................................................56

U.S. Dep't of Just. v. FLRA,

981 F.2d 1339 (D.C. Cir. 1993).............................................................21

U.S. Dep’t of Treasury, U.S. Customs Service 

43 F.3d 682 (D.C. Cir. 1994).....................................................22, 25, 61

U.S. Dep’t of Veterans Affs., Veterans Affs. Med. Ctr., Asheville N.C.,

57 FLRA 681 (2002)..............................................................................61

Woodruff v. Peters,

482 F.3d 521 (D.C. Cir. 2007)...............................................................20

Statutes

5 U.S.C. §§ 7101-7135 (2018) ................................................................2, 3

5 U.S.C. § 7101(b)........................................................................52, 53, 62

5 U.S.C. § 7116(a)(8)........................................................................3, 4, 61

5 U.S.C. § 7121 .......................................... 3, 18, 29, 35, 44, 45, 48, 49, 57

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5 U.S.C. § 7122.. 2, 3, 4, 5, 8, 12, 17, 19, 21, 23, 27, 28, 29, 30, 32, 33, 34, 

35, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 53, 55, 56, 60, 

63

5 U.S.C. § 7123 ........... 2, 5, 6, 15, 17, 18, 21, 22, 23, 24, 25, 26, 27, 41, 45

28 U.S.C. § 1291 ........................................................................................2

Rules

Fed. R. App. P. 4........................................................................................2

Fed. R. App. P. 32(a)................................................................................65

Fed. R. Civ. P. 12(b)(6) ............................................................................15

Other Authorities

H.R. Rep. No. 95-1717, at 153, 1978 U.S.C.C.A.N. 2860..................18, 23

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GLOSSARY

Agency U.S. Department of Housing and Urban 

Development

Arbitrator Andrée McKissick

Authority The Federal Labor Relations Authority

CBA Collective Bargaining Agreement

FLRA The Federal Labor Relations Authority

HUD U.S. Department of Housing and Urban 

Development

JA Joint Appendix

Statute The Federal Service Labor-Management 

Relations Statute, 5 U.S.C. §§ 7101-7135 (2018)

ULP Unfair labor practice

Union Appellee, American Federation of Government 

Employees, National Council of HUD Locals, 

Council 222, AFL-CIO 

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STATEMENT REGARDING JURISDICTION

The Federal Labor Relations Authority (the “FLRA” or 

“Authority”) is a federal government agency that adjudicates disputes 

between federal government agencies and their exclusive 

representatives. The FLRA appeals the District Court of the District of 

Columbia’s (“District Court”) order and decision denying the Authority’s 

Motion to Dismiss in American Federation of Government Employees, 

National Council of HUD Locals Council 222, AFL-CIO v. FLRA, No. 

19-cv-00998, ECF Nos. 24 and 25 (D.D.C. Aug. 23, 2021) (slip op.) (JA 

536-50). The FLRA also appeals the District Court’s order and decision 

granting the American Federation of Government Employees, National 

Council of HUD Locals Council 222’s (“Union”) Motion for Summary 

Judgment and denying the Authority’s Motion for Reconsideration and 

Cross-Motion for Summary Judgment in American Federation of 

Government Employees, National Council of HUD Locals Council 222, 

AFL-CIO v. FLRA, No. 19-cv-00998, ECF No. 37 (D.D.C. Sept. 27, 2022)

(slip op.) (JA 823-39). That order and decision was final.

In accordance with Rule 4 of the Federal Rules of Appellate 

Procedure, the Authority timely filed the instant appeal on November 

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22, 2022. Fed. R. App. P. 4. This Court has jurisdiction over the 

Authority’s appeal of the District Court’s decision. 28 U.S.C. § 1291.

RELEVANT STATUTORY PROVISIONS

All relevant statutory and regulatory provisions are in the 

attached Statutory Addendum. (Add.)

STATEMENT OF ISSUES PRESENTED

1. Whether the District Court erred when it found it had 

jurisdiction to review two Authority decisions concerning 

arbitration awards even though § 7123(a)(1) of the Federal 

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

§§ 7101-7135 (2018) (the “Statute”) precludes judicial review 

of such awards.

2. Whether the District Court erred in finding the preclusion of 

§ 7123(a)(1) is implied rather than express even though that 

section provides that only awards “other than an order 

under... § 7122 of this title (involving an award by an 

arbitrator)” may be appealed to a U.S. court of appeals.

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3. Whether the District Court erred in finding the Authority 

acted in a manner that was contrary to a specific prohibition 

of the Statute that was clear and mandatory.

4. Whether the District Court erred in finding any alleged 

Authority error was sufficiently extreme to warrant 

jurisdiction under Leedom v. Kyne, 358 U.S. 184 (1958). 

STATEMENT OF THE CASE

A. Relevant Statutory Background

The Statute provides a framework for regulating labormanagement relations in the federal government. 5 U.S.C. §§ 7101-7135 

(2018). The Statute sets forth requirements for collective bargaining 

between agencies and unions. Id. §§ 7114 (a)(1); 7116; 7103(a)(8); 

7103(a)(12). One such requirement is that every collective bargaining 

agreement (“CBA”) must contain a negotiated grievance procedure. Id. 

§ 7121(a)(1). Some issues, such as any “classification of any position,” 

are not grievable as a jurisdictional matter. Id. § 7121(c)(5). 

Grievances are “subject to binding arbitration.” Id. 

§ 7121(b)(1)(C)(iii). After an arbitrator issues an award, either party 

may file exceptions to the award with the Authority. Id. § 7122(a). The 

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Authority then reviews the award to determine if it is deficient “because 

it is contrary to any law, rule, or regulation,” or on other grounds. Id. 

§ 7122(a)(1). If the Authority finds the award is deficient, the Authority 

“may take such action...concerning the award as it considers necessary, 

consistent with applicable laws, rules, or regulations.” Id. The Statute 

does not otherwise expressly circumscribe the actions the Authority may 

take concerning an award. Id. Nor does the Statute define “concerning.” 

Id.

If no exception to an arbitrator’s award is filed, “the award shall 

be final and binding.” Id. § 7122(b). The Statute does not define “final” 

or “binding,” nor does it specify what, if any, preclusive effect a “final 

and binding” award has on the parties, the arbitrator, the Authority, or 

federal courts. Id. To be sure, finality determines when an agency 

must begin complying with the award—because it is an unfair labor 

practice (“ULP”) for an agency to fail to comply with an arbitrator’s 

final award. See Nat’l Treasury Emps. Union v. FLRA (“NTEU 2004”), 

392 F.3d 498, 499 (D.C. Cir. 2004); 5 U.S.C. § 7116(a)(8). However, 

even if an agency does not file any exceptions to an arbitrator’s final 

award, it may collaterally challenge the award on jurisdictional grounds 

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when defending itself in an ULP proceeding. Am. Fed’n of Gov’t Emps., 

AFL-CIO, Loc. 446 v. Nicholson (“Nicholson”), 475 F.3d 341, 352 (D.C. 

Cir. 2007) (“[T]his court has similarly approved the FLRA’s authority to 

review the arbitrability of a dispute when challenged in an ULP”). The 

Authority may thus decline to enforce even “final and binding” 

arbitration awards on collateral review. See id. 

The Statute expressly bars judicial review of Authority decisions 

“under § 7122 of this title (involving an award by an arbitrator), unless 

the order involves an ULP.” 5 U.S.C. § 7123(a)(1). This Court has 

repeatedly recognized that Authority decisions involving review of 

arbitrators’ awards are expressly not subject to judicial review. See Am. 

Fed’n of Gov’t Emps. Local 3690 v. FLRA, 3 F.4th 384, 386 (D.C. Cir. 

2021). The Statute expressly limits judicial review to U.S. courts of 

appeals even where a plaintiff seeks “judicial review” of an order not 

involving an arbitrator’s award. 5 U.S.C. § 7123(a).

Section 7123(a)’s express limitations on judicial review also 

preclude judicial review in the U.S. district courts. Ass’n of Civilian 

Technicians, Inc. v. FLRA (“ACT 2002”), 283 F.3d 339, 341-42 (D.C. Cir. 

2002). The one exception to § 7123(a)’s express preclusion of judicial 

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review in district courts is the exception for constitutional challenges 

created by this Court in Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988). 

See U.S. Dep’t of Homeland Sec., U.S. Customs & Border Prot., Scobey, 

Mont. v. FLRA (“Scobey”), 784 F.3d 821, 823 (D.C. Cir. 2015). Nonconstitutional Leedom claims against the Authority are subject to 

§ 7123(a)’s jurisdictional bar. See Griffith, 842 F.2d at 501. 

Under Leedom, courts may review agency decisions made in 

excess of the agency’s delegated powers and contrary to a specific, clear, 

and mandatory statutory provision. See Leedom, 358 U.S. at 188. In 

order to succeed on a Leedom claim, a plaintiff must demonstrate that 

(1) “the statutory preclusion of review is implied rather than express,” 

(2) “there is no alternative procedure for review of the statutory claim,” 

and (3) “the agency clearly acts in excess of its delegated powers and 

contrary to a specific prohibition in the statute that is clear and 

mandatory.” Nyunt v. Broad. Bd. of Governors, 589 F.3d 445, 449 

(2009) (citations omitted). 

B. Procedural History

This dispute arose from a Union grievance alleging the U.S. 

Department of Housing and Urban Development (“HUD”) violated the 

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CBA. (JA 150-53.) The Union alleged that HUD posted vacancies for 

certain positions with a non-competitive promotion potential to the GS13 pay grade without offering the positions to Union members. (JA 150-

53). Following an initial arbitration award, the Union, HUD, and the 

Arbitrator met on multiple occasions to discuss implementation of the 

award. In total, the Arbitrator held ten implementation meetings with 

the Union and HUD and issued separate summaries after each meeting. 

(JA 52-115.) 

HUD filed exceptions to Summaries 3 and 6 contending the 

Arbitrator had exceeded her authority modifying the awards. The 

Authority dismissed HUD’s exceptions to Summaries 3 and 6, inter alia, 

as untimely and denied HUD’s requests for reconsideration. U.S. Dep’t 

of Hous. & Urb. Dev. (“HUD IV”), 68 FLRA 631, 634-35 (2015); U.S. 

Dep’t of Hous. & Urb. Dev. (“HUD V”), 69 FLRA 60, 634-35 (2015); U.S. 

Dep’t of Hous. & Urb. Dev. (“HUD VI”), 69 FLRA 213, 221-22 (2016); 

U.S. Dep’t of Hous. & Urb. Dev. (“HUD VII”), 70 FLRA 38, 38-39 (2016).

Subsequently, the Arbitrator issued Summary 10, which stated 

that “given the current posture of the case, there is a need for a formal 

evidentiary hearing so that this Arbitrator can ascertain the status of 

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implementation.” (JA 117-18.) HUD timely filed exceptions to 

Summary 10 under § 7122(a), contending, inter alia, that Summary 10 

was contrary to law and improperly modified the second merits award, 

which originally “made no mention of a formal hearing on the record 

with testimony from Agency officials compelled by subpoenas.” (JA 8-

51.) 

The Authority issued a decision in HUD VIII vacating the 

Arbitrator’s previous awards and Summaries 1-10, as well as its own 

decisions in HUD I through HUD VII. U.S. Dep’t of Hous. & Urb. Dev. 

(“HUD VIII”), 70 FLRA 605 (2018). The Authority found that “[a]t all 

times . . . the essential nature of this grievance–as demonstrated by the 

requested remedy–concerned classification . . . Therefore, the Authority 

should have declared this grievance to be non-arbitrable from the 

outset.” Id. at 608. The Authority noted the Arbitrator’s lack of 

jurisdiction over Summary 10 necessarily meant she also lacked 

jurisdiction over Summaries 1-9, all of which concerned the same 

underlying grievance. Id. Therefore, all previous awards were ultra 

vires. Id. 

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The Union filed for reconsideration of HUD VIII, which the 

Authority denied in HUD IX. U.S. Dep’t of Hous. & Urb. Dev. (“HUD 

IX”), 71 FLRA 17 (2019). 

Thereafter, the Union filed a complaint with the District Court 

asserting the Authority’s decisions in HUD VIII and HUD IX were ultra 

vires under Leedom, and violated the Administrative Procedure Act 

(“APA”). (JA 375-92.) The Authority moved to dismiss the complaint. 

The District Court dismissed all of the Union’s claims other than 

its Leedom claim. (JA 556.) On the Leedom claim, the District Court 

found that preclusion of judicial review under the Statute was implied 

rather than express, which allowed the District Court to exercise 

jurisdiction over the case. (JA 546-48.) Subsequently, the District 

Court granted the Union’s Motion for Summary Judgment and denied 

the Authority’s Motion for Reconsideration and Cross-Motion for 

Summary Judgment. (JA 822.)

The Authority now appeals the District Court’s orders and 

decisions.

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STATEMENT OF THE FACTS

A. Background

The Union is the exclusive representative of certain HUD 

employees. (JA 150.) In 2002, HUD advertised vacancies for various 

positions, all with maximum noncompetitive promotion potential to the 

GS-13 pay grade. (JA 150.) The Union filed a grievance alleging HUD 

violated the CBA by posting the positions without offering similar 

advancement opportunities to Union members already working in the 

same positions without noncompetitive promotion potential beyond a 

GS-12 pay grade. (JA 150-53.) 

The Union and HUD began arbitration to resolve the grievance. 

The Arbitrator found that the subject matter of the grievance was 

arbitrable and did not involve a classification issue, which HUD 

disputed in exceptions to the Authority. (JA 125.) In HUD I and HUD 

II, the Authority remanded two arbitrability awards and a first merits 

award to the Arbitrator for clarification and formulation of a remedy 

that did not concern classification. U.S. Dep’t of Hous. & Urb. Dev. 

(“HUD I”), 59 FLRA 630 (2004); U.S. Dep’t of Hous. & Urb. Dev. (“HUD 

II”), 65 FLRA 433 (2011). 

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Over the next two years, the Arbitrator held ten implementation 

meetings with the Union and HUD and issued a written summary of 

each meeting. (JA 52-119.) The Arbitrator stated that she would 

maintain jurisdiction over the award and matters relating to 

jurisdiction over the award in Summaries 1-10. (JA 52-119.) Although 

each summary provided that “[n]othing discussed or stated at the 

meeting should be construed as a new requirement or modification of 

the existing award,” (JA 53, 62, 67, 70, 74, 91, 97, 108, 114, and 119), 

HUD contended in various exceptions that the Arbitrator exceeded her 

authority by modifying the award in Summaries 3 and 6. The 

Authority dismissed HUD’s exceptions to Summaries 3 and 6 in HUD 

IV through HUD VII. HUD IV, 68 FLRA at 631; HUD V, 69 FLRA at 

60; HUD VI, 69 FLRA at 213; HUD VII, 70 FLRA at 38.

B. Summaries 9 and 10

The Arbitrator continued to hold implementation meetings with 

the Union and HUD while HUD’s exceptions were pending before the 

Authority. (JA 109-19.) In Summary 9, the Arbitrator noted that HUD 

had not disclosed whether it requested funding for the Award, and 

ordered HUD to respond to the Union’s requests for funding data within 

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fourteen days. (JA 111.) The Arbitrator also ordered HUD to fully 

comply with Summaries 3, 5, and 6 pursuant to HUD VI and HUD VII. 

(JA 112.) The Arbitrator advised that HUD “should expect to discuss 

that implementation at the next [meeting]” and “shall work 

cooperatively with the Union and with...this Arbitrator” to do so. (JA 

112.) Summary 9 further provided that the Arbitrator and parties 

agreed “to conduct a formal hearing on the record, with testimony, if 

necessary,” regarding “all outstanding matters.” (JA 112.) HUD did 

not file any exceptions to Summary 9. 

In Summary 10, the Arbitrator stated that “given the current 

posture of the case, there is a need for a formal evidentiary hearing so 

this Arbitrator can ascertain the status of implementation.” (JA 117-

18.) HUD timely filed exceptions to Summary 10 under § 7122(a), 

contending, inter alia, that Summary 10 was contrary to law and 

improperly modified the second merits award, which originally “made 

no mention of a formal hearing on the record with testimony from 

Agency officials compelled by subpoenas.” (JA 25.) 

The Authority issued a decision in HUD VIII vacating the 

Arbitrator’s previous awards and Summaries 1 through 10, as well as 

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13

its own prior decisions in HUD I through HUD VII (collectively, 

“Summaries 1-10”). HUD VIII, 70 FLRA at 605. It did so on the ground 

that the grievances were non-arbitrable.

The Authority found that “[a]t all times . . . the essential nature of 

this grievance—as demonstrated by the requested remedy–concerned 

classification.” Id. at 608. “Therefore, the Authority should have 

declared this grievance to be non-arbitrable from the outset.” Id. The 

Authority found that because it had failed to find the grievance nonarbitrable, “the Arbitrator granted herself continual and indefinite 

jurisdiction with which she slightly changed the award at every 

implementation meeting, leaving the Agency unable to ever fully 

comply.” Id. The Authority noted that the Arbitrator’s lack of 

jurisdiction over Summary 10 necessarily meant that she also lacked 

jurisdiction over Summaries 1-9, all of which concerned the same 

underlying grievance. Id. As the Authority had concluded that the 

Arbitrator had always lacked jurisdiction over the underlying 

grievances, the Authority set aside the Arbitrator’s previous awards as 

well as the Authority’s decisions resolving exceptions to those awards. 

Id.

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The Union filed for reconsideration of HUD VIII, which the 

Authority denied in HUD IX. 71 FLRA at 17. In its request for 

reconsideration, the Union argued HUD IX was ultra vires because it 

vacated “final and binding” arbitration awards. Id. 19-20. It also 

argued that the decision deprived the Union of a property interest 

without due process. Id. at 19-20. In HUD IX, the Authority agreed 

that “the prior arbitration awards and written summaries, with the 

exclusion of the tenth written summary, were final and binding.” Id. at 

18. However, the Authority found that it “may consider jurisdictional 

questions even where the merits of an underlying final and binding 

award are not at issue.” Id. The Authority also determined that 

because it would have the ability to decline to enforce Summaries 1-9 

upon collateral review of an ULP, “[i]t would be unreasonable, as well 

as inefficient and ineffective” to wait to do so instead of “address[ing] 

that question directly now on exceptions.” Id. The Authority also held 

that the Union failed to establish a substantive due process violation 

because it had no legitimate property interest in the prior awards. Id. 

at 19.

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C. The Union’s District Court Case 

The Union filed a complaint in District Court asserting the 

Authority’s decisions in HUD VIII and HUD IX were ultra vires under 

Leedom and violated the APA. (JA 375-92.) The Authority filed a 

Motion to Dismiss the complaint for lack of subject matter jurisdiction. 

(JA 394-426.) The District Court dismissed the Union’s APA claims 

under Federal Rule of Civil Procedure 12(b)(6), finding that the APA 

applies “except to the extent that . . . statutes preclude judicial review,” 

and that § 7123(a) precluded judicial review of the Authority’s decisions 

in HUD VIII and HUD IX. (JA 544-45.) The District Court 

acknowledged in its decision that “the Authority’s delegated remedial 

powers extend to ‘the Award’ before it” and explicitly did not review the 

Authority’s decision to vacate Summary 10 on the ground that the 

Arbitrator lacked jurisdiction. (JA 555.) However, the District Court 

determined that to the extent § 7123 limits district court review over 

Authority orders, it does so by implication, satisfying the first 

requirement of Leedom. (JA 546-48.) The District Court then found 

that to the extent the Authority’s decisions vacated final and binding 

awards that were not before it on exceptions in HUD VIII and HUD IX, 

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that decision was ultra vires and was therefore reviewable by the 

District Court under Leedom. (JA 555-56.) 

After the District Court’s initial decision, the Union filed a Motion 

for Summary Judgment. (JA 630-59.) The Authority filed a Motion for 

Reconsideration and Cross-Motion for Summary Judgment. (JA 557-

613.) The District Court granted the Union’s Motion for Summary 

Judgment and denied the Authority’s Motion for Reconsideration and 

Cross-Motion for Summary Judgment. (JA 822.) The District Court 

found the Authority exceeded its delegated powers when it vacated the 

arbitration awards that were not before it on exceptions in HUD VIII

and HUD IX. (JA 838.)

SUMMARY OF THE ARGUMENT

This Court should reverse the District Court’s finding that the 

Authority acted in excess of its delegated powers by vacating 

Summaries 1-9 and the prior arbitrator’s awards.

District courts may review agency decisions made in excess of the 

agency’s delegated powers and contrary to a specific, clear, and 

mandatory statutory provision. Leedom, 358 U.S. at 188. In order to 

succeed on a Leedom claim, a plaintiff must demonstrate that (1) “the 

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statutory preclusion of review is implied rather than express,” (2) “there 

is no alternative procedure for review of the statutory claim,”1 and (3) 

“the agency clearly acts in excess of its delegated powers and contrary 

to a specific prohibition in the statute that is clear and mandatory.” 

Nyunt, 589 F.3d at 449. The Union failed to satisfy two of these 

elements.

First, contrary to the District Court’s finding, § 7123(a)’s bar on 

judicial review is express, not implied. Section 7123, the only provision 

of the Statute that creates federal court jurisdiction, provides in 

relevant part: 

Any person aggrieved by any final order of the 

Authority other than an order under . . . section 

7122 of this title (involving an award by an 

arbitrator) . . . may . . . institute an action for 

judicial review of the Authority’s order . . . .

5 U.S.C. § 7123(a). The legislative history of § 7123(a) underscores the 

tight restrictions Congress placed on review of Authority decisions 

involving an award by an arbitrator. The conferees discussed judicial 

review in the following terms: “[T]here will be no judicial review of the 

1 There is no dispute that the Union has exhausted its administrative 

remedies.

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Authority’s action on those arbitrators[’] awards in grievance cases 

which are appealable to the Authority.” H.R. Rep. No. 95-1717, at 153 

(1978), as reprinted in 1978 U.S.C.C.A.N. 2860, 2887.

Interpreting the text of the Statute and its legislative history, this 

Court has concluded that § 7123(a) bars judicial review of Authority 

decisions concerning arbitration awards. See Scobey, 784 F.3d at 823-

24. This Court has specifically found the jurisdictional bar applies not 

only to courts of appeals, but also to district courts—even when the bar 

would deprive parties of any judicial review of Authority decisions. See 

Am. Fed’n of Gov’t Emps., AFL-CIO v. Loy, 367 F.3d 932, 935 (D.C. Cir. 

2004) (finding that if an FLRA order falls within § 7123(a)’s exceptions 

to review in the court of appeals, “this does not mean the district courts 

are open . . . . [i]t means that review is precluded in any court.”)

Because there is clear and convincing evidence the Statute’s bar 

on judicial review of Authority decisions concerning arbitrator’s awards

is express, and not merely implied, this Court should reverse the 

District Court’s finding that it had jurisdiction in this matter.

Second, the Authority’s decisions comport with all “clear and 

mandatory” provisions of the Statute. Section 7121(c)(5) explicitly 

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provides that matters concerning “the classification of any position” 

may not be grieved. In this provision, Congress, “clearly expressed [its] 

intent to bar grievances over such matters.” Next, § 7122(a) broadly 

provides that the Authority may take such action “concerning the award 

as it considers necessary.” 5 U.S.C. § 7122(a). Because the underlying 

grievance concerned classification, the Authority reasonably set aside 

the prior awards and Summaries 1-10 in HUD VIII. 70 FLRA at 605. 

Moreover, although § 7122(b) provides that an arbitration award 

becomes final and binding when no exceptions are filed, the Statute 

does not define final and binding, and the provision is not a specific, 

clear, and mandatory statutory command applicable to the Authority. 

Id. § 7122(b).

The Authority properly determined the underlying award 

concerned classification. HUD XIII, 70 FLRA at 605. As classification 

matters cannot be grieved, the Authority properly set aside the prior 

awards and Summaries 1-10 as contrary to law. Although the District 

Court took issue with the timing of the Authority’s decision to vacate 

the prior awards and Summaries 1-9, the Authority’s actions were 

reasonable because allowing the prior awards and Summaries 1-9 to 

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stand while vacating Summary 10 would be inefficient and would lead 

to the same conclusion since the prior awards and Summaries 1-10 all 

stem from the same underlying grievance concerning classification. 

Accordingly, the Authority’s actions concerning the prior awards and 

Summaries 1-9 were not erroneous, and even if they were, the error was 

not sufficiently “extreme” as to constitute a Leedom violation.

Based on the foregoing, this Court should reverse and vacate the 

District Court’s decisions and orders.

STANDARD OF REVIEW

This Court reviews the District Court’s legal conclusions 

regarding subject matter jurisdiction, including a denial of a motion to 

dismiss, de novo. See Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, 929 

F.3d 748, 754 (D.C. Cir. 2019). This Court reviews the District Court’s 

grant of summary judgment de novo as well. See Woodruff v. Peters, 482 

F.3d 521, 526 (D.C. Cir. 2007). However, to the extent that this Court 

finds it necessary to construe and apply provisions of the Statute, this 

Court must defer to the Authority’s interpretation of those 

provisions. E.g., Bureau of Alcohol, Tobacco, and Firearms v. 

FLRA, 464 U.S. 89, 97 (1983).

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ARGUMENT

I. The District Court Lacked Jurisdiction to Review the 

Authority’s Decisions

A. Section 7123(a) bars all judicial review, including 

Leedom review.

The District Court erred when it determined it had jurisdiction to 

review the Authority’s decisions in HUD VIII and HUD IX. 

The Supreme Court has held that a statute’s preclusion of judicial 

review is express for Leedom purposes when there is “clear and 

convincing evidence” of legislative intent to restrict judicial review. Bd. 

of Governors of Fed. Rsrv. Sys. v. MCorp Fin. (“MCorp”), 502 U.S. 32, 44 

(1991).2 The Statute expressly precludes “judicial review” of “an order 

under section § 7122 of this title (involving an award by an arbitrator), 

unless the order involves an [ULP].” 5 U.S.C. § 7123(a)(1). This Court 

2 The District Court found that MCorp was irrelevant, as the statute at 

issue in that case, which states “no court shall have jurisdiction to affect 

by injunction or otherwise the issuance or enforcement of any [Board] 

notice or order under this section,” contained express language that is 

lacking in the instant case. (JA 835.) However, a statute can be less 

explicit than the one examined in MCorp while still being sufficiently 

express to preclude judicial review for Leedom purposes. See U.S. Dep't 

of Just. v. FLRA, 981 F.2d 1339, 1342 (D.C. Cir. 1993) (“Not 

surprisingly, the courts have applied section 7123(a)(1) as written, i.e., 

to preclude judicial review of an FLRA decision concerning an arbitral 

award”).

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has found that “the specific language of § 7123, the structure of the 

[Statute’s] arbitration and review provisions, and the relevant 

legislative history all provide clear and convincing evidence that 

Congress intended to cut off judicial review of FLRA decisions regarding 

arbitral awards.” Griffith, 842 F.2d at 492 (emphasis added). Section 

7123(a)(1)’s bar on judicial review of Authority arbitration decisions is 

thus “express” for Leedom purposes. See U.S. Dep’t of Treasury, U.S. 

Customs Service (“Customs Service”), 43 F.3d 682, 688 (D.C. Cir. 1994). 

Importantly, the Statute’s bar on “judicial review” in § 7123 

expressly precludes all “judicial review,” be it in district court or circuit 

court. See ACT 2002, 283 F.3d at 341-42. ACT 2002 found that it was 

“manifestly the expressed desire of Congress to create an exclusive 

statutory scheme” with § 7123, and that “[a]t no point does the [Statute] 

entitle a party to petition a district court for relief.” Id. at 342. ACT 

2002 thus found in § 7123(a)(1) “‘clear and convincing evidence’ of 

Congressional intent to preclude judicial review”—be it in district court 

or circuit court. Id. at 342. 

Legislative history underscores the clarity of Congress’s intent to 

preclude all “judicial review.” The Conference Report regarding § 7123 

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states, “there will be no judicial review of the Authority’s action on those 

arbitrators[’] awards in grievance cases which are appealable to the 

Authority.” H.R. Conf. Rep. No. 95-1717, at 153 (1978), as reprinted in 

1978 U.S.C.C.A.N. 2860, 2887 (emphasis added). As this Court noted, 

“[t]he Report does not say that there will be ‘no circuit court review’; it 

says there will be ‘no judicial review.’” ACT 2002, 283 F.3d at 342 

(emphasis added).

Indeed, § 7123(a) expressly precludes all “judicial review” of 

Authority arbitration decisions; it uses the term “judicial review” not 

“circuit court review.” The Authority’s decisions in HUD VIII and HUD 

IX are final orders under § 7122 involving an award by an arbitrator 

and do not involve any ULP proceeding. See HUD VIII, 70 FLRA at 

605; HUD IX, 71 FLRA at 17. Thus, what this Court has recognized as 

“clear and convincing evidence of Congressional intent to preclude 

judicial review” bars the Union’s Leedom claim. ACT 2002, 283 F.3d at 

342. 

And it is undisputed that the Authority’s decisions in HUD VIII

and HUD IX involved arbitration awards. As noted above, this Court 

has found that § 7123(a)(1) expressly precludes all judicial review of 

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Authority decisions concerning arbitration awards. However, the 

District Court determined the Statute’s preclusion of judicial review is 

“implied rather than express,” (JA 548), which was required for the 

Union to succeed on its claim that the Authority’s actions were ultra 

vires under Leedom. Lepre v. Dep’t of Labor, 275 F.3d 59, 72 (D.C. Cir. 

2001). Because this Court has previously determined that § 7123 

expressly precludes all judicial review of Authority decisions involving 

arbitration awards, the District Court erred when it determined the 

Statute’s preclusion of judicial review was implied. Accordingly, this 

Court should overturn the District Court’s determination that 

preclusion of judicial review under the Statute was implied rather than 

express and that Leedom review was appropriate. 

B. Griffith’s limited “constitutional challenges” 

exception to § 7123(a)’s express preclusion of judicial 

review does not apply. 

The District Court cited Griffith for the proposition that “Congress 

did not explicitly deny district courts the power to review [Authority] 

decisions.” (JA 547-48.) However, that proposition is limited to 

Authority decisions involving a constitutional question. Indeed, Griffith

ultimately held that “Congress in § 7123 precluded review of appellant’s 

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non-constitutional claims regarding the Authority’s decision,” and “the 

district court correctly concluded that it was without jurisdiction to 

review the appellant’s non-constitutional claims.” Griffith, 842 F.2d at 

494, 501. This Court further clarified Griffith’s holding in Customs 

Service, finding that “[t]he Leedom exception is premised on the original 

federal subject matter jurisdiction of the district courts,” and that “a 

claim that the arbitration or FLRA procedures were unconstitutional 

would have to be brought as a collateral challenge in the district court, 

as was the case in Griffith. The appellate and district courts, then, each 

have distinct, limited, and exclusive jurisdiction based on the nature of 

the claim.” Customs Service, 43 F.3d at 688-89, nn.6, 9. However, the 

Union did not raise any constitutional claims in its District Court 

complaint.3 (JA 375-92.) Thus neither the District Court nor this Court 

has jurisdiction over this case based on Griffith. 

Moreover, to the extent that Griffith’s dicta that § 7123(a) “leaves 

the door ajar for review of clear violations of statutory authority under 

3 In its request for reconsideration of HUD VIII, the Union alleged the 

Authority’s decision deprived grievants of a property interest without 

substantive due process, which the Authority rejected in HUD IX. HUD 

IX, 71 FLRA at 19-20. The Union, however, did not raise that claim in 

its District Court complaint. (JA 375-92.)

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Leedom” could also be read to imply an exception to § 7123(a)’s 

jurisdictional bar for non-constitutional claims, Scobey abrogated that 

exception. In Griffith, the plaintiff alleged a Leedom violation arising 

from the Authority’s interpretation of the Back Pay Act. In that case, 

this Court’s Leedom analysis turned on whether the Authority had 

violated a “clear and mandatory” provision of the Back Pay Act. 

Griffith, 842 F.2d at 493. In Scobey, this Court again considered a 

party’s challenge to an Authority decision that reviewed arbitral awards 

interpreting the Back Pay Act. 784 F.3d at 823. Contrary to Griffith’s 

dicta that § 7123(a) “leaves the door ajar for review of clear violations of 

statutory authority under Leedom,” Scobey found that “what Congress 

intended” was that “there could be no review over the Authority’s 

interpretation of the Back Pay Act no matter how extreme that 

application was and no matter how gigantic the liability imposed.” 

Compare Griffith, 842 F.2d at 490, with Scobey, 784 F.3d at 823-24 

(emphasis added).4 In so doing, this Court firmly established that the 

4 The District Court notes that Scobey does not specifically mention 

Leedom v. Kyne, 358 U.S. 184. (JA 835.) However, Leedom is implied 

when this Court reviewed whether “the Authority exceeded its 

jurisdiction” in the interpretation of the Back Pay Act. Scobey, 784 F.3d 

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only exceptions to § 7123(a)’s bar on judicial review remaining under 

Griffith are “constitutional challenges”—challenges that the Union has 

not raised. That narrow exception to § 7123(a)’s express bar on judicial 

review thus does not apply here. As § 7123(a)’s preclusion of judicial 

review is express and not implied and the instant case does not raise 

any constitutional challenges within the limited exception outlined in 

Griffith, the Union’s Leedom claim must fail. 

II. The Authority’s Decisions Were Within Its StatutorilyDelegated Powers Under § 7122(a)

The District Court erred in finding that the Authority acted in a 

manner that was contrary to a specific prohibition of the Statute that 

was clear and mandatory. (JA 548-56.) The District Court’s decisions 

were based on the conclusion that an action can concern only one 

award, the award immediately before the Authority on § 7122(a) review. 

(JA 552.) But a single action by the Authority may concern multiple 

at 823. Because Scobey did not involve a constitutional issue and this 

Court determined it could not review the Authority’s interpretation of 

the Back Pay Act, it logically follows that the only exception to the 

express preclusion of judicial review is when a constitutional matter is 

raised.

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awards at once, particularly where, as here, the awards stem from a 

series of evolving and interrelated decisions. 

In HUD VIII, the Authority took two “actions” concerning 

Summary 10 that it considered necessary and appropriate: (1) it 

determined the underlying grievance was not arbitrable because it was 

about classification; and (2) it vacated the Arbitrator’s prior awards and 

Summaries 1 through 10, as well as its own decisions in HUD I through 

HUD VII. HUD VIII, 70 FLRA at 608. Both actions “concern[ed]” 

Summary 10 and resolved HUD’s exceptions to Summary 10, and both 

were actions that the Authority considered “necessary.” 5 U.S.C. 

§ 7122(a). Therefore, the Authority’s decisions in HUD VIII and HUD 

IX were within its statutorily-delegated powers in accordance with 

§ 7122(a). Additionally, the Authority’s decision to vacate Summaries 

1-9 was a necessary predicate act of its decision to vacate Summary 10. 

For these reasons, the Authority’s decisions were actions “concerning” 

the award properly before it under § 7122(a), and the Union’s Leedom

claim must fail. 

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A. The Statute grants the Authority broad powers to 

take such actions as the Authority deems necessary.

The Statute affirmatively delegated power to the Authority to 

render its decisions in HUD VIII and HUD IX in multiple provisions. 

As a jurisdictional matter, § 7121(c)(5) provides that “the classification 

of any position” is not arbitrable under the Statute. Section 

7105(a)(2)(H) grants the Authority power to “resolve exceptions to 

arbitrator’s awards under section 7122.” If the Authority finds the 

award is deficient, “the Authority may take such action . . . concerning 

the award as it considers necessary.” Id. § 7122(a).

Section 7122(a)’s language that “the Authority may take such 

action . . . concerning the award as it considers necessary” grants the 

Authority broad discretionary power. “May take” is discretionary and 

permissive. See Lopez v. Davis, 531 U.S. 230, 241 (2001) (“Congress’ 

use of the permissive may . . . contrasts with the use of a mandatory 

shall” (internal quotation omitted)). Likewise, “as [the Authority] 

considers necessary” is a phrase that “fairly exudes deference” to the 

Authority, and “does substantially restrict the authority of the 

reviewing court.” See Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514 

(D.C. Cir. 1989). In Kreis, the D.C. Circuit interpreted a statutory 

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provision stating that the Secretary of the Air Force “may correct any 

military record of that department when he considers it necessary” as 

distinctly discretionary, in contrast to “when such action is necessary.” 

Id. at 1513. This Court found in Kreis that “[t]he statutory provisions 

at issue here draw a similar distinction between the objective existence 

of certain conditions and the Secretary’s determination that such 

conditions are present,” which warranted “an unusually deferential” 

review. Id. at 1514. Here, as in Lopez and Kreis, § 7122(a) provides 

that “the Authority may take such action . . . concerning the award as it 

considers necessary.” Far from being a “clear and mandatory 

prohibition” against the Authority taking certain actions, this expansive 

language grants the Authority broad discretion to take actions like 

those at issue here. 

B. Finding that the underlying grievance concerned 

classification and was not arbitrable was an “action . . 

. concerning” Summary 10 under § 7122(a).

The Authority undisputedly had the power under § 7122(a) to find 

that the underlying grievance was not arbitrable in Summary 10, the 

most recent award. The District Court acknowledged that “the 

Authority’s delegated remedial powers extended to ‘the Award’ before 

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it,” and explicitly did not review the Authority’s decision to vacate 

Summary 10 on the ground that the Arbitrator lacked jurisdiction. (JA 

555.) Additionally, the Union did not argue in its District Court brief 

that the Authority violated the Statute by reviewing and vacating 

Summary 10. (JA 430, 630.) The Authority’s determination of nonarbitrability was thus an action within its statutorily delegated powers. 

As vacating Summary 10 was also undoubtedly an “action” concerning 

Summary 10, the Authority’s decision to also vacate the prior awards 

and decisions is the only “action” in HUD VIII remaining in question. 

“Concerning” means “relating to,” and is the equivalent of “regarding, 

respecting, about.” Lamar, Archer & Cofrin, LLP v. Appling 

(“Appling”), 138 S. Ct. 1752, 1759 (2018). In Appling, the Supreme 

Court held that a statutory provision covering “statement[s] respecting 

the debtor’s financial position” could also apply to a statement about a 

single asset, based on an expansive reading of the word “respecting.” 

Id. at 1757. The Supreme Court found that “concerning,” “related to,” 

and “respecting,” were equivalent terms, which “in a legal context 

generally ha[ve] a broadening effect, ensuring the scope of a provision 

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covers not only its subject but also matters relating to that subject.” Id. 

at 1759-60. 

Like the statute at issue in Appling, the Statute here describes a 

category of things using an expansive term: “such action . . . concerning

the award.” 5 U.S.C. § 7122(a) (emphasis added). In Appling, the 

petitioner argued that a “statement respecting the debtor’s financial 

condition” (1) was only a statement that captured “the debtor’s overall 

financial state” and (2) excluded statements about single assets—even 

though such statements were also relevant to the debtor’s financial 

condition. Appling, 138 S. Ct. at 1761. Like the petitioner in Appling, 

the Union advanced in its District Court brief an interpretation of § 

7122(a) that narrowly construes the expansive term “concerning” to 

mean (1) only actions “concerning the award” immediately before the 

Authority and (2) excluding actions concerning other awards—even 

though such actions were also relevant to the award at issue. (JA 650-

52.) The District Court agreed with the Union’s interpretation. (JA 

836.) However, the Supreme Court explicitly rejected this 

interpretation of the law at issue in Appling: “given the ordinary 

meaning of ‘respecting,” [petitioner]’s preferred statutory construction . 

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. . must be rejected, for it reads ‘respecting’ out of the statute.” Id. at 

1761. 

Similarly, § 7122(a) expressly allows the Authority to take such 

action “concerning” a given award that it deems necessary. The fact 

that the Authority’s chosen action may also concern other awards does 

not defeat that explicit statutory authorization. Just as statements 

about single assets may also be statements “respecting” a debtor’s 

overall financial position, the Authority’s action vacating Summaries 1-

9 “concern” Summary 10. After all, those Summaries: (1) arose from the 

same grievance between the same parties in the same arbitration, (2) 

sought to implement the same remedy, and (3) suffered from the same 

jurisdictional flaw as Summary 10. 

Even assuming arguendo that the Statute was silent on whether 

actions “concerning the award” may include actions that concern other 

awards, the silence would weigh meaningfully in the Authority’s favor. 

In Appling, the Supreme Court found that “[h]ad Congress intended 

[the law in that case] to encompass only statements expressing the 

balance of a debtor’s assets and liabilities, there are several ways in 

which it could have so specified, e.g., ‘statement disclosing the debtor’s 

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financial condition’ or ‘statement of the debtor’s financial condition.’ 

But Congress did not use such narrow language.” Id. at 1761 (emphasis 

added). Indeed, “Congress knows to speak in plain terms when it 

wishes to circumscribe, and in capacious terms when it wishes to 

enlarge, agency discretion.” City of Arlington, Tex. v. FCC, 569 U.S. 

290, 296 (2013). 

Here, Congress did not circumscribe the Authority’s discretion by 

granting it power to take “such actions concerning only the award.” 

Such phrasing would clearly narrow the Authority’s delegated powers 

by limiting it to actions concerning only the award at issue. Nor did 

Congress circumscribe the Authority’s discretion by specifying what 

“such actions” might entail—such as specifying that the Authority “may 

vacate, modify, or remand the award.” That phrasing would 

unambiguously narrow the Authority’s delegated powers by explicitly 

limiting them to specific kinds of actions applicable to only one award.

The plain language of § 7122(a) granted the Authority the broad 

discretionary power to vacate Summaries 1-9 because such actions 

“concerned” Summary 10 and were a necessary and logical consequence 

of the Authority’s ruling regarding Summary 10. The Authority 

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determined, reasonably, that “the central question in this case always 

has been whether the underlying grievance concerns classification and 

is therefore not arbitrable under § 7121(c)(5).” HUD VIII, 70 FLRA at 

607. Given the Authority’s finding that “this grievance always 

concerned classification,” its decision to vacate previous awards arising 

from that same, non-arbitrable grievance that the Arbitrator also 

lacked jurisdiction to issue logically followed. Id. at 608 (emphasis 

added). 

C. Vacating Summaries 1-9 was a necessary predicate act 

for the Authority’s permissible action “concerning” 

Summary 10.

Even assuming arguendo that vacating Summaries 1-9 was not an 

action “concerning” Summary 10, § 7122(a) would still grant the 

Authority the power to do so as a necessary predicate of the Authority’s 

decision that the underlying grievance was not arbitrable.

The Statute’s declaration that the Authority “may take such 

action . . . concerning the award as it considers necessary” also 

authorizes the Authority to take any necessary predicate acts. See Luis 

v. United States, 136 S. Ct. 1083, 1097 (2016) (Thomas, J., concurring) 

(“Authorization of an act also authorizes a necessary predicate act.”) 

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(internal citations omitted). Under the predicate act canon, “where a 

general power is conferred or duty enjoined, every particular power 

necessary for the exercise of the one, or the performance of the other, is 

also conferred.” Id. For example, it has long been held that “[t]he 

power to reconsider is inherent in the power to decide.” Tokyo Kikai 

Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008). 

Thus, “the courts have uniformly concluded that administrative 

agencies possess inherent authority to reconsider their decisions, 

subject to certain limitations, regardless of whether they possess 

explicit statutory authority to do so.” Id. 

The District Court agreed that “the Authority’s delegated 

remedial powers extended to ‘the Award’ before it,” and refrained from 

reviewing the Authority’s decision to vacate Summary 10. (JA 555.) 

However, the District Court determined the Authority exceeded its 

authority by vacating Summaries 1-9 on the basis that the Authority’s 

actions concerned those awards, not the Summary 10 award before the 

Authority. (JA 555-56.) But the Authority could not fully render its 

decision without the predicate act of vacating Summaries 1-9, because 

Summaries 1-9 left several major issues unresolved. 

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In Summary 9, the Arbitrator ordered HUD to respond to the 

Union’s requests for funding data within fourteen days; to fully comply 

with Summaries 3, 5, and 6; “to discuss implementation at the next 

[meeting];” to “work cooperatively with the Union and with the 

oversight of this Arbitrator” in implementation; and “to conduct a 

formal hearing on the record” regarding “all outstanding matters.” (JA 

110-13.) To vacate only Summary 10 while keeping Summary 9 “final 

and binding” would leave all of those requirements in place. If 

subsequent proceedings following Summary 9 resulted in “any 

arbitrator’s award”—including summaries of implementation meetings 

not styled as “awards”—then the Authority would also have the 

statutory authority to review those awards for jurisdictional 

deficiencies. 

But this would be a futile exercise. The Authority has long held 

that arbitrations concerning classification matters are “proceeding[s] 

that [are] barred by the Statute from occurring in the first place.” U.S. 

Dep’t of Agric. Food & Consumer Serv. Dall., Tex. (“USDA”), 60 FLRA 

978, 981 (2005). Arbitrators “have no authority” to rule on grievances 

involving classification, as such matters “are mandatorily excluded from 

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the scope of negotiated grievance procedures.” Id. The Authority has 

already determined that the underlying grievance is about classification 

and thus not arbitrable. HUD VIII, 70 FLRA at 607-08. Doing so was 

within its powers. See id. 

Even if the Authority’s determination of non-arbitrability could 

not retroactively apply to Summaries 1-9, the decision must at least 

prospectively apply to any subsequent awards or proceedings. 5 U.S.C. 

§ 7122(a). That is because the underlying grievance has not changed 

from Summary 9 to 10—so the Arbitrator lacks jurisdiction over any 

subsequent awards or proceedings flowing from that grievance. See

HUD VIII, 70 FLRA at 607-08; HUD IX, 71 FLRA 18-19. Thus, any 

award issued pursuant to Summary 9 would retrace the steps of 

Summary 10, and be vacated on the same grounds. Courts have 

declined to force the Authority to engage in futile exercises where the 

outcome is already a foregone conclusion. See Am. Fed’n of Gov’t Emps., 

AFL-CIO v. FLRA, 778 F.2d 850, 862 n. 19 (D.C. Cir. 1985) (“[R]emand 

for further articulation would be futile since the outcome of that 

question follows automatically from the Authority’s determination that 

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the head of an agency has the right under § 7114(c) to negate a term 

imposed by the Impasses Panel.”).

For these reasons, the Authority’s decision to vacate HUD I

through HUD VII and Summaries 1-9 were actions “concerning” the 

award properly before it under § 7122(a), and the Union’s Leedom claim 

must fail. Accordingly, this Court should overturn the District Court’s 

finding that the Authority exceeded its authority concerning its actions 

related to HUD I through HUD VII and Summaries 1-9.

III. The Authority’s Decisions Do Not Run Afoul of any Specific 

Affirmative Command in § 7122

A. The Authority’s decisions are not contrary to a 

specific prohibition in the Statute that is clear and 

mandatory.

The District Court erred in finding that the Authority acted in a 

manner that was contrary to a specific prohibition of the Statute that 

was clear and mandatory. (JA 548-56.) The District Court’s decisions 

rest on language in § 7122(b) that if no exception is filed, the award 

shall be “final and binding.” (JA 550.) However, in reaching its 

holding, the District Court did not analyze case law finding the words 

“final” and “binding” to be ambiguous. (JA 548-56.) Final is not clear, 

because it is ambiguous whether “finality” refers to finality of the 

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exceptions process, finality of arbitration, finality of administrative 

procedure, or finality of judicial review. Additionally, the District Court 

did not consider the ordinary usage of “binding” in the context of the 

Statute and collective bargaining norms: arbitration awards generally 

bind parties, not the Authority. (JA 537-56.) “Binding” is thus 

ambiguous as to who will be bound: the parties to an arbitration, the 

arbitrator, or the Authority. The District Court also did not examine 

how the Supreme Court and the D.C. Circuit have interpreted the 

phrase “final and binding” in other legal contexts. (JA 537-56.) From 

those cases, it is readily apparent that there is no consensus on what, if 

any, preclusive effect “final and binding” status has in a given situation, 

let alone in this context. Thus, the phrase “final and binding” is not 

“clear and unambiguous.”

Similarly, § 7122(a)’s grant of power to take necessary actions 

“concerning the award” is not a “clear and mandatory” negative 

prohibition because it does not speak on actions concerning more than 

one award.5 Interpreting § 7122(a) to authorize only actions that 

5 The District Court found that § 7122(a)’s grant of power to take actions 

“concerning...the award” expressly precluded the Authority from taking 

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concern one award at a time would render § 7122(a) meaningless by 

drastically narrowing the Authority’s ability to take actions concerning 

awards that are deficient. For these reasons, § 7122(b)’s statement that 

the award shall be “final and binding” is not sufficiently “clear and 

mandatory” to create either a negative prohibition or an affirmative 

command under Leedom. 

B. “Final” is not clear because it is not clear what effect 

finality has on subsequent proceedings.

The District Court erred in holding that § 7122(b)’s command that 

“the award shall be final” is a “clear and mandatory” affirmative 

command, (JA 550), because the word “final” is ambiguous. See 

Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955). Further, other uses of 

the term “final” in the Statute confirm that the term does not have a 

actions concerning any other awards. (JA 549-50.) But similar to

§ 7122(a), the Statute expressly authorized only one kind of thing: 

judicial review in the courts of appeals for Authority orders not 

involving arbitration awards. § 7123(a). To the extent the Statute’s 

express authorization of action “concerning . . . the award” is also an 

express prohibition of action concerning other awards, so too must the 

Statute’s express authorization of judicial review in the courts of 

appeals constitute an express prohibition of judicial review in any other 

court. And if § 7123(a) bars judicial review in the district courts only 

implicitly, then any prohibition in § 7122 against the Authority’s 

decisions concerning Summaries 1-9 is, at most, implicit, and certainly 

not clear and mandatory. 

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“clear and mandatory” meaning that would preclude the Authority’s 

action in vacating Summaries 1-9.

The “normal presumption” is that “when Congress uses a term in 

multiple places within a single statute, the term bears a consistent 

meaning throughout.” Azar v. Allina Health Servs., 139 S. Ct. 1804, 

1812 (2019). Within § 7122(b), the term “final” is used twice. First, if 

no exception is filed, “the award shall be final and binding.” 5 U.S.C. 

§ 7122(b) (emphasis added). Second, “[a]n agency shall take actions 

required by an arbitrator’s final award.” Id. (emphasis added). 

The most likely meaning of “the award shall be final” in § 7122(b) 

is simply that it refers to finality of the exceptions process, without 

implicating finality in its everyday usage, finality in arbitration, finality 

in administrative review, or finality in judicial review. That is, “final” 

only indicates the award’s status for the purpose of determining when 

an agency must begin complying with the award as a logistical matter. 

See NTEU 2004, 392 F.3d at 500 (holding that the “filing period [for a 

ULP charge] cannot begin until there has been a failure to comply with 

an arbitration award”). When an arbitrator issues an award, it is 

possible either party will file an exception and the Authority may 

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modify the award in its review under § 7122(a). Congress meant to 

require agencies to take the actions required by an arbitrator’s final 

award where no exceptions were filed, but only after the 30-day 

exceptions-filing period elapsed. See 5 U.S.C. § 7122(b).

This definition of “final” harmonizes with several other situations, 

discussed below, where the Statute provides that “final” awards may be 

overruled or vacated. It allows parties to renegotiate the terms of a 

“final” award in the same arbitration proceeding, before the same 

arbitrator, as the Union and HUD did here for several years. It would 

not preclude administrative or judicial review in the other limited 

circumstances allowed under the Statute. And it would allow the 

Authority to vacate prior awards upon discovering serious jurisdictional 

defects in its review of a later award arising from the same grievance, 

as it did here. 

Giving “final” its everyday meaning would be untenable. For 

example, although “in everyday usage, a decision’s finality does not 

depend on subsequent re-transmittal,” Impact Energy Resources, LLC v. 

Salazar, 693 F.3d 1239, 1251 (10th Cir. 2012), “final” in § 7122(b) 

cannot be limited to its everyday usage because the Statute allows the 

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same award to become “final” twice. There are multiple ways an 

arbitrator’s award can become “final” for the purpose of triggering 

§ 7122(b)’s latter finality clause, requiring an agency to “take actions 

required by an arbitrator’s final award.” For example, if an arbitrator 

issues an award regarding a grievance alleging a prohibited personnel 

practice, that award becomes “final” under § 7122(b) if no exceptions are 

filed. However, in certain circumstances, an aggrieved employee may 

seek discretionary Federal Circuit review of the “final” arbitration 

award. 5 U.S.C. § 7121(f). In those cases, this Court has determined 

the award in question becomes “final” again for the purposes of 

§ 7122(b)’s latter finality clause “when the Federal Circuit denies 

review.” Dep’t of Health & Hum. Servs., Soc. Sec. Admin. v. FLRA, 976 

F.2d 1409, 1414 (D.C. Cir. 1992). The everyday usage of “final” would 

surely exclude any definition that allows for “finality” to happen twice, 

but that is exactly what § 7122(b) and § 7121(f) allow. Thus, “final” in 

§7122(b) has to mean something other than its everyday usage.

“The award shall be final” also does not refer to finality in 

administrative or judicial review, because the Statute explicitly 

provides for administrative and judicial review of “final” arbitration 

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awards. Section 7121(d) provides that in certain circumstances, 

aggrieved employees may petition “the Merit Systems Protection Board 

[“MSPB”] to review the final decision” of an arbitrator. 5 U.S.C. 

§ 7121(d) (emphasis added); see also Morales v. Soc. Sec. Admin., 107 

M.S.P.R. 360, 2007 WL 4248525 (Dec. 4, 2007) (reversing and 

remanding arbitrator’s final decision for legal error under § 7121(d)). 

Not only that, after the MSPB reviews the “final” arbitration award, the 

aggrieved employee can appeal the MSPB’s decision again to the 

Federal Circuit. See, e.g., Herrera v. Dep’t of Homeland Sec., 498 F. 

App’x 35, 39 (Fed. Cir. 2012) (holding that the MSPB “properly 

exercised jurisdiction to review the arbitration decision under § 7121(d)” 

and affirming the MSPB’s decision); Buffkin v. Dep’t of Def., 957 F.3d 

1327, 1328 (Fed. Cir. 2020) (vacating and remanding arbitrator’s final 

decision under § 7121(f)). Additionally, judicial review is available for 

arbitration awards involving ULPs under § 7123(a)(1). “Finality” under 

§ 7121(d) is thus not a bar to subsequent administrative or judicial 

review. 

And lastly, “final” in § 7122(b) could not mean finality in all of the 

Authority’s administrative procedures, with preclusive effects on all 

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future Authority actions. Under this interpretation, the Authority 

could never take any actions that would have any substantive effect on 

any arbitration award which was “final” under § 7122(b). That is 

because doing so would violate the affirmative statutory command of 

finality, no matter how legitimate the Authority’s actions may 

otherwise be under the Statute. This definition of “final” would be 

absurd, given that “final” awards may, and indeed often do, conflict 

with each other. This definition would also contradict the other 

portions of the Statute and decades of Authority, MSPB, and Federal 

Circuit precedent providing mechanisms for overturning and vacating 

“final” arbitration awards. See e.g. Morales, 107 M.S.P.R. at 360; 

Buffkin, F.3d at 1328. Indeed, this reading of “final” would deprive the 

Union of the very relief it seeks here, because the awards that the 

Union seeks to restore would also be invalid under this definition. In 

Summaries 1-10, the Arbitrator issued awards that modified the 

original “final” second merits award. (JA 52-119.) The Union did not 

contend that § 7122(b) precluded the Arbitrator from issuing such 

awards, although the second merits award was “final.” (JA 156-94.)

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Given the many potential meanings of “final,” the Authority did 

not violate a “clear and mandatory” “specific affirmative command” of 

the Statute in vacating Summaries 1-9.

C. “Binding” is unclear because who is bound is 

ambiguous.

Section 7122(b)’s affirmative statutory command that “the award 

shall be . . . binding” is also not clear and unambiguous, because it does 

not identify the entity on whom the award shall be “binding.” 

Specifically, it is not clear whether awards are binding only upon the 

parties, or on the Authority too. Thus, the Union cannot demonstrate 

the Authority violated a “clear and mandatory obligation” under 

Leedom. 

Indeed, the language of § 7122(b) regarding the finality of an 

award imposes specific, clear, and mandatory obligations upon an 

agency, not the Authority: “the award shall be final and binding. An 

agency shall take the actions required by an arbitrator’s final award.” 5 

U.S.C. § 7122(b). The most natural reading of these clauses is that the 

second sentence, “An agency shall take the actions required by an 

arbitrator’s final award” explains the consequence of the first sentence, 

that “the award shall be final and binding.” See id. That is because in 

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the context of an arbitrator’s award, “final and binding” typically 

applies to the parties, not to the Authority (or other administrative body 

or court) reviewing the arbitration. 

While § 7122(b) does not explicitly state on whom the award shall 

be “binding,” the Statute uses “binding” to refer to binding only the 

parties in every other context in which the word appears. Again, it is a 

“normal rule of statutory construction that identical words used in 

different parts of the same act are intended to have the same meaning.” 

Comm’r of Internal Revenue v. Lundy, 516 U.S. 235, 250 (1996). Section 

7121(b)(1)(C)(iii) states that grievances “not satisfactorily settled under 

the negotiated grievance procedure shall be subject to binding 

arbitration which may be invoked by either the exclusive representative 

or the agency.” 5 U.S.C. § 7121(b)(1)(C)(iii). Section 7114(c)(3) of the 

Statute also provides that following a 30-day period for agency head 

review of a CBA, the agreement “shall be binding on the agency and the 

exclusive representative.” Id. § 7114(c)(3). Therefore, “binding” under 

the Statute does not specifically bind the Authority in any other context.

Other statutory provisions support this conclusion. Negotiated 

grievance procedures exist only within the confines of a CBA. Id. 

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§ 7121(a)(1). Agencies and an exclusive representative of employees are 

parties to CBAs—not the Authority. Id. §§ 7103(a)(8); 7103(a)(12). The 

Authority cannot file a grievance, nor be a party to any arbitration 

invoked under a negotiated grievance procedure. Id. § 7103(a)(9). And 

an arbitration cannot bind parties not involved in the arbitration, as 

“[i]t goes without saying that a contract cannot bind a nonparty.” 

EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002) (employment 

contract’s provision that “any dispute or claim” would be “settled by 

binding arbitration” did not bind the Equal Employment Opportunity 

Commission, a nonparty, from pursuing enforcement actions on an 

employee’s behalf).

For these reasons, interpreting § 7122(b) to mean “the award shall 

be final and binding [upon the parties and upon the Authority]” is not a 

“clear or mandatory” “command” under Leedom and is unsupported by 

other language in the Statute.

D. “Final and binding” is not clear or mandatory because 

it is ambiguous what preclusive effect “final and 

binding” status has, and on whom. 

It is also not clear whether, when, and to what extent the 

statutory terms “final and binding” have any preclusive effects. The 

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Authority has held that § 7122(b) does not preclude arbitrators from 

issuing decisions that explicitly disregard factual findings set forth in 

previous “final and binding” arbitration awards, even those involving 

the same parties and the same factual circumstances. In American 

Federation of Government Employees Local 3615 (“Local 3615”), a union 

filed exceptions to an arbitration award in part because the award 

explicitly disregarded factual findings set forth in a previous “final and 

binding” arbitration award between the same parties regarding the 

same agency policy. 54 FLRA 494, 498 (1998). But the Authority 

determined “the Arbitrator was not bound by an award resolving 

another dispute. Arbitration awards are not precedential and, 

consequently, a contention that an award conflicts with other 

arbitration awards provides no basis for finding an award deficient 

under the Statute.” Id. at 499. While the prior award in Local 3615

was “final and binding” under § 7122(b), that “final and binding” status 

did not—and could not—prevent the new arbitrator from reaching a 

different factual conclusion from the prior arbitrator, and issuing an 

award which conflicted with the prior award. Id. If the new arbitrator 

in Local 3615 could overrule the factual findings of a “final and binding” 

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arbitration award, so too could the Authority, with its broad 

discretionary powers. 

The Authority may vacate “final and binding” arbitration awards 

on collateral review in ULP proceedings “challeng[ing] the arbitrator’s 

very jurisdiction.” See e.g. Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA 

(“AFGE 1988”), 850 F.2d 782, 785 (D.C. Cir. 1988); Nicholson, 475 F.3d 

at 352. Like Summaries 1-9, the awards at issue in AFGE 1988 and 

Nicholson were “final and binding” under § 7122(b). AFGE 1988, 850 

F.2d at 785; Nicholson, 475 F.3d at 352. Nevertheless, the D.C. Circuit 

upheld the Authority’s decision not to enforce those awards in 

subsequent ULP proceedings. As the Statute explicitly grants the 

Authority the power to decline to be bound by “final and binding” 

decisions on collateral review in ULP proceedings, the Authority’s 

decision to vacate “final and binding” arbitration awards simply relies 

on that pre-existing explicit statutory power. See HUD IX, 71 FLRA at 

18 (“As with ULPs, the Authority may reach into the merits of final and 

binding awards when a jurisdictional question is present.”).

In HUD IX, the Authority acknowledged the procedural 

differences between AFGE 1988, Nicholson, and the instant case, but 

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found that “[i]t would be unreasonable, as well as inefficient and 

ineffective, for the Authority to consider such jurisdictional questions on 

final and binding awards only after a ULP complaint has been filed but 

be unable to address that question directly now on exceptions.” Id. In 

support, it cited specific statutory authority: the Statute’s broad 

command that its provisions “should be interpreted in a manner 

consistent with the requirement of an effective and efficient 

[g]overnment.” Id. at 20 n.22 (quoting § 7101(b)); cf. Ass’n of Admin. L. 

Judges v. FLRA, 397 F.3d 957, 962 (D.C. Cir. 2005) (“Congress took the 

unusual step of prescribing a practical and flexible rule of 

construction—to wit, the Statute ‘should be interpreted in a manner 

consistent with the requirement of an effective and efficient 

Government.’—that clearly invites the Authority to exercise its 

judgment”) (citation omitted). 

The procedural differences between AFGE 1988, Nicholson, and 

this case do not bear on the ultimate question of whether the Authority 

arguably had the power to vacate previous arbitration awards issued in 

the course of the same arbitration that suffered from the same 

jurisdictional defect as Summary 10. See Jordan Hosp. v. Leavitt, 571 

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F. Supp. 2d 108, 117 (D.D.C. 2008) (rejecting “attempts to expand 

Leedom jurisdiction to situations where the agency has arguably taken 

too expansive an interpretation of a governing statute”). In light of the 

breadth of the Authority’s power to “take such action and make such 

recommendations concerning the award as it considers necessary” 

under § 7122(a) and to interpret the Statute’s provisions “consistent 

with the requirement of an effective and efficient Government” under 

§ 7101(b), AFGE 1988 and Nicholson surely provided the Authority 

with at least an arguable basis for vacating Summaries 1-9 given its 

finding that the Arbitrator never had jurisdiction to issue those awards.

E. The Statute’s grant of power to take necessary actions 

“concerning the award” under § 7122(a) is not a “clear 

and mandatory” negative prohibition against taking 

actions concerning more than one award.

The District Court erred in determining the Statute’s grant of 

power to take necessary actions “concerning the award” is a “clear and 

mandatory” negative prohibition against taking actions that may 

concern multiple awards at once. 

The District Court relied on Railway Labor Executives’ Association 

v. National Mediation Board (“RLEA”), 29 F.3d 655, 662 (D.C. Cir. 

1994) when making its determination that “concerning the award” 

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meant the Authority could only make decisions regarding the award 

before it. (JA 551.) In RLEA, the D.C. Circuit found the National 

Railroad Adjustment Board (“NRAB”) exceeded its authority under 

Leedom when it interpreted a provision of the Railway Labor Act 

(“RLA”) allowing the NRAB to investigate representation disputes 

“upon request of either party to the dispute” to also allow the NRAB to 

investigate representation disputes pursuant to a request from a nonparty. RLEA, 29 F.3d at 665. The D.C. Circuit found that the RLA’s 

explicit authorization of investigations “upon request of either party” 

created a specific negative prohibition against investigations requested 

by non-parties. Id. As in RLEA, the Statute here explicitly authorizes 

one category of thing: actions “concerning the award.” 

However, the key distinction between these cases is RLEA did not 

address whether an implied statutory exclusion applied where the 

actions challenged were also raised in accordance with the relevant 

statute’s explicit authorization. A more analogous situation would have 

been if, in RLEA, the NRAB had investigated a dispute pursuant to 

requests from both a party and a non-party. There, it would have been 

incorrect to say the NRAB had exceeded its authority despite the 

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Railway Labor Act’s explicit authorization of investigations requested 

by a party, simply because a non-party also made the same request. 

Here, unlike in RLEA, the Authority’s challenged actions in 

vacating Summaries 1-9 are intertwined with actions the Statute 

expressly authorizes: determining the underlying grievance was not 

arbitrable and vacating Summary 10. The Authority’s actions 

concerning Summary 10 are not rendered ultra vires simply because 

those actions may also have concerned Summaries 1-9. The Authority 

thus acted pursuant to the Statute’s explicit authorization, 

distinguishing it from RLEA. As the Statute is silent on whether the 

explicit authorization of actions in § 7122(a) come with any corollary 

limitations related to “final and binding” prior awards, § 7122(a) falls 

short of Leedom’s requirement of a clear statutory mandate.

To say that § 7122(a)’s qualifying language—that the Authority 

may take “such action . . . concerning the award” before it—actively 

excludes actions that may also concern any other award ever to become 

“final and binding” under § 7122(b) risks rendering § 7122(a) 

meaningless. Disputes arising under the Statute commonly result in 

multiple “awards” issued over the course of many years. See e.g. Fed. 

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Educ. Ass’n v. FLRA, 927 F.3d 514, 516 (D.C. Cir. 2019) (four arbitrator 

awards issued over 13 years); U.S. Dep’t of Def. Educ. Activity, U.S. 

Dep’t of Def. Dependent Schs., 70 FLRA 84, 84-85 (2016) (record spans 

“five years, four awards, and one Authority decision”); U.S. Dep’t of 

Interior, U.S. Park Police, 67 FLRA 345, 345 (2014) (factual background 

includes “four arbitration awards, a previous Authority decision, and a 

denial of a request for reconsideration of that decision.”). 

It naturally follows that some of these awards may raise issues 

concerning, or in conflict with, other “final and binding” prior awards. 

Precluding the Authority from taking actions that conflict with any 

previous awards would punish parties for not catching mistakes by 

forcing them to remain bound by illegal awards. This would severely 

undermine the Statute’s broad delegation of power to the Authority to 

take such action “as it considers necessary” to ensure that awards are 

not “contrary to any law, rule, or regulation.” § 7122(a). It would also 

make it ultra vires for the Authority to attempt to correct mistakes if 

and when the parties discover them and file exceptions—even if the 

Authority’s action concerns at least one timely reviewable award.

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IV. Any Authority Error was not Sufficiently “Extreme” to 

Constitute a Leedom Violation 

The District Court erred in finding the Authority’s decisions were 

the kind of extreme error required under Leedom. Nyunt, 589 F.3d at 

449; (JA 556.) Leedom jurisdiction can only be established by showing: 

(1) that the FLRA has acted contrary to a specific prohibition in [the 

Statute] which was clear and mandatory,” and (2) “barring district court 

review would . . . wholly deprive the union of a meaningful and 

adequate means of vindicating its statutory rights.” Nat’l Air Traffic 

Controllers Ass’n AFL-CIO v. FSIP, 437 F.3d 1256, 1263 (D.C. Cir. 

2006). 

“Garden-variety errors” “in the nature of a factual dispute or a 

mixed question of law and fact” are insufficient to meet this high 

burden. See Lepre, 275 F.3d at 74. The District Court recognized “the 

difficulty the Authority faced in trying to resolve a dispute that had 

been pending for a decade and a half.” (JA 555.) Although the District 

Court took issue with the timing of the Authority’s decision to vacate 

the prior awards and Summaries 1-9, (JA 549), the Authority has found 

that it may address § 7121(c)(5) jurisdictional issues sua sponte and 

even when no exceptions were filed on the jurisdictional issue. Off. and 

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58

Prof. Emps. Int’l Union Loc. 2001, 62 FLRA 67, 69 (2007); U.S. Dep’t of 

the Army, Fort Polk, La., 61 FLRA 8, 12 (2005). Moreover, the District 

Court did not analyze how the Authority could have correctly resolved 

this matter while adhering to its reasonable finding that the underlying 

grievance was non-arbitrable. (JA 537-556; 823- 839.) Allowing 

Summaries 1-9 to stand while vacating Summary 10 because the 

Arbitrator lacked jurisdiction would have left the parties in legal limbo 

and forced unnecessarily wasteful arbitral proceedings that are “barred 

by the Statute from occurring in the first place.” USDA, 60 FLRA at 

981. Any Authority errors were attempts to avoid that result.

The District Court’s finding of any errors about the scope of the 

Authority’s power to vacate prior awards arose from the Arbitrator’s 

styling of new awards as written summaries of implementation

meetings. Therefore, any errors the District Court found were not 

extreme enough to warrant the exercise of Leedom jurisdiction. For 

example, the District Court determined the Authority erred when it 

decided that vacating Summaries 1-9 was an action “concerning” 

Summary 10. (JA 555-56.) However, if determining that vacating 

Summaries 1-9 “concerned” Summary 10 was an error on the 

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59

Authority’s part, it was a line-drawing error that any reasonable 

decision-maker might make. The Arbitrator’s assertion of perpetual 

jurisdiction over the matter created substantial difficulties in defining 

the contours of each individual “award” relative to subsequent 

implementation meetings, and relative to the proceeding as a whole. 

HUD VIII, 70 FLRA at 608. While the Union consistently denied that 

each Summary had modified the original second merits award, the 

incremental evolution of implementation directives styled as 

“clarifications” made it difficult for even the parties to identify 

modifications as they occurred. Id. 

Similarly, any errors the District Court found when the Authority 

determined what remedies should flow from its finding of nonarbitrability were also reasonable in light of the logistical challenges of 

parsing out Summary 10 from prior awards. For example, the District 

Court found the Authority erred in determining that vacating 

Summaries 1-9 and HUD I through HUD VII was the correct remedy. 

(JA 549) (“If the timing and scope of its Order were different, the 

Authority might be right” that “even if it erred when it concluded that 

the arbitrator lacked jurisdiction . . . that error would be no more than a 

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60

‘garden-variety error of law or fact.’”). However, even if the Authority 

had not vacated Summaries 1-9, it would have reached functionally the 

same outcome. Vacating only Summary 10 and leaving Summaries 1-9 

in place would have reset the proceedings back to how they stood 

immediately after Summary 9—with several major implementation 

issues left unresolved. Even if the Authority had not vacated 

Summaries 1-9, its finding in HUD VIII that the underlying grievance 

was non-arbitrable because it concerned classification was a 

jurisdictional determination, not a remedy in itself. See HUD VIII, 70 

FLRA at 607-08. And as the underlying grievance did not change from 

Summary 9 to Summary 10, any prospective future awards arising from 

implementation of Summary 9 would also necessarily be vacated for 

lack of arbitral jurisdiction upon Authority review under § 7122(a). See 

id.

Additionally, the Authority would have to decline to enforce 

Summaries 1-9 if the Union attempted to enforce those awards in an 

ULP proceeding. The Arbitrator noted in Summary 9 that HUD had 

repeatedly refused to comply with certain directives related to those 

awards. (JA 109-14.) If the Authority left Summaries 1-9 intact while 

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61

finding the underlying grievance was non-arbitrable, HUD would likely 

have refused to comply with Summaries 1-9 based on the finding of nonarbitrability. The Union would bring an ULP proceeding against HUD 

for refusing to comply with Summaries 1-9. See NTEU 2004, 392 F.3d 

at 499; 5 U.S.C. § 7116(a)(8). In the resulting ULP proceeding, HUD 

would challenge the Arbitrator’s jurisdiction in Summaries 1-9. See 

U.S. Dep’t of Veterans Affs., Veterans Affs. Med. Ctr., Asheville N.C., 57 

FLRA 681, 683 (2002) (“Parties may raise arguments regarding the 

Authority’s jurisdiction at any stage of the Authority’s proceedings.”). 

Upon collateral review, the Authority would then determine the 

Arbitrator lacked jurisdiction over the underlying grievance because it 

concerned classification, which would require the Authority to decline to 

enforce Summaries 1-9. See AFGE 1988, 850 F.2d at 785. Declining to 

enforce Summaries 1-9 would result in the same substantive outcome 

for the parties, because an award which cannot be enforced is 

functionally vacated. Cf. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 

U.S. 576, 581 (2008) (explaining that under the Federal Arbitration Act, 

unenforceable provisions of arbitration awards are severable and must 

be vacated or modified accordingly); Customs Service, 43 F.3d at 687 

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(“an unenforceable award is a nullity, which no one would need or want 

to be reviewed”). 

While the Authority conceivably could have waited to decline to 

enforce Summaries 1-9 in a later collateral review of an ULP 

proceeding, it concluded in HUD IX that “[i]t would be unreasonable, as 

well as inefficient and ineffective” to do so instead of “address[ing] that 

question directly now on exceptions.” HUD IX, 71 FLRA at 18. As the 

Authority recognized, such a holding is amply supported by the 

Statute’s command that its provisions “should be interpreted in a 

manner consistent with the requirement of an effective and efficient 

[g]overnment.” Id. at 20 & n.9 (quoting 5 U.S.C. § 7101(b).)

Any errors the District Court found in the Authority’s analysis in 

HUD VIII and HUD IX were not sufficiently “extreme” to constitute a 

Leedom violation. The ultimate issue under Leedom is not whether the 

Authority erred, but whether the alleged error was “so extreme that one 

may view it as jurisdictional or nearly so.” Nyunt, 589 F.3d at 449. “To 

rest [Leedom] jurisdiction on the basis that the FLRA has erred in 

reviewing an arbitration award is to ‘turn every error of law into a basis 

for review.’” U.S. Dep’t of the Interior v. FLRA, 1 F.3d 1059, 1062 (10th 

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63

Cir. 1993). Here, the Arbitrator intentionally styled the awards and 

Summaries as not being about classification and characterized 

substantive modifications as clarifications in order to retain perpetual 

jurisdiction. (JA 52-119.) In doing so, the Arbitrator crafted awards 

which confused even the parties as to when Summaries constituted 

modifications. (JA 13-23.) To hold that any Authority errors arising 

from this confusion constitute a Leedom violation would impermissibly 

encourage parties and arbitrators to hide the ball in styling arbitration 

awards, without even granting the Union the remedy it seeks. After all, 

the Authority’s decision finding that the underlying grievance was nonarbitrable and vacating Summary 10 is not severable from final 

outcomes vacating Summaries 1-9, whether as a necessary predicate act 

“concerning” Summary 10 under § 7122(a), or upon collateral review of 

a future ULP proceeding. For these reasons, any purported Authority 

errors in HUD VIII and HUD IX were “garden-variety” errors of law or 

fact not rising to the kind of “extreme” error required by Leedom. 

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CONCLUSION

For the foregoing reasons, the Authority respectfully requests the 

Court reverse District Court’s finding that it had jurisdiction and vacate 

the District Court’s decisions and orders. 

Respectfully submitted,

/s/Rebecca J. Osborne

REBECCA J. OSBORNE

Acting Solicitor

Federal Labor Relations Authority

1400 K Street, NW

Washington, DC 20424

771-444-5778

May 4, 2023

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65

FED. R. APP. P. RULE 32(A) CERTIFICATION

Pursuant to Fed. R. App. P. 32(a)(7)(B)(i), I hereby certify that this 

brief is double-spaced (except for extended quotations, headings, and 

footnotes) and is proportionally spaced, using Century Schoolbook font, 

14-point type. Based on a word count of my word processing system, 

this brief contains fewer than 13,000 words. It contains 12,307 words 

excluding exempt material. 

/s/ Rebecca J. Osborne

Rebecca J. Osborne

Acting Solicitor 

Federal Labor Relations Authority

CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of May, 2023, I electronically 

filed the foregoing with the Clerk of the Court for the United States 

Court of Appeals for the District of Columbia Circuit by using the 

CM/ECF system. I also certify that the foregoing document is being 

served on counsel of record and that service will be accomplished by the 

CM/ECF system. 

/s/ Rebecca J. Osborne

Rebecca J. Osborne

Acting Solicitor 

Federal Labor Relations Authority

USCA Case #22-5308 Document #1998035 Filed: 05/04/2023 Page 78 of 87
ADDENDUM

Relevant Statutes and Other Authorities

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1

TABLE OF CONTENTS

Authority Page

STATUTES.......................................................................................2

5 U.S.C. § 7101(b). Findings and purpose .......................................2

5 U.S.C. § 7103. Definitions; application.........................................2

5 U.S.C. § 7105. Powers and duties of the Authority......................3

5 U.S.C. § 7114(a)(1). Representation rights and duties.................3

5 U.S.C. § 7116. Unfair labor practices ...........................................4

5 U.S.C. § 7121. Grievance procedures............................................4

5 U.S.C. § 7122. Exceptions to arbitral awards...............................6

5 U.S.C. § 7123(a). Judicial review; enforcement............................6

28 U.S.C. § 1291. Final decisions of district courts.........................7

OTHER AUTHORITIES ...........................................................................7

H.R. Rep. No. 95-1717, at 153 (1978). Judicial Review of the 

Decisions of the Federal Labor Relations Authority.......................7

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2

STATUTES

5 U.S.C. § 7101(b). Findings and purpose

(b) It is the purpose of this chapter to prescribe certain rights and 

obligations of the employees of the Federal Government and to 

establish procedures which are designed to meet the special 

requirements and needs of the Government. The provisions of 

this chapter should be interpreted in a manner consistent with the 

requirement of an effective and efficient Government.

5 U.S.C. § 7103. Definitions; application

(a) For the purpose of this chapter—

(8) “collective bargaining agreement” means an agreement 

entered into as a result of collective bargaining pursuant to the 

provisions of this chapter;

(9) “grievance means any complaint—

(A) by any employee concerning any matter relating to the 

employment of the employee;

(B) by any labor organization concerning any matter 

relating to the employment of any employee; or

(C) by any employee, labor organization, or agency 

concerning—

(i) the effect or interpretation, or a claim of breach, 

of a collective bargaining agreement; or 

(ii) any claimed violation, misinterpretation, or 

misapplication of any law, rule, or regulation 

affecting conditions of employment;

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3

(12) “collective bargaining” means the performance of the mutual 

obligation of the representative of an agency and the exclusive 

representative of employees in an appropriate unit in the agency 

to meet at reasonable times and to consult and bargain in a goodfaith effort to reach agreement with respect to the conditions of 

employment affecting such employees and to execute, if requested 

by either party, a written document incorporating any collective 

bargaining agreement reached, but the obligation referred to in 

this paragraph does not compel either party to agree to a proposal 

or to make a concession;

5 U.S.C. § 7105. Powers and duties of the Authority

(a)(2) The Authority shall, to the extent provided in this chapter 

and in accordance with regulations prescribed by the Authority—

(H) resolve exceptions to arbitrator’s awards under section 

7122 of this title; and

(I) take such other actions as are necessary and 

appropriate to effectively administer the provisions of 

this chapter.

5 U.S.C. § 7114(a)(1). Representation rights and duties

(a)(1) A labor organization which has been accorded exclusive 

recognition is the exclusive representative of the employees 

in the unit it represents and is entitled to act for, and 

negotiate collective bargaining agreements covering, all 

employees in the unit. An exclusive representative is 

responsible for representing the interests of all employees in 

the unit it represents without discrimination and without 

regard to labor organization membership.

(c)(1) An agreement between any agency and an exclusive 

representative shall be subject to approval by the head of the 

agency.

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4

(3) If the head of the agency does not approve or disapprove the 

agreement within the 30-day period, the agreement shall 

take effect and shall be binding on the agency and the 

exclusive representative subject to the provisions of this 

chapter and any other applicable law, rule, or regulation.

5 U.S.C. § 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice 

for an agency—

(8) to otherwise fail or refuse to comply with any provision of 

this chapter.

5 U.S.C. § 7121. Grievance procedures

(a) (1) Except as provided in paragraph (2) of this subsection, any 

collective bargaining agreement shall provide procedures for 

the settlement of grievances, including questions of 

arbitrability. Except as provided in subsections (d), (e), and 

(g) of this section, the procedures shall be the exclusive 

administrative procedures for resolving grievances which fall 

within its coverage.

(b) (1) Any negotiated grievance procedure referred to in subsection 

(a) of this section shall—

(C) include procedures that—

(iii) provide that any grievance not satisfactorily 

settled under the negotiated grievance procedure 

shall be subject to binding arbitration which may 

be invoked by either the exclusive representative 

or the agency.

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5

(c) The preceding subsections of this section shall not apply with 

respect to any grievance concerning—

(5) the classification of any position which does not result in the 

reduction in grade or pay of an employee

(c) An aggrieved employee affected by a prohibited personnel practice 

under section 2302(b)(1) of this title which also falls under the 

coverage of the negotiated grievance procedure may raise the 

matter under a statutory procedure or the negotiated procedure, 

but not both. An employee shall be deemed to have exercised his 

option under this subsection to raise the matter under either a 

statutory procedure or the negotiated procedure at such time as 

the employee timely initiates an action under the appliable 

statutory procedure or timely files a grievance in writing, in 

accordance with the provisions of the parties’ negotiated 

procedure, whichever event occurs first. Selection of the 

negotiated procedure in no manner prejudices the right of an 

aggrieved employee to request the Merit Systems Protection 

Board to review the final decision pursuant to section 7702 of this 

title int eh case of any personnel action that could have been 

appealed to the Board, or, where applicable, to request the Equal 

Employment Opportunity Commission to review a final decision 

in any other matter involving a complaint of discrimination of the 

type prohibited by any law administered by the Equal 

Employment Opportunity Commission.

(f) In matters covered under sections 4303 and 7512 of this title 

which have been raised under the negotiated grievance procedure 

in accordance with this section, section 7703 of this title 

pertaining to judicial review shall apply to the award of an 

arbitrator in the same manner and under the same conditions as 

if the matter had been decided by the Board. In matters similar to 

those covered under sections 4303 and 7512 of this title which 

arise under other personnel systems and which an aggrieved 

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6

employee has raised under the negotiated grievance procedure, 

judicial review of an arbitrator’s award may be obtained in the 

same manner and on the same basis as could be obtained of a final 

decision in such matters raised under applicable appellate 

procedures.

5 U.S.C. § 7122. Exceptions to arbitral awards

(a) Either party to arbitration under this chapter may file with the 

Authority an exception to any arbitrator’s award pursuant to the 

arbitration (other than an award relating to a matter described in 

section 7121(f) of this title). If upon review the Authority finds 

that the award is deficient—

(1) because it is contrary to any law, rule, or regulation; or

(2) on other grounds similar to those applied by Federal courts 

in private sector labor-management relations;

the Authority may take such action and make such recommendations 

concerning the award as it considers necessary, consistent with 

applicable laws, rules, or regulations.

(b) If no exception to an arbitrator’s award is filed under subsection 

(a) of this section during the 30-day period beginning on the date 

the award is served on the party, the award shall be final and 

binding. An agency shall take the actions required by an 

arbitrator’s final award. The award may include the payment of 

backpay (as provided in section 5596 of this title).

5 U.S.C. § 7123(a). Judicial review; enforcement

(a) Any person aggrieved by any final order of the Authority other 

than an order under--

(1) section 7122 of this title (involving an award by an 

arbitrator), unless the order involves an unfair labor practice 

under section 7118 of this title

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7

may, during the 60-day period beginning on the date which the order 

was issued, institute an action for judicial review of the Authority’s 

order in the United States court of appeals in the circuit in which the 

person resides or transacts business or in the United States Court of 

Appeals for the District of Columbia.

28 U.S.C. § 1291. Final decisions of district courts

The courts of appeals (other than the United States Court of Appeals for 

the Federal Circuit) shall have jurisdiction of appeals from all final 

decisions of the district courts of the United States, the United States 

District Court for the District of the Canal Zone, the District Court of 

Guam, and the District Court of the Virgin Islands, except where a 

direct review may be had in the Supreme Court. The jurisdiction of the 

United States Court of Appeals for the Federal Circuit shall be limited 

to the jurisdiction described in sections 1292(c) and (d) and 1295 of this 

title.

OTHER AUTHORITIES

H.R. Rep. No. 95-1717, at 153 (1978). Judicial Review of the 

Decisions of the Federal Labor Relations Authority

The Senate bill made reviewable in court decisions of the Authority 

concerning unfair labor practices, including awards of arbitrators 

relating to unfair labor practices. Otherwise, the Senate provides that 

all decisions of the Authority are final and conclusive, and not subject to 

further judicial review except for questions arising under the 

Constitution. (Section 7204(L); Section 7216(F); Section 7221(J).) The 

Senate provides that decisions of arbitrators in adverse action cases 

would be appealable directly to the court of appeals or court of claims in 

the same manner as a decision by the MSPB (Section 7221(B)).

In the House bill, unfair labor practice decisions are appealable as in 

the Senate. In addition, all other final decisions of the Authority 

involving an award by an arbitrator, and the appropriateness of the 

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8

unit and organization seeks to represent are also appealable to the 

courts (Section 7123(a)). Under the House bill decisions by arbitrators 

in adverse action cases are first appealable to the Authority before there 

may be an appeal to the court of appeals.

In the case of arbitrators[’] awards involving adverse actions, the 

conferees elected to adopt the approach in the Senate bill. The 

decisions of the arbitrator in such matters will be appealable directly to 

the court of appeals (or court of claims) in the same manner as a 

decision by MSPB. In the case of those other matters that are 

appealable to the Authority the conference report authorizes both the 

agency and the employee to appeal the final decision of the Authority 

except in two instances where the House recedes to the Senate. As in 

the private section, there will be no judicial review of the Authority’s 

determination of the appropriateness of bargaining units, and there will 

be no judicial review of the Authority’s action on those arbitrators[’]

awards in grievance cases which are appealable to the Authority. The 

Authority will only be authorized to review the award of the arbitrator 

on very narrow grounds similar to the scope of judicial review of an 

arbitrator’s award in the private section. In light of the limited nature 

of the Authority’s review, the conferees determined it would be 

inappropriate for there to be subsequent review by the court of appeals 

in such matters.

USCA Case #22-5308 Document #1998035 Filed: 05/04/2023 Page 87 of 87
ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED 

No. 22-5308

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 

NATIONAL COUNCIL OF HUD LOCALS COUNCIL 222, 

AFL-CIO,

Appellee,

v.

FEDERAL LABOR RELATIONS AUTHORITY AND SUSAN 

TSUI GRUNDMANN, IN HER OFFICIAL CAPACITY AS 

CHAIRMAN OF THE FEDERAL LABOR RELATIONS 

AUTHORITY,

Appellant.

APPEAL OF DISTRICT COURT DECISIONS

REPLY BRIEF FOR APPELLANT 

FEDERAL LABOR RELATIONS AUTHORITY

THOMAS TSO

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

NARIEA K. NELSON

Attorney

Federal Labor Relations Authority 

1400 K Street, N.W. Suite 200

Washington, D.C. 20424

(771) 444-5775

solmail@flra.gov

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 1 of 59
i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................i

TABLE OF AUTHORITIES.....................................................................iii

GLOSSARY ..............................................................................................ix

RELEVANT STATUTORY PROVISIONS ...............................................1

SUMMARY OF THE ARGUMENT ..........................................................1

ARGUMENT .............................................................................................5

I. The Authority Did Not Violate a Clear and Mandatory Statutory 

Command and thus its Decisions were not Ultra Vires. .................6

A. The Decisions are consistent with Statute’s provision 

concerning “Final and Binding” arbitrations because “Final and 

Binding” applies to the Parties, not to the Authority.................9

B. The Decisions are consistent with the “Law of the Case” 

doctrine. .....................................................................................13

1. Statutory language concerning “Final and Binding” 

arbitration awards does not impose the “Law of Case” 

doctrine—which typically applies only in judicial settings—

on Authority decisions...........................................................13

2. Application of the “Law of the Case” doctrine is 

discretionary..........................................................................14

3. The “Law of the Case” doctrine allows changes in decisions.

...............................................................................................16

4. The “Law of the Case” can apply to “Final and Binding” 

awards. ..................................................................................20

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ii

II. Judicial Review is Precluded. ........................................................22

A. The plain text of the Statute and applicable precedent support 

the conclusion that § 7123 precludes judicial review of 

arbitration awards.....................................................................22

B. The Union’s reliance on dicta in Griffith is misplaced. ............25

III. Contrary to the Union’s Assertions, Alternative Remedies Are 

Available.........................................................................................30

CONCLUSION ........................................................................................33

FED. R. APP. P. RULE 32(A) CERTIFICATION...................................34

CERTIFICATE OF SERVICE.................................................................34

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iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Lab’ys v. Gardner,

387 U.S. 136 (1967)...............................................................................27

Aldana v. Del Monte Fresh Produce N.A., Inc.,

578 F.3d 1283 (11th Cir. 2009).............................................................20

Am. Fed’n of Gov’t Emps. AFL-CIO v. FLRA,

850 F.2d 782 (D.C. Cir. 1988)...............................................................19

Am. Fed'n of Gov't Emps., AFL-CIO, Local 446 v. Nicholson,

475 F.3d 341 (D.C. Cir. 2007)...............................................................19

Am. Fed'n of Gov't Emps., AFL-CIO v. Loy,

367 F.3d 932 (D.C. Cir. 2004)................................. 23, 24, 25, 26, 28, 29

Arizona v. California,

460 U.S. 605 (1983)...............................................................................17

Askins v. U.S. Dep’t of Homeland Sec.,

899 F.3d 1035 (D.C. Cir. 2018).........................................................7, 14

Ass’n of Civilian Technicians, Inc. v. FLRA,

283 F.3d 339 (D.C. Cir. 2002).........................................................28, 29

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011)...............................................................................12

Barnhart v. Devine,

771 F.2d 1515 (D.C. Cir. 1985).............................................................31

Bath Iron Works v. Brown,

194 F.3d 1 (1st Cir. 1999) .....................................................................15

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 4 of 59
iv

Biltmore Forest Broad. FM, Inc. v. F.C.C.,

321 F.3d 155 (D.C. Cir. 2003)...............................................................13

Board of Governors of Federal Reserve System v. MCorp Financial, Inc.,

502 U.S. 32 (1991)......................................................... 26, 27, 28, 29, 30

Broad. Bd. of Governors,

68 FLRA 342 (2015)..........................................................................3, 11

Chambers v. Burwell,

824 F.3d 141 (D.C. Cir. 2016)...............................................................31

Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800 (1988)...............................................................................15

City of Arlington, Tex. v. F.C.C.,

569 U.S. 290 (2013).................................................................................9

DCH Reg'l Med. Ctr. v. Azar,

925 F.3d 503 (D.C. Cir. 2019)........................................... 2, 4, 13, 16, 29

Dep’t of Just. v. FLRA,

981 F.2d 1339 (D.C. Cir. 1993)...............................................................5

Diggs v. Dep't of Hous. & Urb. Dev.,

670 F.3d 1353 (Fed. Cir. 2011) .............................................................11

Dunklebarger v. Merit Sys. Prot. Bd.,

130 F.3d 1476 (Fed. Cir. 1997) .............................................................11

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002)...............................................................................12

Fed. Express Corp. v. U.S. Dep't of Com.,

39 F.4th 756 (D.C. Cir. 2022)..................................................................1

Gander Mountain Co. v. Cabela's, Inc.,

540 F.3d 827 (8th Cir. 2008).................................................................20

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 5 of 59
v

Griffith v. FLRA,

842 F.2d 487 (D.C. Cir. 1988)...................................................25, 26, 32

Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

45 F.4th 306 (D.C. Cir. 2022)................................................................15

Hudson v. Principi,

260 F.3d 1357 (Fed. Cir. 2001) .............................................................18

Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee,

456 U.S. 694 (1982)...............................................................................11

Leedom v. Kyne,

358 U.S. 184 (1958).................................................................................1

Lockert v. U.S. Dep’t of Lab.,

867 F.2d 513 (9th Cir. 1989).................................................................13

McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. of 

the Jud. Conf. of the U.S.,

264 F.3d 52 (D.C. Cir. 2001).................................................................29

Mittleman v. Postal Regulatory Commission,

757 F.3d 300 (D.C. Cir. 2014).................................................................7

Nyunt v. Chairman, Broad. Bd. of Governors,

589 F.3d 445 (D.C. Cir. 2009).............................................................1, 2

Off. & Prof. Emps. Int’l. Union Loc. 2 v. Wash. Metro. Transit Auth.,

724 F.2d 133 (D.C. Cir. 1983).........................................................11, 12

Rasul v. Myers,

563 F.3d 527 (D.C. Cir. 2009)...............................................................27

Rezzonico v. H & R Block, Inc.,

182 F.3d 144 (2d Cir. 1999) ..................................................................20

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 6 of 59
vi

Ridder v. Off. of Thrift Supervision,

146 F.3d 1035 (D.C. Cir. 1998).......................................................28, 29

Samons v. Nat’l Mines Corp.,

25 F.4th 455 (6th Cir. 2022) .................................................................14

Sasser v. Adm’r, U.S. E.P.A.,

990 F.2d 127 (4th Cir. 1993).................................................................30

Sault Ste. Marie Tribe of Chippewa Indians v. Engler,

271 F.3d 235 (6th Cir. 2001).................................................................20

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998)...............................................................................8, 9

Telecomm. Rsch. & Action Ctr. v. F.C.C.,

750 F.2d 70 (D.C. Cir. 1984).................................................................22

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994)...............................................................................27

U.S. Dep’t of the Army Fort Polk, La.,

61 FLRA 8 (2005)..................................................................................11

U.S. Dep’t of Homeland Sec. v. FLRA,

784 F.3d 821 (D.C. Cir. 2015)...............................................................24

U.S. Dep’t of Hous. & Urb. Dev.,

71 FLRA 17 (2019)..................................................................................2

U.S. Dep’t of Hous. & Urb. Dev.,

70 FLRA 605 (2018)......................................................................2, 6, 17

U.S. Dep’t of Hous. & Urb. Dev.,

70 FLRA 38 (2016)..................................................................................4

U.S. Dep’t of Hous. & Urb. Dev.,

69 FLRA 213 (2016)................................................................................4

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 7 of 59
vii

U.S. Dep’t of Hous. & Urb. Dev.,

69 FLRA 60 (2015)..................................................................................4

U.S. Dep’t of Hous. & Urb. Dev.,

68 FLRA 631 (2015)................................................................................3

U.S. Dep’t of Hous. & Urb. Dev.,

66 FLRA 867 (2012)................................................................................3

U.S. Dep’t of Hous. & Urb. Dev.,

65 FLRA 433 (2011)................................................................................3

U.S. Dep’t of Hous. & Urb. Dev.,

59 FLRA 630 (2004)................................................................................3

U.S. Dep’t of Treasury, U.S. Customs Serv. v. FLRA,

43 F.3d 682 (D.C. Cir. 1994).................................................................24

United States v. U.S. Smelting Refin. & Mining Co.,

339 U.S. 186 (1950)...............................................................................20

Wagner v. F.E.C.,

717 F.3d 1007 (D.C. Cir. 2013).......................................................23, 25

Wye Oak Tech., Inc. v. Republic of Iraq,

24 F.4th 686 (D.C. Cir. 2022)................................................................17

Statutes

5 U.S.C. §§ 7101-7135 ...............................................................................2

5 U.S.C. § 7103 ....................................................................................6, 12

5 U.S.C. § 7105(a)(2)................................................................................19

5 U.S.C. § 7121 ............................................................. 2, 6, 8, 9, 11,14, 16

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 8 of 59
viii

5 U.S.C. § 7122 ............................................ 3, 9, 10, 12, 15, 16, 19, 22, 24

5 U.S.C. § 7123(a)...................................... 4, 12, 22, 24, 25, 26, 28, 29, 30

28 U.S.C. § 1331 .................................................................... 22, 23, 25, 32

Regulations

5 C.F.R. pt. 511, subpt. F ........................................................................31

Other Authorities

Fed. Prac. & Proc. (Wright & Miller) Juris. § 3974.3 (5th ed.) ..............30

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 9 of 59
ix

GLOSSARY

Agency U.S. Department of Housing and Urban 

Development

Arbitrator Andrée McKissick

Authority The Federal Labor Relations Authority, the 

defendant-appellant

CBA Collective Bargaining Agreement

FLRA The Federal Labor Relations Authority, the 

defendant-appellant

HUD U.S. Department of Housing and Urban 

Development

JA Joint Appendix

Statute The Federal Service Labor-Management 

Relations Statute, 5 U.S.C. §§ 7101-7135 (2018)

ULP Unfair labor practice

Union The American Federation of Government 

Employees, National Council of HUD Locals, 

Council 222, AFL-CIO, the plaintiff-appellee

Union Br. Brief of the plaintiff-appellee, American 

Federation of Government Employees, National 

Council of HUD Locals, Council 222, AFL-CIO to 

this Court, dated June 9, 2023.

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 10 of 59
1

RELEVANT STATUTORY PROVISIONS

All relevant statutory and regulatory provisions cited by the 

defendant-appellant, Federal Labor Relations Authority (the “FLRA” or 

“Authority”) are in the attached Statutory Addendum. (Add. 1.)

SUMMARY OF THE ARGUMENT

The plaintiff-appellee, the American Federation of Government 

Employees, National Council of HUD Locals, Council 222, AFL-CIO (the 

“Union”), seeks “essentially a Hail Mary pass,” a claim for jurisdiction 

under Leedom v. Kyne, 358 U.S. 184 (1958), “and in court as in football, 

the attempt rarely succeeds.” Nyunt v. Chairman, Broad. Bd. of 

Governors, 589 F.3d 445, 449 (D.C. Cir. 2009). Leedom jurisdiction 

exists solely for an “ultra vires challenge . . . available only for the 

narrow purpose of obtaining injunctive relief against agency action 

taken in excess of its delegated powers and contrary to a specific 

prohibition’ in the law. . . . [and] confined to extreme agency error where 

the agency has stepped so plainly beyond the bounds of [its statutory 

authority], or acted so clearly in defiance of it, as to warrant the 

immediate intervention of an equity court[.]’” Fed. Express Corp. v. U.S.

Dep't of Com., 39 F.4th 756, 763–64 (D.C. Cir. 2022) (citations and 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 11 of 59
2

internal quotations omitted). “At most, such a ‘Kyne exception’ applies 

only when three requirements are met: ‘(i) the statutory preclusion of 

review is implied rather than express; (ii) there is no alternative 

procedure for review of the statutory claim; and (iii) the agency plainly 

acts in excess of its delegated powers and contrary to a specific 

prohibition in the statute that is clear and mandatory.’” DCH Reg'l 

Med. Ctr. v. Azar (“DCH”), 925 F.3d 503, 509 (D.C. Cir. 2019) (quoting 

Nyunt, 589 F.3d at 449).

The Union fails to establish a basis for such an extreme measure 

here. At the outset, the Union cannot assert an ultra vires claim. The 

Union appeals the Authority’s decisions in U.S. Department of Housing 

and Urban Development (“HUD VIII”), 70 FLRA 605 (2018) and U.S. 

Department of Housing and Urban Development (“HUD IX”), 71 FLRA 

17 (2019) (collectively the “Decisions”). Because the Federal Service 

Labor-Management Relations Statute (the “Statute”), 5 U.S.C. §§ 7101-

7135 (2018) unequivocally precludes arbitration of matters concerning

classification of positions, the Decisions’ finding that the Arbitrator 

lacked jurisdiction over classification matters in this case ensured the 

Authority did not exceed statutory constraints. 5 U.S.C. § 7121(c)(5). 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 12 of 59
3

The Union has not challenged the merits of the Authority’s conclusion 

that this case is about classification. 

Even under a Leedom analysis, the Union fails to establish the 

three prongs. The Union’s “Hail Mary pass” turns solely on the 

argument that the Authority allegedly violated a statutory provision 

that arbitration awards are “final and binding,” § 7122(b). The Union’s

argument fails on multiple levels. First, the “final and binding” 

language applies to the parties, not the Authority, even if the scope of 

these terms are ambiguous. Second, the Union interprets “final and 

binding” to imply a “law of the case” constraint on Authority Decisions

(Union Br. 44-52), but the “law of the case” doctrine need not apply to 

administrative agencies. Third, the “law of the case” doctrine is 

discretionary, not mandatory, and allows for corrections of errors in the 

interest of justice. The Authority, in the interest of justice, vacated the 

prior erroneous arbitration awards and its decisions in HUD I through 

HUD VII1 because the Authority determined it was necessary to correct 

1 U.S. Dep’t of Hous. & Urb. Dev. (“HUD I”), 59 FLRA 630 (2004); U.S. 

Dep’t of Hous. & Urb. Dev. (“HUD II”), 65 FLRA 433 (2011); U.S. Dep’t 

of Hous. & Urb. Dev. (“HUD III”), 66 FLRA 867, 869 (2012); U.S. Dep’t 

of Hous. & Urb. Dev. (“HUD IV”), 68 FLRA 631, 634-35 (2015); U.S. 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 13 of 59
4

the error, and as one Member of the two Member majority reasoned, the 

error correction avoided imposing adverse cost and impact on the U.S. 

Department of Housing and Urban Development (“HUD” or the 

“Agency”) and its employees. Thus, the Authority never acted “contrary 

to a specific prohibition in the statute that is clear and mandatory.” 

DCH, 925 F.3d at 509. At most, the Authority exercised its discretion 

in error correction.

The Union also fails on the other prongs. The plain text of 

Section 7123(a) leaves no ambiguity: it defines narrow circumstances 

where judicial review is permitted and unambiguously precludes any 

judicial review of Authority decisions regarding arbitration awards.2 It 

is undisputed that the instant matter involves an arbitration award. 

And to the extent that the Union claims there are no alternative 

procedures for relief, there are available alternative remedies. The 

Dep’t of Hous. & Urb. Dev. (“HUD V”), 69 FLRA 60, 634-35 (2015); U.S. 

Dep’t of Hous. & Urb. Dev. (“HUD VI”), 69 FLRA 213, 221-22 (2016); 

U.S. Dep’t of Hous. & Urb. Dev. (“HUD VII”), 70 FLRA 38, 38-39 (2016).

2 The Statute precludes judicial review of orders involving arbitration 

awards unless the order involves an unfair labor practice (“ULP”) under 

Section 7118. 5 U.S.C. § 7123(a). The order here does not involve an 

ULP.

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 14 of 59
5

Union has been aware of those remedies since at least January 2007, 

when the Arbitrator’s award acknowledged the Agency’s suggested 

alternative remedies, including procedures for reclassification, e.g., desk 

audits. (JA 125.) 

As the Union has not established a need for the exceptional 

remedy of Leedom jurisdiction, this Court should reverse the District 

Court’s determination that it had jurisdiction.

ARGUMENT

The burden of raising a successful Leedom claim is “nearly 

insurmountable,” reflecting the “very limited” and “extraordinarily 

narrow” scope of Leedom jurisdiction. Dep’t of Just. v. FLRA, 981 F.2d 

1339, 1343 (D.C. Cir. 1993). The Union has not met this burden and 

has failed to establish: 1) that the Statute contains the kind of specific, 

clear, and mandatory command needed to raise a successful Leedom

claim—let alone that the Authority violated any such command; 2) that 

the statutory language precluding judicial review is implied; and 3) that 

there is no alternative relief available. The Union must establish all 

three prongs.

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 15 of 59
6

I. The Authority Did Not Violate a Clear and Mandatory 

Statutory Command and thus its Decisions were not

Ultra Vires.

The Authority’s Decisions turn on the statutory scope of matters 

subject to arbitration under the Statute. Section 7121(c)(5) provides 

that the arbitration of grievances under the Statute “shall not apply 

with respect to any grievance concerning . . . the classification of any 

position which does not result in the reduction in grade or pay of an 

employee.” Indeed, the Statute states that “collective bargaining,” the 

source of this dispute, concerns “conditions of employment,” 5 U.S.C. § 

7103(a)(12), which excludes “the classification of any position.” Id.

§ 7103(a)(14)(B). Classification issues are thus outside the Arbitrator’s 

jurisdiction. Accordingly, the Authority determined that the longstanding arbitration in this case was without statutory basis, and thus 

contrary to law. HUD VIII, 70 FLRA 605 (finding that this case 

“concerns classification and is therefore excluded from the grievance 

process by § 7121(c)(5) of the Statute.”). 

The Union concedes that the series of arbitration awards 

constitute a singular “case” on appeal. (See Union Br. 44-52 (applying 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 16 of 59
7

the “law of the case”)).3 More important, the Union has not argued on 

appeal that the Authority’s determination that this entire matter

concerned classification was incorrect, or even ultra vires.4 In short, the 

Union has not disputed the Authority’s conclusion that this case

concerns a subject matter specifically excluded under the Statute. 

Because this case concerns classification, and arbitrations involving 

classification matters are explicitly excluded under the Statute, the 

Authority properly overturned this case’s Summaries 1-9 and HUD I

through HUD VII. 

The Union’s complaint here is similar to the complaint in 

Mittleman v. Postal Regulatory Commission, 757 F.3d 300, 307–08 (D.C. 

Cir. 2014). Like the complaint in Mittleman, the Union “do[es] not 

contend that the [Authority] exceeded the scope of its statutory 

authority in [vacating the awards in this case]. If anything, [the Union] 

contend[s] that the [Authority] did precisely the opposite: that it 

3 The law of the case “generally provides that ‘when a court decides 

upon a rule of law, that decision should continue to govern the same 

issues in subsequent stages in the same case.’” Askins v. U.S. Dep’t of 

Homeland Sec., 899 F.3d 1035, 1042 (D.C. Cir. 2018). 

4 (See JA 375, 430, 630, 722, 795 (Union filings below); Union Br. 1-44).

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 17 of 59
8

improperly constrained its own authority by finding that [the 

arbitrator] did not have jurisdiction to hear the cases.” Id. For the 

same reason, “non-statutory review” of the Authority’s Decisions is 

unavailable. Id.

Nonetheless, the Union seeks to have the Authority uphold an 

arbitration case that exceeds its jurisdiction as a matter of preclusion. 

(Union Br. 30.) To find Leedom jurisdiction here, this Court must 

determine that it is mandatory for the Authority to give a 

jurisdictionally-deficient award the same legal force as a 

jurisdictionally-valid award. If this Court made that determination, the 

Authority would have to discard foundational jurisdictional principles, 

not just retrospectively for prior awards, but also in future enforcement 

proceedings. 

The Union thus attempts to use Leedom—which is supposed to 

serve as a shield against ultra vires agency action—to accomplish the 

opposite result: to force the Authority to allow for arbitral jurisdiction 

where the Statute expressly forbids it. 5 U.S.C. § 7121(c)(5). For a 

decisionmaker to issue a ruling “when it has no jurisdiction to do so is, 

by very definition . . . to act ultra vires.” Steel Co. v. Citizens for a Better 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 18 of 59
9

Env’t (“Steel Co.”), 523 U.S. 83, 101-02 (1998) (emphasis added); see also 

City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 297 (2013). If this Court 

does not vacate the District Court’s decisions, the Authority would have 

to permit arbitral jurisdiction over a classification grievance—despite 

the Statute’s express prohibition of arbitration of such grievances. 5 

U.S.C. § 7121(c)(5). 

A. The Decisions are consistent with Statute’s provision 

concerning “Final and Binding” arbitrations because 

“Final and Binding” applies to the Parties, not to the 

Authority.

While the Union does not challenge the conclusion that enforcing 

the arbitration awards would violate the Statute, the Union argues the 

Authority is, instead, precluded from vacating the prior arbitration 

awards in this case, even though they are jurisdictionally deficient. The 

Union relies heavily on 5 U.S.C. § 7122(b), which states an arbitrator’s 

award is “final and binding.”5 The Union suggests that “final and 

binding” has some effect on the Authority’s ability to review its own 

5 Section 7122(b) provides “if no exception to an arbitrator’s award is 

filed under subsection (a) of this section during the 30-day period 

beginning on the day the award is served on the party, the award shall 

be final and binding. An agency shall take the actions required by an 

arbitrator’s final award.” 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 19 of 59
10

prior decisions and the awards connected to those decisions. (Union Br. 

27-35.) The Union, nonetheless, concedes that, “[t]he meaning of the 

terms ‘final and binding’ as used in § 7122 is therefore unambiguous. 

They mean that issues decided by final and binding awards may no 

longer be challenged by a party.” (Union Br. 23); see also id. at 15. 

To the extent the Union suggests the Authority forfeited any 

arguments on the interpretation of “final and binding,” the Authority 

properly raised those arguments in the District Court in response to the 

Union’s invocation of federal court jurisdiction. (JA 714-16.) The 

Authority argued that “final and binding” is ambiguous as to its scope 

and, therefore, did not satisfy Leedom’s requirement for a clear and 

mandatory statutory prohibition. (Id.) The Authority then submitted 

those arguments on appeal without any substantive response on how 

“final and binding” is not ambiguous in scope. (E.g., FLRA Br. at 40.) 

So, while the scope of “final and binding” is ambiguous, the Authority 

agrees with the Union that “final and binding” applies to the parties, 

not the Authority.

While the Authority and the Union may agree that unchallenged 

awards are “final and binding” on parties, the absence of a challenge by

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 20 of 59
11

the parties cannot bind the Authority or the courts to enforce an 

arbitration award dealing with issues beyond what Congress 

authorized. “[N]o action of the parties can confer subject-matter 

jurisdiction upon a federal court.” Ins. Corp. of Ir. v. Compagnie des 

Bauxites de Guinee, 456 U.S. 694, 702 (1982). This principle also 

applies to administrative tribunals. See Dunklebarger v. Merit Sys. 

Prot. Bd., 130 F.3d 1476, 1480 (Fed. Cir. 1997) (citation omitted); Diggs 

v. Dep't of Hous. & Urb. Dev., 670 F.3d 1353, 1357–58 (Fed. Cir. 2011). 

Indeed, the Authority applied this principle in its own cases. See

Broad. Bd. of Governors, 68 FLRA 342, 343 (2015); U.S. Dep’t of the 

Army Fort Polk, La. 61 FLRA 8 (2005). The Union’s argument would 

wrongly permit two parties, by not objecting to an arbitration award, to

create a “final and binding” award involving a classification matter that 

is expressly excluded from arbitration in § 7121(c)(5). 

Despite the Union’s assertions that the terms “final and binding” 

constrain the Authority, a more plausible interpretation of these terms 

is that “final and binding” measures a party’s compliance obligations, 

not the preclusive effect of prior awards on the Authority. See Off. &

Prof. Emps. Int’l. Union Loc. 2 v. Wash. Metro. Transit Auth., 724 F.2d 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 21 of 59
12

133, 138 (D.C. Cir. 1983) (noting the “final and binding” language in an 

interstate compact authorized by Congress “had nothing to do with 

judicial review”); accord 5 U.S.C. § 7123(a) (differentiating between the 

“final and binding” award and the Authority’s “final order . . . involving 

the award”). Agencies and exclusive representatives of employees are 

parties to collective bargaining agreements—not the Authority. 5 

U.S.C. §§ 7103(a)(8); 7103(a)(12). The Authority cannot file a grievance, 

nor can it be a party to any arbitration invoked under a negotiated 

grievance procedure. Id. § 7103(a)(9). Fundamentally, “arbitration is a 

matter of contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 

339 (2011). Arbitration cannot bind parties not involved in the 

arbitration, as “[i]t goes without saying that a contract cannot bind a 

nonparty.” EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002). 

Accordingly, “final and binding” is a constraint on the parties, not the 

Authority. As the Authority is not a party, but an administrative body, 

the language in § 7122 is not a clear and mandatory command 

applicable to the Authority. 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 22 of 59
13

B. The Decisions are consistent with the “Law of the 

Case” doctrine.

Instead of squarely relying on the “final and binding” language, 

the Union instead suggests that language implies a “law of the case.” 

(Union Br. 44.) An implication does not create “a specific prohibition in 

the statute that is clear and mandatory” necessary for Leedom 

jurisdiction, DCH, 925 F.3d at 509. To the extent that the “law of the 

case” doctrine applies at all in this case (and that is not certain)—the 

doctrine supports the Authority’s Decisions. 

1. Statutory language concerning “Final and Binding” 

arbitration awards does not impose the “Law of 

Case” doctrine—which typically applies only in 

judicial settings—on Authority decisions.

This Court has noted that the “law of the case doctrine is of 

uncertain force in the context of administrative litigation.” Biltmore 

Forest Broad. FM, Inc. v. F.C.C., 321 F.3d 155, 163 (D.C. Cir. 2003); see 

Lockert v. U.S. Dep’t of Lab., 867 F.2d 513, 518 (9th Cir. 1989) (“[I]t is 

doubtful that federal courts have the authority to extend the law of the 

case doctrine to proceedings involving non-judicial decisionmakers.”). 

Because the Authority is an administrative body, it is uncertain if the 

law of the case doctrine applies to the Authority. That uncertainty is 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 23 of 59
14

heightened in this case where, as described more fully above, the 

operative statutory language (i.e., the final and binding nature of 

arbitration awards) does not apply to the Authority. It is therefore very 

unlikely that the law of the case doctrine applies at all in this case.

2. Application of the “Law of the Case” doctrine is 

discretionary.

Even assuming arguendo that the law of the case doctrine applies

to administrative agencies, the law of the case doctrine is a prudential 

rule that does not limit a court’s ability to revisit its prior decisions. See 

Askins, 899 F.3d at 1042 (the law of the case doctrine “does not preclude 

a court from reassessing its own legal ruling in the same case”); Samons 

v. Nat’l Mines Corp., 25 F.4th 455, 463 (6th Cir. 2022) (“as a 

discretionary doctrine, however, law of the case does not bar a court 

from reassessing an issue if it believes good reasons exist to do so . . . 

such as a change in the law or an obvious mistake”) (emphasis added). 

That is exactly what the Authority did in HUD VIII when it revisited its 

prior decisions in HUD I through HUD VII. The Authority determined 

that “because this grievance always concerned classification, the 

Arbitrator has always lacked jurisdiction over the grievance, as a 

matter of law, under § 7121(c)(5)” and vacated the Arbitrator’s awards 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 24 of 59
15

and written summaries as well as HUD I through HUD VII. HUD VIII, 

70 FLRA at 608. See, e.g., Bath Iron Works v. Brown, 194 F.3d 1, 4 n.3 

(1st Cir. 1999) (finding law of the case doctrine inapplicable in a case 

that spanned 16 years and involved multiple proceedings and reversals 

before ALJs and the Benefits Review Board). Because the law of the 

case doctrine is discretionary, not mandatory, the Authority acted 

reasonably when it overturned the prior arbitration awards and 

decisions to uphold the Statute’s express preclusion of determinations

concerning the classification of positions. See Guedes v. Bureau of 

Alcohol, Tobacco, Firearms & Explosives, 45 F.4th 306, 312 (D.C. Cir. 

2022) (“The [law of the case] doctrine is a discretionary prudential 

doctrine”); see generally Christianson v. Colt Indus. Operating Corp., 

486 U.S. 800, 818 (1988). 

In fact, the Statute itself contemplates flexibility in the 

Authority’s review and possible shifts in its decisions. Under § 7122(a), 

“the Authority may take such action and make such recommendations 

as it considers necessary, consistent with applicable laws, rules, or 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 25 of 59
16

regulations.”6 The Authority can make “recommendations” and “take 

such actions” that are consistent with applicable laws, including 

vacating prior actions to conform to those laws. Again, even if “final 

and binding” implies a law of the case doctrine, as a discretionary 

doctrine, it does not provide the mandatory statutory command that 

Leedom requires. DCH, 925 F.3d at 509.

3. The “Law of the Case” doctrine allows changes in 

decisions.

Even if this Court imposed the law of the case doctrine as it 

applies in courts, the Authority’s Decisions would be consistent with 

that doctrine. That is because the law of the case doctrine further 

provides that a court may revisit its prior decisions “where the previous 

6 Section 7122(a) of the Statute provides:

Either party to arbitration under this chapter may file with 

the Authority an exception to any arbitrator’s award 

pursuant to the arbitration (other than an award relating to 

a matter described in section 7121(f) of this title). If upon 

review the Authority finds that the award is deficient—(1) 

because it is contrary to any law, rule, or regulation; or 2) on 

other grounds similar to those applied by Federal courts in 

private section labor-management relations; the Authority 

may take such action and make such recommendations 

concerning the award as it considers necessary, consistent 

with applicable laws, rules, or regulations. 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 26 of 59
17

decision was ‘clearly erroneous and would work a manifest injustice.’” 

Wye Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 700 n.1 (D.C. Cir. 

2022) (citation omitted); see Arizona v. California, 460 U.S. 605, 618 n.8

(1983) (noting an “appellate court may deviate from the law of the case 

if the previous decision was ‘clearly erroneous and would work a 

manifest injustice’”). 

In the Decisions, the Authority found that HUD I through HUD 

VII were clearly erroneous because the Statute precludes arbitration 

involving classification matters. And Member Abbott, writing for 

himself, noted the manifest injustice that arbitration in this 

classification case would have. He observed that “any reasonable doubt 

about the substantial, often chaotic impact and cost to agencies, unions, 

individual grievants, and other agency employees that erroneous 

awards can have (and here, to the tune of an order to retroactively 

promote and pay backpay to 3,777 employees regardless of merit or 

available positions) is well-answered in the Agency’s Supplement to its 

exceptions.” HUD VIII, 70 FLRA 605, n.29. Member Abbott referenced 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 27 of 59
18

the Agency submission for the effect on “other agency employees,”7 and 

the Agency submitted that “HUD’s entire salary and expense 

appropriation is only approximately $1.1 billion . . . and paying a 

judgment in excess of $720 million cannot be accomplished with[out] 

furloughing large portions of the Agency.” (JA 292.) The Union’s own 

estimate accords with these costs. (JA 228.) See Hudson v. Principi, 

260 F.3d 1357, 1364 (Fed. Cir. 2001) (holding that an erroneous decision 

foreclosing ability to obtain fees under Equal Access to Justice Act

worked manifest injustice).

The Union erroneously states that the Statute does not even 

authorize the Authority to enforce jurisdictional limits by vacating 

arbitration awards (e.g., Union Br. at 46-49). The Union ignores 

§ 7105(a)(2), which grants the Authority the power to “take such other 

actions as are necessary and appropriate to effectively administer the 

7 The Agency’s Supplement to its July 29, 2016 Exceptions is found at

JA 279-300. The Agency also referenced these issues in another 

submission, see JA 199; see also JA 363 n.15 (referencing the

submission in the Authority’s decision on reconsideration). 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 28 of 59
19

provisions of this chapter[,]”8 which encompasses the Statute’s provision 

limiting the Arbitrators’ jurisdiction over classification matters. The 

Authority can also take other lawful actions necessary and appropriate 

beyond just resolving exceptions to awards. Id. 

As the Statute excludes classification matters from arbitrations, 

the Arbitrator lacked jurisdiction over the matters. The Authority thus 

acted within its delegated powers under § 7122(a) and took necessary 

actions to vacate Summaries 1 through 10 and its decisions in HUD I

through HUD VII to correct a clear error, and, as one Member 

recognized, to avoid injustice.9 

8 The Union asserts that the Authority has never vacated an arbitration 

award after it became final and binding. This is inaccurate. See Am. 

Fed'n of Gov't Emps., AFL-CIO, Local 446 v. Nicholson, 475 F.3d 341, 

352 (D.C. Cir. 2007) (Authority could determine that issue was excluded 

from collective bargaining and thus not subject to arbitration under the 

Statute, even after an arbitrator had rendered an award on that issue); 

Am. Fed’n of Gov’t Emps. AFL-CIO v. FLRA, 850 F.2d 782, 785 (D.C. 

Cir. 1988) (upholding an FLRA decision that vacated a final and 

binding arbitrator award on the ground that the arbitrator did not have 

jurisdiction over the case). Although the Union attempts to distinguish 

these cases (Union Br. 27-30), the cases show the Authority has broad 

powers to vacate arbitration awards under varied circumstances.

9 The District Court did not find that the Authority exceeded its 

statutorily delegated powers with respect to its decision to overturn 

Summary 10. (JA 555.) 

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20

4. The “Law of the Case” can apply to “Final and 

Binding” awards.

To the extent the Union claims that the Statute’s “final and 

binding” terminology requires a less discretionary version of the law of 

the case doctrine (Union Br. 49), that argument is flawed. The doctrine

is not applied (if applicable at all) in varying degrees depending on 

statutory language or whether a “final” decision is involved. See United 

States v. U.S. Smelting Refining & Mining Co., 339 U.S. 186, 199 (1950) 

(noting “that it requires a final judgment to sustain the application of 

the rule of the law of the case just as it does for the kindred rule of res 

judicata”) (emphasis added); Aldana v. Del Monte Fresh Produce N.A., 

Inc., 578 F.3d 1283, 1288–89 (11th Cir. 2009); Gander Mountain Co. v. 

Cabela's, Inc., 540 F.3d 827, 830 (8th Cir. 2008); Sault Ste. Marie Tribe 

of Chippewa Indians v. Engler, 271 F.3d 235, 238 (6th Cir. 2001) 

(finding that district court’s consent order should be honored as the law 

of the case); Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir. 

1999) (law of the case “does not deprive an appellate court of discretion 

to reconsider its own prior rulings, even when the ruling constituted a 

final decision in a previous appeal.”).

* * * * * *

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21

The Statute’s “final and binding” language only binds the parties, 

not the Authority, even if the scope of the language can be ambiguous. 

Even assuming arguendo that the language implies that the prudential 

“law of the case” doctrine could apply with respect to that language, it is 

unclear whether the doctrine does apply given that the Authority is an 

administrative body. And even if the law of the case was compelled, the 

Authority’s Decisions are consistent with the doctrine because the 

Authority overturned the prior arbitration awards and HUD I through 

HUD VII to avoid a clear error. Accordingly, the Union’s argument that 

the Authority’s Decisions are inconsistent with the Statute’s “final and 

binding” language and the law of the case doctrine is without merit. 

Ultimately, the “final and binding” language and law of the case 

doctrine fail to establish the Authority violated any mandatory 

prohibition that Leedom requires. 

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II. Judicial Review is Precluded.

A. The plain text of the Statute and applicable precedent 

support the conclusion that § 7123 precludes judicial 

review of arbitration awards.

The District Court and the Union misunderstood the standard for 

determining when a statute’s preclusion of judicial review is “express”

rather than implied for Leedom purposes. (Union Br. 39.) 

Section 7123(a), which is the only provision of the Statute that 

creates federal court jurisdiction, provides in relevant part:

Any person aggrieved by any final order of the Authority 

other than an order under . . . section 7122 of this title 

(involving an award by an arbitrator), unless the order 

involves an unfair labor practice under section 7118 of this 

title. . . may . . . institute an action for judicial review of the 

Authority’s order in the United States court of appeals. . . . 

5 U.S.C. § 7123(a). The District Court and the Union relied on 

§ 7123(a)’s failure to mention district courts to conclude that Congress 

did not expressly grant exclusive jurisdiction to the court of appeals and

exclude the district court’s jurisdiction under 28 U.S.C. § 1331 (from 

which Leedom jurisdiction is derived, Telecommunications Research & 

Action Center v. F.C.C., 750 F.2d 70, 78 (D.C. Cir. 1984)). (See Union Br. 

38-39; JA 834-35.)

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23

This Court’s decision in Wagner v. Federal Election Commission, 

717 F.3d 1007, 1012–13 & n.5 (D.C. Cir. 2013) undermines that 

conclusion. Wagner interpreted a similarly phrased “special statutory 

review procedure” related to judicial review under the Federal Election 

Campaign Act. Id. Wagner rejected arguments that where Congress 

stated that certain parties “may institute actions” in a specific forum, it

meant that the specific forum was optional and discretionary. Id. at 

1012. Instead, this Court noted that this type of statutory language 

conforms to an “established linguistic norm by which the Congress 

confers exclusive jurisdiction on specific courts[,]” and, thus, “the 

language . . . manifests the Congress’s intent to confer exclusive original 

jurisdiction . . . on” those specific courts (to the exclusion of district 

courts under section 1331). Id. at 1012-13 (emphasis added). Indeed, 

this Court recognized other statutes that similarly granted exclusive 

jurisdiction on a specific forum using the same “linguistic norm,” see id. 

at 1012 n.5, including the judicial review statute at issue here, id. 

(citing Am. Fed'n of Gov't Emps., AFL-CIO v. Loy, 367 F.3d 932, 936

(D.C. Cir. 2004)). 

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Consistent with Wagner, in discussing § 7123(a), Loy states:

Any person aggrieved by a “final order” of the FLRA, other 

than an order under § 7112 (unit determination) or § 7122 

(arbitration award), may seek review in the court of appeals. 

5 U.S.C. § 7123(a). If an FLRA order falls within one of 

§ 7123(a)’s two exceptions to review in the court of appeals, 

this does not mean the district courts are open. It means 

that review is precluded in any court. . . . On the other hand, 

if an FLRA order is not within either exception and is “final,” 

it may be reviewed only by a court of appeals. The district 

courts do not have concurrent jurisdiction over matters 

within the exclusive purview of the FLRA.

367 F.3d at 935 (citations omitted). 

This Court has also confirmed that § 7123(a) bars judicial review 

of Authority decisions concerning arbitration awards. See U.S. Dep’t of 

Treasury, U.S. Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 

1994) (“We have recognized that the merits of an arbitrator’s award 

that implicates only the collective bargaining agreement are, by virtue 

of the categorical nature of this provision, absolutely immune from 

judicial review.”); U.S. Dep’t of Homeland Sec. v. FLRA, 784 F.3d 821, 

824 (D.C. Cir. 2015) (“Congress obviously believed that protecting the 

beneficial ‘features’ of arbitration . . . was more important than 

providing for judicial review of every arbitral decision.”). 

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In short, Congress expressly granted exclusive jurisdiction to the 

courts of appeals to hear matters within the exclusive purview of the

Authority, depriving district courts of jurisdiction under 28 U.S.C. 

§ 1331. See, e.g., Wagner, 717 F.3d 1012-15. Congress also explicitly 

precluded all judicial review of arbitration decisions10 by carving out 

that subject from the courts of appeals’ exclusive jurisdiction. Loy, 367 

F.3d at 935. This exclusion does “not mean the district courts are open” 

under Section 1331, including under Leedom. See, e.g., id. 

B. The Union’s reliance on dicta in Griffith is misplaced.

Despite this Court’s precedent and clear statutory intent, the 

Union cites Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988), for the 

proposition that “Section 7123(a) contains no express language limiting 

all judicial review, or any reference to the district courts . . . mak[ing]

any prohibition on review implied” (Union Br. 5, see also 17-18, 39). 

The Union relies on Griffith’s statement that “Section 7123 does not 

‘explicitly deny to district courts the power to review FLRA decisions.’” 

(Union Br. 39 (quoting Griffith, 842 F.2d at 491).) This statement does 

not contradict Congress’s use of a “linguistic norm” to explicitly grant 

10 Unless the order involves a ULP.

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26

the courts of appeals exclusive jurisdiction, or the holding in Wagner. 

In fact, Griffith actually held that “Congress in 5 U.S.C. § 7123 

precluded review of non-constitutional claims regarding the Authority’s 

decisions” involving arbitration awards, and that preclusion was of any 

judicial review, not just circuit review or district court review. 842 F.2d 

at 501 (emphasis added). 

Moreover, the Union’s reliance on dicta in Griffith as setting the 

relevant standard for determining when a statute precludes judicial 

review for Leedom purposes is misplaced.11 Griffith was decided in 

1988 before the Supreme Court issued its controlling decision, 

interpreting Leedom, in Board of Governors of Federal Reserve System

11 While § 7123 concerns the judicial review of matters within the 

exclusive purview of the FLRA, see Loy, 367 F.3d at 935, Griffith

determined that judicial review is precluded based on whether the 

dispute concerned a type of claim within or outside the exclusive 

purview of the FLRA, such as constitutional claims. 842 F.2d at 494. 

Under Griffith, the relevant question for the instant case is not whether 

the Statute is silent regarding district courts or appellate courts, but 

instead whether the type of complaint (constitutional v. nonconstitutional) at issue is subject to § 7123 judicial review. In this case, 

the Statute expressly provides that non-constitutional complaints 

involving arbitration awards like those at issue here are within the 

purview of the Authority, so they are explicitly precluded from judicial 

review. 

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27

v. MCorp Financial, Inc. (“MCorp”), 502 U.S. 32 (1991).12 Under 

MCorp, the Supreme Court determined that statutes preclude judicial 

review for Leedom purposes if there is “clear and convincing evidence”

of legislative intent to preclude judicial review. 502 U.S. at 44

(“[Leedom v.] Kyne stands for the familiar proposition that ‘only upon a 

showing of clear and convincing evidence of a contrary legislative intent 

should the courts restrict access to judicial review.’”). MCorp 

specifically relied on this “familiar” test for preclusion of judicial review. 

502 U.S. at 44 (citing Abbott Lab’ys v. Gardner, 387 U.S. 136, 141 

(1967)).

Subsequently, in Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 

207 (1994), the Supreme Court relied on MCorp in finding that:

“[w]hether a statute is intended to preclude initial judicial review is 

determined from the statute’s language, structure, and purpose, its 

legislative history . . . and whether the claims can be afforded 

meaningful review.” Id. (citing MCorp, 502 U.S. 32). MCorp thus 

establishes “clear and convincing evidence” of congressional intent as 

12 “A panel of this court is under another constraint: we must adhere to 

the law of our circuit unless that law conflicts with a decision of the 

Supreme Court.” Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009). 

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28

the touchstone for whether Leedom jurisdiction is allowed. 502 U.S. at 

44. And intent is measured by the plain text of a provision, illuminated 

by structure, purpose, and legislative history, that shows what 

Congress meant by the words it chose. 

With respect to § 7123(a)(1), Congress was not silent on whether 

judicial review of arbitration decisions (not involving a ULP) is barred. 

Congress barred review in that provision. Because Congress was not 

silent, § 7123(a)(1) is unlike the scheme at issue in Leedom, “in which 

the petitioner had asked the court to imply preclusion of judicial review 

from legislative silence on the point.” Ridder v. Off. of Thrift 

Supervision, 146 F.3d 1035, 1041 (D.C. Cir. 1998). The Union seeks to 

ignore what Congress has stated. 

Since MCorp, the D.C. Circuit has specifically found that § 7123(a) 

contains “‘clear and convincing evidence’ of Congressional intent to 

preclude judicial review” of Authority decisions made under 

§ 7123(a)(1)-(2). Ass’n of Civilian Technicians, Inc. v. FLRA (“ACT 

2002”), 283 F.3d 339, 341-42 (D.C. Cir. 2002) (quotation omitted)

(decisions concerning unit determinations unreviewable under 

§ 7123(a)(2)); Loy, 367 F.3d at 935 (decisions concerning arbitration 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 38 of 59
29

awards unreviewable under § 7123(a)(1)) (citing ACT 2002). Thus 

§ 7123(a) precludes judicial review of the awards in this case under the 

proper MCorp standard. 

While some of this Court’s cases after MCorp have paraphrased 

part of Leedom’s test as requiring “express” intent, DCH, 925 F.3d at 

509, other cases have simply applied MCorp’s familiar test for statutory 

interpretation. See, e.g., McBryde v. Comm. to Rev. Cir. Council 

Conduct & Disability Ords. of the Jud. Conf. of the U.S., 264 F.3d 52, 63 

(D.C. Cir. 2001) (finding that “Congress clearly and convincingly 

barred” judicial review of a constitutional claim previously adjudicated 

before the Judicial Council); Ridder, 146 F.3d at 1041. 

There is clear and convincing evidence that § 7123(a) precludes all 

judicial review of Authority decisions involving arbitration awards. The 

plain text of the Statute leaves no ambiguity: it grants exclusive 

jurisdiction to the appellate courts; it then defines narrow 

circumstances where “judicial review” is permitted and unambiguously 

precludes any “judicial review” of Authority decisions regarding 

arbitration awards (other than orders involving ULPs). 5 U.S.C. 

§ 7123(a); see Loy, 367 F.3d at 935; ACT 2002, 283 F.3d at 341-42 (same 

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 39 of 59
30

concerning unit determinations). Accordingly, the Union has failed to 

satisfy the first prong of Leedom review that statutory preclusion is 

implied rather than express. 

III. Contrary to the Union’s Assertions, Alternative

Remedies Are Available.

To the extent that the Union’s brief raises concerns about harm to 

the bargaining unit employees without any right to judicial review 

under this Statute (Union Br. 17, 34), the unit employees have 

alternative remedies for their alleged harms and judicial review under 

other statutes.13 That deprives this Court of jurisdiction. 

While the Authority acknowledges the Union and its employees 

have no other judicial relief under the Statute, other statutes can 

provide “a meaningful and adequate opportunity for judicial review of” 

the employees’ underlying complaints about classification. See MCorp, 

502 U.S. at 43. As noted in the Arbitrator’s award dated January 24, 

2007, the Union, on behalf of the bargaining unit employees, could 

13 “[A]n argument going to the court's subject-matter jurisdiction must 

be considered no matter when it is raised.” 16AA Wright & Miller, Fed. 

Prac. & Proc. Juris. § 3974.3 (5th ed.); accord Sasser v. Adm’r, U.S. 

E.P.A., 990 F.2d 127, 129 (4th Cir. 1993).

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31

request a reclassification or desk audit, which would allow changes to 

the affected employees’ position descriptions. (JA 125.) A desk audit 

would determine which individuals should be reclassified to a different 

GS pay grade, the alleged harm at the center of this dispute. Chambers 

v. Burwell, 824 F.3d 141, 142 (D.C. Cir. 2016) (noting a “desk audit 

allows an employee to have her duties independently reviewed by a 

human resources specialist and if the audit reveals her responsibilities 

are at a higher level than her position is graded, then she is promoted to 

the higher level”). 

But the Union and its unit employees chose not to pursue a desk 

and/or reclassification audit, an appeal through the Office of Personnel 

Management (“OPM”) (5 C.F.R. pt. 511, subpt. F), or possible claims for 

reclassification with the Merit Systems Protection Board (“MSPB”) by 

alleging, if applicable, prohibited personnel practices.14 Instead, the 

Union pursued the instant case.

14 Under the Civil Service Reform Act of 1978, Congress “plainly 

intended to empower the [MSPB] to police all agencies and to be the 

final administrative word respecting prohibited personnel practices, 

even in the context of classification determinations.” Barnhart v. 

Devine, 771 F.2d 1515, 1523 (D.C. Cir. 1985). The Union cannot 

circumvent these other avenues for reclassification by failing to exhaust 

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32

Therefore, contrary to the Union’s assertions in its brief (Union 

Br. 17, 34), there are alternative remedies available. Equity does not 

support relief here, and the Union also fails to satisfy the second prong 

of Leedom review as alternative remedies exist. 

* * * * * *

As the underlying case involves a classification matter and the 

Arbitrator lacked jurisdiction over classification matters, the Authority 

acted within its statutory authority by vacating the arbitration awards 

and HUD I through HUD VII. Congress also clearly excluded the 

present dispute from judicial review. Finally, the employees 

represented by the Union have alternative remedies. Accordingly, the 

Union has failed to establish the need for the “extremely limited” 

Leedom jurisdiction under 28 U.S.C. § 1331. Griffith, 842 F.2d at 493. 

the required administrative remedies with OPM or by failing to allege 

any prohibited personnel practices with the MSPB. 

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33

CONCLUSION

For the foregoing reasons, the Authority respectfully requests the 

Court reverse the District Court’s decision that it had jurisdiction and 

vacate the District Court’s decisions.

Respectfully submitted,

/s/Rebecca J. Osborne

THOMAS TSO

Solicitor 

REBECCA J. OSBORNE

Deputy Solicitor

NARIEA K. NELSON

Attorney

Federal Labor Relations Authority

1400 K Street, NW

Washington, DC 20424

771-444-5778

June 30, 2023

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34

FED. R. APP. P. RULE 32(A) CERTIFICATION

Pursuant to Fed. R. App. P. 32(a)(7)(B)(i), I hereby certify that this 

brief is double-spaced (except for extended quotations, headings, and 

footnotes) and is proportionally spaced, using Century Schoolbook font, 

14-point type. Based on a word count of my word processing system, 

this brief contains fewer than 6,500 words. It contains 6,434 words 

excluding exempt material. 

/s/Rebecca J. Osborne

REBECCA J. OBSORNE

Deputy Solicitor

Federal Labor Relations Authority

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of June, 2023, I 

electronically filed the foregoing with the Clerk of the Court for the 

United States Court of Appeals for the District of Columbia Circuit by 

using the CM/ECF system. I also certify that the foregoing document is 

being served on counsel of record and that service will be accomplished 

by the CM/ECF system. 

/s/Rebecca J. Osborne

REBECCA J. OSBORNE

Deputy Solicitor 

Federal Labor Relations Authority

USCA Case #22-5308 Document #2005995 Filed: 06/30/2023 Page 44 of 59
ADDENDUM

Relevant Statutes/Regulations

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1

TABLE OF CONTENTS

Authority Page

STATUTES................................................................................................3

5 U.S.C. § 7103. Definitions; application.........................................3

 5 U.S.C. § 7105. Powers and duties of the Authority.......................4

5 U.S.C. § 7121. Grievance procedures............................................4

5 U.S.C. § 7122. Exceptions to arbitral awards...............................5

5 U.S.C. § 7123. Judicial review; enforcement................................5

28 U.S.C. § 1331. Federal question..................................................6

REGULATIONS........................................................................................6

5 C.F.R. pt. 511, subpt. F, Classification Appeals...........................6

§ 511.601 Applicability of regulations.........................................6

§ 511.602 Notification of classification decision..........................6

§ 511.603 Right to appeal. ...........................................................7

§ 511.604 Filing an appeal. .........................................................7

§ 511.605 Time limits. .................................................................8

§ 511.606 Form and content of an appeal. ..................................8

§ 511.607 Nonappealable issues..................................................9

§ 511.608 Employee representatives.........................................10

§ 511.609 Ascertainment of facts. .............................................11

§ 511.610 Notification................................................................11

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2

§ 511.611 Cancellation of an employee appeal. ........................11

§ 511.612 Finality of decision. ...................................................11

§ 511.613 Appeals reconsideration by the Office. .....................12

§ 511.614 Review by the Director..............................................12

§ 511.615 Temporary compliance authority..............................12

§ 511.616 Availability of information........................................13

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3

STATUTES

5 U.S.C. § 7103. Definitions; application

(a) For the purpose of this chapter—

(8) “collective bargaining agreement” means an agreement 

entered into as a result of collective bargaining pursuant to 

the provisions of this chapter;

(9) “grievance means any complaint—

(A) by any employee concerning any matter relating to the 

employment of the employee;

(B) by any labor organization concerning any matter 

relating to the employment of any employee; or

(C) by any employee, labor organization, or agency 

concerning—

(i) the effect or interpretation, or a claim of breach, 

of a collective bargaining agreement; or 

(ii) any claimed violation, misinterpretation, or 

misapplication of any law, rule, or regulation 

affecting conditions of employment;

(12) “collective bargaining” means the performance of the mutual 

obligation of the representative of an agency and the 

exclusive representative of employees in an appropriate unit 

in the agency to meet at reasonable times and to consult and 

bargain in a good-faith effort to reach agreement with 

respect to the conditions of employment affecting such 

employees and to execute, if requested by either party, a 

written document incorporating any collective bargaining 

agreement reached, but the obligation referred to in this 

paragraph does not compel either party to agree to a 

proposal or to make a concession;

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4

(14) “conditions of employment” means personnel policies, 

practices, and matters, whether established by rule, 

regulation, or otherwise, affecting working conditions, except 

that such term does not include policies, practices, and 

matters--

(B) relating to the classification of any position; or

5 U.S.C. § 7105. Powers and duties of the Authority

(a)(2) The Authority shall, to the extent provided in this chapter 

and in accordance with regulations prescribed by the 

Authority—

(H) resolve exceptions to arbitrator’s awards under section 

7122 of this title; and

(I) take such other actions as are necessary and 

appropriate to effectively administer the provisions of 

this chapter.

5 U.S.C. § 7121. Grievance procedures

(c) The preceding subsections of this section shall not apply with 

respect to any grievance concerning—

(5) the classification of any position which does not result 

in the reduction in grade or pay of an employee

(f) In matters covered under sections 4303 and 7512 of this title 

which have been raised under the negotiated grievance 

procedure in accordance with this section, section 7703 of this 

title pertaining to judicial review shall apply to the award of an 

arbitrator in the same manner and under the same conditions 

as if the matter had been decided by the Board. In matters 

similar to those covered under sections 4303 and 7512 of this 

title which arise under other personnel systems and which an 

aggrieved employee has raised under the negotiated grievance 

procedure, judicial review of an arbitrator’s award may be 

obtained in the same manner and on the same basis as could be 

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5

obtained of a final decision in such matters raised under 

applicable appellate procedures.

5 U.S.C. § 7122. Exceptions to arbitral awards

(a) Either party to arbitration under this chapter may file with the 

Authority an exception to any arbitrator’s award pursuant to the 

arbitration (other than an award relating to a matter described in 

section 7121(f) of this title). If upon review the Authority finds 

that the award is deficient—

(1) because it is contrary to any law, rule, or regulation; or

(2) on other grounds similar to those applied by Federal courts 

in private sector labor-management relations;

the Authority may take such action and make such 

recommendations concerning the award as it considers necessary, 

consistent with applicable laws, rules, or regulations.

(b) If no exception to an arbitrator’s award is filed under subsection 

(a) of this section during the 30-day period beginning on the date 

the award is served on the party, the award shall be final and 

binding. An agency shall take the actions required by an 

arbitrator’s final award. The award may include the payment of 

backpay (as provided in section 5596 of this title).

5 U.S.C. § 7123. Judicial review; enforcement

(a) Any person aggrieved by any final order of the Authority other 

than an order under--

(1) section 7122 of this title (involving an award by an 

arbitrator), unless the order involves an unfair labor practice 

under section 7118 of this title; or

(2) section 7112 of this title (involving an appropriate unit 

determination),

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6

may, during the 60-day period beginning on the date which the order 

was issued, institute an action for judicial review of the Authority’s 

order in the United States court of appeals in the circuit in which the 

person resides or transacts business or in the United States Court of 

Appeals for the District of Columbia.

28 U.S.C. § 1331. Federal question

The district courts shall have original jurisdiction of all civil actions 

arising under the Constitution, laws, or treaties of the United States.

REGULATIONS

5 C.F.R. pt. 511, subpt. F, Classification Appeals.

§ 511.601 Applicability of regulations.

This subpart applies to a request from an employee or an agency for the 

Office to review the classification of a position subject to chapter 51 of 

title 5, United States Code, or for the Office to determine whether a 

position is subject to that chapter. 

§ 511.602 Notification of classification decision.

An employee whose position is reclassified to a lower grade which is 

based in whole or in part on a classification decision is entitled to a 

prompt written notice from the agency. This includes employees who 

are eligible for retained grade or pay. If the reclassification is due to an 

Office classification certificate issued under the authority of 5 U.S.C. 

5110, the agency will also explain the reasons for the reclassification 

action to the employee. This notice shall inform the employee: 

(a) Of his or her right to appeal the classification decision to the 

agency (if the agency has an established appeal system and it 

has the authority to review the classification decision), or to the 

Office as provided in this subpart if such an appeal has not 

already been made; 

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(b) Of the time limits within which the employee's appeal must be 

filed in order to preserve any retroactive benefits under § 

511.703; and 

(c) Any other appeal or grievance rights available under applicable 

law, rule, regulation or negotiated agreement. 

§ 511.603 Right to appeal.

(a) Employee appeal. An employee, or the employee's designated 

representative acting on behalf of an employee, may request an 

Office decision as to: 

(1) The appropriate occupational series or grade of the employee's 

official position. 

(2) The inclusion under or exclusion from chapter 51 of title 5, 

United States Code, of the official position by the employee's 

agency or the Office, except in the case of a position located in 

the Office of the Architect of the Capitol. 

(b) Agency appeal. The head of an agency, or an authorized 

representative, may appeal any classification certificate issued by 

the Office under sections 5103 or 5110 of title 5, U.S.C., with 

respect to any position in the agency. 

§ 511.604 Filing an appeal.

(a) Employee. An employee may appeal by writing to the Office 

directly, or by forwarding the appeal through the employing 

agency. 

(b) Referral of an employee appeal to the Office. An agency shall 

forward, within 60 calendar days of its receipt in the agency, and 

employee's appeal filed through the agency to the Office when: 

(1) The employee has directed the appeal to the Office and the 

agency's written decision is not favorable; or 

(2) The agency is not authorized to act on the employee's appeal; or 

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(3) The agency has not decided the appeal within the established 

time period. 

§ 511.605 Time limits.

(a) Employees. 

(1) An employee may submit an appeal of his or her official 

position at any time. If the employee has suffered a loss in 

grade or pay, is not entitled to retained grade or pay, and 

desires retroactive adjustments, the time limits in § 511.703 

must be observed. 

(2) If the employee is appealing an agency decision or an Office 

classification certificate issued under 5 U.S.C. 5103 or 5110, the 

employee shall promptly appeal if he or she disagrees with the 

classification certificate. Employees must meet the time limits 

provided in § 511.703 in order to preserve the right to 

retroactive adjustment. 

(b) Agency. An agency may appeal an Office classification certificate 

issued under authority of section 5103 or 5110 of title 5, United 

States Code, at any time. Heads of agencies should appeal prior to 

the implementation date of the certificate if they disagree with the 

classification rationale. 

(c) Reconsideration. An employee or agency may request 

reconsideration of an Office appellate decision. The request must 

be in writing, and filed not later than 45 calendar days after the 

decision is issued. This time limit may be waived under 

exceptional circumstances by either the Director or the Director's 

designee. 

§ 511.606 Form and content of an appeal.

(a) Employee appeal. An employee's appeal shall be in writing, and 

shall contain the reasons why the employee believes his or her 

position is erroneously classified, or should be brought under or 

excluded from chapter 51 of title 5, United States Code. The 

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agency, when forwarding the employee's appeal or when requested 

by the Office, shall furnish all relevant facts concerning the 

position and the agency's justification for its classification 

decision. The agency shall also comment on the information 

submitted by the employee if requested to do so by the Office. 

Either the employee or agency may submit relevant information to 

the Office at any time following the initial filing of an appeal. 

(b) Agency appeal. An agency's appeal shall be in writing, and shall 

contain its reasons and justification for requesting a review of the 

Office's certificate. 

(c) Inspection of the Office's appellate record. The employee, an 

employee's representative and the agency will be permitted to 

inspect the Office's appellate record on request. Agencies will 

make available to appellants copies of any and all information 

submitted by the agency to the Office with respect to the 

appellant's individual appeal. 

§ 511.607 Nonappealable issues.

(a) The following issues are not appealable to the Office under this 

subpart. Such issues may be reviewed under administrative or 

negotiated grievance procedures if applicable: 

(1) The accuracy of the official position description including the 

inclusion or exclusion of a major duty in the official position 

description. When the accuracy of the official position 

description is questioned by the employee, the employee will be 

directed to review this matter with his or her supervisor. If 

management and the employee cannot resolve their differences 

informally, the accuracy of the position description should be 

reviewed in accordance with administrative or negotiated 

grievance procedures. If the accuracy of the position description 

cannot be resolved in this manner, the Office will decide the 

appeal on the basis of the actual duties and responsibilities 

assigned by management and performed by the employee; 

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(2) An assignment or detail out of the scope of normally performed 

duties as outlined in the official position description; 

(3) The accuracy, consistency or use of agency supplemental 

classification guides; or, 

(4) The title of the position unless a specific title is authorized in a

published Office classification standard or guide, or the title 

reflects a qualification requirement or authorized area of 

specialization. 

(b) The following issues are neither appealable nor reviewable: 

(1) The class, grade, or pay system of a position to which the 

employee is not officially assigned by an official personnel 

action; 

(2) An agency's proposed classification decision; 

(3) The class, grade, or pay system of a position to which the 

employee is detailed or promoted on a time-limited basis, 

except that employees serving under time-limited promotion for 

2 years or more may appeal the classification of their positions 

to the Office under these procedures. 

(4) The classification of the employee's position based on positionto-position comparisons and not standards; 

(5) The accuracy of grade level criteria contained in an Office 

classification guide or standard; or 

(6) A classification decision that has been issued by the Office 

under this subpart when there has been no change in the 

governing classification standard(s) or the major duties of the 

position. 

§ 511.608 Employee representatives.

An employee may select a representative of his or her choice to assist in 

the preparation and presentation of an appeal. An agency may disallow 

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an employee's representative when the individual's activities as a 

representative would cause a conflict of interest or position; an 

employee who cannot be released from his or her official duties because 

of the priority needs of the Government; or an employee whose release 

would give rise to unreasonable costs to the Government. 

§ 511.609 Ascertainment of facts.

The employee, a designated representative, and the agency shall 

furnish such facts as may be requested by the Office within the time 

frames specified. The facts shall be in writing when so requested. The 

Office, in its discretion, may investigate or audit the position. A 

representative may not participate in OPM on-site audits unless 

specifically requested to do so by the Office. 

§ 511.610 Notification.

The Office shall notify the employee, or a representative if one is 

designated, and the agency in writing of its decision. 

§ 511.611 Cancellation of an employee appeal.

An employee's appeal shall be cancelled and the employee so notified in 

writing in the following circumstances: 

(a) On receipt of the employee's written request for cancellation. 

(b) On failure to prosecute, when the employee or the designated 

representative does not furnish requested information, or 

proceed with the advancement of the appeal. 

The Office may at its discretion reopen a cancelled appeal on a showing 

that circumstances beyond the control of the employee prevented 

pursuing the appeal. 

§ 511.612 Finality of decision.

An appellate decision made by the Office is final unless reconsidered by 

the Office. There is no further right of appeal. The Office may 

reconsider a decision at its discretion. The decision shall constitute a 

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certificate which is mandatory and binding on all administrative, 

certifying, payroll, disbursing, and accounting officials of the 

Government. Agencies shall review their own classification decisions for 

identical, similar or related positions to insure consistency with the 

Office's certificate. 

§ 511.613 Appeals reconsideration by the Office.

The Office may, at its discretion, reopen and reconsider a certificate 

issued under this subpart. 

(a) Requests which contain new and material information, or 

disagreements over the significance of information, will be 

remanded to the Director's designee for a decision. 

(b) The Office may reopen and reconsider a decision only when 

written argument or evidence is presented which establishes a 

reasonable doubt concerning the technical accuracy of the 

decision. 

§ 511.614 Review by the Director.

The Director may, at his or her discretion, reopen and reconsider any 

decision when written argument or evidence is submitted which tends 

to establish that: 

(a) The previous decision involves an erroneous interpretation of 

law or regulation, or a misapplication of established policy: 

(b) The previous decision is of a precedential nature involving a 

new or unreviewed policy consideration that may have effects 

beyond the actual case at hand, or is otherwise of such an 

exceptional nature as to merit the personal attention of the 

Director. 

§ 511.615 Temporary compliance authority.

Agencies may use temporary or conditional compliance action, e.g., a 

temporary promotion or a temporary reassignment when available, if: 

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(a) A position has been certified by the Office under either section 

5110 or 5112 of title 5, United States Code; 

(b) The certificate has not been suspended; and, 

(c) The agency or employee has requested reconsideration. 

This authority will not be used if the position has been downgraded and 

the employee is entitled to retained grade under section 5362 of title 5, 

United States Code. 

§ 511.616 Availability of information.

(a) The Office, upon a request which identifies the individual from 

whose file the information is sought, shall disclose the following 

information from an appeal file to a member of the public, except 

when the disclosure would constitute a clearly unwarranted 

invasion of personal privacy: 

(1) Confirmation of the name of the individual from whose file the 

information is sought and the names of the other parties 

concerned; 

(2) The status of the appeal; 

(3) The results of the appeal (i.e., proper title, pay plan, series, and 

grade); 

(4) the classification requested (i.e., title, pay plan, series, and 

grade); and 

(5) With the consent of the parties concerned, other reasonably 

identified information from the file. 

(b) The Office will disclose to the parties concerned the information 

contained in an appeal file in proceedings under this part. For the 

purposes of this section, the parties concerned means the 

Government employee or former Government employee involved 

in the proceedings, his or her representative designated in 

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writing, and the representative of the agency or the Office 

involved in the proceeding.

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