ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED

No. 22-1028

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NATIONAL ASSOCIATION OF IMMIGRATION JUDGES, 

INTERNATIONAL FEDERATION OF PROFESSIONAL AND 

TECHNICAL ENGINEERS JUDICIAL COUNCIL 2,

Petitioner,

v.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent,

ON PETITION FOR REVIEW OF DECISIONS OF

THE FEDERAL LABOR RELATIONS AUTHORITY

BRIEF FOR RESPONDENT

FEDERAL LABOR RELATIONS AUTHORITY

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

Federal Labor Relations

Authority 1400 K Street, N.W.

Suite 200

Washington, D.C. 20424

(202) 218-7906

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CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES

A. Parties

Appearing below before the Federal Labor Relations Authority 

(the “Authority”) were the National Association of Immigration Judges, 

International Federation of Professional and Technical Engineers 

Judicial Council 2 (the “Union”) and the U.S. Department of Justice, 

Executive Office for Immigration Review. In this Court proceeding, the 

Union is the petitioner and the Authority is the respondent.

B. Rulings Under Review

The Union seeks review of two Authority decisions: U.S. 

Department of Justice Executive Office for Immigration Review

(“EOIR I”), 71 FLRA 1046 (2020) (then-Member DuBester dissenting) 

and U.S. Department of Justice, Executive Office for Immigration 

Review, 72 FLRA 622 (2022) (denying reconsideration of EOIR I) 

(Chairman DuBester dissenting).

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C. Related Cases

This case was not previously before this Court or any other court, 

nor is the Authority aware of any related cases currently pending before 

this Court or any other court.

/s/ Noah Peters

Noah Peters

Solicitor

Federal Labor Relations Authority

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TABLE OF CONTENTS

CERTIFICATE OF PARTIES, RULINGS, AND RELATED 

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

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

TABLE OF AUTHORITIES...................................................................v

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

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

STATEMENT OF THE ISSUES PRESENTED ..................................5

RELEVANT STATUTORY PROVISIONS...........................................6

STATEMENT OF THE CASE................................................................6

STATEMENT OF THE FACTS.............................................................8

I. The Statutory Framework................................................................8

II. Factual Background........................................................................10

SUMMARY OF ARGUMENT ..............................................................24

STANDARD OF REVIEW....................................................................31

ARGUMENT ..........................................................................................32

I. The Court Lacks Jurisdiction to Consider the Petition for 

Review.............................................................................................32

A. The Union’s Petition for Review is Incurably Premature...........32

B. This Court Lacks Jurisdiction to Review Authority AppropriateUnit Determinations....................................................................34

1. The Statute Expressly Precludes Direct Review of Authority 

Appropriate-Unit Determinations............................................34

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2. The Authority Decisions Under Review Involve an 

“Appropriate-Unit Determination”...........................................36

3. The Representation Petition and ULP Processes Provide 

Adequate Means for the Union to Obtain Review ...................38

4. Even if Webster and Griffith Applied (and They Do Not), the 

Appropriate Forum for the Union to Bring its Claims is 

District Court, Not Circuit Court.............................................45

5. The Union’s Arguments for Why FLRA Administrative 

Processes Are Inadequate Are Meritless .................................46

II. The Union’s Constitutional Claims Are Without Merit.................51

A. The Union Has No Protected Liberty Interest............................54

B. The Union’s Procedural Due Process Claims Are Without 

Merit.............................................................................................54

1. The Union Waived Any Challenge to the Regional Director’s 

Finding of a Substantial Change Because It Did Not Contest 

that Finding Before the Authority ...........................................55

2. The Dispute Was Not Moot and EOIR II and EOIR III Were 

Not Advisory Opinions..............................................................60

3. The Authority’s Internal Case Processing Guidelines Did Not 

Deprive the Union of Due Process............................................63

C. The Union’s Substantive Due Process Claims Are Meritless.....64

CONCLUSION.......................................................................................67

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TABLE OF AUTHORITIES

Cases Page(s)

Am. Fed’n of Gov’t Emps. v. FLRA,

778 F.2d 850 (D.C. Cir. 1985)...............................................5, 26, 41, 43

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

367 F.3d 932 (D.C. Cir. 2004)...................................................25, 35, 41

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

929 F.3d 748 (D.C. Cir. 2019)....................................4, 26, 27, 40, 42-43

Am. Fed’n of Gov’t Emps., AFL-CIO, Loc. 2798 v. Pope,

808 F. Supp. 2d 99 (D.D.C. 2011).........................................................55

Am. Fed’n of Gov’t Emps., AFL-CIO, Loc. 2798 v. Pope, 

No. 11-5308, 012 WL 1450584 (D.C. Cir. Apr. 12, 2012) .....................55

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

475 F.3d 341 (D.C. Cir. 2007)...............................................................54

Am. Fed’n of Govt Emps., Loc. 3354, AFL-CIO,

58 FLRA 184 (2002)..............................................................................50

Am. Fed’n of Labor v. NLRB,

308 U.S. 401 (1940)...............................................................................31

Antilles Consol. Educ. Ass’n,

36 FLRA 776 (1990)..............................................................................50

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

283 F.3d 339 (D.C. Cir. 2002)..............3, 4, 25, 27, 35, 39, 43, 44, 48, 51 

Bd. of Governors Off. of Cuba Broad. v. FLRA,

752 F.3d 453 (D.C. Cir. 2014)...............................................................31

Bennett v. SEC,

844 F.3d 174 (4th Cir. 2016).................................................................40

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Bldg. & Constr. Trades Dep’t. v. Solis,

600 F. Supp. 2d 25 (D.D.C. 2009).........................................................62

Butera v. Dist. of Columbia,

235 F.3d 637 (D.C. Cir. 2001)...............................................................65

Chafin v. Chafin,

568 U.S. 165 (2013)...............................................................................63

Cnty. of Sacramento v. Lewis,

523 U.S. 833 (1998)...............................................................................65

Council of Prison Locs. v. Brewer,

735 F.2d 1497 (D.C. Cir. 1984)....................................... 4, 26, 27, 41, 43

Dep’t of Health and Hum. Servs.,

16 FLRA 586 (1984)..............................................................................50

Dep’t of Just., Bd. of Immigr. Appeals,

47 FLRA 505 (1993)..........................................................................7, 11

Eisinger v. FLRA,

218 F.3d 1097 (9th Cir. 2000)...............................................................35

Elgin v. Dep’t of Treasury,

567 U.S. 1 (2012)............................................................. 4, 26, 40, 43, 44

Elkins v. Dist. of Columbia,

527 F. Supp. 2d 36 (D.D.C. 2007).........................................................65

Equal Emp. Opportunity Comm’n v. FLRA,

476 U.S. 19 (1986).................................................................................32

Flat Wireless, L.L.C. v. FCC,

944 F.3d 927 (D.C. Cir. 2019).....................................................1, 24, 32

Friends of Earth v. U.S. Nuclear Regul. Comm’n,

851 F. App’x 212 (D.C. Cir. 2021).........................................................33

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Griffith v. FLRA,

842 F.2d 487 (D.C. Cir. 1988)..............................................27, 43-44, 46

INEOS USA L.L.C. v. FERC,

940 F.3d 1326 (D.C. Cir. 2019).............................................................57

Jarkesy v. SEC,

803 F.3d 9 (D.C. Cir. 2015)...................................................................32

Leedom v. Kyne,

358 U.S. 184 (1958)...............................................................................46

Liteky v. United States,

510 U.S. 540 (1994)...............................................................................66

Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982).........................................................................30, 54

Lucia v. SEC,

138 S. Ct. 2044 (2020)...........................................................................15

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992)...............................................................................31

Mathews v. Eldridge,

424 U.S. 319 (1976)...............................................................................54

McCulloch v. Libbey-Owens-Ford Glass Co.,

403 F.2d 916 (D.C. Cir. 1968)...............................................................46

Nat’l Army and Air Technicians Ass’n,

7 FLRA 154 (1981)................................................................................50

Nat’l Ass’n of Agric. Emps. v. FLRA,

473 F.3d 983 (9th Cir. 2007).....................................................25, 36, 37

Nat’l Ass’n of Indep. Lab. v. FLRA,

No. 10-1135, 2010 WL 4340475 (D.C. Cir. Oct. 1, 2010)......................35

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Nat’l Treasury Emps. Union v. FLRA,

754 F.3d 1031 (D.C. Cir. 2014).............................................................32

Nat’l Fed’n of Fed. Emps., Loc. 15,

43 FLRA 1165 (1992)............................................................................61

Pearson v. Dist. of Columbia,

644 F. Supp. 2d 23 (D.D.C. 2009).........................................................54

Pioneer Hotel, Inc. v. NLRB,

182 F.3d 939 (D.C. Cir. 1999)...............................................................66

Power v. FLRA,

146 F.3d 995 (D.C. Cir. 1998)...............................................................67

Pro. Air Traffic Controllers Org. v. FLRA,

685 F.2d 547 (D.C. Cir. 1982)...............................................................65

Reno v. Flores,

507 U.S. 292 (1993)...............................................................................52

S. Dep’t of the Army Mil. Traffic Mgmt. Command,

60 FLRA 709 (2005)..............................................................................60

Schwarz Partners Packaging, LLC v. NLRB,

12 F. Supp. 3d 73 (D.D.C. 2014)...........................................................45

Silverman v. Barry,

845 F.2d 1072 (D.C. Cir. 1988).............................................................65

Smith v. Ark. State Highway Emps., Loc.,

441 U.S. 463 (1979)...................................................................29, 52, 53

Steadman v. Governor, U.S. Soldiers’ & Airmen’s Home,

918 F.2d 963 (D.C. Cir. 1990).........................................................41, 45

TeleSTAR, Inc. v. FCC,

888 F.2d 132 (D.C. Cir. 1989)...........................................................1, 33

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Tenn. Gas Pipeline Co. v. Fed. Power Comm’n,

606 F.2d 1373 (D.C. Cir. 1979).............................................................63

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994).........................................................................40, 44

Tilton v. SEC,

824 F.3d 276 (2d Cir. 2016) ..................................................................39

U.S. Dep’t of Just. Exec. Off. for Immigr. Rev.,

71 FLRA 1046 (2020)..................1, 6, 7, 11, 15-16, 22, 37, 53, 56, 61, 63

U.S. Dep’t of Just., Exec. Off. For Immigr. Rev.,

72 FLRA 622 (2022)........... 1, 2, 6, 8, 19, 22-25, 27-29, 33-34, 36-38, 41,

46, 47, 51, 56, 57, 60-64, 66

U.S. Dep’t of Just., Exec. Off. For Immigr. Rev.,

72 FLRA 733 (2022).................................. 2, 23-24, 28, 33-34, 60, 61, 64

U.S. Dep’t of Just. v. FLRA,

727 F.2d 481 (5th Cir. 1984).................................................................35

U.S. Dep’t of Just., Exec. Off. for Immigr. Rev., Off. of the Chief

 Immigr. Judge,

56 FLRA 616 (2000).................................... 6, 7, 10-11, 13-18, 19, 21, 22

U.S. Dep’t of the Air Force, Air Force Materiel Command, WrightPatterson Air Force Base,

70 FLRA 327 (2017)..........................................................................9, 55

U.S. Dep’t of Transp.,

63 FLRA 356 (2009)..............................................................................14

U.S. Dep’t of Treasury, U.S. Customs Serv. v. FLRA,

43 F.3d 682 (D.C. Cir. 1994).....................................................27, 45, 46

U.S. Small Bus. Admin.,

34 FLRA 392 (1990)..............................................................................58

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United States v. L.A. Tucker Truck Lines, Inc.,

344 U.S. 33 (1952).................................................................................48

Wade v. FCC,

986 F.2d 1433 (D.C. Cir. 1993).........................................................1, 33

Washington v. Glucksberg,

521 U.S. 702, 721 (1997).......................................................................52

Webster v. Doe,

486 U.S. 592 (1988).........................................................................27, 43

Withrow v. Larkin,

421 U.S. 35 (1975).................................................................................65

Woodford v. Ngo,

548 U.S. 81 (2006)...........................................................................28, 48

Zhang v. U.S. Citizen & Immigr. Servs.,

978 F.3d 1314 (D.C. Cir. 2020).............................................................57

Zukerman v. U.S. Postal Serv.,

961 F.3d 431 (D.C. Cir. 2020)...............................................................63

Statutes

5 U.S.C. § 7102 ........................................................................................49

5 U.S.C. § 7103(a).............................................................. 8, 10, 18, 37, 53

5 U.S.C. § 7105(f).....................................................................................58

5 U.S.C. § 7112 .........................................3, 8, 9, 18, 25, 34, 35, 37, 52, 53

5 U.S.C. § 7116(a)(1)..........................................................................49, 50

5 U.S.C. § 7118(a)(1)................................................................................50

5 U.S.C. § 7123 ................... 1, 3, 5, 24-25, 30, 32, 34-36, 38-39, 44, 48, 67

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5 U.S.C. §§ 7101-7135 (2018) ....................................................................1

Regulations

5 C.F.R. § 2422.1(a), (b).............................................................8, 9, 24, 39

5 C.F.R. § 2422.2 (a), (c) ............................................................8, 9, 24, 39

5 C.F.R. § 2422.30(c), (d) .....................................................................9, 58

5 C.F.R. § 2422.31(b), (c) .................................... 7, 9, 14, 15, 20, 21, 56-60

5 C.F.R. § 2423.3(a).................................................................................49

5 C.F.R. § 2429.5 .....................................................................................58

5 C.F.R. § 2429.17 ...................................................................................61

Legislative History

Civil Service Reform Act of 1978, H.R. Conf. Rep. No. 95-1717 at 153 

(Oct. 5, 1978). ..................................................................................35, 45

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GLOSSARY

Authority The Federal Labor Relations Authority

BIA Board of Immigration Appeals

Pet’r Br. Petitioners’ opening brief 

EOIR The U.S. Department of Justice, Executive Office 

for Immigration Review

EOIR I U.S. Department of Justice Executive Office for 

Immigration Review, 71 FLRA 1046 (Nov. 2, 

2020)

EOIR II U.S. Department of Justice, Executive Office for 

Immigration Review, 72 FLRA 622 (Jan. 21, 

2022) 

EOIR III U.S. Department of Justice, Executive Office for 

Immigration Review, 72 FLRA 733 (April 12, 

2022)

FLRA The Federal Labor Relations Authority

IJ Immigration Judge

JA Joint Appendix

Statute The Federal Service Labor-Management 

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

ULP Unfair Labor Practice

Union Petitioner, the National Association of 

Immigration Judges, International Federation of 

Professional and Technical Engineers Judicial 

Council 2

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STATEMENT REGARDING JURISDICTION

This Court lacks jurisdiction over this Petition for Review of U.S. 

Department of Justice Executive Office for Immigration Review

(“EOIR I”), 71 FLRA 1046 (2020) (then-Member DuBester dissenting) 

and U.S. Department of Justice, Executive Office for Immigration 

Review (“EOIR II”), 72 FLRA 622 (2022) (Chairman DuBester 

dissenting) (denying reconsideration of EOIR I). 

First, the Petition for Review is incurably premature. The Federal 

Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 

(2018) (the “Statute”) allows aggrieved persons to obtain judicial review 

only of a “final order” of the Authority. 5 U.S.C. § 7123(a). “[A] pending 

request for administrative reconsideration renders an agency action 

nonfinal and unreviewable with respect to the party who made the 

request.” Flat Wireless, L.L.C. v. FCC, 944 F.3d 927, 933 (D.C. Cir. 

2019) (citing TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133 (D.C. Cir. 1989) 

(per curiam)). Consequently, “a petition for judicial review filed during 

the pendency of a request for agency reconsideration will be dismissed 

for lack of jurisdiction.” Wade v. FCC, 986 F.2d 1433, 1433 (D.C. Cir. 

1993).

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In this case, the National Association of Immigration Judges, 

International Federation of Professional and Technical Engineers 

Judicial Council 2 (the “Union”) moved the Federal Labor Relations 

Authority (“Authority” or “FLRA”) for reconsideration of EOIR II on 

February 7, 2022, two weeks before filing its Petition for Review in this 

Court. See U.S. Dep’t of Just., Exec. Off. for Immigr. Rev. (“EOIR III”), 

72 FLRA 733 (2022) (Chairman DuBester dissenting). The Union’s 

reconsideration motion was still pending before the Authority when the 

Petition for Review was filed—rendering the Petition for Review 

incurably premature.

Moreover, on July 21, 2022, the Union filed a Representation 

Petition with an FLRA Regional Director. (Rep. Pet.) With that 

Representation Petition, the Union is asking the FLRA to reconsider its 

previous rulings decertifying it. The Representation Petition could 

provide the Union with the precise relief that it seeks in this 

proceeding—recertification as the exclusive representative of 

Immigration Judges (“IJs”). Until the Representation Petition process 

is complete, the Petition for Review is incurably premature. 

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Second, the Statute states, “[a]ny person aggrieved by any final 

order of the Authority other than an order under . . . section 7112 of this 

title (involving an appropriate[-]unit determination), may . . . institute 

an action for judicial review of the Authority’s order.” 5 U.S.C. § 

7123(a)(2) (emphasis added). Here, the Union seeks to circumvent this 

express jurisdictional bar. The Union would have this Court directly 

review two Authority decisions determining that a bargaining unit was 

not appropriate under 5 U.S.C. § 7112. The plain language of § 

7123(a)(2) forbids the attempt. This Court has made clear that “section 

7123 [of the Statute] precludes direct review of Authority appropriate[-

]unit determinations.” Ass’n of Civilian Technicians, Inc. v. FLRA 

(“ACT”), 283 F.3d 339, 342 (D.C. Cir. 2002).

The Union’s assertion of constitutional claims does not give it 

license to bypass the Statute’s exclusive review scheme. For one thing, 

those constitutional claims are not properly part of the Union’s Petition 

for Review. They were first asserted as part of the Union’s second 

motion for reconsideration, filed on February 7, 2022, which was still 

pending before the Authority when the Union filed the Petition for 

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Review. (See Union’s Second Mot. Recons. Stay.) Nor has the Union 

amended its Petition for Review to include those claims.

For another, those constitutional claims are “the vehicle by which” 

the Union seeks to overturn the Authority’s prior determinations and 

require the Authority to recertify the IJs as an appropriate bargaining 

unit. Elgin v. Dep’t of Treasury, 567 U.S. 1, 22 (2012). As a result, the 

Union’s constitutional claims “fall within the exclusive statutory 

scheme.” Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump (“AFGE v. 

Trump”), 929 F.3d 748, 761 (D.C. Cir. 2019). The Union may not bypass 

the Statute’s procedures by seeking something that the Statute bars—

direct review of an FLRA appropriate-unit determination. Id.

Instead, the appropriate forum for the Union’s constitutional 

claims—just like any of the Union’s other claims stemming from the 

Authority’s unit determination—is an unfair labor practice (“ULP”) 

proceeding before the Authority, with judicial review to follow (if 

necessary) before a federal court of appeals. See, e.g., ACT, 283 F.3d at 

342; Council of Prison Locs. v. Brewer (“Brewer”), 735 F.2d 1497, 1499-

1500 (D.C. Cir. 1984); Am. Fed’n of Gov’t Emps. v. FLRA (“AFGE 

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1985”), 778 F.2d 850, 857 (D.C. Cir. 1985). The Union’s failure to follow 

that route deprives this Court of jurisdiction.

These jurisdictional flaws require that the Court dismiss the 

Union’s Petition for Review.

STATEMENT OF THE ISSUES PRESENTED

1. Is the Union’s Petition for Review incurably premature?

2. Can this Court review an Authority appropriate-unit 

determination on direct appeal notwithstanding 5 U.S.C. § 7123(a)(2)?

3. Can the Union establish a constitutional interest in being a 

certified representative when it has no right to engage in collective 

bargaining under the Statute?

4. Has the Union established a procedural due process 

violation when the Authority three times considered and rejected the 

Union’s arguments in accordance with Authority procedures?

5. Has the Union sustained its burden of establishing a 

violation of substantive due process by merely asserting that 

Authority’s decisions were arbitrary and capricious?

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RELEVANT STATUTORY PROVISIONS

All relevant statutory and regulatory provisions are in the 

attached Statutory Addendum. (Add. 1.)

STATEMENT OF THE CASE

The Petition for Review seeks to challenge the Authority’s 

appropriate-unit determinations in EOIR I and EOIR II. 

The U.S. Department of Justice, Executive Office for Immigration 

Review (“EOIR”) employs IJs to hear and decide immigration cases. 

U.S. Dep’t of Just., Exec. Off. for Immigr. Rev., Off. of the Chief Immigr. 

Judge (“EOIR 2000”), 56 FLRA 616, 617 (2000). In 2019, EOIR filed a 

petition with an FLRA Regional Director challenging IJs’ unionized 

status on the ground that IJs were management officials under the 

Statute. EOIR contended that major changes in the scope and nature of 

IJs’ duties justified a reexamination of their status under the Statute. 

See EOIR I, 71 FLRA at 1046. 

The Regional Director agreed that there had been a “substantial 

change” to IJs’ duties that altered the “scope or character of the unit 

since the last certification.” Id. at 1062-63. After undertaking this 

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reevaluation, the Regional Director concluded that IJs are not 

management officials under the Statute. Id. at 1047.

The Authority may review a Regional Director’s decision on unit 

certification when established Authority precedent warrants 

reconsideration. 5 C.F.R. § 2422.31(c)(2). EOIR filed an application for 

review of the Regional Director’s decision, contending, inter alia, that 

EOIR 2000’s holding that IJs were not management officials conflicted 

with an earlier case finding that Members of the Board of Immigration 

Appeals (“BIA”) were management officials. See Dep’t of Just., Bd. of 

Immigr. Appeals (“BIA”), 47 FLRA 505, 509 (1993). 

Upon review, the Authority adopted the Regional Director’s 

unchallenged finding that there had been a substantial change in the 

IJs’ duties since EOIR 2000. EOIR I, 71 FLRA at 1047 (citing 5 C.F.R. 

§ 2422.31(c)). The Authority, like the Regional Director, then 

reassessed the appropriateness of the IJ bargaining unit. The 

Authority found that EOIR 2000 should be overruled because it 

conflicted with BIA. Id. at 1048. 

EOIR 2000 had attempted to distinguish IJs from BIA Members

because IJs’ decisions were reviewable by the BIA. Id. The Authority, 

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however, found that “IJ decisions influence the policy of [EOIR] for 

similar reasons that [BIA] Member decisions influence the policy of 

[EOIR].” Id. at 1048. 

The Union moved for reconsideration, which the Authority denied. 

See EOIR II. The Union filed a second motion for reconsideration with 

the Authority on February 7, 2022. Without waiting for the Authority 

to decide its second motion for reconsideration, however, the Union filed 

a Petition for Review in this Court on February 23, 2022. (Pet. for 

Review.) On July 21, 2022, five months after it filed the Petition for 

Review, the Union filed a new Representation Petition with the FLRA, 

asking it to recertify the Union as the exclusive representative of IJs. 

(Rep. Pet.)

STATEMENT OF THE FACTS

I. The Statutory Framework

When an agency believes that a bargaining unit is not appropriate

under § 7103(a)(4) or § 7112(b) and (c) of the Statute, it may file a 

petition with an FLRA Regional Director seeking a clarification or 

amendment of the unit certification. 5 C.F.R. §§ 2422.1(b), 2422.2(c). 

“[T]o show that a previously certified unit is no longer appropriate, a 

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party must demonstrate that substantial changes have altered the 

scope or character of the unit since the last certification.” U.S. Dep’t of 

the Air Force, Air Force Materiel Command, Wright-Patterson Air Force 

Base (“Wright-Patterson”), 70 FLRA 327, 238 (2017). 

Similarly, when a union wishes to be certified as an exclusive 

representative of employees in a unit, the union may petition an FLRA 

Regional Director to hold an election and determine whether 

certification is appropriate. 5 C.F.R. §§ 2422.1(a), 2422.2(a).

After an investigation or a hearing, the Regional Director issues a 

Decision and Order. 5 C.F.R. § 2422.30(c). Regional Directors’

decisions concerning bargaining units are then reviewable by the 

Authority. 5 C.F.R. §§ 2422.30(d), 2422.31. The Authority may review 

Regional Directors’ unit-certification decisions for many reasons, 

including when the Authority believes that its precedent warrants 

reconsideration. 5 C.F.R. § 2422.31(c)(2). 

Section 7112(b) of the Statute proves that “[a] unit shall not be

determined to be appropriate . . . if it includes . . . any management 

official or supervisor.” 5 U.S.C. § 7112(b)(1). A “management official” is 

“an individual employed by an agency in a position the duties and 

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responsibilities of which require or authorize the individual to 

formulate, determine, or influence the policies of an agency.” Id. 

§ 7103(a)(11).

II.Factual Background 

EOIR employs IJs to hear and decide immigration cases. EOIR 

2000, 56 FLRA at 617. In this role, IJs apply immigration statutes, 

regulations, and relevant case law to the facts before them and issue 

decisions, under some circumstances, that may be appealed through 

administrative processes, or sometimes directly in federal court. Id.

In 2000, EOIR filed a petition with an FLRA Regional Director 

challenging the IJs’ bargaining-unit status because IJs were 

management officials under the Statute. Id. at 616. Following a 

hearing, the Regional Director concluded that IJs were not management 

officials. Id. at 618. The Authority agreed, finding that IJs did not 

influence agency policy because “decisions of Immigration Judges are 

not published, do not constitute precedent, are binding only on the 

parties to the proceedings, and are subject to de novo review.” Id. at 

622. In so holding, EOIR 2000 distinguished the facts before it from a 

previous case finding that BIA Members were management officials 

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because BIA Members “directly influence[]” agency policy “in the 

interpretation of immigration laws and the issuance of decisions.” Id.

(quoting BIA, 47 FLRA at 509). 

In 2019, EOIR again sought to clarify the IJs’ bargaining-unit

status, contending that major changes in the scope and nature of IJs’

duties warranted a fresh review. See EOIR I, 71 FLRA at 1046. Among 

other changes, EOIR argued that the IJs’ factual determinations were 

no longer subject to de novo review but clear error review—making 

those decisions subject to a higher level of deference. Id. 

The Regional Director agreed that there had been a “substantial 

change” to IJs’ duties that altered the “scope or character of the unit 

since the last certification.” EOIR I, 71 FLRA at 1062-63. Recall that 

one key factor cited by EOIR 2000 in distinguishing IJs from BIA 

Members was that IJs’ decisions “are subject to de novo review.” EOIR 

2000, 56 FLRA at 622. But that had changed in the intervening years. 

Beginning in 2002, “the BIA accorded IJ factual findings a higher level 

of deference.” EOIR I, 71 FLRA at 1057. “Now, IJs’ factual findings are 

overturned only with a showing of clear error while issues of law 

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continue to be reviewed de novo.” Id. Thus, the Regional Director 

concluded:

It is clear . . . that [EOIR] also changed the standard of 

review of IJ factual determinations from the de novo

standard, which allowed the BIA to review the totality of the 

IJs factual findings, to a standard that accords the IJs’

factual findings greater deference and elevates the 

significance of the IJs’ factual determinations. This change 

represents a substantial change and is sufficient to 

support reconsideration of the IJs’ status, because it 

elevates a significant part of the IJs’ work, while 

simultaneously reducing the BIA’s work of reviewing 

one significant aspect of the IJ decisions. 

Id. at 1062 (emphasis added).

Thus, “[b]ecause the standard for reconsideration is met,” the 

Regional Director “thoroughly reassess[ed] the IJs’ status.” Id. After 

undertaking this reevaluation, the Regional Director concluded that IJs 

are not management officials under the Statute. Id. at 1047. In the 

Regional Director’s view, because IJs “merely apply the laws, policies, 

regulations, and BIA decisions” they “do not create and influence 

policy.” Id. at 1046. In support of her conclusion, the Regional Director 

noted “that IJ decisions are not routinely published”; “they do not create 

precedent that binds other IJs or the BIA in deciding future cases”; and 

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the “vast majority of IJ decisions continue to be subject to review by the 

BIA.” Id. at 1064-65. 

The Regional Director acknowledged, however, that four types of 

IJ decisions are not reviewable by the BIA: “removals in absentia, 

credible fear, reasonable fear, and claim status reviews.” Id. at 1058. 

The Regional Director noted that IJs had issued over 100,000 such 

determinations in 2019 alone. Id. at 1059. IJs’ decisions in these cases 

can have serious consequences for both the government and the 

immigrant, as they may result in an order of deportation or a finding 

that the immigrant is an asylee, refugee, lawful permanent resident, or 

citizen. Id. at 1058-59. Those decisions may be appealed to federal 

circuit courts and thus represent the final decision of EOIR. Id. 

In addition, the Regional Director noted a rise since 2000 in 

“affirmances without opinion,” by which the BIA affirms the IJs’

decisions in a one-line ruling. Id. at 1059, 1067. Those opinions also 

may be reviewed directly by circuit courts; here too, the IJ articulates 

the official position of the agency. Id. at 1059-60.

EOIR filed an application for review of the Regional Director’s 

decision, contending (among other things) that EOIR 2000 conflicted 

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with BIA, and that EOIR 2000 should therefore be overruled. (Agency’s 

Appl. Rev. 34-42.)

In response, the Union chose not to challenge any aspect of the 

Regional Director’s decision—including her finding that there had been 

a “substantial change” to the “scope and character of the unit” sufficient 

to support reconsideration of the IJs’ status. Far from challenging her 

decision to reconsider the IJs’ status, the Union praised the Regional 

Director’s “thorough, detailed, and carefully considered 25-page 

decision.” (Union Opp’n Agency’s Appl. Rev. 8.) In particular, the 

Union lauded the Regional Director for choosing to “not merely rely on 

the Authority’s precedent from the Authority’s 2000 decision,” but to 

instead “under[take] a clean review of the record to determine whether 

[IJs] are management officials now, in 2020.” (Id.) 

Indeed, the Union conceded that “[i]t is well-established that ‘[a]n 

assertion that established law or policy warrants reconsideration’ may 

serve as one of the ‘ground[s] on which the Authority may grant an 

application for review under § 2422.31(c)(2).” (Id. at 27 (citing U.S. 

Dep’t of Transp. ̧ 63 FLRA 356, 361 (2009)).) But it urged that EOIR’s 

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“mere disagreement” with EOIR 2000 was not enough to warrant 

overruling it. (Id. at 28.) 

In its decision on the Agency’s application for review, the 

Authority noted that it may review a Regional Director’s decision where 

“established law or policy warrants reconsideration.” EOIR I, 71 FLRA 

at 1047 (quoting 5 C.F.R. § 2422.31(c)). The Authority recognized that, 

under its precedent, “a party may not collaterally attack a previous unit 

certification.” Id. To overcome this bar, “a party must demonstrate 

that substantial changes have altered the scope and character of the 

unit since the last certification to show that a previously certified unit is 

no longer appropriate.” Id.

The Authority adopted the Regional Director’s unchallenged 

finding that there had been a substantial change in the IJs’ duties since 

EOIR 2000. Id. The Authority, like the Regional Director, then 

reassessed the appropriateness of the IJ bargaining unit. First, the 

Authority rejected EOIR’s contention that IJs are “Officers of the 

United States” under Article II, § 2, clause 2 of the Constitution, cf. 

Lucia v. SEC, 138 S. Ct. 2044 (2020), and thus are “automatically 

management officials under the Statute.” EOIR I, 71 FLRA at 1047. 

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Next, the Authority considered EOIR’s argument that EOIR 2000 

should be overruled because it conflicts with BIA. Id. at 1048. As noted 

above, EOIR 2000 sought to distinguish IJs from BIA Members because 

IJs’ decisions were reviewable by the BIA, and thus they did not 

influence agency policy. Id. The Authority, however, found that “IJ 

decisions influence the policy of [EOIR] for similar reasons that [BIA] 

Member decisions influence the policy of [EOIR].” EOIR I, 71 FLRA at 

1048. It therefore determined that “[j]ust like BIA where the Authority 

found that [BIA] Members influence the policy of [EOIR] by 

interpreting immigration laws and making decisions, IJs also influence 

the policy of the Agency by interpreting immigration laws when they 

apply the law and existing precedent to the unique facts of each case.” 

Id. 

Thus, IJs “influence the Agency’s policy in the decisions they 

render, just as [BIA] Members influence the Agency’s policy in the 

decisions they render.” Id. at 1049. “Arguing that IJs’ decisions do not 

influence Agency policy while [BIA] Member decisions do,” the 

Authority noted, “is akin to arguing that district court decisions do not 

shape the law while appellate court decisions do.” Id. 

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The Authority recognized the broad, discretionary powers of IJs to 

“take testimony, receive evidence, and decide the individual cases before 

them.” Id. at 1048 n.26. As part of their jobs, IJs are “required to apply 

binding law and precedent to the facts of the individual case and to 

render a decision”—extraordinary powers that have important 

consequences for the immigrants that appear before them. Id. 

(emphasis added). Thus, “[t]he Authority in EOIR 2000 failed to 

recognize the significance of IJ decisions and how those decisions 

influence Agency policy.” Id. at 1048.

The Authority further noted that, like BIA Members, IJs often 

function as appellate judges. Id. at 1049 n.27. IJs “review the decisions 

of Department of Homeland Security [“DHS”] officials in two classes of 

cases called ‘reasonable fear’ and ‘credible fear’ reviews.” Id. “In this 

way,” the Authority noted, “IJs are similar to [BIA] Members.” Id. 

“And although the BIA may review IJs’ decisions in many cases, the 

BIA’s decisions are also subject to review—by both the Attorney 

General and the federal judiciary.” Id. Thus, “both IJs and [BIA] 

Members review others’ decisions, and issue decisions that higher-level 

authorities may subject to additional review.” Id. “These similarities 

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further undermine EOIR 2000’s conclusion that IJs are not 

management officials, but [BIA] Members are.” Id. 

Thus, the Authority held that EOIR 2000 conflicted with BIA, and 

thus overruled EOIR 2000. Id. at 1049. “IJs influence the policy of the 

Agency in the decisions they render, just as [BIA] Members influence 

[EOIR’s] policy in the decisions they render.” Id. As a result, IJs “are 

management officials under § 7103(a)(11), and, therefore, are excluded 

from the bargaining unit pursuant to § 7112(b)(1).” Id.

The Union moved for reconsideration. It charged that the 

Authority’s decision “refus[ed] to analyze” the “detailed factual record 

establishing meaningful differences between Immigration Judges and” 

BIA Members. (Union Mot. Recons. Stay 10.) It urged that the 

Authority should have assumed that the Union challeng[ed] the 

Regional Director’s finding of a “substantial change” because the Union 

argued that there had been no substantial change in its “post-trial 

brief” to the Regional Director—despite the fact that the Union 

obviously filed the post-trial brief before the Regional Director ever 

made her substantial-change finding. (Id. at 13.) In advancing this 

argument, the Union conceded that it had not challenged the Regional 

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Director’s “substantial change” finding in its brief to the Authority

opposing the Agency’s application for review. (See id.)

The Union also argued that EOIR I should be reconsidered 

because the “substantial change” found by the Authority was that IJs 

“supposedly are equivalent to members of the [BIA].” (Id.) In the 

Union’s view, this “was not the same ‘substantial change’ that justified 

the Regional Director’s [decision] in the first instance.” (Id.) But the 

“substantial change” found by the Regional Director was that the IJs’

decisions were no longer subject to de novo review. And this also was 

key to the Authority’s reasoning in EOIR I for analogizing IJs to BIA 

Members. EOIR 2000, 56 FLRA at 622. So the Union’s premise—that 

the Authority and the Regional Director found two different 

“substantial changes”—was incorrect. 

The Authority denied the Union’s motion for reconsideration. 

EOIR II, 72 FLRA at 628. The Authority rejected the Union’s claim 

that the Authority and Regional Director had found different 

“substantial changes.” Id. The Authority then rejected the Union’s 

post-hoc attempt to preserve its objection that there had been a 

substantial change in IJ duties. The Authority reiterated its rule that 

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“parties are responsible for presenting arguments to the Authority.” Id.

at 628 n.22 (citing 5 C.F.R. § 2422.31(b)). “While the Union is correct 

that it contested whether a substantial change had occurred in its posthearing brief before the [Regional Director], the Union glosses over the 

fact that it implicitly agreed with the [Regional Director]’s finding of a 

substantial change in proceedings before the Authority.” Id. (citing 

Union Opp’n Agency’s Appl. Rev. 29).

As to the Union’s contention that the “substantial change” found 

by the Regional Director was not one that “had actually altered the 

scope and character of the IJ’s unit,” the Authority found this to be 

incorrect. Id. at 628 n.23. In the representation context, the Authority 

explained, “the term of art ‘substantial change’ means changes that 

alter the scope and character of a bargaining unit.” Id. “In other words, 

the Authority does not use the phrase ‘substantial change’ in this 

context except to refer to changes that alter the scope and character of a 

bargaining unit.” Id. 

The Authority similarly rejected the Union’s argument that “the 

Authority’s review of the application is limited to the substantial 

change found by the” Regional Director, and thus that the Authority 

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must rubber-stamp the Regional Director’s conclusion that the change 

did not alter the unit’s appropriateness. Id. at 625. The Authority cited 

its own regulations that state that review is appropriate when 

“[e]stablished law or policy warrants reconsideration.” Id. at 625 n.27 

(citing 5 C.F.R. § 2422.31(c)). Further, the Union’s arguments for why 

BIA Members should be distinguished from IJs were simply attempts to 

relitigate the Authority’s conclusions in EOIR I. Id. at 624. 

And the Authority noted that “there are two categories of cases–

‘reasonable fear’ and ‘credible fear’ reviews—where, if an IJ concurs 

with the assessment of a [DHS] official, there is no BIA review of the 

IJ’s determination.” Id. at 626. “The number of ‘reasonable fear’ and 

‘credible fear’ cases has risen astronomically since EOIR 2000”—from 

only 197 in 2000, to 15,433 in 2019. Id. at 626 & n.37. “Therefore, the 

number of cases where an IJ’s determination is not subject to review 

has dramatically increased.” Id. at 626.

In her concurring opinion—with which Member Abbott 

“unequivocally agree[d],” id. at 628 n.58—Member Kiko underscored 

the dramatic changes in the IJs’ duties that had occurred since EOIR 

2000. “The Regional Director (RD) found that, since the Authority’s 

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decision in [EOIR 2000] the Agency issued a regulation that ended de 

novo review of IJs’ factual findings and, instead, subjected those 

findings to clear-error review.” Id. at 629 (Member Kiko concurring). 

“This substantial change rendered the IJs’ factual findings the last 

word on such matters in the vast majority of cases that come before the 

IJs.” Id. Further, she noted the substantial increase in “reasonable 

fear” and “credible fear” cases, where “if an IJ concurs with the 

assessment of a [DHS] official, no further review is available beyond the 

IJ.” Id. “On the magnitude of these changes alone, the IJs now occupy 

the status of ‘management official[s]’ who ‘bring about or obtain a result 

as to the adoption of general principles, plans, or course[s] of action for’

the Agency.” Id. (quoting EOIR I, 71 FLRA at 1063).

The Union filed a second motion for reconsideration with the 

Authority on February 7, 2022. In this second motion, the Union 

charged that the Authority “conducted no meaningful analysis” in 

EOIR I and EOIR II. (Union’s Second Mot. Recons. Stay 16.) In 

addition, the Union’s second motion for reconsideration asserted, for the 

first time, constitutional due process claims. (Id. at 17-22.)

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Without waiting for the Authority to decide its second motion for 

reconsideration, the Union filed a Petition for Review in this Court on 

February 23, 2022. (Pet. for Review.) The Union’s Petition challenged 

only EOIR I and EOIR II. The Petition did not challenge EOIR III, 

which was issued over a month after the Petition for Review was filed. 

See EOIR III, 72 FLRA at 734-36. The Union never amended its 

Petition for Review to encompass EOIR III, nor did it ever file a new 

petition. 

On April 12, 2022, the Authority issued EOIR III, in which it 

denied the Union’s second motion for reconsideration. The Authority 

also rejected the Union’s request for a stay, and ordered the Union 

decertified “no later than seven calendar days from the date of this 

order.” Id. at 736. The Regional Director complied, decertifying the 

Union on April 15, 2022. (Revocation of Cert. ¶ 4.)

On July 21, 2022, five months after it filed the Petition for Review, 

the Union filed a new Representation Petition with the Regional 

Director, seeking an election that would recertify the Union. (Rep. Pet.) 

The Authority will be able to review any decision rendered by the 

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Regional Director regarding that new Representation Petition. 5 C.F.R. 

§§ 2422.1(a), 2422.2(a).

SUMMARY OF ARGUMENT

The Union’s Petition for Review is incurably premature. The 

Statute allows judicial review only of a “final order” of the Authority. 

5 U.S.C. § 7123(a). A “request for administrative reconsideration 

renders an agency action nonfinal and unreviewable with respect to the 

party who made the request.” Flat Wireless, 944 F.3d at 933. In this 

case, the Union filed with the Authority a motion for reconsideration of 

EOIR II on February 7, 2022, two weeks before the Union filed its 

Petition for Review in this Court. EOIR III, 72 FLRA at 736. That 

motion was still pending before the Authority when the Petition for 

Review was filed. Moreover, the Union on July 21, 2022, filed a 

Representation Petition that essentially seeks FLRA reconsideration of 

this matter. (Rep. Pet.; see 5 C.F.R. §§ 2422.1(a), 2422.2(a).) The 

Petition for Review is therefore incurably premature. 

Even if the Petition were not incurably premature, this Court still 

lacks jurisdiction over this case because § 7123(a) of the Statute bars 

direct judicial review of Authority orders involving appropriate-unit

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determinations. 5 U.S.C. § 7123(a)(2) (“Any person aggrieved by any 

final order of the Authority other than an order under . . . section 

7112 of this title (involving an appropriate[-]unit

determination), may . . . institute an action for judicial review of the 

Authority’s order.” (emphasis added)); see also ACT, 283 F.3d at 342; 

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

2004) (“We cannot review an FLRA unit determination, see 5 U.S.C. § 

7123(a)(2) . . . .”). Instead of a direct appeal to this Court, the Statute 

provides an administrative means to challenge any aspect of an FLRA 

appropriate-unit determination: a ULP proceeding. ACT, 283 F.3d at 

342.

EOIR I and EOIR II are Authority decisions involving an 

appropriate-unit determination under § 7112. See, e.g., Nat’l Ass’n of 

Agric. Emps. v. FLRA (“NAAE”), 473 F.3d 983, 985 (9th Cir. 2007) 

(dismissing petition for review for lack of jurisdiction under 

§ 7123(a)(2)). Thus, the Statute expressly precludes direct judicial 

review. 5 U.S.C. § 7123(a)(2).

The Union’s attempt “to challenge the FLRA’s orders based on 

procedural and substantive due process violations” (Pet. for Review 2) 

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does not create jurisdiction. For one thing, those constitutional claims 

are not properly part of the Union’s Petition for Review. For another, 

those constitutional claims are “the vehicle by which” the Union seeks 

to overturn the Authority’s prior determinations and require the 

Authority to recertify IJs as an appropriate bargaining unit. Elgin, 567 

U.S. at 22. Consequently, the Union’s constitutional claims “fall within 

the exclusive statutory scheme.” AFGE v. Trump, 929 F.3d at 761. The 

appropriate forum for the Union’s constitutional claims—just like any of 

the Union’s other claims stemming from the Authority’s unit 

determination—is a ULP proceeding before the Authority, with judicial 

review to follow (if necessary) before a federal court of appeals. See, 

e.g., Brewer, 735 F.2d at 1499-1500; AFGE 1985, 778 F.2d at 857. As in 

AFGE v. Trump, there is “no reason why the scheme here would 

prevent [a court of appeals] from resolving the union[‘s] constitutional” 

challenge in the context of a ULP proceeding. AFGE v. Trump, 929 

F.3d at 758. For that reason, this Circuit has held that ULP processes 

provide adequate avenues for consideration by the Authority and “later 

by the courts in review of any such proceeding.” AFGE 1985, 778 F.2d 

at 855-61; see also AFGE v. Trump, 929 F.3d at 758.

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Thus, this is not a case like Griffith v. FLRA, 842 F.2d 487 (D.C. 

Cir. 1988) or Webster v. Doe, 486 U.S. 592 (1988) where enforcing the 

Statute’s bar on direct review of Authority representation decisions 

would “deny any judicial forum for a colorable constitutional claim.” 

Webster, 486 U.S. at 603. Instead, the Statute’s scheme channels such 

challenges to ULP proceedings, with review to follow (if necessary) 

before the Court of Appeals. AFGE v. Trump, 929 F.3d at 759; ACT, 

283 F.3d at 342; Brewer, 735 F.2d at 1500. 

Further, even if the Union were correct that Webster and Griffith 

applied to its constitutional claims (and it is not), that would mean only 

that it could bring its constitutional claims in district court—not via a 

petition for review in circuit court, as it has attempted to do here. U.S. 

Dep’t of Treasury, U.S. Customs Serv. v. FLRA (“Customs Service”), 43 

F.3d 682, 689 n.9 (D.C. Cir. 1994).

The Union makes two arguments for why it should not have to use 

the statutorily prescribed ULP procedure to challenge EOIR I and 

EOIR II. Both must fail. First, the Union contends that it “has already 

exhausted its administrative remedies” by raising its constitutional 

arguments with the Authority in its second motion for reconsideration. 

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(Pet’r Br. 5.) But the Union’s second motion for reconsideration was 

still pending when the Union filed its Petition for Review. Thus, the 

Union’s Petition for Review challenges only EOIR I and EOIR II—not 

EOIR III, which addressed the Union’s due process claims. 

Additionally, the Union has not properly exhausted its constitutional 

claims because it has failed to pursue them through the ULP process. 

Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). 

Second, the Union claims that it “no longer has any viable 

alternative path to judicial review by proceeding before the Authority 

because it has been decertified.” (Pet’r Br. 6.) This is not true. The 

Union recently filed a new Representation Petition, which the FLRA is 

now considering. 

Further, the Union could seek review through the ULP process, 

and indeed has already availed itself of this route. The Union 

previously filed five ULP charges against EOIR stemming from EOIR’s 

attempts to stop recognizing the Union as an exclusive representative 

after EOIR I. (Settlement Agreement Between U.S. Dep’t of Just., 

Exec. Off. for Immigr. Rev. & Nat’l Ass’n Immigr. Judges 1.) Those 

charges, however, did not include the Union’s present constitutional 

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claims. In response, the Authority’s Acting General Counsel filed a 

consolidated ULP complaint against EOIR. EOIR II, 72 FLRA at 626-

28. The Union then chose to voluntarily settle its ULP charges with 

EOIR in December 2021, before the issuance of EOIR II. Any 

difficulties that the Union now faces in pursuing judicial review 

through the ULP process are thus self-inflicted, stemming from the 

Union’s December 2021 decision to settle its ULP charges rather than 

pursue them to completion. 

Even if the Court had jurisdiction to consider the Union’s 

constitutional claims—and it does not—the claims fail on their merits. 

The Union cannot establish that it had a constitutionally protected 

liberty interest in representing IJs. “[T]he First Amendment is not a 

substitute for the national labor relations laws.” Smith v. Ark. State 

Highway Emps., Loc. 1315, 441 U.S. 463, 464 (1979). And the 

possibility that the Authority could have erred in classifying IJs as 

managers “hardly establishes that such [classification] violate[s] the 

Constitution.” Id. 

Even if the Union could establish a protected liberty interest, its 

procedural due process claim fails because it received all the process 

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that it was due. Generally, procedural due process is satisfied when the 

government gives “the putative owner [of a liberty interest] an 

opportunity to present his claim of entitlement.” Logan v. Zimmerman 

Brush Co., 455 U.S. 422, 434 (1982). Here, the Union had a chance to 

present its arguments to the Authority three times. The Authority 

three times considered and addressed the Union’s arguments. The 

Authority has therefore satisfied its procedural due process obligations. 

Finally, the Union makes no showing that the Authority violated 

its substantive due process rights. Instead, the Union baselessly 

asserts that the Authority’s decisions were arbitrary and capricious and 

asks the Court to infer bias based on those assertions. (Pet’r Br. 34-44.) 

The Union, however, bypasses the high standard for showing 

decisionmaker bias. Moreover, because the Union did not raise its bias 

claim before the Authority, the Court is barred from considering the 

bias claim on this basis as well. 5 U.S.C. § 7123(c). The Court should 

reject the Union’s substantive due process claims, because if an 

assertion that an administrative decision was arbitrary and capricious 

was all that was needed to find decisionmaker bias, it would open the 

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floodgates to substantive due process claims. The Petition for Review 

should therefore be denied in its entirety.

STANDARD OF REVIEW

Before the Court considers the merits of the Union’s arguments, it 

“must determine whether [it] has subject matter jurisdiction.” Broad. 

Bd. of Governors Off. of Cuba Broad. v. FLRA, 752 F.3d 453, 465 (D.C. 

Cir. 2014). The Union bears the burden of establishing jurisdiction. 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Congress confers 

federal court jurisdiction and may limit or foreclose judicial review as it 

sees fit. Am. Fed’n of Labor v. NLRB, 308 U.S. 401, 404 (1940) (“Such 

jurisdiction as [a court] has, to review directly the action of 

administrative agencies, is specially conferred by legislation relating 

specifically to the determinations of such agencies made subject to 

review, and prescribing the manner and extent of the review.”). “If a 

special statutory review scheme exists . . . it is ordinarily supposed that 

Congress intended that procedure to be the exclusive means of 

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obtaining judicial review in those cases to which it applies.” Jarkesy v. 

SEC, 803 F.3d 9, 15 (D.C. Cir. 2015) (internal formatting omitted). 

Moreover, under § 7123(c) of the Statute, this Court may not 

consider any “objection that has not been urged before the Authority, or 

its designee . . . unless the failure or neglect to urge the objection is 

excused because of extraordinary circumstances.” 5 U.S.C. § 7123(c); 

see also Equal Emp. Opportunity Comm’n v. FLRA, 476 U.S. 19, 23 

(1986); accord Nat’l Treasury Emps. Union v. FLRA, 754 F.3d 1031, 

1040 (D.C. Cir. 2014) (“We have enforced [S]ection 7123(c) strictly.”).

ARGUMENT

I. The Court Lacks Jurisdiction to Consider the Petition for 

Review

A. The Union’s Petition for Review is Incurably Premature

This Court should dismiss the Petition for Review for lack of 

jurisdiction because the Petition is incurably premature. The Statute 

allows judicial review only of a “final order” of the Authority. 5 U.S.C. 

§ 7123(a). A “request for administrative reconsideration renders an 

agency action nonfinal and unreviewable with respect to the party who 

made the request.” Flat Wireless, 944 F.3d at 933 (citation omitted). 

Consequently, “a petition for judicial review filed during the pendency 

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of a request for agency reconsideration will be dismissed for lack of 

jurisdiction.” Wade, 986 F.2d at 1433. This Court has “described the 

‘incurably premature’ principle as a ‘bright line test.’” Friends of Earth 

v. U.S. Nuclear Regul. Comm’n, 851 F. App’x 212, 214 (D.C. Cir. 2021) 

(quoting TeleSTAR, 888 F.2d at 134). 

In this case, the Union filed with the Authority a motion for 

reconsideration of EOIR II on February 7, 2022, two weeks before filing 

its Petition for Review in this Court. EOIR III, 72 FLRA at 734. That 

motion was still pending before the Authority when the Petition for 

Review was filed. 

The Authority’s subsequent ruling on the Union’s second 

reconsideration motion does not correct the Union’s error. “[T]he filing

of a challenge to agency action before the agency has issued its decision 

on reconsideration is incurably premature.” TeleSTAR, 888 F.2d at 134. 

Thus, “when a petition for review is filed before the challenged action is 

final and thus ripe for review, subsequent action by the agency on a 

motion for reconsideration does not ripen the petition for review or 

secure appellate jurisdiction.” Id. “To cure the defect, the challenging 

party must file a new notice of appeal or petition for review from the 

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now-final agency order.” Id. The Union has not done so here—nor 

could it, because the prescribed 60-day period for filing petitions for 

review has now passed. See 5 U.S.C. § 7123(a). 

The Petition for Review is also incurably premature because the 

Union’s July 21, 2022 Representation Petition essentially seeks 

reconsideration of EOIR I, EOIR II, and EOIR III. If granted, the 

Union’s Representation Petition will provide the Union with the relief 

that it seeks—certification as exclusive representative of IJs. Dismissal 

of its Petition for Review is thus required.

B. This Court Lacks Jurisdiction to Review Authority 

Appropriate-Unit Determinations

1. The Statute Expressly Precludes Direct Review of 

Authority Appropriate-Unit Determinations

Section 7123(a) of the Statute bars review of Authority orders 

involving appropriate-unit determinations. It states, “[a]ny person 

aggrieved by any final order of the Authority other than an order under 

. . . section 7112 of this title (involving an appropriate[-] unit 

determination), may . . . institute an action for judicial review of the 

Authority’s order.” 5 U.S.C. § 7123(a)(2) (emphasis added). This Court 

has held repeatedly that “[S]ection 7123 [of the Statute] precludes 

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35

direct review of Authority appropriate[-]unit determinations.” ACT, 

283 F.3d at 342; see also Loy, 367 F.3d at 935 (“We cannot review an 

FLRA unit determination, see 5 U.S.C. § 7123(a)(2)”).

The Statute’s legislative history confirms that Congress intended 

to exclude appropriate-unit determinations from judicial review, 

following National Labor Relations Board (“NLRB”) practice. See Civil 

Service Reform Act of 1978, H.R. Conf. Rep. No. 95-1717 at 153 (Oct. 5, 

1978); see also U.S. Dep’t of Just. v. FLRA, 727 F.2d 481, 490-93 (5th 

Cir. 1984). A House-Senate Conference Committee report stated that 

“[a]s in the private sector, there will be no judicial review of the 

Authority’s determination of the appropriateness of bargaining units” 

under § 7123(a)(2). H.R. Conf. Rep. No. 95-1717, at 153.

Courts have consistently held that the Statute bars direct review 

of Authority appropriate-unit determinations. “The plain meaning of 

§ 7123 is unambiguous: If the FLRA’s final order is not an ‘appropriate[-

]unit determination’ under § 7112 and if no other exception applies, 

then we have jurisdiction.” Eisinger v. FLRA, 218 F.3d 1097, 1102 (9th 

Cir. 2000) (emphasis added); see also Loy, 367 F.3d at 935; Nat’l Ass’n of 

Indep. Lab. v. FLRA, No. 10-1135, 2010 WL 4340475, at * 1 (D.C. Cir. 

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Oct. 1, 2010) (“Because petitioner has not explained how the court can 

reach a decision in its favor without reviewing the Authority’s 

determination that the employees are not an appropriate unit, the court 

lacks jurisdiction. . . .”). 

2. The Authority Decisions Under Review Involve an 

“Appropriate-Unit Determination” 

EOIR I and EOIR II are Authority decisions involving an 

appropriate-unit determination. A “determination by the [FLRA] that 

certain government employees are professionals is an order involving 

an appropriate collective bargaining[-]unit determination.” NAAE, 473 

F.3d at 985 (dismissing petition for review for lack of jurisdiction under 

§ 7123(a)(2)). 

In NAAE, the Ninth Circuit considered a petition for review of an 

FLRA decision finding that federal agricultural inspectors were not 

“professional employees” under the Statute and thus were not part of an 

appropriate professionals-only bargaining unit. 473 F.3d at 986. There, 

despite the union’s argument that “the FLRA’s professional status 

ruling was not a component of its appropriate[-]unit determination,” the 

court found that “the antecedent question of whether agricultural 

specialists are professionals was in this case a portion of the FLRA’s 

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appropriate[-]unit determination. We lack jurisdiction to review that 

finding.” Id. at 988. The court concluded: 

[W]hen the FLRA decides professional status it typically, if not 

always, does so as a necessary and integral component of an 

appropriate[-]unit determination. . . . In such a case, the 

FLRA’s resolution of the employee’s status is a required 

element of the appropriate[-]unit determination and thus 

part of an “order under . . . section 7112.” 

Id. (emphasis added).

Here, as in NAAE, the Authority issued its decisions following a 

Regional Director’s Decision and Order on the agency’s petition to 

clarify a unit certification. EOIR I, 71 FLRA at 1053; NAAE, 473 F.3d 

at 985-86. And as in NAAE, the Authority applied the Statute’s 

definitions from § 7103(a) to an identified class of employees whose 

status was in question. See EOIR I, 71 FLRA at 1047-49 (analyzing the 

Statute’s definition of management officials at § 7103(a)(11) related to 

IJs). The Authority found “that IJs are management officials under 

§ 7103(a)(11), and, therefore, are excluded from the bargaining unit 

pursuant to § 7112(b)(1).” EOIR I, 71 FLRA at 1049; see also EOIR II, 

72 FLRA at 622. The Authority’s decisions in EOIR I and EOIR II were 

thus Authority decisions “involving an appropriate[-]unit

determination” under § 7112—the kind of Authority order over which 

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the Statute expressly precludes judicial review. 5 U.S.C. § 7123(a)(2).

The Union’s characterization of EOIR II as “an order denying a 

motion to reconsider” not an order involving “an appropriate[-]unit

determination” is spurious. (Pet’r Br. 7.) In EOIR II, the Authority 

considered the Union’s allegations that: (1) EOIR’s petition was an 

“impermissible collateral attack on the Union,” (2) the Authority “did 

not adequately consider precedent concerning the unit in question in 

this case,” and (3) EOIR regulations showed that IJs were not 

management employees. 72 FLRA at 624-25. All of those arguments 

relate to the Authority’s appropriate-unit determination. Indeed, the 

very reason that the Union filed its motion for reconsideration was to 

seek changes to EOIR’s appropriate-unit determination. 

3. The Representation Petition and ULP Processes 

Provide Adequate Means for the Union to Obtain 

Review

Instead of a direct appeal to this Court, there are two ways that 

the Union may obtain review of the Authority’s decisions. The Union 

has already availed itself of the first: filing a new Representation 

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Petition with the Regional Director, whose determination can then be 

appealed to the Authority. 5 C.F.R. §§ 2422.1(a), 2422.2(a).

And the Statute provides another means to challenge any aspect 

of an FLRA appropriate-unit determination: a ULP proceeding. ACT, 

283 F.3d at 342. As ACT explained,

In holding that FLRA [S]ection 7123 precludes direct review 

of Authority appropriate[-]unit determinations, we 

emphasize that the [union] remains free to obtain indirect

judicial review by refusing to bargain, drawing an unfair 

labor practice charge, and appealing that charge to the 

Authority and then to a court of appeals. 

Id.

That the Union seeks to “challenge the FLRA’s orders based on 

procedural and substantive due process violations” (Pet. for Review 2), 

does not create jurisdiction. For one thing, those constitutional claims 

are not properly part of the Union’s Petition for Review. They were first 

raised in the Union’s second motion for reconsideration, which was still 

pending when the Union filed the Petition for Review. (See Union’s 

Second Mot. Recons. Stay.) Nor has the Union amended its Petition for 

Review to include those claims. 

For another, constitutional claims only confer courts with 

jurisdiction if they are “wholly collateral” to statutory review provisions. 

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Elgin, 567 U.S. at 22. But a claim is “not wholly collateral” to statutory 

review provisions “if it serves as the ‘vehicle by which’ a party seeks to 

prevail in an administrative proceeding.” Tilton v. SEC, 824 F.3d 276, 

287 (2d Cir. 2016); accord Bennett v. SEC, 844 F.3d 174, 186-87 (4th 

Cir. 2016). In this case, the Union’s constitutional claims are “the 

vehicle by which” the Union seeks to overturn the Authority’s prior 

determinations and require the Authority to recertify the IJs as an 

appropriate bargaining unit.

As a result, the Union’s constitutional claims “fall within the 

exclusive statutory scheme.” AFGE v. Trump, 929 F.3d at 761. The 

Union may not bypass the Statute’s procedures by seeking something 

that the Statute bars—direct review of an FLRA appropriate-unit 

determination. Id. Rather, the Union must follow the administrativejudicial review route Congress charted, in “painstaking detail,” through 

the Statute’s scheme. See Elgin, 567 U.S. at 10-11; Thunder Basin Coal 

Co. v. Reich, 510 U.S. 200, 208 (1994).

Thus, the appropriate forum for the Union’s constitutional 

claims—just like any of the Union’s other claims stemming from the 

Authority’s unit determination—is a ULP proceeding before the 

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Authority, with judicial review to follow (if necessary) before a federal 

court of appeals. See, e.g., Brewer, 735 F.2d at 1499; AFGE 1985, 778 

F.2d at 857; see also Steadman v. Governor, U.S. Soldiers’ & Airmen’s 

Home, 918 F.2d 963, 967-68 (D.C. Cir. 1990) (finding that this Court

lacked subject-matter jurisdiction to consider constitutional due process 

claims where the plaintiffs had failed to raise a related ULP claim 

before the Authority). As this Court found in Loy, “Parties may not 

bifurcate their case, pursuing only statutory claims before the FLRA 

while litigating closely related constitutional claims in the district 

court.” 367 F.3d at 936.

Here, the Union’s constitutional claims are “premised on the same 

facts” as those in EOIR I and EOIR II, as well as its current 

Representation Petition. (Pet’r Statement of Issues 1; Rep. Pet.) 

Allowing the Union to bring its constitutional claims directly in circuit 

court, while leaving its remaining statutory challenges to the 

Authority’s unit determination to be litigated separately, would 

encourage “bifurcation of claims,” Steadman, 918 F.2d at 965, allowing 

those based on the Statute to proceed before the Authority while those 

based on the Constitution go straight to circuit court. The result is that 

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litigants bringing constitutional challenges would be able to 

“circumvent Congress’ careful work in crafting the intricate remedial 

scheme of the [Statute].” Id.

This conclusion is reinforced by AFGE v. Trump. There, the 

President had issued executive orders advising agencies to pursue 

specific goals in collective-bargaining negotiations. AFGE v. Trump, 

929 F.3d at 752-53. Federal unions brought, among other things, 

constitutional challenges to the executive orders. Id. at 753. They 

argued that the FLRA’s procedures were inadequate to address their 

constitutional claims and that they should be allowed to bypass the 

Statute’s strictures. Id. at 757-58. 

This Court rejected that argument. Noting the availability of ULP 

procedures and other statutory options, this Court ruled that “the 

unions here are not cut off from review and relief.” Id. at 757. “Rather, 

they can ultimately obtain review of and relief from the executive orders 

by litigating their claims through the statutory scheme in the context of 

concrete bargaining disputes.” Id. This was so, the Court emphasized, 

even for the unions’ constitutional claims. Id. at 758. Indeed, the Court 

noted that it “need not map the precise contours of the FLRA’s 

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authority to adjudicate the claims in this case” because “even if the 

FLRA could not address the claims, circuit courts could do so on appeal 

from the FLRA.” Id.

As in AFGE v. Trump, there is “no reason why the scheme here 

would prevent [a court of appeals] from resolving the union[‘s] 

constitutional” challenge in the context of a ULP proceeding. Id. For 

that reason, this Circuit has held that ULP processes provide adequate 

avenues of review to the Authority and “later by the courts in review of 

any such proceeding.” AFGE 1985, 778 F.2d at 855-61; see also AFGE v. 

Trump, 929 F.3d at 758. 

This is not a case like Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 

1988) or Webster v. Doe, 486 U.S. 592 (1988) where enforcing the 

Statute’s bar would “deny any judicial forum for a colorable 

constitutional claim.” (Pet’r Br. 2 (quoting Elgin, 567 U.S. at 9).) 

Instead, the Statute’s scheme channels such challenges to ULP 

proceedings, with review to follow (if necessary) before the Court of 

Appeals. AFGE v. Trump, 929 F.3d at 759; ACT, 283 F.3d at 342; 

Brewer, 735 F.2d at 1500. As Elgin explained, “Webster’s standard does 

not apply where Congress simply channels judicial review of a 

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constitutional claim to a particular court.” Elgin, 567 U.S. at 9; see also 

Thunder Basin, 510 U.S. 207 n.8. Thus, in Elgin, the Court held that 

the plaintiffs had to follow a statutory scheme that provided for an 

administrative review process followed by direct appeal to the Federal 

Circuit, even though they brought constitutional challenges. 567 U.S. 

at 13, 16-17. 

So too here. The Statute merely directs that constitutional

challenges be routed through the ULP procedure; it does not cut off 

review of such claims entirely.

Griffith does not apply for another reason. In the context of 

§ 7123(a)’s general bar on judicial review of Authority arbitration 

decisions, Griffith could not find “clear and convincing” evidence of a 

congressional intent to specifically preclude judicial review of 

constitutional claims. 842 F.2d at 494-95. But in the context of an 

appropriate-unit determination, this Court has specifically found “‘clear 

and convincing evidence’ of Congressional intent to preclude judicial 

review.” ACT, 283 F.3d at 342. In particular, ACT emphasized the 

Statute’s legislative history, which declares: “As in the private sector, 

there will be no judicial review of the Authority’s determination of the 

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appropriateness of bargaining units.” Id. (emphasis added) (quoting 

H.R. Conf. Rep. No. 95-1717 at 153). 

And, in the similar context of a constitutional challenge to an 

NLRB unit-certification decision, the court in Schwarz Partners 

Packaging, LLC v. NLRB held that “it is well-settled . . . that the 

indirect method of review through defending against unfair labor 

practice claims is the sole method of review for NLRB certification 

decisions under the [National Labor Relations Act].” 12 F. Supp. 3d 73, 

88 (D.D.C. 2014).

4. Even if Webster and Griffith Applied (and They Do 

Not), the Appropriate Forum for the Union to Bring 

its Claims is District Court, Not Circuit Court

Even if the Union were correct that Webster and Griffith applied 

to its constitutional claims (and it is not), that would mean that it could 

bring its constitutional claims in district court—not via a petition for 

review in Circuit Court. This Court has found 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.” Customs Service, 43 F.3d at 689 n.9; see also Steadman, 918 

F.2d at 968 (a federal employee may “bring an equitable claim based on 

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the Constitution in federal district court after having exhausted his 

[statutory] remedy.” (emphasis added)). Notably, the claims in Griffith 

were first brought in district court, not the Court of Appeals. See 

Griffith, 842 F.3d at 489. As the Union’s constitutional claims include 

challenges to the Authority’s procedures, they must be brought in 

district court.

In the related NLRB context, “[a] District Court may enjoin Board 

action, especially representation proceedings, only under highly 

exceptional circumstances,” such as “threatened Board action which 

violates the Constitution.” McCulloch v. Libbey-Owens-Ford Glass Co., 

403 F.2d 916, 917 (D.C. Cir. 1968) (emphasis added). Like the narrow 

exception for a “clear and mandatory” violations of a specific statutory 

prohibition under Leedom v. Kyne, 358 U.S. 184 (1958), any exception to 

the Statute’s reviewability bar for violations of the Constitution “is 

premised on the original federal subject matter jurisdiction of the 

district courts.” Customs Service, 43 F.3d at 688 n.6. 

5. The Union’s Arguments for Why FLRA Administrative 

Processes Are Inadequate Are Meritless

The Union makes two arguments for why it should not have to use 

the statutorily prescribed procedures to challenge EOIR I and EOIR II. 

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First, it contends that it “has already exhausted its administrative 

remedies” by raising its constitutional arguments with the Authority in 

its second motion for reconsideration. (Pet’r Br. 5.) This argument fails 

for three reasons.

To begin with, if the Union truly believed that it had exhausted its 

administrative remedies, it would not have filed a new Representation 

Petition with the FLRA after it filed the Petition for Review with this 

Court. And presumably the Union would not have filed the new 

Representation Petition if it felt that doing so would be futile. 

Moreover, the Union did not administratively exhaust its 

constitutional claims because it did not raise them in briefs it presented 

to the Authority before EOIR I or EOIR II. (Union Auth. Briefs.) Nor 

did the Authority address any due process claims in either EOIR I or 

EOIR II. And those are the only two decisions the Union sought review 

of in its Petition. (See Pet. For Review 1). 

The Union raised its constitutional claims only in its second 

motion for reconsideration, which was still pending when the it filed its 

Petition for Review. Because the Union did not raise its due process 

claims in connection with EOIR I and EOIR II, it is barred from raising 

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those claims in connection with the Petition. See 5 U.S.C. § 7123(c) 

(“No objection that has not been urged before the Authority, or its 

designee, shall be considered by the court. . . .”).

Further, the Union must proceed through the ULP process to 

obtain judicial review of its constitutional claims—and it has not done 

so. The doctrine of administrative exhaustion provides “that no one is 

entitled to judicial relief for a supposed or threatened injury until the 

prescribed administrative remedy has been exhausted.” Woodford, 548 

U.S. at 88-89. Thus, “as a general rule . . . courts should not ‘topple 

over administrative decisions unless the administrative body not only 

has erred, but has erred against objection made at the time appropriate 

under its practice.’” Id. (quoting United States v. L.A. Tucker Truck 

Lines, Inc., 344 U.S. 33, 37 (1952)). 

As noted above, under the Statute, the ULP process is the sole 

means to obtain judicial review of an Authority appropriate-unit 

determination. ACT, 283 F.3d at 342. It is not enough that the Union 

“may conclude—correctly or incorrectly—that exhaustion is not efficient 

in that party’s particular case.” Woodford, 548 U.S. at 89. Exhaustion 

requirements, by their very nature, “are designed to deal with parties 

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who do not want to exhaust.” Id. The Union cannot choose to bypass 

the ULP process simply to suit its own preference.

Second, the Union claims that it “no longer has any viable 

alternative path to judicial review by proceeding before the Authority 

because it has been decertified.” (Pet’r Br. 6.) This is not true. Even if 

the Union could not bring another ULP charge in its own name, an 

individual former unit member could challenge actions taken by EOIR 

following the Authority’s decision to decertify the Union—and in so 

doing, obtain review of any constitutional challenges to those decisions. 

This is because the Statute allows non-bargaining-unit employees 

to bring ULP charges. Section 7102 of the Statute gives employees the 

right to form or join a labor organization, or to refrain from such 

activity, without penalty, and protects employees in the exercise of 

those rights. 5 U.S.C. § 7102.

Any attempt by an agency to interfere with the rights of 

employees under the Statute is considered a ULP. 5 U.S.C. § 

7116(a)(1). A charge may be brought by “any person” who claims that 

an agency has “engaged in . . . any [ULP] prohibited under 5 U.S.C. § 

7116.” 5 C.F.R. § 2423.3(a). When a party charges a labor organization 

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or agency with a ULP, the General Counsel will investigate the charge 

and decide whether to issue a complaint. 5 U.S.C. § 7118(a)(1). 

The Authority has consistently allowed non-bargaining-unit

employees to bring ULP charges. See Nat’l Army & Air Technicians 

Ass’n, 7 FLRA 154, 158 (1981); Antilles Consol. Educ. Ass’n, 36 FLRA 

776, 780 (1990); Am. Fed’n of Govt Emps., Loc. 3354, AFL-CIO, 58 

FLRA 184, 185 (2002); see also Dep’t of Health and Hum. Servs., 16 

FLRA 586, 586-87 (1984) (hearing a complaint brought by General 

Counsel alleging that agency violated the rights of employees under § 

7116(a)(1) who were no longer bargaining-unit members due to their 

transfer to a new office). Thus, the Union’s loss of recognition does not 

bar former bargaining-unit employees from challenging the Union’s 

decertification in a ULP proceeding.

Indeed, the Union has already had considerable success 

challenging EOIR’s attempts to enforce EOIR I via ULP procedures. It 

filed five ULP charges challenging actions taken by EOIR to implement 

EOIR I. (Settlement Agreement Between U.S. Dep’t of Just., Exec. Off. 

for Immigr. Rev. & Nat’l Ass’n Immigr. Judges 1.) Those charges, 

however, did not include the Union’s present constitutional claims. In 

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response, the Authority’s Acting General Counsel filed a consolidated 

ULP complaint against EOIR, holding that, despite EOIR I, EOIR was 

still obligated to bargain with the IJs. EOIR II, 72 FLRA at 626-28.

The Union chose to voluntarily settle its ULP charges with EOIR 

in December 2021, before the issuance of EOIR II. The Union may have 

had good reasons for choosing to settle with EOIR at that time. But it 

was clear well before December 2021 that the ULP process was the only 

way to lawfully obtain circuit court review of an Authority appropriateunit determination. See ACT, 283 F.3d at 342. Thus, any difficulties 

that the Union now faces in pursuing judicial review through the ULP 

process are self-inflicted, stemming from the Union’s December 2021 

decision to settle its ULP charges rather than pursuing them to 

completion, with judicial review to follow (if necessary) in this Court. 

II.The Union’s Constitutional Claims Are Without Merit

Even if the Court had jurisdiction to consider the Union’s 

constitutional claims—and it does not—those claims must fail on their 

merits. 

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A. The Union Has No Protected Liberty Interest

The Supreme Court has “required in substantive-due-process 

cases a ‘careful description’ of the asserted fundamental liberty 

interest.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting 

Reno v. Flores, 507 U.S. 292, 302 (1993)). It is “reluctant to expand the 

concept of substantive due process because guideposts for responsible 

decisionmaking in this unchartered area are scarce and open-ended.” 

Id. at 720 (quotation omitted).

The Union cannot establish that it had a constitutionally 

protected liberty interest in continuing as an exclusive IJ 

representative. The Supreme Court has held that “the First 

Amendment is not a substitute for the national labor relations laws.” 

Smith, 441 U.S. at 464. Thus, any liberty interest that the Union has to 

serve as the statutorily authorized bargaining agent derives from the 

Statute, not the Constitution.

The relevant labor-relations law here, the Statute, bars 

management employees from collective bargaining. Section 7112(b) of 

the Statute says that “[a] unit shall not be determined to be appropriate 

. . . if it includes . . . any management official or supervisor.” 5 U.S.C. 

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§ 7112(b)(1). Section 7103(a)(11) of the Statute, in turn, defines a 

“management official” as “an individual employed by an agency in a 

position the duties and responsibilities of which require or authorize the 

individual to formulate, determine, or influence the policies of an 

agency.” 5 U.S.C. § 7103(a)(11). 

Here, the Authority reasonably determined that IJs, whose 

decisions are reviewable only under a clear error standard, and whose 

fear-review determinations are unreviewable if they concur with the 

assessments of DHS officials, influence the policy of EOIR by 

“interpreting immigration laws when they apply the law and existing 

precedent to the unique facts of each case.” EOIR I, 71 FLRA at 1046, 

1048. The Authority thus reasonably found that IJs were management 

employees. 

Any rights that the Union has to represent IJs in collective 

bargaining with federal agencies derives from the Statute, not the 

Constitution. As in Smith, the possibility that the Authority could have 

erred in classifying IJs as managers “hardly establishes that such 

[classification] violate[s] the Constitution.” Smith, 441 U.S. at 464. 

The Union cites no case law in support of the notion that judicial 

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officers have a constitutional right to unionize that is independent of 

the Statute. And “a mere violation of law does not give rise to a due 

process claim.” Am. Fed’n of Gov’t Emps., Loc. 446 v. Nicholson, 475 

F.3d 341, 353 (D.C. Cir. 2007).

B. The Union’s Procedural Due Process Claims Are 

Meritless

The Union’s procedural due process claim also fails because the 

Union received all the process that it was due. Procedural due process 

“requires notice and opportunity for hearing appropriate to the nature 

of the case.” Pearson v. Dist. of Columbia, 644 F. Supp. 2d 23, 46 

(D.D.C. 2009), aff’d, 377 F. Appx. 34 (D.C. Cir. 2010) (citing Mathews v. 

Eldridge, 424 U.S. 319, 333 (1976)). Generally, procedural due process 

is satisfied when the government gives “the putative owner [of a liberty 

interest] an opportunity to present his claim of entitlement.” Logan,

455 U.S. at 434. 

The Union was given, and availed itself of, the opportunity to 

present its arguments to the Authority three times. The Authority 

three times considered and addressed the Union’s arguments. The 

Union then filed a new Representation Petition, and thus the FLRA will 

again address this issue. 

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The Authority needed to do nothing more to satisfy its procedural 

due process obligations. See Am. Fed’n of Gov’t Emps., AFL-CIO, Loc. 

2798 v. Pope, 808 F. Supp. 2d 99, 112 (D.D.C. 2011) (“[E]ven assuming, 

arguendo, that the agency made an error in calculating the timeliness of 

the motion for reconsideration, that would not suffice to state a claim 

for violation of procedural due process.”), aff’d, No. 11-5308, 2012 WL 

1450584 (D.C. Cir. Apr. 12, 2012). The erroneous non-constitutional 

arguments raised by the Union do not change that conclusion.

1. The Union Waived Any Challenge to the Regional 

Director’s Finding of a Substantial Change Because It 

Did Not Contest that Finding Before the Authority

The Union’s argument that EOIR’s motion for unit clarification 

was a collateral attack on the Union is not a constitutional claim. It 

also fails on the merits. To obtain reassessment of a unit’s status, a 

party must show “that substantial changes have altered the scope of or 

character of the unit since the last certification.” Wright-Patterson, 70 

FLRA at 328. If there was a substantial change, the petition is a valid 

application for reassessment of unit status, not a collateral attack. Id.

The Regional Director’s finding that such a substantial change

had occurred meant that her—and the Authority’s—reevaluation of the 

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lawfulness of the bargaining unit was not a collateral attack. Although 

the Regional Director ultimately held IJs were not management 

officials, she only reached that conclusion after determining that the 

Agency’s petition was not a collateral attack because there had been a 

substantial change to the bargaining unit. EOIR I, 71 FLRA at 1062-

63. Before the Authority, the Union itself characterized the Regional 

Director’s findings as “thorough, detailed, and carefully considered.” Id.

at 1046-47; (Union Opp’n Agency’s Appl. Rev. 8). 

The Authority’s review of the Regional Director’s decision was not, 

as the Union suggests (Pet’r Br. 29), limited to rubber-stamping the 

Regional Director’s analysis. Instead, FLRA regulations expressly 

permit review of a Regional Director’s decision when “[e]stablished law 

or policy warrants reconsideration” of Authority precedent. EOIR II, 72 

FLRA at 625 & n.27 (quoting 5 C.F.R. § 2422.31(c)). 

The Authority’s decisions were thus not collateral attacks on the 

unit. Even if they were, the Union cites no case law establishing that 

allowing “collateral attacks” on a previously certified bargaining unit 

violates the Constitution.

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Finally, the Union’ contends that the Authority invented a “new 

rule” by requiring the Union to challenge the Regional Director’s 

“substantial change” finding before the Authority to obtain the 

Authority’s review of that issue. (Pet’r Br. 20, 25-26.) This argument 

lacks merit. FLRA regulations require parties to file applications for 

review if they wish to preserve objections to a Regional Director’s 

determinations. EOIR II, 72 FLRA at 624 n.22 (citing 5 C.F.R. § 

2422.31(b)). The Union’s failure to do so does not create a procedural 

due process violation. 

In nearly all adjudicatory bodies, parties must raise issues in 

their initial briefs to preserve review of the matter. See Zhang v. U.S. 

Citizen & Immigr. Servs., 978 F.3d 1314, 1323 (D.C. Cir. 2020) (failure 

to raise an issue before the district court results in forfeiture); INEOS 

USA L.L.C. v. FERC, 940 F.3d 1326, 1329 (D.C. Cir. 2019) (party 

forfeited appellate review of a matter for failing to make the argument 

in its opening brief); Sup. Ct. R. 14(1)(a) (“Only questions set out in the 

petition . . . will be considered by the Court.”). 

The Authority holds parties to the same standard. If a party 

wants the Authority to pass upon an argument, it must first present the 

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argument to the Regional Director. 5 C.F.R. § 2429.5. And to preserve 

the argument for review by the Authority, a party must also raise the 

issue in its application for review of the Regional Director’s decision. 

See 5 C.F.R. § 2422.31(b).

Contrary to the Union’s suggestion (Pet’r Br. 25-26), the process 

for reviewing Regional Directors’ determinations has existed since the 

Statute was enacted. 5 U.S.C. § 7105(f). Authority regulations further 

provide that a party must raise an issue in an application for review

within 60 days after the Regional Director’s decision, or waive 

Authority review of the issue. See 5 C.F.R. § 2422.30(c)-(d). Such 

applications for review “must specify the matters and rulings to which 

exception(s) is taken.” 5 C.F.R. § 2422.31(b). 

The Regional Director’s finding of a substantial change is a 

“matter” that the Union had a responsibility to challenge in some way 

to gain Authority review. See 5 C.F.R. § 2422.31(b); cf. U.S. Small Bus. 

Admin., 34 FLRA 392, 395 (1990) (Authority finding that since “[n]o 

review is sought” of the Regional Director’s decision to include certain 

employees in the represented unit, the Authority was not required to 

review that decision). 

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Here, the Union made a strategic choice in its brief opposing the 

Agency’s application for review to not challenge any aspect of the 

Regional Director’s decision—including her finding that there had been 

a “substantial change” to the “scope and character of the unit” sufficient 

to support reconsideration of the IJs’ status. More important, the 

Union chose not to file its own application for review to contest the 

Regional Director’s substantial-change finding. It elected instead to 

praise the Regional Director for choosing to “not merely rely on the 

Authority’s precedent from the Authority’s 2000 decision,” but to 

instead “under[take] a clean review of the record to determine whether 

[IJs] are management officials now, in 2020.” (Union Opp’n Agency’s 

Appl. Rev. 8.) 

The Union made this choice despite knowing that the Authority’s 

regulations permit review of a Regional Director’s decision when 

“[e]stablished law or policy warrants reconsideration” of Authority 

precedent. 5 C.F.R. § 2422.31(c). In fact, the Union conceded in its 

brief to the Authority that “[i]t is well-established that ‘[a]n assertion 

that established law or policy warrants reconsideration’ may serve as 

one of the ‘ground[s] on which the Authority may grant an application 

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for review under § 2422.31(c)(2).” (Union Opp’n Agency’s Appl. Rev. 27 

(citation omitted).) It is not unreasonable—much less a due process 

violation—to hold the Union to its strategic decision to defend the 

Regional Director’s opinion in its entirety. 

The Union abandoned its collateral-attack argument by failing to 

challenge the Regional Director’s “substantial change” finding before 

the Authority in any way. Cf. U.S. Dep’t of the Army Mil. Traffic Mgmt. 

Command, 60 FLRA 709, 710 (2005) (finding that the union had 

abandoned its claim that the Regional Director erred by providing the 

Authority with no supporting argument or evidence). As a result, it 

suffered no procedural injustice.

2. The Dispute was Not Moot and EOIR II and EOIR III

Were Not Advisory Opinions

The Union’s mootness arguments fail because the agreement 

between the parties, and EOIR’s thirteenth-hour attempt to withdraw

its petition, had no effect on the validity of previously rendered FLRA 

decisions. 

The Authority issued EOIR I before EOIR moved to withdraw the 

petition. (Compare Pet’r Br. 30, with EOIR II, 72 FLRA at 623 & n.15.) 

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Once the Authority issued EOIR I, the only way that a party could alter 

it was through a motion for reconsideration. 5 C.F.R. § 2429.17. 

The Union timely filed for reconsideration, which EOIR at first 

opposed. EOIR only moved to withdraw the petition close to eight 

months after the Authority rendered the initial decision. (Pet’r Br. 30;

EOIR I, 71 FLRA at 1053). EOIR’s motion to withdraw the petition, 

which the Authority reasonably characterized as a motion for 

reconsideration, was therefore too late. EOIR II, 72 FLRA at 623 n.15. 

And the settlement reached between the Union and EOIR—which 

was the impetus for EOIR’s motion to withdraw—had no legal effect on 

the decision the Authority had rendered. Rather, as the Authority 

found in EOIR III, parties cannot negotiate a unit determination—the 

Statute gives that power exclusively to the Authority. 72 FLRA at 736

(“[I]t is a fundamental principle of the [Statute] that parties cannot 

‘negotiate over the unit status of employees, which is a matter reserved 

exclusively to the Authority.’” (quoting Nat’l Fed’n of Fed. Emps., Loc. 

15, 43 FLRA 1165, 1171 (1992))). 

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The Settlement Agreement itself expressly contemplated further 

action by the Authority regarding EOIR’s representation petition. It 

stated that EOIR

agrees to recognize the Union as the exclusive representative 

of non-supervisory [IJs] at [EOIR], unless or until such 

time as the [Authority] denies the Union’s pending 

[m]otion for [r]econsideration of [EOIR I], and the 

[Authority] or the [Regional Director] issues a new 

certification or revokes the Union’s recognition or 

certification of representative.

Id. at 736 n.29 (emphasis added). Thus, as the Authority observed, 

“contrary to the Union’s implied assertion, the settlement agreement 

does not resolve the dispute, but merely memorializes [EOIR’s] 

willingness to recognize the Union until the Authority issued EOIR II.” 

Id. at 736.

The Union cites no case law establishing that the Authority is 

subject to the same mootness rules as an Article III court because it 

cannot. Unlike Article III courts, administrative agencies have 

“substantial discretion” to decide issues potentially precluded by 

mootness. Bldg. & Constr. Trades Dep’t. v. Solis, 600 F. Supp. 2d 25, 34 

(D.D.C. 2009). As agencies are “creatures of [A]rticle I,” their 

jurisdiction is not limited to actual cases and controversies like Article 

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III courts. Tenn. Gas Pipeline Co. v. Fed. Power Comm’n, 606 F.2d 

1373, 1380 (D.C. Cir. 1979).

Even if Article III court mootness standards applied, however, the 

Union could not meet them. In that context, “as long as the parties 

have a concrete interest, however small, in the outcome of litigation, the 

case is not moot.” Zukerman v. U.S. Postal Serv., 961 F.3d 431, 442 

(D.C. Cir. 2020) (citing Chafin v. Chafin, 568 U.S. 165, 172 (2013)). 

When the Authority decided EOIR I, the Authority had held that 

IJs were management officials and should be excluded from the 

bargaining unit. 71 FLRA at 1049. The Union thus retained a concrete 

interest in the outcome of subsequent decisions because the IJs had lost 

their unit status, and the Union its ability to collectively bargain on 

their behalf, under the Statute. The dispute was not moot, and the 

Authority’s subsequent decisions were thus not advisory.

3. The Authority’s Internal Case Processing Guidelines 

Did Not Deprive the Union of Due Process 

The Union seizes on Chairman DuBester’s statement in his EOIR 

II dissent that “my colleagues have issued an ultimatum that, if I do not 

respond to their (fifth round of) revisions to the majority opinion in this 

case–within three weeks of that opinion’s circulation on December 21, 

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2021–they will issue their majority opinion without my participation.” 

(Pet’r Br. 33-34 (citing EOIR II, 72 FLRA at 630 (Chairman DuBester 

dissenting)).) The Union contends that this shows that the Authority 

violated its procedural due process rights. 

The Union cites no case law in support of this conclusory 

argument. Nor does it respond in any way to the Authority’s analysis in 

EOIR III rejecting this claim. As the Authority observed, “The Union 

fails to explain—and we fail to see—how the Authority’s internal

processing guidelines and timelines deprived the Union of any dueprocess interest.” EOIR III, 72 FLRA at 735. “Furthermore, the 

Authority clearly provided the Union with the opportunity to be heard 

regarding its interest in the representation proceeding at issue, as 

evident by EOIR I and EOIR II.” Id. As noted above, that was all that 

procedural due process required.

C. The Union’s Substantive Due Process Claims Are 

Meritless

To state a claim that the FLRA has violated its substantive due 

process rights, the Union must, besides establishing a constitutional 

interest, allege conduct that is “‘so egregious, so outrageous, that it may 

fairly be said to shock the contemporary conscience.’” Butera v. Dist. of 

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Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001) (quoting Cnty. of 

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)); see Elkins v. Dist. of 

Columbia, 527 F. Supp. 2d 36, 49 (D.D.C. 2007) (“The government’s 

infringement of the recognized property interest must constitute a 

grave unfairness: Inadvertent errors, honest mistakes, agency 

confusion, even negligence in the performance of official duties, do not 

warrant redress.” (quoting Silverman v. Barry, 845 F.2d 1072, 1080 

(D.C. Cir. 1988))).

The Union has alleged no such “shocking” conduct. Its attempt to 

transform adverse Authority decisions into substantive due process 

violations with baseless allegations of bias must be rejected. “Courts 

have long recognized ‘a presumption of honesty and integrity in those 

serving as adjudicators.’” Pro. Air Traffic Controllers Org. v. FLRA 

(“PATCO”), 685 F.2d 547, 573 (D.C. Cir. 1982) (quoting Withrow v. 

Larkin, 421 U.S. 35, 47 (1975)). “Absent a strong showing to the 

contrary, an agency adjudicator is presumed to act in good faith and to 

be capable of ignoring considerations not on the record.” PATCO, 685

F.2d at 573 (citations omitted). Further, “judicial rulings alone almost 

never constitute a valid basis for a bias or partiality motion.” Liteky v. 

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United States, 510 U.S. 540, 555 (1994). This Court has, in turn, 

applied that standard to administrative proceedings. See Pioneer Hotel, 

Inc. v. NLRB, 182 F.3d 939, 944 (D.C. Cir. 1999).

Here, the Union makes no colorable showing of bias or partiality. 

The Union’s hyperbolic assertions that EOIR I and EOIR II “[l]ack[] any 

coherent explanation or legal reasoning” and “fail[] to provide any 

meaningful factual or legal analysis” are belied by simply reading those 

decisions. (Pet’r Br. 38.) The Union’s unsupported allegations of bias 

rest on mere disagreement with the Authority’s decisions—and this 

Court has made clear that such disagreement does not create a due 

process violation. Liteky, 510 U.S. at 555; Pioneer Hotel, Inc., 182 F.3d 

at 944. If the Union is attempting to argue that the Authority’s 

decisions were arbitrary and capricious (which they were not), that 

alone cannot show a due process violation because of bias. Were it 

otherwise, any petitioner could claim that a violation of the 

Administrative Procedure Act was a substantive due process violation.

Given the Union’s failure to allege any probative facts showing 

that Authority Members have “demonstrably made up [their] mind[s] 

about important and specific factual questions and [are] impervious to 

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contrary evidence,” this Court presumes that the Authority’s decisions 

are based on the Members’ understanding of the law, not bias. Power v. 

FLRA, 146 F.3d 995, 1002 (D.C. Cir. 1998) (internal quotations 

omitted).

If more was needed, the Union’s substantive due process claim 

based on the Authority’s alleged bias is barred by § 7123(c) of the 

Statute because it was never presented to the Authority.

CONCLUSION

For the foregoing reasons, the Authority respectfully requests that 

the Court deny the Petition for Review. 

Respectfully submitted,

/s/Noah Peters

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

Federal Labor Relations Authority

1400 K Street, NW

Washington, DC 20424

(202) 218-7908

August 8, 2022

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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 12,800 words 

excluding exempt material. 

/s/ Rebecca J. Osborne

Rebecca J. Osborne

Deputy Solicitor

Federal Labor Relations Authority

CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of August, 2022, 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

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ADDENDUM

Relevant Statues, Regulations, and Legislative History

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TABLE OF CONTENTS

AUTHORITY PAGE

Statutes ....................................................................................................2

5 U.S.C. § 7102. Employees’ Rights .......................................................2

5 U.S.C. § 7103(a)(11). Definitions; application ....................................2

5 U.S.C. § 7105(f). Powers and Duties of the Authority........................2

5 U.S.C. § 7112. Determination of Appropriate Units for Labor 

Organization Representation........................................................3

5 U.S.C. § 7118(a)(1). Prevention of Unfair Labor Practices ................6

5 U.S.C. § 7123. Judicial review; enforcement......................................6

Regulations .............................................................................................8

5 C.F.R. § 2422.1(a), (b). What is your purpose for filing a petition?...8

5 C.F.R. § 2422.2 (a), (c). Who may file a petition? ..............................9

5 C.F.R. § 2422.30(c), (d). When does a Regional Director investigate 

a petition, issue notices of hearings, take actions, and issue 

Decisions and Orders?...................................................................9

5 C.F.R. § 2422.31(b), (c). When do you file an application for review 

of a Regional Director Decision and Order? .................................9

5 C.F.R. § 2423.3(a). Who may file charges? ......................................10

5 C.F.R. § 2429.5. Matters not previously presented; official notice. 10

5 C.F.R. § 2429.17. Reconsideration. ..................................................10

Legislative History ..............................................................................11

Civil Service Reform Act of 1978, H.R. Conf. Rep. No. 95-1717 at 153 

(Oct. 5, 1978). ..............................................................................11

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STATUTES

5 U.S.C. § 7102. Employees’ Rights

Each employee shall have the right to form, join, or assist any labor 

organization, or to refrain from any such activity, freely and without 

fear of penalty or reprisal, and each employee shall be protected in the 

exercise of such right. Except as otherwise provided under this chapter, 

such right includes the right—

(1) to act for a labor organization in the capacity of a 

representative and the right, in that capacity, to present the views 

of the labor organization to heads of agencies and other officials of 

the executive branch of the Government, the Congress, or other 

appropriate authorities, and

(2) to engage in collective bargaining with respect to conditions of 

employment through representatives chosen by employees under 

this chapter.

5 U.S.C. § 7103(a)(11). Definitions; application

(a) For the purpose of this chapter--

(11) “management official” means an individual employed by an 

agency in a position the duties and responsibilities of which 

require or authorize the individual to formulate, determine, or 

influence the policies of the agency;

5 U.S.C. § 7105(f). Powers and Duties of the Authority

(f) If the Authority delegates any authority to any regional director or 

administrative law judge to take any action pursuant to subsection (e) 

of this section, the Authority may, upon application by any interested 

person filed within 60 days after the date of the action, review such 

action, but the review shall not, unless specifically ordered by the 

Authority, operate as a stay of action. The Authority may affirm, 

modify, or reverse any action reviewed under this subsection. If the 

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Authority does not undertake to grant review of the action under this 

subsection within 60 days after the later of--

(1) the date of the action; or

(2) the date of the filing of any application under this subsection 

for review of the action;

the action shall become the action of the Authority at the end of such 

60-day period.

5 U.S.C. § 7112. Determination of Appropriate Units for Labor 

Organization Representation

(a) The Authority shall determine the appropriateness of any unit. The 

Authority shall determine in each case whether, in order to ensure 

employees the fullest freedom in exercising the rights guaranteed under 

this chapter, the appropriate unit should be established on an agency, 

plant, installation, functional, or other basis and shall determine any 

unit to be an appropriate unit only if the determination will ensure a 

clear and identifiable community of interest among the employees in 

the unit and will promote effective dealings with, and efficiency of the 

operations of the agency involved.

(b) A unit shall not be determined to be appropriate under this section 

solely on the basis of the extent to which employees in the proposed unit 

have organized, nor shall a unit be determined to be appropriate if it 

includes--

(1) except as provided under section 7135(a)(2) of this title, any 

management official or supervisor;

(2) a confidential employee;

(3) an employee engaged in personnel work in other than a purely 

clerical capacity;

(4) an employee engaged in administering the provisions of this 

chapter;

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(5) both professional employees and other employees, unless a 

majority of the professional employees vote for inclusion in the 

unit;

(6) any employee engaged in intelligence, counterintelligence, 

investigative, or security work which directly affects national 

security; or

(7) any employee primarily engaged in investigation or audit 

functions relating to the work of individuals employed by an 

agency whose duties directly affect the internal security of the 

agency, but only if the functions are undertaken to ensure that the 

duties are discharged honestly and with integrity.

(c) Any employee who is engaged in administering any provision of law 

relating to labor-management relations may not be represented by a 

labor organization--

(1) which represents other individuals to whom such provision 

applies; or

(2) which is affiliated directly or indirectly with an organization 

which represents other individuals to whom such provision 

applies.

(d) Two or more units which are in an agency and for which a labor 

organization is the exclusive representative may, upon petition by the 

agency or labor organization, be consolidated with or without an 

election into a single larger unit if the Authority considers the larger 

unit to be appropriate. The Authority shall certify the labor 

organization as the exclusive representative of the new larger unit.

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5 U.S.C. § 7116(a). Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice 

for an agency--

(1) to interfere with, restrain, or coerce any employee in the 

exercise by the employee of any right under this chapter;

(2) to encourage or discourage membership in any labor 

organization by discrimination in connection with hiring, tenure, 

promotion, or other conditions of employment;

(3) to sponsor, control, or otherwise assist any labor organization, 

other than to furnish, upon request, customary and routine 

services and facilities if the services and facilities are also 

furnished on an impartial basis to other labor organizations 

having equivalent status;

(4) to discipline or otherwise discriminate against an employee 

because the employee has filed a complaint, affidavit, or petition, 

or has given any information or testimony under this chapter;

(5) to refuse to consult or negotiate in good faith with a labor 

organization as required by this chapter;

(6) to fail or refuse to cooperate in impasse procedures and 

impasse decisions as required by this chapter;

(7) to enforce any rule or regulation (other than a rule or 

regulation implementing section 2302 of this title) which is in 

conflict with any applicable collective bargaining agreement if the 

agreement was in effect before the date the rule or regulation was 

prescribed; or

(8) to otherwise fail or refuse to comply with any provision of this 

chapter.

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5 U.S.C. § 7118(a)(1). Prevention of Unfair Labor Practices

(a)(1) If any agency or labor organization is charged by any person with 

having engaged in or engaging in an unfair labor practice, the General 

Counsel shall investigate the charge and may issue and cause to be 

served upon the agency or labor organization a complaint. In any case 

in which the General Counsel does not issue a complaint because the 

charge fails to state an unfair labor practice, the General Counsel shall 

provide the person making the charge a written statement of the 

reasons for not issuing a complaint.

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),

may, during the 60-day period beginning on the date on 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.

(b) The Authority may petition any appropriate United States court of 

appeals for the enforcement of any order of the Authority and for 

appropriate temporary relief or restraining order.

(c) Upon the filing of a petition under subsection (a) of this section for 

judicial review or under subsection (b) of this section for enforcement, 

the Authority shall file in the court the record in the proceedings, as 

provided in section 2112 of title 28. Upon the filing of the petition, the 

court shall cause notice thereof to be served to the parties involved, and 

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thereupon shall have jurisdiction of the proceeding and of the question 

determined therein and may grant any temporary relief (including a 

temporary restraining order) it considers just and proper, and may 

make and enter a decree affirming and enforcing, modifying and 

enforcing as so modified, or setting aside in whole or in part the order of 

the Authority. The filing of a petition under subsection (a) or (b) of this 

section shall not operate as a stay of the Authority's order unless the 

court specifically orders the stay. Review of the Authority's order shall 

be on the record in accordance with section 706 of this title. No objection 

that has not been urged before the Authority, or its designee, shall be 

considered by the court, unless the failure or neglect to urge the 

objection is excused because of extraordinary circumstances. The 

findings of the Authority with respect to questions of fact, if supported 

by substantial evidence on the record considered as a whole, shall be 

conclusive. If any person applies to the court for leave to adduce 

additional evidence and shows to the satisfaction of the court that the 

additional evidence is material and that there were reasonable grounds 

for the failure to adduce the evidence in the hearing before the 

Authority, or its designee, the court may order the additional evidence 

to be taken before the Authority, or its designee, and to be made a part 

of the record. The Authority may modify its findings as to the facts, or 

make new findings by reason of additional evidence so taken and filed. 

The Authority shall file its modified or new findings, which, with 

respect to questions of fact, if supported by substantial evidence on the 

record considered as a whole, shall be conclusive. The Authority shall 

file its recommendations, if any, for the modification or setting aside of 

its original order. Upon the filing of the record with the court, the 

jurisdiction of the court shall be exclusive and its judgment and decree 

shall be final, except that the judgment and decree shall be subject to 

review by the Supreme Court of the United States upon writ of 

certiorari or certification as provided in section 1254 of title 28.

(d) The Authority may, upon issuance of a complaint as provided in 

section 7118 of this title charging that any person has engaged in or is 

engaging in an unfair labor practice, petition any United States district 

court within any district in which the unfair labor practice in question 

is alleged to have occurred or in which such person resides or transacts 

business for appropriate temporary relief (including a restraining 

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8

order). Upon the filing of the petition, the court shall cause notice 

thereof to be served upon the person, and thereupon shall have 

jurisdiction to grant any temporary relief (including a temporary 

restraining order) it considers just and proper. A court shall not grant 

any temporary relief under this section if it would interfere with the 

ability of the agency to carry out its essential functions or if the 

Authority fails to establish probable cause that an unfair labor practice 

is being committed.

REGULATIONS

5 C.F.R. § 2422.1(a), (b). What is your purpose for filing a 

petition?

You, the petitioner, may file a petition for the following purposes:

(a) Elections or eligibility for dues allotment. To request:

(1)(i) An election to determine whether employees in an 

appropriate unit wish to be represented for the purpose of 

collective bargaining by an exclusive representative, and/or

(ii) A determination of eligibility for dues allotment in an 

appropriate unit without an exclusive representative; or

(2) An election to determine whether employees in a unit no longer 

wish to be represented for the purpose of collective bargaining by 

an exclusive representative.

(3) Petitions under this subsection must be accompanied by an 

appropriate showing of interest.

(b) Clarification or amendment. To clarify, and/or amend:

(1) A recognition or certification then in effect; and/or

(2) Any other matter relating to representation.

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5 C.F.R. § 2422.2 (a), (c). Who may file a petition?

An individual; a labor organization; two or more labor organizations 

acting as a joint-petitioner; an individual acting on behalf of any 

employee(s); an agency or activity; or a combination of the above may 

file a representation petition. But,

(a) Only a labor organization may file a petition under § 2422.1(a)(1);

* * * * *

(c) Only an agency or a labor organization may file a petition under 

§ 2422.1(b) or (c).

5 C.F.R. § 2422.30(c), (d). When does a Regional Director 

investigate a petition, issue notices of hearings, take actions, 

and issue Decisions and Orders?

(c) Regional Director action. After investigation or hearing, the Regional 

Director can direct an election, or approve an election agreement, or 

issue a Decision and Order.

(d) Appeal of Regional Director Decision and Order. A party may file 

with the Authority an application for review of a Regional Director 

Decision and Order.

5 C.F.R. § 2422.31(b), (c). When do you file an application for 

review of a Regional Director Decision and Order?

(b) Contents. An application for review must be sufficient for the 

Authority to rule on the application without looking at the record. 

However, the Authority may, in its discretion, examine the record in 

evaluating the application. An application must specify the matters and 

rulings to which exception(s) is taken, include a summary of evidence 

relating to any issue raised in the application, and make specific 

references to page citations in the transcript if a hearing was held. An 

application may not raise any issue or rely on any facts not timely 

presented to the Hearing Officer or Regional Director.

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(c) Review. The Authority may grant an application for review only 

when the application demonstrates that review is warranted on one or 

more of the following grounds:

(1) The decision raises an issue for which there is an absence of 

precedent;

(2) Established law or policy warrants reconsideration; or,

(3) There is a genuine issue over whether the Regional Director 

has:

(i) Failed to apply established law;

(ii) Committed a prejudicial procedural error; or

(iii) Committed a clear and prejudicial error concerning a 

substantial factual matter.

5 C.F.R. § 2423.3(a). Who may file charges?

(a) Filing charges. Any person may charge an activity, agency, or labor 

organization with having engaged in, or engaging in, any unfair labor 

practice prohibited under 5 U.S.C. 7116.

5 C.F.R. § 2429.5. Matters not previously presented; official 

notice.

The Authority will not consider any evidence, factual assertions, 

arguments (including affirmative defenses), requested remedies, or 

challenges to an awarded remedy that could have been, but were not, 

presented in the proceedings before the Regional Director, Hearing 

Officer, Administrative Law Judge, or arbitrator. The Authority may, 

however, take official notice of such matters as would be proper.

5 C.F.R. § 2429.17. Reconsideration.

After a final decision or order of the Authority has been issued, a party 

to the proceeding before the Authority who can establish in its moving 

papers extraordinary circumstances for so doing, may move for 

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reconsideration of such final decision or order. The motion shall be filed 

within ten (10) days after service of the Authority's decision or order. A 

motion for reconsideration shall state with particularity the 

extraordinary circumstances claimed and shall be supported by 

appropriate citations. The filing and pendency of a motion under this 

provision shall not operate to stay the effectiveness of the action of the 

Authority, unless so ordered by the Authority. A motion for 

reconsideration need not be filed in order to exhaust administrative 

remedies.

LEGISLATIVE HISTORY

Civil Service Reform Act of 1978, H.R. Conf. Rep. No. 95-1717 at 

153 (Oct. 5, 1978).

B. 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 

unit an 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 decision 

of the arbitrator in such matters will be appealable directly to the Court 

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of Appeals (or Court of Claims) in the same manner as a decision by the 

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 sector, 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 sector. 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.

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