United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2014 Decided April 7, 2015

No. 13-1261

JARED R. CLARK,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

On Petition for Review of a Final Order 

of the Federal Labor Relations Authority

D. Zachary Hudson, appointed by the court, argued the 

cause as amicus curiae for petitioner. With him on the briefs 

was H. Christopher Bartolomucci.

Fred B. Jacob, Solicitor, Federal Labor Relations 

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

brief was Zachary R. Henige, Deputy Solicitor. 

Before: ROGERS, GRIFFITH, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: This case challenges a 

decision by the General Counsel of the Federal Labor 

Relations Authority to settle an unfair labor charge 
2

unilaterally after the issuance of a complaint, but before a 

hearing. Because our precedent holds that such a decision is 

not a “final order of the Authority” subject to review in this 

court under 5 U.S.C. § 7123(a), we dismiss the petition for 

lack of subject-matter jurisdiction. 

I

The American Federation of Government Employees, 

Local 1945 (the Union) is the exclusive representative for all 

employees in the collective-bargaining unit at the Anniston 

Army Depot in Alabama.

1 Petitioner Jared Clark is a 

bargaining-unit employee, but not a dues-paying union 

member. In November 2008, the Union learned that the Depot 

was assigning some employees to duties beyond their pay 

grade without providing additional compensation. The Union 

filed a grievance on behalf of all bargaining-unit employees 

seeking that compensation.

In April 2010, the Depot and the Union entered a 

settlement agreement that provided backpay to the employees 

who performed the higher-graded duties. According to the 

settlement, the Union and the Depot would together determine 

the appropriate settlement amount for the employees from a 

list of those who might have valid claims supplied by the 

Union. It fell to the Union to notify Depot employees of the 

settlement and to gather from them the information needed to 

process claims. Though Clark had completed work above his 

pay grade, the Union failed to contact him. When Clark 

 1 These facts are drawn from the final investigative report 

prepared by the General Counsel of the FLRA, the allegations in 

Clark’s charge and the General Counsel’s complaint, and various 

settlement documents. 
3

visited the Union office to inquire about the settlement, a 

representative asked whether he was a Union member. 

Learning that he was not, the representative told Clark he 

needed to join that very day. Clark refused to join. Despite 

this exchange, the Union representative told Clark what he 

needed to do to submit a claim for inclusion in the settlement. 

Clark complied, providing the Union log books reporting the 

times he worked and affidavits from co-workers stating that 

they had seen Clark performing work above his pay grade. 

The Depot and the Union eventually agreed to 

distribute $303,825 among 218 employees the Union had 

included on the list. The Union left Clark off the list and put 

only one person on the list who was not a member of the 

Union. Depending on the nature of their claims, employees on 

the list would receive between $300 and $1,970. Upon 

realizing that the proceeds of the settlement went almost 

entirely to Union members, Clark filed an unfair labor 

practice charge with the Federal Labor Relations Authority 

(the Authority). Following an investigation that identified 

Clark and fifty-five other nonunion employees whom the 

Union cut out of the settlement, the Authority’s Regional 

Director issued a complaint on behalf of the General Counsel2

alleging that the Union had violated 5 U.S.C. §§ 7114(a)(1) 

and 7116(b)(8) by giving preferential treatment to union 

members in settling the claims. 

Before a hearing on the complaint took place, the 

Union and the Regional Director agreed to settle. The Union 

 2 Under the Authority’s regulations, the Regional Director may 

act on behalf of the General Counsel to “[a]pprove a request to 

withdraw a charge”; “[d]ismiss a charge”; “[a]pprove a written 

settlement agreement”; “[i]ssue a complaint”; or “[w]ithdraw a 

complaint.” 5 C.F.R. § 2423.10(a).
4

would pay $1,970 to Clark, but only $200 to each of the fiftyfive other nonunion employees. The Union would also inform 

the affected employees of the terms of the settlement by 

issuing notices describing the charges and their resolution 

along with the checks. Clark objected to the settlement. In his 

view, the agreement not only failed to adequately compensate 

him and the other nonunion employees, but it would not deter 

the Union from engaging in such unlawful discrimination in 

the future. The Regional Director considered Clark’s 

objections but approved the settlement anyway. Clark 

appealed the Regional Director’s determination to the 

Authority’s General Counsel, who affirmed the decision. 

Clark filed this petition for review, arguing that the General 

Counsel lacked authority to settle the complaint unilaterally. 

II

We may not take up the merits of Clark’s petition

before we consider the Authority’s argument that we lack 

jurisdiction to review the General Counsel’s unilateral 

settlement of an unfair labor practice charge. 

The Federal Service Labor-Management Relations 

Statute (FSLMRS) provides that an aggrieved person may 

obtain judicial review only of “any final order of the 

Authority,” subject to exceptions not relevant here. 5 U.S.C. 

§ 7123(a). In Turgeon v. FLRA, we held that we had no 

jurisdiction to review the General Counsel’s decision 

declining to issue a complaint. 677 F.2d 937 (D.C. Cir. 1982). 

We reached this result by looking to the reasoning of the 

Supreme Court interpreting the National Labor Relations Act, 

which, like the FSLMRS, limits our jurisdiction to challenges 

to a “final order of the Board.” Compare 29 U.S.C. § 160(f), 

with 5 U.S.C. § 7123(a). Construing the similar language of 
5

the NLRA, the Supreme Court held that a decision of the 

NLRB’s General Counsel declining to issue an unfair labor 

practice complaint is not a “final order of the Board,” and thus 

the courts had no jurisdiction to consider its lawfulness. See 

Turgeon, 677 F.2d at 940 (citing Lincourt v. NLRB, 170 F.2d

306, 307 (1st Cir. 1948), and NLRB v. Sears, Roebuck & Co., 

421 U.S. 132, 138-39 (1975)). 

In Turgeon, we thought it proper to consider the 

NLRA because the legislative history of the FSLMRS “makes 

clear [that] the structure, role, and functions of the Authority 

and its General Counsel were closely patterned after the 

structure, role, and functions of the NLRB and its General 

Counsel under the National Labor Relations Act.” Turgeon, 

677 F.2d at 939. We found evidence of an intent to model the

position of the General Counsel of the Authority after that of 

the General Counsel of the NLRB in statements in both the 

House and Senate Reports. The House Report noted that the 

“Committee intend[ed] that the General Counsel [of the 

Authority] be analogous in role and function to the General 

Counsel of the National Labor Relations Board.” H.R. REP.

NO. 95-1403, at 41-42 (1978). The Senate Report provided 

that “[i]t is intended that unfair labor practice complaints will 

be handled by the General Counsel of the Authority in a 

manner essentially identical to National Labor Relations 

Board practices in the private sector.” S. REP. NO. 95-969, at

106 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2824. We 

also relied upon our overview of the Authority’s power in 

Department of Defense v. FLRA, where we explained that the 

Authority’s “role is analogous to that of the National Labor 

Relations Board.” 659 F.2d 1140, 1144 (D.C. Cir. 1981). 

Based on these statements in the legislative history and the 

NLRA precedent interpreting the analogous provision, we 

held that “the General Counsel of the Authority must be 
6

accorded the same discretion with respect to issuance of 

unfair labor practice complaints as the General Counsel of the 

NLRB,” and dismissed the petition for lack of jurisdiction. 

Turgeon, 677 F.2d at 940. 

Fortunately, the Supreme Court has decided the very 

issue before us in the NLRA context. In NLRB v. United Food 

& Commercial Workers Union, Local 23, AFL-CIO (UFCW), 

the Supreme Court unanimously held that a decision by the 

NLRB’s General Counsel to settle a complaint unilaterally 

before a hearing is not subject to judicial review under the 

NLRA. 484 U.S. 112 (1987). The Court noted that the NLRA 

distinguished between the adjudicatory role of the NLRB, 

which is reviewable, and the prosecutorial function of the 

General Counsel, which is not. The decision whether to file a 

complaint is clearly prosecutorial, whereas once a hearing 

begins on an unfair labor practice complaint, the process 

becomes adjudicative. Id. at 125. “Between these extremes”

however, the Court found that pre-hearing settlements “might 

fairly be said to fall on either side of the division.” Id. In light 

of this ambiguity, the Court deferred to the agency’s 

regulation that placed the power to strike a unilateral 

settlement of a complaint prior to a hearing in the 

prosecutorial discretion of the Regional Director with review 

by the General Counsel, but not the NLRB. See id. at 125-26; 

29 C.F.R. § 101.9. The Court remarked that it “fail[ed] to see 

why the General Counsel should have the concededly 

unreviewable discretion to file a complaint, but not the same 

discretion to withdraw the complaint before hearing if further 

investigation discloses that the case is too weak to prosecute.” 

UFCW, 484 U.S. at 126. The Court thus determined that 

“[t]he General Counsel’s unreviewable discretion to file and 

withdraw a complaint . . . logically supports a reading that he 

or she must also have final authority to dismiss a complaint in 
7

favor of an informal settlement, at least before a hearing 

begins.” Id. 

Together, Turgeon and UFCW make clear that we lack 

jurisdiction to review the General Counsel’s settlement in this 

case. Turgeon tells us to look to NLRA precedent when 

considering the powers of the Authority’s General Counsel. 

UFCW tells us that the decision of the NLRB’s General 

Counsel to affirm an informal settlement prior to a hearing is 

unreviewable. Indeed, this court has cited UFCW approvingly 

while reviewing an Authority decision. See Patent Office 

Prof’l Ass’n v. FLRA, 128 F.3d 751, 753 (D.C. Cir. 1997) (per 

curiam). And just as in UFCW, the Authority has promulgated 

a regulation giving the Regional Director authority to settle 

complaints before a hearing without the charging party’s 

approval. 5 C.F.R. § 2423.25(a)(1). Like the NLRB regime, 

the Authority’s regulations give the Regional Director two 

ways to withdraw a complaint before a hearing begins: 

informal settlements and formal settlements. If the Regional 

Director chooses to undertake an informal settlement, he can

withdraw the complaint unilaterally if he concludes that doing 

so will further the policies of the FSLMRS. Id. § 2423.25(b). 

The charging party can appeal the Regional Director’s action 

to the General Counsel, but the agreement is “not subject to 

approval by or an order of the Authority.” Id. § 2423.25(a)(1). 

Because the Authority is not involved, the agreements are not 

subject to court enforcement. On the other hand, if the 

Regional Director thinks that court enforcement might be 

necessary, he can enter into a formal settlement agreement 

that is subject to Authority approval and contains “consent to 

the Authority’s application for the entry of a decree by an 
8

appropriate federal court enforcing the Authority’s order.” Id. 

§ 2423.25(a)(2).3 

Here, the Regional Director used his power to 

informally settle the complaint. Therefore, just as in UFCW, 

the settlement was not subject to Authority review. See 5 

C.F.R. § 2423.25(a)(1), (b). Furthermore, the logic of the 

argument the Court relied on in UFCW applies with equal 

force here: Just like the General Counsel of the NLRB, the 

General Counsel of the Authority has the unreviewable 

discretion to file and withdraw a complaint. See Turgeon, 677 

F.2d at 940; 5 C.F.R. § 2423.10(a). With that unreviewable 

discretion, the General Counsel has “final authority to dismiss 

a complaint in favor of an informal settlement” prior to a 

hearing. UFCW, 484 U.S. at 126. 

Seeking to avoid the force of the Court’s analysis in 

UFCW, Clark argues that we should not defer to the 

Authority’s position on the reviewability of the General 

Counsel’s power. Clark claims that deferring in this 

circumstance would violate the principle that “[i]nterpreting 

statutes granting jurisdiction to Article III courts is 

exclusively the province of the courts.” Ramey v. Bowsher, 9 

F.3d 133, 136 n.7 (D.C. Cir. 1993). But neither the Authority 

here nor the NLRB in UFCW attempted to interpret the 

provisions of the statutes that allowed judicial review only of 

“final orders” of the Authority or the NLRB. Instead, the 

agencies merely determined the extent of their own power to 

review decisions of their General Counsels. While this 

determination has an effect on what is subject to judicial 

review, the Court in UFCW deferred to the NLRB’s 

 3 Our decision today has no bearing on whether such formal 

settlements are subject to judicial review.
9

interpretation in these precise circumstances under the NLRA. 

See UFCW, 484 U.S. at 123-26. Both UFCW and the case 

now before us involve an agency interpretation that does not 

provide for NLRB or Authority review of the General 

Counsel’s settlement decisions, which therefore precludes our 

review. We see no way to distinguish this case. 

Clark argues in the alternative that the text of the 

FSLMRS gives the General Counsel three distinct powers: (1) 

“investigat[ing] alleged unfair labor practices”; (2) “fil[ing] 

and prosecut[ing] complaints” following such an 

investigation; and (3) “exercis[ing] such other powers of the 

Authority as the Authority may prescribe.” 5 U.S.C. 

§ 7104(f)(2)(A)-(C). Clark claims that one of those “other 

powers” the Authority has delegated to the General Counsel is

the ability to settle disputes. Because this power springs from 

the Authority, it still qualifies as a “final order of the 

Authority” subject to our review. In support of his argument, 

Clark states that the Authority—and not the General 

Counsel—issued the regulations giving the Regional Director 

the power to settle complaints with review from the General 

Counsel. This is factually incorrect. The Authority and the 

General Counsel jointly promulgated the controlling 

regulations initially, see 45 Fed. Reg. 3482, 3483-84 (Jan. 17, 

1980), and have continued to revise them together, see, e.g.,

77 Fed. Reg. 33,751, 33,752 (June 25, 2012). The joint 

regulation conducted by both the prosecutorial and 

adjudicative members of the agency is consistent with the 

Court’s holding in UFCW, deferring to the agency’s power to 

determine where to draw the line between prosecution and 

adjudication. See UFCW, 484 U.S. at 125-26. 

Clark also claims support for his argument based on a

1986 Authority opinion, stating that the General Counsel’s 
10

power to settle complaints comes from the Authority. In 1986, 

the Department of Justice requested guidance from the 

Authority on three questions, including the issue before us—

whether the General Counsel can unilaterally settle an unfair 

labor practice complaint. The Authority declined to issue a 

general policy statement answering all three questions, but did 

opine that among the “other powers” given to the General 

Counsel is the “full and final authority and responsibility, on 

behalf of the Authority . . . to enter into and approve the 

informal settlement of charges.” Decision on Request for 

General Statement of Policy or Guidance, 23 F.L.R.A. 342, 

344 (Sept. 10, 1986) (internal quotation marks omitted). 

Because this power comes from and is exercised on behalf of 

the Authority, Clark argues that the General Counsel’s 

decision in this case is a final order of the Authority. But the 

Authority’s opinion on this issue does not have the force of 

law. Under Skidmore, the deference it is owed “depend[s] on 

the thoroughness evident in its consideration, the validity of 

its reasoning, its consistency with earlier and later 

pronouncements, and all those factors which give it power to 

persuade, if lacking power to control.” Skidmore v. Swift & 

Co., 323 U.S. 134, 140 (1944). 

We find that the Authority’s cursory decision lacks any 

power to persuade. As noted, the Authority expressly 

indicated that the document was not intended to serve as 

general guidance. See Decision on Request for General 

Statement of Policy or Guidance, 23 F.L.R.A. at 342 (“The 

Authority . . . has determined that it does not satisfy the 

standards governing the issuance of general statements of 

policy or guidance.”); id. at 346 (“[R]esolution of the 

questions presented would not have general applicability 

under the Statute.”). Moreover, the Authority provided no 

support for its statement that the General Counsel’s power to 
11

engage in settlements stemmed from his or her authority to 

“exercise such other powers” prescribed by the Authority, and 

not from the inherent authority to “file and prosecute 

complaints.” To the extent that we can surmise the 

Authority’s reasoning, we assume that the Authority was 

relying on then-applicable precedent establishing that prehearing settlements of the General Counsel of the NLRB and 

the Authority were adjudicatory rather than prosecutorial. See 

Int’l Ladies’ Garment Workers Union, Local 415-475, AFLCIO v. NLRB, 501 F.2d 823 (D.C. Cir. 1974); Am. Fed’n of 

Gov’t Emps., AFL-CIO v. FLRA, 785 F.2d 333 (D.C. Cir. 

1986).4 When the opinion was written, our cases effectively 

precluded the Authority from placing the power to settle 

disputes in the prosecutorial discretion of the General 

Counsel. Since that time, however, UFCW has abrogated 

those precedents by holding that NLRB informal settlements 

are not reviewable. We therefore discount the relevance of the 

Authority opinion because of this significant shift in the law 

and hold that the language in the outdated opinion cannot 

overcome the holdings of Turgeon and UFCW. 

Clark also argues that the power given to the NLRB’s 

General Counsel in the NLRA is more expansive than that of 

the Authority under the language of the FSLMRS. For 

 4 When we first decided whether we had jurisdiction over the 

General Counsel’s unilateral settlement of a complaint in the NLRB 

context, Chevron had not yet been decided. See Chevron U.S.A., 

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). We 

therefore did not defer to the agency’s regulation declining to 

provide for NLRB review. After Chevron, we decided the same 

issue in the Authority context, but looked only to our decision 

under the NLRA as a guide, based on the “substantially identical 

appeal provision[s].” Am. Fed’n of Gov’t Emps., 785 F.2d at 335 

n.3. 
12

example, the NLRB’s General Counsel has “final authority, 

on behalf of the Board” with respect to broad categories of 

power, whereas the FSLMRS expressly limits the powers of 

the Authority’s General Counsel to three narrow categories 

and nowhere states that he can act with final authority on his 

own. Because the statutory language differs, Clark argues that 

the two entities should be treated differently. This argument, 

however, runs counter to both our decision in Turgeon and the 

legislative history of the FSLMRS. See Turgeon, 677 F.2d at 

940. We are bound by our own precedent and its recognition 

of the intent of Congress to model the Authority after the 

NLRB. 

Clark has given us no reason to depart from our 

practice of treating the General Counsel of the NLRB and the 

General Counsel of the Authority as “essentially identical.” 

See S. REP. NO. 95-969, at 106. In keeping with our NLRB 

precedent, we therefore hold that we lack jurisdiction to 

review a decision by the Authority’s General Counsel 

affirming a settlement agreement before a hearing takes place. 

III

The petition for review is dismissed for lack of 

subject-matter jurisdiction.