# Unite d States Court of Appe als

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Arg ued Nove mber 6, 2023 Dec ided April 23, 2024

No. 22-5308

A M E R I C A N F E D E R

A TI O N O F G O V E R

N M E N T E M P L O Y E E S , N A TI O N A L C O U N C I L O F HUD L O C A L S C O U N C I L 222, AFL -CI O, A P P E L L E E

v.

F E D E R A L L A B O R R E L

A TI O N S A U TH O R

I TY A N D S U S A

N T S U I G R U N D M A N N , I N H E R O F F I C I A L

C A P A C I TY

A S C H A I R M A N O F
TH E F E D E R

A L L A B O R R E L

A TI O N S A U TH O R

I TY , A P P E L L A N TS

Appea l from the United States District Court for the D istrict of Columbia (No. 1:19-c v-00998)

Thomas Tso

, Solicitor, Fede ral L abor Rela tions Authority

, arg ued the caus e fo r appellants. Wit h him on the briefs wer e Rebe cca J. Osborne

, Deputy S o l i cit or, and Nariea K. Nelson

, Attorney

.

Andres M. Grajales arg ued the cause for appellee

. Wit h him on the brief we re David A. Bore r and Mark L. Vinson

.

Be fore: W I L K

I N S and W A L K

E R , Circuit Judges

, and2

R A N D O L P H , Senior Circuit Judge

. Opini o n fo r the Court filed by Senior Circuit Judge R A N D O L P H

. Opinion concur

ring in the result filed by Circuit Judge W I L K I N S

.

R A N D O L P H , Senior Circuit Judge :

The salarie s for most c ivilian f eder al jobs a

re set out in the Gene ral Schedule, a pay scale t h at s p ans fiftee n “g rade s.” The highe r the g rade the g rea ter the c ompensation.

I n 2002, the Depa

rtment of Hous i n g and Urba n Deve lopment adver

tised job open i n g s having a promotion potential to g rade thirteen. At t he time, exis ting employ ees in
compar abl e positions could be promoted only to g rade twelve. The exis ting emplo y ee s wer e repr esente d by the Americ an Fe dera tion of Gover

nment Employ ees, National Council of HUD L ocals Council 222, AFL -CI O. The uni o n t o o k the position that the d i ff

ere nce in the trea tment of exis ting employ ees and those to be hired violat ed its collective barg ainin g ag ree ment with HUD. The union filed a g rieva nce to that eff

ect. HUD reje cted it and the union’s g rieva nce proce eded to a

rbitration.

Now, more than twenty y ear s afte r it beg an, the controve rsy has re ache d our cour

t.

I.

The Fe dera l Service L abor- Manag ement Relations Statute—the FSL MRS—established a fra mework for resolving disputes betwee n fede ral ag ency employ er s and unions3

repr esenting ag ency employ ees. 5 U.S.C. §§ 7101 et s eq

. ; id. § 7121(b)( 1)(C)( iii)

. Most g rieva nces may b e settled throug h arbitra tion, but an arbitra tor g ener ally has no authority to decide
g rieva nces involving the classifica tion of employ ees’ positions. 1 Id. § 7121(c) (5).

I f a dispute g oes to arbitra tion, a party dissatisfied with the result—commonly called an “aw ard” —may contest the result by filing exceptions with the Fe dera l L abor Relations Aut h o rity

. Id. § 7122(a)

. I f neither party files exceptions, the arbitra tor’s

awa rd become s “fina l a

nd binding.” Id. § 7122(b). The FL RA
may overturn an arbitra tor’s aw ard if it finds that the awa rd is “contr ary to any law, ru l e, or reg ulation,” or if the awa rd is defic ient on “g rounds simil ar to those applied by Fe dera l courts in private sec tor labor- manag ement re lations.” Id. § 7122(a)

.

I n case s not involving an arbit ra t i o n, a party dissatisfied with an FL RA decision m ay obtain judicial revie w i n a fede ral court of a ppeals. Id. § 7123(a)

.

The law trea ts FL RA decisions in arbitra tion case s differ ently

. E x cluded from judicial revie w are FL RA order s “involving an awa

rd by an arbitra tor,” “unless the order involves an unfa ir labor pr actice ” as de fined e lsewher e in the F SL MRS. Id. § 7123(a) (1); see id. § 7116.

Fr om the outset of this p ro trac ted dispute, the union and HUD disag ree d on a fundamental issue: whether the union’s gri evance involved classifica tion. U.S. Dep’ t of Hous. & Urb. Dev

. W ash.

, 59 F.L .R.A. 630, 630 (2004). Was the gri ev an ce based on reclassificati o n

— the promotion potential of the

1 Cla ss if

ic at ion -rel at ed gri eva n ces ar e ar bitr able w hen

re cl as si fi ca

ti on re sult s in a re ducti on in p ay or gr ade

. 5 U.S.C. § 7121 (c )( 5). That e xce ptio n does not a pply here

.4

em p l o y ee s ’ p ermanent positions—or r ea s s i g n me n t

— t h e employ ees’ rig ht to be place d in the new positions that HUD had posted? Only a reque st for rea ssignment could be potentially resolved in a

rbitration.

Th e parties submitt ed the question to the arbitra tor, who

co n cl u d ed in an interim order that the dispute involved the fairne ss of the vacancy announce ments, not classifica tion. See id. HUD filed an interlocutory exception challeng ing the arbitra tor’s jurisdiction. Id. The F L RA declined to r esolve the jurisdictional issue at t hat t ime and remand ed t he matter to the arbitra tor for “ clar ification.” Id. at 632.

Upon rema

nd, the arbitra tor ag ain deter mi n ed that the
g rieva nce was arbitrable. On t he merits, the arbitrat or, finding that HUD had violated the parties’ collective barg aining
ag ree ment, order ed a retroa cti ve “org anizational upg rade of aff ecte d positions.” Ag ain, HUD filed exceptions, arg uing that the “org anizational upg rade ” reme dy require d rec lassification and ther efor e violated the F SL MRS.

The FL RA ag ree d with H UD. U.S. Dep’ t of Hous. & Urb. Dev

. , 65 F.L

. R .A. 433, 436 (2011). So the FL RA vacated the arbitra to r’ s reme dial awa rd and rema

nded for an alterna tive

reme dy

. Id.

The arbitrator then issued new reme dies. During implementation of these reme dies, the parties raised various exceptions to the arbitra tor’s written p rogre ss summaries, resulting in five more FL RA decisions. Those FL RA decisions 2 did not re co n s i der the arbitra tor’s threshold decision that the dispute was ar

bitrable.

The par ti es and the di st

ri ct co urt t re at ea ch o f the ar

bitr at or ’s 2 inte ri m sum m ar ie s a s s epa

ra te “aw ar ds.”5

I n 2018, the FL RA rende red its eig hth dec i sion in this
matter. On revie w of exceptions to the arbitra tor’s tenth written

s u m m ar y , the FL RA held that “the essential nature of this
g rieva nce

. . . conce rned classifica tion.” U.S. Dep’ t of Hous. & Ur b

. Dev.
, 70 F.L .R.A. 605, 608 (2018) (“ HUD VIII

”). This meant that “the [ a]rbitrator ha s alway s lacke d jurisdiction over the g rieva

nce, as a matter of law.” Id. The FL RA there for e

vaca ted all of the arbitra tor’s pronounce ments and its own prior d ecisions. Id. One Member dissented. Id. at 609– 1 0

. T h e FL RA den i ed the union’s motion for rec onsideration. U.S. Dep’ t of Hous. & Urb. Dev

. , 71 F.L .R.A. 17, 20 (2019).

The union then filed a four- count complaint in district court claiming th at t h e FL RA’s decision was “ultra vires.” The complaint invoked § 7122(b) of the FSL MRS, a provision stating that an arbitra tor’s awa rd become s “fina l and binding” if

no exceptions are filed wi t hin thirty day s. The union claimed 3 that in vaca

ting awa rds that h ad b ec ome final and binding, the FL RA had violated the Administrative Procedur e Act, 5 U.S.C. § 706. The district court reject ed the union’s APA claim but denied the FL RA’s motion to dismiss the entire co m p l aint for lack of subject matter jurisdiction, holding that it had jurisdiction beca

use “the [FL RA] exceede d i ts deleg ated

Sec ti on 7122(b) pro vi des in full : 3

I f no exc epti on to an ar bitr at or ’s aw ar d is fi le d under subse ct io n (a ) of this se ct io n during the 30- day per io d beg inning on the date the aw ar d is se rv ed on the party , the aw ar d sha ll be fi nal and binding. An
age n cy sha ll ta

ke the ac ti ons re quire d by an

ar bitr at or ’s fi nal aw ar d. The aw ar d m ay incl ude the
pay m ent of bac kpa

y (a s pro vi ded in se ct io n 5596 of this tit le ).6

power s. ” T he court conclude d that “the Union has stated a claim as to Count I
, which alleg es that the [FL RA’s] decision to

vaca te final and binding arbitra tio n aw ar ds was ultra vires. ” T he court later g rante d the union’s motion for summary judgme nt on that count.

T h e issues on appea l conce rn the district court’s denial of the FL RA’s motion to dismiss for lack of jurisdiction and the court’s g rant of summar

y judgme nt.

II.

Section 7123(a) of the FSL MRS provides for judicial revie w of some FL RA decisions. The provision establishes that:

(a) Any person ag g ri eved by any final order of the Authority

other than a

n order under-

-
(1) section 7122 of this title (involving an awa

rd by an arbitra tor), unless the order involves an unfair labor prac tice under section 7118 of this ti tle, or

(2) section 7112 of this title ( i n v o l v i n g a n a p p r o p r i a t e u n i t deter mination),

may , during the 60-day period beg inning on the date on which the or der was issued, instit ute an acti on for judicial revie w of the Authority ’s order in the United States court of appea ls in the circ uit in which the person resides or tr an sacts business or in the United States Court of Appea ls for the D istrict of Columbia.7

5 U.S.C. § 7123(a).

Neither the g rieva

nce nor the FL RA’s decision in this case involves an “unfa ir labor prac tice.” Sect ion 7123(a) (1) there fore “fla tly ” fore closed the jurisdiction of this court to conduct direc t judicial revie w of the FL RA’s order vacating the arbitra tion

awa rds. U.S. Dep’ t of

Just. v. FLRA
, 981 F.2d 1339, 1342 (D.C. C i r. 1 9 93). Even so, the union contends that as a matter of

4 statutory interpre tation § 7123(a) prohibits only court of appea ls direc t revie w of FL RA arbitra tion decisions, not di s trict court revie w of a g ency

actions when the ag ency exceeds its statutory authority

. On this theory

, the union claimed that its suit in the district court circ um v ented the § 7123(a) bar ag ainst judicial revie w of arbitra

tion decisions. Our court has alre ady answe red the union’s arg ument: “We cannot imag ine that Congr ess , having vested in co u rt s of appea ls exclusive jurisdiction to revie w all [FL RA] decisions except those rela ting to appropr iate unit deter

minations [and arbitra tion orde rs ], would have intended that such deter minations could never

theless be reviewed by district courts.” Ass’n of Civilian Technicians v. FLRA , 283 F.3d 339, 341–42 ( D.C. Cir. 2002).

This bring s us t o t h e union’s arg ument from Leedom v. Kyne
, 358 U. S

. 184 (1958), a case dealing with the National L abor Relations Act. That Act fore closed direc t judicial revie w in the courts of appea ls of the National L abor Relations Boa rd’s collective barg aining unit cer tifications. Even so, Kyne upheld

5 district court revie w of a particula r Boa rd unit cer

tification. Id.
at 190–91. As J udg e Fr iendly explained, the “conf lict” betwee n the Act’s prohibition and the NL RB’s action was “plain”: “[The

We hav e jurisdi ct io n ov er th is appea l fr om the dist ri ct co urt. 4 See Unite d States v. Corr ic k , 298 U.S. 43 5, 44 0 (1936 ).

See Am. Fed’n of Lab. v. NLRB, 308 U.S. 40 1, 41 1 (1940 ). 58

National L abor Relations Act] decl are d that the Boa rd ‘shall not’ decide that any unit including professional and non-prof essional employ ees is appropr iate for collec t ive barga ining unless a majority of the profe ssionals vote for inclusion. The Boa

rd conce ded it had done exactly what it wa s forbidden to do.” Local 1545, Un i t ed Brotherhood of Carpenters & Joiners of A m. v. Vincent
, 286 F.2d 127, 132 (2d Cir. 1960).

Kyne t rea ted the jurisdictional issue as one of statutory interpre tation: did the rele vant leg islation bar judicial revie w in the district court? 358 U.S. at 188–90. The Court answe red the question by decla

ring that Congr ess could not possibly have intended t o b ar district court revie w of “an order of the Boa rd made in excess of its deleg ated power s and contra ry to a specific prohibition in the Act.” Id. at 188. The Court’s opinion neither quoted nor cited the statutory lang uag e it was interpre ting. This omission may be explained in light of the loose co n cept of “leg islative intent” dominating statutory interpre tation in 1958, when Leedom v. Kyne issued. Then the Court g ener ally believed if “the text deviate[d] marke dly from [a statute’s] appar ent purpose, Congr ess must have ‘intended’ to use the statute’s words in some thing other than the ir conve ntional se nse.” J ohn F. Manning

, Textuali s m and the Equity of the Statute
, 101 C O L U M

. L

. R E V

. 1, 6–7 (2001). But by the close of the twentieth
centur y , that approa ch was larg ely reje cted in f avor of a stricter focus on a

statute’s text. Id.

Rely ing on Leedom v. Kyne
, the union claims that § 7123(a)

means that only courts of appea ls are barr ed from reviewing FL RA arbitra tion ruling s, leaving the district courts fre e to do so whene ver the FL RA violates a “def inite statutory prohibition of conduct.” See Kyne
, 358 U.S. at 1 89 (quoting Tex. & New Orleans R.R. Co. v. Brotherhood of Ry. & S.S. Clerks

, 281 U.S. 548, 568 (1930)) . Many

decisions of our c ourt have dealt with9

the meaning of § 7123(a)

. Griffit h v. FLRA
, 842 F.2d 487 (D.C. Cir. 1988), for instance, decide d that “the specific lang uag e of § 7 123” precluded not just court of appea ls judicial revie w but also district court re view of FL RA arbitra tion decisions not involvi n g u n fair labor prac tices. Id. at 493. The court’s

rea soning de serve s full quotation:

To be sure, Congr ess did not expli citly deny to district
courts the power to revie w FL RA decisions. Neve rtheless, wher e Congr ess has set out a compl ex scheme authori z i ng cer

tain ty pes of revie w but not ot hers, the express prec lusion of revie w of FL RA

o rder s under § 7122 in the one mention of t he subj ect [(arbitration decis io ns] power fully sug g ests an intent to prec lude revie w in ever

y court. See United States v. Fausto
, 484 U.S. 439 (1988); B l ock [ v. Community Nutrit ion Institute
, 467 U.S. 340,] 346–47 [(1984)]; Switchmen’s Union of North America v. N a t i onal Mediation Board

, 320 U.S. 297, 30 5–06 (1943). This is espec ial l y true in light of Congr ess’s having expli ci t ly g iven the district courts revie w authority in

one are a, namely temporar y relief in unfair labor
prac tice proc eeding s. See 5 U.S.C. § 7123(d).

Id. at 491 (italics i n orig inal). The Griffit h court also relied on the leg islative history of § 7123 and quoted, adding italics, the Con fe re n ce Commi ttee’s statement that “ there will be no judicial revie w of the Authority’s action o n those arbitrator s’ awards in grievanc e ca ses which are appealable to the Authority. ” Id. at 492 (quoting H.R. Rep. No. 95-1717
, at 153 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2887). 6

Gri ff it h’s ana ly si s ga ins furt

her suppor

t fr om the re quire m ent in 6 § 7123 (c ) that “[r] ev ie w of the Author it y ’s or der sha ll be on the re co rd in ac co rda

nce w it h [5 U.S.C. §] 706, ” the jud ic ia l re vi ew pro vi si on of10

“Cong ress,” the court conclude d, “c o u ld hardly have made its view on the matter

clea rer .” Id.

The analy sis portion of Grif f ith dealing with nonconstitutional claims was in two parts. Part “A,” from which the block quotation above is ta ken, dealt with the question whether in § 71 2 3 (a ), Congr ess prec luded judicial revie w of FL RA arbitra tion decisions, not only in the courts of appea ls, but also i n t he district courts. Griffit h conclude d that Congr ess had 7 clea rly barr ed judicial re view in both. Id. at 492.

I n the second non-constitutional portion of Gr i f fith

conce rning Leedom v. Kyne

— P ar t “B ”—the court stated that

even if “Cong ress is understood g ener all y to have prec luded revie w,” Kyne could, in some circ umstances, permit the district
court to exercise judicial revie w of an FL RA arbi t ration order

. Id. at 493. The beg inning of the Griffit h opinion also seeme d to sug g est that even though Congr ess had fore closed judicial revi ew i n any fede ral court, the rationale of Leedom v. Kyne could potentially

confe r jurisdiction on the district court. 8

the Admi nist

ra ti ve Pro ce dure Act. Yet as the dist ri ct co urt held, an d

as the unio n co nce ded, the APA did not apply in this ca se

.

Gri ff it h w as on appea l fr om the jud gm ent of the dist ri ct co urt 7 “holding th at 5 U .S.C. § 7123 (a ) bar re d jud ic ia l re vi ew of nonco nsti tuti ona l c la im s.” 842 F.2d at 489 –90.

The co urt put it this w ay : “We fi rs t addre ss the av ai la bili ty of 8 jud ic ia l re vi ew fo r nonc ons ti tuti ona l cl ai m s. We fi nd unusual ly cl ea r

co ngr es si ona l int ent g ene ra ll y to fo re cl os e r ev ie w . Altho ugh w e fi nd that the st at

ute le av es the doo r ajar fo r re vie w of cl ea r vi ol at io ns of
st at uto ry autho ri ty under Lee dom v. Kyn e , 3 5 8 U.S. 184 (1958), w e

co nclude that

none o f the er

ro rs as se rt ed h er e qu al if

ie s.” 842 F.2d at 490.11

By that, Griffit h could not have meant that K yne cre ates jurisdiction wher e Congr ess has expressly eliminated it. The problem arises beca

use “the subject-matter jurisd i ct ion of the lower federa l courts is deter mined by Congress .” Argentine R ep u b l ic v. Amerada Hess Shipping Co.
, 488 U.S. 428, 433 (1989) (italics added)

. Congr ess ’s constitutional authority to “c onstitut e Tribunals inferior to the supreme Court,” U.S. C O N S T

. art I
., § 8, cl. 9, “includes [t he] lesser power to limit the j u ri s d i cti on of those courts.” Patchak v. Zinke

, 583 U.S.

___ , 138 S. Ct. 897, 906 (2018) (plurality opinion); see also Mark v. Republic of Sudan

, 77 F.4th 892, 896 (D.C. Cir. 2023) (quoting Patchak

, 138 S. Ct. at 906)). “I t is a fundame ntal prec ept that fede ral courts are courts of limit ed jurisdiction. The limit s upon fede ral jurisdiction, whethe r imposed by the Constit ution or by Congr ess, must be neither disrega rd ed nor evade d.” Owen Equip. & Erection Co. v. Kroger
, 437 U.S. 365, 374 (1 9 7 8 ). T hus, at least in non-constitutional case s like this one, t h e fede ral judi ciar

y cannot crea te its own jurisdiction, even i f t hat jurisdiction is “ex traordina rily narr ow,” Hartz Mountain Corp.

v. Dotson
, 727 F.2d 1308, 1312 (D.C. Cir. 1984), or “extremely l imited [i n] scope.” Griffit h

, 842 F.2d at 493. So i n n o n

constitutional case s, if a fede ral statute clea rly bars district court jurisdiction—as § 7123(a) does over arb i t ration-r elated decisions—t hat ends the matter. See Bd. of Gove rnors of the 9 Fed. Rsrv. Sy

s. v. MCorp. Fin., Inc. , 502 U.S. 32, 44 (1991).

As Jud ge Eas te rbro ok has expla ined, ther e ca n be n o “ d ou b t[] 9 ab out the pow er of Cong re ss to re st ri ct the jurisdi ct io n of distri ct

co urts —f or until 1875 the infe ri or

co urts la ck ed a

ny fe der al

- quest io n jurisdi ct io n, and until 1980 the fe der al

- quest io n jurisdict ion w as quali fi ed by an am ount- in- co ntro ve rs y re quire m ent. No one think s the Jud ic ia ry Act of 1789 a co lo ss al vi ol at ion of Art ic le I I I on this

ac co unt.” Cze rk

ie s v. Dep’ t of Lab.

, 73 F.3d 1435
, 1434 –44 (7th Cir

. 1996 ) (Ea st er

bro ok , J., co ncurr ing ).12

Griffit h

, in interpr eti ng § 7123(a)

, did not confr ont these constitutional difficulties. The Supre me Court has “repea tedly held that the exis tence of unaddre ssed jurisdictional defe cts has
no prec edential e ffe ct.” Lewis v. Casey , 518 U.S. 343, 352 n.2 (1996). We see no nee d to say more on the subject, except to emphasize that Griffit h interpre ted § 7123(a) as a bar to district court jurisdiction.

Our court has consist ently held t hat § 7123(a) bars dist rict
court revie w of FLRA arbitra tion decisions. I n American Fede ration of Gove rnment Employe es v. Loy
, anothe r panel of

ou r court held: “I f an FL RA order falls within one of § 7123(a) ’s two exceptions to revie w in the court of appea ls, this does not mean the district courts are open. I t means that revie w is prec luded in any court.” 367 F.3d 932, 935 (D.C. Cir. 2004). That co nsidered and succinc t statement reg arding nonconstitutional claims admits of no qualifications.

Other opinions of our court interpre ted § 7 1 2 3 (a) as the
court did in Loy

. For example, U.S. De p a r t ment of Justice v. FLRA held that “it is not the business of the courts to s ec o n dgu ess arbitra l judgme nts that fall within the compass o f § 7 123(a) (1).” 981 F.2d 1339, 1344 (D.C. C ir. 1993). I n U. S

. Departme nt of Treasury v. FLRA
, the court held “that the district

cour ts lack jurisdiction to revie w arbitra tion awa rds arising under the FSL MRS.” 43 F.3d 682, 687 (D.C

. C ir. 1994). I n Association of Civilian T ec hnicians, Inc. v. FLRA
, our court stated: “Pointing out that FL RA section 7 123 mentions only ‘cour ts of appea ls,’ the [pl aintiff] insists that the provision does
not bar district co u r t

s from revie wing appropr iate unit deter minations.

. . . [W ]e disag ree .” 283 F.3d at 3 4 1

. I n American Fede ration of Gove rnment Employe es v. Secre tary of the Air Force
, the court held ag ain that under § 7 1 2 3 (a )( 1 ) the d i strict courts are not available

. 716 F.3d 633, 637 (D.C. Cir. 2013). I n y et another case , U.S. De p a r t ment of Homeland13

Securi t y v. FLRA
, the court wrote: “I n Griffit h

, we held that

. . . there was ‘unusua lly

clea r cong ressional intent g ener ally to fore close revie w’ of ‘nonconstituti o nal claims.’” 784 F.3d 1 0 821, 823 (D.C. Cir. 2015) (quoting Griffit h , 842 F.2d a t 490).

As aga i nst this solid, unbroken line of circ uit prec edent dealing with § 7123(a)

, the union invokes a case dealing with an

en t irely differ ent statute, Nyunt v. Chairman, Broadcasti n g Board of G overnors , 589 F.3d 445 (D.C. Cir. 2009) . There we stated that “[t] he Leedom v. Kyne exception appli es

. . . only wher e (i) the statutory prec lusion of re v iew is implied rathe r than express.” Id

. at 449. T h e u n ion’s claim, with which the district c ourt ag ree d, is tha t Leedom v. Kyne establishes district
court jurisdiction to revie w FL RA arbitra tion decisions beca use § 7123 does not “e x pressly ” pre clude it.

There are sever al rea sons why the statement in Ny u n t cannot supplant or even detra ct from the interpre tation of § 7123(a) in our circ uit prec edents just discussed. Assume, for the moment, that Nyunt is inconsistent with our court’s decisions under § 7123(a)

. Even so this would not support the u n i o n’s position. Nyun t , as stated above, involved a differ ent and unrela ted statute. When “a prec ede n t o f [our court] has direc t application in a case , y et appea rs to rest on reasons reje cted in

some other l i n e o f decisions, [a later panel] should follow the

case which direc tly controls, leaving to [ t he court en banc] the
prer og ative of overr

uling” the ear lier decision. R odriguez de

The Gri ff it h co urt held that a con st itutio nal cha ll eng e, as 1 0 d is tinguis hed fr om a non- co nsti tuti ona l cha ll eng e, to an FLRA

ar bitr at io n dec is io n co uld be bro ught in the dist ri ct co urt. 842 F.2d at 495. The Suprem e Cour t dre w a si m il ar dist inct io n b et ween

co nsti tuti ona l and non- co nsti tuti ona l cl ai ms in W ebs te r v. Doe
, 486 U.S. 592, 603 (1 988), ov er Justic e Sca li a’s diss ent. The union’s cl ai m s he re ar e no n- co nsti tuti ona l.14

Quijas v. Shearson/Am. Exp., Inc.
, 4 9 0 U.S. 477, 484 (1989);

see, e.g. , United States v. Torres
, 115 F.3d 1033, 1036 (D.C. Cir. 1997). Her e the di rectly controlling case s from our circ uit are those dea ling with § 7123(a ), not Nyunt

.

We re co gn ize that even without a reve rsal en banc, panel

o p i n i o n s of our court might be overc ome by a Supreme Court d ecision or decisions. E.g.
, Dellums v. U.S. Nuclear Regul

. Comm’n , 863 F.2d 968, 978 n.11 (D.C. Cir. 1988). And so we have considere d whether the Supreme Court has ever embra ced Nyunt ’s implied-express formula to decide whether a statute prec luded judicial revie w. We have found that wh et her “the statutory prec lusion of rev iew” is “express” or “implied” has

never been the test.

T h e S upreme Court’s opinion in Block v. Communit y Nutrit ion Institute
, 467 U.S. 340 (1984), makes thi s as clear as

can be. The C o u rt h el d : “Whether and to what extent a particula r statute prec ludes j udicial revie w is deter mined not only from its express lang uag e, but also from the structure of the statutory scheme

, its objectives, its leg islative history

, and the
nature of the administrative ac tion involved.” 467 U.S. a t 345. The Supreme C ourt reiter ated this standard in Thunder Basin Coal Co. v. Reich

, 510 U.S. 200, 207 (1994): “Whether a statute is intended to prec lude initial judicial revie w is deter mined from the statute’s lang uag e, structure , and purpose, [and] its leg islative history

. . ..” An d i n 2012—three y ear s after Nyunt

wa s decide d—J ustice Scalia wrote for a unanimous Court t h at “in deter mining ‘[w] hether and to what extent a particula r statute prec ludes judic i al revie w,’ we do not look ‘only [t o] its
exp re s s l ang uag e.” Sacke tt v. EPA
, 566 U.S. 120, 128 (2012) (alter ations in orig inal) (quoting Block

, 468 U.S. at 345). Sacke tt direc tly contra dicted the implied -ex press dictum in Nyunt

. The holdings in many other Supreme Court case s dealing with prec lusion of judicial revie w are to the same eff ect.15

See, e.g. , S. Ry. Co. v. Seaboard Allied Milling Corp.
, 442 U.S. 444, 456–60 (1979); Lindahl v. Of f

. of Pers. Mgmt.
, 470 U.S. 768, 779 (1985); Bowen v. Mich. Acad. of Fam. Physicians

, 476 U.S. 667, 673 & n.4 (1986); United States v. Fausto
, 484 U.S. 439, 444 (1988). 1 1

Our decisions wer e there fore on solid g round in construing § 7123(a) (1) with the “tra ditional tools of statutory construction,” including leg islative history

, and in concluding

1 2 that Congr ess had not only fore closed direc t revie w in the courts of appe als but also in the district courts.

We have not attempted to place our court’s construction of § 7123(a) into Nyun t ’s “express” cate g ory , althoug h there are strong arg uments for doing so. Griffit h itself ruled that § 7123 contained “spec ific lang uag e” barr ing judicial revie w in any fede ral court and that Congr ess “could hardly have made its view on the matter clea

rer .” 842 F.2d at 492. To the extent that Nyunt is incons istent with our ear lier § 7123(a) line of case s, settled circ uit law dictates that t h o se case s, not Nyunt
, control. E.g.
, De Csepel v. R ep u b lic of Hungary
, 859 F.3d 1094, 1105 (D.C. Cir. 2017 ); S i erra Club v. Jack son , 648 F.3d 848, 854 (D.C. Cir. 2011).

Nyunt al so st at ed in dict

um that appli ca

ti on of Lee dom v. Kyne 1 1
turne d on w hethe r the plai ntif f had an al te rna

ti ve av enue of re vi ew

. 589 F.3d at 449. This st at em ent to o se em s to con tr ad ict ci rc uit
pre ce dent. See Phys ic ians Nat’l Hou se S ta ff Ass ’n v. Fann ing
, 642 F.2d 492, 499 (D.C. Cir

. 1980 ) (e n banc) (“[I ]t is not the unav ai la bili ty of a re m edy w hich tr ig ge rs the [ Lee dom v. ] Kyne ex cep ti on, but the vi ol at io n of

a c le ar st at uto ry dem and.”) (c it at io n om it te d).

O verse as Educ. Ass ’n v. FLRA
, 824 F.2d 61, 66 (D.C. Cir

. 1 2 1987 ), quot ing Chev ron U.S.A. Inc

. v. NRDC
, 467 U.S. 83 7, 84 3 n.9 (1984), and co nstr

u in g § 7123 (a )( 1) in a ca se ra is ing a re la te d is sue abo ut jud ic ia l re vi ew

of FLRA unfa ir

la bor prac ti ce dec is io ns.16

We end this part of our opinion wher e p er h ap s we should have begun, with Abbott Laboratori es v. Gardner

, 387 U.S. 136 (1967). There the Supreme Court held that “the Administrative Procedur e Act

. . . embodies the basic p resumpti on of judicial revie w t o one ‘suffer ing le g al wrong beca use of ag ency action,

or adver sely aff

ecte d o r ag g rieve d by ag ency action within the meaning of a re levant statute.’” Id. at 140 (quoting 5 U.S.C. § 702). J udicial opinions often cite this presumption in case s dealin g wi th statutes alleg edly fore closing judicial revie w, and with Leedom v. Kyne

. See, e.g. , Griffit h

, 842 F.2d at 490; Dart v. United States , 848 F.2d 217, 221 ( D.C. Cir. 1988).

I n this case the premise of the A b bott Laboratori es presumption is absent. The APA does not apply when “(1)
statutes prec lude judicial revie w[] o r (2 ) ag ency action is committed to ag ency discretion by law.” 5 U.S.C. § 701(a) ; see Abbott Labs.

, 387 U.S. at 140. When introduced, t h e bill that beca me the APA require d for the first ex ce p t ion that “statutes
expre ssly prec l u d e judicial revie w.” S. 7, 79th Cong. § 10 (as introduced in Senate, J an. 6, 1945) ( italics added)

. The S enate Commi ttee on the J udiciary deleted the word “expr es sly .” A TT O R N E Y G E

N E R A L ’ S M A

N U A L O N TH E A D M I

N I S TR A TI V E P R O C E D U R E A C T 94 n.4 (1947). Under the APA as enac ted, a “statute may

in terms prec lude, or be interpre ted as intended to
prec lude, judicial revie w altog ether .” Id. at 94. As we have 1 3 discussed, § 7123(a )(1) has bee n so interpre ted by our cour t.

The Suprem e Cour

t has re li ed on th e A TT O R N EY G EN ER

A L ’ S 1 3 M A N U A L to inte rpre t the APA. See

, e.g. , Norton v. S. Utah W il der nes s All.

, 542 U.S. 55
, 6 3

– 6 4 (2004); Chry sl er Corp. v. Brown
, 441 U.S. 281, 302 n.31 (1979); Vt. Yankee Nucl ear Power Corp. v. NRDC
, 435 U.S. 519, 546 (1978). So to o has this co urt. See

, e.g. , Am. Min. Cong.

v. Mine Safet

y & Heal th Admin

., 995 F.2d 1106
, 1109
, 1111 (D.C. Cir

. 1993 ); Pac. Gas & Ele c. Co. v. Fed. Power Comm’n
, 506 F.2d 33, 38 n.17 (D.C. Cir . 197 4).17

Even if the presumption applied despite the inapplicability of the APA from which it is derive d, the result here would be no differ ent. The “pre sumption favor ing judicial revie w is not to be applied in the ‘strict evidentiar y sense,’ ” but may be “‘ove rcom[e] whene ver the cong ressional intent to prec lude revie w is ‘fa irly discernible i n t h e statutory scheme .’” Block

, 4 67 U.S. at 350–51 ( quoting Data Processing Serv. v. Camp
, 397 U.S. 150, 1 5 7 (1970))

. “He re, as in Block

, we think Congr ess’ intent i o n is fairly discernible, and that ‘the presumption favor ing judicial revie w

. . . [has been] overc ome by infere nces of intent draw n from the s tatutory scheme as a whole.’” Fausto
, 484 U.S. at 452 (quoting Block

, 467 U.S. at 349) (a lterations in orig inal).

III.

Nor did the FL RA defy

the FSL MRS i n the same w ay that the NL RB had defie d the statute in Leedom v. Kyne

. I n Kyne the National L abor Relations Boa rd admitte d t h at it had acte d “in

excess of its deleg ated power s and contra ry to a specific prohibition in the Ac t .” 358 U.S. at 188. The “spec ific prohibition” stat ed t h at the Boa rd “shall not” take a cer tain action. Id. The Boa

rd took the action any

way

. So for Leedom

v. Kyne to a

pply here

, the FL RA must ha ve violated “a specific and unambig uous statutory di rec tive” or eng ag ed in an action
t h at “‘on its fac e’ violated a statute.” Nat’l Air Traff ic Controll ers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel

, 437 F.3d 1256, 1264 ( D.C. Cir. 2006) (citation omitted); Dart
, 848 F.2d at 222. Kyne does not apply if the FL RA made a “[g]arde n-var iety

err or[] of law.” Griffit h , 842 F.2d a t 493.

Section 7122(b) of the FSL MRS states: “I f no exception to

an arbitra tor’s awa

rd is filed under subsection (a) of this section during the 30-day period beg inning o n t h e d ate the awa rd is18

served o n the party , the awa rd shall be final and binding.” 5 U.S.C. § 7122(b). I f exceptions are filed, the awa rd become s final and binding when appellate proce dures are exhausted. Dep’ t of Health & Hum. Servs. Soc. Sec. Admin.

, 41 F.L .R.A. 755, 766 (1991); see a l

s o Dep’ t of Health & Hum. Servs., Soc. Sec. A dmin. v. FLRA , 976 F.2d 1409, 1413 ( D.C. Cir. 1992).

The union’s arg ument is that the FL RA, in vacating for lack of jurisdiction the arbitra tor’s awa rd and summaries an d t he FL RA’s own prior decisions in the matter, violated § 7122(b). But at most, that is a “[g]arde n-var iety err o r[ ] o f law,” and we express no opinion about whether it even is that. Griffit h

, 842 F.2d at 493. To beg in with, § 7122(b) may only g overn t h e conduct of the parties to the arbitra tion. I f neither party files an

exc ep t i on within thirty day s, the employ ing “ag ency shall take the actions require d by an arbitra tor’s final awa rd.” 5 U.S.C. § 7122(b). After

thirty day s, if neither party files an exception, the awa rd become s final and binding—on the partie s

. Under this theory

, § 7122(b) is not, as in Kyne
, a “spec ific prohibition” direc ting the FL RA to ref rain from vaca

ting an arbitra tor’s finalized awa

rd bec ause of

a jurisdictional def

ect.

That the FL RA may re co nsider an arbitra tor’s jurisdiction when hear ing exceptions afte r deciding ear lier exceptions in the

same case seems fairly obvious. T h e u nion’s contra ry claim—that Congr ess prohibited the FL RA from having second thoughts about the arbit ra tor’s jurisdiction—crea tes some tension with FL RA prec edents and with t he judi cial principle 1 4

I n the cha llen ge d dec is io n, the FLRA re as one d that not onl y 1 4

ca n it sua sponte co nside r w hethe r an ar bitr at io n m at

te r inv ol ve s cl as si fi ca ti on, but it “is re qui re d to addre ss ” the ar bitr at or ’s jurisdi ct io n “reg ar dles s of wh ether the is sue is al so pre se nted to the

ar bitr at or .” HUD VII

I
, 70 F.L.R.A. at 607 & n.35 ; se e also Off

. & Pro. Emps. Int’ l Union, Local 2001 , 62 F.L.R.A. 67, 69 ( 2007 ); U.S.19

that jurisdictional questions may be raised at any time, including by the co u rt itself. See Capron v. Van Noorden

, 6 U.S. (2 Cranch) 126, 127 (1804); Steel Co. v. Citi zens for a Better Env’t
, 523 U.S. 83, 94–95 (1998). True, the FL RA is not a court. But Congr ess “intended that in the are a of arbitra l awa rds the [FL RA] would play in fe dera l labor rela tions the role assig ned
to district courts in private sector labor law.” Griffit h

, 842 F.2d
at 491. So, like a court, the FL RA could have the prer og ative to verify subject-matter jurisdiction at ever y stag e of a proce eding

.

I nstitut ional ref

orm case s dealing with p r is o ns, for example, provide another compar ison. A district court may enter multipl e decr ees or injunctions over time, revising an d amending its initial order. See, e.g. , Miller v. Frenc h , 530 U.S. 327, 331–32 (2000). Whil e a particula r injunction or decr ee is i n ef fec t, it binds the parties. But the district court re t ains the power to modify the ongoing equitable re l i ef

. See, e.g.
, Rufo v. Inmates of Suffolk Cnty. Jail

, 502 U.S. 367, 380–81 (1992); United States v. W . Elec. Co. , 46 F.3d 1198, 1203 (D.C. Cir. 1995) . I n short,

an order that is final and binding on the parties is often not final and binding on the cour

t. See R ufo , 502 U.S. at 380–81.

The same pri nciple arg uably applies here

. After the arbitra tor issued the opera tive reme dial awa rd, the parties beg an implementation proce eding s. During those proce eding s, the arbitra tor cre ated ten written summaries. See HUD VIII
, 70 1 5

D ep’t of the Army
, 61 F.L.R.A. 8, * 4–7 (2005); USDA, Food & Consumer Ser

v. , 60 F.L.R.A. 978, 981 (2005); U.S. EEOC, Me mphis Dis t. Off

. , 18 F.L.R.A. 88, 89 n.2 (1985).

Ear ly on, HUD fi le d exc epti ons cl ai m ing that the ar bitr at or 1 5 im per m is si bly m odi fi ed the re m edia l aw ar d thro ugh the sum m ar ie s,

w hich had

, amon g ot

her thing s, expande d the cl as s of em plo y ee s

co ve re d b y th e re m edy

. HUD VII I
, 70 F.L.R.A. at 606. The FLRA20

F.L .R.A. at 607. Throug h the summaries, the arbitra tor “slig htly chang ed the awa

rd at ever y implementation meeting .” Id. at 608. Given that an arbitra tor can adjust an awa rd throug hout its impleme n ta ti o n , a w ards are not cate g orica lly “fina l and binding”

on arbit ra t o rs. See Am. Fed. of Gov’ t Emps. Local 3615
, 54 F.L .R.A. 494, 496, 498 (1998). I t wo u ld be somewhat anomalous to suppose that § 7122(b) restric ts the FL RA but not arbitra tors.

Other than § 7122(b), the union also relies on § 7122(a)

, the provision dealing with FL RA revie w of exceptions to arbitra tion

awa rds. Section 7122(a) provides that “[ i] f upon revie w [of exceptions] the Autho ri ty finds that the awa rd is defic ient[,]

. . . the Authori t y may take such action and make such

rec ommendations conce rning the awa rd as it considers

nece ssary . . ..” 5 U.S.C

. § 7122(a)

. The union claims that the word “the” in “ the awa rd” (ital ics added) is an aff irmative command: the FL RA can only revie w the singula r awa rd befor e it. The district court, too, emphasized that “the awa rd” ref ers to a “sing le object.”

Perhaps. But it is debata

ble whether § 7122(a) ’s use of the
term “the awa

rd” is a s tatutory mandate that amounts to a specific prohibition. Section 7122(a) g ives the FL RA the power to revie w ex ceptions. I t does not, by its text , limit the FL RA’s revie w of jurisdictional de fec ts. Section 7122(a) thus la cks the clar ity require d to support the application of Leedom v. Kyne

.
“[T] he distinction betwe en violation of a clea r and of a not

so clea r statutory command is neither completely satisfy ing nor,

save wher e the violation is conce ded, as it was in Leedom v.

dism is se d the exc epti ons as untim el y w it h ou t co nside ri ng the m er it s of HUD’s ar gum ent. U.S. Dep’ t of Hous. & Urb. Dev

. , 6 8 F.L.R.A. 631, 634 –36 (2015).21

Kyne
, rea dily applied.” Local 1545
, 286 F.2d at 1 3 3 (italics added). To sum up, in holding that the arbitra tor lacke d jurisdiction over t h e parties’ dispute, the FL RA did not violate an obvious statutory

prohibition.

Stil l a nother problem with the union’s arg ument is tha t the FSL MRS say s nothing about the fi nality of awa rds when exceptions are filed. Be cause exceptions wer e filed to t h e

ar bitrator’s opera tive reme dial awa rd, the FL RA might well have violated no statutory provision when it vacated that awa rd. Once the FL RA vacated the reme dial awa rd, the arbitra to r’ s implementation summari es—whe ther vacated or not—at least
arg uably beca me unenf orce able.

* * *

Acc ording ly

, we vacate the district court’s orders d eny ing the FL RA’s motion to dismiss and g ranting summary judgme nt to the union and rema

nd t h e ca s e to the district court with instructions to dism iss the complaint.

So ordered.W ILKINS , Circuit Judge , concurring in the result:

In order to avail itself of Leedom jurisdiction, see Leedom v. Kyne , 358 U.S. 184 (1958), the American Federation of Government Employees, National Council of HUD Locals, Council 222 (the “Union”) needed to show that the Federal Labor Relations Authority (“FLRA”) decision below was plainly ultra vires . Because the Union cannot meet that high bar, the Leedom exception does not apply

, the District Court had no jurisdiction to entertain the present lawsuit

, and its judgment must be reversed . That should end the matter.

T he majority wanders further, opining that 5 U.S.C. § 7123(a) categorically bars district court review of FLRA arbitration decisions even if a party can show that the FLRA action was ultra vires

. The majority also declare s that our decision in Nyunt v. Chairman, Broadcasting B oard of Gov ernors , 589 F.3d 445 (D.C. Cir. 2009) (Kavanaugh, J.)

, is both irrelevant and incorrect, even though no party made those contentions. Those musings are not only unnecessary to the result

, but they are also inconsistent with precedent

. I therefore cannot join the majority opinion and must wri te separately.

I.

The Leedom exception is one of vanishingly few avenues that provide the “availability of nonstatutory review for statutory claims,” 33 C HARLES A LAN W RIGHT , C HARLES H. K OCH & R ICHARD M URPHY , F ED ERAL P RACTICE AND P ROC EDURE § 8362 (2d ed. 2018) . Jurisdiction for ultra vires review does not arise out of an agency’s statutory scheme but instead “evolved out of courts’ use of their equitable jurisdiction to enjoin illegal agency action.” Id. § 8307. Indeed, “[j]udicial review for ultra vires agency action ‘rests on the longstanding principle that if an agency action is unauthorized by the statute under which [the agency] assumes to act, the agency has violate[d] the law and the courts2
generally have jurisdiction to grant relief.’” Fed

. Express Corp. v. U.S. Dep’t of Com

. , 39 F.4th 756, 763 (D.C. Cir. 2022) (quoting Nat’l Ass’n of Postal Supervisors v. U

. S

. P ostal S erv. , 26 F.4th 960, 970 (D.C. Cir. 2022) (internal quotation marks omitted) ).

Accordingly, the Leedom exception, “premised on the original federal subject matter jurisdiction of the district courts,” Am. Fed’n of Gov’t Emps. Local 3690 v. FLRA , 3 F.4th 384, 390 (D.C. Cir. 2021) (emphasis in original) (quoting Am. Fed’n of Gov’t Emps., Local 2510 v. FLRA , 453 F.3d 500, 506 (D. C. Cir. 2006)), “permits, in certain limited circumstances, judicial review of agency action for alleged statutory violations even when a statute precludes review

, ” Nyunt
, 589 F.3d at 449.

This Circuit employs the test articulated in Nyunt to guide application of the Leedom exception. See generally Changji Esquel Textile Co. Ltd. v. Raimondo , 40 F.4th 716, 722 (D.C. Cir. 2022); Fed

. Ex press Corp. , 39 F.4th at 763; DCH Reg’l Med. Ctr. v. Azar , 925 F.3d 503, 509 (D.C. Cir. 2019); Am. Fed’n o f Gov’t Emps. v. Sec’y of the Air Force , 716 F.3d 633, 639 n.6 (D.C. Cir. 2013); see also N

. Am. Butterfly Ass’n v. Wolf , 977 F.3d 1244, 1263 (D.C. Cir. 2020). Relying on existing caselaw, then

- Judge Kavanaugh devised a three

- factor test that explains the Leedom exception applies “only where (i) the statutory preclusion of review is implied rather than express,” “(ii) there is no alternative procedure for review of the statutory claim,” and “(iii) the agency plainly acts ‘in excess of its delegated powers and contrary to a specific prohibition in the’ statute that is ‘clear and mandatory [

. ] ’” Nyunt , 589 F.3d at 449 (quoting Leedom , 358 U.S. at 188) ( first citing Bd. of Govs. of the Fed. Reserve Sys. v. MCorp Fin., Inc.

, 502 U.S. 32, 44 (1991) ; then citing McBryde v. Comm. t o Rev

. Cir

. Council Conduct & Disability Ords . of the Jud. Conf. of the U.S. , 264 F.3d 52, 63

– 64 (D.C. Cir. 2001); and then citing3
Nat’l Air Traffic Controllers Ass’n AFL

- CIO v. Fed. Serv. Impasses Panel , 437 F.3d 1256, 1263

– 64 (D.C. Cir. 2006)).

Thus, if the party seeking review cannot show that the agency action being challenged was taken plainly in excess of the agency’s powers and contrary to a statutory prohibition, it loses. That is the case here.

II.

In its complaint , the Union allege d that the FLRA “acted contrary to a clear and mandatory provision of [5 U.S.C. § 7122(b)]” when it “refus[ed] to uphold the final and binding arbitral decisions underlying and in HUD I through HUD VII and Summaries 1 [through] 9.” J.A. 39 1

. In the contested action, upon review of HUD’s exception to the tenth summary of the arbitrator, the FLRA vacated all of the arbitrator’s previous awards, set aside all of her summaries (except the tenth summary ), and vacated all of the agency’s own prior d ecisions in HUD I through HUD VII on the grounds “the [a] rbitrator has always lacked jurisdiction over the grievance, as a matter of law” and “should have declared this grievance to be non

- arbitrable from the outset.” U.S. Dep’t of Hous. & Urb. Dev. , 70 F .L.R.A. 605, 608 (2018) (“ HUD VIII ”).

The FLRA rejected the contention that vacating the arbitrator’s decisions violated 5 U.S.C. § 7122(b), which provides that arbitral decisions are “final and binding” once any exceptions are resolved . As it explaine d, while “the prior arbitration awards and written summaries, with the exclusion of the tenth written summary, were final and binding [
, ] ” the “[FLRA] may consider jurisdictional questions even where the merits of an underlying final and binding award are n ot at issue.” U.S. Dep’t of Hous. & Urb. Dev. , 71 F.L.R.A. 17, 184
(2019) (“ HUD IX ”). Unfortunately for the Union, the FLRA is
correct.

A.

The Union claims that the “final and binding” language in the statute compelled the FLRA to treat its prior jurisdictional finding as law of the case and consequently prevented the FLRA from revisiting that finding. There are several weaknesses to this argument. First, it is not even clear that the law of the case doctrine, which provides that “the same issue presented a second time in the same case in the same court should lead to the same result

, ” LaShawn A. v. Barry , 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (emphasis in original), even applies to administrative agencies like the FLRA. See Biltmore Fore st Broad. FM, Inc. v. F ed. C om mc’ns C omm’n
, 321 F.3d 155, 163 (D.C. Cir. 2003) (noting “that the law of the case doctrine is of uncertain force in the context of administrative litigation”); see also 18B C HARLES A LAN W RIGHT , A RTHUR R. M ILLER & E DWARD H. C O OPER , F EDERAL P RACTICE AND P ROCEDURE § 4478 (3d ed. 2019 ) (while “agencies . . . may find it desirable to invoke law

- of

- the

- case principles [,]

. . . [t] he increased flexibility that distinguishes administrative procedure from judicial procedure may, however, lead agencies to take a somewhat more relaxed view of the need for consistency [

. ] . . .”). And even if the law of the case doctrine applied to the FLRA, “[t]he doctrine is a discretionary prudential doctrine, not a jurisdictional bar [

. ]

. . .” G uedes v. Bureau of Alcohol, Tobacco, Firearm s, and Explosives , 45 F.4th 306, 312 (D.C. Cir. 2022)

. Thus, b ecause “[l]aw of the case directs a court ’ s discretion [and] does not limit the tribunal ’ s power [
, ] ” Arizona v. California , 460 U.S. 605, 618 (1983), the FLRA’s failure to employ the doctrine cannot support a claim that the FLRA acted ultra vires (in excess of its power) , even if the doctrine applied.5

B.

The Union’s argument that the “final and binding” language in Section 7122(b) precludes the FLRA from vacating these arbitral awards also falls flat. First, the most natural reading of the text is that “final and binding” refers to the parties to the award because it is the parties to the dispute who are bound by the decisions and remedial provi sions set forth by the arbitrator. At most, whether the “final and binding” language applies to the FLRA

— upon review of the arbitrator’s decision

— is ambiguous.

The FLRA has concluded that it has the obligation to review and set aside even “final and bi nding” awards if it determines that the underlying grievance was outside of the arbitrator’s statutory jurisdiction, HUD IX , 71 F.L.R.A. at 18, which is consistent with the approach it has taken for many
years , see U.S. Dep’t of Agric. Food & Consumer Serv

. , 60 F.L.R.A. 978 , 981 (2005) (noting FLRA precedent from 1999 holding that “the Authority’s subject matter jurisdiction may be raised at any stage of the Authority’s proceedings” has “been applied subsequently in several decisions”). Given the ambiguity of the statute, w e must defer to the FLRA’s interpretation of its statutory jurisdiction , if it is reasonable

. See Bureau of Alcohol, Tobacco, and Firearms v. FLRA , 464 U.S. 89, 97 (1983) (“ [R] eviewing courts should uphold reasonable and defensible constructions of an agency ’ s enabling Act”); s ee also City of Arlington, Tex. v. F ed. C

ommc’ns C omm’n , 569 U.S. 290, 303 (2013) (“ T he U.S. Reports are shot through with applications of Chevron to agencies ’ co nstructions of the scope of their own jurisdiction.”)

. And the FLRA ’s interpretation does appear to be reasonable, as it is consistent with the view of the Federal Circuit that “the arbitrator ’ s jurisdiction cannot extend to a case over which the statute does not grant him authority, and such6
jurisdictional issue may be raised at any time.” Devine v. Levin , 739 F.2d 1567, 1570 (Fed. Cir. 1984).

* * *

In sum, because the Union cannot show that the FLRA plainly acted “ ‘in excess of its delegated powers and contrary to a specific prohibition in the statute ’ that is ‘clear and mandatory,’” Nyunt , 589 F.3d at 449 (quoting Leedom , 358 U.S. at 188), it cannot avail itself of district court review under Leedom

. As we observed recently when applying this third prong of the Nyunt test, “[t]o be ruled ultra vires , the challenged action must ‘ contravene[] a clear and specific statutory mandate[,] ’

. . . and the st atutory construction adopted by an agency will be held ‘ impermissible ’ only if it is ‘ utterly unreasonable [

. ] ’ ” Fed

. Ex press Corp. , 39 F. 4th at 766 (citations and quotations omitted).

III.

Reaching th e conclusion that the Union cannot meet the third prong of the Nyunt test was all that was necessary for the majority to decide this case

. See Dobbs v. Jackson Women's Health Org. , 597 U.S. 215, 348 (2022) (Roberts, C.J., concurring in judgment) (“If it is not necessa ry to decide more to dispose of a case, then it is necessary not to decide more.”). I am tempted to ignore this surplusage , but I would be remiss if I did not call attention to a couple of major problems.

A.

First, the majority stretches the holding of Griffith v. FLRA
to proclaim a rule that conflicts with our precedent. 842 F.2d 487 (D.C. Cir. 1988).7

T he majority asserts that Griffith and subsequent authorities demonstrate that “in non

- constitutional cases , if a federal statute clearly bars district court jurisdiction

— as § 7123(a) does over arbitration

- related decisions

— that ends the matter.” Maj. Op. 1 1

. Th e majority’s assertion directly contradicts Griff i th ’s statement that “we find that the statute [§ 7123(a)] leaves the door ajar for clear violations of statutory authority under Leedom v. Kyne

. . . . ” Griffith , 842 F.2d at 490 (emphasis added). The majority acknowledges the contradiction, Maj. Op. 10 n. 8 , but nonetheless protests that we did not really mean what we said in Griffith

, id. at 11 . The majority’s strained protests are belied by what we said barely one year later, when we observed

— in a case about the scope of review of FLRA arbitration decisio ns

— that we really did mean what we said in Griffith :

[O ]ur earlier opinion in Griffith . . . h [eld] that the merits of arbitration awards appealed to the FLRA are not further reviewable in any federal court unless the arbitrators ’ decision (and the FLRA ’ s affirmance) is challenged as unconstitutional or falls within the narrow bounds of the Leedom v. Kyne [.]

. . exception to statutory provisions

.
Dep ’ t of Treasury, Off. of Chief Couns. v. FLR A , 873 F.2d 1467, 1472 (D.C. Cir. 1989) (Supplemental Opinion) (second emphasis added).

More of our precedent undermine s the majority’s reading of Griffith . If the majority were correct, Griffith established a rule that in cases challenging an FLRA arbit ration decision as contrary to a statute (rather than contrary to the constitution), Leedom jurisdiction is absolutely foreclosed because “that ends the matter.” Maj. Op. 1 1

. Accordingly, under the majority’s8
rule, we would not need to determine whether the challenged FLRA arbitration decision violated a plain statutory command in order to disclaim Leedom jurisdiction because only constitutional violations can confer Leedom jurisdiction in FLRA arbitration case s in the first place

. But we did just that in U

. S

. D epartment of Justice v. FLRA
, where notwithstanding our citation of Griffith , we examined whether the challenged FLRA arbitration order wa s a “facial violation or a patent misconstruction of the Statute” before we rul ed there was no Leed om jurisdiction. 981 F.2d 1339, 1344 (D.C. Cir. 1993). Likewise, i n U

. S

. Dep artmen t of Treasury , U.S. Customs Service v. FLRA
, a nother case involving an FLRA arbitration, we said

— notwithstanding our citation of Griffith

— that

“

Leedom stands for the proposition that if an agency openly violates a clear mandate of a statute even a preclusion of judicial review (in that case implied) will not bar judicial intervention.

. . . There is no such clear transgression of a substantive statutory mandate here. ” 43 F.3d 682, 688 (D.C. Cir. 1994) (emphas e s added)

. Again, there w ould have been

no need for us to examine whether a statute was “ clear [ ly ] transgress [ ed ] ” if non

- constitutional challenges to FLRA arbitration decision s were indeed unquali fiedly outside of Leedom review.

T he majority ’s categorical reading of Griffith cannot be squared with precedent where w e did not treat the fact that the plaintiffs raised statutory violations in FLRA arbitration cases

, rather than constitutional violations, as if it were the “end of the matter.” I grant that the majority cites language from our

cases that supports its view, see Maj. Op. 12

– 13, but where resolution of this case does not turn on which reading of Griffith is correct, I would think it wise for us to avoid trying to solve th at riddle today.9

B.

Second, the majority insists that our precedent in Nyunt is not controlling because it “deal [ s ] with an entirely different statute[,]” Maj. Op. 13, even though no one made or br iefed that argument . To the contrary, both sides asked us to apply the Nyunt test to resolve this case. Appellant Br. 57, 62; Appellee Br. 22, 38; Appellant Reply Br. 1

– 2 . Furthermore, it was unnecessary to decide whether Nyunt “controlled” this

case or not because the Union could not satisfy the Nyunt test anyway

. As explained abov e, the third prong of the Nyunt test requires a plaintiff to show that the “agency plainly act [ed] ‘in excess of its delegated powers and contrary to a specific prohibition in the’ statute that is ‘clear and mandatory [

. ] ’” Nyunt , 589 F.3d at 449 (quoting Leedom , 358 U.S. at 188). The majority found that the Union’s contention that the FLRA violated Section 7122(a) was at best “debatable,” Maj. Op. 20
, and that the FLRA “might well have violated no statu t ory provision” at all, id . 2 1

. Accordingly, b ecause the Union did not show that the FLRA had “plainly acted” in excess of its powers or in violation of any statute, the Union crashed at Nyunt’s third prong and there was no need to deem Nyunt irrelevant to th is dispute.

C.

Third, the majority piled onto Nyunt even further, by suggesting that certain language in the opinion is erroneous

, even though , a s noted above, none of the parties argued that Nyunt was wrong.

This tac k is especially curious . After all, if, as the majority contends, Nyunt does not supply the correct test for FLRA10

arbitration cases, all the majority had to do was to say so . That would make Nyunt immaterial to the present dispute

. Apparently, the majority wasn’t finished with Nyunt . My colleagues hazard on, asserting that they have reviewed “whether the Supreme Court has ever embraced Nyunt’s implied

- express formula to decide whether a statute precluded judicial review [
, ] ” and concluding that “[they] have found that whether ‘the statutory preclusion of review ’ is ‘express’ or ‘implied’ has never been the test. ” Maj. Op. 1 4

. Conscious that a subsequent panel of our court cannot overrule an earlier panel decision without the assent of a majority of the full court,

see LaShawn A. , 87 F.3d at 1395, the majority invokes authority holding that a panel can discard one of our precedents if that precedent has been subsequently “eviscerated” by the Supreme Court. See Dellums v. U.S. Nuclear Regul. Comm ’ n , 863 F.2d 968, 978 n.11 (D.C. Cir. 1988) (cited at Maj. Op. 14).

But Nyunt has never been “evisc erated” by the Supreme Court . N ot even close.

The majority cites Supreme Court cases to support the proposition that a court can find Congress expressly precluded judicial review not only by examining the statutory text by itself

, but also by examining t he text in conjunction with the statutory scheme, the statute’s purpose and any other tool of statutory construction. Maj. Op 15

– 1 6. I agree with this proposition, but I disagree that Supreme Court cases expounding this proposition somehow “eviscerate” Nyunt . To the contrary, Nyunt says nothing about what interpretive tools
a court can ( or cannot ) use to constru e a statute that is claimed to preclude judicial review , and the majority cites to no such language

.11
The majority appears to tak e exception to the fact that Nyunt says that “statutory preclusion of review” can be either “express” or “implied

. ” Nyunt
, 589 F.3d at 449 (cited at Maj. Op

. 13). But this language from Nyunt only means that when the statute is fairly construed as “expre ssly” evincing congressional intent to preclude judicial review, that is the end of the matter

— the courts have no jurisdiction. On the other hand, if a fair construction of the statute is ambiguous or merely “implies” that Congress may have intended to preclude judicial review, then we should review other considerations to ensure that the presumption of judicial review has been clearly

overcome. Far from being eviscerated, this understanding of the law is abs olutely consistent with Supreme Court precedent, both before and after Nyunt

.
Indeed, the Supreme Court has never considered the concept of “ implied ” preclusion of judicial review as anathema

. I n Bowen v. Michigan Acad emy of Fam ily Physicians , which is favorably cited by the majority

, see Maj. Op. 15, the Court first examined the statutory text and found no express preclusion of judicial review of the matter in dispute, and then went on to hold that the asserted claim was “not impliedly insulated from j udicial review” by the statute

. 476 U.S. 667, 678 (1986) (emphasis added)

. In Barlow v. Collins , the Court first concluded that none of the pertinent statutes “expressly preclude[d] judicial review,” 397 U.S. 159, 165 (1970), and then, citing Leedom , sta ted that “[t]he question then becomes whether nonreviewability can fairly be inferred ” before ruling that there was no preclusion

, i d . at 166 (emphasis added)

. In De Martinez v. Lamagno , the Court reviewed the statutory text, context, scheme and history t o conclude there was no express preclusion of judicial review “[b]ecause the statute [was] reasonably susceptible to divergent interpretation[.]” 515 U.S. 417, 434 (1995). Thus, the Court “adopt[ed] the reading that accords with traditional12
understanding s and basic principles: that executive determinations generally are subject to judicial review,” and found no preclusion to judicial review

. Id

. But implied preclusion is no one

- way ratchet. In Block v. Community Nutrition Institute , also favorably cited by my colleagues

, see Maj. Op. 17

, the Court held that “[t]he structure of this Act implies that Congress intended to preclude consumer challenges to the Secretary’s market orders [,] ” and thus denied review. 467 U.S. 340, 352 (1984) (empha sis added).

In each of these cases, the Court examined statutes where preclusion of judicial review was deemed to be ambiguous, “implied

, ” or “inferred

, ” rather than express. Sometimes the implication (or inference) of preclusion was strong enough to

o vercome the presumption favoring review . S ometimes it was
not.

Thus, in Nyunt , we were absolute ly correct to say that Leedom jurisdiction “applies . . . only where . . . the statutory preclusion of review is implied rather than express[.]” 589 F.3d at 449. If the preclusion of review is express, then the answer is that there is no jurisdiction; but if the preclusion of review is implied, then the answer to whether a court has jurisdiction is that “ it depends .” MCorp is not to the contrary. There, the Court noted that the pertinent statutory provision expressly precluded judicial review of the asserted claim, which distinguis hed that statute from the law at issue in Leedom , which only “implied, by its silence, a preclusion of review of the contested determination.” MCorp
, 502 U.S. at 44. If the distinction between an implied preclusion of review and an express preclusion of review were completely irrelevant, as the majority contends, the Court would have had no need to comment on the difference between the two statutes

.13
But perhaps the best defense of then

- Judge Kavanaugh’s opinion in Nyunt is an opinion from now

- Justice Kavanaugh

. Writing for the Court in American Hospital Association v. Becerra , Justice Kavanaugh considered the government’s argument that the district court had no jurisdiction to review the agency determination because “ Congress implicitly granted the ag ency judicially unreviewable discretion [.]” 596 U.S. 724, 733 (2022) ; see also id . at 733 (“ [T] he detailed statutory formula for the reimbursement rates undermines HHS ’ s suggestion that Congress implicitly granted the agency judicially unreviewable discre tion”) (emphasis added)

. The Court rejected the asserted “implicit” preclusion of review, holding that “[the government’s] arguments against judicial review cannot override the text of the statute and the traditional presumption in favor of judicial revie w of administrative action.” Id . at 734.

The moral to the story is that implied preclusion of review is different than express preclusion . U nlike with express preclusion, implied preclusion sometimes does not override the presumption in favor of judicia l review. That is the point of Nyunt and that principle has not been “ eviscerated. ” See Dellums , 863 F.2d at 978, n.1. To the contrary, that principle has been confirmed.

* * *

My colleagues in the majority went too far and said too much

. I agree with the result, but I cannot join their opinion. I respectfully concur.