ORAL ARGUMENT SCHEDULED FOR OCTOBER 17, 1997 No. 96-1277 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _______________________________ PATENT OFFICE PROFESSIONAL ASSOCIATION, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent _______________________________ ON PETITION FOR REVIEW OF A DETERMINATION BY THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY NOT TO ISSUE AN UNFAIR LABOR PRACTICE COMPLAINT BRIEF FOR THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY DAVID M. SMITH Solicitor WILLIAM R. TOBEY Attorney JAMES F. BLANDFORD Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 ORAL ARGUMENT SCHEDULED FOR OCTOBER 17, 1997 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES A. Parties and amici Appearing below in the administrative proceeding before the Federal Labor Relations Authority's General Counsel were the U.S. Patent and Trademark Office and the Patent Office Professional Association. The Patent Office Professional Association is the petitioner in this court proceeding; the Authority is the respondent. B. Rulings under review The ruling under review in this case is a determination of the Authority's General Counsel not to issue an unfair labor practice complaint in U.S. Patent & Trademark Office, Case No. WA-CA-50352 on June 13, 1996. C. Related Cases This case has not previously been before this Court or any other court. Counsel for the Authority is unaware of any cases pending before this Court which are related to this case within the meaning of Local Rule 28(a)(1)(C). TABLE OF CONTENTS STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 2 I. Nature of the case 2 II. Statement of The Facts 3 A. Background 3 1. Negotiations in the early 1980s and the first arbitration decision 4 2. The 1988 negotiations, the second arbitration award, and related proceedings 5 B. The current dispute 7 1. The facts 7 2. The General Counsel's determination not to issue an unfair labor practice complaint 7 STANDARD OF REVIEW 8 SUMMARY OF ARGUMENT 9 ARGUMENT 11 I. THIS COURT IS WITHOUT SUBJECT MATTER JURISDICTION UNDER SECTION 7123 OF THE STATUTE TO REVIEW THE GENERAL COUNSEL'S DETERMINATION NOT TO ISSUE A ULP COMPLAINT IN THE INSTANT CASE 11 A. This Court's decision in Turgeon, as well as similar decisions by other courts, show that Congress intended that determinations of the General Counsel not to issue ULP complaints are unreviewable 12 B. The language and legislative history of the Statute support application of the rule of nonreviewability of General Counsel decisions not to issue a complaint in this case 13 1. Language of the Statute 13 2. Legislative history 14 C. The similarity between the Statute and the NLRA, and the cases interpreting both statutes, further support the FLRA General Counsel's final, unreviewable discretion not to issue a ULP complaint in this case 15 D. Congress' intent to prohibit review of General Counsel ULP determinations is purposeful and unqualified 17 E. Nothing in this case warrants an exception to the rule in established in Turgeon 18 1. Congress intended to prohibit judicial review of General Counsel prosecutorial determinations, not merely create a rebuttable presumption against judicial review 19 2. POPA fails to establish that the General Counsel consciously and expressly adopted a general policy so extreme as to amount to an abdication of statutory responsibility 22 II. ASSUMING, FOR THE SAKE OF ARGUMENT, THAT THE COURT HAS JURISDICTION, THE GENERAL COUNSEL PROPERLY DETERMINED THAT THERE WAS INSUFFICIENT EVIDENCE OF A VIOLATION OF THE STATUTE TO WARRANT THE ISSUANCE OF A ULP COMPLAINT 26 A. The General Counsel reasonably concluded that PTO was not obligated to implement POPA's proposed Article 19 because no agreement had been reached 26 B. POPA's other contentions are without merit 28 1. Silence by PTO does not create a "constructive" agreement with respect to Article 19 28 2. This Court did not order the parties to implement a collective bargaining agreement 29 3. The prospect of additional bargaining does not justify reversing the General Counsel's determination 30 CONCLUSION 31 ADDENDUM Relevant portions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994) and other pertinent regulation A-1 TABLE OF AUTHORITIES American Fed'n of Gov't Employees, Local 1749 v. FLRA, 842 F.2d 102 (5th Cir. 1988) 12, 13, 16 Associated Builders and Contractors, Inc. v. Irving, 610 F.2d 1221 (4th Cir. 1979), cert. denied, 446 U.S. 965 (1980) 16 Baker v. IATSE, 691 F.2d 1291 (9th Cir. 1982) 16 *Beverly Health and Rehab. Service v. Feinstein, 103 F.3d 151 (D.C. Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3826 (U.S. June 2, 1997) passim Bishop v. NLRB, 502 F.2d 1024 (5th Cir. 1974) 25 Columbia Power Trades Council v. United States Department of Energy, 671 F.2d 325 (9th Cir. 1982) 14 Dunn v. Retail Clerks International Assn, 307 F.2d 285 (6th Cir. 1962) 16 Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988) 22, 25 *Heckler v. Chaney, 470 U.S. 821 (1985) passim International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Brock, 783 F.2d 237 (D.C. Cir. 1986) 6, 22, 23 Leedom v. Kyne, 358 U.S. 184 (1958) 22 Martinez v. Smith, 768 F.2d 479 (1st Cir. 1985) 12 Mayer v. Ordman, 391 F.2d 889 (6th Cir.), cert. denied, 393 U.S. 925 (1968) 16 Montana Air Chapter No. 29, Association of Civilian Technicians, Inc. v. FLRA, 632 F. Supp. 643 (D. Mont. 1986) 20 Montana Air Chapter No. 29, Association of Civilian Technicians, Inc. v. FLRA, 898 F.2d 753 (9th Cir. 1990) 19, 20, 22, 23 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) 16 *NLRB v. United Food & Commercial Workers Union, 484 U.S. 112 (1987) 13, 17, 21 *Patent Office Professional Association v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994) 6, 26, 29 Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078 (D.C. Cir. 1991) 8 *Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982) passim U.S. Department of Justice v. FLRA, 981 F.2d 1339 (D.C. Cir. 1993) 22 Vaca v. Sipes, 386 U.S. 171 (1967) 13, 15 Warren v. Local 1759, AFGE, 764 F.2d 1395 (11th Cir.), cert. denied, 474 U.S. 1006 (1985) 13 DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY Department of the Interior, Nat'l Park Serv., Colonial Nat'l Historical Park, Yorktown, Virginia, 20 FLRA 537 (1985), aff'd sub nom. National Ass'n of Gov't Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986) 27 Interpretation and Guidance, 15 FLRA 564 (1984), affd sub nom. American Federation of Government Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985) 6 National Treasury Employees Union, Chapter 251 and U.S. Department of the Treasury, IRS, Washington, D.C., 40 FLRA 985 (1991) 27, 28, 30 Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987), aff'd, 868 F.2d 458 (D.C. Cir. 1988) 4, 5 Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389 (1987), aff'd, 873 F.2d 1485 (D.C. Cir. 1989) 5 Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795 (1991) 26 *Patent Office Professional Association and United States Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10 (1993), aff'd in part and rev'd in part, 26 F.3d 1148 (D.C. Cir. 1994) passim U.S. Dep't of the Navy, Portsmouth Naval Shipyard, Portsmouth, NH, 44 FLRA 205 (1992) 28 FEDERAL STATUTES Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994) 1 5 U.S.C. § 7104(f)(2)(A) 2 5 U.S.C. § 7104(f)(2)(B) 2 5 U.S.C. § 7105(a)(2)(E) 6 5 U.S.C. § 7105(a)(2)(G) 13 5 U.S.C. § 7114(b)(5) 28 5 U.S.C. § 7114(c) 6, 26, 27 5 U.S.C. § 7114(c)(2) 5 5 U.S.C. § 7116(a)(1) 2, 7 5 U.S.C. § 7116(a)(2) 2, 7 5 U.S.C. § 7116(a)(5) 2, 7 5 U.S.C. § 7116(a)(6) 2, 7 5 U.S.C. § 7116(a)(8) 2, 7 5 U.S.C. § 7117 6 5 U.S.C. § 7118(a)(6)-(8) 13 5 U.S.C. § 7119 4 5 U.S.C. § 7122 22 * 5 U.S.C. § 7123 passim * 5 U.S.C. § 7123(a) 14 Administrative Procedure Act, 5 U.S.C. §§ 551-59 11, 17 5 U.S.C. §§ 701-706 11, 17 5 U.S.C. § 701(a)(1) 17, 21 5 U.S.C. § 701(a)(2) 21 5 U.S.C. § 704 17 29 U.S.C. § 151 15 29 U.S.C. § 153(d) 15 29 U.S.C. § 160(e) 15 29 U.S.C. § 160(f) 15 CODE OF FEDERAL REGULATIONS 5 C.F.R. § 2423.10(c) 8 5 C.F.R. Part 2424 6 LEGISLATIVE HISTORY H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 41 (1978) 14 S. Rep. No. 969, 95th Cong., 2d Sess. 102, reprinted in 1978 U.S.C.C.A.N. 2723 14 *Cases or authorities chiefly relied upon are marked by asterisks. GLOSSARY AFGE American Fed'n of Gov't Employees, Local 1749 Local 1749 v. FLRA, 842 F.2d 102 (5th Cir. 1988) APA Administrative Procedure Act Beverly Health Beverly Health and Rehab. Serv. V. Feinstein, 103 F.3d 151 (D.C. Cir. 1996) Chaney Heckler v. Chaney, 470 U.S. 821 (1985) FLRA Federal Labor Relations Authority Food & NLRB v. United Food & Commercial Workers Union, Com'l Wkrs 484 U.S. 112 (1987) Montana Air Montana Air Chapter No. 29, Association of Civilian Technicians v. FLRA, 898 F.2d 753 (9th Cir. 1990 NLRA National Labor Relations Act NLRB National Labor Relations Board POPA Patent Office Professional Association and United States Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10 (1993) POPA v. FLRA Patent Office Professional Ass'n v. FLRA, 26 F3d 1148 (D.C. Cir. 1994) PTO Patent and Trademark Office Statute Federal Service Labor-Management Relations Statute, 5 U.S.C. §§7101-7135 (1996) Turgeon Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982) ULP unfair labor practice ORAL ARGUMENT SCHEDULED FOR OCTOBER 17, 1997 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 96-1277 _______________________________ PATENT OFFICE PROFESSIONAL ASSOCIATION, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent _______________________________ ON PETITION FOR REVIEW OF A DETERMINATION BY THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY NOT TO ISSUE AN UNFAIR LABOR PRACTICE COMPLAINT BRIEF FOR THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY STATEMENT OF JURISDICTION The administrative action that is the subject of the petition is a determination by the General Counsel of the Federal Labor Relations Authority ("FLRA") not to issue an unfair labor practice ("ULP") complaint under the provisions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994) ("Statute").[1] The General Counsel issued his determination in U.S. Patent and Trademark Office, No. WA- CA-50352 on June 13, 1996. This Court lacks subject matter jurisdiction under section 7123 of Statute to review the General Counsel's determination. See, e.g., Turgeon v. FLRA, 677 F.2d 937, 940 (D.C. Cir. 1982) ("Turgeon"). STATEMENT OF THE ISSUES 1. Whether this Court has subject matter jurisdiction under section 7123 of the Statute to review the General Counsel's determination not to issue a ULP complaint in the instant case. 2. Assuming, for the sake of argument, that the Court has jurisdiction, whether the General Counsel properly determined that there was insufficient evidence of a violation of the Statute to warrant the issuance of a ULP complaint. STATEMENT OF THE CASE I. Nature of the Case This case arises from the determination of the FLRA's General Counsel, pursuant to his authority under section 7104(f)(2)(A) and (B) of the Statute, not to issue a ULP complaint based on a charge filed by the Patent Office Professional Association ("POPA"). POPA charged that the United States Patent and Trademark Office (PTO) had violated section 7116(a)(1), (2), (5), (6), and (8) of the Statute by failing to execute and implement portions of a collective bargaining agreement imposed by an interest arbitrator. After investigation of POPA's charge, the FLRA's Washington Regional Director concluded that issuance of a complaint was not warranted. The FLRA's General Counsel subsequently denied POPA's appeal of the Regional Director's determination. POPA then filed the instant petition in this Court. The FLRA moved to dismiss the petition for review on the ground that the Court lacks subject matter jurisdiction under section 7123 of the Statute. POPA opposed the FLRA's motion and the FLRA replied. By order filed on March 31, 1997, the Court referred the motion to dismiss to the merits panel to which the petition for review was assigned. The Court's order also directed the parties "to include in their briefs the arguments raised in the motion to dismiss[.]" (Court's Order filed March 31, 1997). II. Statement of The Facts A. Background The case arises from events that date back to 1981, concerning negotiations between the POPA and PTO over PTO's performance appraisal plan. Aspects of these protracted negotiations have previously been the subject of proceedings before the FLRA, the Federal Service Impasses Panel ("Panel"), an interest arbitrator, and this Court. To assist the Court in understanding the context in which the instant case arises, a brief history of these events is provided.[2] 1. Negotiations in the early 1980s and the first arbitration decision After beginning negotiations on performance plans in 1981, POPA requested the assistance of the Panel, but the Panel took no action and ordered the parties to resume negotiations. (JA at 273).[3] The parties resumed negotiations on the performance appraisal system during 1984 and 1985, as part of their negotiations over a basic collective bargaining agreement (CBA). (JA at 257). They continued to be unable to reach agreement and again sought the assistance of the Panel. (JA at 273). Pursuant to the Panel's order, the parties submitted their bargaining impasse to an interest arbitrator. (id.). The arbitrator issued an award on the CBA in June 1986, but declined to include performance appraisal issues (now Article 19 of the CBA) in his award. (JA at 257-58). Instead, he ordered further negotiations on Article 19 and retained jurisdiction to resolve any resulting impasse.[4] (JA at 258). 2. The 1988 negotiations, the second arbitration award, and related proceedings In January 1988, POPA submitted to PTO a revised package of performance appraisal proposals. (JA at 253). This package included new proposals that the parties had not discussed and that had not been before the arbitrator in the previous impasse proceedings. (id.). Once again the parties were unable to reach agreement, and proceedings before the arbitrator resumed. (JA at 273). As a threshold issue before the arbitrator, PTO objected, on jurisdictional grounds, to his consideration of those proposals presented for the first time in January 1988. (JA at 273). The arbitrator overruled PTO's objections and held hearings on the continued impasse. (id.).[5] Subsequently, in November 1989 the arbitrator issued his award encompassing the provisions to be adopted as Article 19, some of which related to POPA's new 1988 proposals. (id.). Pursuant to section 7114(c)(2) of the Statute, PTO disapproved the imposed Article 19, and POPA appealed the disapproval to the FLRA's members (Authority) under Part 2424 of the FLRA's rules (5 C.F.R. Part 2424 (1997)). (id.).[6] The Authority, acting pursuant to 5 U.S.C. § 7105(a)(2)(E), declined to consider PTO's jurisdictional arguments and proceeded to rule on the disputed provisions' negotiability. POPA, 47 FLRA at 17-18. With respect to negotiability, the Authority found some provisions within PTO's obligation to bargain, but upheld PTO's disapproval with respect to others. POPA, 47 FLRA at 19-94. Both POPA and PTO petitioned this Court for review of the Authority's decision. As relevant here, the Court found that the arbitrator did not have jurisdiction over the January 1988 proposals, and held that PTO was not contractually bound by those proposals. Patent Office Professional Ass'n v. FLRA, 26 F.3d 1148, 1153-54 (D.C. Cir. 1994) (POPA v. FLRA).[7] With respect to other proposals before it, some of which the Authority had found negotiable and some it had not, the Court found that they were all outside PTO's obligation to bargain. 26 F.3d at 1154-57. B. The current dispute 1. The facts In July 1994, following the Court's decision, the parties met once more in an attempt to resolve the outstanding issues. (JA at 273). After failing to reach an agreement, POPA requested that PTO adopt as Article 19 those provisions ordered by the arbitrator in 1989, but deleting those provisions found nonnegotiable by the Authority and the Court and those the Court found beyond the arbitrator's jurisdiction. (id.). When PTO did not formally respond to POPA's request, POPA resorted for the first time to the Statute's ULP procedures, filing a charge with the FLRA's Washington, D.C. Regional Office alleging that PTO violated section 7116(a)(1), (2), (5), (6), and (8) of the Statute by failing to "sign and implement an agreement on performance appraisal based upon a request where all sections of the proposed agreement have been awarded as a result of impasse proceedings and court appeals with nothing remaining for further impasse." (JA at 10). 2. The General Counsel's determination not to issue an unfair labor practice complaint After investigating POPA's charge, the FLRA's Regional Office concluded that the issuance of a complaint was not warranted. (JA at 252). The Regional Director first found that PTO's duty to implement Article 19 was "contingent on the existence of a [CBA]." (JA at 254). Finding that the parties did not have an effective CBA into which to incorporate POPA's suggested Article 19, the Regional Director concluded that PTO had no obligation to implement Article 19. (JA at 255-56). Accordingly, he refused to issue a ULP complaint. (JA at 256). Pursuant to 5 C.F.R. § 2423.10(c), POPA appealed the Regional Director's determination to the FLRA's General Counsel. (JA at 257). The General Counsel, through his Deputy General Counsel, denied the appeal. (JA at 273). The General Counsel found that there was "no meaningful basis . . . for concluding that the parties [had] reached an agreement on Article 19" such as would obligate PTO to implement its provisions. (JA at 275).[8] STANDARD OF REVIEW The principal question in this case is whether the Court has subject matter jurisdiction, a matter to be decided by the Court in the first instance. In the event the Court reaches the merits of the General Counsel's determination not to issue a ULP complaint, petitioner POPA concedes that such a determination is left to the General Counsel's discretion. Accordingly, if any review is permitted, it should be for abuse of that discretion. See Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir. 1991) (NLRB enjoys "broad discretion" with respect to remedies and reviewing court will disturb choice of remedy "only when it amounts to an abuse of discretion"); see also Heckler v. Chaney, 470 U.S. 821, 840-41 (1985) (Chaney) (Marshall, J., concurring) (agency enforcement decisions warrant deference when agency has not abused enforcement discretion). SUMMARY OF ARGUMENT 1. In Turgeon, this Court held unequivocally that determinations of the FLRA's General Counsel concerning the issuance of ULP complaints are not subject to judicial review. That decision, as well as decisions of other courts reaching the same result, accurately reflect Congress' clear intentions on this regard. Section 7123 of the Statute provides for judicial review of "final order[s] of the Authority." However, under the Statute the Authority may issue orders in ULP cases only upon issuance of a complaint by the General Counsel. Accordingly, the General Counsel's determination regarding whether to issue a complaint is a not a "final order" of the Authority, subject to judicial review under section 7123. There are no other provisions for judicial review in the Statute. Further, the Legislative History of the Statute reflects Congress' intention to insulate General Counsel complaint determinations from judicial review. All courts that have addressed the judicial review question, including this one, have recognized the analogy between the functions and authority of the FLRA's General Counsel, with those of the National Labor Relations Board's General Counsel, and have applied case law developed under the National Labor Relations Act. As this Court recently concluded, Congress intended to "prevent courts from interfering with the [NLRB's] General Counsel's exercise of his statutory powers." Beverly Health and Rehab. Serv. v. Feinstein, 103 F.3d 151, 154 (D.C. Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3826 (U.S. June 2, 1997) (Beverly Health). Congress' intent was the same with respect to the FLRA's General Counsel. 2. Contrary to POPA's contentions, nothing in this case warrants an exception to the well-established rule prohibiting judicial review. First, the exceptions to the non-reviewability of agency "enforcement decisions" alleged by POPA to be applicable to General Counsel ULP complaint determinations have been developed under statutory schemes which lack the purposeful preclusion of judicial review present here. Accordingly, these exceptions should not be applied to General Counsel complaint determinations. Second, even if General Counsel complaint determinations are only "presumptively unreviewable" and therefore subject to exceptions, POPA has not demonstrated that any established exception is applicable in this case. POPA contends (Br. at 22-23) that the General Counsel's determination in this case is reviewable because he has "'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." Yet POPA fails to identify either the "general policy" announced in the General Counsel's determination or how he has "abdicated" a specific statutory responsibility. 3. Finally, even assuming judicial review is available in this case, POPA has not shown that the General Counsel abused his discretion in declining to issue a ULP complaint based on POPA's charge. POPA alleged that PTO violated the Statute by failing to implement certain collective bargaining provisions as proposed by POPA. The General Counsel, however, determined that absent evidence of PTO's agreement to implement POPA's proposal, PTO had no obligation to do so. The General Counsel's determination was consistent with applicable precedent and he reasonably found no evidence of an agreement between the parties. Further, POPA has not shown that the General Counsel's determination is otherwise inconsistent with the Statute. ARGUMENT I. THIS COURT IS WITHOUT SUBJECT MATTER JURISDICTION UNDER SECTION 7123 OF THE STATUTE TO REVIEW THE GENERAL COUNSEL'S DETERMINATION NOT TO ISSUE A ULP COMPLAINT IN THE INSTANT CASE This Circuit, along with virtually all others, has concluded that it lacks subject matter jurisdiction to review General Counsel ULP complaint determinations. These decisions conform with both the will of Congress and long-standing interpretations concerning the General Counsel's analogous authority under the National Labor Relations Act (NLRA). Unlike review of agency discretionary determinations under certain sections of the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-59, 701-706, Congress has clearly expressed its intent to preclude judicial review of General Counsel complaint determinations. Nothing about the General Counsel's determinations in this case warrant an exception to this well-established rule. A. This Court's decision in Turgeon, as well as similar decisions by other courts, show that Congress intended that determinations of the General Counsel not to issue ULP complaints are unreviewable This Court has previously ruled unequivocally that it is without subject matter jurisdiction to review a decision by the FLRA's General Counsel not to issue a ULP complaint. Turgeon, 677 F.2d at 940; accord Martinez v. Smith, 768 F.2d 479, 480 (1st Cir. 1985); American Fed'n of Gov't Employees, Local 1749 v. FLRA, 842 F.2d 102, 105 (5th Cir. 1988) (per curiam) ("AFGE Local 1749"). In Turgeon an employee had charged that his employing agency, the Environmental Protection Agency, had committed ULP violations. As here, the FLRA's General Counsel declined to issue a complaint based on the evidence presented. This Court held in Turgeon that Congress intended that there be no review of the General Counsel's refusal to issue an unfair labor practice complaint either by the Authority or in the courts. The Court stated: We . . . conclude that Congress clearly intended the General Counsel of the Federal Labor Relations Authority to have unreviewable discretion to decline to issue unfair labor practice complaints. Since there is thus no "final order of the Authority" subject to judicial review under section 7123 of the [Statute], the petition for review herein is dismissed for lack of jurisdiction. 677 F.2d at 940. In reaching this result, this Court specifically recognized the analogy Congress intended in the Statute between the FLRA and its General Counsel, on the one hand, and the National Labor Relations Board ("NLRB") and its General Counsel on the other. 677 F.2d at 939; see also Warren v. Local 1759, AFGE, 764 F.2d 1395, 1397 (11th Cir.), cert. denied, 474 U.S. 1006 (1985); AFGE Local 1749, 842 F.2d at 104-05. It is well established that determinations of the General Counsel of the NLRB not to issue ULP complaints are not subject to judicial review. NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 122 (1987) (Food & Com'l Wkrs); Vaca v. Sipes, 386 U.S. 171, 182 (1967); Turgeon, 677 F.2d at 940; Beverly Health, 103 F.3d at 154. B. The language and legislative history of the Statute support application of the rule of nonreviewability of General Counsel decisions not to issue a complaint in this case Congress intended the investigation of unfair labor practice charges, and the issuance and prosecution of unfair labor practice complaints, to be within the unreviewable discretion of the FLRA's General Counsel. This is confirmed by the language of the Statute, as well as its legislative history. 1. Language of the Statute Nothing in the language of the Statute permits any review of the General Counsel's action concerning investigation or issuance of an unfair labor practice complaint. More specifically, the Statute affords the Authority no opportunity to review such a decision by the General Counsel. Rather, it is only upon the issuance of a complaint that the Authority is empowered to exercise its decision-making functions--that is, to conduct a hearing, decide the merits of a complaint, and issue any appropriate remedial order (5 U.S.C. §§ 7105(a)(2)(G) and 7118(a)(6)-(8)). Further, the Statute provides for court review only of a "final order of the Authority." 5 U.S.C. § 7123(a). There is no conceivable way that the Authority could issue such an order when the General Counsel has declined to issue an unfair labor practice complaint. Consequently, the General Counsel's action challenged here is not a final order of the Authority subject to court review within the meaning of the judicial review provisions of section 7123(a) of the Statute. 5 U.S.C. § 7123(a). See Turgeon, 677 F.2d at 940. Thus, the Statute makes no provision whatsoever for review of the General Counsel's decisions regarding investigation of ULP charges or the issuance of ULP complaints, either administratively or judicially. See Columbia Power Trades Council v. United States Dep't of Energy, 671 F.2d 325, 329 (9th Cir. 1982). 2. Legislative history The Statute's legislative history also amply supports dismissal of the petition for review. As this Court recognized in Turgeon, both the House and Senate independently resolved that decisions of the General Counsel not to issue unfair labor practice complaints would be unreviewable, and that intent was reflected in the Statute as enacted. See Turgeon, 677 F.2d at 939 (quoting H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 41, 52 (1978) and S. Rep. No. 969, 95th Cong., 2d Sess. 102, reprinted in 1978 U.S.C.C.A.N. 2723, 2824). C. The similarity between the Statute and the NLRA, and the cases interpreting both statutes, further support the FLRA General Counsel's final, unreviewable discretion not to issue a ULP complaint in this case The Statute's legislative history establishes, as this Court recognized in Turgeon, that the role and functions of the General Counsel and the FLRA, including the right of court review under the Statute, were closely patterned after the role and functions of the General Counsel and Members of the NLRB and the right of court review under the NLRA.[9] Turgeon, 677 F.2d at 940, and cases cited therein. Accordingly, case law developed under the NLRA with respect to judicial review of General Counsel determinations is wholly applicable to similar cases arising under the Statute. As noted earlier, such precedent establishes beyond doubt that the General Counsel of the NLRB may exercise his or her prosecutorial discretion in determining whether to issue a ULP complaint, without having that determination subjected to judicial review. As the Supreme Court has stated: Congress has delegated to the Office of General Counsel on "behalf of the Board" the unreviewable authority to determine whether a complaint shall be filed. 29 U.S.C. § 153(d); Vaca v. Sipes, 386 U.S. 171, 182 (1967). In those cases in which he decides that a complaint shall issue, the General Counsel becomes an advocate before the Board in support of the complaint. In those cases in which he decides not to issue a complaint, no proceeding before the Board occurs at all. The practical effect of this administrative scheme is that a party believing himself the victim of an unfair labor practice can obtain neither adjudication nor remedy under the labor statute without first persuading the Office of General Counsel that his claim is sufficiently meritorious to warrant Board consideration. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-39 (1975). As one court has observed, "[t]he numerous attempts to secure judicial review of the [NLRB] General Counsel's decision not to issue unfair labor practice complaints have ....all ended in failure." Baker v. IATSE, 691 F.2d 1291, 1296 (9th Cir. 1982). Indeed, the Sixth Circuit has referred to such an attempt as "frivolous and entirely without merit." Mayer v. Ordman, 391 F.2d 889, 890 (6th Cir.), cert. denied, 393 U.S. 925 (1968). Analogously, the FLRA's General Counsel possesses the same unreviewable discretion in this case. Pursuant to this analogy between the General Counsel of the FLRA and the NLRB contemplated by Congress, the authority of the FLRA General Counsel may therefore be likened to that of an "attorney general or other executive officer of the government," responsible only to the President and Congress. Associated Builders and Contractors, Inc. v. Irving, 610 F.2d 1221, 1224 (4th Cir. 1979), cert. denied, 446 U.S. 965 (1980); Dunn v. Retail Clerks Int'l Ass'n, 307 F.2d 285, 288 (6th Cir. 1962). In fact, the role of the FLRA's General Counsel as "prosecutor" has been recognized by this Court and others. Turgeon, 677 F.2d at 939; see also AFGE, Local 1749, 842 F.2d at 105. D. Congress' intent to prohibit review of General Counsel ULP determinations is purposeful and unqualified The discussion above demonstrates that in enacting both the Statute and the NLRA, Congress clearly intended to preclude judicial review of General Counsel determinations with respect to the issuance or nonissuance of ULP complaints. With specific reference to the NLRA, the Supreme Court has recognized the complete and unqualified nature of the preclusion of review. Food and Com'l Wkrs., 484 U.S. at 128-31. Responding to contentions that even if the NLRA precluded judicial review, review of General Counsel determinations was available under the more general provisions of the APA, 5 U.S.C. §§ 551-59, 701-706, the Court held that since "Congress purposely excluded [General Counsel] prosecutorial decisions from [judicial] review . . ., it would be illogical in the extreme to hold that Congress did so only to permit review under the APA." 484 U.S. at 131.[10] The Court noted that under section 701(a)(1) of the APA, the act's review provisions do not apply where "statutes preclude judicial review." 484 U.S. at 130. The Court specifically found that judicial review of General Counsel determinations are precluded by statute within the meaning of section 701(a)(1). Id. In a recent case applying Food and Com'l Wkrs, this Court has again recognized that under the NLRA, General Counsel determinations are "insulated from judicial review." Beverly Health, 103 F.3d at 154. Finding no suggestion that Congress "intended an exception to its preclusion of judicial review over the complaint process in [the circumstances in that case]," this Court concluded that "the NLRA's protection of prosecutorial decisions is a direct manifestation of Congress' intent to prevent courts from interfering with the General Counsel's exercise of his statutory powers." Id. at 154. Accordingly, it is clear from the statutory language, legislative history, the similarity between the Statute and the NLRA, and the cases interpreting both statutes, that Congress intended that the FLRA's General Counsel's complaint determinations would not be subject to judicial review. E. Nothing in this case warrants an exception to the rule in established in Turgeon POPA fails to acknowledge, much less attempt to distinguish, Turgeon, or any other precedent under the Statute or the NLRA that establishes that Congress intended to preclude review of General Counsel determinations not to issue ULP complaints. Instead, POPA relies on cases arising under other statutory schemes, e.g. Chaney, 470 U.S. 821, to argue that the General Counsel's determinations not to issue complaints are only "presumptively" unreviewable, and that established exceptions to that presumption are present in this case. Specifically, POPA argues that this Court has jurisdiction to review the General Counsel's determination because the General Counsel's determination constituted a "[conscious and express adoption of] a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." POPA brief at 22, quoting from Chaney, 470 U.S. at 833 n.4. POPA is mistaken. First, as demonstrated above, in enacting the Statute, Congress purposefully intended to prohibit judicial review of General Counsel prosecutorial determinations. POPA relies heavily on cases arising under other statutory schemes where such a purposeful intent to preclude review is absent. Second, even if exceptions to rules precluding judicial review established in other contexts are applicable to General Counsel determinations, the exception cited by POPA does not fit the facts of this case. 1. Congress intended to prohibit judicial review of General Counsel prosecutorial determinations, not merely create a rebuttable presumption against judicial review As demonstrated in sections A-D above, Congress purposefully and unequivocally precluded judicial review of General Counsel complaint determinations. Nonetheless, POPA, relying on the Ninth Circuit's decision in Montana Air Chapter No. 29, Association of Civilian Technicians v. FLRA, 898 F.2d 753, 756 (9th Cir. 1990) ("Montana Air"), contends that there is only a rebuttable presumption against judicial review. However, Montana Air was wrongly decided and should not be adopted by this Court. The Ninth Circuit mistakenly applied cases from administrative schemes which lack the purposeful exclusion from judicial review found in the Statute. This Court should hold, consistent with applicable precedent, that General Counsel determinations are statutorily precluded from judicial review. Montana Air, like the instant case, concerned a decision of the FLRA's General Counsel not to issue a ULP complaint.[11] Rather than look primarily to relevant precedent developed under the Statute or the NLRA, the Ninth Circuit relied instead on the Supreme Court's decision in Chaney. The court found that the General Counsel's determinations fell under the APA's second exception to judicial review, namely, actions committed to agency discretion. Therefore, relying upon Chaney, the court found they were "presumptively unreviewable." 898 F.2d at 756. Applying Chaney, the Ninth Circuit found the presumption against judicial review subject to specific exceptions. These exceptions included that asserted by POPA as applicable in this case, namely, where an agency has "'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." Id. (quoting from Chaney, 470 U.S. at 833 n.4).[12] However, the Ninth Circuit misconstrued the nature of Congress' intent with respect to General Counsel ULP determinations. As the Supreme Court held and this Court has recognized, General Counsel determinations with respect to ULP complaints are exempt from judicial review, not simply because such actions are committed to agency discretion under section 701(a)(2) of the APA, but because the applicable statute precludes judicial review, hence falling under section 701(a)(1). Food and Com'l Wkrs., 484 U.S. at 130; Beverly Health, 103 F.3d at 154 . The Chaney decision is inapplicable to General Counsel complaint determinations because it applies only to matters falling under section 701(a)(2) of the APA. The Chaney Court carefully distinguished matters precluded by statute from judicial review under section 701(a)(1) from those "presumptively unreviewable" under section 701(a)(2). Section 701(a)(1) applies "when Congress has expressed an intent to preclude judicial review." Chaney, 470 U.S. at 830. In contrast, section 701(a)(2) applies where "Congress has not affirmatively precluded review . . . ." Id. The Ninth Circuit's application of the framework developed in Chaney and its progeny to determinations of the General Counsel not to issue ULP complaints should not be adopted. Instead, the Court should reassert its holding announced in Turgeon that Congress intended that such determinations are unequivocally exempt from judicial review.[13] Accordingly, the instant petition for review should be dismissed for lack of jurisdiction. 2. POPA fails to establish that the General Counsel consciously and expressly adopted a general policy so extreme as to amount to an abdication of statutory responsibility Even if the exceptions to the rule against reviewability suggested in Montana Air were applicable to General Counsel ULP determinations, POPA has failed to show that they apply in this case. Although POPA asserts in a conclusory manner that the General Counsel has "'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities," it provides no support for its claim.[14] In the first place, POPA can cite no case where this purported exception has been applied. Although both Chaney and Montana Air suggest the availability of this exception, in neither case is the exception applied or even discussed. Chaney, 470 U.S. at 832-33 and n.4; Montana Air, 898 F.2d at 756. Similarly in Brock (cited by POPA, Br. at 22), this Court noted only that "plaintiffs' allegations [were] insufficient," and summarily rejected the contention that the agency "ha[d] 'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." 783 F.2d at 245. Even lacking any guidance that judicial construction and application of the exception might provide, it is evident that it cannot apply in this case. At a minimum, to satisfy the Montana Act and Chaney exception, POPA must show that the General Counsel's determination constituted an express conscious adoption of "a general policy, and that adoption of that policy "amount[s] to an abdication its statutory responsibilities." Montana Air, 898 F.2d at 756 (emphasis added). POPA has neither identified the general policy announced in the General Counsel's determination nor shown how his statutory responsibilities have been abdicated. First, the General Counsel's decision was not the result of his express, conscious adoption of any general policy to achieve the result POPA disputes. What POPA identifies as "the most concise statement" of the "general policy" adopted by the General Counsel in this case (Br. at 24) is not a statement of policy at all. In the passage quoted by POPA, the Deputy General Counsel, speaking for the General Counsel, stated that "the evidence [was] insufficient to support a finding that the agency and the Union had reached an agreement . . . ." Ignoring the Deputy General Counsel's express statement that this was an evidentiary finding, POPA asserts (Br. at 24), without any explanation whatsoever, that "this statement is not an evaluation of the weight of evidence, but rather, a conclusion of law." It is clear, however, that the General Counsel's determination is not a statement of policy, but is simply the application of law to the particular facts of this case. Second, POPA fails to identify any statutory responsibility that the General Counsel "abdicated." Even if the General Counsel could be deemed to have adopted a "general policy" by insisting, consistent with Authority and other precedent, upon sufficient evidence of mutual agreement before concluding that a contract had been formed, there are no grounds for finding such an adoption "so extreme" as to constitute an abdication of a statutory responsibility. POPA's dispute with the General Counsel appears to focus on the evidentiary sufficiency of the record to support a ULP complaint and prosecution. That is, POPA claims that the General Counsel erred as a matter of law in determining that there was insufficient evidence to issue a ULP complaint. But legal error, even if it was present in this case, is not abdication of a statutory responsibility "so extreme" as to constitute an exception to nonreviewability. If it were, every alleged error of law would become a basis for review, thus defeating congressional intent that there be no judicial review of General Counsel determinations not to issue ULP complaints. See Griffith v. FLRA, 842 F.2d 487, 494 (D.C. Cir. 1988).[15] In sum, POPA's arguments consist of nothing more than its disagreement with the merits of the General Counsel's determination not to issue a ULP complaint.[16] Such disagreement, regardless of whether or not it is supportable, is insufficient to establish jurisdiction in this case. See Griffith, 842 F.2d at 493 ("[g]arden-variety" errors of law or fact do not make an otherwise nonreviewable agency determination reviewable); see also Bishop v. NLRB, 502 F.2d 1024, 1032 (5th Cir. 1974) (same). II. ASSUMING, FOR THE SAKE OF ARGUMENT, THAT THE COURT HAS JURISDICTION, THE GENERAL COUNSEL PROPERLY DETERMINED THAT THERE WAS INSUFFICIENT EVIDENCE OF A VIOLATION OF THE STATUTE TO WARRANT THE ISSUANCE OF A ULP COMPLAINT A. The General Counsel reasonably concluded that PTO was not obligated to implement POPA's proposed Article 19 because no agreement had been reached In determining not to issue a complaint, the General Counsel applied established principles of law to the facts of the case as disclosed by his investigation. POPA's ULP charge alleged that PTO violated various provisions of the Statute when it refused to sign and implement a proposed agreement on performance appraisals (Article 19). The General Counsel properly determined, in light of Authority precedent, that there was insufficient evidence to establish that PTO was obligated to implement the performance appraisal plan as proposed by POPA. Pursuant to the impasse resolution provisions of the Statute, an interest arbitrator had imposed an article on performance appraisals as part of a basic collective bargaining agreement. The imposed article was submitted to the agency head for review under section 7114(c) of the Statute. See Patent Office Professional Ass'n and U.S. Dep't of Commerce, Patent and Trademark Office, 41 FLRA 795, 798 (1991) (where Panel orders interest arbitration, arbitrator's award is subject to agency head review). Finding some of the imposed provisions to be inconsistent with law or applicable regulation, the agency head disapproved the agreement. After protracted litigation with POPA, the agency head's disapproval was upheld to a significant degree. See POPA v. FLRA, 26 F.3d at 1154-57; see also POPA, 47 FLRA at 10-13. As established in Authority case law, collective bargaining agreements, not specific provisions of those agreements, are approved or disapproved by agency heads under section 7114(c). See National Treasury Employees Union, Chapter 251 and U.S. Dep't of the Treasury, IRS, Washington, D.C., 40 FLRA 985, 990 (1991) (NTEU Chapter 251) (citing Department of the Interior, Nat'l Park Serv., Colonial Nat'l Historical Park, Yorktown, Virginia, 20 FLRA 537, 541 (1985), aff'd sub nom. National Ass'n of Gov't Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986)). Consequently, when provisions of a collective bargaining agreement are timely disapproved by the agency head under section 7114(c), the collective bargaining agreement does not go into effect and is not enforceable under provisions of section 7114(c). Id. As the Deputy General Counsel noted, the only exception is when agreed-upon ground rules dictate otherwise, which they did not in this case. Accordingly, agency head disapproval of a collective bargaining agreement requires renegotiation by the parties to create an effective and enforceable agreement. Id. at 991. As POPA recognizes (Br. 24), this is sound policy because disapproval of one section of an agreement may affect other sections.[17] Parties may agree to implement specific provisions of the agreement not disapproved by the agency, but are not obligated to do so. Id. at 990. In the instant case, during negotiations following agency head review disapproval and the attendant litigation, POPA proposed that the parties adopt as Article 19 those provisions imposed by the arbitrator which were unaffected by agency head review and not ruled beyond the arbitrator's authority to impose. PTO did not specifically respond to POPA's proposal. The General Counsel stated that "investigation [showed] that [PTO] would not agree [to the proposal]." (JA at 274). Citing NTEU, Chapter 251, the General Counsel reasonably concluded that there had been no agreement with respect to Article 19 and accordingly, the agency was under no obligation to implement the union's proposal. B. POPA's other contentions are without merit 1. Silence by PTO does not create a "constructive" agreement with respect to Article 19 POPA first erroneously argues (Br. at 16) that there was "constructive" agreement on Article 19 because POPA had withdrawn all proposals awarded by the arbitrator but stricken by the Authority or this Court, and PTO had not presented any additional proposals for consideration. POPA essentially is asking the General Counsel to presume agreement from PTO's silence. However, POPA cites no authority to support its contention. Cf. U.S. Dep't of the Navy, Portsmouth Naval Shipyard, Portsmouth, NH, 44 FLRA 205, 206 (1992) (Authority did not find implied agreement, noting that the purpose of section 7114(b)(5)'s requirement that a written document executing the terms of an agreement be signed is to "ensure that, in fact, there is a 'meeting of the minds' on the terms of the agreement" (internal citations omitted)). 2. This Court did not order the parties to implement a collective bargaining agreement POPA also incorrectly argues (Br. at 28) that the General Counsel's determination fails to give effect to this Court's decision in POPA v. FLRA. The Court's decision in POPA v. FLRA was a review of an Authority negotiability determination, the result of which was to affirm the Authority's decision in part and to reverse it in part. 26 F.3d at 1157. The Court did not order PTO to implement any specific collective bargaining provisions. POPA relies on statements by the Court allegedly to the effect that provisions ordered by the arbitrator not affected by its decision or that of the Authority "remain part of the parties' agreement." POPA's reliance is misplaced. First, the Court made no determinations concerning proposed contractual provisions not before it. It thus made no holding concerning the ultimate contents of the parties' collective bargaining agreement. Second, the Court's statement (26 F.3d at 1154) that provisions "we sustain as negotiable will remain part of the parties' agreements" is by its terms limited to those provisions actually before the Court. The Court subsequently sustained no provisions as negotiable. Accordingly, there are no provisions of which it could be said that the Court directed their inclusion in the parties' agreement. 3. The prospect of additional bargaining does not justify reversing the General Counsel's determination Finally, POPA contends (Br. at 25-28), without merit, that the General Counsel's decision frustrates the impasse resolution processes of the Statute. POPA argues that, as a result of the General Counsel's determination, POPA's only option is to return to the bargaining table and, therefore, the parties will be "back to the initial phase of negotiations in which all the proposals will be at issue." Noting the parties' failure to reach an agreement after fifteen years of negotiations, POPA speculates that another protracted round of negotiations and litigation will ensue. It is true, of course, that under the Authority's case law discussed previously (pp. 27-28), parties ordinarily must return to the bargaining table after an agency head's disapproval of a contract is upheld, even in part. See NTEU Chapter 251, 40 FLRA at 990. POPA concedes (Br. at 14) that such a result is appropriate under the Statute. It is therefore apparent that, insofar as POPA objects to such renegotiations, POPA's quarrel is with the Authority's case law rather than with the General Counsel's determination not to issue a ULP complaint, made in part in observance of that case law. Moreover, even assuming that this protracted and contentious process will continue, POPA has failed to point to any case law indicating that this potential would serve as a basis for reversing the General Counsel's determination not to issue a complaint. In sum, if the Court determines that it has jurisdiction to review the merits of the General Counsel's determination, it should conclude that the General Counsel did not abuse his discretion in refusing to issue a complaint in this case. Rather, his determination was reasonable and should be upheld. CONCLUSION For the foregoing reasons, the petition for review should be dismissed for lack of subject matter jurisdiction. In the event that the court reaches the merits of the case, the petition for review should be denied. Respectfully submitted. ______________________________ DAVID M. SMITH SOLICITOR ______________________________ WILLIAM R. TOBEY DEPUTY SOLICITOR ______________________________ JAMES F. BLANDFORD ATTORNEY Federal Labor Relations Authority 607 14th Street, N.W., Suite 330 Washington, D.C. 20424 (202) 482-6620 September 1997 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _______________________________ PATENT OFFICE PROFESSIONAL ASSOCIATION, Petitioner v. No. 96-1277 FEDERAL LABOR RELATIONS AUTHORITY, Respondent _______________________________ CERTIFICATE OF SERVICE I certify that copies of the Final Brief For The General Counsel Of The Federal Labor Relations Authority have been served this day, by mail, upon the following: Lynne K. Zusman, Esq. Counsel for Appellant Union 1090 Vermont Avenue, N.W., Suite 920 Washington, D.C. 20036 Thelma Brown Paralegal Specialist September 17, 1997 I certify that the Final Brief of the Federal Labor Relations Authority does not exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d). James F. Blandford Attorney September 17, 1997 [1] Relevant statutory and regulatory provisions are set forth in Addendum A. [2] For a more detailed exposition of this background see generally Patent Office Professional Association and United States Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 13-15 (1993)("POPA"), aff'd in part and rev'd in part, 26 F.3d 1148 (D.C. Cir. 1994). [3] The Panel, an entity within the FLRA, is charged with assisting federal sector parties in resolving negotiation impasses. The Panel has broad authority under the Statute and may take whatever action it deems appropriate to resolve impasses, including the imposition of contract terms. See generally 5 U.S.C. § 7119. References to "JA" are to the Joint Appendix, filed with the Court on September 17, 1997. [4] In declining to decide performance appraisal issues in his June 1986 award, the arbitrator noted that there were related negotiability appeals pending before the FLRA. POPA, 47 FLRA at 14. The FLRA issued its decisions in these cases in 1987. Patent Office Professional Ass'n and Patent and Trademark Office, Dep't of Commerce, 25 FLRA 384 (1987), aff'd 868 F.2d 458 (D.C. Cir. 1988) (Table) and Patent Office Professional Ass'n and Patent and Trademark Office, Dep't of Commerce, 29 FLRA 1389 (1987), aff'd 873 F.2d 1485 (D.C. Cir. 1989). [5] PTO refused to participate after the first day because of its objections to the arbitrator's jurisdiction over the January 1988 proposals. POPA, 47 FLRA at 15. [6] Under section 7114(c) of the Statute, the agency head may review a collective bargaining agreement to assure that its provisions are consistent with applicable law, rule, or regulation. A union may appeal an agency head's disapproval as a negotiability appeal under section 7117. Interpretation and Guidance, 15 FLRA 564, 567 (1984), aff'd sub nom. American Fed'n of Gov't Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985) [7] Although finding that PTO was not contractually bound by any of the 1988 proposals, the Court affirmed the Authority's determinations that the proposals were negotiable under the Statute. 26 F.3d at 1154. [8] POPA requested that the General Counsel reconsider his decision. (JA at 276). By letter dated September 6, 1996, the General Counsel denied POPA's request. (JA at 302). [9] See 29 U.S.C. §§ 151, 153(d), and 160(e) and (f) (1994). [10] The APA provides for judicial review of final agency actions "for which there is no other adequate remedy in a court." 5 U.S.C. § 704. [11] In Montana Air, plaintiff union had initially sought review of the General Counsel's determination not to issue a complaint in the United States District Court for the District of Montana. The District Court dismissed the union's action for lack of subject matter jurisdiction, citing Turgeon among other cases. Montana Air Chapter No. 29, Association of Civilian Technicians, Inc. v. FLRA, 632 F.Supp. 643, 645 (D. Mont. 1986), [12] In Montana Act the court applied a different exception, finding that the General Counsel erred in concluding that he lacked jurisdiction to issue an unfair labor practice complaint. 898 F.2d at 763. [13] This is not to say that there could never be a case where a General Counsel determination would be subject to limited review. Authority decisions on exceptions to arbitration awards under section 7122 of the Statute are expressly excluded from the judicial review provisions of section 7123. Nonetheless, this Court has suggested that under Leedom v. Kyne, 358 U.S. 184 (1958), district court review of such decisions may be available in the limited circumstances where the FLRA has acted "in excess of its delegated powers and contrary to a specific prohibition in the [Statute]." U.S. Dep't of Justice v. FLRA, 981 F.2d 1339, 1342 (D.C. Cir. 1993). Review may also be available where constitutional issues are present. See Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988) (Circuit Court may review constitutional claims arising from Authority decisions on exceptions to arbitration awards). POPA has not suggested that either of these circumstances is present here. [14] On page 30 of its brief, POPA references a different exception to the presumption against reviewability, namely that review is available where the "legal challenge focuses on an announcement of a substantive statutory interpretation." (Br. at 30, citing International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Brock, 783 F.2d 237, 245 (D.C. Cir. 1986) (Brock)). POPA does not appear to rely on this exception as an independent basis for jurisdiction. Nonetheless, it would be inapplicable because no statutory interpretation was announced in the General Counsel's decision. As discussed below, the General Counsel relied on established Authority case law. [15] POPA claims (Br. at 23) that the FLRA has abandoned its "independent" role in resolving federal sector labor disputes because it functioned in this case "as a 'pass through' for management's position." But as with other POPA arguments, this is nothing more than POPA's disagreement with the General Counsel's determination. Adoption of one party's position in a case before him does not equate to the General Counsel's abandonment of his independent statutory role in issuing and prosecuting ULP complaints under the Statute. [16] POPA's substantive objections to the General Counsel's determination are discussed in Section II, below. [17] For example, the disapproved section may modify or limit another section, leaving the remaining section with an effect unintended by the parties. Further, the disapproved section may have been agreed to only as a quid pro quo for another section, thus creating a contractual benefit for one party without an agreed-upon offsetting burden.