National Treasury Employees Union, Petitioner, v. Federal Labor Relations Authority, Respondent, 712 F.2d 669 (D.C. Cir. 1983)

This case centrally involves the finality requirement for purposes of appellate review. Final action for appellate review purposes does not necessarily coincide with executed or enforced action. Rather, the finality requirement is met when the initial decision-maker's action becomes firm and stable, the definitive "last word" of that arbiter on the matter at hand. A final order, whether administrative or judicial, may be stayed pending appeal. The stay prevents immediate execution of the final order, but it does not affect the order's amenability to immediate appeal.¹  In the matter before us, an order's finality for purposes of appellate review has been confused with the order's amenability to immediate execution or enforcement.

The National Treasury Employees Union (NTEU or Union) seeks our review of a decision of the Federal Labor Relations Authority (FLRA or Authority) declaring nonnegotiable a Union proposal made during NTEU's collective bargaining negotiations with the Department of Treasury, United States Customs Service (Customs or Agency). The Union proposed a clause that would stay execution of adverse personnel actions pending review through either of the two administrative channels to which employees have recourse: appeal through the collective bargaining agreement's grievance and arbitration procedure, or appeal to the Merit Systems Protection Board (MSPB).²  The FLRA acknowledged that a proposal limited to stays pending appeal through the grievance mechanism would be negotiable. However, the Authority held the entire stay proposal nonnegotiable because it encompassed stays pending appeal to the MSPB.

The Authority distinguished the two appeals channels, grievance and arbitration on the one hand, MSPB review on the other, on this reasoning: a stay would not impede resort to the grievance machinery, but it would block recourse to the MSPB. The MSPB, the Authority reasoned, entertains appeals only from final agency actions; an agency action becomes final, the FLRA read the MSPB's regulations and decisions to say, on its "effective date." An action lacks an effective date, according to the FLRA, when it is stayed. Therefore, the FLRA concluded, stay of an adverse action pending MSPB review would have this anomalous result: instead of merely deferring execution of the adverse action, the stay would strip the MSPB of appellate jurisdiction, and thus permanently bar or forever suspend the adverse action.

We conclude that the FLRA, distracted by imprecise language in some MSPB opinions, failed to differentiate between two distinct meanings or uses of the term "final" action or decision. An agency's order becomes "final" or "effective" for appellate review purposes when the agency arrives at a terminal, complete resolution of the case before it. An order lacks finality in this sense while it remains tentative, provisional, or contingent, subject to recall, revision, or reconsideration by the issuing agency. The word "final" is sometimes employed, however, to describe a dispositive order that has become "final by appeal or expiration of time for appeal."³  Stays of enforcement until an order becomes final in this latter sense are commonplace; indeed, in some settings, they are automatic.⁴  Such stays, of course, do not impede appeals from the stayed dispositive order; their sole purpose is to preserve the status quo while an appeal is in the offing or in progress.

NTEU proposes that Customs bargain over stays of the Agency's final adverse actions pending MSPB review. Such dispositive actions, even if Customs consents to stay their enforcement pending appeal, remain "final" or "effective" in the only sense here relevant--they are firm actions, conclusively taken, subject to recall or revision only if reversed or modified in prescribed review procedures. The FLRA, we note, may not direct Customs to agree to the Union's stay proposal or to make any concession to NTEU's request;⁵  but the Authority erred in holding that the proposal was nonnegotiable because it would block MSPB review and therefore result in permanent deferral of the Agency's adverse action. The stays at issue, which Customs remains free to reject so long as it bargains about them in good faith, would not affect the MSPB's appellate jurisdiction; they would simply delay execution of Customs' final, dispositive orders pending the outcome of administrative review.⁶ 

During its nationwide, master collective bargaining agreement negotiations with Customs, NTEU proposed the following clause:⁷ 

The employer shall stay the effect of any decision to take [disciplinary action, adverse action, or action based upon unacceptable performance] against any employee pending the outcome of any administrative appeal through the grievance and arbitration procedure, or any appeal to the MSPB, as appropriate.

Customs ultimately declined to bargain over this stay proposal, whereupon the Union petitioned the FLRA to decide whether the clause was negotiable. J.A. 1-2.⁸ 

Before the FLRA, Customs argued that the proposal was incompatible with the section of the Federal Service Labor-Management Relations Act⁹  that excepts certain "management rights" from an agency's encompassing obligation to bargain. The "management rights" section, 5 U.S.C. § 7106, provides in relevant part:

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--

....

(2) in accordance with applicable laws--

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

....

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--

....

(2) procedures which management officials of the agency will observe in exercising any authority under this section;

....

The FLRA held the clause NTEU proposed non-negotiable on the ground that it would interfere impermissibly with the management rights specified in 5 U.S.C. § 7106(a) (2) (A). J.A. 17-18.

While "management rights" themselves are non-negotiable, bargaining is nonetheless authorized on "procedures which ... the agency will observe in exercising [its nonnegotiable prerogatives]." 5 U.S.C. § 7106(b) (2). Our review in cases involving the problematic distinction between nonnegotiable management rights under 5 U.S.C. § 7106(a), and negotiable procedures for exercising those management rights under 5 U.S.C. § 7106(b), is guided by this court's pathmarking decision in Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1443, 71 L. Ed. 2d 658 (1982). One portion of the Department of Defense opinion ( Dix-McGuire Exchange, 659 F.2d at 1152-58) involved a union proposal to stay the removal or suspension of an employee pending exhaustion of the grievance procedure included in the collective bargaining contract. The FLRA had held the proposal negotiable, and we affirmed.

The court pointed out in Dix-McGuire Exchange that the union's proposal did not address the substantive criteria governing removal or suspension. Instead, it addressed a timing question properly characterized as "procedural": the issue was when, not whether, the agency could execute its management right to remove or suspend an employee. The proposal, if adopted, would not "prevent agency management from 'acting at all.' " Id. at 1153. A stay pending resort to the grievance procedure might postpone enforcement of a management right, but that delay alone, the court concluded, "would not take a proposal outside the statutory obligation to negotiate." Id.¹⁰ 

The FLRA correctly acknowledged that the ruling in Dix-McGuire Exchange controlled NTEU's proposal for stays pending "the outcome of any administrative appeal through the grievance and arbitration procedure."¹¹  The clause NTEU sought to place on the bargaining table, to that extent, was negotiable. J.A. 18. Stays pending appeals to the MSPB, however, were an entirely different matter, the FLRA believed. Such stays, the FLRA thought, would mean Customs could not "act at all": " [T]he condition precedent to [a]gency action, the 'outcome' of an appeal to MSPB, never could occur because MSPB would not accept jurisdiction in the absence of final [a]gency action." J.A. 18. Therefore, the FLRA concluded, an agency is not required to bargain over stays when review of its disciplinary decisions occurs before the MSPB.

The MSPB has both original and appellate jurisdiction. 5 U.S.C. § 7701; 5 C.F.R. §§ 1201.1-.3. The appellate jurisdiction, at issue in this case, is broad and includes review of agency actions to remove, suspend, or demote (either by reductions in pay or grade) employees. See 5 U.S.C. § 7701; 5 C.F.R. § 1201.3. In determining that the MSPB would lack appellate jurisdiction over a case in which an agency had stayed an adverse personnel action, the FLRA attributed to the MSPB a super-finality rule. The Authority fastened, particularly, on the specification in MSPB's regulations that petitions for appeal are to be filed "after the effective date of the action being appealed." 5 C.F.R. § 1201.22(b). A stay pending appeal to the MSPB, the FLRA said, would leave "the effective date" of an agency's action in a state of suspension, and without an effective date, the action would not qualify for MSPB review.

The FLRA cited in support of its decision several MSPB rulings. Korowin v. Department of Justice, 4 MSPB 140 (1980); Cardin v. Department of the Navy, 4 MSPB 97 (1980), appeal dismissed, 7 MSPB 231 (1981); Alford v. Department of Health, Education, and Welfare, 1 MSPB 305 (1980). Based on the language employed in those rulings, the FLRA believed that the MSPB in fact parted ways from the general rule governing when an action becomes final for purposes of appellate review. For access to the MSPB, according to the FLRA, the challenged agency action must not only be final in the sense that it is firm and complete, it must also be executed.

We note first that the FLRA's decision turned on interpretation of MSPB regulations and case law, matters outside the Authority's expertise and not within its enabling statute. Therefore the respect a court ordinarily accords to an agency's decision when the agency construes its own charter is not due here. See United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724, at 729 n. 21 (D.C. Cir. 1983); Library of Congress v. FLRA, 699 F.2d 1280, 1286 n. 29 (D.C. Cir. 1983).

The FLRA correctly observed that NTEU's stay proposal would be a proper subject for collective bargaining if it simply deferred enforcement of a Customs "decision to take disciplinary action, adverse action, or action based upon unacceptable performance," but did not "prevent the agency from acting at all." J.A. 18. The Authority erred, however, in concluding that the proposed stay, under MSPB regulations and precedent, would render the Agency's decision nonfinal and thus nonappealable to the MSPB. Sensibly read, MSPB's regulations and precedent do not obliterate the distinction between final and executed agency action.

The reference in the MSPB regulations to "effective date" is most reasonably read to signify the date of the agency's final word on the contested personnel action. MSPB's regulations, as the FLRA noted, J.A. 18, reflect the policy that appellate review should abide final agency action. The finality principle serves to husband a review forum's resources by blocking appellate consideration of rulings that may be altered or "fade into insignificance" by the time the initial decisionmaker disassociates itself from the matter. See C. WRIGHT, THE LAW OF FEDERAL COURTS § 101 (4th ed. 1983); Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978). MSPB regulations governing the exercise of appellate jurisdiction, interpreted in light of their purpose, are properly construed in line with the final judgment rule applicable in the federal courts, a rule reflecting the same resource-conservation concern. The main rule, as codified, provides for appeals only from final decisions of the district courts, 28 U.S.C. § 1291; cf. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949) (collateral order exception to the final judgment rule). See also 28 U.S.C. § 1292 (authorizing appeals from specified categories of interlocutory decisions).

The Supreme Court has defined a final decision as "one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911 (1945). A stay of execution of a district court's final decision, as the Catlin definition indicates, does not bear on the appealability of the decision. In fact, Rule 62 of the Federal Rules of Civil Procedure, see supra note 4, indicates that in most cases stays of final decisions pending appeal are routinely available.

Similarly, final agency action occurs when the agency has made an unalterable decision and only implementation of that decision remains. See generally 5 B. MEZINES, J. STEIN & J. GRUFF, ADMINISTRATIVE LAW § 48.03 (1983). As the Supreme Court explained in addressing the considerations determining finality for judicial review of an agency action:

[T]he relevant considerations in determining finality are whether the process of administrative decision-making has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action.

Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S. Ct. 203, 209, 27 L. Ed. 2d 203 (1970) (citations omitted); cf. Carter-Mondale Presidential Committee, Inc. v. Federal Election Commission, 711 F.2d 279 at 283-286 (D.C. Cir. 1983). The NTEU stay proposal, if adopted, would not alter the substantive determination made by Customs; it would serve to delay, but not to preclude, implementation of the Agency's decision to take adverse action against an employee. See Department of Defense v. FLRA (Dix-McGuire Exchange), supra. MSPB review of a Customs decision that the Agency itself has stayed will not disrupt Customs' decisionmaking process as that process will have already been completed. Further, the Customs decision will have determined the legal rights of the affected employee. No change in the legal consequences ultimately flowing from Customs' decision will occur unless the decision is reversed or modified on appeal.

As to MSPB precedent, the FLRA relied on less than fully-considered language employed in several cases. In Cardin v. Department of the Navy, supra, an employee challenged a specific reduction-in-force (RIF) notice before the effective date of the notice.¹²  The agency extended the effective date and eventually cancelled the RIF notice, but Cardin argued that the agency had actually moved him from a permanent position to a temporary one. The MSPB initially declared that the appeal, filed prior to the effective date of the RIF notice, was premature, but remanded the case to the presiding official (hearing officer) for an airing of Cardin's allegation of actual injury. 4 MSPB at 98. On remand, the MSPB's field office found that "the agency had taken no action with respect to the [employee] which was appealable to the [MSPB]." 7 MSPB at 231. The employee again appealed and the MSPB, agreeing with the field office, found "no evidence" that the agency had in fact moved Cardin from a permanent to a temporary position. The RIF notice had been cancelled and the prospect that the agency might commence a new RIF left Cardin "in no worse position than any other employee in an agency which is contemplating a future need to reduce its work force." Id. at 232. In short, on second appeal, the MSPB described Cardin as a case involving no extant agency action, final or otherwise; rather, Cardin's challenge was reduced to a forecast of a new RIF and future action in line with anticipated RIF notices.

In Alford v. Department of Health, Education, and Welfare, supra, a group of employees challenged the agency's performance appraisal system because they had not been asked to participate in developing the system. The petitioners alleged that the system devised by the agency "ordinarily results in removal or reduction in grade." 1 MSPB at 305. The MSPB refused to hear the appeal because "speculation that removal, reduction in grade, or reduction in force may result is not an appealable event." Id. at 306. Korowin v. Department of Justice, supra, similarly involved an unripe challenge. The petitioner sought review of an alleged denial of a within-grade salary increase, but the MSPB pointed to, and agreed with, the presiding official's decision that definitive agency action had not yet occurred: " [N]o agency 'decision ... sustaining the negative determination' had been made." 4 MSPB at 141.

After the FLRA decision in this case, the MSPB dismissed as prematurely filed another challenge to a RIF notice. Windom v. Department of the Navy, MSPB No. SF03518010522 (July 13, 1982), reprinted in Brief for the FLRA at F-1--F-4. The employee in Windom filed his appeal over two weeks before the effective date of the notice. Relying on Cardin v. Department of the Navy, the MSPB stated that it "is without authority to adjudicate appeals from actions which have yet to be effected." Id. at F-2. It cited 5 U.S.C. § 1205(g), which instructs that the MSPB "shall not issue advisory opinions." Id.¹³ 

In the MSPB cases relied upon by the FLRA, the agency decisionmaker had not spoken its definitive "last word." In Alford, there was only "speculation" about future adverse employee action; in Korowin, the agency had yet to issue a negative determination; and in Cardin and Windom, there was nonfinal, interlocutory agency action, because a RIF notice, prior to the specified effective date, can be amended or cancelled.¹⁴  The NTEU proposal at issue here, by contrast, does relate to final agency action. It would stay execution of that action, but would not convert the agency's "last word" into an action still subject to the agency's recall, revision, or reconsideration. The MSPB cases relied upon by the FLRA are therefore inapposite. None of them concerned the question whether a stay bears on the finality of an agency's decision.

It is not difficult to comprehend, however, why the FLRA ruled as it did. The MSPB used broad language to announce that only "actions which have been effected" are appealable. E.g., Alford, supra, 1 MSPB at 306. But the language implying that final action means executed action was unnecessary and, indeed, inappropriate. Absent MSPB decisions speaking to the point with unmistakable clarity, we would hesitate long before concluding that the MSPB is in fact operating on the premise that a stayed decision is an unappealable decision. For, if the FLRA has accurately divined what the MSPB meant, then the MSPB has arrogated to itself authority to preclude federal agencies from voluntarily staying the enforcement of adverse employee actions pending MSPB review. We are unaware of any indication that Congress intended to confer upon the MSPB such authority to tell other agencies when to execute their final actions.¹⁵ 

The FLRA view of MSPB law also fails to advert to a factor important in the administration of the Federal Service Labor-Management Relations Act.¹⁶  As this court recently noted:

To promote consistency and to discourage forum shopping, Congress has provided that an employee's choice of procedural routes cannot affect the applicable standard of review [.] ... [A]rbitral decisions are subject to judicial review "in the same manner and under the same conditions as if the matter had been decided by the [MSPB]." 5 U.S.C. § 7121(f) (Supp. V 1981).

Devine v. White, supra note 2, 697 F.2d at 428-29 (footnotes omitted). " [N]othing in the [Act] requires that arbitration and MSPB actions always adhere to the same standards and procedures," but "Congress intended that there be some symmetry between the arbitration and MSPB processes" and " [e]ven a cursory evaluation of the statute makes it plain that the [Act] sets arbitration on a par with administrative review before the MSPB." Local 2578, American Federation of Government Employees v. General Services Administration, supra note 2, at 264, 265.

The FLRA decision reviewed here draws an unwarranted distinction between MSPB appeals and contract grievances; it does not treat arbitrations and MSPB appeals "in the same manner and under the same conditions," nor does it promote consistency or discourage forum shopping between these two appeals channels. This court, affirming the FLRA, has already held negotiable a stay pending exhaustion of a contractual grievance procedure. Department of Defense v. FLRA (Dix-McGuire Exchange), supra. Under the FLRA's decision in the case before us, if a stay proposal pending arbitration is adopted in the bargaining process, there would be a powerful incentive for an aggrieved employee to forego MSPB review and instead appeal through the grievance procedure. That procedure, but not an appeal to the MSPB, could hold adverse action in abeyance pending the outcome of administrative review. To eliminate this incentive and promote the uniformity Congress envisioned, a stay negotiable where the aggrieved employee pursues arbitration should be negotiable as well where the employee elects MSPB review.¹⁷ 

CONCLUSION

The NTEU stay proposal should not bear on the finality, for appellate review purposes, of an adverse action by Customs. The MSPB, we are confident, will observe the commonly-accepted meanings of nonfinal (interlocutory) action, final action not yet executed, and final action that has been executed. The stays proposed by NTEU, if adopted, would be lifted on completion of review through arbitration or by the MSPB. Though the execution of adverse action will be delayed if Customs agrees to accept NTEU's proposal, Customs will not be impeded from deciding, unilaterally, whether to take adverse action and will not be prevented from "acting at all" to implement that action. The NTEU proposal therefore entails a negotiable procedure, not a nonnegotiable management right.

For the reasons stated, the petition for review is granted, the decision of the FLRA is reversed, and the matter is remanded to the Authority for the entry of a decision and order consistent with this opinion.