NOTE: This order is nonprecedentia1.

United States Court of Appeals
for the Federal Circuit

CHERYL MORRISON,
Petitioner,

V.

DEPARTMENT OF THE INTERIOR,
Respon,dent.

2012-3046

Petition for review of the Federal Labor Relations Au-
thority in case no. SF-CA-11-0064.

ON MOTION

Before LOURIE, SCHALL and DYK, Circuit Judges.
PER CUR!AM.
0 R D E R

Cheryl Morrison responds to this court’s February 10,
2012 order directing her to show cause why her petition
should not be dismissed for lack of jurisdiction and moves
to transfer the case to either the United States Court of
Appeals for the D.C. Circuit or the United States Court of
Appeals for the Ninth Circuit.

 

MORRISON V. IN'I`ERIOR 2

Morrison filed an unfair labor practice charge with
the San Francisco Regional Office (RO), which is under
the direction and supervision of the Federal Labor Rela-
tions Authority (FLRA)’S Office of General Counsel.
Morrison alleged that her termination from employment
with the Departrnent of the Interior, Bureau of lndian
Affairs was based on protected union activities. After
investigating the matter, the RO decided not to issue an
unfair labor complaint, Morrison appealed that decision
to the Office of General Counsel. That appeal was denied.
Morrison then filed a petition seeking this court’s review
of the General Counsel’s refusal to issue an unfair labor
charge.

Because this petition does not arise out of a decision
of the Merit Systems Protection Board or an arbitrators’
award, Morrison concedes that the petition is outside of
this court’s limited jurisdiction. See 5 U.S.C. § 7121(f); 5
U.S.C. § 4303; 5 U.S.C. § 7512. Morrison, however, con-
tends that this court should transfer the matter to either
the United States Court of Appeals for the Ninth Circuit
or the D.C. Circuit pursuant to 28 U.S.C. § 1631. That
statute authorizes transfer to a court in which the appeal
could have been brought at the time it was filed "if it is in
the interest of justice.”

We cannot say that transfer here would be in interest
of justice. Courts, including the Ninth Circuit and D.C.
Circuit, have held that decisions by the FLRA General
Counsel to file (or not file) unfair labor practice com-
plaints are unreviewable See Patent office Prof’l Ass’n v.
Fed. Labor Relations Auth., 128 F.Sd 751, 753 (D.C. Cir.
1997) ("[B]ecause the court is without jurisdiction to
review the General Counsel’s decision not to issue an
unfair labor practice complaint, we dismiss the petition
for review."); Columbia Power Trades C'ouncil v. United
States Dep’t of E'nergy, 671 F.Zd 325, 329 (9th Cir. 1982)
(same).

MORRISON V. INTERIOR

In arguing that one of the regional circuits would
have jurisdiction over this appeal, Morrison points out
that 5 U.S.C. § 7123(a) provides that "[a]ny person ag-
grieved by any final order of the [FLRA] . . . may . . .
institute an action for judicial review of the [FLRA’s]
order in the United States court of appeals.” Based on §
7123(a), l\/Iorrison contends that she may appeal from the
General Counsel’s ruling.

The flaw in Morrison’s argument is that § 7123(a)
only authorizes courts to review certain final decisions of
the FLRA, not the General Counsel, and only the General
Counsel, not the FLRA, is authorized to decide whether to
issue a complaint on the unfair labor charge. See 5 U.S.C.
§ 7118(a)(1).

Although the Ninth Circuit stated in Montoina Air
Chapter No. 29 v. Fed. Labor Relations Auth., 898 F..?.d
753, 756 (9th Cir. 1990) that the General Counsel’s de-
termination to issue a complaint could possibly be re-
viewed where a decision is based either on the agency’s
conclusion that it lacked jurisdiction or on a general policy
"so extreme as to amount to an abdication of its statutory
re.sponsibilities," nothing suggests that such narrow
grounds for review are present here.

= Accordingly,
IT Is ORDERED THAT:
(1) The motion to transfer is denied.
(2) The petition for review is dismissed.

(3) Each side shall bear its own costs.

FoR THE CoURT

 2 0  /s/ J an Horbal_v
Date J an Horbaly
Clerk
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JuL 2 0 2012

JAN H!JRBALY
ClEHK

MORRISON V. INTERIOR

cc: Cheryl Morrison
Michael D. Austin, Esq.

s19

 

