                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 29, 2004
                        ____________________
                                                         Charles R. Fulbruge III
                           No. 03-51264                          Clerk
                         Summary Calendar
                        __________________

 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Local 1617; ARTHUR
CELESTINO;, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Council
                           Number 214,

                     Plaintiffs - Appellants,

                              versus

                FEDERAL LABOR RELATIONS AUTHORITY,

                       Defendant - Appellee.

_________________________________________________________________

      Appeal from the United States District Court for the
              Western District of Texas, San Antonio
                   Civil Action No. SA-03-CV-58
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Appellants, the American Federation of Government Employees

Local 1617 (“Local 1617"), Arthur Celestino, and American

Federation of Government Employees Council Number 214 (“Council

Number 214”), sued the Federal Labor Relations Authority (“FLRA”)

in district court, alleging that the FLRA exceeded its authority

in overruling an arbitration decision.   Appellants’ suit was



     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                -1-
dismissed for lack of subject matter jurisdiction.     For the

following reasons, this court AFFIRMS the district court’s

judgment dismissing Appellants’ lawsuit.

Background

     Local 1617 and Council Number 214 represent employees of the

United States Department of the Air Force, San Antonio Air

Logistics Center, Kelly Air Force Base, San Antonio (“Agency”).

Appellant Celestino was an employee of the Agency.     At all

relevant times, relations between Appellants and the Agency were

covered by the Master Labor Agreement (“MLA”).     In April 1999,

employees of the Agency, who were represented by Local 1617,

brought a grievance against the Agency alleging that they were

entitled to Environmental Differential Pay (“EDP”) because of

exposure to asbestos.   The Agency denied the grievance.

     Local 1617 invoked arbitration, as authorized by the MLA.

After a lengthy arbitration, the arbitrator ruled that the

employees were entitled to limited EDP.

     Appellants and the Agency filed exceptions to the

arbitration award with the FLRA, under 5 U.S.C. § 7122.     The FLRA

is an independent agency whose responsibilities include resolving

exceptions to arbitration awards.     The FLRA set aside the

arbitration award, finding that the award was deficient.

Appellants moved for reconsideration.     The FLRA denied that

motion.



                                -2-
     Appellants sued FLRA, alleging that FLRA had violated the

Federal Labor Management Relations Act1 when it overturned the

arbitrator’s decision.     FLRA moved under FED. R. CIV. P. 12(b)(1)

to dismiss for lack of subject matter jurisdiction.        Appellants

moved for summary judgment.        The district court granted FLRA’s

Rule 12(b)(1) motion, denied Appellants’ motion for summary

judgment, and entered a judgment dismissing Appellants’ lawsuit.

Appellants timely appealed.

     Discussion

     Standard of review

     This court reviews de novo the grant of a Rule 12(b)(1)

motion.2    The burden of proof for a Rule 12(b)(1) motion to

dismiss is on the party asserting jurisdiction;3 in this case,

the Appellants.     A Rule 12(b)(1) motion may be granted only when

it appears certain that the plaintiffs cannot prove any set of

facts in support of their claim that would entitle them to

relief.4    For purposes of analyzing a Rule 12(b)(1) motion this

court takes the plaintiff’s alleged facts as true.5


     1
         5 U.S.C. § 7101 et seq.
     2
         Hebert v. United States, 53 F.3d 720, 722 (5th Cir. 1995).
     3
      McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178
(1936).
     4
         Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992).
     5
      Saraw Partnership v. United States, 67 F.3d 567, 569 (5th
Cir. 1995).

                                     -3-
     Jurisdiction to review FLRA decisions

     The FLRA may change an arbitrator’s award if it finds the

award is deficient: “(1) because it is contrary to any law, rule

or regulation; or (2) on other grounds similar to those applied

by Federal courts in private sector labor-management relations.”6

There is no statutory provision providing for review of the

FLRA’s decisions on arbitration awards.7    Appellants argue that

despite the lack of a provision for federal court review of the

FLRA’s decisions, the district court had jurisdiction to hear

this case under the Supreme Court’s decision in Leedom v. Kyne.8

     In Leedom, a group of professional employees objected to a

decision of the National Labor Relations Board (“NLRB”) that

combined professional and non-professional employees into one

bargaining unit.9    The employees sued the NLRB in district court,

alleging that the NLRB had violated a National Labor Relations

Act provision explicitly prohibiting such combinations without

prior approval of the professional employees.10   The district


     6
         5 U.S.C. § 7122 (a).
     7
      As a general matter, parties may seek review of FLRA
decisions in federal courts of appeals. 5 U.S.C. § 7123 (a).
However, they may not seek review of final FLRA decisions about
arbitrator’s awards unless the order involves an unfair labor
practice. Id.
     8
         358 U.S. 184 (1958).
     9
          Id.
     10
          Id.

                                 -4-
court found that jurisdiction existed, and the circuit court

affirmed that decision.11           The Supreme Court also affirmed

jurisdiction, finding that the NLRB had acted “in excess of its

delegated powers and contrary to a specific prohibition in the

[National Labor Relations Act].”12            The Court reasoned that if it

found jurisdiction did not exist, then the rights of the

professional employees would be sacrificed, and that “where, as

here, Congress has given a ‘right’ to the professional employees

it must be held that it intended that right to be enforced . . .

.”13

       This exception, however, is very narrow.          In Boire v.

Greyhound Corporation, the plaintiffs attempted to challenge a

NLRB finding that independent contractors were employees of the

hiring corporation, despite a National Labor Relations Act

statute excluding independent contractors from the definition of
                  14
employee.              In Boire, the Supreme Court held that deciding

whether someone met the definition of employee was a factual

question and that there was no federal jurisdiction to review

such a decision.15           The Court explained that the Leedom exception


       11
            Id.
       12
            Id. at 184.
       13
            Id. at 185.
       14
            376 U.S. 473 (1964).
       15
            Id.

                                        -5-
     is a narrow one, not to be extended to permit plenary
     district court review of [NLRB] orders . . . whenever
     it can be said that an erroneous assessment of the
     particular facts before the [NLRB] has led it to a
     conclusion which does not comport with the law.16

     In Board of Governors of the Federal Reserve System v. MCorp

Financial, Inc., the Supreme Court held that jurisdiction existed

to review an agency action alleged to have exceeded the agency’s

statutory authority.17      The Supreme Court found that there was no

jurisdiction where the agency’s authorizing statute indicated a

congressional intent to deny district court review, and the

statute provided a meaningful and adequate opportunity for

judicial review.18

     This court has analyzed the Leedom exception and explained

that it is “narrow and rarely used.”19      Further, the exception

should be used to correct only egregious error, and does not

allow federal courts to review whether an agency responsible for

implementing a statute has misinterpreted that statute.20

Instead, the Leedom exception allows jurisdiction “only in a very

narrow situation in which there is a plain violation of an


     16
          Id. at 481-481.
     17
          501 U.S. 32 (1991).
     18
          Id.
     19
       Russell v. Nat’l Mediation Bd., 714 F.2d 1332, 1340 (5th
Cir. 1983).
     20
          Am. Airlines, Inc. v. Herman, 176 F.3d 283, 292 (5th Cir.
1999).

                                   -6-
unambiguous and mandatory provision of the statute.”21

Appellants argue that the FLRA decision fits into this narrow

category of violations.     Under the Leedom exception, jurisdiction

will exist only if FLRA plainly violated unambiguous and

mandatory statutory provisions.22          As explained below, Appellants

have not shown that the FLRA’s decision violated any statutory

provision.

     Propriety of the FLRA decision under 5 U.S.C. § 7122(a)(2)

     Appellants contend that the FLRA violated 5 U.S.C. §

7122(a)(2) by overturning an arbitrator’s award.          Specifically,

Appellants argue that FLRA should have given special deference to

the arbitration award because it was based on the arbitrator’s

interpretation of a collective bargaining agreement.

     Section 7122 provides that:

     (a) Either party to arbitration under this chapter may
     file with the [FLRA] an exception to any arbitrator’s
     award pursuant to the arbitration . . . . If upon
     review the [FLRA] finds that the award is deficient –

             (1) because it is contrary to any law, rule, or
             regulation; or
             (2) on other grounds similar to those applied by
             Federal courts in private sector labor-management
             relations;

     the [FLRA] may take such action and make such
     recommendations concerning the award as it considers
     necessary, consistent with applicable laws, rules, or
     regulations.


     21
          Herman, 176 F.3d at 293.
     22
          See id.

                                     -7-
     The FLRA found that the award was deficient because it was

contrary to law.    The FLRA maintains that while it overturned the

arbitrator’s legal conclusions, it deferred to the arbitrator’s

findings of fact.    Pursuant to § 7122(a)(1), the FLRA is

authorized to change an arbitrator’s award if the FLRA finds the

award is contrary to any law, rule, or regulation.23     In fact,

the District of Columbia Circuit has held that if an arbitrator’s

award is challenged because it is contrary to a law, rule or

regulation, the FLRA must conduct a de novo review.24

     The FLRA decision references the arbitrator’s findings that

the parties to arbitration had not agreed to a specific standard

for entitlement to EDP.    Based on this finding, the arbitrator

concluded that there was a conflict between the Agency’s

regulations and the MLA between the parties.     The arbitrator next

held, as required when a regulation conflicts with a labor

agreement,25 that the regulation could not be applied.     The FLRA

decision does not challenge the arbitrator’s finding that the MLA

did not specify an EDP threshold.      Rather, FLRA contends that the

arbitrator was wrong to dismiss the Agency’s regulations when the




     23
      U.S. Dep’t of Treasury v. Fed. Labor Relations Auth., 43
F.3d 682, 686-87 (D.C. Cir. 1994).
     24
          Id. at 686-87.
     25
       See U.S. Dep’t of the Army, Ft. Campbell Dist., Third
Region, Ft. Campbell, Ky., 37 FLRA 186, 195 (1990).

                                 -8-
MLA did not present any regulations of its own that could have

conflicted with the Agency’s regulations.

     In response, Appellants argue that the lack of an agreement

on specific regulations means that the threshold for EDP was to

be set on a case-by-case basis.    To support this point, they

quote the arbitrator’s finding that the Union representing the

Agency employees specifically bargained to avoid including an EDP

threshold in the MLA, so that EDP could be awarded on a case-by-

case basis.   Contrary to Appellants’ assertions, however, this

finding relates to the Union’s bargaining position, not the

binding final product of that bargaining – the MLA.      Appellants

do not cite any requirement in the MLA that EDP is to be

determined on a case-by-case basis, nor do they assert that the

arbitrator found such a requirement.      The arbitrator’s findings

about the Union’s bargaining goals are irrelevant to determining

whether the MLA conflicts with Agency regulations.

     Therefore, FLRA did not contradict a factual finding by the

arbitrator when it determined that the MLA was silent on the

appropriate method of determining EDP.      Rather, FLRA applied its

own review of the applicable law.       The FLRA’s binding precedent

dictates that in the absence of an agreed-upon regulation the

Agency’s own regulation governs.26      Thus, FLRA acted within its

     26
       U.S. Dep’t of the Army, Fort Campbell Dist., Third Region,
Fort Campbell, Ky., 37 FLRA 186, 195 (1990)(agency rules and
regulations “govern the disposition of matters to which they
apply . . . when the rules and regulations do not conflict with

                                  -9-
authority in determining that Agency regulations govern the

assessment of EDP in this case, where there was no other

agreement governing that assessment.    This court does not have

jurisdiction over FLRA decisions that are made pursuant to FLRA’s

authority.

     The FLRA decision and congressional intent

     Appellants next contend that congressional intent will be

thwarted unless courts have subject matter jurisdiction to review

FRLA decisions about arbitration awards.    Appellants maintain

that without district court review there will be no mechanism to

ensure that FLRA does not reach beyond what Congress intended to

be its very limited right to alter arbitration awards.

Appellants do not cite any legislative history to support this

position.    Rather, they argue that as a general matter,

expedition of dispute resolution and the finality of arbitration

decisions would be undermined without district court review of

FLRA decisions.

     Appellants cite a series of three Supreme Court opinions,

the Steelworkers Trilogy,27 to support the proposition that

employment arbitrations are to be given a high degree of



provisions of an applicable collective bargaining agreement”).
     27
      United Steelworkers v. Am. Mfg. Co., 363 U.S. 564 (1960);
United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593
(1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363
U.S. 574 (1960).

                                -10-
deference.   The Steelworkers Trilogy opinions, however, deal with

federal court review of employment arbitration decisions, not

federal court review of FLRA decisions.    The Steelworkers Trilogy

opinions do not provide guidance on this court’s jurisdiction

over FLRA decisions.   Instead, this court must rely on the

statutory language that specifically explains when review is

appropriate.

     Appellants’ argument about congressional intent is

unconvincing in light of the statutory scheme surrounding the

FLRA.   Congress explicitly provided for review of FLRA decisions

under 5 U.S.C. § 7123.   This provision also prohibits review when

the FLRA decision involves an order by an arbitrator, unless the

order involves an unfair labor practice.   Section 7123 evidences

Congress’s intent that only certain FLRA decisions should be

reviewed.    There is no reason to assume a different congressional

intent from that stated on the face of the statute.   Therefore,

this court finds it does not have jurisdiction to hear this case

based on congressional intent.

     Propriety of the FLRA decision under 5 U.S.C. §7101

     Lastly, Appellants argue that the FLRA decision undermined

all collective bargaining and therefore violated 5 U.S.C. § 7101.

This argument essentially reiterates Appellants’ argument

asserting that the FLRA violated 5 U.S.C. § 7122.   Appellants

contend that the FLRA undermined collective bargaining by


                                 -11-
replacing an agreed-upon rule with a rule created by an agency.

As discussed above, there is no evidence that the MLA included a

rule specifying when to award EDP pay, nor did the arbitrator

conclude that there was such a rule.    Therefore, Appellants’

argument that an agreed-upon rule was ignored fails.    There is no

jurisdiction for this court to hear this appeal based upon a

violation of 5 U.S.C. § 7101.

Conclusion

     Appellants fail to demonstrate that FLRA plainly violated a

mandatory and unambiguous statutory provision.    Accordingly, the

district court correctly found that it lacked subject matter

jurisdiction over the dispute and dismissed the case under Rule

12(b)(1).    Therefore, this court AFFIRMS the district court’s

judgment dismissing Appellants’ lawsuit.

AFFIRMED




                                -12-
