685 F.2d 547 (D.C. Cir. 1982)
The FLA is authorized to revoke any union’s recognition status if they support a strike of federal employees. PATCO ordered a strike of air traffic controllers against the FAA. The FLA subsequently revoked their union recognition. At the hearing the union certification was revoked and the union appealed. Before the appeal can be heard, the court had to address allegations of impropriety. The court then undertook a hearing to determine whether there was improper ex parte communications. The ALJ at the immediate level determined the vast majority of communications were objectionable. This court refers to three communications:
(1) A week after the PATCO complaint was filed the FLRA General Counsel discussed with a of the board a memorandum addressing whether revocation was discretionary under the law and what other disciplinary options were available.
(2) The Secretary of Transportation phoned a member of the board. He stated that no meaningful efforts to resolve the issue had been made and that he would appreciate “expeditious handling of the case.” The member informed the Secretary that he would have to file an appropriate form for expeditious handling of the case. This member also discussed the phone call with another member.
(3) An executive council member of the AFL-CIO had dinner with a member with the intention of letting his feelings that PATCO not be punished severely. They discussed labor law matters relevant to the PATCO case.
Whether ex parte communications with FLRA members violated the APA.
557(d) – applies only to exparte communications with “interested persons.” Interested person is anyone who has a greater interest in the matter than the public in general. Ex parte communication – “An oral or written communication not on the public record to which reasonable prior notice to all parties is not given.” Communication related to the merits of the provision is explicitly prohibited.
• Remedies – Disclosure of the communication and the requirement that the violating party “show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded…”
Yes, but not enough to cause a remand of the original decision. In banning ex parte communications, Congress wanted a common sense application of what was and wasn’t permissible communication. The goal of the ban is to keep decisions open and transparent, but also to provide parties with full notice of what was going to be decided on. “In enforcing this standard, a court must consider whether, as a result of improper ex parte communications, the agency’s decision making process was irrevocably tainted so as to make the ultimate judgment of the agency unfair…”
(1) The purpose of the meeting was to discuss budgetary matters. The contact was inadvertent and no arguments were made to the member and the facts of the case were not mentioned.
(2) The Transportation Secretary was definitely an interested person. However, the Secretary specifically avoided the merits of the case. He only mentioned that he wanted the matter handled quickly. The contact ultimately had no impact on the decision.
(3) The executive council argues he was not an interested party and did not know the AFL-CIO had filed an amicus brief. Congress intended the definition of interested party to be a general one, without narrow interpretation. He is a President of a major public sector union. He spoke frequently at public events about the case and spoke about a reduced sentence. This all demonstrates his interest was greater than the general public’s interest. “It is simply unacceptable behavior for any person directly to attempt to influence the decision of a judicial officer in a pending case outside of the formal, public proceedings.” When the conversation turned to matters relevant to the hearing, the member should have stopped the conversation. However, because no threats or promises were made to the member and no benefit was gained from the dinner, it cannot be said that the dinner influenced the outcome of the hearing.