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UNITED STATES v. PROFESSIONAL AIR TRAFFIC

United States District Court, Northern District of Illinois, E.D


December 15, 1980

UNITED STATES OF AMERICA, PLAINTIFF,
v.
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO) ET AL., DEFENDANTS.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

This case of first impression requires a resolution of the tension between the forces supporting judicial control over the congressional policy against strikes by federal employees and the forces supporting the congressional policy for administrative resolution of unfair labor practices by federal employees' labor unions. Defendants Professional Air Traffic Controllers Organization and its O'Hare Local No. 316 (though they are separate entities, for convenience this opinion will refer to them collectively by use of the singular term "PATCO") and a number of their officers have been sued by the United States for a preliminary and permanent injunction against a claimed slowdown (alleged to be equivalent to a strike) of air traffic controllers at Chicago's O'Hare Field. PATCO has moved to dismiss the action for lack of jurisdiction. For the reasons stated in this memorandum opinion and order PATCO's motion is granted.

Facts*fn1

PATCO is a labor organization representing air traffic controller employees of the Federal Aviation Administration ("FAA"). On July 31, 1980 PATCO, aided and abetted by the individual defendants, organized and directed a concerted slowdown of the air traffic controllers working at Chicago's O'Hare International Airport. That slowdown is characterized as a "strike" against the operations of the air traffic control system, creating a concerted obstruction to the movement of air traffic within this District and throughout substantial areas of the United States. It has significantly impaired such operations and air traffic movement, causing great loss and inconvenience to the public and the airlines.

When the United States brought this action August 18, 1980 Judge Bua of this Court entered a temporary restraining order prohibiting PATCO, the individual defendants and PATCO's members from "continuing, encouraging, ordering, aiding, engaging, obstructing or taking any part in any work stoppage or slowdown" (TRO ¶ 1(a)). Since that time the parties have consented to the extension of the TRO from time to time, most recently through January 20, 1981.

          Jurisdictional Section Invoked by the United
                             States

PATCO has now moved to dismiss the Complaint under Fed.R.Civ.P. 12(b)(1) on the theory that Congress has vested exclusive jurisdiction over the conduct complained of in the Federal Labor Relations Authority ("FLRA"). For the United States, on the other hand, the case is one for the straightforward invocation of the grant of jurisdiction under 28 U.S.C. § 1345:

  Except as otherwise provided by Act of Congress,
  the district courts shall have original
  jurisdiction of all civil actions, suits or
  proceedings commenced by the United States, or by
  any agency or officer thereof expressly
  authorized to sue by Act of Congress.

Thus the question may be simply put as whether Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 ff. ("Title VII"), which created the FLRA, is an Act of Congress that "otherwise provide[s]." That question is not as simply answered, for it requires analysis not only of Title VII but of two pre-existing enactments, 5 U.S.C. § 7311 and 18 U.S.C. § 1918.

Title VII and FLRA Jurisdiction

Under 5 U.S.C. § 7116(b):

  (b) For the purpose of this chapter, it shall be
  an unfair labor practice for a labor organization
  —

    (7)(A) to call, or participate in, a strike,
    work stoppage, or slowdown . . . or (B) to
    condone any activity described in subparagraph
    (A) of this paragraph by failing to take action
    to prevent or stop such activity. . . .

  That statutory language is tracked almost verbatim by the Complaint, which alleges that each of the entities comprising PATCO "organized, directed, and commenced a strike against the operations of the air traffic control system and the movement of air traffic within the district and throughout substantial areas of the United States" (¶ 10), that "This strike has taken the form of a concerted slowdown and a concerted obstruction to the movement of aircraft in air commerce or air transportation" (¶ 12) and that "PATCO has failed to take any action to prevent or to stop the illegal actions of its members at O'Hare" (¶ 14).

There is therefore no question that the Complaint charges an unfair labor practice under Title VII. Indeed, two days preceding the filing of this action FAA filed a charge with the FLRA, complaining against PATCO of the same actions alleged in the Complaint in virtually identical language, charging that such conduct is a violation of 5 U.S.C. § 7116(b)(7)(A) and (B) and concluding:

  Because such illegal activity is continuing or
  expected to continue and because such illegal
  activity has and will interfere with the ability
  of the FAA to carry out its essential functions,
  we request the General Counsel, FLRA, seek
  appropriate temporary relief (including a
  restraining order) under 5 U.S.C. § 7123(d).

Accordingly FLRA jurisdiction over the controversy between the United States and PATCO is uncontroverted.
*fn2

Purpose and History of Title VII

Title VII has created a structure and procedure for the investigation and prosecution of unfair labor practices in the federal sector, including its own provisions for judicial review of FLRA's decisions in a Court of Appeals, not a District Court (5 U.S.C. § 7123(b)). It specifically empowers FLRA to petition a District Court for necessary temporary relief (including a TRO) upon issuance of an unfair labor practice complaint (5 U.S.C. § 7123(d)). Those provisions embrace the only role given the federal courts under the statute, substantially (and deliberately, as will be discussed below) paralleling the structure of the National Labor Relations Act applicable to the private sector.

As for the question of intended exclusivity, initial scrutiny of the statute itself discloses the following role for FLRA (5 U.S.C. § 7105(a)(1), emphasis added):

  [FLRA] shall provide leadership in establishing
  policies and guidance relating to matters under
  this chapter, and, except as otherwise provided,
  shall be responsible for carrying out the purpose
  of this chapter.*fn3

Section 7101(b) defines "the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government." It mandates that the provisions "should be interpreted in a manner consistent with the requirement of an effective and efficient Government." And like the counterpart NLRB, Section 7105(a)(2)(G) empowers FLRA to "conduct hearings and resolve complaints of unfair labor practices under section 7118."

Before the enactment of Title VII, federal sector labor-management relations were governed by Executive Order 11491, as amended (the successor to Executive Order 10988). That Order provided for an exclusively administrative process, with the Federal Labor Relations Council having limited review of decisions regarding alleged unfair labor practice complaints (decided initially by the Assistant Secretary of Labor for Labor-Management Relations). There was no place for the federal judiciary in the structure or procedure for dealing with claimed unfair labor practices in federal employment. Stevens v. Carey, 483 F.2d 188, 191 (7th Cir. 1973).

Congress enacted Title VII to establish a statutory base in place of the dependency on Executive Orders. As stated in the reprinted Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, 96th Cong. 1st Sess. (Comm. Print No. 96-7) (hereinafter "Legis. Hist.") at 684:

  Title VII of the bill establishes a statutory
  basis for labor-management relations in the
  Federal service. Since 1962, Executive Orders
  have governed the collective bargaining
  relationship in the Federal sector. Title VII
  would for the first time enact into law the
  rights and obligations of the parties to this
  relationship — employees, agencies, and labor
  organizations.

  Title VII, in concert with the President's
  Reorganization Plan No. 2 of 1978, also
  constructs a new framework for the conduct of
  Federal labor-management relations. The Federal
  Labor Relations Authority, an independent
  establishment in the executive branch, together
  with its Office of General Counsel, will be
  primarily responsible for the administration of
  the program and the enforcement of the policies
  reflected in Title VII.

FLRA was intentionally cast in the mold of the NLRB (id. at 687):

  Section 7104, in concert with Reorganization Plan
  No. 2 of 1978, establishes and describes the
  Federal Labor Relations Authority, an independent
  establishment in the executive branch. The
  committee intends that the Authority's role in
  Federal sector labor-management relations be
  analogous to that of the National Labor Relations
  Board in the private sector. Functions which,
  under the Executive Order 11491 program, were
  distributed among various entities (such as the
  Civil Service Commission and the Department of
  Labor) are to be consolidated under the
  Authority.

One of the features of the NLRA most desired by Congress to be imported into federal sector employment relationships was that of defined judicial review in the Courts of Appeal. As stated by Congressman William Ford (Legis.Hist. 856):*fn4

  One of the central elements of a fair labor
  relations program is effective impartial
  administration. Title VII provides for the
  creation of an independent and neutral Federal
  labor relations authority to administer the
  Federal labor-management program and subjects the
  decisions of the authority to judicial review.

  By providing for judicial review of the
  authority's decisions, similar to that provided
  under the National Labor Relations Act, the right
  of both sides to receive an impartial decision is
  further strengthened, while making the authority
  more accountable for its actions. Judicial review
  is one of the primary benefits of a statutory
  program over an Executive order, and to limit
  such review also limits the advantages of
  codification.

As already stated, federal District Courts were given no jurisdiction under Title VII except for the limited power to grant temporary relief (including injunctive relief) on the petition of FLRA after issuance of an unfair labor practice complaint by its General Counsel, 5 U.S.C. § 7123(b) and (d).

Exclusivity of jurisdiction is an established hallmark of the NLRB, after which FLRA is tailored. As stated in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 264-65, 60 S.Ct. 561, 563, 84 L.Ed. 738 (1940) (emphasis added):

  To attain its object Congress created a
  particular agency, the National Labor Relations
  Board, and established a special procedure. The
  aim, character and scope of that special
  procedure are determinative of the question now
  before us. Within the range of its constitutional
  power, Congress was entitled to determine what
  remedy it would provide, the way that remedy
  should be sought, the extent to which it should
  be afforded, and the means by which it should be
  made effective. Congress has entrusted to the Board
  exclusively the prosecution of the proceeding by
  its own complaint, the conduct of the hearing, the
  adjudication and the granting of appropriate
  relief. The Board as a public agency acting in the
  public interest, not any private person or group,
  not any employee or group of employees, is chosen
  as the instrument to assure protection from the
  described unfair conduct in order to remove
  obstructions to interstate commerce.

In the same way, the "role and function" of FLRA's General Counsel were specified to "be analogous" to those of NLRB's General Counsel (Legis.Hist. 688). That analogy was underscored in the area of unfair labor practices (Legis.Hist. 766):

  It is intended that unfair labor practice
  complaints will be handled by the General Counsel
  of the Authority in a manner essentially
  identical to National Labor Relations Board
  practices in the private sector.

As the Supreme Court characterized NLRB's General Counsel in NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 138-39, 95 S.Ct. 1504, 1510-11, 44 L.Ed.2d 29 (1975) (emphasis added):

  Congress has delegated to the Office of General
  Counsel "acting for 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 [87 S.Ct. 903, 912, 17 L.Ed.2d
  842]. 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.

There is no designated role for the Department of Justice, as contrasted with the General Counsel, in protecting the public interest when that interest is threatened by action that constitutes an unfair labor practice under the National Labor Relations Act (applicable to private sector employment). Title VII has similarly carved out no specific role for the. Department of Justice in protecting the public interest against like threats in the federal employment sector. If that power exists, it must be found to have survived elsewhere despite the comprehensive scheme reflected by adoption of Title VII.

To put the matter in a slightly different way, it is plain beyond cavil that the NLRB, after which Congress specifically modeled FLRA, has exclusive jurisdiction over conduct that assertedly constitutes an unfair labor practice. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 248, 79 S.Ct. 773, 781, 3 L.Ed.2d 775 (1959); Amalgamated Ass'n of Street Electrical Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 292, 91 S.Ct. 1909, 1920, 29 L.Ed.2d 473 (1971) (applying that rule even though the complaint was not framed in unfair labor practice terms). Were FAA a private employer it could not come to this Court for injunctive relief and bypass the NLRB. We turn then to the question whether its status as a federal employer destroys the parallel and permits FLRA to be thus bypassed.

Case Law Under Title VII

We do not write on an entirely clean slate with respect to the relationship between FLRA and the federal courts. In two 1980 cases District Courts have held subject matter jurisdiction absent in suits seeking injunctive and other relief on behalf of federal employees against conduct that the Courts held would also constitute an unfair labor practice. National Federation of Federal Employees, Local 1263 v. Commandant, Defense Language Institute, 493 F. Supp. 675 (N.D.Cal. 1980), Clark v. Mark, Secretary of the Air Force, No. 79-CV-777 (N.D.N.Y. August 27, 1980).

In each of those cases the Court engaged in a persuasive analysis, more extended than the prior portion of this opinion, and concluded that FLRA was vested with exclusive jurisdiction to deal with conduct that constituted an unfair labor practice. In each case the Department of Justice, which argues to the contrary here, successfully urged that the Court was without subject matter jurisdiction.*fn5

As perhaps the capstone to its argument in the other two cases, adopted in each instance by the District Court in reaching its decision, the Department of Justice argued (National Federation Br. 8, 9):

  The Supreme Court has held on numerous occasions
  that where, as here, Congress has provided
  statutory review procedures designed to permit
  agency expertise to be applied to particular
  problems, those procedures must be considered
  exclusive. Whitney Bank v. New Orleans Bank,
  379 U.S. 411, 421 [85 S.Ct. 551, 558, 13 L.Ed.2d 386]
  (1964); Callanan Road Improvements Co. v. United
  States, 345 U.S. 507 [73 S.Ct. 803, 97 L.Ed. 1206]
  (1953); Myers v. Bethlehem Shipbuilding Corp.,
  303 U.S. 41 [58 S.Ct. 459, 82 L.Ed. 638]
  (1938). . . . That Congress has not expressly
  provided that the statutory procedure is to be
  exclusive does not require a different result where
  it has rejected provision for district court review
  and instead enacted a specific statutory scheme for
  obtaining judicial review. Whitney Bank v. New
  Orleans, supra, 379 U.S. at 422 [85 S.Ct. at 558].
  Exhaustion of the statutorily prescribed procedure
  is a prerequisite to judicial review. Id.,
  Montgomery v. Rumsfeld, 572 F.2d 250 (9th Cir.
  1978).

Adopting that argument, the Court in National Federation stated (493 F. Supp. at 678):

  If the statutory procedures are designed to
  permit agency expertise to be applied to
  particular problems, and if district court
  jurisdiction would decrease the effectiveness of
  the statutory design, then such statutory
  procedures should be considered exclusive.
  Whitney National Bank v. Bank of New Orleans &
  Trust Co., 379 U.S. 411, 420-21 [85 S.Ct. 551,
  557-58, 13 L.Ed.2d 386] (1965); Myers v. Bethlehem
  Shipbuilding Corp., 303 U.S. 41 [58 S.Ct. 459, 82
  L.Ed. 638] (1938). Congress need not expressly
  label the statutory procedures as exclusive.
  Whitney National Bank, supra, 379 U.S. at 422 [85
  S.Ct. at 558].

After reviewing the statutory purposes of Title VII (particularly 5 U.S.C. § 7101 and 7105(a)(1), quoted earlier in this opinion), the Court continued (493 F. Supp. at 679):

  In view of the comprehensive scope of the FLRA's
  duty and authority over labor-management
  relations in the federal government, it would be
  inconsistent for the district court to assume
  jurisdiction over subject matter entrusted to the
  expertise of the agency.

This conclusion in turn underscores the parallel to the NLRA and decisions under it. As the Supreme Court stated in Amalgamated Clothing Workers of America, et al. v. Richman Bros. Co., 348 U.S. 511, 516-17, 75 S.Ct. 452, 455-56, 99 L.Ed. 600 (1955), employing language that readily paraphrases to Title VII and FLRA (emphasis added to the same language the Department of Justice underscored in its National Federation brief):

  Congress has provided an administrative agency to
  pass on claims that rights granted by the Act are
  denied or that

  restrictions imposed by the Act are disregarded.
  Only after the Board has found such claims to be
  well-founded and has formulated remedies for
  their vindication does the jurisdiction for
  review by the Court of Appeals come into being.
  However, injunctive relief or a temporary
  restraining order may be obtained by the Board
  from the appropriate District Court, pending
  final adjudication by the Board, "upon issuance
  of a complaint" by the Board or when there is
  "reasonable cause to believe" in the truth of a
  charge that a party "has engaged in an unfair
  labor practice within the meaning of paragraph
  (4)(A), (B), or (C) of Section 8(b)."
  Congress explicitly gave such jurisdiction to the
  district courts only on behalf of the Board on a
  petition by it or "the officer or regional attorney
  to whom the matter may be referred." § 10(j), (1),
  61 Stat. 149, 29 U.S.C. § 160(j), (1). To hold that
  the Taft-Hartley Act also authorizes a private
  litigant to secure interim relief would be to
  ignore the closely circumscribed jurisdiction given
  to the District Court and to generalize where
  Congress has chosen to specify. To find exclusive
  authority for relief vested in the Board and not in
  private parties accords with other aspects of the
  Act. See Amalgamated Utility Workers v.
  Consolidated Edison Co., 309 U.S. 261 [60 S.Ct.
  561, 84 L.Ed. 738). Such was the authority
  recognized in Capital Service, Inc. v. Labor Board,
  347 U.S. 501 [74 S.Ct. 699, 98 L.Ed. 887]. Id.

All that remains, then, is to consider the possible impact of 5 U.S.C. § 7311 and 18 U.S.C. § 2 and 1918.

Effect of Other Statutes On FLRA Exclusivity

Congress has also dealt specifically with the right — or more accurately the lack of right — of federal employees to strike against the government. Although the United States in its brief characterizes the statute as a "prohibition against strikes in the public sector," 5 U.S.C. § 7311 does not literally speak in those terms, but rather in terms of one of the conditions of public employment:

  An individual may not accept or hold a position
  in the Government of the United States or the
  government of the District of Columbia if he
  —

    (3) participates in a strike, or asserts the
    right to strike, against the Government of the
    United States or the government of the District
    of Columbia; or

    (4) is a member of an organization of employees
    of the Government of the United States or of
    individuals employed by the government of the
    District of Columbia that he knows asserts the
    right to strike against the Government of the
    United States or the government of the District
    of Columbia.

Section 7311 must however be considered in conjunction with 18 U.S.C. § 1918, which makes an individual's violation of its provisions a crime, and 18 U.S.C. § 2(a), which subjects anyone aiding and abetting commission of a federal crime to punishment as a criminal principal. Thus the specific statutory consequence of an individual employee's strike participation is his or her potential termination of employment under Section 7311 and potential prosecution under 18 U.S.C. § 1918. As for a labor organization, in statutory terms its exposure is to potential prosecution under 18 U.S.C. § 2(a).

On three occasions before enactment of Title VII, District Courts have exercised their jurisdiction under 28 U.S.C. § 1345*fn6 to enjoin strikes by federal sector employees and labor unions (one of those cases granting such relief against PATCO itself). Air Transport Ass'n v. PATCO, 313 F. Supp. 181 (E.D.N.Y. 1970), aff'd in part and rev'd in part on other grounds sub nom., United States v. PATCO, 438 F.2d 79 (2d Cir. 1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1373, 28 L.Ed.2d 661 (1971); United States v. Branch 60, National Ass'n of Letter Carriers, 312 F. Supp. 619, 621 (D.Conn. 1970); TVA v. Local 110, Sheet Metal Workers' International Ass'n, 233 F. Supp. 997, 1000 (W.D.Ky. 1962). In each instance the Court predicated relief on 5 U.S.C. § 7311 and the criminal provisions of 18 U.S.C.*fn7

  Against that total background, we return to the legislative
history under Title VII to examine its references to 5 U.S.C. § 7311.
When proposed Title VII (having been introduced in both
Houses of Congress in May 1978) was reported out of the
respective Senate and House committees, it included a provision
making it an unfair labor practice for a labor organization to
call, condone or engage in a strike. On the House floor,
Representative Erlenborn sought to strike Title VII from the
proposed Civil Service Reform Act because of his concern that
federal employee strikes would become only unfair labor
practices rather than remaining illegal as they were under
existing law (124 Cong.Rec.H. 9454 (daily ed. Sept. 11, 1978)):

   . . Under the current law and the Executive
  Order a strike by federal employees is illegal.
  The provision here in Title VII instead makes it
  merely an unfair labor practice.

  What I was pointing out is that at the present
  time it is illegal, not just an unfair labor
  practice, an illegal strike by Federal employees,
  supported by their union will lead to the union
  no longer being allowed to be the exclusive
  bargaining agent. Now that will be changed, in
  substance, by this Title VII.

In response, co-sponsor and floor manager Representative William Ford stated that the existing invalidity of federal employee strikes (id. at 9455):

  is not affected by this law at all, or by this
  bill, rather, so the act of striking will
  continue to be a violation of Federal law. The
  difference is that this bill for the first time
  will add on top of that a specific procedure
  available to the Government to go after a labor
  organization which advocates strike activity by
  making that an unfair labor practice reachable in
  the same way that any other unfair labor practice
  committed by the union or its representatives is
  reached by the statute, so that, in fact, we did
  not affect the existing law on strikes. We add a
  remedy for the Government in the case of someone
  advocating an illegal strike,. . . .

That statement led to the following colloquy (id.):

  Mr. Erlenborn. Mr. Chairman, let me understand
  this. Is the gentleman suggesting that this bill,
  being a later enactment, would not be considered
  to be a repeal of the current law, and is it the
  gentleman's understanding that besides being an
  unfair labor practice, an illegal strike will
  also lead to a decertification of the union or to
  the union's no longer being able to act as the
  exclusive bargaining agent of the employees?

  Mr. Ford of Michigan. If the gentleman will yield
  further, Mr. Chairman, title 18 of the United
  States Code 1918 provides criminal penalties
  against strikes in violation of 5 United States
  Code. Five United States Code prohibits the
  strike. Title 18 makes participating in the
  illegal strike a crime.

  Neither of those titles is affected by any of the
  provisions in this act.

Immediately thereafter the House rejected the Erlenborn amendment. During the next few days Title VII was amended to, in the words of the amendment's sponsor Representative Rudd, "re-state in clear and unequivocal language that strikes against the Federal government are illegal and punishable" (id. at 9640).

Accordingly there is no doubt whatever that 5 U.S.C. § 7311 and 18 U.S.C. § 1918 and § 2(a) were left totally intact by the enactment of Title VII. It is absolutely clear that a federal employee who strikes still forfeits his or her right to employment under Section 7311 and may be prosecuted under 18 U.S.C. § 1918. It is equally clear that a labor union that participates in such a strike may still be prosecuted as well under 18 U.S.C. § 2(a). In that important sense the strike is truly illegal: It is a criminal offense.

But this Court is not being asked to determine criminal responsibility. It is rather being asked to enjoin the conduct of a labor union that is an alleged unfair labor practice. And there is a major difference between the undoubted intention of Congress to preserve the statutory provisions making strikes by federal employees illegal and the claimed intention of Congress, advanced by the United States here, to preserve the case law enjoining unions from participating in federal employee strikes.

None of the legislative history adduced by the United States deals with the latter contention in specific terms. On the contrary, Representative Ford's response that led to the rejection of Representative Erlenborn's amendment was specifically framed in terms of the criminal penalties and that "participating in the illegal strike [was] a crime." Representative Rudd supported his amendment, accepted by the bill's sponsors, on the ground that "strikes against the Federal government are illegal and punishable."

Stripped of rhetoric, the position of the United States is that Title VII ousts federal courts of jurisdiction over all unfair labor practices*fn8 except federal employee strikes. There is nothing in the statute that specifies such a distinction. Indeed, the present case exemplifies the very reason that Congress created the FLRA administrative structure to apply specialized knowledge in the labor relations area. PATCO has asserted in its Second Amended Counterclaim that the claimed "slowdown," challenged as a "strike" in the Complaint, is really an adherence by the air traffic controllers to safety procedures that FAA has established*fn9 but has then allegedly caused the controllers to disregard or violate. Resolution of those competing contentions of the parties, and thereby determining whether or not an unfair labor practice exists, is an issue that especially lends itself to be, as National Federation put it (493 F. Supp. 675 (N.D.Cal. 1980)), "entrusted to the expertise of the agency."

Conclusion

This Court finds eminently persuasive the arguments made by the Department of Justice, and approved by the Courts, in National Federation and Clark v. Mark. It is not persuaded by the Department of Justice's efforts to distinguish those arguments by singling out one and only one kind of claimed unfair labor practice as surviving Title VII and remaining within the jurisdiction of the District Courts for injunctive relief. Title VII is an Act of Congress that "otherwise provide[s]," and this action is dismissed for want of jurisdiction over the subject matter under 28 U.S.C. § 1345.

In view of this ruling, the parties are directed to appear in court for a status report December 29, 1980 at 9:15 a.m. to discuss the status of PATCO's counterclaim, other pending motions, the previously scheduled January 19, 1981 hearing date and other pending aspects of this litigation.*fn10


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