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December 15, 1980


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


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.


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

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 ...

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