text:
    SHEPARD CONVENTION SERVICES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Alliance of Theatrical Stage Employees, AFL-CIO, Intervenor.
    No. 95-1369.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 2, 1996.
    Decided June 11, 1996.
    J. Roy Weathersby, Atlanta, GA, argued the cause for the petitioner. Cameron S. Pierce was on brief.
    William M. Bernstein, Attorney, National Labor Relations Board, Washington, DC, argued the cause for the respondent. Linda R. Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, were on brief.
    Robert S. Giolito, Atlanta, GA, entered an appearance for the intervenor.
    Before: WALD, GINSBURG and HENDERSON, Circuit Judges.
   Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Shepard Convention Servs., Inc. (Shepard) petitions for review of a decision of the National Labor Relations Board (Board) finding that Shepard committed an unfair labor practice by failing to bargain with the newly certified International Alliance of Theatrical Stage Employees (Union). The Board cross-applies for enforcement of its order. Shepard alleges several defects in the election and certification process. Because the Board improperly reversed the Regional Director’s decision to conduct a manual election, we grant the petition for review and deny the cross-application for enforcement.

I.

Shepard is a Georgia corporation that installs, maintains and dismantles trade show and convention displays. On October 8,1991 the Union, an AFL-CIO affiliate, filed with the Board’s Region 10 office a petition seeking to represent a unit consisting of all of Shepard’s “regular full-time and regular part-time” employees, who were then represented by the Brotherhood of Trade-Show and Display Workers Union, Local 349 (Local 349), another AFL-CIO affiliate, under a collective bargaining agreement set to expire on December 31, 1991. Local 349 intervened, alleging the petition violated the AFL-CIO’s “anti-raiding” prohibitions. Accordingly, on December 11,1991, the Regional Director “suspended for 30 days” “[further action” on the Union’s representation petition. Deferred Appendix (DA) 3.

Shepard and Local 349 subsequently negotiated a new collective bargaining agreement on May 18, 1992. On January 8, 1993, the Union and Local 349’s parent union entered into a “Memorandum of Understanding” under which they agreed that the Union would not seek to represent “regular” employees of any Atlanta exhibition employer with which the parent union had a collective bargaining agreement in effect but that the Union could seek to represent “non-regular” employees, that is those employed “from time to time on a call or job basis.” DA 234.

By letter dated February 10, 1993, the Union requested the Regional Director to “resume processing of its petition,” asserting that the “competing claims of interest” between it and Local 349 had “been resolved by agreement between the two unions.” DA 8. On March 1, 1993, the Regional Director issued a “Notice of Representation Hearing.” Local 349 again intervened and Shepard filed a “Motion to Cancel Hearing and Dismiss Petition” on the ground that the Union’s representation petition had lapsed at the end of the thirty-day suspension. On April 22, 1993, the Regional Director ruled that the Union’s petition, which was timely when first filed on October 8,1991, remained valid after the thirty-day suspension and that its processing could be reactivated at any time thereafter, notwithstanding the new collective bargaining agreement negotiated in the interim. Accordingly, he directed that a union representation election be held.

By letter dated April 11, 1994 the Union asked the Regional Director to conduct the election by mail because of the “large number of eligible voters that will be on-call workers.” DA 107. On April 13, 1994, the Regional Director rejected the Union’s “suggestion.” The Union then filed a “special request” for review by the Board, which both Shepard and Local 349 opposed. Meanwhile, in a letter dated April 19, 1994, Shepard requested the Regional Director to order a new “showing of interest” because of the length of time since the last showing and because of the increase in the unit’s size since the petition was filed. The Regional Director denied the request on May 2, 1994.

In a decision dated August 3, 1994 the Board summarily denied Shepard’s request for a new showing of interest “as lacking in merit,” Shepard Convention Servs., Inc., 314 N.L.R.B. 689, 690 n. 3, 1994 WL 410857 (1994), and, by a 2-1 vote, “decided to grant the Petitioner’s request for a mail ballot election for the ‘on-call’ employees,” finding that “[u]nder the facts ... the Regional Director abused his discretion by denying the Petitioner’s request for a mail ballot for the ‘on-call’ employees,” id. at 689-90.

On September 12, 1994, the Regional Director ordered an election to be conducted with mail voting by all eligible employees. On September 16, 1994, Shepard requested review from the Board on the ground that the Board’s August 3, 1994 decision had authorized mail voting only for on-call employees and that it therefore “must be read as denying [the Union’s] request that other employees be permitted to vote by mail ballot.” DA 175. The Board summarily denied the request on September 23,1994.

An election was conducted entirely by mail over a two-week period in late September and early October 1994. Of the 438 eligible employees, a maximum of 77, or roughly 17.5%, cast valid ballots, including nine that were challenged. Of the 68 unchallenged ballots 40 were cast for the Union, 23 for Local 349 and 5 for no union at all.

On October 24, 1994, Shepard filed objections to the election, challenging the balloting by mail, the Board’s refusal to require a new showing of interest and the reactivation of the original representation petition. By decision issued November 10, 1994, the Regional Director dismissed the objections and certified the Union. The Board denied review of that decision in an order dated December 15, 1994. Shepard subsequently refused to bargain with the Union and on May 31,1995, the Board issued an order holding that Shepard’s refusal was an unfair labor practice in violation of section 8(a)(5) and (1) of the National Labor Relations Act. Shepard Convention Servs., Inc., 317 N.L.R.B. No. 111, 1995 WL 348139 (1995). Shepherd now petitions for review of the Board’s decision.

II.

Shepard raises four objections to the Union certification, alleging that the Board erred in (1) ordering that the voting be conducted by mail, (2) upholding reactivation of the Union’s representation petition after Shepard and Local 349 entered into a new collective bargaining agreement, (3) refusing to require a new showing of interest before the election and (4) certifying the Union after it was approved by only 9% of the eligible voters. Because we conclude the Board improperly reviewed and reversed the Regional Director’s initial decision to conduct a manual election, we grant the petition on the first ground without addressing the other three.

The Board’s “Casehandling Manual” (Manual) provides that “[t]he Regional Director should decide whether, or to what extent, mail voting should be employed,” noting that “[p]articularly where long distances are involved, or where eligible voters are scattered because of their duties, the possibility should be explored.” Manual § 11336. The Manual also cautions that “[b]ecause of the absence of direct Board supervision of voting procedures ... mail ballots are more likely to result in objections that cannot be as readily resolved as when the voting procedures are carried out in the presence of a Board agent.” Id. “For this and other reasons, the use of mail balloting, at least in situations where any party is not agreeable to the use of mail ballots, should be limited to those circumstances that clearly indicate the infeasibility of a manual election.” Id. Here both Shepard and Local 349 objected to the mail-in election proposal and the Regional Director, in the absence of any evidence indicating “infeasibility” of a manual election, properly denied the Union’s request for an election by mail. That should have been the end of it. The Board, however, undertook to second-guess the Regional Director in violation of its own regulations.

The Board’s regulations strictly limit its interlocutory review of a regional director’s decisions: “Unless expressly authorized by the Rules and Regulations, rulings by the regional director or by the hearing officer shall not be appealed directly to the Board, but shall be considered by the Board on appropriate appeal pursuant to § 102.67(b), (c), and (d) or whenever the case is transferred to it for decision.” Under the cited subsections, “The Board will grant a request for review only where compelling reasons exist therefor,” 29 C.F.R. § 102.67(c), which the regulations narrowly define to include only the following:

(1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, officially reported Board precedent.
(2) That the regional director’s decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party.
(3) That the conduct of thes hearing or any ruling made in connection with the proceeding has resulted in prejudicial error.
(4) That there are compelling reasons for reconsideration of an important Board rule or policy.

Id. Neither the Union’s “special request” for review of the decision to hold a manual election nor the Board’s order granting it identified any of these “compelling” grounds — apparently because none was present.

The Regional Director’s decision to conduct a manual election was in accord with the Board’s established policy favoring manual elections under such circumstances. See Manual § 11336. In fact, the Regional Director’s explanation for denying the Union’s request for a mail election virtually tracks the Manual’s language:

Mail ballot elections are generally conducted where long distances are involved or where eligible voters are scattered because of their duties. Neither situation is present herein. Moreover, because of the absence of direct Board supervision of voting procedures, mail ballots are more likely to result in objections that cannot be as readily resolved as when the voting procedures are carried out in the presence of a Board agent.

DA 108. Given that the Regional Director ruled strictly by the book, we do not see how his conduct could have “resulted in prejudicial error.” Nor did the Board’s decision purport to address or revisit any policy, rule or precedent. Its decision relied expressly on the particular “facts” of the certification procedure. Finally, those facts do not support a finding that the Regional Director’s factual determination was “clearly erroneous.”

As originally proposed, the manual election was to be conducted over a two-and-one-half-hour period during lunchtime at two locations, Shepard’s “Training Room” and the “Georgia World Congress Center.” According to Shepard’s opposition to the Union’s request for review of the Regional Director’s decision, these sites are “at opposite ends of the City of Atlanta” and “Making into account the geographical scope of the City of Atlanta, it is unlikely that any voter will be required to travel more than twenty or thirty minutes to reach a voting poll.” DA 117. These factual assertions, which the Union has never disputed, suggest that manual voting would be anything but “infeasible,” while the Board’s speculation that “a number of the employees may have other employment which may restrict their ability to reach the polls,” 314 N.L.R.B. 689, is, as the dissenting member noted, without evidentiary support, see id. at 690.

In sum, the Board’s reversal of the Regional Director’s discretionary decision to conduct a manual election cannot be upheld. Had the Board left the decision intact, as its regulations required, voter turnout might well have been higher. See Kwik Care Ltd. v. N.L.R.B., 82 F.3d 1122, 1126 (1996) (“[P]ostal elections generally inspire lower participation than on-site elections.”). It could hardly have been lower.

For the preceding reasons the petition for review is granted and the cross-application for enforcement is denied.

So ordered.

      . The AFL-CIO’s anti-raiding provisions, set out in Article XX of its constitution, “preclude member labor organizations from raiding a rival member’s work jurisdiction.” DA 64. When a raiding dispute arises between AFL-CIO members, the Board ordinarily suspends action for 30 days to permit internal AFL-CIO resolution. See N.L.R.B. Casehandling Manual §§ 1150-1152.1.

      . At the time of the Union’s request, it could not have filed a new representation petition because of the Board’s "contract bar” rules. See Donald Schriver, Inc. v. N.L.R.B., 635 F.2d 859, 867 n. 10 (D.C.Cir.1980) ("Under normal 'contract-bar' rules, an election petition for representative status may not be filed during the term of a collective bargaining agreement that has a duration of up to three years, or during the first three years of an agreement of longer duration, except during an open period 60-90 days prior to the expiration date of the contract.”) (citing General Cable Corp., 139 N.L.R.B. 1123 (1962)).

      . The October 8, 1991 petition to represent only "regular” employees estimated the number of employees in the unit at 250. As of April 1994 the proposed unit, which then included non-regular (on-call and casual employees), consisted of 424 members.

      . In addition, 9 other ballots were found "void.

      . "Refusing to bargain and thereby engendering an unfair labor practice complaint is the standard route to challenge a certification order, which is not subject to direct review.” B B & L, Inc. v. N.L.R.B., 52 F.3d 366, 369 n. 2 (D.C.Cir.1995).

      . In its letter requesting a mail ballot election, the Union simply noted its “understanding there will be a large number of eligible voters that will be on-call workers” and stated: "Therefore, mail ballot would be the most appropriate election to hold under these circumstances.” DA 107.

      . While the Manual "provides guidance only and is not a form of authority binding on the General Counsel or the Board,” Starlite Cutting, Inc., 280 N.L.R.B. 1071, 1071 n. 3, 1986 WL 54009 (1986), its provisions a fortiori reflect the Board’s policies. Thus, the Regional Director’s decision to follow them cannot have been, as the Board characterized it, an abuse of discretion.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    GILDA MARX, INCORPORATED; Body Design by Gilda, Inc.; Body Design by Gilda Studios, Inc., Appellants/Cross-Appellees, v. WILDWOOD EXERCISE, INC., et al., Appellees/Cross-Appellants.
    Nos. 88-7237, 95-7267 and 95-7269.
    United States Court of Appeals, District of Columbia Circuit.
    June 11, 1996.

      Herbert Cohen, Washington, DC, Wigman, Cohen, Leitner & Myers, for appellants.
    Burton A. Schwalb, Washington, DC, Schwalb, Donnenfeld, Bray & Silbert, for appellees.
    Before WALD, WILLIAMS, and ROGERS, Circuit Judges.
   Opinion for the Court filed PER CURIAM.

On Motions to Consolidate and to Dismiss

PER CURIAM:

The district court entered judgment for the defendants and ruled that they were entitled to reimbursement of attorney’s fees they expended in defending against some, but not all, of plaintiffs’ claims. The district court has not yet fixed the amount of the fee award. The plaintiffs appealed from the adverse judgment and from the finding of liability for attorney’s fees, while the defendants cross-appealed from the limitation placed on the fee award. Both parties now move to consolidate the appeal and the cross-appeal. Because the district court’s attorney’s fee order is not final insofar as the amount of the award has not been determined, we decline to exercise pendent jurisdiction over the appeal and cross-appeal from that portion of the order.

I.

The parties to this ten-year-old dispute are Body Design by Gilda, Inc. (“Gilda Marx”) and Wildwood Exercise, Inc. (“Wildwood”), two organizations formerly operating exercise studios in the Washington, D.C. area. Gilda Marx sued Wildwood for trademark infringement, unfair competition, deceptive trade practices, violations of employment contracts, and violations of the Racketeer Influenced and Corrupt Organizations (“RICO”) provisions of the Organized Crime Control Act of 1970, 18 U.S.C. §§ 1961-1968 (1982). The district court entered judgment for Wildwood in 1988. Gilda Marx, Inc. v. Wildwood Exercise, Inc., No. 86-1171 (D.D.C. filed Aug. 26, 1988) (mem.). Gilda Marx filed Appeal No. 88-7237 from that judgment.

Shortly thereafter, Gilda Marx filed a motion to amend the judgment pursuant to Federal Rule of Civil Procedure 52(b), and Wildwood filed a motion for attorney’s fees pursuant to Federal Rule of Civil Procedure 59(e). This court held the appeal in abeyance pending the district court’s disposition of the post-judgment motions. Gilda Marx, Inc. v. Wildwood Exercise, Inc., No. 88-7237 (D.C.Cir. filed Dec. 20, 1988) (order). On September 29, 1995, the district court denied Gilda Marx’s Rule 52(b) motion and granted, in part, Wildwood’s motion for attorney’s fees “as to attorney time expended in defending against the RICO claims.” Gilda Marx, Inc. v. Wildwood Exercise, Inc., No. 86-1171 (D.D.C. filed Sept. 29, 1995). As permitted by Local Rule 215(b), the court deferred determining the amount of attorney’s fees “pending the outcome of the appeal on the RICO claims.”

Gilda Marx noted an appeal from the September 29, 1995, order, No. 95-7267, and repeated its request for review of the original 1988 judgment. In its statement of issues on appeal in No. 95-7267, Gilda Marx also disclosed its intention to challenge the 1995 finding that it was liable for attorney’s fees. Wildwood filed a cross-appeal from the district court’s limitation of the recovery of attorney’s fees to those expended on the RICO claims. Appeal No. 95-7269. Pending now before this court are two motions concerning these three appeals: Gilda Marx’s motion to consolidate the appeals and hold the consolidated appeal in abeyance until the district court determines the amount of attorney’s fees, and Wildwood’s motion to dismiss Gilda Marx’s 1988 appeal and consolidate the 1995 appeal of Gilda Marx with Wildwood’s cross-appeal. Although both parties favor consolidation, Wildwood opposes Gilda Marx’s request to hold the consolidated appeal in abeyance.

II.

When certain post-judgment motions are pending in the district court, including motions to amend the judgment pursuant to Rule 52(b), “the time for appeal [of the judgment] for all parties runs from the entry of the order disposing of the last such motion outstanding.” Fed.R.App.P. 4(a)(4). Therefore, Gilda Marx’s notice of appeal filed on October 12, 1995, is a timely appeal from the district court’s 1988 judgment, as well as from the September 29, 1995, denial of the Rule 52(b) motion. Moreover, Gilda Marx’s 1995 appeal, No. 95-7267, subsumes the 1988 appeal, No. 88-7237. Consequently, we grant Wildwood’s motion in part by dismissing No. 88-7237.

Before deciding whether to consolidate the two remaining appeals, we first consider whether we have jurisdiction over either of them. This court generally has statutoiy jurisdiction of appeals from “final decisions” of the district court. 28 U.S.C. § 1291 (1994). The 1988 judgment and 1995 denial of Gilda Marx’s Rule 52(b) motion constitute an appealable “final decision” on the merits, even though Wildwood’s fee motion is still outstanding in the district court. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988). We thus have jurisdiction over No. 95-7267, at least insofar as it challenges the 1988 judgment and the 1995 Rule 52(b) denial.

Jurisdiction over Wildwood’s cross-appeal is less clear. Although the district court found Gilda Marx liable for attorney’s fees, the amount of the award has not been established. In keeping with the principle that a finding of liability is not final until the court has specified the relief to be awarded, Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976), every circuit to address the question has held that an order finding liability for attorney’s fees is not final until the amount has been determined. Century 21 Real Estate Corp. v. Century 21 Real Estate, Inc., 929 F.2d 827, 830 (1st Cir.1991); Echols v. Parker, 909 F.2d 795, 798 (5th Cir.1990); Phelps v. Washburn Univ. of Topeka, 807 F.2d 153, 154 (10th Cir.1986) (per curiam); Becton Dickinson & Co. v. District 65, United Auto., Aerospace and Agric. Implement Workers of Amer., 799 F.2d 57, 61 (3d Cir.1986); Morgan v. Union Metal Mfg., 757 F.2d 792, 795 (6th Cir.1985); see also Crowley v. Shultz, 704 F.2d 1269, 1272 (D.C.Cir.1983). We would therefore dismiss No. 95-7269 for lack of jurisdiction if it were the only appeal before us.

The question, then, is whether to assume jurisdiction over Wildwood’s cross-appeal (No. 95-7269) by consolidating it with Gilda Marx’s 1995 appeal (No. 95-7267), over which, at least in part, our jurisdiction is unquestionable. Our sister circuits are split on the question whether we even have the power to do so. Three circuits have held or suggested that an otherwise unappealable fee liability order can be appended to the appeal of a final judgment on the merits. Andrews v. Employees’ Retirement Plan of First Ala. Bancshares, Inc., 938 F.2d 1245, 1247-48 (11th Cir.1991); Bittner v. Sadoff & Rudoy Ind., 728 F.2d 820, 826-27 (7th Cir.1984); Morgan, 757 F.2d at 795-96 (6th Cir.) (dicta). On the other side, two circuits have flatly rejected that position, Southern Travel Club v. Carnival Air Lines, Inc., 986 F.2d 125, 131 (5th Cir.1993); Phelps, 807 F.2d at 155 (10th Cir.), and another has at least expressed skepticism toward it. Becton Dickinson, 799 F.2d at 61-62 (3d Cir.); but see Pennsylvania v. Flaherty, 983 F.2d 1267, 1276-77 (3d Cir.1993). The question is undecided in this circuit.

A circuit court exercises pendent jurisdiction when, in the course of reviewing an order from which an appeal is within its jurisdiction, it hears an appeal from another order that, while part of the same case or controversy, would not otherwise be within its statutory jurisdiction. Cf. United Mine Workers of Amer. v. Gibbs, 383 U.S. 715, 721-29, 86 S.Ct. 1130, 1136-41, 16 L.Ed.2d 218 (1966). All of the above-cited authorities on both sides of the question presented here predate Swint v. Chambers County Comm’n, — U.S. -, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), in which the Supreme Court took a relatively restrictive position on the circuit courts’ power to exercise pendent appellate jurisdiction. Nonetheless, Swint left open the questions “whether or when it may be proper for a court of appeals with jurisdiction over one ruling to review, conjunctively, related rulings that are not themselves appeal-able.” Id. at -, 115 S.Ct. at 1212. The Court has on a number of occasions approved the exercise of pendent appellate jurisdiction. E.g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 755-57, 106 S.Ct. 2169, 2175-77, 90 L.Ed.2d 779 (1986), overruled in part on other grounds, Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833, 882, 112 S.Ct. 2791, 2823, 120 L.Ed.2d 674 (1992) (plurality); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172, 94 S.Ct. 2140, 2150, 40 L.Ed.2d 732 (1974); Deckert v. Independence Shares Corp., 311 U.S. 282, 286-87, 61 S.Ct. 229, 232-33, 85 L.Ed. 189 (1940). Moreover, while it is not clear from the opinion in Swint which, if any, of these facts were dispositive, that case involved a number of factors militating against pendent appellate jurisdiction that are not present here: the pendent appeal involved a separate cause of action from the one giving rise to the appealable order, rather than an ancillary matter; the appeal-able order was itself interlocutory, suggesting a greater threat to orderly procedure when the appeals court broadly intervened before the district court had an opportunity to render a final judgment on any of the claims in the case; and the court of appeals complicated the appeal by bringing in “pendent parties,” i.e., parties who were not involved in the appealable order but were parties to the pendent order.

Review of the attorney’s fees order is certainly within our Article III power. See Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138; Chicago, Rock Isl. & Pac. R.R. Co. v. Stude, 346 U.S. 574, 578, 74 S.Ct. 290, 293-94, 98 L.Ed. 317 (1954) (holding circuit court reviewing the dismissal of one suit had jurisdiction to review denial of a remand motion in a separate suit arising from same set of events). Also, unlike the extra-statutory exercise of pendent original jurisdiction approved in Gibbs, pendent appellate jurisdiction in a case such as this does not bring into our court any claim that could not otherwise be here; it merely affects the timing of an appeal that one or more parties will ultimately be able to bring here as of right. While we do not eagerly reach out to decide whatever issues the parties wish to present, cases like Gibbs and Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), indicate that we should give the jurisdictional statutes a “practical construction.” Swint, — U.S. at - - -, 115 S.Ct. at 1203-04 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., — U.S. -, -, 114 S.Ct. 1992, 1995, 128 L.Ed.2d 842 (1994)). Our own recent jurisdictional decisions suggest restraint tempered by a recognition of the need for sensible allocation of judicial resources. Compare McKesson Corp. v. Islamic Rep. of Iran, 52 F.3d 346, 353 (D.C.Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996), with Shell Oil Co. v. Federal Energy Reg. Comm’n, 47 F.3d 1186, 1194-96 (D.C.Cir.1995). We therefore decline to create a blanket rule absolutely barring pendent appellate jurisdiction over non-final attorney’s fee liability orders. But, as a general matter, we anticipate that cases in which we review such orders will be rare exceptions.

This court exercises pendent appellate jurisdiction sparingly. See Consarc Corp. v. Iraqi Ministry, 27 F.3d 695, 700 (D.C.Cir.1994); 16 Charles Alan Wright et al., Federal Practice and Procedure § 3937 nn. 5, 6.5 (1992 & Supp.1995). As the Supreme Court pointed out in Swint, — U.S. at - - -, 115 S.Ct. at 1209-11, a more expansive approach would undermine the statutory scheme, which gives rulemaking authority over general classes of interlocutory appeals to the Supreme Court and case-by-case discretion over such appeals to the district courts in the first instance. 28 U.S.C. § 1292(b), (e) (1994). Deferring to the choices made by the district court in managing its docket, we entertain pendent appeals only when substantial considerations of fairness or efficiency demand it. Such considerations may be presented, for example, when the nonappealable order is “inextricably intertwined” with the appeal-able order, or when review of the former is “necessary to ensure meaningful review of the latter.” Swint, — U.S. at -, 115 S.Ct. at 1212; see also Brennan v. Township of Northville, 78 F.3d 1152, 1157-58 (6th Cir.1996); Dolihite v. Maughon, 74 F.3d 1027, 1034-35 n. 3 (11th Cir.1996); Blue v. Koren, 72 F.3d 1075, 1084 n. 6 (2d Cir.1995). The appeals may be so closely related, or turn on such similar issues, that a single appeal should dispose of both simultaneously. See Eisen, 417 U.S. at 172-73, 94 S.Ct. at 2150; Shell Oil, 47 F.3d at 1194-96; Consarc, 27 F.3d at 700. In some cases, pendent review will likely terminate the entire case, sparing both this court and the district court from further proceedings and giving the parties a speedy resolution. See Thornburgh, 476 U.S. at 757, 106 S.Ct. at 2177; Deckert, 311 U.S. at 287, 61 S.Ct. at 232-33. By choosing to entertain a pendent appeal, we may sometimes be able to forestall a second appeal, thus streamlining the judicial process.

On the other hand, there are a number of circumstances that generally weigh against the exercise of pendent appellate jurisdiction. We do not consider pendent appeals that challenge orders from which the time for appeal has already passed. Consarc, 27 F.3d at 700. Likewise, pendent appellate jurisdiction may be declined if the appealing party has, intentionally or not, circumvented the district court’s authority to decide whether to endorse an interlocutory appeal under 28 U.S.C. § 1292(b) or Federal Rule of Civil Procedure 54(b). We also must be careful not to accept pendent appeals prematurely, without the benefit of an adequate record or before the district court has an opportunity to render a considered decision on the subject. See Swint, — U.S. at - n. 5, 115 S.Ct. at 1210 n. 5; Gross v. Winter, 876 F.2d 165, 168 & n. 4 (D.C.Cir.1989). Not only judicial economy but the prohibition on advisory opinions counsel against reaching an issue that might be mooted or altered by subsequent district court proceedings. See Dellums v. Powell, 660 F.2d 802, 804 n. 6 (D.C.Cir.1981); Fort v. Roadway Expr., Inc., 746 F.2d 744, 748 (11th Cir.1984). Finally, the Supreme Court has repeatedly warned against “pendent” appeals that substantially predominate over the independently appeal-able order; parties should not be encouraged to bring insignificant, but final, matters before this court as mere vehicles for pendent review of numerous or complex orders that are not independently appealable. Abney v. United States, 431 U.S. 651, 663, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977); see also Johnson v. Jones, — U.S. -, -, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995).

With these considerations in mind, we decline to assume jurisdiction over the order imposing liability on Gilda Marx for attorney’s fees. The attorney’s fees issue is not so inextricably intertwined with the judgment on the merits; nor must the former be reviewed in order to review the latter fully. Early review of attorney’s fees liability is not likely to terminate the case or obviate further proceedings either here or in the district court. Indeed, because, as the district court’s order suggests, our ruling on the merits may cause the district court to revisit Gilda Marx’s liability for attorney’s fees, any decision we reached as to attorney’s fees would be somewhat speculative. Reviewing the attorney’s fees issues now would not save the district court any work, irrespective of how we ultimately rule on the merits, because the district court has exercised its discretion under the local rules to defer further proceedings until after the appeal is decided. We can only guess whether exercising or declining pendent jurisdiction would make more efficient use of this court’s resources. Compare Bittner, 728 F.2d at 827, with Flaherty, 983 F.2d at 1277, and Becton Dickinson, 799 F.2d at 61. Without a reason to believe that the interests of judicial economy and fairness to the parties would be served, we have no occasion to take the “disfavored” step of exercising pendent jurisdiction. Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir.1995). Adherence to the general rule is further warranted by the difficulty of assessing the propriety of the district court’s liability ruling without a determination of the amount of the award. Although the district court appears to have allowed recovery of fees only for Wildwood’s defense of the RICO claim, the court treated all the non-RICO counts as predicate acts of the RICO claim. Mem. at 59. The scope of the fee award is therefore not entirely clear and may explain the district court’s decision to delay a decision on the amount of attorney’s fee liability until this court reviews the merits of the underlying judgment.

Accordingly, we sua sponte dismiss Wild-wood’s cross-appeal, No. 95-7269, and the portion of Gilda Marx’s appeal, No. 95-7267, that challenges Gilda Marx’s liability for attorney’s fees. We also deny Gilda Marx’s request to hold the remaining merits appeal, No. 95-7267, in abeyance. Although the court has discretion to defer review of the merits of this case until the amount of attorney’s fees is established, nothing would be gained here by so delaying since the district court has deferred setting an amount until this court rules on the merits. Moreover, Gilda Marx’s interest in staying the remaining appeal appears to be based on the assumption that the appeal will include review of the determination of liability for attorney’s fees. Hence, our review of the 1988 judgment for Wildwood and the denial of Gilda Marx’s Rule 52(b) motion may proceed in No. 95-7267.

      . Local Rule 215(b) provides: “After a decision has been made that there will be an appeal [on the merits], the Court shaE make a specific determination as to whether, in the interest of justice, the fee issues, in whole or in part, should be considered or be held in abeyance pending the outcome of the appeal.”

        . In Haralson v. Federal Home Loan Bank Bd., 837 F.2d 1123, 1124-25 (D.C.Cir.1988), the court had jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) over the district court’s interlocutory order denying an injunction. The court held that it lacked jurisdiction to review the district court’s separate order refusing to force the defendant conservator to return seized funds that the plaintiffs wished to use to pay their attorneys. Although this section of the opinion was headed “Counsel Fees," it did not address an attorney’s fee award of the sort involved here.

      . The jurisdiction approved in Gibbs has since been largely codified. 28 U.S.C. § 1367 (1994).

      . Some courts read Swint to permit pendent appellate jurisdiction only when the quoted conditions obtain. See Woolfolk v. Smith, 81 F.3d 741, 743 (8th Cir.1996) (per curiam); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 701 (10th Cir.1995). But see Kaluczky v. City of White Plains, 57 F.3d 202, 207 (2d Cir.1995). While we agree that Swint counsels caution in the exercise of pendent appellate jurisdiction, we do not think that it meant to prescribe a definitive or exhaustive list of conditions.

      . Obviously, from the appellate court’s perspective, it would be desirable if the merits appeal and the appeal from the final order on fees could be decided together. Indeed, this appears to be the import of the 1993 amendments to the civil and appellate rules. Fed.R.Civ.P. 54(d)(2), 58; Fed.R.App.P. 4(a)(4)(D); see also 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3915.6 n. 19 (1992); id. at 36-37 (Supp.1995). However, the needs of judicial economy take into account not only the best use of our resources, but those of the district court as well. In some cases, as here, the district court will reasonably conclude that it would be most efficient to permit a merits appeal to go forward immediately. In other instances, the district court may find it more appropriate to expedite fee proceedings or exercise its authority under Local Rule 215 and the Federal Rules of Civil Procedure to delay the merits appeal until a final fee order can be entered. In any event, the wise division of labor between the two courts under the circumstances of each case is committed by statute and rule to the district court in the first instance, which is all the more reason for us to be cautious in exercising pendent jurisdiction. See Swint, - U.S. at -, 115 S.Ct. at 1210.


author: SENTELLE, Circuit Judge: SILBERMAN, Circuit Judge,

text:
    Abdullah E. AL-HARBI, Appellant, v. CITIBANK, N.A. and Citibank, A.S., Appellees.
    No. 95-7192.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 29, 1996.
    Decided June 11, 1996.

      Herman M. Braude, Washington, DC, argued the cause and filed the briefs, for appellant.
    W. Neil Eggleston, Washington, DC, argued the cause, for appellees, with whom Stuart H. Harris was on the brief.
    Before: WALD, SILBERMAN and SENTELLE, Circuit Judges.
   Opinion for the Court filed by Circuit Judge SENTELLE.

Separate concurring opinion filed by Circuit Judge SILBERMAN.

SENTELLE, Circuit Judge:

Abdullah E. Al-Harbi appeals from the District Court’s order denying his prayer to vacate an arbitration award. We hold that the District Court properly applied the narrow standard applicable to review of arbitration awards under the Federal Arbitration Act. We therefore affirm.

I.

Al-Harbi, a citizen of Saudi Arabia, alleges that Citibank, a.s., a wholly-owned subsidiary of appellee Citibank, N.A., organized under the laws of the Czech republic, either defrauded him or breached a fiduciary duty toward him in a transaction in which he paid $5,985,000 U.S. for a fifty percent interest in real estate in the Czech republic, as a result of which he claims to have stood losses of up to $7.5 million U.S. After months of negotiation, the parties entered into nonbinding mediation before Kenneth R. Feinberg in London, England, on October 6-7, 1994. When it became clear that the nonbinding mediation would not be successful, the parties agreed to a binding arbitration. Though Feinberg recommended several possible arbitrators, in the interest of a speedy resolution, the parties agreed to Feinberg himself conducting the arbitration immediately under a “baseball” format, in which the arbitrator hears both sides’ presentations, then chooses one side’s number. They further agreed to a modification of the baseball format to the extent that the arbitrator could add or subtract up to $500,000 to or from the number chosen. Feinberg chose Citibank’s number of $600,000 and added $500,000, for a total award to Al-Harbi of $1,100,000.

Al-Harbi, dissatisfied with the award, brought this action in the District Court to vacate the arbitration award. After receiving all proffered submissions from both parties, the District Court entered its order denying Al-Harbi’s relief. He brought the present appeal.

II.

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 10 (1994), empowers a federal court to vacate an arbitration award only

(1) Where the award was procured by corruption, fraud, or undue means.
(2) Where there was evident partiality or corruption in the arbitrators, or either of them.
(3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

Courts have also recognized a limited nonstatutory ground for vacating an arbitration award where the arbitrator has acted in “manifest disregard of the law.” Kanuth v. Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1178 (D.C.Cir.1991) (citing Wilko v. Swan, 346 U.S. 427, 436, 74 S.Ct. 182, 187, 98 L.Ed. 168 (1953) (dicta)). Although Al-Harbi launched a multi-faceted attack on the arbitration award in District Court, the only proffered grounds for vacatur warranting specific mention here are (1) that the arbitrator exhibited “evident partiality”; and (2) that the arbitrator exhibited “manifest disregard of the law.” He has not shown, either in the District Court or on appeal, any adequate basis for vacatur on either of these grounds.

A.

Appellant’s “evident partiality” argument is based on the fact that Feinberg’s former law firm had represented Citibank on matters unrelated to the mediation or the underlying dispute. Appellant emphasizes that Feinberg did not disclose this representation to the parties to the mediation, but it is undisputed that Feinberg did not have knowledge of the representation at the time of the arbitration. Appellant’s argument therefore depends on the proposition that Feinberg had a duty to make inquiry as to whether or not his former law firm had ever had any connection with any of the parties to the arbitration and thereafter make disclosure of the results. We can find no source for any such generalized duty.

In support of his contention that such a duty exists, Al-Harbi relies on Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir.1994). In Schmitz, the Ninth Circuit reversed a district court’s judgment upholding an arbitration award where the arbitrator’s law firm had represented a subsidiary of one of the parties in at least nineteen cases over a period of thirty-five years, the most recent having ended approximately twenty-one months before the arbitration. The Schmitz court stated that “an arbitrator may have a duty to investigate independent of its ... duty to disclose,” and further observed that “[a] violation of this independent duty to investigate may result in a failure to disclose that creates a reasonable impression of partiality.” 20 F.3d at 1048.

We of course are not bound by the Ninth Circuit’s decision, and in any event, find it distinguishable both on its facts and the applicable law. In Schmitz, the arbitrator was conducting the proceedings under the National Association of Securities Dealers (“NASD”) code, which required him “to make such an investigation regarding the actual parties to th[e] arbitration.” Id. In the present case, not only does the NASD code not apply, but the alleged evident partiality arises not from a representation by any firm with which the arbitrator was connected at the time of the arbitration, but from representation in unrelated matters by a firm with which his only continuing connection was, eoncededly, an interest in receivables, none of which were generated by any party connected with the arbitration. Thus, even if Schmitz were our own decision, it would not answer the question before us today.

Only our decisions and those of the Supreme Court bind us as precedent, and neither we nor the highest court have yet considered whether a duty of investigation underlies the arbitrator’s duty to disclose facts that “might create an impression of possible bias.” Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 149, 89 S.Ct. 337, 339-40, 21 L.Ed.2d 301 (1968). Lacking binding precedent, the District Court in the present case relied heavily on an earlier opinion by another district judge in this circuit. Overseas Private Inv. Corp. v. Anaconda Co., 418 F.Supp. 107 (D.D.C.1976) (“OPIC”). In OPIC, Judge Flannery held that where no reasonable person could find the arbitrator “to have known any potentially prejudicial information” prior to the award, there was no basis for a conclusion of evident partiality and he affirmed the arbitration award. Id. at 112.

The Fourth Circuit considered the duty of disclosure issue on facts more analogous to those before us than were those in the Ninth Circuit’s decision. In Peoples Security Life Insurance Company v. Monumental Life Insurance Company, 991 F.2d 141 (4th Cir.1993), that court reached the same conclusion as Judge Flannery in OPIC. In the Peoples Security case, the arbitrator worked in the Newark, New Jersey, and New York, New York, offices of the LeBoeuf law firm. 991 F.2d at 143. An attorney named James Nolan joined the Washington office of the same firm in May of 1990. He had signed an initial complaint on behalf of one of the parties to the arbitration under review in Peoples Security at a time while he was a partner in a different law firm. 991 F.2d at 145. The final portion of the arbitration occurred after Nolan joined the LeBoeuf firm. Id.

While not specifically addressing whether the arbitrator’s duty to disclose incorporates the duty of investigation advanced by appellant here, in reasoning applicable to the instant case, the Fourth Circuit held that “[t]he party asserting evident partiality has the burden of proof.” 991 F.2d at 146. The circuit further iterated, “The alleged partiality must be ‘direct, definite, and capable of demonstration rather than remote, uncertain, or speculative.’ ” Id. (quoting Health Serv. Management Corp. v. Hughes, 975 F.2d 1253, 1264 (7th Cir.1992)). We agree with the Fourth Circuit that “the burden on a claimant for vacation of an arbitration award due to ‘evident partiality’ is heavy, and the claimant must establish specific facts that indicate improper motives on the part of an arbitrator.” 991 F.2d at 146. In light of this onerous standard for vacatur, we affirm the District Court’s refusal to vacate the arbitration award, and as did the District Court in the present case and in OPIC, we hold that, nothing else appearing, the fact that an arbitrator has not conducted an investigation sufficient to uncover the existence of facts marginally diselosable under the Commonwealth Coatings duty is not sufficient to warrant vacating an arbitration award for evident partiality. That is, we explicitly hold that there is no duty on an arbitrator to make any such investigation.

B.

Appellant’s argument that the District Court should have vacated the arbitration award on the non-statutory ground that the arbitrator demonstrated “manifest disregard” of the applicable law is totally merit-less. This basis for vacatur traces its lineage to language in Wilko v. Swan, 346 U.S. at 436-37, 74 S.Ct. at 187-88, stating that “interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation.” 346 U.S. at 436-37, 74 S.Ct. at 187 (emphasis added). Plainly, this non-statutory theory of vacatur cannot empower a District Court to conduct the same de novo review of questions of law that an appellate court exercises over lower court decisions. Indeed, we have in the past held that “it is clear that [manifest disregard] means more than error or misunderstanding with respect to the law.” Kanuth, 949 F.2d at 1178. What appellant styles as “manifest disregard” in the present case does not readily appear even erroneous.

The submission agreement under which the arbitrator decided the controversy mandated that the arbitrator would apply “the procedural and substantive laws of the Southern District of New York, U.S.A” The arbitrator- ruled that jurisdiction would be difficult to establish in New York, but even assuming that it could be established, “this ease would be dismissed on the ground of forum non conveniens." Arbitration Memorandum at 10. The crux of appellant’s argument is not that the arbitrator disregarded New York law in determining that a New York court would dismiss on forum non conveniens, but only that forum non conveniens is procedural law and that the arbitrator was obligated to apply “the procedural and substantive law of New York (not ‘or substantive law’).” Appellant’s Brief at 25. Appellant’s argument then depends upon the proposition that where a tribunal is to render decision based on “procedural and substantive law” that tribunal has not only erred, but acted in manifest disregard of the law if it finds that procedural factors are dispositive of the case without then going on to consider substantive law rendered apparently moot by that procedural decision. To state that proposition is to reject it. We find no basis for vacatur.

Conclusion

For the reasons set forth above, we affirm the order of the District Court denying vacatur of the arbitration award.

SILBERMAN, Circuit Judge,

concurring:

I concur in the panel’s opinion. I do not think an arbitrator has a duty — at least absent governing rules such as the NASD provision applied in Schmitz — to search his former law firm’s client list to determine whether one of the parties before him had been a client of his former law firm. We should bear in mind that arbitrators, unlike judges, are chosen by the parties, and any extensive duty to investigate the client list of former law firms, or even perhaps a very large present law firm, will just increase the costs. Of course, the parties can request such a search, but that is a different matter. I do not think, however, that the absence of any particular duty can be explained — as does the Fourth Circuit in Peoples Security — in terms of the burden of proof on the party seeking to overturn the award. Obviously, if a duty to investigate existed, the burden of proof would have been met by establishing that the arbitrator failed to perform it.

      . Although the holding in Wilko was overruled by Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), the dicta that constitutes the core of appellant’s argument was unaffected by the grounds of the overruling.


author: STEPHEN F. WILLIAMS, Circuit Judge:

text:
    FLORIDA POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Seminole Electric Cooperative, Inc., et al., Intervenors.
    No. 95-1199.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 27, 1996.
    Decided June 11, 1996.

      Steven J. Ross, Washington, D.C., argued the cause, for petitioner. With him on the brief was Jacob A. Bouknight, Jr.
    Janet K. Jones, Attorney, Washington, D.C., Federal Energy Regulatory Commission, argued the cause, for respondent. With her on the brief was Jerome M. Feit, Solicitor.
    Alan J. Roth, Washington, D.C., argued the cause, for intervenor Florida Cities. With him on the brief was Robert A. Jablon.
    Robert L. Daileader, Jr., Washington, D.C., entered an appearance for intervenor Tampa Electric Company. William T. Miller entered an appearance, for intervenor Seminole Electric Cooperative, Inc.
    Robert D. Vandiver, Jackson, TN, and Diana W. Caldwell, Tallahassee, FL, were on the brief, for intervenor Florida Public Service Commission.
    Before: WALD, WILLIAMS and TATEL, Circuit Judges.
   Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

The Federal Energy Regulatory Commission rejected a provision of a tariff filed by Florida Power & Light (“FPL”), proffered by FPL as a means of preventing an inefficient interaction between its sales to certain wholesale (“partial requirements”) customers and those customers’ activities on an automated “economy energy” market, the Florida Coordinating Group Broker. The Commission acknowledged that FPL’s proposal would properly thwart some inefficient transactions, but rejected it as “overly broad,” because there were other, efficient transactions that it said the proposal would also frustrate. Florida Power & Light Co., 66 FERC ¶ 61,227 at 61,529 (1994) (“Order on Policy Issues”), reh. denied, 70 FERC ¶ 61,158 (1995) (“Order on Rehearing”). FPL countered that where the tariff provision thwarted an “efficient” sale by one of FPL’s partial requirements customers, FPL itself would be in a position to make the same sale. The Commission never responded to this argument, which on its face appears correct. Further, the Commission’s apparent effort to justify the casual quality of its analysis by pointing FPL in the direction of marginal cost pricing for its partial requirements customers is unconvincing; it is most unclear whether that proposed alternative is available in the real world of FERC regulation. Because the Commission’s decision failed basic requirements of reasoned decisionmaking, we reverse and remand the case to the Commission.

FPL sells power both retail and wholesale. Among its wholesale transactions is “partial requirements” service, under which municipal utilities and rural electric cooperatives augment their self-produced power supplies with FPL’s as necessary to meet their customers’ demands. FPL’s rates for these wholesale buyers are based on average costs — a demand charge based on the average cost of generation and transmission resources, and a per-unit energy charge based primarily on FPL’s average fuel costs. FPL asserts, and the Commission acknowledges, Order on Rehearing, 70 FERC at 61,486, that this average cost pricing is in accord with the Commission’s traditional rate design.

Another type of wholesale transaction takes place through the Florida Broker, which enables utilities in Florida to make bulk sales of “economy energy” to each other. On an electronic bulletin board the utilities make hourly postings of amounts of electricity they are interested in selling or buying, along with the incremental costs of producing what they are offering for sale, or the “decremental” costs that they would avert by a purchase. (These costs are evidently the variable costs of production, largely fuel, sometimes with a contribution to fixed capital costs.) The Broker automatically matches up the offers, linking the lowest incremental costs with the highest decremental ones, so that the first match made will be the one that averts the most net costs. The transaction price is midway between the proposals of each member of a matched pair, so that the value of the gain is split evenly between them. The Broker evidently keeps on matching until all economizing possibilities have been exhausted. Some of the net savings by utilities are flowed back to their customers. See Order on Rehearing, 70 FERC at 61,485; see also Order on Policy Issues, 66 FERC at 61,527 n. 22 (describing Florida Broker operations).

FPL and the Commission appear to agree that, unredressed, the interaction of its partial requirements tariff with the participation of FPL’s partial requirements purchasers in the Florida Broker market will lead to some inefficient sales. In an example used by both parties, FPL might at a given hour be able to produce energy at 12 mills per kWh (its incremental cost) but be selling it to its partial requirements customer at 6 mills (its average cost). The latter would offer it to the Broker at 6 mills. Where another utility faced a decremental price of 10, the Broker would dutifully match them up. The transaction goes forward, causing a 12-mill cost to be incurred for a need that could have been satisfied for 10 mills.

FPL proposed solving the problem with a provision in its proposed comprehensive wholesale power sales tariff, limiting bulletin board sales by partial requirements purchasers:

The Customer may resell capacity and energy purchased under this Rate Schedule; provided, however, that ... the Customer shall not resell energy purchased under this Rate Schedule to other entities pursuant to an economy ... sale [i.e., an “economy energy” transaction] ... without FPL’s consent. FPL will consent to such sale for any hour during which FPL’s incremental cost for such resold power is expected to be equal to or less than the incremental revenue received under this Rate Schedule in connection with FPL’s sale of such power to the Customer.

In rejecting the provision, FERC said that it was overly broad, prohibiting some hypothetically efficient trades on the economy energy market in addition to the inefficient trades of the sort hypothesized above. For example, it explained, where a partial requirements customer was buying at 6 mills, FPL’s incremental cost was 8 mills, and the Florida Broker had a proposal to buy at 10 mills, FPL’s rule would prevent the sale. Order on Policy Issues, 66 FERC at 61,528. The rule would, said FERC, bar a deal that could have saved 2 mills in energy expense.

Of course, one answer to the Commission’s hypothetical seems laughably simple, and FPL made it: There appears no obstacle, in such a case, to FPL’s making the sale. See Order on Rehearing, 70 FERC at 61,485 (referring to FPL’s argument on rehearing). (We address below whether that solution may have some deleterious side effects.) After all, the partial requirements customer would be taking the power solely for purposes of engaging in the “economy energy” transaction. Further, FPL went on to say, allowing the partial requirements customer to make the sale may actually thwart an alternative and more efficient transaction: if the partial requirements customer offers 8-mill energy at 6 mills, and there is 7-mill energy available, the partial requirements customer’s offer will preempt the 7-mill offer — which would have cost less than FPL’s 8-mill supply. See id.

On rehearing, the Commission recited FPL’s argument and then brushed it aside. While reiterating the claim that FPL’s solution was “overly broad,” id. at 61,486, it did not deny that FPL would be able to trade its own power perfectly well, thus making possible the efficient transactions that the Commission had said FPL’s rule would stymie. Rather it switched to a new theme — that this would hamper FPL’s partial requirements customers’ ability to sell their own resources via the Florida Broker. It offered no reason to think that would be so. Assuming that the partial requirements customers can distinguish between their own and FPL’s resources, it would seem that they could simply refrain from sales in the Florida Broker market when (1) their own resources were not sufficient for the sale, and (2) FPL’s incremental energy cost was higher than its tariffed average cost.

FERC also observed that “[t]he Commission consistently has rejected resale restrictions as an unnecessarily blunt device, given their potential anticompetitive effects and the availability of other ways to address legitimate utility concerns.” Id. This was the entirety of the Commission’s discussion of anticompetitive concerns. Despite the word “consistent” and occasional references to a “per se” rule in other decisions, FERC has not established rejection of resale restrictions as a universal absolute. In Gulf States Utility Company, 5 FERC ¶ 61,066 (1978), for example, the Commission carefully distinguished the resale restriction in question from ones with potential pro competitive effects, citing Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). See 5 FERC at 61,100 n. 5. Further, the Commission recognized in Gulf States that in some eases restrictions with some anticompetitive effect might on balance be desirable as the least-bad solution to a problem. Accordingly, the Commission proceeded to consider “whether the restrictions serve some significant regulatory purpose which cannot be achieved by a less anticompetitive method and which would render them in the public interest notwithstanding that desirable competition is impaired.” Id. at 61,098. It rejected the resale restriction only after finding that other alternatives, such as requiring timely notice by the utility’s customers of changes in their requirements, were available as remedies.

Later Commission decisions have expressed varied readings of Gulf States. Compare, e.g., Ohio Edison Company, 43 FERC ¶ 61,316 at 61,883 (1988) (“The Commission has ruled that such restrictions are per se unlawful and we direct Ohio Edison to not include such language in any rate schedule it refiles.”); Missouri Public Service Company, 54 FERC ¶ 61,357 at 62,177 (1991) (“The Commission has consistently applied the per se rule against resale restrictions in subsequent cases [to Gulf States ].”), with Northern Indiana Public Service Company, 23 FERC ¶ 61,249 at 61,538 (1983) (“We are concerned that this [resale restriction] provision may unduly restrict competition between [the utility] and its wholesale customers. However, we are not prepared to conclude at this time that the provision is per se unlawful.”); Georgia Power Company, 63 FERC ¶ 61,269 at 62,732 (1993) (“[R]esale restrictions of this type are per se unlawful under established Commission precedent. Georgia was therefore directed to eliminate the restriction or to justify it in light of the Commission’s frequently-stated belief that such restrictions are unlawful.”) (emphasis added).

Here the Commission’s orders have neither invoked a per se rule (with an explicit abandonment of seemingly contrary cases) nor purported to identify any specific anti-competitive harm caused by the tariff provision. Its claim that “efficient sales are thwarted” has already been shown to be attenuated by the fact that FPL can make such transactions itself, and it has made no attempt to show that anticompetitive effects will naturally flow from shifting the profits of such sales from a partial requirements customer to FPL. Moreover, anticompetitive effects are not self-evidently probable when a restriction applies only to resales in an electronic market in which FPL cannot (so far as appears) identify or choose its customers.

Nor has the Commission adequately identified reasonable alternatives justifying rejection of FPL’s proposed resale restriction. One might imagine a more narrowly drawn resale restriction provision, perhaps permitting all sales of FPL power by the partial requirements customer so long as FPL’s incremental cost, rather than the average cost, is quoted on the Broker. But the Commission relies on only one alternative: a change in FPL’s rate structure for its partial requirements customers.

All hands recognize that the problem originates in the use of average costs for FPL’s sales to its partial requirements customers. Accordingly, both in the Order on Policy Issues, 66 FERC at 61,529 & n. 29, and more emphatically in the Order on Rehearing, 70 FERC at 61,486-61,487, the Commission alluded to the possibility that FPL might file completely new tariffs based on marginal cost pricing. If partial requirements customers paid for energy the same way that buyers in the economy energy market did, there would be no arbitrage to exploit in a resale, and no inefficient trades would result. See Order on Policy Issues, 66 FERC at 61,528-61,529. Of course, marginal cost pricing in some markets presents its own problems, see, e.g., Ronald Coase, “The Marginal Cost Controversy,” 13 Economica n.s. 169 (1946), reprinted in Ronald Coase, The Firm, the Market, and the Law 75 (1988), but those refinements are not at issue here. FPL in its rehearing petition bristled at the Commission’s suggestion of a marginal cost rate design as a plausible alternative solution, pointing to the Commission’s traditional insistence on average costs. The Commission responded only with some remarks vaguely favorable to marginal cost pricing, but clearly not amounting to a commitment to embrace the principle for wholesale power pricing, Order on Rehearing, 70 FERC at 61,486-61,487, and proceeded to deny the petition.

The Commission’s answers to FPL, within the existing regulatory framework, did not satisfy FERC’s duty to engage in “reasoned decisionmaking.” See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C.Cir.1970). It never responded, for example, to FPL’s point that the utility itself could make the efficient sales the Commission seems to have assumed would be thwarted by the tariff provision. There may be an answer — lurking perhaps in the relations between FPL and its partial requirements customers, or in distributional concerns as between those parties — but FERC has not yet revealed it.

That deficiency leaves the Commission relying on its allusions to the possibility of marginal cost pricing for FPL’s sales to its partial requirements customers. But FPL says, and FERC does not dispute, that in the course of decades of electric power regulation there is only one instance in which FERC has actually approved wholesale power rates based on marginal costs. See New England Elec. Power Co., 52 FERC ¶ 61,090 (1990), reh’g denied, 54 FERC ¶ 61,055 (1991), aff'd, Town of Norwood v. FERC, 962 F.2d 20 (D.C.Cir.1992). We do not believe FERC’s mere mention of the possibility of marginal cost pricing justifies its refusal to approve a tariff provision that appears to enhance efficiency (in the name of which FERC purported to act) in the here-and-now regulatory world of FERC’s own design.

FERC counters that “significant changes are on the way for the electric industry,” and points to its intentions to “structure an orderly transition to more competitive markets.” Brief for Respondent at 21. Indeed, recent FERC initiatives may render the whole issue moot by establishing conditions for widespread competition between power generators and thus for reliance on markets rather than regulators to constrain wholesale power prices. See Order No. 888, Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, 61 Fed.Reg. 21540 (1996). While we are quite sympathetic to FERC’s implicit claim that we should cut it some slack in this era of wide-ranging reform, allowing it to devote its intellectual resources primarily to the broader picture, we find that the Commission’s explanation here fails to meet the basic reasoned decisionmaking requirement.

The Commission’s counsel raises various arguments not mentioned within or even implied by the orders on review. But the agency runs this regulatory program, not its lawyers; parties are entitled to the agency’s analysis of its proposal, not post hoc salvage operations of counsel. We therefore do not consider these arguments. See SEC v. Chenery Corp., 318 U.S. 80, 93-95, 63 S.Ct. 454, 461-63, 87 L.Ed. 626 (1943); Algonquin Gas Transmission Co. v. FERC, 948 F.2d 1305, 1316 (D.C.Cir.1991).

If the Commission means to adopt and follow a per se rule against ’ resale restrictions, it must be clear as to the scope of the rule and its justification. If the rule is not per se, the Commission must point out the anticompetitive effects of FPL’s proposal, and, to the extent that availability of alternative solutions to FPL’s evidently legitimate concern remains an element of the Commission’s analysis, just what that alternative may be.

The petition for review is granted and the case remanded to the Commission.

So ordered.

      . This would require some principle of priority. FPL seems implicitly to argue for the principle that the partial requirements customers should be deemed to be using their own resources first. If there is some objection to this — and there may be — the Commission has yet to state it.


author: SILBERMAN, Circuit Judge:

text:
    Jamari SALLEH, Appellee v. Warren CHRISTOPHER, Secretary of State, Appellant.
    No. 95-5271.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 15, 1996.
    Decided June 14, 1996.
    R. Craig Lawrence, Assistant United States Attorney, argued the cause, for appellant, with whom Eric H. Holder, Jr., United States Attorney, Washington, DC, was on the briefs. Susan A Nellor entered an appearance.
    Stephen L. Spitz, argued the cause and filed the brief, Washington, DC, for appellee.
    Sharon L. Papp, was on the brief, Washington, DC, for amicus curiae.
    Before: SILBERMAN, BUCKLEY, and ROGERS, Circuit Judges.
   Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellant, the Secretary of State, argues that he has the authority to discharge Jamari Salleh, a Foreign Service Officer, even though the Foreign Service Grievance Board concluded that cause for the discharge had not been established at a § 610(a)(2) hearing. Since the Board’s decision under the Foreign Service Act is final, the district court opinion reinstating Salleh and awarding back pay is affirmed.

I.

Jamari Salleh was hired by the State Department in 1981 as a Foreign Service Officer and was subsequently granted career status. In 1989, she was indicted for submitting falsified claims for reimbursement to the U.S. Government to which she pleaded guilty and received a three-year suspended sentence, four years probation, a $5,000 fine, and was ordered to return the illegally obtained money. The court refused to decide whether Ms. Salleh should be required to resign from the Foreign Service, noting that the “proper decision-maker in that connection should be the Department of State.”

After her conviction, the Acting Director General of the Foreign Service proposed that she be discharged. At Ms. Salleh’s request, the Foreign Service Grievance Board conducted an evidentiary hearing on the discharge proposal. The Board concluded that discharging Ms. Salleh would violate § 501 of the Rehabilitation Act of 1973 since Ms. Salleh’s criminal conduct stemmed from her alcoholism, a disability under the act, and, even if it were not, discharge would still be inappropriate given the effect drinking had on her behavior. The Secretary of State, Warren Christopher, issued an order in June, 1993 (some 13 months later) concluding that he “possesses authority to review conclusions of the Foreign Service Grievance Board, and to reach a contrary conclusion if merited.” The Secretary thus directed Ms. Salleh’s discharge without pursuing judicial review of the Board’s decision. The Secretary asserted that “the charged employee’s conduct in committing these crimes is prejudicial to the U.S. Government and the Department of State, and that her continued employment does not promote the efficiency of the Foreign Service.” In response, the Board expressed the view that its decision was final and could not be ignored by the Secretary.

Ms. Salleh filed an action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (1994), and the Foreign Service Act of 1980, as amended, 22 U.S.C. § 3901 et seq. (1994), seeking reinstatement, back pay, a declaratory judgment that the Secretary’s action was ultra vires, injunctive relief, a writ of mandamus directing the Secretary to comply with the Board’s decision, and any other appropriate relief. On cross-motions for summary judgment, the district court concluded that the Board’s decision was final and therefore the Secretary’s discharge of Ms. Salleh was illegal. The district court subsequently ordered the State Department to reinstate Ms. Salleh and provide her with full back pay and other benefits retroactive to the date of her discharge.

II.

The government contends that the language and structure of the Foreign Service Act provides the Secretary with authority to overrule the Board and discharge an employee such as Ms. Salleh. Both parties agree that whether the government is correct or not depends on the proper interpretation of § 610(a) of the Foreign Service Act which states:

(a) Authorization of Secretary; hearing prior to separation; waiver of hearing
(1) The Secretary may separate any member from the Service for such cause as will promote the efficiency of the Service.
(2) A member of the Service who ... is assigned to a salary class in the Foreign Service Schedule and ... is serving under a career appointment ... shall not be separated from the Service under this section until the member has been granted a hearing before the Foreign Service Grievance Board and the cause for separation established at such hearing, unless the member waives in writing the right to a hearing. If such cause is not established at such a hearing, the Grievance Board shall have the authority to direct the Department to pay reasonable attorneys fees to the extent and in the manner provided by section 4137(b)(5) of this title. The hearing provided under this paragraph shall be in accordance with the hearing procedures applicable to grievances under section 4136 of this title and shall be in lieu of any other administrative procedure authorized or required by this or any other law.

22 U.S.C. § 4010 (1994) (emphases added). Ms. Salleh was clearly entitled to a § 610(a)(2) hearing as she was assigned to a salary class in the Foreign Service Schedule and was serving under a career appointment. But what is the Board’s function in such a hearing? The government relies on the “plain meaning” of § 610(a)(1) as providing the Secretary with plenary authority to discharge employees such as Ms. Salleh. Section 610(a)(2), it is argued, merely provides a member of the Foreign Service, if she so chooses, an opportunity to present her side at the hearing. The government concedes that the grounds for the discharge must be “established at such hearing,” but it claims that it is up to the Secretary to ultimately decide whether such a showing has been made. The Board’s role is to merely preside over the hearing and make recommendations to the Secretary. The Board, on the other hand, reads § 610(a)(2) as delegating to it the final authority to determine whether the Secretary’s decision is justified.

The government insists the Secretary’s interpretation of § 610(a) is entitled to Chevron deference since the dispute between Ms. Salleh and the Secretary (really, the Board and the Secretary) involves the scope of his authority under § 610(a)(1). While it is of course true that this dispute involves the scope of the Secretary’s power under § 610(a)(1), it is equally true that the scope of the Board’s authority under § 610(a)(2) is at stake. The issue can be formulated either way. The government relies on Molineaux v. United States, 12 F.3d 264 (D.C.Cir.1994), a case in which we did defer to the Secretary’s interpretation of the Foreign Service Act. But Molineaux did not create a general rule that the Secretary, as opposed to the Board, is always entitled to deference as to his interpretation of the statute. Molineaux involved a challenge to the Secretary’s compliance with § 601(c)(2)(C), 22 U.S.C. § 4001(e)(2)(C) (1994), which specifically directs the Secretary to determine the proper number of promotions into the Senior Foreign Service based upon various factors. Moreover, there was no disagreement in Molineaux between the Board and the Secretary as to the statute’s meaning. Id. at 266-67. Here, we have arguably inconsistent grants of authority to the Secretary and the Board. To defer to the government is virtually to assume that Congress delegated the disputed authority to the Secretary — which is the very issue on the merits.

The premise of Chevron deference is that Congress has delegated the administration of a particular statute to an executive branch agency. See Adams Fruit Co. v. Barrett, 494 U.S. 638, 649, 110 S.Ct. 1384, 1390, 108 L.Ed.2d 585 (1990). From that premise is implied the additional delegation to reconcile ambiguities in statutory language. Where, as here, the premise is in dispute because two executive branch entities (in this ease a department and an independent adjudicatory body) claim conflicting administrative authority, it would be inappropriate to defer to either’s statutory interpretation as to the issue of basic authority. Although we have recognized that Chevron deference applies to an agency’s interpretation of its “jurisdictional” authority, see Oklahoma Natural Gas Co. v. FERC, 28 F.3d 1281, 1283-84 (D.C.Cir.1994), we have never deferred where two competing governmental entities assert conflicting jurisdictional claims.

This case is analogous to those decisions of ours that have declined to defer to an agency’s interpretation of a statute when more than one agency is granted authority to interpret the same statute. See, e.g., Rapaport v. U.S. Dept. of Treasury, 59 F.3d 212, 216-17 (D.C.Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 775, 133 L.Ed.2d 727 (1996); Benavides v. U.S. Bureau of Prisons, 995 F.2d 269, 272 n.2 (D.C.Cir.1993); Professional Reactor Operator Soc. v. U.S. NRC, 939 F.2d 1047, 1051 (D.C.Cir.1991). In such eases, it cannot be said that Congress implicitly delegated to one agency authority to reconcile ambiguities or to fill gaps, because more than one agency will independently interpret the statute. Similarly, here both the Secretary and the Board have been delegated authority under two sequential provisions of § 610(a). To determine their respective authority, the whole section must be interpreted. Therefore, insofar as they assert conflicting interpretations as to who has power to make the final decision on Ms. Salleh’s discharge, we cannot defer to either.

III.

The government emphasizes that § 610(a)(2)’s requirement that “cause for separation be established at such hearing” does not explicitly state who is to have the final word on whether this has occurred. It points out that before 1980 the Board of Foreign Service, under the Foreign Service Act of 1946, conducted pre-termination hearings in separation for cause cases even though the Board’s decisions were merely advisory. And they were advisory despite a then-existing provision that an employee could not be separated unless cause had “been established at [the pre-termination] hearing.” § 637(a), 22 U.S.C. § 1007(a) (1976). Another section of the 1946 Act, also deleted in 1980, however, indicates that under the old regime the Board’s decisions were only preliminary. See § 211(b), 22 U.S.C. § 826(b) (1976) (“The Board of the Foreign Service shall make recommendations to the Secretary concerning ... the policies and procedures to govern the administration and personnel management of the Service”) (emphasis added). A Senate Committee Report indicates Congress meant to change that situation in 1980. See S. Rep. No. 913, 96th Cong., 2d Sess. 56, reprinted in 1980 U.S.Code Cong. & AdminNews . 4419, 4473 (“[T]he Foreign Service Grievance Board will conduct hearings under this section. That Board ... is the best qualified to adjudicate these cases. The Board of the Foreign Service has heretofore performed this function in an advisory capacity....”) (emphasis added).

More important, the actual language of the whole § 610(a) establishes that intent. Thus § 610(a)(2) itself authorizes the Board to direct the Department to pay the service member’s attorney’s fees “if such cause is not established at [the] hearing.” We think it virtually inconceivable that Congress would have empowered the Board to award attorney’s fees and yet have the precondition of that decision — lack of cause — constitute only a “recommendation” to the Secretary. It would be absurd for an employee subsequently discharged by the Secretary, as occurred here, to nonetheless receive attorney’s fees for having prevailed before the Board in establishing no good cause for her termination. The government, recognizing the incongruity of that outcome, argues that the Board’s authority to award attorney’s fees is conditioned on the Secretary accepting the Board’s lack of good cause finding. But there is nothing in the statutory language to even suggest that the Board’s direction to the Secretary to pay attorney’s fees is subject to the Secretary’s approval. Moreover, that interpretation seems equally incongruous. The award of attorney’s fees — particularly where, as here, it is discretionary — -is normally thought of as akin to a sanction, and it would certainly be unique in our jurisprudence to provide that the sanctioning tribunal’s order must be approved by the target of the sanction. The provision authorizing the Board to direct the Secretary to pay the service member’s attorney’s fees can only be consistent with a congressional perception that the Board was authorized to review the Department’s (and thus the Secretary’s) proposed action against the service member.

Similarly, § 610(a)(3) grants the Secretary authority to suspend an employee without a pre-termination hearing “[wjhere there is reasonable cause to believe that a member has committed a crime for which a sentence of imprisonment may be imposed, and there is a nexus to the efficiency of the Service.” But the suspended employee must be reinstated with back pay if “cause for separation is not established at a hearing before the Board,” language which is very similar to that used in the disputed § 610(a)(2) clause. And § 610(a)(5) explains that an employee suspended under § 610(a)(3) has available to her (with certain limitations) the procedures applicable to grievances outlined in Subchapter XI, which makes Board decisions final, see § 1107(e), 22 U.S.C. § 4137(e) (1994). It seems clear then that § 610(a)(3) visualizes that the Board will act as the final reviewing body for a suspension; that indicates the Board has the same role vis-a-vis a proposed termination.

The government warns that the Board’s interpretation of § 610(a) would render the Secretary’s authority under § 610(a)(1) to “separate any member from the Service for such cause as will promote the efficiency of the Service” meaningless. We think that argument is hyperbole. It might similarly be claimed that judicial review of the Secretary’s decision impairs the Secretary’s authority. Authority in an adjudicatory tribunal to review — even review de novo — an executive decision does not eliminate the authority to make the executive decision. After all, § 610(a)(1) parallels a Civil Service Act provision, 5 U.S.C. § 7513(a) (1994), which similarly authorizes an agency to separate a career Civil Service employee, including employees within the State Department, “for such cause as will promote the efficiency of the service.” But review as to whether cause has been established can be exercised by the Merit System Protection Board. See §§ 7513(d), 7701(e)(1). The use of the same language in § 610(a)(1), which was passed after the analogous Civil Service provision, suggests Congress had the same general approach in mind.

It is important to understand, as we have previously emphasized, that § 610(a)(2) was intended to increase the protection Foreign Service Officers received. See Costello v. Agency for Int'l Dev., 843 F.2d 540, 543 (D.C.Cir.1988); Miller v. Baker, 969 F.2d 1098, 1102 (D.C.Cir.1992). This provision ensures, for those eligible for its protections, that employees are not discharged without first receiving a hearing. It guarantees “that the Foreign Service Officer’s grievance must be heard and decided prior to termination.” 843 F.2d at 544 (emphasis added). This is an assurance that employees would not have if only the usual grievance machinery was available. (The law governing removal of career Civil Service employees does not provide for a pre-termination hearing before an independent adjudicatory body, see 5 U.S.C. § 7513(a) (1982)). Yet if the government’s construction were accepted, § 610(a) would dramatically decrease Foreign Service Officer protections if they were given a Board pre-termination hearing; they would thereafter be at the Secretary’s disposal without the right to have their case reviewed by an independent adjudicatory body. That would mean that career status officials (Senior ForeignService or the like) who were granted the added protection of a pre-termination hearing for misconduct would be actually worse off than lesser status employees.

Our decision in Costello, 843 F.2d 540, provides further support for Ms. Salleh’s position. The Board had concluded, after a § 610(a)(2) hearing, that an employee could not be discharged for misconduct because of a lack of evidentiary support. But the Board thought it was without power to award attorney’s fees under § 1107(b)(5), 22 U.S.C. § 4137(b)(5) (1994), which authorizes the Board to direct the State Department to pay reasonable attorney’s fees to a grievant if the Board “finds that the grievance is meritorious” (emphasis added). (Section 610 was subsequently amended to explicitly provide the Board with this power.) The definition of “grievance” does not cover “any complaint or appeal where a specific statutory hearing procedure exists ....” 22 U.S.C. § 4131(b)(4) (1994). The Board reasoned that a § 610(a)(2) hearing was such a specific statutory hearing procedure and, accordingly, § 1107(b)(5) was inapplicable. We rejected the Board’s construction as not “rational and consistent with the statute” holding that the “hearing” referred to in § 610(a)(2) is not a separate procedure but is rather a standard grievance hearing. 843 F.2d at 543. It would appear that the same reasoning makes § 1107(c) applicable to § 610(a)(2) hearings. This section provides (with one exception not applicable to Ms. Salleh) that “decisions of the Board under this subchapter shall be final, subject only to judicial review as provided in section 4140 of this title” (emphases added). The subchapter referred to, “Sub-chapter XI — Grievances,” establishes the grievance procedures available to Foreign Service Officers. Id. If the Board’s decision in Costello was a decision concerning a “grievance” for purposes of § 1107(b)(5), then it would seem to follow that the Board’s decision here is similarly a decision concerning a grievance, thereby falling under § 1107(e). The statutory definition of “grievance,” except for certain specifically enumerated exceptions, is for all Subchapter XI hearings, see § 4131(a)(1) — and it follows that the definition of “grievance” for § 1107(b)(5) would be the same for § 1107(c).

The government suggests that our reasoning in Costello was placed into question by the subsequent decision in Miller, 969 F.2d 1098. In Miller, we held that the Board could suspend a § 4011 termination by the Secretary when that termination was allegedly related to inaccurate evaluation reports being challenged through the grievance process. Id. at 1102. In rejecting the argument that the reference in § 4011 to § 610(a)(2) implied that the § 610(a)(2) hearing was the only limitation, on the Secretary’s § 4011 termination power, we explained that “[t]his argument might get somewhere if anything in section 4011, including the excepting reference to section [610(a)(2) ], restricted or even related to a service member’s ability to file a grievance.” Id. at 1101 (emphasis added). In elaborating on this line of thought, we stated offhandedly that § 610(a)(2) “hearings are even excluded from the statutory definition of the term ‘grievance,’” id. at 1102, which appears inconsistent with our holding in Costello. The important point, however, is that the Miller court relied on the underlying notion that § 610(a)(2) did not restrict a service member’s ability to file a grievance.

In short, the language of § 610(a) and structure of the Foreign Service Act make clear that a Board decision rendered after a § 610(a)(2) hearing is final. The district court is

Affirmed.

      . Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (not raised by the government but discussed at oral argument), is inapposite. In that case, the Court concluded that the Secretary of Labor’s interpretation of his own regulation should be deferred to as against a conflicting inteipretation by an independent adjudicatoiy body, the Occupational Safety and Health Review Commission. Id. at 157-58, 111 S.Ct. at 1179-80. But the merits issue at stake there — the proper interpretation of the regulation — is not the same as the question of which agency has primary authority to interpret the regulation. The factors that the Martin Court identified as relevant to the Chevron analysis do not clearly favor the Secretary or the Board. Cf. Molineaux v. United States, 12 F.3d 264, 267 (D.C.Cir.1994).

      . If the authority is given to more than one executive department, the President may well be in a position to insist on one interpretation. See Public Citizen v. Burke, 843 F.2d 1473, 1477-78 (D.C.Cir.1988).

      . The government explains that in practice the Secretary remains aloof from these matters until after the Board’s decision. The Director General of the Foreign Service, as in this case, actually proposes the removal of a member. But when Congress used the term "Secretary” in § 610(a) it was — as it does usually — referring to the whole Department, all those who are subordinate to the Secretary and act in his name, as well as the Secretary. Congress did not put the Secretary himself in the independently superior position the Department would fashion.

      . It is interesting — although not of legal significance — that a 1991 amendment to § 610(a)(5), which narrowed the scope of the Board's review of the Secretary's suspension, explains that it “increases the authorily of the Secretary to suspend a member of the Foreign Service without pay, pending a final decision by the Foreign Service Grievance Board on that member's separation for cause.... [T]his enhanced authority is ... not intended to detract in any way from the authority of the Foreign Service Grievance Board under [§ 1107] ...” H.R. Rep. No. 53, 102nd Cong., 1st Sess. 53 (1991), reprinted in 1991 U.S.Code Cong. & Admin News 384, 407 (emphases added). We of course do not rely on this expression of a subsequent Congress. See United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960).

      . Section 4011 provides:
      Except as provided in [§ 610(a)(2)] of this title, the Secretary may terminate at any time the appointment of any member of the Service serving under a limited appointment who is in the Senior Foreign Service, who is assigned to a salary class in the Foreign Service Schedule, or who is a family member of a Government employee serving under a local compensation plan established under section 3968 of this title.
      22 U.S.C. § 4011 (1994).