NATIONAL LABOR RELATIONS BOARD AND ROSEMARY M. COLLYER, GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, PETITIONERS V. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 23, AFL-CIO No. 86-594 In The Supreme Court Of The United States October Term, 1986 On Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The Petitioners TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statutes and regulations involved Statement Summary of argument Argument: I. The general counsel's decision to enter into an informal settlement and withdraw a complaint prior to hearing is not subject to judicial review A. The general counsel's decision is not subject to judicial review pursuant to the National Labor Relations Act B. The general counsel's decision is not subject to judicial review under the Administrative Procedure Act II. The charging party is not automatically entitled to an evidentiary hearing Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-13a) is reported at 788 F.2d 178. The decisions of the regional director of the National Labor Relations Board and the General Counsel of the National Labor Relations Board rejecting respondent's objections to the withdrawal of the complaints (Pet. App. 14a-18a) are unreported. JURISDICTION The judgment of the court of appeals (Pet. App. 19a) was entered on May 15, 1986. A petition for rehearing was denied on June 13, 1986 (Pet. App. 20a-21a). On August 22, 1986, Justice Brennan extended the time for filing a petition for a writ of certiorari to and including October 10, 1986. The petition was filed on October 10, 1986, and was granted on January 12, 1987. The jurisdiction of this Court rests upon 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED The relevant provisions of the National Labor Relations Act, 29 U.S.C. (& Supp. III) 151 et seq., the Administrative Procedure Act, 5 U.S.C. (& Supp. III) 551 et seq., and the Board's Rules and Regulations and Statements of Procedure, 29 C.F.R. 101.1 et seq., are set forth in the addendum to this brief. QUESTIONS PRESENTED 1. Whether the withdrawal of an unfair labor practice complaint by the General Counsel of the National Labor Relations Board pursuant to an informal settlement agreement entered into prior to the commencement of a hearing on the complaint constitutes agency action subject to judicial review. 2. Whether, assuming the General Counsel's action is subject to judicial review, the General Counsel must hold an evidentiary hearing whenever the party who filed the unfair labor practice charge objects to the settlement and requests such a hearing. STATEMENT 1. The National Labor Relations Act provides that "(i)t shall be an unfair labor practice" for an employer or labor organization to engage in conduct that infringes in specified ways upon the rights guaranteed employees under the Act (see 29 U.S.C. 158). The Act confers upon the National Labor Relations Board (NLRB) the authority "to prevent any person from engaging in any unfair labor practice * * * affecting commerce" (29 U.S.C. 160(a)). It states that the Board's General Counsel "shall have final authority, on behalf of the Board, in respect of the investigation of (unfair labor practice) charges and issuance of complaints * * *, and in respect of the prosecution of such complaints before the Board" (29 U.S.C. 153(d)), and it sets forth in general terms the procedures to be followed by the Board in determining whether an employer or labor organization has engaged in an unfair labor practice (29 U.S.C. 160(b) and (c)). The Board has promulgated detailed regulations containing the procedural rules applicable to the adjudication of an unfair labor practice charge (29 C.F.R. 102.9-102.59). /1/ An unfair labor practice case is initiated by the filing of a charge with the regional director of the NLRB for the region in which the alleged unfair labor practice occurred. The charge must be submitted in writing and under oath, must identify the charging party and the person against whom the charge is made, and must contain a statement of the facts relating to the alleged unfair labor practice. The regional director then conducts an investigation of the charge, obtaining evidence from both the charging party and the person against whom the charge was filed. If the investigation indicates that the charge lacks merit, the charge may be withdrawn by the charging party or dismissed by the regional director. 29 C.F.R. 101.2, 101.4-101.6, 102.9-102.12. /2/ When the regional director concludes that the charge may have merit, he normally affords an opportunity for the negotiation of an informal settlement agreement. A settlement at this stage of the proceedings does not require the entry of a Board order or court decree. It consists of a commitment by the charged party to take the agreed-upon remedial action; the case is closed upon compliance with the terms of the settlement. See 29 C.F.R. 101.7. /3/ The concurrence of the charging party is not a pre-requisite for an informal settlement, but the charging party generally is consulted in connection with the proposed settlement and may contest the regional director's decision to approve the settlement by appealing to the General Counsel. 29 C.F.R. 101.7, 102.19. If a settlement cannot be reached in a case that the regional director has found to be meritorious, the regional director issues a complaint. The charged party must file an answer and is entitled to a hearing before an administrative law judge (ALJ). After the hearing, the ALJ makes a recommended decision, which is subject to review by the Board; the Board's determination is in turn subject to judicial review. 29 U.S.C. 160(b)-(f); 29 C.F.R. 101.10-101.15, 102.20-102.50. An unfair labor practice charge may, however, be settled either informally or formally after the filing of the complaint and prior to the commencement of the hearing. The Board's regulations provide that a complaint "may be withdrawn before the hearing by the regional director on his own motion." 29 C.F.R. 102.18; see Olympia Fields Osteopathic Medical Center, 278 N.L.R.B. No. 119 (Feb. 28, 1986). The regional director may withdraw the complaint pursuant to an informal settlement under which the charged party promises to provide agreed-upon relief. A charging party that objects to the terms of such an informal settlement may present its objections to the regional director and may appeal to the General Counsel if the regional director rejects the objections and accepts the settlement. 29 C.F.R. 101.7, 101.9(b) and (c), 102.19. /4/ Alternatively, the charged party and the regional director may enter into a pre-hearing formal settlement. A formal settlement consists of the entry of a remedial order by the Board and, ordinarily, the charged party's consent to entry of an enforcement order by the appropriate court of appeals. See NLRB Casehandling Manual Section 10168(10) (Mar. 1983); Mor Food N' Fun, 282 N.L.R.B. No. 176, at 10 (Feb. 18, 1987). A settlement of this type is subject to review and approval by the Board; a charging party that objects to the terms of a formal settlement may present its objecttions to the Board. 29 C.F.R. 101.9(b), 101.9(c)(2). After the commencement of the hearing before the administrative law judge, the parties retain the authority to enter into either an informal or a formal settlement. The withdrawal of a complaint pursuant to an informal settlement must be approved by the ALJ; a formal settlement must be approved by the Board, 29 C.F.R. 101.9(d)(1). If the charging party objects to an informal settlement, the ALJ must provide an "opportunity to state on the record or in writing its reasons for opposing the settlement" (ibid.). Any party may seek leave to appeal to the Board the ALJ'S approval or disapproval of an informal settlement (29 C.F.R. 101.9(d)(2)). 2. In August 1984, respondent filed with the Board's Pittsburgh Regional Office various unfair labor practice charges against Charley Brothers, Inc., the owner and operator of a grocery store in Mars, Pennsylvania, and the United Steelworkers of America and Local 14744 of that union. Respondent alleged that Charley Brothers had entered into a collective bargaining agreement with the United Steelworkers at a time when the union did not represent an uncoerced majority of Charley Brothers' employees. It also asserted that Charley Brothers had contributed both financial support and other forms of assistance to the union. Pet. App. 2a-3a; A.R. 1, 3. /5/ The regional director investigated the charges and issued complaints against both Charley Brothers and the United Steelworkers. The complaint against Charley Brothers alleged that the company had engaged in a variety of unlawful conduct that interfered with respondent's efforts to organize its employees and had assisted the United Steelworkers' organizational efforts, all of which culminated in Charley Brothers' recognition of the United Steelworkers as the exclusive representative of its employees. Pet. App. 3a-4a; A.R. 8-15. The complaint against the United Steelworkers alleged that the union had unlawfully accepted assistance and recognition from Charley Brothers, bargained for and executed the collective bargaining agreement at a time when it did not enjoy majority support among the employees, and unlawfully accepted dues deducted from employees' wages under that agreement. Pet. App. 4a; A.R. 16-22. The regional director sought orders requiring Charley Brothers to withdraw recognition of the United Steelworkers and cease giving effect to the collective bargaining agreement until the union was certified by the NLRB as the representative of the store's employees. Pet. App. 4a-5a; A.R. 13, 21. On September 24, 1984, Vic's Markets, Inc., acquired from Charley Brothers the Mars, Pennsylvania, grocery store that was the subject of the complaints. Respondent filed charges against Vic's Markets similar to those it had previously filed against Charley Brothers as well as new charges against the United Steelworkers' and the regional director issued complaints against Vic's Markets and the United Steelworkers incorporating the charges in the prior complaints. The four complaints were consolidated and a hearing before an administrative law judge was scheduled for December 4, 1984. Pet. App. 5a-6a; A.R. 4-7, 38-47, 60-61. The regional director, Charley Brothers, Vic's Markets, and the United Steelworkers reached an informal settlement prior to commencement of the hearing on the complaints. Under the proposed settlement agreements, Charley Brothers and Vic's Markets agreed that they would not assist the United Steelworkers' organizing efforts or interrogate employees concerning their union sympathies; would not recognize the United Steelworkers or give effect to the Steelworkers' contract unless that union was selected by a majority of the employees in an election conducted by the Board; and would not in any other manner restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act, 29 U.S.C. 157. The employers also agreed to reimburse employees for the dues deducted from employees' wages pursuant to the contractual checkoff provisions and to post for sixty days a notice reciting the terms of the settlement. A.R. 74-86. The proposed settlement with the United Steelworkers provided that the union would not accept any assistance from the employers, give effect to the existing collective bargaining agreement, act as the bargaining representative of the companies' employees or enter into future collective bargaining agreements unless it was selected as the employees' bargaining representative in an election conducted by the Board, or restrain or coerce employees in any other manner in the exercise of their rights under Section 7 of the Act. The union further agreed to mail to employees a notice that set forth the terms of the settlement agreement. A.R. 74-77. In exchange for these commitments, the regional director agreed to withdraw the unfair labor practice complaints. The agreements expressly provided that the employers and the Steelworkers did not admit that they had violated the Act (id. at 74, 78, 82). On November 28, 1984, the regional director mailed the proposed informal settlement agreements to respondent and informed respondent of his intent to approve the agreements "inasmuch as it is my opinion that the proposed Settlement Agreements fully remedy any violative conduct alleged in your charges" (A.R. 73). The regional director advised respondent of its right to file objections to the proposed settlements (ibid.). Respondent objected to the proposed settlements on six separate grounds. It asserted that it has not been "'afforded full opportunity to dispose of the cases by amicable adjustment'"; that the sixty-day period for posting the notice was "'of insufficient duration to dissipate the effect of the unfair labor practices and * * * permit a free representation election'"; that, because the settlement agreements did not bar employees from engaging in union activity on behalf of the United Steelworkers during the sixty-day notice period, respondent should have been provided with "'countervailing special access remedies'" to enable respondent to conduct organizational activities at the store; that the agreements were deficient because they did not provide for formal Board orders and consent decrees; that the charged parties should have been required to admit that they had violated the Act; and that the notices to be posted to provide information to employees were ambiguous (Pet. App. 6a-7a). On December 12, 1984, the regional director advised respondent that he had approved the settlement agreements and withdrawn the complaints. The regional director explained that he had modified the notice directed to employees in response to respondent's claim that the notice was ambiguous; he concluded that respondent's objections to the settlements were otherwise "without merit." Pet. App. 16a-18a. The regional director found that respondent "had ample opportunity to reach a non-board adjustment if it so desired" and that formal settlements were not appropriate under the circumstances of the case (id. at 17a). With respect to respondent's claim that the 60-day period for posting of the notice was too short, the regional director observed that 60 days "is the period of time historically used * * * to correct unlawful conduct like that alleged in the Complaints and is the posting period the Board normally would order upon a finding of a violation" (ibid.). The regional director rejected respondent's assertion that the settlement agreements would give the United Steelworkers an advantage gaining the right to represent the employees, noting that the employers were barred "from granting assistance or support (to any union) and from denying (respondent) access while granting access to the Steelworkers" (Pet. App. 17a). He stated that if these restrictions were violated "additional charges may be filed and a determination will be made after all the facts have been gathered" (ibid.). Finally, the regional direcotr explained that the provisions of the settlement agreements providing that the charged parties did not admit liability were included pursuant to "agency practice * * * in order to promote settlement" (id. at 18a). Respondent appealed the regional director's determination to the General Counsel; the General Counsel denied the appeal (Pet. App. 14a-15a). /6/ The General Counsel found that the informal settlement agreements adequately remedied the violations charged in the complain "substantially for the reasons set forth in the Regional Director's letter of December 12, 1984" (id. at 14a). She also rejected respondent's assertion that the regional director was required to hold a hearing regarding respondent's objections to the settlement agreements. Noting that the Baord's rules and regulations make no provision for a hearing on objections to a settlement and that "the evidence indicates that (the Board's) procedures were properly followed," the General Counsel concluded that "insufficient basis exists to invalidate the settlement agreement on those grounds" (id. at 14a-15a). 3. Respondent filed a petition for review in the court of appeals seeking to invalidate the settlement agreements. The Board and the General Counsel argued that the petition should be dismissed because the General Counsel's decision to withdraw the complaints and approve the settlements was an act of prosecutorial discretion by the General Counsel and not a "final order of the Board" within the meaning of Section 10(f) of the act, 29 U.S.C. 160(f), and therefore was not subject to judicial review. The court of appeals, however, followed its earlier decision in Leeds & Northrup Co. v. NLRB, 357 F.2d 527 (3d Cir. 1966), holding that it had jurisdiction to review the General Counsel's action and that the General Counsel erred by denying respondent's request for an evidentiary hearing concerning its objections to the settlement agreements (Pet. App. 1a-3a). The court of appeals had held in Leeds & Northrup that the General Counsel's withdrawal of a complaint pursuant to an informal settlement was subject to judicial review under Section 10(f) of the Act and the judicial review provisions of the Administrative Procedure Act (357 F.2d at 531). The court observed that the Board's decision to approve a formal settlement agreement is subject to judicial review and stated that "(t)he absence of a formal order of the Board" does not preclude review of the General Counsel's decision to withdraw a complaint (ibid.). Stating that "(a)bsent judicial review, substantial rights of both the Company and its employees * * * are adversely affected," the court added that "(t)o propose that United States Courts of Appeal are powerless, in a jurisdictional sense, to review quasi-judicial administrative action, either because rules and regulations, or policy, do not provide an adequate avenue of review up to the door of the court, or because of the absense of precise Congressional articulation for such review, poses inadequacy and injustice which Congress would never intend" (id. at 531-532). The court therefore found that "once a complaint issues the statutory scheme contemplates Board action. Anything less, such as informal actions of its agents in dismissing such complaint over the objections of the charging party, is arbitrary and capricious" (id. at 533). After finding jurisdiction to review the General Counsel's action, the Leeds & Northrup court held that "once a complaint has issued, the charging party is entitled to an evidentiary hearing upon its objections to the proposed settlement agreement, be it formal or informal" (357 F.2d at 533). The court stated that the issuance of the complaint triggers "an adjudicatory phase of the administrative process * * * necessitating appropriate avenues of review, both administrative and judicial" (id. at 535); it concluded that an evidentiary hearing was an indispensable element of the required administrative review (id. at 535-536). The court of appeals in the present case stated that it could "discern no principled distinction between Leeds and the instant case" (Pet. App. 11a). The court noted that respondent's objections to the settlement agreements raised no "material disputes of fact," but rather "involve(d) merely procedural matters or discretionary determinations concerning the remedy" and that "a Leeds evidentiary hearing might therefore result in mere adherence to an empty formality" (ibid.). The court stated (id. at 12a (footnote omitted)) that it was required to follow its prior decision with respect to both the jurisdictional issue and the need for an evidentiary hearing but noted the existence of "ostensible precedents to the contrary" including this Court's decision in Cuyahoga Valley Railway Co. v. United Transportation Union, No. 84-1634 (Nov. 4, 1985) (per curiam). The court of appeals vacated the settlement agreements and remanded the case for an evidentiary hearing concerning respondent's objections. SUMMARY OF ARGUMENT I. The General Counsel of the National Labor Relations Board exercised "final authority, on behalf of the Board, in respect of the investigation of (unfair labor practice) charges and issuance of complaints * * * and in respect of the prosecution of such complaints before the Board" (29 U.S.C. 153(d)). It is well established that, as is the case with virtually every other official who exercises prosecutorial authority, the General Counsel's refusal to issue a complaint is not subject to judicial review. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138 (1975); Vaca v. Sipes, 386 U.S. 171, 182 (1967). We submit that the same rule applies when the General Counsel issues a complaint and then, prior to hearing, exercises her prosecutorial authority to withdraw the complaint and enter into an informal settlement. First, judicial review of the General Counsel's decision is not available under the National Labor Relations Act. Section 10(f) of the Act, 29 U.S.C. 160(f), provides for judicial review of "a final order of the Board." The General Counsel's decision to withdraw a complaint and enter into an informal settlement is not embodied in an order issued by the Board; it involves no action by the Board at all. And the legislative history of Section 3(d) of the Act, 29 U.S.C. 153(d), makes clear that Congress intended to separate completely the prosecutorial authority exercised by the General Counsel and the adjudicatory authority exercised by the Board. The General Counsel's settlement decision therefore may not be characterized as an action of the Board subject to judicial review under Section 10(f). Indeed, the legislative history shows that Congress recognized that the General Counsel's prosecutorial decisions would not be subject to judicial review at all. The well settled principle that there is no judicial review of a decision by the General Counsel not to issue a complaint, even when that decision is part of an informal settlement, supports the conclusion that the withdrawal of a complaint in favor of an informal settlement is similarly unreviewable. Both kinds of decisions turn upon the General Counsel's evaluation of very similar considerations: the strength of the evidence of an unfair labor practice, the seriousness of the alleged offense, the willingness of the charged party to settle, the terms of the settlement, and the government resources available for prosecution of the complaint. Indeed, this Court in a similar context concluded that "(a) necessary adjunct of (the power to issue an enforcement citation) is the authority to withdraw a citation and enter into settlement discussions" (Cuyahoga Valley Railway Co. v. United Transportation Union, No. 84-1634 (Nov. 4, 1985) (per curiam), slip op. 4). Moreover, the availability of judicial review would defeat the overriding policy in favor of amicable settlements of unfair labor practice proceedings. A charged party has an incentive to settle prior to hearing when it can thereby ensure a final resolution of the matter at minimal risk and cost. The charged party is likely to have much less interest in settlement if it will nonetheless have to bear not only the costs of a hearing and appeals to the Board and the courts, but also the risk of a less favorable outcome after it has agreed to a compromise. Permitting the charging party to obtain judicial review of the General Counsel's action would therefore provide a strong disincentive to settlement. Second, the General Counsel's informal settlement decisions are not subject to judicial review under the Administrative Procedure Act. The APA provides that judicial review is not available when review is precluded by statute (5 U.S.C. 701(a) (1)). Although the National Labor Relations Act does not by its terms preclude judicial review of the General Counsel's decisions, the express reference in the statute to the General Counsel's "final authority" over prosecutorial matters and the specific recognition by Congress that the General Counsel's decisions would not be reviewable in court provide clear and convincing evidence that Congress intended to preclude judicial review. Judicial review of the General Counsel's informal settlement decisions is not available under the APA for the additional reason that a decision to enter into an informal settlement prior to hearing is "committed to (the General Counsel's) discretion by law" (5 U.S.C. 701(a)(2)). The Court held in Heckler v. Chaney, 470 U.S. 821 (1985), that "an agency's decision not to take enforcement action" is presumptively immune from judicial review; the presumption may be rebutted where "the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers" (470 U.S. at 832-833 (footnote omitted)). Because a decision to exercise prosecutorial discretion by withdrawing a complaint and entering into an informal settlement involves the same considerations as a decision not to take enforcement action in the first place, it should be subject to the same presumption of unreviewability. The language and legislative history of the National Labor Relations Act indicate that Congress intended to leave both types of decisions to the unfettered discretion of the General Counsel, and presumption against judicial review therefore applies in this case. II. Even if judicial review were appropriate here, the court below plainly erred in holding that in this and every other case the General Counsel must hold an evidentiary hearing to consider the charging party's objections to an informal settlement. Nothing in the National Labor Relations Act or the Administrative Procedure Act justifies such a procedural requirement, the sole effect of which would be to force the General Counsel to litigate more cases on the merits. Here, where respondent's objections to the settlement raised no factual dispute, there is no justification for burdening the settlement process with an unnecessary procedural requirement. ARGUMENT I. THE GENERAL COUNSEL'S DECISION TO ENTER INTO AN INFORMAL SETTLEMENT AND WITHDRAW A COMPLAINT PRIOR TO HEARING IS NOT SUBJECT TO JUDICIAL REVIEW The withdrawal of an unfair labor practice complaint by the General Counsel of the National Labor Relations Board prior to hearing is an act of prosecutorial discretion by the official and express and exclusive statutory authority to prosecute such complaints. It involves no adjudicatory (or other) action by the administrative law judge or the Board, from which the General Counsel was expressly made independent. And while the private complainant -- the charging party -- has certain specified rights in an unfair labor practice proceeding, the charging party is not the prosecutor, and its rights do not include deciding whether or not to file a complaint or whether or not to withdraw a complaint prior to hearing. Section 3(d) of the National Labor Relations Act, 29 U.S.C. 153(d), grants to the General Counsel "final authority, on behalf of the Board, in respect of the investigation of (unfair labor practice) charges and issuance of complaint * * *, and in respect of the prosecution of such complaints before the Board." This Court has recognized that Section 3(d) endows the General Counsel with "unreviewable discretion to refuse to institute an unfair labor practice complaint." Vaca v. Sipes, 386 U.S. 171, 182 (1967); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138 (1975). No statutory or logical distinction can be drawn between the General Counsel's refusal to issue a complaint and the situation presented here, in which the General Counsel issued a complaint but then exercised her prosecutorial authority to withdraw the complaint, pursuant to an informal settlement, prior to the commencement of a hearing before an administrative law judge. /7/ A. The General Counsel's Decision Is Not Subject To Judicial Review Pursuant To The National Labor Relations Act 1. The National Labor Relations Act by its terms provides for judicial review of a limited category of administrative decisions. Section 10(f) of the Act, 29 U.S.C. 160(f), states that "(a)ny person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in (the appropriate) United States court of appeals" (emphasis added). The starting point in interpreting this provision is, of course, its plain language. United States v. James, No. 85-434 (July 2, 1986), slip op. 6-7; American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982). Section 10(f) by its terms permits judicial review only when "the Board" has issued an order. The General Counsel's decision to withdraw a complaint and enter into an informal settlement is not embodied in an order issued by the Board; indeed, the decision involves no action by the Board at all. Because of the absence of a "final order of the Board," there is no basis for judicial review under Section 10(f). /8/ The structure and legislative history of the National Labor Relations Act do not evidence the "clearly expressed legislative intention to the contrary" necessary to justify an interpretation of Secton 10(f) inconsistent with its plain language. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980); see also United States v. James, slip op. 8; Rubin v. United States, 449 U.S. 424, 430 (1981). To the contrary, they confirm that the General Counsel's decision to withdraw a complaint is not a "final order of the Board" but a prosecutorial determination that, by express congressional design, involves no action whatsoever by the Board. They also demonstrate that Congress recognized that the General Counsel's prosecutorial decisions would not be subject to judicial review. The National Labor Relations Act originally authorized the Board to prosecute as well as adjudicate all unfair labor practice charges (Act of July 5, 1935, ch. 372, Section 10, 49 Stat. 453). Congress amended the Act in 1947 by adding Section 3(d), which created the Office of the General Counsel and endowed the General Counsel with "final authority, on behalf of the Board" regarding both the "issuance of complaint" and "the prosecution of such complaints before the Board." Section 3(d) was enacted in response to criticism of the original Act's concentration of both prosecutorial and adjudicatory authority in the Board. As Representative Hartley, one of the principal sponsors of the 1947 amendments, observed, "(t)he National Labor Relation Board has been investigator, presecutor, jury, and judge all rolled into one." 93 Cong. Rec. 3423-3424 (1947); Leg. Hist. 613. /9/ Congress decided to separate these functions by transforming the Board into a "quasi-judicial" body (93 Cong. Rec. 3424 (1947) (remarks of Rep. Hartley); Leg. Hist. 613). It transferred the Board's prosecutorial authority to a General Counsel "appointed by the President, by and with the advice and consent of the Senate" (29 U.S.C. 153(d)). Congress emphasized that the General Counsel would have "the final authority to act in the name of, but independently of any direction, control, or review by, the Board * * * in respect of the prosecution of such complaints before the Board" (H.R. Conf. Rep. 510, 80th Cong., 1st Sess. 37 (1947); Leg. Hist. 541). /10/ The opponents of Section 3(d) attacked the independence of the General Counsel, criticizing the proposed amendment on the ground that it concentrated too much authority in one government official. Senator Pepper observed that "one man is made the arbiter of every case that comes before the attention of the Board. The Board has no authority to decide whether a case should be brought, or whether a complaint should be acted upon. That exclusive power is given to one lawyer" (93 Cong. Rec. 6513 (1947); Leg. Hist. 1588). Senator Murray specifically addressed the reviewability of the General Counsel's decisions, stating that "(o)ne person will determine when complaints shall issue in all cases, how investigations shall be conducted, how cases shall be tried, which cases shall be enforce. Much of this action will not be subject to appeal, either to the Board or the courts" (93 Cong. Rec. 6496 (1947); Leg. Hist. 1567). Senator Taft, a principal sponsor of the legislation, acknowledged that Section 3(d) "places a tremendous amount of unreviewable power in the hands of a single official" (93 Cong. Rec. 6859 (1947); Leg. Hist. 1623). He responded to this criticism by observing that the decisions to be entrusted to the General Counsel were not in practice reviewed by the Board under the original Act, but instead had been delegated to "an anonymous committee of subordinate employees" (ibid.). /11/ Senator Taft explained (ibid.): What the conference amendment does is simply to transfer this "vast and unreviewable power" from this anonymous little group to a statutory officer responsible to the President and to the Congress. So far as having unfettered discretion is concerned he, of course, must respect the rules of decision of the Board and of the courts. In this respect his function is like this of the Attorney General of the United States or a State attorney general. The legislative history thus makes clear that Congress intentionally separated the Board's prosecutorial authority from its adjudicatory authority and transferred that prosecutorial authority to the newly-created General Counsel, whom Congress intended to be entirely independent of the Board when she is performing her prosecutorial functions. Indeed, Congress created the Office of the General Counsel precisely because it wanted to insulate this prosecutorial authority from control by the Board. In view of this congressional design, any exercise by the General Counsel of her prosecutorial authority is, by definition, wholly independent of the Board. Such action therefore cannot consitute a "final order of the Board" within the meaning of Section 10(f) (emphasis added). Moreover, Congress recognized that the prosecutorial authority conferred on the General Counsel would not be subject to review, administrative or judicial. At the time of the adoption of Section 3(d), the courts had already concluded that at least some of the Board's prosecutorial decisions were not subject to judicial review. Lincourt v. NLRB, 170 F.2d 306, 307 (1st Cir. 1948) (decision not to issue complaint); S. Rep. 752, 79th Cong. 1st Sess. 53 (1945); compare Jacobsen v. NLRB, 120 F.2d 96, 100 (3d Cir. 1941) (finding that judicial review was proper because, in addition to issuing a complaint, the Board in that case had "held hearings, granted relief to the petitioning employees, and then (had withdrawn) that relief" in a "final order dismissing the complaint"). Section 3(d) transferred this unreviewable authority to a prosecutor -- the General Counsel. The general principle that prosecutorial decisions are not subject to judicial review (see pages 35-36, 37-39, infra), the fact noted above that this principle had been found to apply to the Board's prosecutorial decisions, the specific references in the legislative history to the unreviewability of the General Counsel's decisions, and the express denomination of the General Counsel's authority as "final," strongly support the conclusion that Congress recognized that there would be no judicial review of the General Counsel's exercise of the prosecutorial authority conferred by Section 3(d). /12/ The courts of appeals have repeatedly recognized the distinction between prosecutorial actions taken by the General Counsel and adjudicative and other actions taken by the Board, refusing to construe a decision by the General Counsel not to issue an unfair labor practice complaint as an order of the Board subject to review under Section 10(f). Lincourt v. NLRB, 170 F.2d at 307; National Maritime Union v. NLRB, 423 F.2d 625, 626 (2d Cir. 1970); Terminal Freight Co-Operative Ass'n v. NLRB, 447 F.2d 1099, 1101-1102 (3d Cir. 1971), cert. denied, 409 U.S. 1063 (1972); Hernandez v. NLRB, 505F.2d 119, 120 (5th Cir. 1974); Echols v. NLRB, 525 F.2d 288 (6th Cir. 1975); Pacific Southwest Airlines v. NLRB, 611 F.2d 1309, 1311 (9th Cir. 1980); see also Vaca v. Sipes, 386 U.S. at 182. Sometimes the General Counsel's decision not to issue a complaint is the result of an informal settlement agreement with the charged party, but even where the record shows this to be the case, the decision not to file a complaint is not reviewable under Section 10(f). Terminal Freight Co-Operative Ass'n v. NLRB, supra. The General Counsel's decision to withdraw a complaint prior to hearing pursuant to an informal settlement is indistinguishable from her refusal to issue a complaint in the first place because the matter has been settled. First, neither action is a "final order of the Board"; to the contrary, each is an exercise of the prosecutorial authority conferred upon the General Counsel by Section 3(d). Second, both actions turn on assessments of the same factors, which include the strength of the evidence of an unfair labor practice, the seriousness of the offense and the likelihood of its repetition, the willingness of the charged party to settle, the adequacy of the remedy available under the proposed settlement, and the government resources available for prosecution of the complaint. See, e.g., Roselle Shoe Corp., 135 N.L.R.B. 472, 475 (1962), enforced sub nom. Textile Workers Union of America v. NLRB, 315 F.2d 41 (D.C. Cir. 1963); see also Container Systems Corp. v. NLRB, 521 F.2d 1166, 1171- 1172 (2d Cir. 1975); Farmers Co-Operative Gin Ass'n, 168 N.L.R.B. 367, 368 (1967). These determinations are often made before a complaint has issued, but that is not always the case. Circumstances may change or events come to light after a complaint has issued that make it advisable to terminate the proceeding or accept a settlement. Indeed, the charged party may not be willing to settle until a complaint has issued. /13/ As Judge Friendly observed, the General Counsel's authority "'in respect of the prosecution of * * * complaints before the Board' must include the power to determine whether a complaint can be successfully prosecuted and, if he thinks not, to drop it; by the same token he has power to consider and decide whether the public interest would be better served by settlement." Local 282, International Brotherhood of Teamsters v. NLRB, 339 F.2d 795, 799 (2d. Cir. 1964) (citation omitted); accord, Jackman v. NLRB, 784 F.2d. 759, 763-764 (6th Cir. 1986). Judge Friendly observation is just as pertinent after a complaint has been filed as before. This court's decision in Cuyahoga Valley Railway Co. v. United Transportation Union, No. 84-1634 (Nov. 4, 1985) (per curiam), directly supports the view that the General Counsel's decision to enter into an informal settlement and withdraw a complaint falls within her prosecutorial discretion and therefore cannot be characterized as Board action. That case involved the enforcement scheme established by the Occupational Safety and Health Act, 29 U.S.C. (& Supp. III) 651 et seq. The Secretary of Labor is empowered by the statute to inspect working conditions and issue citations to employers that he finds to be in violation of the Act; if the employer contests the validity of the citation and the Secretary decides to seek enforcement, he issues a complaint and prosecutes the case before an administrative law judge and the Occupational Safety and Health Review Commission. 29 U.S.C. (& Supp. III) 658-661. The question presented in Cuyahoga Valley Railway Co. was whether the Commission could review the Secretary's decision to withdraw a citation and complaint. The Sixth Circuit ruled that the Commission could review that decision; this Court summarily reversed. It found that "(a) necessary adjunct of (the Secretary's power to issue citations) is the authority to withdraw a citation and enter into settlement discussions" (slip op. 4). Observing that "the Commission itself was created to avoid giving the Secretary both prosecutorial and adjudicatory powers," the Court concluded that permitting the Commission to review the Secretary's decision to settle and withdraw a citation "would * * * allow the Commission to make both prosecutorial decisions and to serve as the adjudicator of the dispute, a commingling of roles that Congress did not intend" (id. at 4-5). In view of the similar division of authority between the General Counsel and the NLRB, the General Counsel's decision to withdraw a complaint and enter into an informal settlement agreement plainly falls within the General Counsel's discretion under Section 3(d). /14/ 2. Permitting a charging party to obtain judicial review of the General Counsel's decision to withdraw a complaint would upset Congress's deliberate assignment of roles in the adjudication of unfair labor practice charges and would defeat the overriding policy favoring settlements. In enacting the Act, Congress "made a careful adjustment of the individual and administrative interests throughout the course of litigation over a labor dispute" (Auto Workers v. Scofield, 382 U.S. 205, 209 (1965)). An unfair labor practice proceeding may not be initiated sua sponte by either the General Counsel or the Board, but instead is begun by a charge filed by a private party. Once the charge is filed, however, control passes to the General Counsel, who has "final authority" with respect to the issuance of a formal complaint and the prosecution of that complaint before the Board. 29 U.S.C. 153(d), 160; NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-139 (1975); Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 264-266 (1940). /15/ Allowing charging parties and the courts to secondguess the General Counsel's prosecutorial decisions would make it much more difficult for the General Counsel to resolve matters by informal settlement. Amicable settlements are "the life-blood of the administrative process" (Attorney General's Committee on Administrative Procedure, Administrative Procedure in Government Agencies, Final Report, S. Doc. 8, 77th Cong., 1st Sess. 35 (1941)). The National Labor Relations Board "has from the very beginning encourage compromises and settlements" (Wallace Corp. v. NLRB, 323 U.S. 248, 253-254 (1944) (footnote omitted)). Informal settlement agreements of the type involved in this case "permit the Board to concentrate its quasi-judicial activities on other matters, thereby enhancing its overall efficient administration" (Jackman v. NLRB, 784 F.2d at 764). At present, the General Counsel settles approximately 92% of all meritorious cases. /16/ Informal settlements following the issuance of a complaint constitute a significant number of those cases. /17/ The General Counsel's ability to secure informal settlements prior to hearing obviously depends upon whether she can assure a changed party that the settlement will resolve the matter and that the charged party will avoid both the costs of a hearing and appeals to the Board and the courts and the risk of a less favorable outcome. A charged party has little incentive to enter into a settlement that does not put the matter to rest. Permitting judicial review of informal settlements would therefore provide a strong disincentive to settlement and "obstruct expeditious Board dispositions without concomitant benefit to its decision-making process" (NLRB v. Oil Chemical & Atomic Workers International Union, 476 F.2d 1031, 1036 (1st Cir. 1973)). Congress's desire to achieve the prompt and peaceful resolution of industrial labor disputes weighs strongly against judicial review in this context. Cf. Cuyahoga Valley Railway Co. v. United Transportation Union, slip op. 4 (observing that permitting administrative review of the Secretary of Labor's decision to withdraw a citation pursuant to an informal settlement "would discourage the Secretary from seeking voluntary settlements with employers in violaton of the Act, thus unduly hampering the enforecement of the Act"). /18/ B. The General Counsel's Decision Is Not Subject To Judicial Review Under The Administrative Procedure Act The Third Circuit in Leeds & Northrup Co. v. NLRB, 357 F.2d 527 (3d Cir. 1966), also invoked the Administrative Procedure Act to justify its conclusion that the General Counsel's decision to withdraw a complaint was subject to its review (see 357 F.2d at 531, 532). As a threshold matter, the Leeds & Northrup court and the court below plainly erred in suggesting that the APA authorizes review in a court of appeals: even if the charging party did have a right to judicial review under the APA, that statute is not a grant of jurisdiction (see 5 U.S.C. 703; Califano v. Sanders, 430 U.S. 99, 104-107 (1977)). In the absence of a statute conferring jurisdiction for direct review of an agency decision on a court of appeals, the cause of action created by the APA may only be asserted in the appropriate district court pursuant to its general federal question jurisdiction (see 28 U.S.C. 1331). The Court may, however, wish to consider the APA issue despite the fact that respondent commenced this action in the court of appeals, because this Court could order the action transferred to the appropriate district court pursuant to 28 U.S.C. 1631 if it concludes that the APA does authorize judicial review. We therefore address the reviewability under the APA of the General Counsel's decision. This Court observed in Heckler v. Chaney, 470 U.S. 821 (1985), that "before any review at all may be had (under the judicial review provisions of the APA), a party must first clear the hurdle of (5 U.S.C.) Section 701(a)" (470 U.S. at 828). That provision states in pertinent part that judicial review is available under the APA "except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law" (5 U.S.C. 701(a)). Judicial review of the General Counsel's decision to enter into an informal settlement and withdraw a complaint is precluded by both of these statutory exclusions. First, the language, structure, and legislative history of the National Labor Relations Act demonstrate that Congress intended to preclude review of the General Counsel's decisions. Second, judicial review is not available because the decision to enter into an informal settlement prior to hearing is committed to the unfettered discretion of the General Counsel. 1. A "statute() preclude(s) judicial review" (5 U.S.C. 701(a) (1)) when the statute and legislative history demonstrate that "Congress intended to preclude judicial review of certain decisions." Heckler v. Chaney, 470 U.S. at 828; see also Block v. Community Nutrition Institute, 467 U.S. 340 (1984); Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444(1979); Dunlop v. Backowski, 421 U.S. 560 (1975). Although the National Labor Relations Act does not in so many words declare that there shall be no judicial review of the General Counsel's prosecutorial decisions, the language and structure of the statute, together with the legislative history, provide the required clear and convincing evidence that Congress intended to preclude judicial review. Cf. Block v. Community Nutrition Institute, 467 U.S. at 346-348, 350-352; Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. at 462. /19/ First, the National Labor Relations Act authorizes court of appeals review of "a final order of the Board" (29 U.S.C. 160(f)). The specification of review in this instance and the absence of any provision of judicial review of the decisions of the General Counsel evidence congressional intent that the General Counsel's decisions are not to be subject to judicial review. Cf. Block v. Community Nutrition Institute, 467 U.S. at 346-347; American Federation of Labor v. NLRB, 308 U.S. at 409-412 (holding that the Board's certification of a bargaining representative was not subject to judicial review because Congress intended to limit judicial review to Board orders relating to unfair labor practice proceedings). Second, Section 3(d) expressly confers upon the General Counsel "final authority, on behalf of the Board, * * * in respect of the prosecution of such compalints before the Board" (emphasis added). The reference to "final authority" indicates that Congress intended to insulate the General Counsel's decisions from any further review, administrative or judicial. Cf. Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. at 455-456 (finding judicial review precluded by statute in part because "(t)he statute is silent on what factors should guide the (administrative) decision"). The legislative history of the National Labor Relations Act confirms that conclusion. /20/ Congress enacted Section 3(d) in order to separate the Board's prosecutorial authority from its adjudicatory authority, and it understood that the general principle that prosecutorial decisions are not subject to judicial review would apply when the General Counsel exercised her authority under Section 3(d). Thus, in response to criticism reagrding the unlimited discretion entrusted to the General Counsel, Senator Taft analogized the General Counsel's authority to the prosecutorial authority exercised by the Attorney General (see page 22, supra). A decision by the Attorney General to dismiss an action in favor of an informal settlement is of course not subject to judicial review in the absence of a statute specifically providing for such review (see Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868)), and Congress plainly intended that the same rule would apply to prosecutorial decisions made by the General Counsel. Jackman v. NLRB, 784 F.2d at 763-764; see pages 21-23, supra. /21/ Finally, permitting judicial review of the General Counsel's determination would "disrupt this complex and delicate administrative scheme" (Block v. Community Nutrition Institute, 467 U.S. at 348). Because a charged party would be reluctant to enter into a settlement where judicial review would be available at the behest of the charging party, it would be much more difficult for the General Counsel to resolve matters by informal settlement (see pages 29-31, supra). 2. Judicial review of the General Counsel's prosecutorial decisions is precluded for a second, independent reason. The APA bars review of "agency action * * * committed to agency discretion by law" (5 U.S.C. 701(a)(2)); this provision applies if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion" (Heckler v. Chaney, 470 U.S. at 830). The Court held in Chaney that "an agency's decision not to take enforcement action" is presumptively immune from judical review; the presumption may be rebutted "where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers" (id. at 832-833 (footnote ommitted)). The NLRB General Counsel's decision not to file an unfair labor practice complaint is a well established instance of such unreviewable prosecutorial discretion. See id. at 831, citing Vaca v. Sipes, 386 U.S. at 182. Her decision to withdraw a complaint prior to hearing pursuant to an informal settlement is a virtually indistinguishable exercise of prosecutorial discretion, equally unguided by the statute and equally unsuited to judicial review. a. A decision to exercise prosecutorial discretion by withdrawing a complaint and entering into an informal settlement involves the same considerations that led this Court to conclude in Chaney that a decision not to take enforcement action in presumptively immune from judicial review. Settlement often becomes possible only after a complaint is filed because it takes the reality rather than the threat of a complaint to bring about a settlement. But in both situations the decisionmaker must consider "not only * * * whether the agency is likely to succeed * * *, whether the particular enforcement action requested best fits the agency's overall policies, and indeed, whether the agency has enough resources to undertake the action at all" (Chaney, 470 U.S. at 831). In determining whether to dismiss an enforcement proceeding in favor of an informal settlement, "(t)he agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities." Id. at 832; cf. Moog Industries, Inc. v. FTC, 355 U.S. 411, 413 (1958); Action on Safety & Health v. FTC, 498 F.2d 757, 761-762 (D.C. Cir. 1974). /22/ Moreover, in the absence of statutory standards, a court would have little basis for evaluating the correctness of the administrative decision to enter into an informal settlement. The problem was described by the three Justices who dissented in Maryland v. United States, 460 U.S. 1001 (1983), from summary affirmance of the district court's decision approving a consent decree in an antitrust action. The district court had acted pursuant to a statute that bars the entry of an antitrust consent decree unless the court first determines "that the entry of such judgment is in the public interest" (15 U.S.C. 16(e)). Justice Rehnquist stated that "(t)he question assigned to the district courts by the Act is a classic example of a question committed to the Executive" (460 U.S. at 1005). He continued (id. at 1006): The question whether to prosecute a lawsuit is a question of the execution of the laws, which is committed to the Executive by Art. II. There is no standard by which the benefits to the public from a "better" settlement of a lawsuit than the Justice Department has negotiated can be balanced against the risk of an adverse decision, the need for a speedy resolution of the case, the benefits obtained in the settlement, and the availability of the Department's resources for other cases. How is a court to decide whether a better settlement in a case involving one industry is more important to the public than the benefits that might be gained by immediately working on an antitrust problem in another industry? Finally, the decision requires an evaluation of an initial policy decision -- whether the benefits that might be obtained in a lawsuit are worth the risks and costs -- that is clearly for nonjudicial discretion. The Court relied in Chaney on essentially the same point: a court is not in a position to second-guess the prosecutor's judgment about the strength of his case, the importance of this case versus other uses of his resources, and whether the likely benefits exceed the risks and costs of a particular enforcement action. The decision of a presidentially appointed prosecutor, like the NLRB General Counsel, to enter into a settlement prior to the beginning of adjudicatory activity is surely, under Chaney, at least presumptively unreviewable absent a clear congressional directive to the contrary. b. The presumption against judicial review of an agency decision to terminate an enforcement proceeding can be overcome only if Congress "has indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standards for defining the limits of that discretion" (Chaney, 470 U.S. at 834). Nothing in the National Labor Relations Act indicates an intent to limit the General Counsel's prosecutorial discretion or sets forth standards to govern her exercise of that discretion. As we have discussed, the language and legislative history of the statute instead make clear that Congress intended to leave those decisions to the unfettered discretion of the General Counsel. It is well settled that Section 3(d) grants the General Counsel "unreviewable discretion to refuse to institute an unfair labor practice complaint." Vaca v. Sipes, 386 U.S. at 182; see also NLRB v. Sears, Roebuck & Co., 421 U.S. at 155. The courts of appeals have uniformly held that the Administrative Procedure Act does not authorize the district courts to review the General Counsel's refusal to issue a complaint. See, e.g., Associated Builders & Contractors, Inc. v. Irving, 610 F.2d 1221, 1224-1226 (4th Cir. 1979), cert. denied, 446 U.S. 965 (1980); International Association of Machinists v. Lubbers, 681 F.2d 598, 602-603 (9th Cir. 1982); Saez v. Goslee, 463 F.2d 214, 215 (1st Cir.), cert. denied, 409 U.S. 1024 (1972); Hourihan v. NLRB, 201 F.2d 187, 188 (D.C. Cir. 1952). /23/ The language of Section 3(d) and its legislative history make clear that the General Counsel's prosecutorial discretion does not terminate upon the issuance of the complaint, but extends to settlement decisions made in the course of prosecuting the complaint before the Board (see pages 19-22, supra). Indeed, as we have discussed, permitting the charging party to obtain judicial review of settlement decisions will upset the administrative plan crafted by Congress. Because the General Counsel's discretionary authority encompasses a decision whether to withdraw a complaint in favor of an informal settlement (see pages 25-28, supra), such decisions are not subject to judicial review under the APA. /24/ II. THE CHARGING PARTY IS NOT AUTOMATICALLY ENTITLED TO AN EVIDENTIARY HEARING Even if it had been proper for the court of appeals to undertake review here, the court plainly erred in ruling (Pet. App. 11a-12a) that in this and every other case the General Counsel must hold an evidentiary hearing to consider the charging party's objections to an informal settlement. Respondent's objections to the informal settlement in this case did not depend on any disputed facts, and no purpose would be served by affording respondent an evidentiary hearing. /25/ Nothing in the National Labor Relations Act mandates an evidentiary hearing every time a charging party objects to a settlement. The Act grants the charged party a right to a hearing in an unfair labor practice proceeding, and the Board "in its discretion" may permit any other person, such as a charging party, to intervene and present testimony. 29 U.S.C. 160(b); Amalgamated Utility Workers v. Consolidated Edison Co. 309 U.S. at 264-265. The Board has exercised that discretion to permit a charging party to present evidence and cross-examine witnesses at the unfair labor practice hearing. See 29 C.F.R. 102.38. With respect to a settlement, however, the charging party is limited to the submission of a written statement setting forth its objections to the settlement agreement. 29 C.F.R. 101.6, 101.9(c)(1) and (2). Thus, neither the statute nor the Board's rules support the hearing requirement imposed by the court below. /26/ Nor does the Administrative Procedure Act mandate an evidentiary hearing in connection with a settlement. The portion of the APA concerning settlement procedures provides "all interested parties" with certain procedural rights in connection with settlements (5 U.S.C. 554(c)). The purpose of that provision, however, is to ensure "that informal means of settlement be made available, and not at all to broaden the category of those (persons) entitled to demand a hearing -- an issue left for determination under the relevant substantive statutes" (Local 282, International Brotherhood of Teamsters v. NLRB, 339 F.2d at 801). The courts have consistently held that the APA does not direct an agency to hold an evidentary hearing; it merely specifies the procedure to be followed when a hearing is required by some other statute. Colorado v. Veterans Administration, 602 F.2d 926, 928 (10th Cir. 1979), cert. denied, 444 U.S. 1014 (1980); Sisselman v. Smith, 432 F.2d 750, 754 (3d Cir. 1970); Webster Groves Trust Co. v. Saxon, 370 F.2d 381, 385-386 (8th Cir. 1966). Since the Act does not entitle a charging party to demand a hearing in connection with a settlement, the APA settlement procedures do not come into play. Local 282, Internationl Brotherhood of Teamsters v. NLRB, 339 F.2d at 800; see also NLRB v. Oil, Chemical & Atomic Workers International Union, 476 F.2d at 1034-1035; Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d 61, 68 n.9 (5th Cir. 1971). The Third Circuit's determination that a charging party is always entitled to an evidentiary hearing on its objections to a settlement agreement contravenes this Court's admonition that lower courts should not "engraft() their own notions of proper procedures upon agencies entrusted with substantive functions by Congress" (Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 525 (1978)). The Court explained (id. at 543-544 (citations omitted)) that: (a)bsent constitutional constraints or extremely compelling circumstances the "administrative agencies 'should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.'" The hearing requirement imposed by the Third Circuit would, as a practical matter, force the General Counsel to litigate many more cases. Charged parties settle cases in order to resolve matters at minimal cost and risk. If, after agreeing to a settlement, a charged party must nevertheless face not only the delay and cost of a hearing but the risk of a worse result, many fewer charged parties will be willing to settle. The Board's rules permitting charging parties to file objections to informal settlements and requiring the General Counsel to issue a statement of reasons in the event the settlement agreement is approved properly accommodate the relevant interests, ensuring charging parties an opportunity to present their views while preserving settlement as a useful enforcement tool. Indeed, the courts of appeals other than the Third Circuit are in essential agreement that an evidentiary hearing is not required in every case. All that is necessary is that the charging party be afforded an adequate opportunity to present its objections to the General Counsel and, where Board review is involved, to the Board. See George Ryan Co. v. NLRB, 609 F.2d 1249, 1252, 1253 (7th Cir. 1979); Oshkosh Truck Corp. v. NLRB, 530 F.2d 744, 748-749 (7th Cir. 1976); ILGWU, 501 F.2d at 832; NLRB v. Oil, Chemical & Atomic Workers International Union, 476 F.2d 1031, 1036 (1st Cir. 1973); NLRB v. International Brotherhood of Electrical Workers, Local 357, 445 F.2d 1015, 1016 (9th Cir. 1971); Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d at 68; Local 282, International Brotherhood of Teamsters v. NLRB, 339 F.2d at 798. /27/ Some courts have stated that an evidentiary hearing should be held where the charging party's objections raise a disputed issue of material fact. George Ryan Co. v. NLRB v. Oil, Chemical & Atomic Workers International Union, 476 F.2d at 1036; NLRB v. International Brotherhood of Electrical Workers, Local 357, 445 F.2d at 1016, 1017-1018; Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d at 68; but see Local 282, International Brotherhood of Teamsters v. NLRB, 339 F.2d at 799-801 (charging party is never entitled to an evidentiary hearing on its objections to a settlement). The Court need not resolve that question in this case because respondent's objections raised no such factual issue. The record shows that respondent was afforded a full opportunity to assert objections to the settlement agreements. Pursuant to the Board's regulations and statement of procedure, respondent's views were fully considered and addressed by the regional director and the General Counsel. The factors prompting the regional director and General Counsel to accept the settlements were clearly articulated and communicated to respondent. See Pet. App. 14a-18a. Respondent raised no claim of a factual dispute in objecting to the settlement. Its assertions related solely to the propriety of the General Counsel's discretionary determinations regarding the sufficiency of the relief provided by the settlement agreements. Id. at 11a; see pages 8-9, supra. Indeed, the court of appeals acknowledged that holding an evidentiary hearing in this case "might * * * result in mere adherence to an empty formality" (Pet. App. 11a). There simply is no justification for burdening the settlement process with an unnecessary procedural requirement -- not justified by any statute or regulation -- whose sole effect is likely to be the obstruction of voluntary settlements. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted CHARLES FRIED Solicitor General LOJIS R. COHEN Deputy Solicitor General ANDREW J. PINCUS Assistant to the Solicitor General ROSEMARY M. COLLYER General Counsel JOHN E. HIGGINS, Jr. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel ERIC G. MOSKOWITZ Attorney National Labor Relations Board APRIL 1987 /1/ The NLRB has also adopted a statement of procedure describing the process that it follows in adjudicating unfair labor practice cases (29 C.F.R. 101.2-101.16). /2/ The charging party may obtain review by the General Counsel of the regional director's decision to dismiss a charge. 29 C.F.R. 101.6, 102.19. /3/ In the event the charged party fails to comply with an informal settlement agreement, the General Counsel, through the regional director, may set aside the agreement and institute formal complaint proceedings. 29 C.F.R. 101.7, 101.9(e)(2). /4/ In the event the charged party fails to comply with the informal settlement, the General Counsel may reinstate the unfair labor practice complaint. 29 C.F.R. 101.9(e)(2). /5/ "A.R." refers to the administrative record filed in the court of appeals. We have consecutively numbered the pages of the record and our citations correspond to those page numbers. /6/ In its appeal to the General Counsel, respondent did not raise its contentions that the 60-day posting period was too short and that the agreements were deficient because they did not bar the company's employees from engaging in union organizing activities (A.R. 115-119). /7/ We emphasize that this case concerns the reviewability of a decision to enter into an informal settlement and withdraw a complaint prior to hearing. Once the hearing has begun, the Board's regulations require the General Counsel to obtain the approval of the ALJ before withdrawing the compalint, and the charged party may present to the ALJ its objections to the settlement. The regulations permit the charging party to seek Board review of the ALJ'S determination, and the Board's action, like any other final action of the Board, is subject to judicial review pursuant to 29 U.S.C. 160(f). See 29 C.F.R. 101.9(b), 101.9(c)(2), 101.9(d). /8/ This Court has previously interpreted Section 10(f) in accordance with its plain language. In American Federation of Labor v. NLRB, 308 U.S. 401 (1940), the Court held that the certification of the bargaining representative under Section 9(c) of the Act, 29 U.S.C. 159(c), was not reviewable under Section 10(f) unless and until it became the basis for an unfair labor practice order issued under Section 10(b) and (c). The Court found that "(t)he statute on its face * * * indicates a purpose to limit the review afforded by Section 10 to orders of the Board prohibiting (or declining to prohibit) unfair labor practices, a purpose and a construction which its legislative history confirms" (308 U.S. at 409). /9/ "Leg. Hist." refers to Senate Comm. on Labor and Public Welfare, 93d Cong., 2d Sess., Legislative History of the Labor Management Relations Act, 1947 (Comm. Print 1974). /10/ The bill passed by the House of Representatives had "created a new independent agency under an administrator to be appointed by the President "subject to Senate confirmation) to perform the investigating and prosecuting functions" (93 Cong. Rec. 6442 (1947) (remarks of Sen. Taft); Leg. Hist. 1538). The final version of the statute accomplished the "separation of functions within the framework of the existing agency by establishing a new statutory office, that is, a general counsel of the Board" to exercise prosecutorial authority independent of the Board (ibid.). /11/ See Findling, NLRB Procedures: Effects of the Administrative Procedure Act, 33 A.B.A.J. 14, 17 (Jan. 1947). /12/ In International Ladies' Garment Workers Union (ILGWU) v. NLRB, 501 F.2d 823, 828-831 "D.C. Cir. 1974), the court of appeals reached a different conclusion regarding the legislative history of Section 3(d). It asserted that the statement in Section 3(d) that the General Counsel exercises her authority "on behalf of the Board" indicates that Congress intended "that the actions of the General Counsel in dealing with unfair labor practices were to constitute Board action" (501 F.2d at 829-830 (footnote omitted)). But, as Representative Hartly explained, the sole purpose of the statement in Section 3(d) that the General Counsel acts "on behalf of the Board" was to avoid the need to create a separate administrative agency to house the General Counsel: "(t)he reference to the Board (in Section 3(d)) was necessary because, in order to have (the General Counsel) independent of the Board, we had to use the term 'Board.' Otherwise, we would have had to set up a completely independent agency. * * * He acts on behalf of the board but completely independent of the Board." 93 Cong. Rec. 6383 (1947); Leg. Hist. 883. The legislative history elsewhwere further confirms that Congress's use of this term is irrelevant to the reviewability in court of the General Counsel's decisions. The House version of the bill, which would have transferred the Board's prosecutorial authority to a separate agency (see note 10, supra), contained no provision for judicial review of the prosecutor's actions. See H.R. 3020, 80th Cong., 1st Sess. (1947); Leg. Hist. 31-98. Congress's decision to reject the structural approach in the House bill, and create a General Counsel within the same agency as the Board for administrative purposes, in no way indicates that Congress intended the entirely unrelated consequence of subjecting the General Counsel's decisions to judicial review as if they were decisions by the Board. If the ILGWU court were right, moreover, any decision of the General Counsel that finally disposes of a case would be subject to judicial review under Section 10(f). That result would be inconsistent with the well settled rule, discussed in the text, that decisions of the General Counsel declining to issue a complaint are not subject to judicial review. The ILGWU court's interpretation of the legislative history of Section 3(d) simply cannot be reconciled with that fundamental principle. /13/ A few courts have suggested that where the General Counsel "withdraws a complaint on the basis of an informal settlement agreement which provides for an adjustment of the conflicting interests of the private parties and thus partially or wholly remedies the underlying labor dispute," her prosecutorial role "assume(s) essentially adjudicatory attributes." ILGWU, 501 F.2d at 831; see also International Association of Machinists v. Lubbers, 681 F.2d 598, 604 (9th Cir. 1982), cert. denied, 459 U.S. 1201 (1983) (holding that General Counsel's decision to withdraw a complaint on the ground that the available evidence would not support further prosecution is not subject to judicial review but suggesting that withdrawal of a complaint in favor of a settlement may be subject to judicial review because a settlement "involves the restructuring of the charging party's 'private rights'"); George Banta Co. v. NLRB, 626 F.2d 354, 356-357 (4th Cir. 1980), cert. denied, 449 U.S. 1080 (1981) (same). The suggested distinction is wholly unsupportable. Withdrawal of a complaint for any reason effectively resolves conflicting claims of statutory entitlement. A withdrawal for lack of merit resolves against the charging party its claim that it is entitled to protection under the Act. Withdrawal in favor of settlement represents a judgment that, in view of all of the circumstances, continued litigation of the case is not appropriate. For example, it may serve the policies of the Act to accept a settlement with a relatively lenient remedy when the evidence of a violation is weak; on the other hand, the General Counsel might be able to obtain an agreement to provide full relief when the evidence on the merits is stronger. Indeed, the decision to withdraw a complaint without any settlement presumably has a greater adverse impact on the charging party's interests than the decision to accept a settlement that grants some, but not all, of the relief sought by the charging party. It makes no sense to require judicial review at the behest of the charging party in the latter context while barring any review in the former. /14/ The ILGWU court found a "substantial similarity between a 'formal' and an 'informal' settlement" in that "(e)ach finally ends an unfair labor practice proceeding by 'granting or denying in whole or in part the relief sought.'" ILGWU, 501 F.2d at 830; see also Leeds & Northrup Co. v. NLRB, 357 F.2d 527, 531 (3d Cir. 1966). But a formal settlement requires a "final order of the Board" and is therefore subject to judicial review under the plain language of Section 10(f). An informal settlement involves no Board or ALJ action. In addition, a charged party's failure to comply with an informal settlement results in the reinstatement of the complaint; a formal settlement is enforceable against the charged party in court. /15/ The charging party may participate in the administrative proceeding, but the proceeding remains within the control of the General Counsel. See, e.g., Piasecki Aircraft Corp. v. NLRB, 280 F.2d 575, 578-588 (3d Cir. 1960), cert. denied, 364 U.S. 933 (1961) (charging party cannot enlarge the proceeding before the Board beyond the scope of the complaint issued by the General Counsel); cf. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 265 (1940) (observing that the charging party "does not become the actor in the proceeding"). Similarly, the charging party is afforded notice and an opportunity to comment on a settlement agreement, but its consent is not required for the consummation of the agreement. See 29 C.F.R. 101.7, 101.9, 102.19. /16/ Office of the General Counsel, NLRB, Summary of Operations for Fiscal Year 1986, at 5 (Feb. 25, 1987). /17/ In fiscal year 1983, the most recent year for which statistics are available, the NLRB settled a total of 10,632 cases. Of those, 3,931 were settled after the issuance of a complaint and before the commencement of a hearing before an administrative law judge; almost all of those settlements -- 3,803 -- were informal settlements of the sort at issue in this case. 48 NLRB Ann. Rep. 183-185 (1983). /18/ In Auto Workers v. Scofield, 382 U.S. 205 (1965), the Court held that a successful charging party may intervene when the charged party seeks review in a court of appeals of a Board order granting releif; it also concluded that a charged party may intervene in the judicial review proceeding commenced by a charging party seeking review of the Board's dismissal of a complaint following a hearing on the merits. Scofield supports our contention that the General Counsel's prosecutorial decisions are not reviewable under Section 10(f). The Court in Scofield framed its inquiry in terms of congressional intent: it concluded that Congress would not have intended to bar these parties from intervening in judicial review proceedings. See 382 U.S. at 216-217, 222. Here, by contrast, congressional intent points strongly against judicial review of the General Counsel's decisions. Moreover, Scofield addressed situations in which it was clear the Board's decisions would be examined on judicial review; the question was whether additional parties should be permitted to participate in those review proceedings. The Court found that considerations of efficiency and fairness weighed in favor of intervention (382 U.S. at 212-214, 220), specifically observing that "(t)he rights typically secured to an intervenor in a reviewing court * * * are not productive of delay nor do they cause complications in the appellate courts" (id. at 215). The Court in Scofield was not called upon to consider the effect upon the administrative process of an expansion of the right of judicial review. We submit that the practical considerations cited by the Court in permitting intervention weigh against subjecting review: the availability of such review will interfere with the General Counsel's exercise of her prosecutorial discretion and diminish the likelihood of settlement, thereby upsetting the administrative plan crafted by Congress. /19/ In the brief for the petitioner in Heckler v. Chaney, supra, the Solicitor General stated (Pet. Br. at 19 n.10) that Section 3(d) was intended by Congress to bar further administrative, rather than judicial, review of the General Counsel's decisions and that judical review was not available solely because presecutorial decisions are committed to the unfettered discretion of the General Counsel. The Solicitor General now believes that statement was unwarranted and that judicial review of the General Counsel's prosecutorial decisions is not available both because the statute precludes judicial review and because those decisions are committed to the General Counsel's discretion. The statement in the brief in Chaney is not supported by the structure of the Act or the legislative history of Section 3(d) and did not represent the view of the National Labor Relations Board, which was not consulted in connection with the preparation of the brief in Chaney. The proper construction of Section 3(d) was not at issue in Chaney and the Court's opinion does not indicate that its decisions was based upon any determination with respect to that question. /20/ Indeed, even though the APA was passed only one year before the creation of the Office of the General Counsel and figured in the debates over some aspects of the General Counsel's role (see, e.g., 93 Cong. Rec. 6455 (1947); Leg. Hist. 1559), Congress nowhere indicated that it intended to subject the General Counsel's decisions to judicial review under that statute. /21/ The Court stated in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), that the analogy between an unfair labor practice proceeding and a criminal prosecution was "far from perfect" (421 U.S. at 156 n.22), but the only limitation upon the General Counsel's prosecutorial discretaion cited by the Court was that the General Counsel may issue a complaint only after a private party has filed an unfair labor practice charge. The Court also noted that the Board's rules and regulations accord a charging party the status of "party" to the unfair labor practice proceeding once a complaint issues, but the Board's rules and regulations expressly limit the charging party's participation (see note 26, infra) and do not affect the General Counsel's prosecutorial discretion either to refuse to issue a complaint or to withdraw a complaint as part of an informal settlement prior to the hearing. /22/ Like an agency's decision not to act, an informal settlement generally does not involve the exercise of an agency's "coercive power over an individual's liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect" (Chaney, 470 U.S. at 832 (emphasis in original)). If the agency chooses to exercise its coercive authority by proceeding with an enforcement action, "that action itself provides a focus for judicial review" (ibid.). /23/ In Dunlop v. Bachowski, supra, the Court held that a decision of the Secretary of Labor not to file suit to set aside an election for union office pursuant to Section 402(b) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. 482(b), was subject to judicial review. The Court adopted the reasoning and conclusion of the court of appeals in that case that the Secretary's refusal to file was not "an unreviewable exercise of prosecutorial discretion" (421 U.S. at 567 n.7). It is noteworthy that the court of appeals had expressly distinguished the situation under the National Labor Relations Act on the ground that the LMRDA charges the Secretary with vindicating private as well as public rights. The court explained (Bachowski v. Brennan, 502 F.2d 79, 87 n.11 (3d Cir. 1974)): The case is, therefore, distinguishable from Vaca v. Sipes, 386 U.S. 171, 182-183 n.8, 87 S.Ct. 903, 913 17 L.Ed.2d 842 (1967), where the Court held that the General Counsel of the National Labor Relations Board has unreviewable discretion to refuse to institute an unfair labor practice complaint because, under Section 10(c) of the National Labor Relations Act, "(t)he public interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee, is always the Board's principal concern in fashioning unfair labor practice remedies." See also Chaney, 470 U.S. at 833 (distinguishing Bachowski on the ground that it "presents an example of statutory language which supplied sufficient standards to rebut the presumption of unreviewability"). /24/ While there is jurisdiction in the district courts to review agency action that is "in excess of its delegated powers and contrary to a specific prohibition in the Act" (Leedom v. Kyne, 358 U.S. 184, 188-189 (1958)), there is no allegation here that the General Counsel's acceptance of the settlement was prohibited by the Act. Indeed, as the Ninth Circuit noted in Baker v. International Alliance of Theatrical Stage Employees, 691 F.2d 1291, 1296-1297 (1982), "it is difficult to imagine a situation where the refusal of the General Counsel to issue a complaint would violate as express statutory command of the Act * * *, because nothing in it requires the General Counsel to issue complaints upon the finding of a violation." /25/ The question whether it is proper for a court of appeals to direct an evidentiary hearing is of general significance even though we contend that in this case the court should not have undertaken any review at all: courts of appeals plainly do have authority to review formal settlements (involving final Board orders), and the hearing issue may arise in the context as well. However, if this Court determines that the court of appeals lacked jurisdiction over this action, it need not address the question whether respondent was entitled to an evidentiary hearing. /26/ The Board's rules include a charging party within the definition of "party" (29 C.F.R. 102.8), but that same provision states that the definition does not "prevent the Board or its designated agent from limiting any party to participate in the proceedings to the extent of his interest only." The Board has exercised the latter authority by declining to accord charging parties a right to an evidentiary hearing concerning their objections to a settlement. In the case of informal settlements entered into prior to the commencement of a hearing before an administrative law judge, charging parties may submit written statements to the regional director and obtain review of the regional director's decision by the General Counsel. 29 C.F.R. 101.6, 101.9(c), 102.19. If the informal settlement is reached after the hearing has begun, the charging party may submit a written statement to the ALJ or state on the record its objections to the settlement. It may seek review by the Board of the ALJ'S decision to approve the settlement. 29 C.F.R. 101.9(d)(1) and (2). With respect to formal settlements, the charging party also may submit objections and, if the formal settlement is approved by the regional director and the General Counsel, the charging party may appeal to the Board. 29 C.F.R. 101.9(c)(2). /27/ Some courts have also stated that the General Counsel or the Board must provide the charging party with a statement of the reasons for the denial of its objections to the settlement. There is no claim here that the statements of reasons provided to respondent by the regional director and the General Counsel (see Pet. App. 14a-18a) were deficient in any way. APPENDIX