The American Federation of Government Employees (National AFGE), several AFGE locals
National AFGE is a national labor organization that represents employees throughout the federal government and AFGE locals represent, inter alia, several bargaining units of ARTs. An ART is a federal employee who is "required as a condition of [] employment to maintain membership in the Selected Reserve" of the Air Force and "is assigned to a civilian position as a technician in the organizing, administering, instructing, or training of the Selected Reserve or in the maintenance and repair of supplies or equipment issued to the Selected Reserve or the armed forces." 10 U.S.C. § 10216(a). On August 6, 2007, the Air Force issued three instructions requiring ARTs to wear military uniforms while performing civilian duties. See Air Force Instruction 36-703 at 4-5 ("Air Reserve Technicians will adhere to the requirements as those prescribed in AFI 36-2903, Dress and Personal Appearance of Air Force Personnel, when wearing the military uniform in civilian status"); Air Force Instruction 36-801 at 6 ("Air Force Reserve Command (AFRC) Air Reserve Technicians (ART) must wear the military uniform while performing civilian duties as an ART"); Air Force Instruction 36-2903 at 9 (uniform wear requirements for ARTs). AFGE claims this requirement harms ARTs because, inter alia, (1) "the Air Force is causing confusion between military and civilian status in an era when having or not having the protections of the Geneva Conventions... is all too real an issue"; (2) "an ART may not stand or walk with hands in pockets other than to insert or remove items in military uniform"; (3) "[a]n ART may no longer use a personal cell phone, radio, [or] hands-free headset while walking and carry a personal cell phone on the flight line while in military uniform"; and (4) "an ART in military uniform is required to salute an officer in a hat-salute and to provide proper respect to those military members that are senior." Br. for Appellants 4.
On April 23, 2008, AFGE filed a complaint in district court against the Secretary of the Air Force (Secretary). It argued that, under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (APA), the Air Force instructions are (1) arbitrary and capricious; (2) contrary to law; and (3) in excess of the Secretary's statutory authority under 10 U.S.C. § 10216. The district court dismissed
"We review de novo the dismissal of a complaint for lack of subject matter jurisdiction." John Doe v. Metro. Police Dep't of D.C., 445 F.3d 460, 465 (D.C.Cir.2006). In so doing, we accept as true the facts alleged in the complaint. See Schnitzer v. Harvey, 389 F.3d 200, 202 (D.C.Cir.2004). AFGE argues that the dismissal of the complaint was error because its claims fall outside the CSRA's scope. We disagree.
The CSRA is a "comprehensive and exclusive" statutory scheme that "protects covered federal employees against a broad range of personnel practices, and ... supplies a variety of causes of action and remedies to employees when their rights under the statute are violated." Grosdidier v. Chairman, Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C.Cir.), cert. denied, 558 U.S. 989, 130 S.Ct. 488, 175 L.Ed.2d 345 (2009). The CSRA creates an "integrated scheme of administrative and judicial review," United States v. Fausto, 484 U.S. 439, 445, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), wherein the Congress "intentionally provid[ed] — and intentionally [chose] not [to] provid[e] — particular forums and procedures for particular kinds of claims." Filebark v. U.S. Dep't of Transp., 555 F.3d 1009, 1010 (D.C.Cir.), cert. denied, 558 U.S. 1007, 130 S.Ct. 487, 175 L.Ed.2d 375 (2009).
The CSRA provides "the exclusive avenue for suit" to a plaintiff whose claims fall within its scope. Grosdidier, 560 F.3d at 497. The plaintiff must rely on the "variety of causes of action and remedies" created by the CSRA and "may not circumvent the Act's requirements and limitations by resorting to the catchall APA to challenge agency employment actions." Id. Even if the plaintiff "cannot prevail in a claim under the CSRA," id., no other relief is available.
Title VII of the CSRA, also known as the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101 et seq. (FSLMRS), governs federal labor-management relations. The FSLMRS "establishes a comprehensive scheme to deal with labor relations in federal employment." Dep't of Def. v. FLRA, 685 F.2d 641, 644 (D.C.Cir.1982). For example, the FSLMRS creates the Federal Labor Relations Authority (FLRA), a five-member decisionmaking body that is the public-sector counterpart of the National Labor Relations Board. See 5 U.S.C. § 7104; Rizzitelli v. FLRA, 212 F.3d 710, 712 n. 1 (2d Cir.2000). The FSLMRS spells out various unfair labor practices, see, e.g., id. § 7116, and defines the duty to bargain between federal management and unions, see id. § 7117. With the FSLMRS, as with all of the CSRA: "Congress passed an enormously complicated and subtle scheme to govern employee relations in the federal sector, including the authorization of collective bargaining. It follows, then, that federal employees may not circumvent that structure" by seeking judicial review outside the CSRA's procedures. Steadman v. Governor, U.S. Soldiers' & Airmen's Home, 918 F.2d 963, 967 (D.C.Cir.1990) (footnote omitted).
The FSLMRS provides several alternative mechanisms to challenge management actions, three of which are pertinent here. See 5 U.S.C. § 7121. First, an aggrieved party may resort to a grievance resolution and arbitration procedure that the
The FSLMRS also provides for judicial review of an FLRA order by petitioning for review in this circuit or "in the circuit in which the person resides or transacts business." Id. § 7123(a). And, although there are two exceptions to judicial review in the appropriate court of appeals,
Because the FSLMRS's remedial regime is exclusive, providing AFGE with multiple options to challenge the dress code, AFGE cannot circumvent this regime by instead bringing a suit in district court.
Specifically, AFGE has at least three administrative options it can use to challenge the dress code. First, a local can attempt to bargain over the dress code and, if the Air Force claims the dress code is non-negotiable, the local can file a negotiability appeal. 5 U.S.C. § 7117(c). In fact, the record includes the example of AFGE Local 1367 — one of the appellants — bargaining with the Air Force over this issue and ultimately pursuing a negotiability appeal with the FLRA (which the FLRA rejected). Second, an AFGE local can allege that imposition of the dress code violates 10 U.S.C. § 10216 — the claim AFGE raises sub judice. Such an allegation easily falls within the definition of a "grievance"
The CSRA can preclude a claim from being brought in a district court even if it forecloses the claim from administrative review and has not "identified some other kind of plaintiff or some other kind of procedure for bringing the claim." Filebark, 555 F.3d at 1013. The case for preclusion is stronger here because the FSLMRS in fact provides a means to review the Air Force instructions — including, in some circumstances, judicial review — via at least these three routes. While the appellants may not prevail using one of these procedures or would prefer to challenge the Air Force instructions by some other means, that does not mean their claims may be brought outside the CSRA's exclusive remedial scheme. Rather, as we have explained, "it is the comprehensiveness of the statutory scheme involved, not the `adequacy' of specific remedies thereunder, that counsels judicial abstention." Spagnola v. Mathis, 859 F.2d 223, 227 (D.C.Cir.1988) (en banc) (per curiam).
The appellants argue that while the CSRA may preclude the AFGE locals' claims, it does not preclude the claims of National AFGE. Specifically, they complain that National AFGE — unlike an employee or a union local with a collective bargaining agreement with the Air Force — has no relief under the FSLMRS and thus should be permitted to proceed outside the CSRA to seek relief. But the fact that National AFGE may not pursue a claim through the CSRA does not mean that it has access to the courts. Rather, it means that National AFGE may not raise the claim at all. The CSRA's exclusion of certain parties from judicial review is "not an invitation to those [parties] to sue under other statutes but a `manifestation of a considered congressional judgment that they should not have statutory entitlement to review.'" Filebark, 555 F.3d at 1013 (quoting Fausto, 484 U.S. at 448-49, 108 S.Ct. 668); Davis v. Billington, 681 F.3d 377, 388 (D.C.Cir.2012) ("Indeed, the only evidence Davis uses to suggest he is not `included' in the CSRA's comprehensive remedial scheme is the lack of relief available to him under that scheme.... [T]his is certainly not a sufficient reason to place a claimant and his claims outside the ambit of a comprehensive remedial scheme...."). The FSLMRS provides the exclusive procedures by which federal employees and their bargaining representatives may assert federal labor-management relations claims. To the extent the procedures omit other parties — like a national
Similarly, we reject AFGE's argument that the district court has jurisdiction because it can more efficiently adjudicate AFGE's claim that the Air Force instructions are contrary to statute on a nationwide, rather than local-by-local, basis. But a plaintiff's inability to use the APA to circumvent the CSRA's requirements "applies to a `systemwide challenge' to an agency policy interpreting a statute just as it does to the implementation of such a policy in a particular case." Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C.Cir.2009).
Filebark, 555 F.3d at 1014 (citations omitted).
Furthermore, AFGE's reliance on AFGE Local 446 v. Nicholson, 475 F.3d 341 (D.C.Cir.2007) is misplaced. In Nicholson, an AFGE local representing
Finally, we note that the district court erroneously used the administrative exhaustion doctrine to dismiss the complaint. See Am. Fed. of Gov't Empls., 841 F.Supp.2d at 236. Administrative exhaustion means that a party cannot bring a claim in a particular court until that party follows certain administrative steps. But if judicial review were available to AFGE, it would be available in circuit, not district, court. See 5 U.S.C. § 7123(a). Thus, AFGE's argument that we should waive the requirements of "administrative exhaustion" for equitable reasons misses the point: the exclusive remedial scheme of the CSRA keeps these claims out of the district court entirely.
In sum, the Congress has provided multiple paths by which AFGE can challenge the Air Force instructions. And AFGE cannot disturb the CSRA's exclusive remedial regime by following a path the Congress has closed.
For the foregoing reasons, we affirm the district court's dismissal of the complaint for lack of subject matter jurisdiction.
So ordered.