Muniz v. U.S., s. 91-1238
| Decision Date | 17 August 1992 |
| Docket Number | 91-1309 and 91-5069,Nos. 91-1238,s. 91-1238 |
| Citation | 972 F.2d 1304 |
| Parties | 141 L.R.R.M. (BNA) 2313, 122 Lab.Cas. P 35,693, 1 Wage & Hour Cas.2d (BNA) 9 Robert A. MUNIZ, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee. Jay E. ALBRECHT; Bert D. Alton, III; Roy L. Ashlock, Sr.; Marc Bergman; Merwyn L. Bickler; Jorge A. Blackwood; Walter Blayney, Jr.; Ervin Byler; John B. Cassidy; Eufemio R. Castillo; H.J. Chellon; Bruce A. Curry; Ralph J. Daley; Donzell Digby; James W. Doty; Carl Doty; William T. Flartey; Charles R. Ford; Richard A. Frerkes; Leo Gladu; Joseph Gomes, Jr.; Robert A. Grabendike, Jr.; Harry Halpin; Sanford Hammack; Kelly Bond Hartman; Thomas F. Holcomb; William A. Hollifield; Arthur Hopwood; Richard G. Hussung; John R. Jay; Martin L. Kimbrell; W.W. Kortum; Arthur C. Kreps; David Lathan; Joseph L. Lemar; Daniel B. Mazzaanti; David Miller; Earle P. Milligan; Glen Openshaw; John J. Ortegel; Ralph Ott; Randy T. Rail; Eugene L. Rienks; Earl J. Rosekrans; Albert Sanchez; Herbert E. Sieler; William H. Simpkinson; Edwardo Sosa; Jimmy Stansbury; James Stidham; Clayton Threewit; Almyra R. Tierney; Richard E. Weimer; Floyd G. White; William A. Williams; Norman Wolfgang; Helen L. Wood; and Wilton A. Woodall, Plaintiffs-Appellants, and Betty Askew; Ernest S. Blaise; Robert J. Brooks; Robert M. Burns, Jr.; John I. Carson; John Carter; Marcelo Casas; Juan C. Castro; Charles E. Collison; William E. Crum; Harold A. DeCesari; Gerald F. Emert; Michael S. Fahey; Clifton Harris; Robert Harada; Donald E. Hart, Jr.; Paul Harvey; Charles A. Holm; Modesto D. Hurtado; Calvin G. Jacobs; Richard A. King; Jerry Knox; Henry E. Lauer; Daniel Lechliter; Robert D. McCarty; William D. McCrillis; Francesca McKeown; Norberto Martinez; Gary Lee Mason; Ronald E. Miele; Gene P. Miller; Lewis M. Mitchell; Norman K. Moore; Charles G. Mullikin; Gerald E. Oakley; Basil T. Puller; Mark L. Rees; Kenneth D. Reinke; Joseph W. Robinson; Dale R. Schreiner; David W. Smith; Randall H. Spencer, Sr.; Scott H. Tufts; Robert E. Whiteside; Gerald E. Winey; Donald F. Wrig |
| Court | U.S. Court of Appeals — Federal Circuit |
Greg W. Jones, Hathaway, Perrett, Webster, Powers & Chrisman, Professional Corp., Ventura, Cal., argued for plaintiffs-appellants in no. 91-1309. With him on the brief was Joseph C. Chrisman.
Scott H. Park, Asst. U.S. Atty., Dept. of Justice, Los Angeles, Cal., argued for defendants-appellees in no. 91-1309. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Lourdis G. Baird, U.S. Atty. and Leon W. Weidman, Asst. U.S. Atty., Chief, Civil Div. Also on the brief was Jane W. Vanneman, Senior Trial Counsel, Commercial Litigation Branch, Washington, D.C., of counsel.
Steven B. Frank, Frank & Rosen, Seattle, Wash., argued for plaintiffs-appellants in no. 91-5069.
Jane W. Vanneman, Senior Trial Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellee in no. 91-5069. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were John Belser, Dept. of the Army, Washington, D.C. and Richard McCurdy, Dept. of the Army, Fort Lewis, Washington, of counsel.
Alan C. Davis, Davis, Reno & Courtney, San Francisco, Cal., argued for plaintiff- appellant in no. 91-1238. With him on the brief was Susan Byrnes.
Jane W. Vanneman, Senior Trial Counsel, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellee in no. 91-1238. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Kay Teeters, Dept. of the Navy, Walnut Creek, Cal., Mary Beth Vitti, Asst. U.S. Atty., San Francisco, Cal. and Bruce I. Waxman, Dept. of Commerce, Washington, D.C., of counsel.
Before MICHEL, CLEVENGER and RADER, Circuit Judges.
Robert A. Muniz appeals the judgment of the United States District Court for the Northern District of California dismissing his complaint for lack of jurisdiction. Muniz v. United States, Civ. No. 89-1894 (N.D.Cal. Feb. 4, 1991). Jay E. Albrecht et al. appeal the judgment of the United States District Court for the Central District of California dismissing their complaint for lack of jurisdiction. Albrecht et al. v. Horner, No. CV-88-1816-HLH (C.D.Cal. Mar. 12, 1991). Scott L. Andreen et al. appeal the judgment of the United States Claims Court dismissing their complaint for lack of jurisdiction. Andreen et al. v. United States, No. 548-88C (Cl.Ct. Feb. 6, 1991).
Because the three appeals raise common issues of law, we consolidated them for decision. For the reasons set forth below, each of the appealed judgments is affirmed.
The appealed cases involve present and former employees of the federal government whose terms and conditions of employment are or were governed by collective bargaining agreements. The agreements are or were between the agencies in which plaintiffs are or were employed and the unions to which they belong or belonged. Section 7121(a) of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 7121(a) (1988), requires that all such agreements contain grievance procedures:
(a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability.... [T]he procedures shall be the exclusive procedures for resolving grievances which fall within its coverage.
Paragraph (2) of section 7121(a) however provides that "[a]ny collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement."
Appellants claim the right to have various kinds of pay computed under the Fair Labor Standards Act (FLSA), an issue they prefer to adjudicate in the courts. The trial courts dismissed their claims, reasoning that these FLSA pay claim disputes were not excluded from the dispute resolution processes provided by the grievance and arbitration procedures contained in the collective bargaining agreements.
In Carter v. Gibbs, 909 F.2d 1452 (Fed.Cir.1990) (in banc ), cert. denied sub nom. Carter v. Goldberg, --- U.S. ----, 111 S.Ct. 46, 112 L.Ed.2d 22 (1990), this court held that the federal courts lack jurisdiction over an FLSA pay dispute not excluded from grievance and arbitration pursuant to section 7121(a)(2). The parties in Carter v. Gibbs agreed that the FLSA pay dispute in the case was a grievable matter and that the relevant collective bargaining agreement did not exclude the dispute from the grievance and arbitration procedures under section 7121(a)(2). This court thus was not required to delineate the interpretative standard to be applied in deciding whether a disputed issue is excluded by section 7121(a)(2), nor was it required to decide if claims of former employees arising from past employment under collective bargaining agreements are still limited by the exclusivity provisions of section 7121(a)(1). These issues are ripe for decision in these consolidated cases.
Muniz was formerly employed by the Department of the Navy as a fire fighter. Upon his separation from government service due to retirement, he was entitled, under 5 U.S.C. § 5551(a) (1988), to a lump sum payment for his accumulated annual leave. The lump sum payment proffered to Muniz did not include his customarily and regularly received FLSA overtime pay pursuant to 29 U.S.C. § 207(k) (1988). Muniz brought suit in the district court to correct the alleged error in computation of his lump sum payment. The government conceded error in the computation but moved to dismiss the case for lack of jurisdiction because Muniz's claim to FLSA entitlement was not excluded from the grievance and arbitration procedures in the collective bargaining agreement to which Muniz had been subject. Citing Carter v. Gibbs and concluding that Muniz's agreement did not contain "adequately specific" language to exclude Muniz's claim from grievance and arbitration, the district court dismissed the complaint for lack of jurisdiction.
The issue thus is not whether Muniz is entitled to a properly calculated lump sum payment, but...
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