American Federation of Gov't Employees v. Shinseki

• Decision Date: 28 August 2009
• Docket Number: Civil Action No. 08-1722 (RBW).
• Citation: 648 F.Supp.2d 87
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669, Plaintiff, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, and Michael J. Kussman, Under Secretary for Health, Department of Veterans Affairs, Defendants.
• Court: U.S. District Court — District of Columbia

648 F.Supp.2d 87

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669, Plaintiff, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, and Michael J. Kussman, Under Secretary for Health, Department of Veterans Affairs, Defendants.

Civil Action No. 08-1722 (RBW).

United States District Court, District of Columbia.

August 28, 2009.

Kevin Michael Grile, American Federation of Government Employees, AFL-CIO, Chicago, IL, for Plaintiff.

Andrea McBarnette, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

The American Federation of Governmental Employees, AFL-CIO, Local 3669, the plaintiff in this civil lawsuit, seeks the reversal of a decision issued by the Under Secretary for Health of the Department of Veterans Affairs (the "Under Secretary") on behalf of the Secretary of Veterans Affairs (the "Secretary") pursuant to the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006), and 38 U.S.C. § 7422.¹ Complaint for Injunctive and Declaratory Relief (the "Compl.") ¶¶ 42-57. Currently pending before the Court is the defendants' motion to dismiss the plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) and the plaintiff's cross-motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. After carefully considering the plaintiff's complaint, the parties' cross-motions, all memoranda of law and exhibits relating to those motions, and the administrative record,² the Court concludes that it must deny the defendants' motion to dismiss, grant in part the plaintiff's cross-motion for summary judgment and deny the balance of the motion as moot, reverse the Under Secretary's ruling, and remand this case to the Department of Veterans Affairs for further proceedings consistent with this memorandum opinion.

I. Background

The following facts are either matters of public record, part of the administrative record filed in this case (the "A.R."), or alleged in the plaintiff's complaint. The parties' dispute centers on the applicability of certain provisions of Title VII of the Civil Service Reform Act (the "CSRA"), Pub.L. No. 95-454, 92 Stat. 1111 (1978). Under provisions of that statute now codified in Title 5 of the United States Code, the General Counsel of the Federal Labor Relations Authority (the "Authority") is charged with "investigat[ing] alleged unfair labor practices under [Chapter 71 of Title 5 of the United States Code]" and "[filing] and prosecut[ing] complaints under [that] chapter." 5 U.S.C. § 7104(f)(2). "If any agency or labor organization is charged by any person with having engaged in or engaging in an unfair labor practice, the General Counsel shall investigate the charge and may issue and cause to be served upon the agency or labor organization a complaint." Id. § 7118(a)(1). If "the General Counsel does not issue a complaint because the charge fails to state an unfair labor practice, the General Counsel shall provide the person making the charge a written statement of the reasons for not issuing a complaint." Id.

The CSRA also provides for the "exclusive recognition" of a "labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election." Id. § 7111(a). "A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit." Id. § 7114(a)(1). Further, "any collective bargaining agreement shall provide procedures for the settlement of grievances," and "the[se] procedures shall be the exclusive administrative procedures for resolving grievances which fall within its coverage." Id. § 7121(a)(1).

As alleged in the plaintiff's complaint, the plaintiff "is a labor organization," Compl. ¶ 3, that "has been lawfully delegated authority to act as the exclusive labor organization representative . . . for that portion of a bargaining unit that includes registered nurses and respiratory therapists employed by the Department of Veterans Affairs . . . at the [Department of Veterans Affairs'] Medical Center in Minneapolis, Minnesota [(the "Medical Center")]," id. ¶ 4. "On or about January 11, 2008," the plaintiff allegedly "filed two unfair labor practice . . . charges with the Chicago Regional Office of the [Authority] against the [Medical Center]." Id. ¶ 22. The charges were allegedly filed in response to "two memorandums issued by the [Medical Center]," id., to Barb Galle and Karen Rafter, "two registered nurses" who allegedly "testified in support" of the plaintiff, id. ¶ 11, at a "labor arbitration hearing" held "on or about December 7, 2007," concerning "the propriety of a removal of a respiratory therapist employed by the [Department of Veterans Affairs] at the [Medical Center]," id. ¶ 9. Allegedly, "both [] Galle and [] Rafter have been[] and are[] members of [the plaintiff]." Id. ¶ 12.

The memoranda allegedly issued by the Medical Center addressed certain testimony that Galle and Rafter may or may not have provided at the labor arbitration hearing held in December of 2007. Id. ¶¶ 9-11. "Following the aforementioned arbitration hearing, the attorney representing [the Medical Center's] management allegedly reported to the [Medical Center's] `Nurse Executive' that the testimony of both [] Galle and [] Rafter at that arbitration hearing was that [another nurse testifying at the hearing on behalf of the Medical Center] provided substandard care and was incompetent." Id. ¶ 16. In response, the Nurse Executive allegedly "issued substantively identical memorand[a] . . . to [] Galle and [] Rafter" in which she, inter alia, quoted and cited to a provision of the Minnesota Board of Nursing requiring licensed professionals to report incompetent, unprofessional, or unethical conduct, id. ¶ 19, informed Galle and Rafter that they had an obligation to report such behavior to the Nurse Executive "or a manager," id. ¶ 20, and concluded by stating that "failure to report practice as noted above is grounds for disciplinary action," id. ¶ 21 (internal quotation marks omitted) (emphasis removed). The plaintiff "maintains that [the] statements made in the [Medical Center's] memorand[a] . . . are reprisals for the testimony offered by [] Galle and [] Rafter at the arbitration hearing" held in December of 2007, id. ¶ 23, and as such "constitute an interference, restraint[,] and coercion of employee rights" in violation of 5 U.S.C. § 7116(a)(1), id. ¶ 24; see also 5 U.S.C. § 7116(a)(1) (providing that "it shall be an unlawful labor practice for an agency" to, inter alia, "interfere with, restrain, or coerce any employee in the exercise by the employee of any right under [Chapter 71 of Title 5 of the United States Code]").

While the plaintiff's charges were still pending before the Authority, the Medical Center requested that the Under Secretary issue a ruling prohibiting the Authority's consideration of those charges pursuant to 38 U.S.C. § 7422(d). Compl. ¶ 28. Generally speaking, the Secretary's authority to "prescribe by regulation the hours and conditions of employment and leaves of absence of" various categories of medical employees, 38 U.S.C. § 7421(a) (2006), including registered nurses, id. § 7421(b)(5), "is subject to the right of [f]ederal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5," id. § 7422(a). However, "[s]uch collective bargaining (and any grievance procedures provided under a collective bargaining agreement) . . . may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under [title 38]." Id. § 7422(b). "An issue of whether a matter or question concerns or arises out of" any of these three categories is left to the discretion of the Secretary or his delegate "and may not be reviewed by any other agency." Id. § 7422(d). "The [] Secretary has delegated this § 7422(d) authority to the Under Secretary. . . ." AFL-CIO v. Nicholson, 475 F.3d 341, 345 (D.C.Cir. 2007).

On September 2, 2008, the Under Secretary concluded that the charges filed by the plaintiff on behalf of Galle and Rafter "ar[o]se out of professional conduct or competence within the meaning of 38 U.S.C. § 7422(b)." A.R. at 32. Noting that "the Minnesota Board of Nursing reporting obligations . . . require individual nurses to report personal knowledge of any conduct by another nurse that might be evidence of incompetence, unprofessional[, or] unethical conduct, or evidence that another nurse is unable to practice safely," A.R. at 31, the Under Secretary reasoned that the Medical Center's investigation of the comments allegedly made by Galle and Rafter at the arbitration hearing in December of 2007 "ar[o]se out of management's investigation concerning [Nurse] Krehnke's professional competence," and that "an inquiry as to whether clinical staff had knowledge of shortcomings regarding either the quality of direct patient care being provided or the clinical competence of another provider[] is a matter concerning or arising out of professional conduct or competence," id. at 32. In reaching this decision, the Under Secretary did not address the argument, raised by the plaintiff in its opposition to the Medical Center's motion, that because the plaintiff's charges were neither "an issue of `collective bargaining' within the meaning of [§ ] 7422(b)" nor "a matter of `grievance procedure' coverage" within the meaning of that statute, "the Under Secretary, as a matter...