American Federation of Government Employees v. Loy

• Decision Date: 24 August 2004
• Docket Number: No. 1:03-CV-01935(RBW).,1:03-CV-01935(RBW).
• Citation: 332 F.Supp.2d 218
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO and James E. Ferace, Plaintiffs, v. James M. LOY and Transportation Security Administration, Defendants.
• Court: U.S. District Court — District of Columbia

332 F.Supp.2d 218

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO and James E. Ferace, Plaintiffs, v. James M. LOY and Transportation Security Administration, Defendants.

No. 1:03-CV-01935(RBW).

United States District Court, District of Columbia.

August 24, 2004.

Anne M. Wagner, Washington, DC, for Plaintiffs.

Jacqueline E. Coleman, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

WALTON, District Judge.

This matter is before the Court on Defendants' Motion to Dismiss, Plaintiffs' Opposition to Defendants' Motion to Dismiss, ("Pls.' Opp."), and Defendant's Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss, ("Defs.' Reply"). Upon consideration of the parties' submissions, the Court grants in part and denies in part the defendants' motion to dismiss.

I. Background

Part of Congress' response to the terrorist attacks of September 11, 2001 was the enactment of the Aviation and Transportation Security Act, Pub.L. 107-71 ("ATSA"), which mandated passenger airline airport screening be conducted by the federal government specifically under the authority of defendant, Transportation Security Administration, ("TSA"). Complaint for Declaratory and Injunctive Relief ("Compl."), ¶¶ 7-9. The ATSA incorporated the Federal Aviation Administration's ("FAA") personnel management system as set forth in 49 U.S.C. § 40122, into the TSA's personnel management system. Id. at 9. The aspect of this system relevant to this case designates, in 49 U.S.C. § 40122(g)(2), that TSA employees have "the right to join and form a labor organization for the purpose of collective bargaining." Id. ¶ 10.

Plaintiff American Federation of Government Employees, AFL-CIO ("AFGE") represents 700,000 federal government employees and sought to add the TSA airport screeners to the groups to which it provides collective bargaining representation. Id. ¶ 3. In November 2002, the AFGE submitted two petitions to the Federal Labor Relations Authority ("FLRA"), requesting that the TSA employees at the Baltimore-Washington International Airport and LaGuardia Airport in New York City have the opportunity to elect the AFGE as their representative. Id. ¶ 11.¹ The other plaintiff, James E. Ferace ("Ferace"), is a former Pittsburgh International Airport security screener with the TSA who supported the AFGE's campaign to represent airport security screeners. Id. ¶ 4. He began his tenure at the Pittsburgh facility on August 28, 2002 and was terminated in July 2003. Id.²

On January 8, 2003, defendant James M. Loy ("Loy"), acting in his official capacity as the Administrator of the TSA, issued a memorandum "prohibiting federal airport screeners employed by [the] TSA from engaging in collective bargaining or from being represented for the purpose of engaging in such bargaining by any representative or organization." Id. ¶ 14 (referring to memorandum issued by Loy entitled "Determination Regarding Collective Bargaining — TSA Security Screeners" dated January 8, 2003 ("Loy Determination")). The plaintiffs allege that the TSA managers "in reliance on Loy's memorandum, [undertook] a pattern and practice of threatening disciplinary action against [the] TSA screeners [who] engaged in constitutionally protected organizational activities." Id. ¶ 16. The plaintiffs further allege that "private sector airport screeners at other major airports ... continue to enjoy the right to join labor organizations and to engage in collective bargaining." Id. ¶ 20. Loy subsequently issued a second memorandum stating that "employees are still free to engage in employee organization activities as long as they do not do so on work time and it does not interfere with [the TSA's] security work or otherwise undermine aviation security." Letter from Loy to TSA Security Screeners dated January 9, 2003 ("Second Loy Determination") at 2.

While the AFGE's petitions were pending before the FLRA, the AFGE filed a complaint in this Court on January 10, 2003, pleading the following four counts: (1) Loy did not have statutory authority to issue the Loy Determination, (2) the Loy Determination "deprives plaintiffs of their rights of free speech and association under the First Amendment[,]" (3) the Loy Determination "deprives plaintiffs of their right of equal protection under the law guaranteed by the Fifth Amendment to the United States Constitution [,]" and (4) the Loy Determination "is contrary to Pub.L. 107.71, § 101(n) and otherwise is arbitrary and capricious under the standards set forth in 5 U.S.C. § 706." Defs.' Mem., Exhibit ("Ex.") 3 (Complaint for Declaratory and Injunctive Relief ("Loy I Compl."), ¶¶ 15-22). The AFGE later moved and was permitted to supplement its complaint to allege that the "TSA has applied the Loy Determination to threaten employees with discipline and/or termination for conducting union organizing activities while not on duty in violation of the First [A]mendment ... [and that] Ferace was discharged on the day after" the FLRA issued its decision to dismiss the union's petitions for an election. Defs.' Mem. Ex. 1, (Am. Fed. of Gov't Employees v. Loy ("Loy I"), 281 F.Supp.2d 59, 61, 66 (D.D.C.2003)). The plaintiffs argued that they should "be allowed to supplement their complaint to include an as applied challenge to the Loy Determination in addition to the facial challenge to the Determination[.]" Id. (internal citations omitted).

The FLRA dismissed the AFGE's petition on July 8, 2003, on the grounds that the Loy Determination superseded its jurisdiction to allow the election. Compl. ¶ 18. The TSA then terminated Ferace's employment in July of 2003 "allegedly for disclosing personnel information to fellow screeners in an incident occurring [on] May 20, 2003[.]" Id. ¶ 19. Subsequently, on September 5, 2003 Judge Collyer, a fellow member of this court, dismissed the plaintiffs' statutory claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because the plaintiffs' claims raised the same issues that were properly before the FLRA and the "AFGE or [the] TSA will be able to petition the Court of Appeals for review of any adverse final decisions by the members of the [FLRA.]" Loy I, 281 F.Supp.2d at 63. The plaintiffs' constitutional claims were also found to be within the ambit of the FLRA's jurisdiction. Id. at 64. The court, however, dismissed the plaintiffs' constitutional claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Id. at 66. The court reasoned that even if the plaintiffs' constitutional claims were properly before it, the employees inability to "engage in organizing on work time does not rise to a constitutional issue." Id. at 65. Moreover, the court found that the restriction placed on the bargaining rights of the TSA employees was rationally related to the legitimate government purpose of "heightened security through management flexibility. A different choice might have been made but Congress could rationally conclude that airport security requires federal employees who operate with more flexibility than either civil service or collectively-bargained protections and procedures would allow." Id. at 66. Accordingly, Ferace's individual First Amendment claim was severed and "[t]he plaintiff's statutory claims [were] dismissed for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure [while] [t]he constitutional claims [were] dismissed for failure to state a claim under Rule 12(b)(6)." Id. The District of Columbia Circuit affirmed the dismissal of the AFGE's claims in May of 2004, Am. Fed'n of Gov't Employees, AFL-CIO v. Loy, 367 F.3d 932 (D.C.Cir.2004), concluding that the District Court should not have addressed the merits of AFGE's constitutional claims and that all of their claims should have been dismissed by the District Court for lack of jurisdiction under Rule 12(b)(1). Id. at 936-937.

On September 17, 2003, 12 days after Loy I was dismissed by Judge Collyer, the plaintiffs filed the complaint in this case, asserting three claims: (1) the defendants violated the plaintiffs' rights "to engage in organizational and other expressive activity," (2) the defendants violated the plaintiffs' "right to engage in First Amendment activity in a manner that also violates the equal protection of law guaranteed of the Fifth Amendment to the United States Constitution[,]" and (3) the "TSA unlawfully discharged the plaintiff James Ferace in retaliation for exercising his rights to freedom of speech and association in violation of the First Amendment to the U.S. Constitution." Compl. ¶¶ 21-26. The defendants now move to dismiss Counts I and II of the complaint on the ground that they are barred by the principle of res judicata, or in the alternative, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state claims upon which relief may be granted. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss ("Defs.' Mem."), at 1-3. The defendants also move to dismiss Count III for failure to state a claim. Id. at 3.

II. Res Judicata

A. Legal Standard

Under the doctrine of res judicata, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). "The four factors that must exist for res judicata to apply are (1) identity of parties in both suits; (2) a judgment rendered by a court of competent jurisdiction; (3) a final judgment on the merits; and (4) the same cause of action in both suits." Polsby v. Thompson, 201 F.Supp.2d 45, 48 (D.D.C.2002). Satisfaction of all four factors "extinguishes `all rights of the plaintiff with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.'" McLaughlin v. Bradlee, 599...