Battle v. F.A.A.

• Decision Date: 11 January 2005
• Docket Number: No. 03-5120.,03-5120.
• Citation: 393 F.3d 1330
• Parties: Lawrence BATTLE, Appellant, v. FEDERAL AVIATION ADMINISTRATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

393 F.3d 1330

Lawrence BATTLE, Appellant, v. FEDERAL AVIATION ADMINISTRATION, Appellee.

No. 03-5120.

United States Court of Appeals, District of Columbia Circuit.

Argued December 2, 2004.

Decided January 11, 2005.

Appeal from the United States District Court for the District of Columbia (No. 01cv01350).

Thomas J. Gagliardo argued the cause and filed the briefs for appellant.

Oliver W. McDaniel, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

Lawrence Battle appeals the grant of summary judgment to the Federal Aviation Administration ("FAA") in his lawsuit seeking to enforce an arbitration award that arose from internal FAA personnel procedures of which Battle availed himself upon being dismissed from employment. Despite the FAA's termination of the neutral arbitrator's services, the neutral arbitrator, with the employee member, issued an opinion and award in Battle's favor, which the FAA refused to recognize. The district court concluded that it had jurisdiction and granted summary judgment to the FAA. Battle appeals, contending that the arbitration panel acted within its authority and the FAA had no discretion under its internal rules to abandon the arbitration process midstream. The FAA responds that the district court lacked jurisdiction, that the case is not ripe, and that, in any event, it did not violate its internal rules. Upon de novo review, we hold that the district court had subject matter jurisdiction over Battle's complaint because the termination of the neutral arbitrator's services was not a final order of the FAA Administrator concerning "aviation duties and powers." 49 U.S.C.A. § 46110(a) (West Supp.2004). We further hold that, in light of Battle's pursuit of disability discrimination claims and the neutral arbitrator's stated intent to consider such claims in the internal appeals proceeding, the FAA's actions are properly understood as enforcing its rules, which preclude consideration of discrimination claims, and therefore Battle's claim under United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), is without merit. Accordingly, we affirm the grant of summary judgment.

I.

In 1995, Congress divested the Merit Systems Protection Board ("MSPB") of jurisdiction over certain types of FAA adverse personnel actions and authorized the FAA to establish an internal process to be known as "Guaranteed Fair Treatment" ("GFT"). See Department of Transportation and Related Agencies Appropriations Act for Fiscal Year 1996, Pub. L. No. 104-50, § 347, 109 Stat. 436, 460 (1995). Congress retroactively restored the MSPB's jurisdiction in May 2000, but the GFT appeals process remains. See Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, tit. III, § 307(a), 114 Stat. 61, 124 (2000) (codified at 49 U.S.C. § 40122(g)-(i) (2000)). Under the GFT rules promulgated by the FAA, an employee has the right to appeal a removal decision to a three-person arbitration panel composed of a representative of the employee, a representative of the FAA, and a neutral arbitrator. FAA Personnel Management System ch. III, § 5(e) (Mar. 28, 1996) ("FAAPMS"). However, the rules provide exceptions and restrictions. Thus, "[c]laims of statutorily prohibited discrimination may not be raised in the FAA Appeals Procedure," but shall be pursued under an alternative procedure for such claims that begins with a consultation with an Equal Employment Opportunity ("EEO") counselor in the Transportation Department's Office of Civil Rights. Id. ch. III, § 5(n). Under the May 2000 amendment, the MSPB also has jurisdiction over so-called "mixed claims," i.e., cases partially involving claims of statutory discrimination. See 49 U.S.C § 40122(g)(2)(H), (g)(3); 5 U.S.C. § 7702 (2000); Miller v. Dep't of Transp., 86 M.S.P.R. 293 (2000). The GFT rules also do not permit an award of attorney or representation fees. FAAPMS ch. III, § 5(l). Finally, the rules provide that "[d]ecisions of the [arbitration] panel shall be issued as final orders of the [FAA] Administrator under 49 U.S.C. [§]46110." Id. ch. III, § 5(m).

The FAA notified Battle on January 7, 2000, following his absence from work for nearly seventeen months, of its proposal to terminate his employment for "non-disciplinary reasons," namely because of his "unavailability to perform the duties of [his] current position" and his "inability to perform the essential functions of [his] position." The termination became effective February 20, 2000, based on the FAA's conclusion that although Battle claimed he was unable to work a class of jobs or perform a class of functions because of a "generalized anxiety disorder," he was not "disabled" under the Rehabilitation Act, 29 U.S.C. § 791(g) (2000); see also 42 U.S.C. § 12111 (2000), because he only was unable to work for a particular supervisor. The letter of termination also advised that Battle could appeal the decision through the GFT process, or, if he believed the decision was based on discrimination due to race, color, religion, sex, national origin, disability, age, or sexual orientation, or retaliation for participation in the EEO process, he could file a discrimination claim with the Transportation Department's Office of Civil Rights.

Battle appealed his termination on two fronts. A letter from his counsel advised the FAA that Battle claimed that he was "disabled," that he was discriminated against on the basis of race or participation in the EEO process, and that he was denied procedural due process. First, Battle invoked the GFT appeals process rather than the more formal processes before the MSPB that became available in May 2000. See 49 U.S.C. § 40122(g)(2)(H), (g)(3); 5 U.S.C. § 7702. Second, he invoked the EEO process, and he ultimately sued the FAA in federal court alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (2000), and the Rehabilitation Act, id. § 701 et seq.

Pursuant to Battle's request to proceed with the GFT appeal, the FAA appointed Dr. Andree McKissick as the neutral member of the three-person arbitration panel to hear his appeal. However, the FAA advised Battle that it would file a motion to dismiss for lack of jurisdiction if he presented his discrimination claims to the panel and requested relief — such as money damages for emotional distress, attorneys' fees and costs — that was unavailable under the GFT appeals process. At the time, the neutral arbitrator stated that the arbitration would proceed because Battle's attorney advised that there were issues unrelated to the discrimination claims that could be presented to the panel. When Battle persisted in raising allegations that the FAA viewed to be claims of discrimination, the FAA moved to dismiss. The neutral arbitrator held the motion in abeyance while conducting three days of hearings in which the panel heard evidence of discrimination. At this point the FAA wrote to the neutral arbitrator seeking assurance that the discrimination claims would not be considered during the GFT appeals process. The FAA explained that it was not seeking to prevent Battle from making his claims; rather, it was seeking to ensure that he brought them in the appropriate forum. The neutral arbitrator responded by letter of July 14, 2000, that her inquiry into whether the FAA had "just cause" to fire Battle necessitated consideration of general notions of discrimination by looking to the treatment of similarly situated persons. Three days later the FAA — by letter signed by the Assistant Administrator for Human Resource Management, the Deputy Chief Counsel, and the Director of Air Traffic System Requirements — informed the neutral arbitrator that her services were terminated. The FAA also informed Battle's counsel of its action and advised, by letters of July 18 and 19, 2000, that, in light of the MSPB's jurisdiction over "mixed cases," it had forwarded Battle's case file to the MSPB.

On September 18, 2000, the ex-neutral arbitrator issued an "Opinion and Award" for herself and the employee member of the arbitration panel, finding discrimination in the removal process, ordering that Battle be reinstated with back pay, and awarding attorneys' fees. The FAA refused to recognize the award and so informed Battle on November 28, 2000. Battle filed suit in the district court seeking to enforce the Opinion and Award, alleging that the FAA's refusal violated "[FAA] policy and federal law," as well as the Due Process Clause of the Fifth Amendment. On cross motions for summary judgment, the district court ruled it had jurisdiction because an "adverse employment action ... is not the kind of action" that falls within the courts of appeals' exclusive jurisdiction under 49 U.S.C.A. § 46110(a), and it granted the FAA's motion for summary judgment. Construing Battle's complaint to raise an Accardi claim based on the allegation that the FAA had violated its rules, the district court assumed a violation but found no prejudice because Battle's EEO lawsuit against the FAA was still pending. The district court rejected Battle's due process claim on the ground that he did not have a protected interest in pursuing a discrimination claim before the GFT panel. Battle appeals only the denial of his Accardi claim.

II.

As a threshold matter, we must determine whether the district court had jurisdiction over Battle's lawsuit to enforce the arbitration award. The FAA argues that the district court was statutorily barred from addressing the merits of Battle's claims because 49 U.S.C.A. § 46110(a) vests...