Carter v. Gibbs, 88-1576

• Decision Date: 30 March 1990
• Docket Number: No. 88-1576,88-1576
• Citation: 909 F.2d 1452
• Parties: 134 L.R.R.M. (BNA) 3077, 29 Wage & Hour Cas. (BN 1469, 114 Lab.Cas. P 35,337 Carl CARTER, Frank Percina, William E. Dunn, Donald Honaker, Carolyn Hudson, Clara Morrison, Charlene Limenih and Similarly Situated Unnamed Plaintiffs, Plaintiffs-Appellants, v. Lawrence GIBBS, James A. Baker III and the United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1452

909 F.2d 1452

134 L.R.R.M. (BNA) 3077, 29 Wage & Hour Cas.

(BN 1469,

114 Lab.Cas. P 35,337

Carl CARTER, Frank Percina, William E. Dunn, Donald Honaker Carolyn Hudson, Clara Morrison, Charlene Limenih and Similarly Situated Unnamed Plaintiffs, Plaintiffs-Appellants, v. Lawrence GIBBS, James A. Baker III and the United States of America, Defendants-Appellees.

No. 88-1576.

United States Court of Appeals Federal Circuit.

March 30, 1990.

Certiorari Denied Oct. 1, 1990.

See 111 S.Ct. 46.

Gregory O'Duden, Director of Litigation, National Treasury Employees Union, of Washington, D.C., argued for plaintiffs-appellants. With him on the brief were Clinton Wolcott, Asst. Counsel, Lucinda A. Riley, Asst. Counsel and Kerry L. Adams, Asst. Director of Litigation. Michele L. Rusen, of National Treasury Employees Union, of counsel.

Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for defendants-appellees. With him on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Jane W. Vanneman, Attorney, of counsel.

Before MARKEY, Chief Judge, FRIEDMAN, Senior Circuit Judge, and RICH, NIES, NEWMAN, ARCHER, MAYER, MICHEL, and PLAGER, Circuit Judges.

MAYER, Circuit Judge.

OPINION

This is a rehearing in banc of an appeal from the judgment of the United States District Court for the Central District of California dismissing for lack of subject matter jurisdiction the claims of several hundred Internal Revenue Service revenue officers and tax auditors for overtime pay allegedly due them under the Fair Labor Standards Act of 1938. Carter v. Gibbs, 690 F.Supp. 897 (1988). The earlier judgment and opinion of the court, 883 F.2d 1563 (1989), having been vacated, we affirm the judgment of the district court.

Background

The seven named appellants are revenue officers and tax auditors employed by the Internal Revenue Service (IRS) who have worked a significant amount of overtime since 1981. However, pursuant to section 13 of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. Sec. 213 (1982), the IRS has determined that these employees are exempt from the FLSA's overtime pay requirements. Therefore, rather than paying appellants for their overtime hours at a rate in accordance with the FLSA, id. Sec. 207(a)(1), the IRS pays them either at the rate provided in the Federal Employment Pay Act (FEPA), 5 U.S.C. Sec. 5542(a)(2) (1982), or not at all. Because appellants are in relatively high pay grades, they receive less overtime pay under the FEPA than they would under the FLSA.

As members of the National Treasury Employees Union (union), appellants are covered by the collective bargaining agreement between the union and the IRS. Section 7121(a) of the Civil Service Reform Act of 1978 (CSRA) requires that all such agreements contain grievance procedures. In relevant part, it provides:

(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. Except as provided in subsections (d) and (e) of this section, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage.

(2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.

5 U.S.C. Sec. 7121(a) (1988) (emphasis added).

Subsections (d) and (e) give employees a choice of resolving certain specified types of disputes either through the negotiated grievance procedures or through alternative administrative, and in some cases judicial, channels. The only other exceptions to subsection (a)(1)'s exclusivity provision appear in subsection (c), which excludes from the grievance process altogether disputes falling into one of five specified categories. See id. Sec. 7121(c). The parties agree that none of subsections (c), (d), or (e) applies here. They also agree that an overtime pay dispute constitutes a "grievance" within the meaning of section 7103(a)(9) of the CSRA, and that their collective bargaining agreement does not exclude overtime pay disputes from its coverage, pursuant to section 7121(a)(2).

Nevertheless, the seven named appellants sought to resolve their pay disputes in federal district court. They invoked sections 7 and 16(b) of the FLSA, 29 U.S.C. Secs. 207, 216(b), and claimed entitlement to allegedly unpaid overtime compensation as well as liquidated damages and attorney fees. As amended, section 16(b) provides:

Any employer who violates the provisions of section 206 [minimum wage] or section 207 [maximum hours] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.... An action to recover the liability prescribed ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action....

Id. Sec. 216(b). Several hundred similarly situated IRS employees subsequently joined the action by filing their written consent with the district court. All complainants alleged that the IRS had improperly determined they were exempt from section 7 of the FLSA, that they had worked overtime for which they had not been appropriately compensated under the FLSA, and that, therefore, they were entitled to additional overtime pay. They invoked both federal question jurisdiction, 28 U.S.C. Sec. 1331 (1982), and the Little Tucker Act, id. Sec. 1346(a)(2), as bases for the district court's jurisdiction.

The government moved to dismiss the suit both for lack of subject matter jurisdiction and for improper venue. It contended that the CSRA provided an exclusive avenue of dispute resolution for federal employees covered by a collective bargaining agreement that did not exempt the disputed matter from its coverage. The government also asserted that even if appellants retained their FLSA section 16(b) right to sue the IRS, the claims of individual employees exceeded the $10,000 jurisdictional limit of the Little Tucker Act.

The district court dismissed the suit on the ground that the CSRA "preempted" the FLSA claims of these employees. 690 F.Supp. at 897. It held that, because the CSRA made grievance procedures contained in collective bargaining agreements the exclusive method of resolving disputes between the parties to those agreements, and because the union and the IRS chose not to exempt overtime pay disputes from their negotiated grievance process, it had no jurisdiction over the disputes. Id. at 898. The court also observed that "[j]udicial review is still available for all federal employees not covered by a collective bargaining agreement, and for those employees covered where the collective bargaining agreement excludes [Fair Labor Standards Act] claims from the grievance process." Id. at 900.

Appellants claim that the district court's resolution impermissibly allows the CSRA to repeal by implication their right to sue under the FLSA. They believe they should be free to seek resolution of their overtime pay disputes through the administrative procedures sanctioned by the CSRA, the judicial avenue offered by the FLSA, or both.

Discussion

The Civil Service Reform Act is unambiguous: "the procedures [set out in the collective bargaining agreement] shall be the exclusive procedures for resolving grievances which fall within its coverage." 5 U.S.C. Sec. 7121(a)(1). There is no dispute that overtime claims, premised on an alleged violation of section 7 of the FLSA, 29 U.S.C. Sec. 207, are "grievances" subject to the negotiated procedures. See 5 U.S.C. Sec. 7103(a)(9)(C)(ii). ¹ It is equally undisputed that the collective bargaining agreement does not exclude these claims from its grievance procedure pursuant to section 7121(a)(2). But appellants say the section 7121(a)(1) exclusivity prescription does not pertain, and accordingly they are entitled to bring suit in district court. There simply is no support for this proposition in either the CSRA or precedent.

I.

In subsections (d) and (e) of section 7121, ² Congress specifically identified the grievances for which the negotiated procedures are not exclusive; appellants' overtime claims are not among them. In subsection (c), ³ Congress specified matters that could not be resolved by negotiated procedures; overtime claims are not listed. This absence of an express provision for overtime claims is not the product of congressional inattention to the FLSA. To the contrary, the original Senate version of section 7121(c) expressly included FLSA claims among those matters that could not be grieved. S. 2640, 95th Cong., 2d Sess. Sec. 7221(d) (1978), reprinted in 1 Legislative History of the Civil Service Reform act of 1978, at 1832 (1979). But that proviso was removed in conference, and Congress excepted from section 7121(a)(1)'s exclusivity rule only one aspect of the FLSA: the Equal Pay Act, 29 U.S.C. Sec. 206(d), which is now under section 7121(d).

Therefore, appellants premise their argument not on the CSRA or its history but on the principle of statutory construction that "silent repeals of express statutory text are strongly disfavored." Appellants contend that the CSRA cannot be construed as having done implicitly what it did not do explicitly: repeal the judicial...