Carter v. Gibbs

• Decision Date: 08 August 1988
• Docket Number: No. CV 87-4897-HLH (Tx).,CV 87-4897-HLH (Tx).
• Court: U.S. District Court — Central District of California
• Parties: Carl CARTER, et al., Plaintiffs, v. Lawrence GIBBS, et al., Defendants.

690 F. Supp. 897

Carl CARTER, et al., Plaintiffs, v. Lawrence GIBBS, et al., Defendants.

No. CV 87-4897-HLH (Tx).

United States District Court, C.D. California.

August 8, 1988.

Richard Kreisler, Sylvia Kellison, Silver, Kreisler, Goldwasser & Shaeffer, Santa Monica, Cal., Gregory O'Duden, Nat. Treasury Employees Union, Washington, D.C., for plaintiffs.

Brian Kipnis, Asst. U.S. Atty., Los Angeles, Cal., for defendants.

ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER JURISDICTION

HUPP, District Judge.

I

On July 28, 1987 plaintiffs filed this action under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (FLSA), for recovery of overtime pay. Named plaintiffs are seven Revenue Officers, employed by the Department of Treasury, Internal Revenue Service, at Grades 11 and 12. All are members of the National Treasury and Employees Union, and are subject to a collective bargaining agreement entered into between the union and the government.

Since the complaint has been filed, almost 300 federal employees have opted into the action under the provisions of 29 U.S.C. § 216(b), which allows aggrieved employees to become party plaintiffs by filing written consent forms with the court.

Defendants move to dismiss the complaint pursuant to Rules 12(b)(1) and (3) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction and improper venue. This Court holds that the Civil Service Reform Act of 1978 (CSRA) preempts district court jurisdiction over a claim under the Fair Labor Standards Act (FLSA) brought by a federal civil servant represented by a union and working under a collective bargaining agreement, and dismisses the action for lack of subject matter jurisdiction.

II

A. CSRA and Exclusivity of the Grievance Procedures.

Congress enacted the CSRA in part to establish a system for resolving grievances of federal civil servants subject to collective bargaining agreements. Collective bargaining agreements between federal employers and unions are required to contain procedures for the settlement of grievances. 5 U.S.C. § 7121(a)(1). All grievances are channeled into the established process, unless of a type specifically excluded by the collective bargaining agreement, or by § 7121(c), (d) or (e). Thus, § 7121(a)(1) states that the grievance "... procedures shall be the exclusive procedures for resolving grievances which fall within its coverage." Section 7103(a)(9) defines a grievance as any complaint:

(A) by any employee concerning any matter relating to the employment of the employee;

. . . . .

(C) by any employee, labor organization, or agency concerning—

. . . . .

(ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. (emphasis added)

Thus, unless somewhere else excluded, a FSLA overtime claim is a "grievance."

Section 7121(c) excepts certain claims completely from the grievance procedure (e.g., insurance, retirement, suspension), none of which are applicable here. Subsections (d) and (e) except discrimination claims and certain adverse personnel actions, respectively, and allow an employee the choice of either the grievance procedure or an appeal through the Merit Systems Protection Board or the EEOC. No other exceptions appear in the statute.

In summary, § 7121 requires a collective bargaining agreement to contain grievance procedures. The parties to the agreement may exclude any matter from the grievance procedures. If a matter is not excluded by agreement, it must go through the established grievance process unless of the type specified in subsections (c), (d) or (e), which do not apply in this case.

The parties do not dispute that the overtime claim is a grievance within the above definition, or that the claim is grievable through the collective bargaining agreement. The collective bargaining agreement entered into between the Union and the government does not exclude FLSA matters from operation of the grievance procedures.

On a literal reading of the § 7121, plaintiffs' FLSA rights are within the exclusive jurisdiction of the grievance procedure. An FLSA claim is a grievance within the meaning of the statute, and is not excepted from the exclusive procedures by any subsection of § 7121. Plaintiffs argue, however, that Congress enacted the exclusivity provision in § 7121(a)(1) only to make the grievance procedure exclusive as to matters that would otherwise be appealable through administrative procedures. In plaintiffs' view, § 7121(a)(1) did not concern judicial review at all. Plaintiffs are in effect asking the Court to recognize as implied an additional exception to the literal language of the exclusivity provision in § 7121(a)(1).

B. Legislative History.

Plaintiffs rely on the legislative history of the CSRA to establish that Congress did not intend to preempt a unionized civil servant's FLSA cause of action. They first point to the President's Personnel Management Project report, reprinted in Comm. Print 96-7, 96th Cong., 1st Sess. at 1471, which was in large part the basis of the CSRA. The report suggests that a major concern of the Project was rationalizing the complex web of administrative appeal procedures in place at the time of the report. Plaintiffs also note that the Conference Report on the final bill states that:

except for certain specified exceptions, an employee covered by a collective bargaining agreement must follow the negotiated grievance procedures rather than the agency procedures available to other employees not covered by an agreement. (emphasis added)

H.R.Rep. No. 1717, 95th Cong., 2d Sess. 157 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 2723, 2891.

Finally, plaintiffs point out that in 1974, Congress amended the FLSA to clarify that it applied to federal workers, and provided that the Civil Service Commission (later the Merit System Protection Board) would administer the act with respect to federal workers. In doing so, Congress explicitly stated in 1974 that the granting of administrative authority to the Commission should "not be construed to affect the right of any employee to prosecute an FLSA claim in court." 29 U.S.C. § 204(f).

These bits of legislative history arguably tend to support plaintiffs' position that the Act was intended to apply only to otherwise administrative matters. Plaintiffs argue that Congress would never have implicitly overruled a federal employee's right to judicial enforcement of FLSA rights just three years after affirming that the right exists.

However, there is legislative history more directly to the point which strongly supports defendants' position. The original Senate version of the CSRA considered FLSA claims to be a specific exception to the exclusivity provisions of 7121(a), so that FLSA claims could never be grieved. In the context of the statute as enacted, such an exception would fit in § 7121(c). In Conference, the Senate receded to the House version and did not include FLSA claims as an exception. The original Senate version, deleted in conference, provided that:

(d) A negotiated grievance procedure may cover any matter within the authority of an agency if not inconsistent with the provisions of this chapter, except that it may not include matters involving examination, certification and appointment, suitability, classification, political activities, retirement, life and health insurance, national security, or the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.).

S.Rep. No. 95-969 95th Cong.2d Sess. 110 (1978), reprinted in U.S.Code Cong. & Admin.News 2723, 2832. Thus, the deletion of the Senate's original version makes clear that FLSA claims are grievable.

Plaintiffs argue that deletion of the Senate version says nothing of whether judicial enforcement of the FLSA was intended to be barred—only of whether Congress intended that FLSA claims could be grieved. The Court disagrees. The original Senate version contemplated excluding FLSA claims from the grievance procedures, but Congress decided not to do so. By specifically allowing FLSA claims to become grievable, Congress must have intended that FLSA claims would then be subject to the exclusivity provisions of § 7121(a). There is no clear evidence to suggest that it intended otherwise, and the clear statement in the Act is not ambiguous.

It is of course curious that the Senate would propose that FLSA claims could not be grieved, and then agree to require them to be grieved. But the Court cannot assume that Congress blundered when the language of the statute is unambiguous. The Supreme Court has held that the:

starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.

Consumer Product Safety Comm'n v. GTE Sylvania, 447 U.S. 102, 100 S.Ct 2051, 64 L.Ed.2d 766, 772 (1980). See also United States v. Gray, 809 F.2d 579 (9th Cir. 1987). The dispute is whether there is clear legislative intention to the contrary, and the Court finds that there is not. See Doski v. M. Goldseker Co., 539 F.2d 1326, 1332 (4th Cir.1976) (It is not permissible to construe a statute on basis of a mere surmise as to what legislature intended and to assume that it was only by inadvertance that it failed to state something other than what it plainly stated).

C. Implied Repeal of Statutory Rights.

Plaintiffs argue that Congress could not have intended to extinguish judicial review of an employee's FLSA claim, so soon after affirming that the right existed. Implied repeal of statutory rights are, of course, strongly disfavored. The Supreme Court's most recent interpretation of the CSRA, United States v. Fausto, ___ U.S. ___, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), recognized this principle.

This Court does not share plaintiffs' belief that the CSRA impliedly repealed judicial review of a federal employee's FLSA claim. Judicial...