Filebark v. U.S. Dept. of Transp.

• Decision Date: 13 February 2009
• Docket Number: No. 08-5163.,08-5163.
• Citation: 555 F.3d 1009
• Parties: Joseph J. FILEBARK, II, et al., Appellants v. UNITED STATES DEPARTMENT OF TRANSPORTATION and Federal Aviation Administration, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

555 F.3d 1009

Joseph J. FILEBARK, II, et al., Appellants v. UNITED STATES DEPARTMENT OF TRANSPORTATION and Federal Aviation Administration, Appellees.

No. 08-5163.

United States Court of Appeals, District of Columbia Circuit.

Argued January 13, 2009.

Decided February 13, 2009.

George M. Chuzi argued the cause and filed the briefs for appellant.

Beverly M. Russell, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, and Elizabeth J. Head, Attorney, Federal Aviation Administration.

Before: HENDERSON, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

We have long held that federal employees may not use the Administrative Procedure Act to challenge agency employment actions. See Fornaro v. James, 416 F.3d 63, 66-67 (D.C.Cir.2005); Graham v. Ashcroft, 358 F.3d 931, 933-35 (D.C.Cir.2004); Carducci v. Regan, 714 F.2d 171, 172 (D.C.Cir.1983). This is so because Congress, through the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), and related employment statutes, has carefully constructed a system for review and resolution of federal employment disputes, intentionally providing—and intentionally not providing—particular forums and procedures for particular kinds of claims. As such, we have held that this comprehensive employment scheme preempts judicial review under the more general APA even when that scheme provides no judicial relief—that is, "what you get under the CSRA is what you get." Fornaro, 416 F.3d at 67. In this case four air traffic controllers nonetheless argue that they may use the APA to litigate their pay dispute with the Federal Aviation Administration because the CSRA provides them no protection. Straightforwardly applying our precedent, we affirm the district court's dismissal of their suit.

I.

Appellants are four air traffic controllers of the Albuquerque, New Mexico Air Traffic Control Center. Two are bargaining unit members represented by the National Air Traffic Controllers Association (NATCA) while two are excluded from the unit as supervisors, but agreements between NATCA and the FAA control the pay of all four. Under those agreements, salary levels vary from airport to airport based on the amount and complexity of the air traffic they manage. The controllers believe the Albuquerque Center's salary level is set too low because, in their view, the site's traffic figures erroneously exclude certain military flights.

In April 2000, one of the bargaining unit employees, appellant Joseph Filebark II, following the procedure set out in his collective bargaining agreement, filed a grievance about the salary-level classification with the Albuquerque Center. That grievance was denied, and when Filebark asked the union to pursue the matter to arbitration, the union declined. The Center itself later applied to the FAA for a salary-level upgrade, but that request was denied pending validation of the computer systems that measure air traffic. Although NATCA eventually filed a grievance on behalf of employees at the Albuquerque Center, it withdrew that grievance before it was decided. Meanwhile, one of the non-bargaining unit controllers attempted to file a grievance, which was refused. He later sued in the Court of Federal Claims on a contract theory, but the court rejected his claim as outside its Tucker Act jurisdiction. Todd v. United States, 56 Fed.Cl. 449, 453 (2003), aff'd, 386 F.3d 1091 (Fed.Cir.2004).

Having failed to obtain review on the merits through any of these avenues, the controllers brought a two-count complaint in United States District Court for the District of Columbia. Count I sought review of Filebark's denied grievance, identifying 5 U.S.C. § 7121(a)(1), a provision of the CSRA, as the statutory basis for judicial review of negotiated grievance procedures. Am. Compl. ¶¶ 37-38. Count II sought APA review of the Albuquerque Center's salary-level classification on behalf of all plaintiffs. Id. ¶¶ 39-42. Concluding that section 7121(a)(1), rather than authorizing the suit, "precludes [employees with negotiated grievance procedures] from seeking judicial review" of any kind, Filebark v. U.S. Dep't of Transp. (Filebark I), 468 F.Supp.2d 3, 6 (D.D.C.2006), the district court dismissed both counts brought by the bargaining unit employees, eliminating Count I entirely and leaving only the APA claims of the non-bargaining unit supervisors, id. at 6. Addressing and rejecting only one argument—regarding exhaustion of administrative remedies— the district court allowed the supervisors' APA claims to go forward. Id. at 7-8. By minute order, the district court denied both sides' requests for reconsideration. In a second opinion, however, it dismissed the supervisors' APA claims, finding them precluded under our CSRA precedents. Filebark v. Dep't of Transp. (Filebark II), 542 F.Supp.2d 1, 6-9 (D.D.C.2008).

Significantly for our purposes, the FAA is largely exempted from the CSRA by 49 U.S.C. § 40122(g)(1), which directs the FAA to develop "a personnel management system for the Administration that addresses the unique demands on the agency's workforce," "notwithstanding the provisions of title 5 [i.e., the CSRA] and other Federal personnel laws." See also § 40122(g)(2) ("The provisions of title 5 shall not apply to the new personnel management system...."). Congress required that "[s]uch a new system shall, at a minimum, provide for greater flexibility in the hiring, training, compensation, and location of personnel." § 40122(g)(1). In response the FAA created a personnel management system with dispute resolution provisions that largely track those of the CSRA, providing greater review for major adverse actions and no review for minor actions like this pay-scale dispute. The general exemption from the CSRA has certain exceptions, however, as CSRA provisions such as "chapter 71, relating to labor-management relations," continue to apply. § 40122(g)(2)(C).

Among the provisions in that chapter that still apply is section 7121(a)(1), which requires that collective bargaining agreements contain negotiated procedures for the settlement of grievances, and which the controllers cite as the statutory basis for Count I of their amended complaint. This section previously provided that such negotiated grievance procedures would be "the exclusive procedures for resolving grievances which fall within its coverage." 5 U.S.C. § 7121(a)(1) (1994). In 1994, however, Congress amended section 7121(a)(1) to make negotiated grievance procedures "the exclusive administrative procedures for resolving grievances which fall within its coverage." § 7121(a)(1) (emphasis added). Having held that the earlier version of this section precluded all judicial review for employees with negotiated grievance procedures, Carter v. Gibbs, 909 F.2d 1452, 1454 (Fed.Cir.1990) (en banc), the Federal Circuit recently reversed course, holding that the 1994 amendment signaled Congress's intent no longer to preclude all review of covered grievances. Mudge v. United States, 308 F.3d 1220, 1227 (Fed.Cir.2002).

Seeking reversal of the district court's ruling that they have no cause of action, the controllers make three arguments: (1) that the district court erred in dismissing the bargaining unit members because section 7121(a)(1), as amended, no longer precludes judicial review of negotiated grievance procedures; (2) that by revisiting dismissal of the APA claims, the district court violated the law of the case; and (3) that because their employer is largely exempt from the CSRA, the controllers can maintain an APA cause of action notwithstanding our CSRA preclusion precedents. We consider each argument in turn.

II.

The controllers' first argument—applicable only to the bargaining unit members—lacks in relevance whatever it might have in merit. It may be true that in amending section 7121(a)(1) Congress intended no longer to preclude all judicial review for employees with negotiated grievance procedures; it may also be true that Mudge correctly allowed the employees in that case to proceed; it may even be true that the district court's first opinion in this case erroneously used section 7121(a)(1) as justification for dismissing all bargaining-unit employee claims. But even if section 7121(a)(1) no longer has this preclusive effect, it is emphatically untrue that "§ 7121(a)(1) establishes [a] federal employee's right to seek judicial remedy for [a] grievance subject to negotiated procedures in [a] collective bargaining agreement," as the controllers maintain in their complaint, Am. Compl. ¶ 37 (emphasis added). To the contrary, as the Supreme Court explained in Whitman v. Department of Transportation, 547 U.S. 512, 513, 126 S.Ct. 2014, 164 L.Ed.2d 771 (2006), section "7121(a)(1) does not confer jurisdiction," nor does it create a cause of action.

Because section 7121(a)(1), by itself, provides no right to sue, the bargaining unit employees must point to an independent source of law in order to maintain this action. In Mudge a money claim within the Tucker Act jurisdiction of the Court of Federal Claims provided the cause of action, see 28 U.S.C. § 1491(a)(1); Mudge v. United States, 50 Fed.Cl. 500, 502 (Fed.Cl. 2001); in Carter, the case that Mudge held overruled by the 1994 amendment, the Fair Labor Standards Act, 29 U.S.C. § 216(b), provided the cause of action, see 909 F.2d at 1453. Neither is available here. In fact, the only basis for a cause of action the bargaining unit controllers even mention in their complaint is the APA—the same source identified by the non-bargaining unit controllers. Thus, the case for all four controllers begins and ends with the question identified as central by the Supreme Court in Whitman and answered in the district court's second opinion—namely "whethe...