Harris v. U.S.

• Decision Date: 10 March 1988
• Docket Number: No. 87-1107,87-1107
• Citation: 841 F.2d 1097
• Parties: 127 L.R.R.M. (BNA) 3082, 28 Wage & Hour Cas. (BN 926 Eugene T. HARRIS, Plaintiff-Appellant, v. The UNITED STATES of America and The United States Department of the Army, Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1097

841 F.2d 1097

127 L.R.R.M. (BNA) 3082, 28 Wage & Hour Cas. (BN 926

Eugene T. HARRIS, Plaintiff-Appellant, v. The UNITED STATES of America and The United States

Department of the Army, Defendants-Appellees.

No. 87-1107.

United States Court of Appeals, Federal Circuit.

March 10, 1988.

Linda Lipsett, Connerton & Bernstein, Washington, D.C., argued for plaintiff-appellant. With her on the brief was Ira M. Lechner.

Jane W. Vanneman, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendants-appellees. With her on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan, Asst. Director and Paul J. Ehlenbach. Also on the brief were Major William Trivett, Dept. of the Army, Washington, D.C. and Stuart Miller, Office of Staff Judge Advocate, Fort Gordon, Ga., of counsel.

Kevin M. Grile, American Federation of Government Employees, AFL-CIO, Northfield, Ill., was on the brief for amicus curiae.

Before RICH, Circuit Judge, and NICHOLS and BALDWIN, Senior Circuit Judges.

NICHOLS, Senior Circuit Judge.

This is an appeal by Eugene T. Harris (Harris or appellant) from a decision by the United States District Court for the Southern District of Georgia, CV185-163, holding that the trial court had no Tucker Act jurisdiction to determine Harris' environmental differential pay (EDP). The Civil Service Reform Act, as adopted in part in the collective bargaining agreement to which Harris was bound, provided the exclusive applicable grievance procedures necessary to determine Harris' EDP, if any, and that of all other members of his bargaining unit. We agree with the district court's dismissal of the suit pursuant to Fed.R.Civ.P. 12(b)(1) and affirm.

I Background

Mr. Harris was a wage board employee working at the Central Heating and Cooling Plant at Fort Gordon, Georgia, an Army facility. Harris was subject to a collective bargaining agreement with an AFGE local, making the local the exclusive bargaining agent for all eligible employees in the bargaining unit. As defined in the agreement, the bargaining unit excluded nonappropriated fund employees, supervisors, and some others. The agreement included specific, clearly delineated grievance procedures for all but certain stated subjects. The grievance and arbitration procedure outlined in the bargaining agreement closely paralleled the wording of 5 U.S.C. Sec. 7121. The agreement excluded from the grievance procedures: the subjects excluded by section 7121(c)(1)-(5) of the Civil Service Reform Act; nonselection for promotion, reassignment, or details; awards; and separation or termination of a probationary employee. All else was included within the scope and intent of the collective bargaining agreement including, as the district court found, pay/wage determinations.

Harris filed his initial grievance requesting EDP on June 4, 1984, alleging hazardous conditions in the workplace, specifically exposure to excessive concentration of airborne asbestos while working at Fort Gordon. The grievance was processed and denied at the first and second steps. On October 26, 1984, Colonel C.D. Preetorius, Acting Chief of Staff, denied the grievance at the third step. Throughout these proceedings, Harris complied with the terms of the collective bargaining agreement. However, after his third denial, Harris brought suit, on behalf of himself and others similarly situated, in the district court rather than go to arbitration, as the collective bargaining agreement required. The trial judge dismissed the suit under Fed.R.Civ.P. 12(b)(1), holding that the grievance procedures adopted in the collective bargaining agreement represented the exclusive remedy for appellant Harris and placed jurisdictional strictures on the district court's ability to hear the suit. The district court would have had jurisdiction, if at all, only under the "Little Tucker Act," 28 U.S.C. Sec. 1346(a)(2). This court has taken jurisdiction of an appeal from a district court determination dealing with claims for premium pay for exposure to asbestos-laden air, O'Neall v. United States, 797 F.2d 1576 (Fed.Cir.1986). That case did not involve the question this one does, of preemption of jurisdiction by a collective bargaining agreement for arbitration.

II Discussion

Appellant cited this court's decision in Fausto v. United States, 783 F.2d 1020, aff'd on rehearing, 791 F.2d 1554 (Fed.Cir.1986), so often in its briefs, that the case may be considered the linchpin of its argument. As the Supreme Court granted certiorari in Fausto about the time we heard oral argument, we decided to await the result of that review. The result was a reversal, United States v. Fausto, --- U.S. ----, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). While we almost could stop there, differences in the cases require some discussion, and the Supreme Court's Fausto has its main importance here in the technique of statutory construction it teaches.

Fausto deals with a money claim by an "excepted" employee of the United States Government, i.e., one who had no appeal right to the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111, codified in various sections of Title 5, United States Code. Asserting an adverse action against him had been unlawful, Fausto sued in the Claims Court under the Back Pay Act, 5 U.S.C. Sec. 5596, and the Tucker Act, 28 U.S.C. Sec. 1491. That court held the CSRA took away whatever jurisdiction it had previously had. Our court, reversing, was of the view that repeals by implication are not favored, especially when they would deprive an employee of a right previously well established. The position of the Supreme Court is that Congress was well aware of the existence of the "excepted" class of employees, and that the careful construction of a new mode of administrative and judicial review of disciplinary cases against other employees evidences an intention to abolish whatever other remedies might have been available to "excepted" employees, who are now made, in truth, mere "at will" employees, a category from which the prior law had to some extent removed them. The Court viewed the rule against repeals by implication as entitled to respect but not necessarily decisive where the prior rule was only a judge-made extension of statutory remedies not themselves expressly written to apply to the case of the "excepted" employee.

In the case before us, the issue is not whether anyone's judicial review is foreclosed, but only whether a claimant must pursue one route or another. The Supreme Court in Fausto mentions, but rebuts, the presumption that judicial review is available, citing Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). That does not trouble us here when one kind of judicial review is provided instead of another.

The claims here involved do not attack any adverse action and thus have an entirely different source from the Fausto claims. As an hourly wage employee, claimant's pay is based on 5 U.S.C. Sec. 5343. This prescribes for him a prevailing wage system to be fixed separately for separate "local wage areas." By section 5343(c):

The Office of Personnel Management, by regulation, shall prescribe * * *

(4) for proper differentials, as determined by the Office, for duty involving unusually severe working conditions or unusually severe hazards;

Such a regulation is Appendix J to Federal Personnel Manual 532-1. It provides an EPD of 8 percent for exposure to "air borne concentrations of asbestos." The appellant claims he was exposed to such airborne asbestos at the government plant where he worked at Fort Gordon, Georgia.

Title 5 U.S.C. Sec. 5343(c) further provides in subsection (2) for full participation by representatives of employees in every phase of providing an equitable system for prevailing rate employees. It seems clear, and is not disputed, that differentials for hazardous or otherwise severe working conditions are among the conditions thus declared suitable for collective bargaining.

In Bendure v. United States, 554 F.2d 427, 213 Ct.Cl. 633 (1977), the court took jurisdiction of an "environmental differential pay claim" under the ancestor of the present section 5343(c), without requiring exhaustion of administrative remedies available under a collective bargaining agreement, which the court regarded as applicable but inadequate and futile because, among...