Mudge v. U.S.

• Citation: 308 F.3d 1220
• Decision Date: 17 October 2002
• Docket Number: No. 02-5024.,02-5024.
• Parties: Robert O. MUDGE, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

308 F.3d 1220

Robert O. MUDGE, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 02-5024.

United States Court of Appeals, Federal Circuit.

DECIDED: October 17, 2002.

Larry J. Adkins, Deputy General Counsel, National Treasury Employees Union, of Washington, DC, argued for plaintiff-appellant. With him on the brief were Gregory O'Duden, General Counsel; and Barbara A. Atkin, Deputy General Counsel.

Thomas B. Fatouros, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and Todd M. Hughes, Assistant Director.

Before LOURIE, SCHALL, and PROST, Circuit Judges.

PROST, Circuit Judge.

Robert O. Mudge appeals from the decision of the United States Court of Federal Claims dismissing his complaint for lack of jurisdiction. Mudge v. United States, 50 Fed.Cl. 500 (2001). Because the court erred in concluding that it lacked jurisdiction to hear the case, we reverse the court's dismissal and remand for further proceedings. Because the court did not address the issue of whether the terms of Mr. Mudge's collective bargaining agreement ("CBA") independently deprived it of jurisdiction, we do not resolve that question on appeal.

I. BACKGROUND

Mr. Mudge was employed as a maintenance mechanic by the Federal Aviation Administration ("FAA"). Id. at 501. He was also a member of the Professional Airways Systems Specialists trade union ("union"), and the terms of his employment were consequently governed in part by a CBA between the union and the FAA. Id. at 502. Mr. Mudge's claim stems from his work transfers between Nevada and Alaska. Initially, Mr. Mudge was stationed in Reno, Nevada, but he voluntarily transferred to King Station, Alaska, in January 1990, working there until March 1992, at which time he returned to Reno, where he worked until his retirement in December 1995. Id. at 501-02. Mr. Mudge filed a grievance under the CBA, claiming entitlement to back pay on two grounds. Id. at 502. First, he sought a 12% pay differential for the time he worked in Alaska to account for the higher cost of living in that state. Id. Second, he sought pay retention for the time he worked in Nevada after having worked in Alaska, arguing that the FAA had wrongly reduced his pay upon his return to Nevada. Id. The union elected not to pursue Mr. Mudge's pay retention claim and proceeded instead with only his pay differential claim pursuant to the negotiated grievance procedures set forth in the CBA. Id. The FAA rejected that claim, however, and the union chose not to instigate arbitration.¹ Id. Dissatisfied with this result, Mr. Mudge sought relief from the General Accounting Office ("GAO") and the Merit Systems Protection Board ("MSPB"). Id. Both the GAO and the MSPB rejected Mr. Mudge's claim, however, finding that they lacked authority to hear his case. Id. Mr. Mudge subsequently filed his pay differential claim in the Court of Federal Claims. Id.

The court dismissed Mudge's complaint on the ground that 5 U.S.C. § 7121(a)(1), which is part of the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 7101 et seq. (2000), deprived the court of jurisdiction. That statutory paragraph and the subsequent paragraph read as follows:

(a)(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), (e), and (g) of this section, the procedures shall be the exclusive administrative 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. § 7121(a) (2000) (emphasis added).

It is undisputed that Mr. Mudge's pay differential claim constitutes a "grievance" within the meaning of the statute and that his CBA does not exclude such grievances from the application of the negotiated procedures under § 7121(a)(2). Similarly, neither party asserts that Mr. Mudge's claim is exempted from those procedures under § 7121(d), (e), or (g), which allow a federal employee to resolve certain types of grievances through either negotiated procedures or alternative administrative, and sometimes judicial, procedures. See id. § 7121(d) (giving federal employees affected by a prohibited personnel practice under 5 U.S.C. § 2302(b)(1) the choice of proceeding under either negotiated or statutory procedures); § 7121(e) (giving federal employees affected by employment actions covered under 5 U.S.C. § 4303 or § 7512 the choice of proceeding under either negotiated or appellate procedures); § 7121(g) (giving "whistleblowers" the choice of proceeding under either negotiated procedures or certain administrative procedures enumerated therein). The only other exception to § 7121(a)'s exclusivity provision, subsection (c), is also inapplicable.² As a result, the heart of the dispute-whether the Court of Federal Claims has jurisdiction over a claim that falls within the scope of the negotiated grievance procedures-centers, as it did below, on the meaning of the term "administrative" in § 7121(a)(1).

Prior to 1994, the statute did not contain the term "administrative." Rather, § 7121(a)(1) stated that the grievance procedures set forth in a CBA would "be the exclusive procedures for resolving grievances which f[ell] within its coverage." 5 U.S.C. § 7121(a)(1) (1988) (emphasis added). In Carter v. Gibbs, 909 F.2d 1452 (Fed.Cir.1990) (en banc), cert. denied, Carter v. Goldberg, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 22 (1990), this court interpreted the pre-1994 language to preclude federal employees from resolving grievances covered by their CBA in court. Relying on the "unambiguous" text of unamended § 7121(a)(1), which stated that "the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage," Carter held that the statute limited the resolution of such grievances to the negotiated procedures set forth in an employee's CBA. Carter, 909 F.2d at 1454. Like Mr. Mudge, the appellants in Carter did not contest that their claims, pay disputes under the Fair Labor Standards Act ("FLSA"), constituted "grievances" subject to the negotiated procedures. Id. Nor did they argue that subsections (a)(2), (c), (d), or (e) removed their claims from the application of those procedures. Id. at 1454-55. Instead, appellants argued that they were exempt from § 7121(a)(1)'s exclusivity provision because to hold otherwise would allow the CSRA to implicitly repeal their right to sue under the FLSA. See id. at 1454. In other words, appellants urged this court to read an additional exception into § 7121(a)(1), one that would allow them to bring their FLSA claims in court despite the availability of administrative redress under their CBA's negotiated grievance procedures. See id. at 1455. Heeding "the Supreme Court's admonition to leave the architecture of the federal personnel system to Congress," we declined to do so. Id. at 1456 (quoting Volk v. Hobson, 866 F.2d 1398, 1403 (Fed.Cir.1989)).

In 1994, Congress amended the CSRA by adding subsection (g) to § 7121. United States Office of Special Counsel, Merit Systems Protection Board: Authorization, Pub.L. No. 103-424, § 9(b), 108 Stat. 4361 (1994) (codified in scattered sections of 5 U.S.C. and 12 U.S.C.). This subsection gives "whistleblowers" the choice of resolving their employment grievances through either the negotiated procedures contained in their CBA or through certain administrative avenues enumerated in § 7121(g). See 5 U.S.C. § 7121(g) (2000). Concurrent with the creation of subsection (g), Congress made two changes to subsection (a)(1). First, Congress amended § 7121(a)(1) to refer to subsection (g). Pub.L. No. 103-424, § 9(c), 108 Stat. 4361 (1994). As such, § 7121(a)(1)'s exclusivity provision now applies "[e]xcept as provided in subsections (d), (e), and (g)." 5 U.S.C. § 7121(a)(1) (2000) (emphasis added). Second, and critically, Congress added the contested term "administrative" to § 7121(a)(1). Pub.L. No. 103-424, § 9(c), 108 Stat. 4361 (1994). In other words, it added the term "administrative" to the phrase "shall be the exclusive procedures for resolving grievances" previously construed in Carter. Congress styled both of these changes to § 7121(a)(1) as "Technical and Conforming Amendments." Id.

Nothing else in the direct legislative history of the 1994 amendments informs the meaning of the term "administrative" or Congress's intent in adding the word to § 7121(a)(1). H.R. 2970, the bill that ultimately amended § 7121(a)(1), passed the House without the term "administrative," and the word was only added later as a floor amendment in the Senate. See 140 Cong. Rec. 27,361 and 28,823-28 (1994). While the House subsequently adopted the Senate's amendment to the bill, see id. 29,350, neither the House nor the Senate provided a discussion or an explanation of the disputed term. As far as the amendments' indirect history is concerned, two National Treasury Employees Union ("NTEU") officials testified during the subcommittee hearings on H.R. 2970 that Congress should overrule Carter by clarifying that while negotiated grievance procedures constitute a federal employee's exclusive administrative remedy, they do not foreclose access to available judicial remedies. See To Reauthorize the Office of Special Counsel and to Make Amendments to the Whistleblower Protection Act: Hearing on H.R. 2970 Before the Sub-Comm. on the Civil Servs. of the House Comm. on Post Office & Civil Servs., 103d Cong. 20-23 (1993) (statements of Tim Hannapel, Assistant Counsel in the Office of General Counsel, NTEU, and Robert M. Tobias, President, NTEU). Additionally, a House committee report...