National Air Traffic Contr. v. Fed. Serv. Impasses

• Decision Date: 17 February 2006
• Docket Number: No. 05-5076.,05-5076.
• Citation: 437 F.3d 1256
• Parties: NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION AFL-CIO and Professional Airways Systems Specialists, AFL-CIO, Appellants v. FEDERAL SERVICE IMPASSES PANEL and Federal Labor Relations Authority, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

437 F.3d 1256

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION AFL-CIO and Professional Airways Systems Specialists, AFL-CIO, Appellants v. FEDERAL SERVICE IMPASSES PANEL and Federal Labor Relations Authority, Appellees.

No. 05-5076.

United States Court of Appeals, District of Columbia Circuit.

Argued January 19, 2006.

Decided February 17, 2006.

Appeal from the United States District Court for the District of Columbia (No. 04cv00138).

William W. Osborne, Jr. argued the cause for appellants. With him on the briefs were Debra L. Willen, Marguerite L. Graf, and Michael D. Derby.

James F. Blandford, Attorney, Federal Labor Relations Authority, argued the cause for appellees. With him on the brief was William R. Tobey, Acting Solicitor.

Andrew Steinberg, Chief Counsel, Federal Aviation Administration, argued the cause for amicus curiae Federal Aviation Administration in support of the appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General, U.S. Department of Justice, Kenneth L. Wainstein, U.S. Attorney, William G. Kanter and Edward Himmelfarb, Attorneys, Jeffrey A. Rosen, General Counsel, U.S. Department of Transportation, and Paul M. Geier, Assistant General Counsel.

Before: GINSBURG, Chief Judge, RANDOLPH, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

HARRY T. EDWARDS, Senior Circuit Judge.

Congress established a distinct regulatory framework for collective bargaining between federal agencies and their employees under the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (2000). Within this statutory framework, the Federal Service Impasses Panel ("FSIP," "Impasses Panel," or "Panel") serves as a forum "of last resort in the speedy resolution of disputes" between a federal agency and the exclusive representatives of its employees "after negotiations have failed." Council of Prison Locals v. Brewer, 735 F.2d 1497, 1501 (D.C.Cir.1984). Therefore, decisions of the FSIP generally are not subject to direct judicial review. Id. at 1498. A federal district court may exercise jurisdiction to review a Panel order only "in exceptional circumstances" as defined by Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), and its progeny. Brewer, 735 F.2d at 1500-01.

In 2003, contract negotiations between the Federal Aviation Administration ("FAA") and two of the unions representing its employees, the National Air Traffic Controllers Association, AFL-CIO ("NATCA"), and the Professional Airways Systems Specialists, AFL-CIO ("PASS"), broke down. In July 2003, the Unions sought the assistance of the Panel. However, the FSIP declined to exercise jurisdiction over the bargaining impasses because, after receiving the parties' submissions, the Panel was uncertain whether it had the authority to resolve the disputes. The Unions then filed suit against the Panel and the Federal Labor Relations Authority ("FLRA" or "Authority") in District Court seeking declaratory and injunctive relief pursuant to Leedom. The District Court granted summary judgment to the defendants, concluding that it lacked jurisdiction to review the Panel's decision not to assert jurisdiction over the parties' collective bargaining disputes. The Unions have appealed. The FAA appears as amicus curiae in support of the Impasses Panel and the FLRA. We affirm.

Leedom provides an extremely limited exception to the nonreviewability of FSIP orders. In this case, the Unions have failed to demonstrate either of the predicates necessary for Leedom jurisdiction: The specific statutory provision identified by the Unions is not sufficiently "clear and mandatory" to require the Panel to exercise jurisdiction over these disputes, Leedom, 358 U.S. at 188, 79 S.Ct. 180, and the Unions have failed to show that, without the District Court's exercise of jurisdiction, they have no "meaningful and adequate means of vindicating [their] statutory rights," Bd. of Governors, Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991).

I. BACKGROUND

A. The FSIP

The Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 ("Chapter 71"), which was passed as part of the Civil Service Reform Act of 1978, governs "[l]abor relations within the federal civil service." Dep't of Def. v. FLRA, 659 F.2d 1140, 1144 (D.C.Cir.1981). The FLRA is primarily responsible for administering the statute. 5 U.S.C. § 7105. Under Chapter 71, a federal agency and the exclusive bargaining representatives of that agency's employees are required to negotiate in "good faith" over the subjects covered by the duty to bargain. See 5 U.S.C. § 7114(a)(4). Where negotiations fail to produce an accord, the statute provides for alternative dispute resolution processes. First, the parties may use the services of the Federal Mediation and Conciliation Service. 5 U.S.C. § 7119(a). Should mediation "fail to resolve a negotiation impasse... either party may request" the services of the FSIP, 5 U.S.C. § 7119(b), "an entity within the Authority, the function of which is to provide assistance in resolving negotiation impasses between agencies and exclusive representatives" of their employees, 5 U.S.C. § 7119(c)(1). "[T]he parties may [also] agree to adopt a procedure for binding arbitration of the negotiation impasse, but only if the procedure is approved by the Panel." 5 U.S.C. § 7119(b)(2).

Upon submission of a request for Panel assistance, the Panel "shall promptly investigate any impasse presented to it." 5 U.S.C. § 7119(c)(5)(A). Once it has investigated, "[t]he Panel shall consider the impasse and shall either — (i) recommend to the parties procedures for the resolution of the impasse; or (ii) assist the parties in resolving the impasse through whatever methods and procedures ... it may consider appropriate to accomplish the purpose of this section." 5 U.S.C. § 7119(c)(5)(A). The Panel has published regulations implementing § 7119. See 5 C.F.R. §§ 2470.1-2473.1 (2005). As relevant here, the regulations provide:

(a) Upon receipt of a request for consideration of an impasse, the Panel or its designee will promptly conduct an investigation, consulting when necessary with the parties and with any mediation service utilized. After due consideration, the Panel shall either:

(1) Decline to assert jurisdiction in the event that it finds that no impasse exists or that there is other good cause for not asserting jurisdiction, in whole or in part, and so advise the parties in writing, stating its reasons; or

(2) Assert jurisdiction and

(i) Recommend to the parties procedures for the resolution of the impasse; and/or

(ii) Assist the parties in resolving the impasse through whatever methods and procedures the Panel considers appropriate.

5 C.F.R. § 2471.6(a)(1), (2).

B. Congressional Restructuring of the FAA in the 1990s

The FAA argues here, as before the Panel, that legislation passed by Congress in the mid-1990s withdrew the FSIP's jurisdiction as the final arbiter over disputes that arise between the FAA and its employees over compensation and benefits. First, with the enactment of the 1996 Department of Transportation and Related Agencies Appropriations Act ("1996 DOT Act"), Congress directed the FAA to establish its own personnel management system, exempt from many of the provisions of federal personnel laws. See 49 U.S.C. § 40122(g) (2000). Section 40122(g) is derived from § 347 of the 1996 DOT Act, Pub.L. No. 104-50, § 347, 109 Stat. 436, 460 (1995), and it now provides in relevant part that,

[i]n consultation with the employees of the Administration and such non-governmental experts in personnel management systems as he may employ, and notwithstanding the provisions of title 5 and other Federal personnel laws, the Administrator [of the FAA] shall develop and implement, not later than January 1, 1996, a personnel management system for the Administration that addresses the unique demands on the agency's workforce. Such a new system shall, at a minimum, provide for greater flexibility in the hiring, training, compensation, and location of personnel.

49 U.S.C. § 40122(g)(1).

On March 28, 1996, the FAA issued its new Personnel Management System. The new system extended Chapter 71 protections to FAA employees:

The FAA, all FAA employees, and all labor organizations representing FAA employees shall have the same rights, and be subject to the same responsibilities and limitations, as are available to all Federal agencies, employees, and labor organizations under 5 U.S.C. Chapter 71.

FAA Personnel Management System (Mar. 28, 1996) at 35, reprinted in Joint Appendix ("J.A.") 84. The FAA explained that, while Congress did not require that the new system conform to Chapter 71, "[t]he FAA has elected to continue the rights and benefits of union representation to our employees." Id. at ii, reprinted in J.A. 44. It is undisputed that the current version of the FAA Personnel Management System contains this same provision extending Chapter 71 protections to FAA employees.

On March 29, 1996, Congress amended § 347 to codify the agency's choice to extend Chapter 71 protections to FAA employees. H.R.J. Res. 170, Pub.L. No. 104-122, 110 Stat. 876 (1996) (codified as amended at 49 U.S.C. § 40122(g) (2000)). Section 347 now provides: "The provisions of title 5 shall not apply to the [FAA's] new personnel management system ... with the exception of ... chapter 71, relating to labor-management relations." 49 U.S.C. § 40122(g)(2)(C). The parties agree that none of these acts altered the Panel's jurisdiction to address collective bargaining impasses between the FAA and the Unions.

According to the FAA, "business as usual" changed when Congress enacted 49 U.S.C. § 106(l) in October 1996. The FAA argues that, "[u]nder 49 U.S.C. § 106(l), the FAA has the power to fix compensation for officers and employees, but its power to bargain over compensation and...