Steadman v. Governor, U.S. Soldiers' and Airmen's Home

• Decision Date: 16 November 1990
• Docket Number: Nos. 89-5166,s. 89-5166
• Citation: 918 F.2d 963
• Parties: 135 L.R.R.M. (BNA) 2951, 287 U.S.App.D.C. 23, 59 USLW 2354 Jan Michael STEADMAN v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant. Michael LITTLE v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant. Charlie WARD v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant. Owen B. HORTON, Jr. v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant. Joseph STEPPE v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant. to 89-5170.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 963

918 F.2d 963

135 L.R.R.M. (BNA) 2951, 287 U.S.App.D.C.

23, 59 USLW 2354

Jan Michael STEADMAN v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant.

Michael LITTLE v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant.

Charlie WARD v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant.

Owen B. HORTON, Jr. v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant.

Joseph STEPPE v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Appellant.

Nos. 89-5166 to 89-5170.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 10, 1990.

Decided Nov. 16, 1990.

John D. Bates, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., R. Craig Lawrence and Molly D. Current, Asst. U.S. Attys., Seattle, Wash., were on the brief, for appellant.

David P. Sutton, with whom Warren C. White, Adelphi, Md., was on the brief, for appellees.

Before MIKVA, SILBERMAN and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

In this case we revisit the Civil Service Reform Act of 1978 ("CSRA" or "Act"), in particular, Title VII, 5 U.S.C. Sec. 7101 et seq., the Federal Service Labor-Management Relations Act ("FSLMRA"), ¹ to deter mine whether the Act's exclusive grant of enforcement authority over unfair labor practice claims to the Federal Labor Relations Authority requires litigants to seek relief first in that forum when a remedy is available under the statutory scheme as well as under the Constitution. Because we believe that allowing the bifurcation of claims would circumvent Congress' careful work in crafting the intricate remedial scheme of the CSRA, we hold that appellees must first seek relief from the FLRA. We therefore do not reach the merits of appellees' due process claims, but reverse and remand to the district court with instructions to dismiss for lack of subject matter jurisdiction.

I.

Appellees are former nonpreference eligible exempt service employees ("NEES") ² of a federal agency, the Soldiers' and Airmen's Home ("Home"), where they held support positions for a number of years. In 1986 they were fired from their jobs for alleged illegal drug-related activity, after receiving the appropriate notice and right to reply provided by the Home's personnel regulations. At the time of their dismissal, appellees were covered by a collective bargaining agreement between the Home and the union. The collective bargaining agreement provided a five-step post-removal grievance procedure, culminating in arbitration, which the union could invoke to challenge adverse personnel action. Under the agreement, consistent with the FSLMRA, the right to demand arbitration was reserved to the agency and the union.

The grievance procedure imposed stringent time requirements for appeal at each step. The union, which had agreed to assist appellees, failed to meet these time requirements in the case of two of appellees and erroneously advised two others that they could bypass the grievance procedures and challenge their removals in district court. In the case of the fifth, who had engaged a private attorney, the appeal from the Governor's decision was not timely taken. ³ The Home refused to process any of the grievances beyond the step at which each became untimely and thereby rejected all five grievances. Appellees then filed suit individually in district court, challenging their respective removals on the grounds of deprivation of property or liberty without due process in violation of the Fifth Amendment; violation of the collective bargaining agreement; breach of contract; and various common law torts. They requested that they be afforded evidentiary hearings consistent with their procedural due process rights, as well as asking for reinstatement, backpay, and compensatory and punitive damages.

The cases were consolidated for hearing before the district court. In his memorandum opinion and order, the district judge determined that appellees had wrongfully been denied an arbitration hearing and ordered the Home to provide appellees with such a hearing as was provided for in the collective bargaining agreement. Steppe v. Governor, United States Soldiers' and Airmen's Home, 710 F.Supp. 356 (D.D.C.1989).

The district court determined that the union's failure to invoke the arbitration procedure was a breach of its duty of fair representation under the FSLMRA, 5 U.S.C. Sec. 7114(a)(1) and that such a breach is an unfair labor practice. 5 U.S.C. Sec. 7116(b)(8). Steppe, 710 F.Supp. at 360. The judge acknowledged that the Supreme Court's holding in Karahalios v. National Fed'n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989), bars a district court from entertaining an unfair labor practice claim, over which the FLRA has exclusive jurisdiction. Nonetheless, the district court held that it had equity jurisdiction to order the "administrative processes that [appellees] have been wrongly denied." Steppe, 710 F.Supp. at 360.

Based on this "jurisdictional theory," the district court considered appellees' due process claims. The court accepted appellees' argument that they had protected property interests in their employment which entitled them to an evidentiary hearing. Since the district court ordered arbitration on the basis of a property interest, it did not consider whether the dismissal for stigmatizing reasons also deprived them of liberty, entitling them to the relief of a name-clearing hearing.

II.

Appellees argue that the district court properly ordered equitable relief for their property-interest claims. ⁴ We find it unnecessary and therefore inappropriate to decide the constitutional issues at this stage. The anterior question presented is whether the district court had jurisdiction or whether, as the government argues, appellees were obliged to pursue their available remedies under the CSRA, which, in this case, would have been an unfair labor practice charge brought before the General Counsel of the FLRA. We think the government is correct and that the district judge improperly interjected the federal judiciary, at a premature stage into the CSRA's carefully developed system of administrative review. In so doing, the district court asserted authority which it manifestly lacks, to order arbitration of these claims under the collective bargaining agreement.

It is important to understand that although appellees wish to challenge their discharge for drug use--which is not claimed to be an unfair labor practice but rather a breach of the collective bargaining agreement--the union's mishandling of the employees' claims on its face appears to be a breach of the union's duty of fair representation, under 5 U.S.C. Sec. 7114(a)(1), which is actionable as an unfair labor practice pursuant to 5 U.S.C. Sec. 7116(b)(8). The FLRA clearly has broad remedial power in the case of an unfair labor practice claim to make the injured employee whole. See 5 U.S.C. Sec. 7118(a)(7) (FLRA is empowered to order the parties to renegotiate a collective bargaining agreement with retroactive effect, to reinstate an employee with backpay, or to take any other "such action as will carry out the purpose of this chapter"). And the plaintiffs did claim before the district court that the union had breached its duty of fair representation. Under the Federal Services Labor Management Relations Act--as opposed to the National Labor Relations Act--the FLRA enjoys exclusive jurisdiction over a claim of a union's breach of its duty of fair representation, see Karahalios, 109 S.Ct. at 1287. A failure to seek arbitration (which an employee may not compel on his own) may constitute such a breach of the union's duty. But, in that event, only the FLRA--not a district court--may remedy the breach by ordering arbitration. ⁵ Congress deliberately refused to follow the private sector pattern and declined to grant the district courts jurisdiction to compel arbitration for any reason. See id.

To be sure, plaintiffs contend that their discharge was not only a violation of the collective bargaining agreement, but it also violated the due process clause of the Constitution. But long before the passage of the CSRA we had held that when a constitutional claim is intertwined with a statutory one, and Congress has provided machinery for the resolution of the latter, a plaintiff must first pursue the administrative machinery. Wallace v. Lynn, 507 F.2d 1186, 1189-90 (D.C.Cir.1974); see also Sampson v. Murray, 415 U.S. 61, 83, 89-92, 94 S.Ct. 937, 949, 952-953, 39 L.Ed.2d 166 (1974). We have reiterated that proposition specifically in the context of a case arising under the CSRA. When the statutory and constitutional claims are "premised on the same facts" and the CSRA remedy "would have been fully effective in remedying the constitutional violation," exhaustion is mandated. Andrade v. Lauer, 729 F.2d 1475, 1493 (D.C.Cir.1984). Only in the unusual case in which the constitutional claim raises issues totally unrelated to the CSRA procedures can a party come directly to district court. Id. at 1492 (exhaustion is not required where there is "complete divergence between the issues presented by the constitutional and personnel/statutory claims").

We do not think this case presents that "complete divergence" because, by pursuing their unfair labor practice claim against the union, appellees may ultimately be able to litigate the propriety of their discharge under the contract--which, perforce, would satisfy any constitutional due process claim arising out of an asserted property interest in the job protections afforded by the agreement. Parrett v. City of Connersville, 737 F.2d 690, 696 (7th Cir.1984), cert. dismissed, 469 U.S. 1145, 105 S.Ct. 828, 83 L.Ed.2d 820 (1985). We see no reason why the same arbitration would not also provide adequate process to protect a liberty interest, if it exists, based on the claimed stigma accompanying a...