United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2009 Decided June 1, 2010
No. 08-5479
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION,
AFL-CIO,
APPELLANT
v.
FEDERAL SERVICE IMPASSES PANEL, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00481)
William W. Osborne Jr. argued the cause for appellant.
With him on the briefs were Marie Louise Hagen and
Marguerite L. Graf.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for appellees Federal Service
Impasses Panel and the Federal Labor Relations Authority.
With him on the brief were Rosa M. Koppel, Solicitor, and
William R. Tobey, Deputy Solicitor.
R. Craig Lawrence and Beverly M. Russell, Assistant
U.S. Attorneys, and Michael Doherty, Attorney, Federal
2
Aviation Administration, were on the brief for appellee
Federal Aviation Administration.
Before: GINSBURG and TATEL, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: When the National Air Traffic
Controllers Association (the Union) and the Federal Aviation
Authority reached an impasse in collective bargaining, the
Union sought the aid of the Federal Service Impasses Panel.
The FSIP declined to assert jurisdiction, whereupon the Union
sued the FSIP, the FAA, and the Federal Labor Relations
Authority, seeking both a declaratory judgment that the FSIP
had jurisdiction over an impasse involving the FAA and an
injunction requiring the FSIP to assert jurisdiction over all
such pending and future impasses. The district court
dismissed the suit for lack of subject matter jurisdiction. For
the reasons that follow, we affirm that order insofar as it
applies to the FAA but reverse it with respect to the FSIP and
the FLRA.
I. Background
We first explain the roles played by the agencies involved
in this suit. We then recount the factual and procedural
background of this case.
A. The FLRA and the FSIP
The “Congress established a distinct regulatory
framework for collective bargaining between federal agencies
and their employees under the Federal Service Labor-
Management Relations Statute,” which was passed as part of
3
the Civil Service Reform Act of 1978 and codified in Chapter
71 of Title 5 of the U.S. Code. NATCA v. FSIP, 437 F.3d
1256, 1258 (D.C. Cir. 2006) [hereinafter NATCA I]. “The
Statute grants federal agency employees the right to organize,
provides for collective bargaining, and defines various unfair
labor practices.” Nat’l Fed’n of Fed. Employees v. Dep’t of
Interior, 526 U.S. 86, 88 (1999).
The FLRA is “primarily responsible for administering”
the Statute. NATCA I, 437 F.3d at 1258. Much as the
National Labor Relations Board does for the private sector,
the FLRA “determine[s] the appropriateness of units for labor
organization representation,” “conduct[s] elections to
determine whether a labor organization has been selected as
an exclusive representative” and, most relevant here,
“conduct[s] hearings and resolve[s] complaints of unfair labor
practices” arising out of negotiations between a federal
agency employer and the union that represents its employees.
5 U.S.C. § 7105(a)(2). Except in circumstances not relevant
here, a final order issued by the FLRA is reviewable in the
court of appeals. Turgeon v. FLRA, 677 F.2d 937, 938 (D.C.
Cir. 1982) (citing 5 U.S.C. § 7123(a)).
The General Counsel of the FLRA, who “serves at the
pleasure of the President,” has by statute “separate authority”
from that of the FLRA. Turgeon, 677 F.2d at 938 n.4. Her
principal duties are to investigate unfair labor practice
charges, issue unfair labor practice complaints arising from
those charges, and prosecute those complaints before the
FLRA. Id. A union or an employer accusing its counterpart
of an unfair labor practice first submits a charge to a Regional
Director of the FLRA, 5 C.F.R. § 2423.6(a), who, acting “on
behalf of the General Counsel,” investigates the charge, 5
C.F.R. § 2423.8(a), and decides whether to issue a complaint,
5 C.F.R. § 2423.10(a). If the Regional Director dismisses the
4
charge, then the charging party may appeal that decision to
the General Counsel, 5 C.F.R. § 2423.11(c), but the General
Counsel’s decision whether to issue a complaint is not subject
to judicial review, see Turgeon, 677 F.2d at 940.
The FSIP, “an entity within the” FLRA, “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.” NATCA I, 437
F.3d at 1257–58 (citing Council of Prison Locals v. Brewer,
735 F.2d 1497, 1501 (D.C. Cir. 1984)) (internal quotation
marks omitted). The FSIP must “promptly investigate any
impasse presented to it,” 5 U.S.C. § 7119(c)(5)(A), and then
“either (1) Decline to assert jurisdiction ... [for] good cause ...
or (2) Assert jurisdiction,” 5 C.F.R. § 2471.6(a). If the FSIP
asserts jurisdiction, then it may ultimately “take whatever
action is necessary and not inconsistent with [the Statute] to
resolve the impasse,” 5 U.S.C. § 7119(c)(5)(B)(iii),
“including binding arbitration,” Am. Fed’n. of Gov’t
Employees v. FLRA, 691 F.2d 565, 569 n.26 (D.C. Cir. 1982);
see 5 C.F.R. § 2471.6(a)(2)(ii). A decision of the FSIP
declining to assert jurisdiction over an impasse “is not
reviewable ‘except in extraordinary circumstances,’ because
‘Congress precluded direct judicial review of Panel orders.’”
NATCA I, 437 F.3d at 1262 (quoting Brewer, 735 F.2d at
1498).
B. Factual and Procedural Background
The present drama unfolded in two acts, the first
beginning in 2003 and the second in 2006. We begin,
however, with a brief prologue reviewing the statutory
provisions that form the background for these events.
5
In 1995 the Congress “directed the FAA to establish its
own personnel management system.” NATCA I, 437 F.3d at
1259. In 1996, one day after the FAA had established its
system, the Congress exempted that system from the
requirements of Title 5 of the U.S. Code (Government
Organizations and Employees) except, in relevant part, those
in Chapter 71, i.e., the Statute. Id. at 1259–60; see 49 U.S.C.
§ 40122(g)(2)(C) (providing exemption). Later that year the
Congress enacted 49 U.S.C. 106(l), which provides: “In fixing
compensation and benefits ... the Administrator [of the FAA]
shall not engage in any type of bargaining, except to the
extent provided for in section 40122(a)” of Title 49. See
NATCA I, 437 F.3d at 1260. That section in turn requires the
FAA to negotiate with the representative of its employees
before making a change to its personnel management system;
if such negotiation reaches an impasse, then the FAA must
first use the “services of the Federal Mediation and
Conciliation Service” and, if mediation fails, “transmit[] the
proposed change ... to Congress.”
In 2003 the FAA reached an impasse in contract
negotiations with both the NATCA and the Professional
Airways Systems Specialists, another union. NATCA I, 437
F.3d at 1258. The two Unions “sought the assistance” of the
FSIP. Id. The FAA argued the FSIP lacked jurisdiction
because, although 5 U.S.C. § 7119 generally provides the
FSIP with jurisdiction over an impasse between a federal
agency and a union, 49 U.S.C. § 106(l) specifically prohibits
the FAA from bargaining over compensation and benefits
except as provided in 40122(a), which makes no mention of
the FSIP. NATCA I, 437 F.3d at 1260–61. In January 2004
the FSIP declined to assert jurisdiction on the ground that it
was “unclear whether [it] ha[d] the authority to resolve the
parties’ impasse.” The Panel went on to say the question
whether the Congress had divested it of jurisdiction over
6
compensation-related impasses involving the FAA “must be
addressed in an appropriate forum before the [FSIP would]
commit[] its resources” to assist in “resolving the merits of
[the] impasse.” The FSIP did not indicate what forum it
believed was “appropriate.”
The Unions then sued the FSIP and the FLRA in the
district court, seeking both a declaration that “the FSIP’s
decisions … are in violation of specific provisions of the
Panel’s statutory authority” and an order that the FSIP
“proceed forthwith to resolve the existing impasses.” Citing
Brewer, the district court held it did not have jurisdiction to
review the decision of the FSIP and dismissed the case.
NATCA v. FSIP, No. Civ. A. 04-0138(RMC), 2005 WL
418016, at *4–5 (Feb. 22).
We affirmed, explaining that “a Panel order” is subject to
review in district court only in the “exceptional
circumstances” identified in Leedom v. Kyne, 358 U.S. 184
(1958), viz., where (1) the agency acts “in excess” of its
“delegated powers and contrary to a specific prohibition” that
“is clear and mandatory,” and (2) denying review “would
wholly deprive [a party] of a meaningful and adequate means
of vindicating its statutory rights.” NATCA I, 437 F.3d at
1263 (internal quotation marks omitted).
Neither requirement was met in that case. There was no
“specific and unambiguous statutory directive” about the
jurisdiction of the FSIP over an impasse between the FAA
and a union; on the contrary, there were “compelling
arguments” on each side “regarding the proper interpretation
of the disputed statutory provisions.” Id. at 1264. In addition,
“the Unions [could] vindicate their statutory rights and gain
appropriate redress before the FLRA.” Id. at 1265. We then
described a path by which the Unions could seek review in
7
that forum, namely, by challenging the FAA’s refusal to
submit to the jurisdiction of the FSIP as an “unfair labor
practice.” If the General Counsel filed a complaint based
upon that charge, then the FLRA would have to answer the
underlying question about jurisdiction. Id. at 1265.
Our decision, however, was not the last word on the 2003
impasse. As it happened, even before we heard its appeal the
Union had filed an unfair labor practice charge concerning
that impasse, and after we issued our decision a Regional
Director of the FLRA entered into a “unilateral Settlement
Agreement” with the FAA in lieu of issuing a complaint.
In 2006 the Union again reached an impasse with the
FAA and again requested help from the FSIP, which again
declined to assert jurisdiction, giving again the explanation it
had given in 2004. In due course the Union again filed an
unfair labor practice charge alleging the FAA had “refused to
bargain under the auspices” of the FSIP.
A Regional Director of the FLRA dismissed that charge
on the ground that “issuance of a complaint [was] not
warranted” because 49 U.S.C. § 40122(a) deprived the FSIP
of jurisdiction over the impasse. The Union appealed to the
General Counsel, who denied both the appeal and the Union’s
subsequent motion for reconsideration. Because the General
Counsel did not issue a complaint, the question of the FSIP’s
jurisdiction raised by the unfair labor practice charge was
never put before the FLRA.
In 2008 the Union sued the FSIP, the FLRA, and the
FAA. It sought both a declaration that “the FSIP has
mandatory jurisdiction to resolve impasses between the FAA
and labor organizations … of the same kind and extent as its
mandatory jurisdiction over such impasses between other
8
federal agencies and exclusive representatives of their
employees” and an injunction in support of that declaration.
In its motion for summary judgment, the Union argued the
exception provided in § 40122(a) and referred to in § 106(l)
does not “divest the FSIP of its ... jurisdiction” over an
impasse between the FAA and one of its unions.
The FSIP and the FLRA moved to dismiss, arguing the
Union was seeking review of a decision of the FSIP, which
review was beyond the jurisdiction of the court. The FAA
filed its own motion to dismiss, contending in addition that
(1) the Union did not have standing to sue the FAA because
the “harm [it] alleged ... is not ‘traceable’ to the FAA and
cannot be redressed by that Agency”; and (2) the Union
“failed to plead facts indicating that it can receive relief from
the FAA.”
The district court granted the agencies’ motion to dismiss
the suit for lack of subject matter jurisdiction. The court
explained that “the [FLRA] is the appropriate forum to
determine whether the Panel has jurisdiction,” NATCA v.
FSIP, 582 F. Supp. 2d. 18, 19 (2008), and that therefore the
court did not have jurisdiction to review “[a] decision by the
FLRA’s General Counsel to settle or dismiss an unfair labor
practice charge, instead of issuing a complaint,” id. at 21. In
the court’s view, the Union effectively had asked it to do just
that, seeking “the same [ruling] it sought before the Panel and
before the FLRA—a ruling that the Panel has jurisdiction to
resolve these impasses.” Id.
The specific impasse that prompted the Union to seek
assistance from the FSIP in 2006 was resolved in 2009
9
through mediation. * The Union and the FAA continue to
negotiate about other matters.
*
The appellees do not argue this suit is therefore moot, but we must
consider the question nonetheless. See Ass’n of Admin. Law Judges
v. FLRA, 397 F.3d 957, 960 n.* (D.C. Cir. 2005). We conclude the
suit is not moot because the plaintiff is “seek[ing] declaratory relief
as to an ongoing policy.” Del Monte Fresh Produce Co. v. United
States, 570 F.3d 316, 321 (D.C. Cir. 2009); see Entergy Servs., Inc.
v. FERC, 391 F.3d 1240, 1246 (D.C. Cir. 2004) (“it is true that a
petitioner with a mooted individual controversy may at times have
standing to challenge an ongoing policy”); City of Houston, Tex. v.
Dep’t of Housing and Urban Dev., 24 F.3d 1421, 1429 (D.C. Cir.
1994) (“if a plaintiff’s specific claim has been mooted, it may
nevertheless seek declaratory relief forbidding an agency from
imposing a disputed policy in the future”). The plaintiff must still
have standing to challenge the policy and the “request for
declaratory relief [must be] ripe.” Del Monte, 570 F.3d at 321; see
Entergy Servs., 391 F.3d at 1246.
In this case the Union has standing because the disputed policy
injures it both by denying it recourse to the services of the FSIP
with respect to impasses that will likely arise between it and the
FAA in the foreseeable future and by denying the Union, in
negotiations with the FAA, whatever leverage it derives from the
ability to threaten recourse to the FSIP. We determine whether a
request for declaratory relief is ripe by “evaluat[ing] both the fitness
of the issues for judicial decision and the hardship to the parties of
withholding court consideration.” Toca Producers v. FERC, 411
F.3d 262, 289 (D.C. Cir. 2005) (quoting Abbott Labs. v. Gardner,
387 U.S. 136, 149 (1967)). “In applying the ripeness doctrine to
agency action we balance the interests of the court and the agency
in delaying review against the petitioner’s interest in prompt
consideration of allegedly unlawful agency action.” Toca, 411 F.3d
at 289. The issue here involves a pure question of law, and neither
the court nor agencies have a cognizable interest in delaying
review.
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II. Analysis
We review “de novo the district court’s grant of a motion
to dismiss for lack of subject matter jurisdiction.” Piersall v.
Winter, 435 F.3d 319, 321 (D.C. Cir. 2006). We consider first
whether the district court lacked subject matter jurisdiction
over this case because, as in NATCA I, the complaint seeks
review of an unreviewable decision of the FSIP or of the
General Counsel of the FLRA. We then consider two issues
the FAA raises alone — whether the court lacks jurisdiction
over the case against it because of sovereign immunity and
whether the Union fails to state a claim upon which relief can
be granted against the FAA.
A. Reviewability
The Union argues the district court has subject matter
jurisdiction because it is seeking a declaratory judgment
rather than “review of, or relief from an administrative
determination by the General Counsel ... or the FSIP.” The
agencies all contend the court does not have jurisdiction
because the Union is seeking review of just such a decision,
review of which is precluded by a specific statute and
therefore cannot be founded upon “more general grants of
judicial authority,” such as 28 U.S.C. § 1331 (federal question
jurisdiction).
There can be no doubt, and the petitioners agree, the
district court lacks jurisdiction to review the decisions of the
FSIP and of the General Counsel respectively declining
jurisdiction over the impasse and refusing to issue an unfair
labor practice complaint. See NATCA I, 437 F.3d at 1258;
Turgeon, 677 F.2d at 940. Unlike the complaint the Union
filed in 2004, however, its complaint in this case does not ask
the court to review either of those decisions. Whereas the
11
Union in the former case asked the court to “[d]eclare ... the
FSIP’s decisions of January 9, 2004 [declining jurisdiction
were] in violation of specific provisions of the Panel’s
statutory authority,” the Union’s complaint here identifies no
specific decision of the FSIP or of the General Counsel.
Rather, it complains of the “FSIP’s refusal to exercise its
mandatory ... jurisdiction over ... negotiation impasses
between the FAA and labor organizations representing its
employees” and asks the court to “[d]eclare ... the FSIP has
mandatory jurisdiction to resolve [such] impasses.” *
Declaring the FSIP has jurisdiction over impasses
between the FAA and the Union would not require the district
court to review the decision of the FSIP declining jurisdiction
on the ground that an “appropriate forum” had not yet
addressed whether it had such jurisdiction. The FSIP did not
reach, let alone answer, the question whether it has
jurisdiction over impasses between the FAA and the Union.
Nor would the district court need to review the General
Counsel’s decision not to issue a complaint. The effect of that
decision was to prevent the FLRA from adjudicating the
Union’s unfair labor practice charge and the claim entailed
therein that the FSIP does indeed have mandatory jurisdiction
over an impasse involving the FAA. ** Nothing the district
*
That the Union also seeks an injunction does not alter our analysis
of whether it is asking the district court to review an unreviewable
decision; the injunction is merely a means by which to enforce the
requested declaratory judgment.
**
The Union charged the FAA with failing to bargain in good faith
because the FAA objected to the FSIP asserting jurisdiction over
the impasse. If the FSIP had jurisdiction, then the FAA was acting
in bad faith when it refused to accept the mediation and other
services of the FSIP. As we explained in NATCA I: “[I]f the
Unions’ interpretation of the disputed statutory provisions [defining
the jurisdiction of the FSIP] is correct, then it is clear that they have
12
court does will reverse the decision not to issue a complaint in
this case. Because the Union does not seek review of a
decision of either the FSIP or the General Counsel, the district
court erred in dismissing the case for lack of jurisdiction.
The agencies and the district court all seem to have read
NATCA I so broadly as to require that any question about the
jurisdiction of the FSIP — even one that does not entail
reviewing a decision of the Panel — be submitted to the
FLRA in the garb of an unfair labor practice charge and
resolved by the FLRA before a court may consider it. * In
NATCA I, however, we determined only that, under Leedom v.
Kyne, a decision of the FSIP to decline jurisdiction over a
bargaining impasse is not reviewable in court until the FLRA
has first reviewed it. 437 F.3d at 1258. In the present case
the Union does not seek review of an FSIP decision; hence
NATCA I has no bearing upon the jurisdiction of the district
court.
Nor is there reason to believe the Congress intended to
keep the courts from ever considering a question about the
jurisdiction of the FSIP until the FLRA has passed upon it.
Indeed if every such question had to be framed as an unfair
viable unfair labor practice charges that can be raised with and
addressed by the FLRA.” 437 F.3d at 1265.
*
See, e.g., FAA’s Br. 6 (NATCA I held “the proper course of action
for the Unions to resolve the issue of the appropriate impasse
mechanism for FAA and its Unions was by filing” an unfair labor
practice charge); FSIP’s Br. 11 (NATCA I held the “proper forum
for addressing the underlying question of the Panel’s jurisdiction is
the FLRA”); NATCA v. FSIP, 582 F. Supp. 2d 18, 19 (D.D.C.
2008) (NATCA I held in order to “determine whether the [FSIP] is
an available mechanism to resolve certain types of impasses” the
“proper course of action” is to “file an unfair labor practices charge
... with the FLRA”).
13
labor practice charge and resolved first by the FLRA, then it
would be the General Counsel who, by her exercise of
unreviewable discretion not to issue a complaint, could strip
the court of jurisdiction over issues concerning the reach of
the FSIP’s authority. We do not believe the Congress
intended the General Counsel of the FLRA to exercise such
control over our jurisdiction. *
B. Separate Arguments of the FAA
The FAA alone makes two additional arguments. First, it
contends the district court lacks subject matter jurisdiction
over this suit against it because, although the Union is suing
agencies of the Federal government, it has identified no
waiver of sovereign immunity to this type of suit. In reply,
the Union invokes 5 U.S.C. § 702 (Administrative Procedure
Act), which waives immunity in “actions seeking relief ‘other
than money damages’” from an agency of the United States.
Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 186 (D.C. Cir.
2006) (citing Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255,
260–61 (1999)). We agree § 702 provides the necessary
waiver.
*
We are not unaware the Supreme Court has said “the FLRA shall
[first] pass upon issues arising under the [Statute], thereby bringing
its expertise to bear on the resolution of those issues.” EEOC v.
FLRA, 476 U.S. 19, 23 (1986). The agencies properly do not cite
that case because the Court made the quoted statement in relation to
5 U.S.C. § 7123, which provides a party seeking review of a final
order of the FLRA may not raise an “objection that has not been
urged before the Authority.” The Union is not seeking review of a
final order of the FLRA — indeed, the FLRA has issued no final
order — nor is the Union belatedly raising in court any objection to
the FSIP’s refusal to assert jurisdiction over its impasse with the
FAA that the Union failed to raise before the agencies.
14
Although it is true the Union did not refer to § 702 in its
complaint, “courts are not restricted to the statutory basis [for
jurisdiction] alleged if the factual allegations fairly support an
alternative basis.” United States v. AT&T, 551 F.2d 384, 389
n.7 (D.C. Cir. 1976); see, e.g., In re Mailman Steam Carpet
Cleaning Corp., 196 F.3d 1, 5 (1st Cir. 1999) (“Affirmative
pleading of the precise statutory basis for federal subject
matter jurisdiction is not required as long as a complaint
alleges sufficient facts to establish jurisdiction”). It is clear
from the facts of this case, in which the Union is suing
agencies of the United States and seeking non-monetary
relief, § 702 provides a waiver of sovereign immunity.
Second, the FAA argues that because “none of the relief
sought by [the Union] can be obtained from the FAA,” the
Union’s complaint fails to state a claim upon which relief can
be granted against the FAA. See Fed. R. Civ. P. 12(b)(6).
The point, to which the Union makes no reply, is obviously
well taken.
III. Conclusion
For the forgoing reasons, we affirm the order of the
district court insofar as it dismissed this case against the FAA
and reverse that order insofar as it dismissed the case against
the FSIP and the FLRA. Accordingly, the matter is remanded
to the district court for further proceedings consistent with
this opinion.
So ordered.