Univ DC Fac Assn NEA v. DC Fincl Respsble

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 30, 1998 Decided December 22, 1998

No. 98-7024

University of the District of Columbia

Faculty Association/NEA, et al.,

Appellees

v.

District of Columbia Financial Responsibility

and Management Assistance Authority, et al.,

Appellants

Consolidated with

98-7025

Appeals from the United States District Court

for the District of Columbia

(No. 97cv01080)

Daniel A. Rezneck argued the cause for appellants. With
him on the briefs was Robin C. Alexander. John M. Ferren,

Corporation Counsel, Charles L. Reischel, Deputy Corpora-
tion Counsel, and Lutz A. Prager, Assistant Deputy Corpora-
tion Counsel, entered appearances.

Andrew D. Roth argued the cause for appellees. With him
on the brief was Laurence Gold. Jeffrey L. Gibbs entered an
appearance.

Before: Edwards, Chief Judge, Ginsburg and Rogers,
Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: In response to the District of
Columbia's "financial problems and management inefficien-
cies," Congress enacted the District of Columbia Financial
Responsibility and Management Assistance Act of 1995, Pub.
L. No. 104-8, 109 Stat. 97 (1995) ("FRMAA" or "Act").
Under the Act, a Control Board was granted substantial
authority over the financial management of the District. The
scope of this statutory authority is at issue in this case.

In 1997, in an effort to keep the District's budget under a
congressionally-imposed deficit ceiling, the Control Board
issued an order authorizing the Board of Trustees ("Trust-
ees") of the University of the District of Columbia ("UDC") to
reduce its faculty "[n]otwithstanding the provisions of any
collective bargaining agreement." Joint Appendix ("J.A.") 88.
Appellees--UDC faculty members--contend that the Control
Board's order was ultra vires and, therefore, without legal
effect. Accordingly, they assert, UDC violated the collective
bargaining agreement between the university and the faculty
when it conducted a reduction-in-force ("RIF") that disre-
garded the specific provisions covering RIFs in the parties'
agreement.

We agree with the District Court that Congress did not
grant the Control Board the authority to abrogate existing
contracts between the District and its employees. Because
the Control Board's action was ultra vires, we remand appel-
lees' contract claim to the District Court for a determination

as to whether the claim should now be submitted to arbitra-
tion.

I. Background

Congress created the Control Board in April 1995, citing
the District's "fail[ure] to provide its citizens with effective
and efficient services," warning that "[t]he current financial
and management problems of the District government have
already adversely affected the long-term economic health of
the District," and calling for "[a] comprehensive approach to
fiscal, management, and structural problems ... which ex-
empts no part of the District government." FRMAA s 2(a).

Sections 103 and 203 of the FRMAA delineate the authority
of the Control Board, the members of which are appointed by
the President. Under these provisions, the Control Board is
empowered to hold hearings and receive evidence, obtain
official data from the federal and District Government, issue
subpoenas, enter into contracts, and approve or disapprove of
Acts passed by the D.C. Council. See FRMAA ss 103, 203;
see also Shook v. District of Columbia Fin. Responsibility
and Management Assistance Auth., 132 F.3d 775, 777 (D.C.
Cir. 1998) ("[T]he Control Board has been given wide-ranging
powers to improve the District government's operations.").

In July 1996, Congress enacted the District of Columbia
Appropriations Act, 1997, Pub. L. No. 104-194, 110 Stat. 2356
(1996) ("Appropriations Act"). Section 141(a)(1) of the Ap-
propriations Act imposed on the District a deficit ceiling of
$74 million for fiscal year 1997. See Appropriations Act
s 141(a)(1). Section 141(a)(2) stated that the "Chief Financial
Officer of the District of Columbia [and the Control Board]
shall take such steps as are necessary to assure that the
District of Columbia meets the requirements of this section."
Id. s 141(a)(2).

Congress subsequently amended the FRMAA. See Omni-
bus Consolidated Appropriations Act, 1997, Pub. L. No.
104-208, 110 Stat. 3009 (1996). The amended s 207(d)(1)
("1996 Amendment") gives the Control Board the power to
issue "such orders, rules, or regulations as it considers appro-

priate to carry out the purposes of [the FRMAA] ... to the
extent that the issuance of such an order, rule, or regulation
is within the authority of the Mayor or the head of any
department or agency of the District government." Id.
s 5203(f). The parties agree that the 1996 Amendment al-
lows the Control Board to "stand in the shoes" of the Mayor
and other District officials--such as the UDC Trustees--and
perform whatever functions those officials would be autho-
rized to perform themselves.

As fiscal year 1997 unfolded, the District was in grave
danger of exceeding the $74 million deficit ceiling. UDC was
a major contributor to the deficit, so university officials were
obliged to consider spending limitations to cut costs. Among
the options available to UDC was a RIF of faculty members.
This option was less than ideal, however, because UDC was
bound to comply with the enumerated RIF and employee
benefit protections contained in the faculty's collective bar-
gaining agreement ("CBA"). Although the CBA permits
UDC to conduct a RIF when such action is compelled by a
fiscal emergency, it affords important protections for the
faculty in the event of a RIF. First, the agreement provides
that senior members of the faculty must be retained ahead of
junior members. See J.A. 163. Second, the agreement re-
quires that faculty members receive one year's notice of a
RIF or severance pay in lieu thereof. See id. at 165. The
CBA also mandates that UDC "maintain" the retirement
plans of existing faculty members. Id. at 152.

On January 13, 1997, Julius F. Nimmons, Jr., Acting Presi-
dent of UDC, wrote to Dr. Andrew F. Brimmer, chairman of
the Control Board, requesting that the Control Board exempt
UDC from the seniority, notice, and benefits provisions of the
CBA. See id. at 84-85. Nimmons wrote that "[i]t would be
impossible for the University to meet the goals of my [finan-
cial] plan without the legal authority" requested in the letter.
Id. at 84.

Nine days later, the Control Board responded by issuing
the order at issue in this case. Noting that "a state of fiscal
crisis exists" at UDC and that the CBA represents a "signifi-

cant impediment[ ] to the achievement of any budget savings
through personnel reductions," the Control Board found that
"there are no other less drastic means of achieving the
required budget savings than through the unilateral modifica-
tion of the [CBA]." Id. at 87. Accordingly, the Control
Board authorized UDC, "[n]otwithstanding ... the provisions
of any collective bargaining agreement, [to] ... conduct its
[RIF] in a manner which will allow it to achieve its planned
budget savings." Id. at 87-88. The order specifically direct-
ed that UDC contribute no more than 7% to its employee
retirement plans, and allowed UDC to disregard the seniority
and notice provisions of the CBA. See id. On February 4,
1997, the UDC Trustees implemented the Control Board's
order by approving a RIF that did, in fact, disregard the
applicable terms of the CBA. See id. at 103-05. UDC also
lowered its contributions to the faculty retirement plan to 7%,
effective March 1, 1997.

On February 14, 1997, the UDC Faculty Association ("Fac-
ulty") challenged the RIF by filing grievances pursuant to the
grievance procedures outlined in the CBA. UDC responded
on April 7, 1997, in a letter stating that UDC's actions were
not reviewable under the CBA's grievance procedures, be-
cause its actions were "mandated by" the Control Board and
"were taken notwithstanding the provisions of the [CBA]."
Id. at 198-99.

The Faculty filed the instant lawsuit on May 15, 1997,
naming the Control Board and UDC as defendants. The suit
alleged that the Control Board had exceeded its congression-
ally-delegated authority, and that UDC had violated the
terms of the CBA. On February 3, 1998, the District Court
granted the Faculty's motion for summary judgment. See
University of the Dist. of Columbia Faculty Ass'n/NEA v.
Board of Trustees of the Univ. of the Dist. of Columbia, 994
F. Supp. 1 (D.D.C. 1998) ("UDC Faculty"). The court sur-
veyed the congressional acts that delineated the scope of the
Control Board's authority and found no basis for the order
that the Control Board had promulgated. See id. at 10.
Accordingly, the court found UDC in breach of the CBA and
ordered "full compliance by the University with the terms of

the [CBA]." University of the Dist. of Columbia Faculty
Ass'n/NEA v. Board of Trustees of the Univ. of the Dist. of
Columbia, No. 97-01080 (D.D.C. Feb. 3, 1998) ("UDC Faculty
Order"), reprinted in J.A. 244.

This appeal followed. In addition to challenging the Dis-
trict Court's interpretation of the relevant congressional stat-
utes, appellants contend for the first time that the District
Court lacked subject matter jurisdiction to consider this case.

II. Analysis

A.The Ultra Vires Claim

1. Jurisdiction

Appellants now claim that, under District of Columbia law
and the terms of the CBA, the Faculty should have sought
redress through arbitration rather than in the District Court.
They contend that the District Court improperly exercised
subject matter jurisdiction over the case, and request a
remand with orders to dismiss. It is, of course, axiomatic
that a challenge to the jurisdiction of a federal district court
may be raised for the first time on appeal. See Insurance
Corp. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
701-02 (1982). The Control Board's jurisdictional claim fails,
however, not because it is untimely, but because it is without
merit.

Section 105(a) of the FRMAA, which provides for jurisdic-
tion in the District Court, reads as follows:

Jurisdiction Established in District Court for District
of Columbia.--Except as provided in section 103(e)(2)
(relating to the issuance of an order enforcing a subpoe-
na), any action against the [Control Board] or any action
otherwise arising out of this Act, in whole or in part,
shall be brought in the United States District Court for
the District of Columbia.

FRMAA s 105(a). In their brief to this court, appellants
virtually ignore s 105(a), relegating it to passing mention in a
footnote. See Brief of Appellants at 24 n.11. Instead, appel-

lants claim that "[t]he essence of the plaintiffs' claim here was
for breach of contract; the [Control Board's] Order, if valid,
was a defense to that claim." Id. Thus, according to appel-
lants, the Faculty's action did not arise under the FRMAA,
but rather arose under the terms of the CBA, and should
have been adjudicated under the CBA's grievance and arbi-
tration procedures. This argument is simply wrong, because
it patently mischaracterizes the gravamen of the Faculty's
claim.

The Faculty's complaint alleged, inter alia, that "[t]he
action of the Control Board in promulgating the Control
Board Order was neither required nor authorized by the
[FRMAA], as amended, or by any other Act of Congress."
Complaint p 33, reprinted in J.A. 13. The complaint went on
to request that the District Court "[d]eclare that the Control
Board Order ... [was] ultra vires, and ... therefore null and
void and of no effect." Id. at 18-19, reprinted in J.A. 18-19.
In short, the Faculty's primary contention before the District
Court was that the Control Board exceeded its authority
when it issued the disputed order. In fact, the principal focus
of the parties in the trial court was on the validity of the
Control Board's order. Given the complaint before the Dis-
trict Court and the issues addressed by the parties at trial, it
cannot seriously be disputed that, for the purposes of deter-
mining jurisdiction under s 105(a), the action was "against"
the Control Board and "ar[ose] out of" the FRMAA. Accord-
ingly, the District Court properly exercised jurisdiction over
the Faculty's ultra vires claim.

2.The Scope of the Control Board's Authority Under the
FRMAA

This court reviews grants of summary judgment de novo.
See Washington Teachers' Union Local #6 v. Board of Educ.,
109 F.3d 774, 778 (D.C. Cir. 1997). Because no factual
matters are in dispute, we must determine whether the
District Court's decision in favor of the Faculty was correct
as a matter of law. We hold that it was.

The Faculty's ultra vires claim is quite straightforward.
As articulated by the District Court, the Faculty's contention

is that "nowhere in the FRMAA's studiously detailed specifi-
cation of the Control Board's powers is there any mention of
a power to unilaterally repudiate unwanted provisions in
collective bargaining agreements previously entered into by
the District of Columbia or its agencies." UDC Faculty, 994
F. Supp. at 4. It is undisputed that the FRMAA does not
expressly grant the Control Board the power to authorize
nullification of existing collective bargaining agreements.
The issue, then, is whether, as the Control Board asserts, the
language of the FRMAA and subsequent legislation may be
read to suggest that Congress intended the Control Board to
have the power that it exercised when it issued the order.

As an initial matter, we note that the Control Board's
persistent refrain that Congress itself, by virtue of its plenary
authority over the District, could have granted UDC the
authority to unilaterally modify the CBA, see, e.g., Brief of
Appellants at 29-30, is completely irrelevant to the issue at
hand. The Control Board concedes, see Brief of Appellants
at 6, and we agree, that Congress never delegated its plenary
authority to the Control Board or any other agency of gov-
ernment in the District of Columbia. Thus, the Control
Board's power over the District is limited in a way that
Congress's is not; Congress's power is bounded only by the
Constitution, whereas the Control Board's power is bounded
by the parameters set forth in its enabling Act and subse-
quent legislation.

The FRMAA itself does not lend support to the Control
Board's claim of authority. It is true that Congress, in its
statement of findings, detailed at length the unfortunate state
of the District's financial health. See FRMAA s 2(a). Con-
gress also stated that the purpose of the Act was to "elimi-
nate budget deficits and cash shortages of the District" and
"ensure the long-term financial, fiscal, and economic vitality
and operational efficiency of the District." Id. s 2(b). Ap-
pellants contend that this background section of the FRMAA
serves as "an indispensable road map to a reading of the
statute as a whole." Brief of Appellants at 28. However,
appellants' argument continually loses sight of the fact that
Congress specifically enumerated the Control Board's powers

in ss 103 and 203 of the FRMAA. And, as the District Court
aptly noted, "given the well known concerns about how an
unelected entity with considerable power over the District
government's operations would affect 'Home Rule' " in the
District, UDC Faculty, 994 F. Supp. at 6, it is hardly surpris-
ing that Congress did not grant the Control Board carte
blanche to run the city.

The only mention of collective bargaining agreements in
the FRMAA is found in the provision granting the Control
Board the authority to review and approve collective bargain-
ing agreements into which the D.C. Council proposes to
enter. See FRMAA s 203(b)(1). Appellants claim that it is
an "enormous stretch" to infer that when Congress gave the
Control Board the authority to review and approve new
collective bargaining agreements, it simultaneously meant to
prohibit the Control Board from unilaterally modifying exist-
ing agreements. Brief of Appellants at 34. In other words,
according to appellants, it was improper for the District
Court to assume that, because Congress did not speak to the
issue of existing collective bargaining agreements, it meant to
protect such agreements from the authority of the Control
Board. Appellants' premise--that the Control Board has the
authority to do anything that is not expressly prohibited by
the FRMAA--is quite extraordinary and we reject it.

In Railway Labor Executives' Ass'n v. National Mediation
Board, 29 F.3d 655 (D.C. Cir. 1994) (en banc), this court
rejected an argument virtually identical to the one advanced
by appellants in this case. In Railway Labor, the court
invalidated the National Mediation Board's ("NMB") attempt
to exercise a power that was not explicitly conferred by the
Railway Labor Act ("RLA"), but which nevertheless fur-
thered the NMB's "purported mandate." Id. at 660. It is
true, as appellants point out, that the facts of Railway Labor
are distinguishable from those of this case, because Con-
gress's grant of authority to the NMB was narrower than
that granted to the Control Board. Nevertheless, the funda-
mental principle of statutory interpretation articulated by the
en banc court in Railway Labor is equally compelling in this
case:

The [NMB] does not even claim that the terms of [the
RLA] support the authority it asserts.... Instead, the
Board would have us presume a delegation of power
from Congress absent an express withholding of such
power. This comes close to saying that the [NMB] has
the power to do whatever it pleases merely by virtue of
its existence, a suggestion that we view to be incredible.

Id. at 659; see also American Petroleum Inst. v. EPA, 52
F.3d 1113, 1120 (D.C. Cir. 1995). Despite the broad language
of the FRMAA's findings and purposes section, which only
establishes Congress's concern for the District's financial
well-being, appellants cannot avoid the conclusion that their
argument essentially boils down to a claim that because
Congress never said that the Control Board could not unilat-
erally modify existing agreements, the power to do so is
implicit in the Act.

We agree with the District Court that appellants' reading
of the FRMAA requires precisely the kind of tortured statu-
tory interpretation that we spurned in Railway Labor. See
UDC Faculty, 994 F. Supp. at 7 ("[T]he position that the
Control Board has taken in this litigation is analytically
indistinguishable from one that already has been roundly
rejected in [Railway Labor]."). We also agree with the
District Court that it is highly unlikely that Congress intend-
ed to give the Control Board the power to repudiate existing
labor contracts--a power that the Constitution denies to the
States, see Allied Structural Steel Co. v. Spannaus, 438 U.S.
234, 242-44 (1978) (explaining how the contract clause, U.S.
Const. art. I, s 10, cl. 1, limits "the power of a State to
abridge existing contractual relationships")--without seeing
fit to mention this power even once in the Act or its legisla-
tive history. See UDC Faculty, 994 F. Supp at 8. In sum,
we hold that the FRMAA, standing alone, does not provide
the Control Board with the authority it exercised in this case.

3.The 1996 Amendment to the FRMAA

The subsequent congressional legislation appellants cite in
support of their argument is no more availing. Before the
District Court, and in their brief to this court, appellants

contended that the 1996 Amendment--granting the Control
Board the power to "stand in the shoes" of the UDC Trust-
ees--established the Control Board's "independent" authority
to issue its order. The theory was that if the UDC Trustees
themselves had the authority in the event of a fiscal emergen-
cy to nullify certain provisions of the CBA, the Control Board
could have done so as well, under the 1996 Amendment. See
Brief for Appellants at 30-32.

At oral argument, however, counsel for the Control Board
essentially abandoned this argument, and rightfully so. The
argument fails because it is simply not true that the UDC
Trustees had the authority to repudiate the provisions at
issue in the CBA. Article X of the CBA does give UDC the
authority to "take whatever actions may be necessary to
carry out the mission of the University in emergency situa-
tions." J.A. 122. However, Article X allows UDC to take
such emergency actions only to the extent that they are not
"specifically limited by the provisions of this Agreement." Id.
By its very terms, then, the CBA does not allow UDC to
repudiate the seniority, notice, and benefit provisions that it
repudiated pursuant to the Control Board's order. Thus, as
the District Court determined, "[b]ecause the University does
not have an independent entitlement to renounce unwanted
provisions in the Agreement, the Control Board, likewise, has
no authority under the 1996 Amendment to compel renounce-
ment by the University." UDC Faculty, 994 F. Supp. at 9.

Far from supporting appellants' cause, the 1996 Amend-
ment actually serves to weaken their contention that the
broad language of the original FRMAA should be read to
authorize the Control Board's action. Although the 1996
Amendment gave the Control Board "enormous power vis--
vis the Mayor, as well as all department and agency heads
subordinate to the Mayor," Shook, 132 F.3d at 779, it also
further delineated the parameters of the Control Board's
authority pursuant to the Act. Nothing in the original Act
prohibited the Control Board from "standing in the shoes" of
the Mayor and other officials, yet Congress felt it necessary
to expressly grant the Control Board this authority in the
1996 Amendment. While not dispositive, Congress's 1996

amendment of the FRMAA certainly suggests that it did not
intend, when it originally enacted the Act, to provide the
Control Board with the unbridled authority that appellants
seek.

4.The Appropriations Act

Finally, appellants point to s 141 of the Appropriations
Act, which directs the Control Board to "take such steps as
are necessary" to avoid exceeding the $74 million deficit
ceiling. Appropriations Act s 141(a)(2). The accompanying
conference report states that the "conferees urge the Mayor,
the City Council, and the control board to use every means
possible to reduce the costs of operating the Nation's Capital
and make every effort to avoid deficit spending." H.R. Conf.
Rep. No. 104-740, at 17 (1996). Appellants contend that the
language of s 141 and its legislative history establish authori-
ty for the Control Board's order. We disagree.

It is clear to us, just as it was to the District Court, that
s 141 of the Appropriations Act cannot be read to provide the
Control Board with the grant of authority required to promul-
gate the order at issue in this case. The Act's cryptic
direction to "take such steps as are necessary" surely does
not give the Control Board unlimited authority, and the
Control Board makes no such claim here. Rather, in citing
the Appropriations Act, appellants once again appear to rely
on the implicit contention that any action taken by the
Control Board was lawful unless expressly prohibited by
Congress. We rejected this kind of reasoning as specious in
Railway Labor and we reject it here as well. In disposing of
the parties' arguments on the Appropriations Act, the District
Court got it right when it held that, in drafting s 141,
Congress simply "communicated its desire for the Control
Board to make full use of the powers that Congress had
delegated to it in the FRMAA." UDC Faculty, 994 F. Supp.
at 10.

We note that our conclusion in this regard is supported by
three additional points. First, while Congress may amend
substantive law in an appropriations act, it must do so "clear-
ly." Robertson v. Seattle Audubon Soc'y, 503 U.S. 429, 440

(1992). Section 141 is far from clear, inasmuch as it makes no
reference to any grant of new authority to cut spending, and
does not purport to amend the FRMAA. Second, under the
language of s 141, the scope of the powers that the Control
Board claims for itself would accrue as well to the District's
Chief Financial Officer. There is nothing to suggest that
Congress intended this result, and appellants do not even
claim as much. Thus, it is doubtful that Congress viewed
s 141 as vesting broad new powers in either the Chief
Financial Officer or the Control Board. Third, in s 140(b) of
the Appropriations Act, the section immediately preceding
the one upon which appellants rely, Congress authorized
agency heads in the District (but not the UDC Trustees) to
terminate employees "[n]otwithstanding any other provision
of law, regulation, or collective bargaining agreement." Ap-
propriations Act s 140(b). This authorization undermines
appellants' argument by making clear that if Congress meant
to suggest that it could authorize certain District officials to
abrogate existing collective bargaining agreements, it knew
how to do so expressly. Section 140(b) also contains proce-
dural protections for terminated employees that were not
provided to the faculty members in this case, suggesting that
the Control Board's claim of unfettered discretion to termi-
nate existing collective bargaining agreements far exceeds the
scope of authority that Congress might have delegated.

5.Summary

We affirm the District Court's determination that the Con-
trol Board's order was issued ultra vires. Nothing in the
FRMAA or in the subsequent congressional legislation cited
by appellants gave the Control Board the authority to repudi-
ate the CBA. Accordingly, we hold that the order was
without legal effect.

B.The Contract Claim

In conjunction with its primary contention that the Control
Board's order was issued without legal authority, the Faculty
argues that, if that is the case, UDC undeniably violated the
terms of the CBA. The Faculty's complaint therefore re-
quested that the District Court declare that "all actions taken

pursuant to the Order are rescinded." Complaint at 19,
reprinted in J.A. 19. The District Court did so, declaring
UDC to be in breach of the CBA and ordering "full compli-
ance" with its terms. UDC Faculty Order at 2, reprinted in
J.A. 244. Nothing in the record indicates that the parties or
the trial court dwelt long, if at all, on the contract claim.
Rather, as noted above, the principal focus in the District
Court was on the validity of the order. It appears that the
District Court, after finding that the Control Board's order
was ultra vires, concluded, a fortiori, that UDC had breached
the CBA.

The Faculty asserts that, because the contract claim was
undoubtedly "related to" the ultra vires claim, the District
Court properly exercised its supplemental jurisdiction in con-
sidering and resolving the contract claim. See 28 U.S.C.
s 1367(a) (1994). Appellants, however, contend that, under
the terms of the CBA, and in accordance with District of
Columbia law, the Faculty was required to submit its griev-
ance to arbitration before bringing a breach of contract action
in court. See District of Columbia v. Thompson, 593 A.2d
621, 635 (D.C. 1991) (holding that the D.C. Council intended
the District's Comprehensive Merit Personnel Act ("CMPA"),
D.C. Code Ann. ss 1-601.1 to -637.2, to provide District
employees with an exclusive administrative remedy for the
resolution of their grievances); J.A. 117-21 (detailing the
CBA's grievance procedure). Thus, appellants argue that the
District Court never had jurisdiction over the contract claim,
because the Faculty failed to exhaust its administrative reme-
dies.

In the trial court, however, appellants never raised exhaus-
tion, in part because they appeared to concede that the CBA
had been abrogated pursuant to the Control Board's order.
Accordingly, the Faculty claims that appellants waived their
exhaustion defense by failing to raise it before the District
Court. The Faculty also asserts that, under District of
Columbia law, it would have been futile to pursue arbitration
in the face of UDC's flat refusal to follow the CBA's griev-
ance procedures. See Board of Trustees, Univ. of the Dist. of
Columbia v. Myers, 652 A.2d 642, 645 (D.C. 1995) (establish-

ing that a showing of futility may overcome an employer's
exhaustion defense). For their part, appellants cite Thomp-
son and its progeny for the proposition that the so-called
"exhaustion" requirement is, in fact, jurisdictional and, there-
fore, cannot be waived. See Brief of Appellants at 20-24.

In our view, the parties are on a wild goose chase in
contesting whether the CBA's grievance procedures amount
to a "jurisdictional" bar that precludes resolution of the
contract claim in District Court. District of Columbia law
clearly subscribes to the rule--long considered fundamental
to federal labor policy--that parties to a collective bargaining
agreement who have agreed to submit their disputes to
arbitration normally may not bypass their contract grievance
procedures in favor of a lawsuit. In Jordan v. Washington
Metropolitan Area Transit Authority, 548 A.2d 792, 796
(D.C. 1988), the D.C. Court of Appeals stressed that:

if the collective bargaining agreement establishes proce-
dures which are intended to be exclusive for resolving
employer-employee grievances ... and if the employee
brings suit against the employer before those grievance
procedures have been exhausted, the employer may de-
fend on the ground that the employee has not exhausted
the exclusive remedies available under the contract.

(footnote omitted); see also Myers, 652 A.2d at 645; cf.
Communications Workers v. AT&T, 40 F.3d 426, 434 (D.C.
Cir. 1994) ("It is a well-settled rule of labor law that parties to
a collective bargaining agreement normally must seek to
resolve their contract disputes under agreed-upon grievance
and arbitration procedures; and where the parties have
agreed to final and binding arbitration, disputes within the
scope of the arbitration clause may not be pursued in a
breach of contract action under section 301 of the [Labor
Management Relations Act] in lieu of arbitration.").

Under prevailing D.C. and federal law, an employee may
bypass the agreed-upon arbitration procedures only by show-
ing that the "grievance procedures are unreasonable or that
the hostility of union officials makes a fair hearing impossi-
ble," Jordan, 548 A.2d at 797 (citations omitted), or that

"pursuit of [administrative] remedies would be futile."
Myers, 652 A.2d at 645; see also Vaca v. Sipes, 386 U.S. 171,
185-88 (1967). In this case, nothing about the CBA's griev-
ance procedures is alleged to be unreasonable. And, since it
is the faculty's union that brought this action, there is certain-
ly no claim that the union has breached its duty of fair
representation. Finally, although the Faculty now contends
that an attempt to arbitrate would be futile, the District
Court has made no such finding. Thus, it appears that the
Faculty's contract claim is subject to arbitration.

It is true that the D.C. Court of Appeals, in Wilson v.
District of Columbia, 608 A.2d 161, 161 n.1 (D.C. 1992),
intimated in a footnote that failure to raise exhaustion in the
trial court could preclude the defense on appeal. It is also
true that the D.C. Court of Appeals has never explicitly
referred to the exhaustion requirement as a "jurisdictional"
bar, thus at least ostensibly leaving open the possibility that a
federal district court could hear an employee grievance under
its supplemental jurisdiction if an objection to exhaustion has
been waived. The Faculty would have us conclude from
these two facts that, as a matter of District of Columbia law,
appellants have waived their exhaustion defense in this case,
because the issue was never raised by appellants before the
District Court.

We decline the invitation to decide this question. We are
convinced that, in normal circumstances, D.C. law holds that
parties to a collective bargaining agreement must resolve
their contract disputes under agreed-upon grievance and
arbitration procedures. In this case, however, because of the
way the matter was initially presented, neither party focused
on the contractual issue in the District Court. Appellants'
failure to raise the so-called exhaustion issue is at least
partially explained by the fact that the validity of the Control
Board's order, and not the actual RIF, was the primary
concern of the parties in the trial court. In these circum-
stances, we are loath to find that appellants "waived" any-
thing; indeed, all that may be at issue here is a possible
"forfeiture" of the exhaustion defense. Cf. United States v.
Olano, 507 U.S. 725, 733 (1993) (explaining the legal distinc-

tion between "waiver" and "forfeiture"). In any event, we
happily eschew the temptation to wander through the maze of
District of Columbia law--to cut fine lines between futility,
forfeiture, waiver, exhaustion, and jurisdiction--when a less
indulgent course is apparent.

Prudence beckons, so we will remand the contract claim to
the District Court. Upon remand, the District Court should
determine whether there are any viable issues remaining to
be resolved in arbitration; if the trial court so finds, then the
case should be submitted to arbitration. In other words, the
District Court should not resolve the contractual issue unless
UDC, upon remand, (1) refuses to participate in an arbitra-
tion of the merits of the Faculty's contract claim, so that a
remand to arbitration would be futile; or (2) abandons its
exhaustion defense in light of our decision that the Control
Board's action was ultra vires.

III. Conclusion

For the reasons stated above, we affirm the opinion of the
District Court, insofar as it holds that the Control Board
acted ultra vires when it issued its order. We remand to the
District Court to determine whether the Faculty's contract
claim should now be submitted to arbitration.

So ordered.