United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2009 Decided February 13, 2009
No. 08-5163
JOSEPH J. FILEBARK, II, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION AND
FEDERAL AVIATION ADMINISTRATION,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-01685)
George M. Chuzi argued the cause and filed the briefs
for appellant.
Beverly M. Russell, Assistant U.S. Attorney, argued the
cause for appellees. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, R. Craig Lawrence, Assistant U.S.
Attorney, and Elizabeth J. Head, Attorney, Federal Aviation
Administration.
Before: HENDERSON, TATEL, and GARLAND, Circuit
Judges.
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Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: We have long held that federal
employees may not use the Administrative Procedure Act to
challenge agency employment actions. See Fornaro v. James,
416 F.3d 63, 66–67 (D.C. Cir. 2005); Graham v. Ashcroft,
358 F.3d 931, 933–35 (D.C. Cir. 2004); Carducci v. Regan,
714 F.2d 171, 172 (D.C. Cir. 1983). This is so because
Congress, through the Civil Service Reform Act of 1978, Pub.
L. No. 95-454, 92 Stat. 1111 (codified as amended in
scattered sections of 5 U.S.C.), and related employment
statutes, has carefully constructed a system for review and
resolution of federal employment disputes, intentionally
providing—and intentionally not providing—particular
forums and procedures for particular kinds of claims. As
such, we have held that this comprehensive employment
scheme preempts judicial review under the more general APA
even when that scheme provides no judicial relief—that is,
“what you get under the CSRA is what you get.” Fornaro,
416 F.3d at 67. In this case four air traffic controllers
nonetheless argue that they may use the APA to litigate their
pay dispute with the Federal Aviation Administration because
the CSRA provides them no protection. Straightforwardly
applying our precedent, we affirm the district court’s
dismissal of their suit.
I.
Appellants are four air traffic controllers of the
Albuquerque, New Mexico Air Traffic Control Center. Two
are bargaining unit members represented by the National Air
Traffic Controllers Association (NATCA) while two are
excluded from the unit as supervisors, but agreements
between NATCA and the FAA control the pay of all four.
Under those agreements, salary levels vary from airport to
airport based on the amount and complexity of the air traffic
3
they manage. The controllers believe the Albuquerque
Center’s salary level is set too low because, in their view, the
site’s traffic figures erroneously exclude certain military
flights.
In April 2000, one of the bargaining unit employees,
appellant Joseph Filebark II, following the procedure set out
in his collective bargaining agreement, filed a grievance about
the salary-level classification with the Albuquerque Center.
That grievance was denied, and when Filebark asked the
union to pursue the matter to arbitration, the union declined.
The Center itself later applied to the FAA for a salary-level
upgrade, but that request was denied pending validation of the
computer systems that measure air traffic. Although NATCA
eventually filed a grievance on behalf of employees at the
Albuquerque Center, it withdrew that grievance before it was
decided. Meanwhile, one of the non–bargaining unit
controllers attempted to file a grievance, which was refused.
He later sued in the Court of Federal Claims on a contract
theory, but the court rejected his claim as outside its Tucker
Act jurisdiction. Todd v. United States, 56 Fed. Cl. 449, 453
(2003), aff’d, 386 F.3d 1091 (Fed. Cir. 2004).
Having failed to obtain review on the merits through
any of these avenues, the controllers brought a two-count
complaint in United States District Court for the District of
Columbia. Count I sought review of Filebark’s denied
grievance, identifying 5 U.S.C. § 7121(a)(1), a provision of
the CSRA, as the statutory basis for judicial review of
negotiated grievance procedures. Am. Compl. ¶¶ 37–38.
Count II sought APA review of the Albuquerque Center’s
salary-level classification on behalf of all plaintiffs. Id. ¶¶
39–42. Concluding that section 7121(a)(1), rather than
authorizing the suit, “precludes [employees with negotiated
grievance procedures] from seeking judicial review” of any
4
kind, Filebark v. U.S. Dep’t of Transp. (Filebark I), 468 F.
Supp. 2d 3, 6 (D.D.C. 2006), the district court dismissed both
counts brought by the bargaining unit employees, eliminating
Count I entirely and leaving only the APA claims of the non–
bargaining unit supervisors, id. at 6. Addressing and rejecting
only one argument—regarding exhaustion of administrative
remedies—the district court allowed the supervisors’ APA
claims to go forward. Id. at 7–8. By minute order, the district
court denied both sides’ requests for reconsideration. In a
second opinion, however, it dismissed the supervisors’ APA
claims, finding them precluded under our CSRA precedents.
Filebark v. Dep’t of Transp. (Filebark II), 542 F. Supp. 2d 1,
6–9 (D.D.C. 2008).
Significantly for our purposes, the FAA is largely
exempted from the CSRA by 49 U.S.C. § 40122(g)(1), which
directs the FAA to develop “a personnel management system
for the Administration that addresses the unique demands on
the agency’s workforce,” “notwithstanding the provisions of
title 5 [i.e., the CSRA] and other Federal personnel laws.”
See also § 40122(g)(2) (“The provisions of title 5 shall not
apply to the new personnel management system . . . .”).
Congress required that “[s]uch a new system shall, at a
minimum, provide for greater flexibility in the hiring,
training, compensation, and location of personnel.”
§ 40122(g)(1). In response the FAA created a personnel
management system with dispute resolution provisions that
largely track those of the CSRA, providing greater review for
major adverse actions and no review for minor actions like
this pay-scale dispute. The general exemption from the
CSRA has certain exceptions, however, as CSRA provisions
such as “chapter 71, relating to labor-management relations,”
continue to apply. § 40122(g)(2)(C).
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Among the provisions in that chapter that still apply is
section 7121(a)(1), which requires that collective bargaining
agreements contain negotiated procedures for the settlement
of grievances, and which the controllers cite as the statutory
basis for Count I of their amended complaint. This section
previously provided that such negotiated grievance
procedures would be “the exclusive procedures for resolving
grievances which fall within its coverage.” 5 U.S.C. §
7121(a)(1) (1994). In 1994, however, Congress amended
section 7121(a)(1) to make negotiated grievance procedures
“the exclusive administrative procedures for resolving
grievances which fall within its coverage.” § 7121(a)(1)
(emphasis added). Having held that the earlier version of this
section precluded all judicial review for employees with
negotiated grievance procedures, Carter v. Gibbs, 909 F.2d
1452, 1454 (Fed. Cir. 1990) (en banc), the Federal Circuit
recently reversed course, holding that the 1994 amendment
signaled Congress’s intent no longer to preclude all review of
covered grievances. Mudge v. United States, 308 F.3d 1220,
1227 (Fed. Cir. 2002).
Seeking reversal of the district court’s ruling that they
have no cause of action, the controllers make three arguments:
(1) that the district court erred in dismissing the bargaining
unit members because section 7121(a)(1), as amended, no
longer precludes judicial review of negotiated grievance
procedures; (2) that by revisiting dismissal of the APA claims,
the district court violated the law of the case; and (3) that
because their employer is largely exempt from the CSRA, the
controllers can maintain an APA cause of action
notwithstanding our CSRA preclusion precedents. We
consider each argument in turn.
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II.
The controllers’ first argument—applicable only to the
bargaining unit members—lacks in relevance whatever it
might have in merit. It may be true that in amending section
7121(a)(1) Congress intended no longer to preclude all
judicial review for employees with negotiated grievance
procedures; it may also be true that Mudge correctly allowed
the employees in that case to proceed; it may even be true that
the district court’s first opinion in this case erroneously used
section 7121(a)(1) as justification for dismissing all
bargaining-unit employee claims. But even if section
7121(a)(1) no longer has this preclusive effect, it is
emphatically untrue that Ҥ 7121(a)(1) establishes [a] federal
employee’s right to seek judicial remedy for [a] grievance
subject to negotiated procedures in [a] collective bargaining
agreement,” as the controllers maintain in their complaint,
Am. Compl. ¶ 37 (emphasis added). To the contrary, as the
Supreme Court explained in Whitman v. Department of
Transportation, 547 U.S. 512, 513 (2006), section
“7121(a)(1) does not confer jurisdiction,” nor does it create a
cause of action.
Because section 7121(a)(1), by itself, provides no right
to sue, the bargaining unit employees must point to an
independent source of law in order to maintain this action. In
Mudge a money claim within the Tucker Act jurisdiction of
the Court of Federal Claims provided the cause of action, see
28 U.S.C. § 1491(a)(1); Mudge v. United States, 50 Fed. Cl.
500, 502 (Fed. Cl. 2001); in Carter, the case that Mudge held
overruled by the 1994 amendment, the Fair Labor Standards
Act, 29 U.S.C. § 216(b), provided the cause of action, see 909
F.2d at 1453. Neither is available here. In fact, the only basis
for a cause of action the bargaining unit controllers even
mention in their complaint is the APA—the same source
identified by the non–bargaining unit controllers. Thus, the
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case for all four controllers begins and ends with the question
identified as central by the Supreme Court in Whitman and
answered in the district court’s second opinion—namely
“whether § 7121 (or the CSRA as a whole) removes the
jurisdiction given to the federal courts or otherwise precludes
employees from pursuing” a claim under the APA, Whitman,
547 U.S. at 514 (emphasis added, citation omitted). If we
answer that question in the affirmative then neither the
bargaining unit members nor the supervisors have a claim,
whether or not the district court, in its first opinion, properly
relied on section 7121(a)(1) to dismiss all bargaining unit
employee claims.
Before we address that question, however, we must
resolve a preliminary matter. The controllers argue that by
reversing its previous denial of dismissal on the APA claims
without a change in facts or law the district court violated the
law of the case doctrine. In its second opinion, the district
court explained the change as based in “the parties’ lack of
clarity regarding their arguments,” and held that reconsidering
the issue would not violate the law of the case because failing
to reconsider would “be erroneous and work a manifest
injustice.” Filebark II, 542 F. Supp. 2d at 5 n.10. These
justifications matter not at all, however, because the law of
the case doctrine just doesn’t apply here. Federal Rule of
Civil Procedure 54(b) provides that “any order or other
decision, however designated, that adjudicates fewer than all
the claims . . . may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights
and liabilities.” The district court’s first denial of dismissal
was never a final judgment and never subject to appeal, and
such “[i]nterlocutory orders are not subject to the law of the
case doctrine and may always be reconsidered prior to final
judgment,” Langevine v. District of Columbia, 106 F.3d 1018,
1023 (D.C. Cir. 1997). Accordingly, the district court was
8
free to reconsider the motion to dismiss the controllers’ APA-
based employment claim, as we are free to consider that
question now.
Reviewing de novo the dismissal of the APA claims, e.g.,
Munsell v. Dep’t of Agric., 509 F.3d 572, 578 (D.C. Cir.
2007), we find no error in the district court’s decision.
Twenty-five years ago, in Carducci v. Regan, we held that
“the exhaustive remedial scheme of the CSRA would be
impermissibly frustrated by permitting, for lesser personnel
actions not involving constitutional claims, an access to the
courts more immediate and direct than the statute provides
with regard to major adverse actions.” 714 F.2d at 174.
Holding that “failure to include some types of [claims] within
the remedial scheme of so comprehensive a piece of
legislation reflects a congressional intent that no judicial relief
be available,” we found an APA remedy beyond that provided
in the CSRA precluded by the comprehensiveness of the
CSRA itself. Id. at 174–75. The Supreme Court reached a
similar conclusion five years later in United States v. Fausto,
holding that the exclusion of particular employees (rather than
particular claims) from the CSRA was not an invitation to
those employees to sue under other statutes but a
“manifestation of a considered congressional judgment that
they should not have statutory entitlement to review.” 484
U.S. 439, 448–49 (1988).
We clarified the breadth of these precedents in two recent
cases. In Graham v. Ashcroft, we held that the lack of any
entitlement to judicial review in the CSRA precluded
litigation of an employment matter under the APA even
where the complaint did not concern “‘a type of personnel
action covered by the CSRA.’” 358 F.3d 931, 934 (D.C. Cir.
2004) (quoting Fausto, 484 U.S. at 448 (emphasis added,
brackets omitted)). Thus, we found preclusion not because
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the CSRA identified some other kind of plaintiff or some
other kind of procedure for bringing the claim, but because it
provided no way of bringing it. As to such claims we said,
“the CSRA provides no relief and precludes other avenues of
relief.” Id. at 935. One year later in Fornaro we made the
point even more directly, holding that “what you get under the
CSRA is what you get.” 416 F.3d at 67. Not one of our
precedents has cited section 7121(a)(1) in so holding, and the
controllers nowhere argue that the 1994 amendment affects
these cases or their now-familiar analysis.
To be sure, the controllers correctly point out that
Congress largely exempted the FAA from the CSRA, and that
we have never before had occasion to apply our preclusion
cases to employees of an exempt agency. But the upshot of
our precedents for this case is absolutely clear. Far from
saving an APA claim, Congress’s exemption of these
controllers’ agency from the CSRA signals the same thing as
Congress’s omission of the type of personnel action at issue in
Graham or the type of employees at issue in Fausto—namely
that Congress intended to provide these employees with no
judicial review. This is because we treat the CSRA and
Congress’s related employment statutes as covering the field
of federal employee claims, and so our cases expressly teach
that those left out of this scheme are left out on purpose.
Indeed this case is easier than most, for we need make no
inferences about the pregnant meaning of legislative silence.
In exempting the FAA from the CSRA, Congress made its
intent perfectly clear: to “provide for greater flexibility in the
hiring, training, compensation, and location of personnel.” 49
U.S.C. § 40122(g)(1). Because giving FAA employees a
unique right of access to the courts would frustrate rather than
further that intent, proper application of our precedents bars
this suit. See also McAuliffe v. Rice, 966 F.2d 979, 980–81
(5th Cir. 1992) (reaching same conclusion as to different
10
entity exempted from CSRA because allowing APA review
would “thwart[] the goal of maintaining flexibility”).
The controllers argue that “[w]hatever the scope of the
‘flexibility’ which Congress granted to the FAA, it is
inconceivable that Congress authorized the FAA to devise a
compensation plan for its Controllers and then violate that
plan with impunity and without review.” Appellants’
Opening Br. 30. The controllers never develop this apparent
due process argument, nor could they, for even its factual
premise is flawed. The controllers do have a remedy: if the
FAA fails to live up to its agreements, the union can pursue
the matter, see, e.g., Mot. to Dismiss Ex. 9 (union grievance
regarding Albuquerque Center salary level), and if the union
fails to live up to its duty of representation, the controllers can
pursue the union, see Steadman v. Governor, U.S. Soldiers’
and Airmen’s Home, 918 F.2d 963, 966 (D.C. Cir. 1990) (“A
failure to seek arbitration (which an employee may not
compel on his own) may constitute such a breach of the
union’s duty [of fair representation]. But, in that event, only
the FLRA—not a district court—may remedy the breach by
ordering arbitration.”). These procedures surely lack the
directness and immediacy of an APA suit, and the controllers
have apparently found them frustrating, Appellants’ Reply Br.
6–7 n.5 (accusing NACTA of “machinations” designed to
defeat Filebark’s claims). But the choice of procedures lies
with Congress, and as we have repeatedly held, Congress had
no intention of providing claimants like these—unmentioned
in the CSRA—with a level of access to the courts unavailable
to almost any other federal employees, including those that
the CSRA identifies as most worthy of procedural protection.
See Graham, 358 F.3d at 935 (citing Fausto and Carducci for
the proposition that giving direct APA review to claimants not
entitled to review procedures under the CSRA would upset
careful congressional layering of remedial procedures). Thus,
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we find this APA claim precluded by the structure of
Congress’s employment statutes and “the CSRA as a whole,”
Whitman, 547 U.S. at 514.
III.
Because the controllers identify only the APA as the
statutory basis for their claims, and because such claims are
precluded by the CSRA as a whole regardless of who brings
them, we affirm.
So ordered.