UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
AMERICAN FEDERATION OF )
GOVERNMENT EMPLOYEES, )
et al., )
Plaintiffs, )
)
) Civil Action No. 08–692 (EGS)
v. )
)
SECRETARY OF THE AIR FORCE, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiffs are the American Federation of Government
Employees (“AFGE”), fourteen local labor unions chartered by the
AFGE, and one individual member of AFGE Local 1401. On behalf
of the affected members, plaintiffs challenge 2007 amendments to
three Air Force Instructions (the “AFIs”). The amendments to
the AFIs affected certain Air Force employees, referred to as
“dual status” technicians because of their status as both
civilian employees and military reservists, by requiring them to
wear their military uniforms while performing their civilian
duties. The Secretary moved to dismiss the complaint or, in the
alternative, for summary judgment, and plaintiffs filed a cross-
motion for summary judgment. Upon consideration of the motions,
responses and replies thereto, the supplemental memoranda, the
applicable law, the entire record herein, the arguments by
counsel at the June 2, 2011 motions hearing, and for the reasons
stated below, the Court GRANTS the Secretary’s motion to dismiss
and DENIES plaintiffs’ motion for summary judgment.
I. BACKGROUND
Air Reserve Technicians (“ARTs”) are civilian military
technicians employed by the Air Force primarily to provide
support to wartime deployable reserve units. Compl. ¶¶ 7-9, 12;
Def.’s Statement of Material Facts Not in Genuine Dispute
(“Def.’s Statement of Facts”) ¶ 11. Their responsibilities
include “the organizing, administering, instructing, or training
of the Selected Reserve or [] the maintenance and repair of
supplies or equipment issued to the Selected Reserve or the
armed forces.” 10 U.S.C. § 10216(a)(1)(C). Although ARTs are
civilian employees, they are required, as a condition of their
employment, to maintain active membership in the Air Force
Selected Reserve. As such, ARTs are referred to as “dual
status” technicians because of their status as both civilian
employees and military reservists. They receive civilian
employee pay for their civil service jobs, plus military pay for
their weekend military duty and summer active military duty
hours. Compl. ¶ 20; Def.’s Statement of Facts ¶ 15. ARTs can
be ordered to deploy with their unit if it is mobilized. Compl.
¶ 16; Def.’s Statement of Facts ¶ 14.
The Secretary has the authority to promulgate regulations
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“to carry out his functions, powers, and duties.” 10 U.S.C.
§ 8013(g)(3). Air Force regulations are set forth in
publications called AFIs, which “are certified and approved at
the Secretariat or the Air Staff level.” Def.’s Statement of
Facts ¶ 17. In August 2007, the Secretary made Interim Changes
to three AFIs, which had the effect of instituting a requirement
that ARTs wear their military uniform while performing civilian
duties. See Compl. ¶ 24; AFIs 36-2903, 36-801, & 36-703
(attached to Def.’s Mot. to Dismiss or in the Alternative for
Summ. J. (“Def.’s Mot.”) at Exs. A-C).
Plaintiffs filed an action in this Court for declaratory
and injunctive relief. See generally Compl. The three-count
Complaint challenges the 2007 changes requiring ARTs to wear
military uniforms when serving in their civilian capacity on the
basis that the Secretary’s regulations are (1) arbitrary and
capricious, in violation of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706(2)(A); (2) contrary to 10 U.S.C. §§ 771
and 10216, and 18 U.S.C. §§ 702 and 703; and (3) in excess of
the Secretary’s statutory authority under 10 U.S.C. § 10216.
II. STANDARDS OF REVIEW
On a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the plaintiff bears the burden
of establishing that the court has subject-matter jurisdiction.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). “The
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court must address the issue of jurisdiction as a threshold
matter, because absent jurisdiction the court lacks the
authority to decide the case on any other grounds.” Am. Farm
Bureau v. EPA, 121 F. Supp. 2d 84, 91 (D.D.C. 2000). Moreover,
because subject-matter jurisdiction relates to the Court’s power
to hear the claim, the Court must give the plaintiff’s factual
allegations closer scrutiny when resolving a Rule 12(b)(1)
motion than would be required for a Rule 12(b)(6) motion.
Uberoi v. EEOC, 180 F. Supp. 2d 42, 44 (D.D.C. 2001). In
resolving a motion to dismiss for lack of subject-matter
jurisdiction, the Court “may consider the complaint supplemented
by undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Coal. for Underground Expansion v. Mineta, 333
F.3d 193, 198 (D.C. Cir. 2003) (internal citations and quotation
marks omitted).
III. ANALYSIS
The Court concludes that it lacks subject-matter
jurisdiction over plaintiffs’ claims because plaintiffs have
failed to exhaust any of the administrative remedies available
to them under the Civil Service Reform Act of 1978 (“CSRA”).1
1
In its motion to dismiss or in the alternative for summary
judgment, the Secretary argued that the Complaint must be
dismissed for lack of subject-matter jurisdiction and failure to
state a claim upon which relief can be granted. Specifically,
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The CSRA provides a remedial scheme to federal employees
that “protects covered federal employees against a broad range
of personnel practices” and provides them with “a variety of
causes of action and remedies . . . when their rights under the
statute are violated.” Grosdidier v. Chairman, Broad. Bd. of
Governors, 560 F.3d 495, 497 (D.C. Cir. 2009). Accordingly,
this Circuit has repeatedly held that the CSRA is “comprehensive
and exclusive,” and “[f]ederal employees may not circumvent the
[CSRA’s] requirements and limitations by resorting to the
catchall APA to challenge agency employment actions.” Id.
(emphasis added); see also Filebark v. U.S. Dep’t of Transp.,
555 F.3d 1009 (D.C. Cir. 2009)(“Congress, through the [CSRA] and
related employment statutes, has carefully constructed a system
for review and resolution of federal employment disputes,
intentionally providing—and intentionally not providing—
the Secretary contended that (1) plaintiffs’ claims raise a
nonjusticiable political question, and (2) plaintiffs have
failed to state a cause of action as judicial review is
unavailable under the APA because Plaintiffs have an adequate
remedy at law. See Def.’s Mot. at 3-11. Alternatively, the
Secretary argued that plaintiffs have failed to state a claim
because they have not adduced any facts showing that the
Secretary’s decision to require ARTs to wear military uniforms
when performing civilian duties was (1) arbitrary and
capricious, (2) contrary to law, or (3) in excess of the
Secretary’s statutory authority. See id. at 11-16. However,
because the Court concludes that plaintiffs failed to exhaust
their administrative remedies, and therefore the Court lacks
subject-matter jurisdiction over any of plaintiffs’ claims, the
Court does not reach the other arguments asserted by the
parties.
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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.’” (quoting Fornaro v. James, 416
F.3d 63, 67 (D.C. Cir. 2005))).
Plaintiffs admit that they could have availed themselves of
the grievance procedures outlined in § 7121(a)(1) of the CSRA,
which provides that “[e]xcept as provided in paragraph (2) of
this subsection, any collective bargaining agreement shall
provide procedures for the settlement of grievances, including
questions of arbitrability.” 5 U.S.C. § 7121(a)(1).
Furthermore, the CSRA states that the grievance procedures
contained in the collective bargaining agreement “shall be the
exclusive administrative procedures for resolving grievances
which fall within its coverage.” Id. The term “grievance” is
defined very broadly as:
[A]ny complaint—
(A) by any employee concerning any matter
relating to the employment of the employee;
(B) by any labor organization concerning any
matter relating to the employment of any
employee; or
(C) by any employee, labor organization, or
agency concerning—
(i) the effect or interpretation, or a claim
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of breach, of a collective bargaining
agreement; or
(ii) any claimed violation,
misinterpretation, or misapplication of any
law, rule, or regulation affecting
conditions of employment[.]
Id. § 7103(a)(9).
Plaintiffs in the instant case are attempting the same type
of circumvention of the CSRA as the Circuit rejected in
Filebark. Conceding that they could have used the negotiated
grievance procedures outlined in § 7121(a), plaintiffs argue
that they are nonetheless entitled to proceed directly to this
Court because the available administrative remedy “would not
resolve the matter nationally.” Pls.’ Mem. on Exhaustion at 2.
Plaintiffs assert that they cannot be required to exhaust any
administrative remedy because no agency has jurisdiction to
adjudicate their “nationwide claim.” Pls.’ Mem. on Exhaustion
at 1.
Even assuming a decision from this Court in this case would
have nationwide implications, plaintiffs have failed to identify
any authority entitling them to nationwide relief, nor has this
Court been able to find any such authority. On the contrary,
this Circuit has “consistently read the CSRA narrowly, refusing
to imply remedies that cannot be found in the language of the
statute” because “[p]ersonnel management is ‘peculiarly within
the ken and concern of Congress.’” Johnson v. Peterson, 996
7
F.2d 397, 401 (D.C. Cir. 1993) (quoting Harrison v. Bowen, 815
F.2d 1505, 1515 (D.C. Cir. 1987)). When Congress intends to
preserve remedies for federal employees outside the CSRA, “it
does so expressly; for example, the CSRA maintains federal
employees’ rights to bring suit under Title VII and other anti-
discrimination laws.” Nyunt v. Chairman, Broad. Bd. of
Governors, 589 F.3d 445, 448 (D.C. Cir. 2009).
Plaintiffs also argue that, rather than being
jurisdictional in nature, exhaustion under the CSRA is non-
jurisdictional, i.e. waivable at the Court’s discretion. As
plaintiffs correctly point out, exhaustion requirements are non-
jurisdictional unless there is “sweeping and direct statutory
language indicating that there is no federal jurisdiction prior
to exhaustion.” Munsell v. Dep't of Agric., 509 F.3d 572, 580
(D.C. Cir. 2007) (quoting Avocados Plus, Inc. v. Veneman, 370
F.3d 1243, 1248 (D.C. Cir. 2004)). In the absence of such
statutory language, “the exhaustion requirement is treated as an
element of the underlying claim.” Id. (quoting Avocados Plus,
370 F.3d at 1248). However, this Circuit has made it clear that
the CSRA does indeed contain such language and that, “under the
CSRA, exhaustion of administrative remedies is a jurisdictional
prerequisite to suit.” Weaver v. U.S. Info. Agency, 87 F.3d
1429, 1433 (D.C. Cir. 1996) (emphasis added); see also Suzal v.
Director, U.S. Info. Agency, 32 F.3d 574, 585 (D.C. Cir. 1993)
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(“[E]xhaustion of the nonjudicial remedies provided under the
authority of the CSRA is a jurisdictional prerequisite, and
because section 7121(a)(1) mandates exclusive recourse to the
CBA's grievance-resolving procedures, [the] failure to have
pursued arbitration deprives [the Court] of jurisdiction[.]”);
Fernandez v. Donovan, 760 F. Supp. 2d 31, 34-35 (D.D.C. 2011).
Plaintiffs assert that the APA gives this Court subject-
matter jurisdiction over their claims, but—as this Court has
previously explained—“jurisdiction under the APA [i]s precluded
by ‘the structure of Congress’s employment statutes and the CSRA
as a whole.’ Otherwise, ‘the exhaustive remedial scheme of the
CSRA would be impermissibly frustrated[.]’” Ramirez v. U.S.
Customs & Border Prot., 709 F. Supp. 2d 74, 81 (D.D.C. 2010)
(quoting Filebark, 555 F.3d at 1013-15).
Plaintiffs’ claims are accordingly DISMISSED for lack of
subject-matter jurisdiction.
IV. Conclusion
For the reasons stated above, the Court hereby GRANTS the
defendant’s motion and DENIES plaintiffs’ motion. An
appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
January 27, 2012
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