U.S. Capitol Police v. Office of Compliance

United States Court of Appeals for the Federal Circuit ______________________ UNITED STATES CAPITOL POLICE, Petitioner v. OFFICE OF COMPLIANCE, Cross-Applicant FRATERNAL ORDER OF POLICE, DISTRICT OF COLUMBIA LODGE NO. 1, U.S. CAPITOL POLICE LABOR COMMITTEE, Intervenor ______________________ 2018-1293, 2018-1396 ______________________ Petitions for review of a decision of the Board of Direc- tors of the Office of Compliance in No. 16-LMR-01 (CA). ______________________ Decided: February 21, 2019 ______________________ RAFIQUE OMAR ANDERSON, Office of Employment Counsel, United States Capitol Police, Washington, DC, ar- gued for petitioner. Also represented by FREDERICK M. HERRERA. JOHN D. UELMEN, Office of the General Counsel, United States Office of Compliance, Washington, DC, argued for cross-applicant. Also represented by JULIA AKINS CLARK; 2 UNITED STATES CAPITOL POLICE v. OOC SIMONE JENKINS, Congressional Office of Compliance, Washington, DC. MEGAN KATHLEEN MECHAK, Woodley & McGillivary LLP, Washington, DC, argued for intervenor. ______________________ Before NEWMAN, LOURIE, and CLEVENGER, Circuit Judges. CLEVENGER, Circuit Judge. On September 26, 2017, the Board of Directors of the Congressional Accountability Office of Compliance (“Board”) issued a decision stating that the United States Capitol Police (“Police”) committed an unfair labor practice when it refused to engage in arbitration of an unresolved grievance. U.S. Capitol Police and Fraternal Order of Po- lice, D.C. Lodge No. 1 U.S. Capitol Police Labor Comm., No. 16–LMR–01, 2017 WL 4335144 (C.A.O.C. Sept. 26, 2017). The Police petitions for review of that decision and the Of- fice of Compliance (“OOC”) cross-applies for enforcement of the Board’s decision and remedial order. For the reasons set forth below, we deny the Police’s petition and grant the OOC’s application. BACKGROUND Christopher Donaldson, a former officer with the Po- lice, was involved in an off-duty domestic incident. The Po- lice’s Office of Professional Responsibility investigated the incident and ultimately recommended that he be termi- nated. The Disciplinary Review Board then heard the mat- ter and, although it agreed that Officer Donaldson should be punished, it recommended only a forty-five day unpaid suspension. The Chief of Police reviewed the evidence and recommendations and decided to terminate Officer Don- aldson. After thirty days passed from the date of the Chief’s decision without intervention by the Capitol Police Board, the Chief’s decision took effect and Officer Don- aldson was terminated. See 2 U.S.C. § 1907(e)(1)(B) UNITED STATES CAPITOL POLICE v. OOC 3 (stating that the Board is deemed to have approved a ter- mination decision made by the Chief of Police if it does not disapprove of that decision within thirty days). The Fraternal Order of Police, District of Columbia Lodge No. 1, U.S. Capitol Police Labor Committee (“Un- ion”) and the Police are parties to a collective bargaining agreement. Under the terms of that agreement, termina- tion decisions by the Chief are subject to binding arbitra- tion. The Union requested an arbitration panel to review the termination decision. The Police refused to select an arbitrator because it took the legal position that termina- tion actions are not subject to arbitration and thus it “would be in violation of a determination of the Capitol Po- lice Board and its distinct statutory authority by consent- ing to the jurisdiction of any arbitrator” in this case. J.A. 102. The Union then protested to the General Counsel for the OOC that the Police violated § 220(c)(2) of the Congres- sional Accountability Act of 1995 (“CAA”), codified at 2 U.S.C. §§ 1301–1438, 1 by refusing to arbitrate an unre- solved grievance and therefore committed an unfair labor practice. The General Counsel investigated the charges, determined that there was sufficient evidence and cause to support them, and filed a complaint with the OOC alleging an unfair labor practice. 2 1 The CAA was amended on December 21, 2018. See Congressional Accountability Act of 1995 Reform Act, Pub L. No. 115-397, 132 Stat. 5297 (2018). All citations to the Act refer to the applicable provisions in effect before the 2018 amendments, unless otherwise indicated. 2 After that complaint was filed, the Police agreed to select an arbitrator to consider the arbitrability of the ter- mination decision while maintaining its objection to the 4 UNITED STATES CAPITOL POLICE v. OOC A hearing officer considered cross-motions for sum- mary judgment on the unfair labor practice charge and granted judgment in favor of the OOC. The Police peti- tioned the Board to review the hearing officer’s decision, and the Board affirmed. The Board reasoned that the Po- lice is obligated to arbitrate disputes arising under its col- lective bargaining agreement, unless it can point to clearly established law that removes the dispute in question from arbitration, and that without such a clearly established law excuse for refusal to arbitrate, the refusal is an unfair labor practice. The Police asserted that the CAA should be in- terpreted to bar arbitration of employee termination. The best the Police could do to demonstrate clearly established law that termination decisions are not arbitrable was a set of arguments it made on how it thought provisions of the CAA should be interpreted. 3 Because the Police’s legal arbitrator’s jurisdiction. An arbitrator was selected and he determined that the termination decision was arbitrable. The Police argued before the Board that the contro- versy between it and the Union was mooted by the Police’s willingness to select an arbitrator and engage in arbitra- tion limited to the issue of the arbitrator’s jurisdiction over the controversy. The Board rejected the mootness argu- ment noting that remedies for the Police’s initial refusal to arbitrate survive the Police’s belated partial agreement to proceed with arbitration. The Police do not maintain a mootness argument on appeal, and we agree with the Board that the instant controversy is not moot. 3 The Police argued that the United States Capitol Police Administrative Technical Corrections Act of 2009 (“TCA”), Pub. L. No. 111-145, 124 Stat. 49 (2010), bore on the question of arbitrability of termination decisions. Ac- cording to the Police, the TCA gave the Capitol Police Board sufficient authority over termination decisions to deem those decisions “specifically provided for” by law and thus statutorily excluded from “conditions of employment” UNITED STATES CAPITOL POLICE v. OOC 5 arguments fell well short of being clearly established law, the Board rejected the Police’s excuse and held that the Po- lice committed an unfair labor practice by refusing to en- gage in arbitration. This appeal followed. We have jurisdiction over the Po- lice’s petition under 2 U.S.C. § 1407(a)(1)(D) and over the OOC’s application for enforcement pursuant to 2 U.S.C. § 1407(a)(2). DISCUSSION When we review a Board decision, we are required to “decide all relevant questions of law and interpret consti- tutional and statutory provisions.” 2 U.S.C. § 1407(d). We must affirm a final decision of the Board unless that deci- sion: “(1) [is] arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law; (2) [was] not made consistent with required procedures; or (3) [is] unsupported by substantial evidence.” Id. We review the Board’s legal conclusions de novo and its factual findings for substantial evidence. Cf. Archuleta v. Hopper, 786 F.3d 1340, 1346 and hence beyond the scope of a collective bargaining agreement. Additionally, the Police argued it had no duty to bargain over, and hence no duty to engage in arbitration over, matters for which bargaining over or engaging in ar- bitration over the matter would be inconsistent with fed- eral law. The Police argued that allowing arbitration over termination decisions specifically would be inconsistent with the TCA, and generally inconsistent with a body of case law that denied arbitration remedies for certain dis- putes when direct judicial review over such disputes is lacking. Those arguments have been rejected by this Court. See U.S. Capitol Police v. Office of Compliance (“Capitol Police II”), 913 F.3d 1361, 1366–68 (Fed. Cir. 2019); U.S. Capitol Police v. Office of Compliance (“Capitol Police I”), 908 F.3d 748, 760–65 (Fed. Cir. 2018). 6 UNITED STATES CAPITOL POLICE v. OOC (Fed. Cir. 2015) (reciting the standard of review for appeals from the Merit Systems Protection Board). We apply the Administrative Procedure Act standard of review, 5 U.S.C. § 706, to enforcement actions brought under 2 U.S.C. § 1407(a)(2). Capitol Police I, 908 F.3d at 758. That standard is essentially identical to the one re- cited above for our review of final Board decisions. Id. at 755 n.4. The parties do not dispute that it is an unfair labor practice to refuse wrongfully to participate in arbitration, which includes the improper refusal to select an arbitrator. The question presented here is instead whether the Police’s refusal to select an arbitrator is excusable. The existence of an arbitration clause in a contract raises a presumption of arbitrability, which means doubts over whether a matter is arbitrable are generally resolved in favor of coverage. AT&T Techs., Inc. v. Commc’ns Work- ers of Am., 475 U.S. 643, 650 (1986) (citing United Steel- workers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582–83 (1960)). That includes the question of arbitra- bility itself where it is “clearly and unmistakably pro- vide[d]” for by the parties. Id. at 649 (citing Warrior & Gulf, 363 U.S. at 582–83); see also First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (“Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” (alterations in original) (citation omitted)). Here, the presumption of arbitrability applies and extends to the question of arbitrability itself. The CAA extends cer- tain labor-management relations matters in the Federal Service Labor Management Relations Statute (“FSLMRS”) to covered employees of the federal government’s legisla- tive branch, including the right to collectively bargain for procedures to settle certain grievances. 2 U.S.C. §§ 1301, 1351; 5 U.S.C. § 7121. Incorporated provisions of the FSLMRS expressly provide that “[a]ny negotiated UNITED STATES CAPITOL POLICE v. OOC 7 grievance procedure” must “provide that any grievance not satisfactorily settled under the negotiated grievance proce- dure shall be subject to binding arbitration . . . .” 5 U.S.C. § 7121(b)(1)(C)(iii). The collective bargaining agreement between the Union and the Police expressly provides for arbitration of “any matter relating to conditions of employ- ment,” and reserves for the arbitrator “[i]ssues concerning the arbitrability of a grievance presented for arbitration . . . .” J.A. 389–90, 395. But an exception to the general rule that a particular grievance should be presumed arbitrable exists when “it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” AT&T Techs., 475 U.S. at 650 (quot- ing Warrior & Gulf, 363 U.S. at 582–83). In other words, as applied in the context of federal sector arbitration, the presumption of arbitrability does not attach to a matter that “clearly established law” excludes from the coverage of the applicable negotiated grievance procedures. See U.S. Dep’t of Veterans Affairs Veterans Canteen Serv. Martins- burg, W. Va. and Nat’l Ass’n of Gov’t Emps. Local R4–78, 65 F.L.R.A. 224, 228 (2010) (recognizing an exception to the rule that “questions of arbitrability are solely for an arbi- trator to decide” where “clearly established law” precludes arbitration (citing Dir. of Admin. Headquarters, U.S. Air Force and AFGE–GAIU Council of Headquarters USAF Lo- cals, AFL–CIO (“AFGE–GAIU”), 17 F.L.R.A. 372, 374–75 (1985)). “Clearly established law” includes an express pro- vision proscribing a particular grievance or “the most force- ful evidence of a purpose to exclude the claim from arbitration . . . .” Warrior & Gulf, 363 U.S. at 584–85. In this case, such forceful evidence would encompass either earlier Supreme Court or Federal Circuit decisions or stat- utory text that is so clear that it forecloses the potential for any contrary nonfrivolous argument. Cf. Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011) (assessing “clearly es- tablished” law in the qualified immunity context by 8 UNITED STATES CAPITOL POLICE v. OOC “look[ing] to cases from the Supreme Court and [the U.S. Court of Appeals for the D.C. Circuit], as well as to cases from other courts exhibiting a consensus view” (citation omitted)); Reher v. Vivo, 656 F.3d 772, 775 (7th Cir. 2011) (suggesting that a right is not clearly established for qual- ified immunity purposes “[w]here the law is open to inter- pretation” and one could “reasonably interpret an unclear statute”); AFGE–GAIU, 17 F.L.R.A. at 375 (using court de- cisions and the absence of “question[s] of interpretation or statutory construction which can legitimately be resolved” to ascertain the presence of “clearly established law”). Binding legal authority must have placed the question of arbitrability beyond debate. Cf. White v. Pauly, 137 S. Ct. 548, 551 (2017) (stating that, in the qualified immunity context, a right is “clearly established” if “existing prece- dent . . . placed the statutory or constitutional question be- yond debate”). As noted above, the Police argued before the Board that it thought the CAA should be interpreted to mean that ter- mination decisions should be excluded from arbitration un- der the governing collective bargaining agreement. The Board concluded, and we agree, that arguments over how statutes might be interpreted cannot suffice as “clearly es- tablished law” to show that a subject has been removed from arbitration. Before the Board, the Police could point to no clearly established law stating that Police termina- tion decisions are not arbitrable, and it points to no such law on appeal. Indeed, two recent decisions by this Court flatly reject the statutory interpretation arguments made by the Police to show that termination decisions are not ar- bitrable. See Capitol Police II, 913 F.3d at 1367–69 (reject- ing the argument that the special rule for terminations in the TCA specifically provides for employee termination and thus excludes the subject of employee removal from the am- bit of arbitration because it would not be a condition of em- ployment); Capitol Police I, 908 F.3d at 760–65 (rejecting the arguments that the Capitol Police Board’s authority in UNITED STATES CAPITOL POLICE v. OOC 9 2 U.S.C. § 1907(e)(1)(B) to ratify employee removals or a comprehensive statutory scheme like the one in Fausto pre- clude arbitrator review of the Police’s termination deci- sions). The Board was correct in deciding that the Police can point to no clearly established law to excuse the refusal to arbitrate in this case. Accordingly, the Board correctly concluded that the Police committed an unfair labor prac- tice in this case. CONCLUSION For the reasons stated above, we deny the Police’s pe- tition and affirm the Board’s decision that the Police com- mitted an unfair labor practice when it refused to participate in arbitration concerning Officer Donaldson’s termination. As the Police’s challenge to the OOC’s appli- cation seeking enforcement of the Board’s decision and re- medial order depends on its challenge to the Board’s final decision, its opposition to the OOC’s application fails. We therefore grant the OOC’s application to enforce the Board’s decision and order. DENIED AS TO 2018-1293 AND GRANTED AS TO 2018-1396 COSTS No costs.