American Federation of Government Employees v. Secretary of the Air Force

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2013 Decided May 24, 2013

No. 12-5083

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ET AL.,
APPELLANTS

LOCAL 1709 AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, ET AL.,
APPELLEES

v.

SECRETARY OF THE AIR FORCE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00692)

Gony F. Goldberg argued the cause for the appellants.
Joseph F. Henderson was on brief. David A. Borer and
Eugene R. Fidell entered appearances.

Jane M. Lyons, Assistant United States Attorney, argued
the cause for the appellee. Ronald C. Machen, Jr., United
States Attorney, and R. Craig Lawrence, Assistant United
States Attorney, were on brief. Mercedeh Momeni, Assistant
United States Attorney, entered an appearance.
 2

Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

Remember, a patch on your coat and money in your
pocket is better and more creditable than a writ on
your back and no money to take it off.1

****
The American Federation of Government Employees
(National AFGE), several AFGE locals2 that represent Air
Reserve Technicians (ARTs) and ART Mark Winstead
(collectively, AFGE or appellants) challenge three Air Force
instructions requiring ARTs to wear military uniforms while
performing civilian duties. Because the exclusive remedial
scheme of the Civil Service Reform Act of 1978, 5 U.S.C.
§§ 1101 et seq. (CSRA), precludes AFGE’s claims, we affirm
the district court’s dismissal of the complaint for lack of
subject matter jurisdiction.

1
BENJAMIN FRANKLIN, POOR RICHARD’S ALMANACK 35
(H.M. Caldwell Co. ed. 1900).
2
The AFGE Locals who are appellants in this case are 997,
1364, 1367, 2077 and 2316. Additionally, AFGE Locals 1709,
1778, 1869, 1952, 1997, 2361, 2568, 3707 and 3854 were plaintiffs
in district court but did not join this appeal.
 3
I.
National AFGE is a national labor organization that
represents employees throughout the federal government and
AFGE locals represent, inter alia, several bargaining units of
ARTs. An ART is a federal employee who is “required as a
condition of [ ] employment to maintain membership in the
Selected Reserve” of the Air Force and “is assigned to a
civilian position as a technician in the organizing,
administering, instructing, or training of the Selected Reserve
or in the maintenance and repair of supplies or equipment
issued to the Selected Reserve or the armed forces.” 10 U.S.C.
§ 10216(a). On August 6, 2007, the Air Force issued three
instructions requiring ARTs to wear military uniforms while
performing civilian duties. See Air Force Instruction 36-703
at 4-5 (“Air Reserve Technicians will adhere to the
requirements as those prescribed in AFI 36-2903, Dress and
Personal Appearance of Air Force Personnel, when wearing
the military uniform in civilian status”); Air Force Instruction
36-801 at 6 (“Air Force Reserve Command (AFRC) Air
Reserve Technicians (ART) must wear the military uniform
while performing civilian duties as an ART”); Air Force
Instruction 36-2903 at 9 (uniform wear requirements for
ARTs). AFGE claims this requirement harms ARTs because,
inter alia, (1) “the Air Force is causing confusion between
military and civilian status in an era when having or not
having the protections of the Geneva Conventions . . . is all
too real an issue”; (2) “an ART may not stand or walk with
hands in pockets other than to insert or remove items in
military uniform”; (3) “[a]n ART may no longer use a
personal cell phone, radio, [or] hands-free headset while
walking and carry a personal cell phone on the flight line
while in military uniform”; and (4) “an ART in military
uniform is required to salute an officer in a hat-salute and to
provide proper respect to those military members that are
senior.” Br. for Appellants 4.
 4
On April 23, 2008, AFGE filed a complaint in district
court against the Secretary of the Air Force (Secretary). It
argued that, under the Administrative Procedure Act, 5 U.S.C.
§§ 701 et seq. (APA), the Air Force instructions are (1)
arbitrary and capricious; (2) contrary to law; and (3) in excess
of the Secretary’s statutory authority under 10 U.S.C.
§ 10216. The district court dismissed the complaint,
concluding that it lacked subject matter jurisdiction because
the plaintiffs failed to “exhaust their administrative remedies”
under the CSRA. Am. Fed’n of Gov’t Emps. v. Sec’y of Air
Force, 841 F. Supp. 2d 233, 236 n.1 (D.D.C. 2012). AFGE
timely appealed.
II.
“We review de novo the dismissal of a complaint for lack
of subject matter jurisdiction.” John Doe v. Metro. Police
Dep’t of D.C., 445 F.3d 460, 465 (D.C. Cir. 2006). In so
doing, we accept as true the facts alleged in the complaint.
See Schnitzer v. Harvey, 389 F.3d 200, 202 (D.C. Cir. 2004).
AFGE argues that the dismissal of the complaint was error
because its claims fall outside the CSRA’s scope. We
disagree.
A. CSRA/FSLMRS Remedial Scheme
The CSRA is a “comprehensive and exclusive” statutory
scheme that “protects covered federal employees against a
broad range of personnel practices, and . . . supplies a variety
of causes of action and remedies to employees when their
rights under the statute are violated.” Grosdidier v. Chairman,
Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir.), cert.
denied, 558 U.S. 989 (2009). The CSRA creates an
“integrated scheme of administrative and judicial review,”
United States v. Fausto, 484 U.S. 439, 445 (1988), wherein
the Congress “intentionally provid[ed]—and intentionally
[chose] not [to] provid[e]—particular forums and procedures
 5
for particular kinds of claims.” Filebark v. U.S. Dep’t of
Transp., 555 F.3d 1009, 1010 (D.C. Cir.), cert. denied, 558
U.S. 1007 (2009).
The CSRA provides “the exclusive avenue for suit” to a
plaintiff whose claims fall within its scope. Grosdidier, 560
F.3d at 497. The plaintiff must rely on the “variety of causes
of action and remedies” created by the CSRA and “may not
circumvent the Act’s requirements and limitations by
resorting to the catchall APA to challenge agency
employment actions.” Id. Even if the plaintiff “cannot prevail
in a claim under the CSRA,” id., no other relief is available.
Title VII of the CSRA, also known as the Federal Service
Labor-Management Relations Statute, 5 U.S.C. §§ 7101 et
seq. (FSLMRS), governs federal labor-management relations.
The FSLMRS “establishes a comprehensive scheme to deal
with labor relations in federal employment.” Dep’t of Def. v.
FLRA, 685 F.2d 641, 644 (D.C. Cir. 1982). For example, the
FSLMRS creates the Federal Labor Relations Authority
(FLRA), a five-member decisionmaking body that is the
public-sector counterpart of the National Labor Relations
Board. See 5 U.S.C. § 7104; Rizzitelli v. FLRA, 212 F.3d 710,
712 n.1 (2d Cir. 2000). The FSLMRS spells out various
unfair labor practices, see, e.g., id. § 7116, and defines the
duty to bargain between federal management and unions, see
id. § 7117. With the FSLMRS, as with all of the CSRA:
“Congress passed an enormously complicated and subtle
scheme to govern employee relations in the federal sector,
including the authorization of collective bargaining. It
follows, then, that federal employees may not circumvent that
structure” by seeking judicial review outside the CSRA’s
procedures. Steadman v. Governor, U.S. Soldiers’ & Airmen’s
Home, 918 F.2d 963, 967 (D.C. Cir. 1990) (footnote omitted).
 6
The FSLMRS provides several alternative mechanisms to
challenge management actions, three of which are pertinent
here. See 5 U.S.C. § 7121. First, an aggrieved party may
resort to a grievance resolution and arbitration procedure that
the FSLMRS requires be included in every collective
bargaining agreement. Unless a specific statutory or contract
exception applies, that procedure is “the exclusive
administrative procedure[ ] for resolving grievances which
fall within its coverage.” Id. § 7121(a)(1). After arbitration,
either party may file with the FLRA exceptions to an
arbitrator’s award. Id. § 7122(a). The FLRA reviews the
award to ensure that it is not “contrary to any law, rule, or
regulation” or otherwise deficient on any ground “similar to
those applied by Federal courts in private sector labor-
management relations.” Id. Second, the FSLMRS permits a
union to bargain over a challenged management action; and if
management asserts that the matter is non-negotiable, the
union can pursue a negotiability appeal with the FLRA. See
id. § 7117(c); see also Dep’t of Def., 685 F.2d at 644-45.
Third, to the extent that management enforces a policy that
violates a collective bargaining agreement predating the
policy, “any person” can lodge an unfair labor practice charge
with the FLRA. 5 U.S.C. §§ 7116(a)(7), 7118(a)(1).
The FSLMRS also provides for judicial review of an
FLRA order by petitioning for review in this circuit or “in the
circuit in which the person resides or transacts business.” Id.
§ 7123(a). And, although there are two exceptions to judicial
review in the appropriate court of appeals,3 “this does not
3
The two exceptions are: an order under “(1) section 7122 of
this title (involving an award by an arbitrator), unless the order
involves an unfair labor practice under section 7118 of this title, or
(2) section 7112 of this title (involving an appropriate unit
determination).” 5 U.S.C. § 7123(a).
 7
mean the district courts are open. It means that review is
precluded in any court.” Am. Fed’n of Gov’t Empls. v. Loy,
367 F.3d 932, 935 (D.C. Cir. 2004). To the extent an FLRA
order is judicially reviewable, then, it may be reviewed only
in the appropriate court of appeals, not in district court. Id.
B. The Jurisdictional Issue
Because the FSLMRS’s remedial regime is exclusive,
providing AFGE with multiple options to challenge the dress
code, AFGE cannot circumvent this regime by instead
bringing a suit in district court.
Specifically, AFGE has at least three administrative
options it can use to challenge the dress code. First, a local
can attempt to bargain over the dress code and, if the Air
Force claims the dress code is non-negotiable, the local can
file a negotiability appeal. 5 U.S.C. § 7117(c). In fact, the
record includes the example of AFGE Local 1367—one of the
appellants—bargaining with the Air Force over this issue and
ultimately pursuing a negotiability appeal with the FLRA
(which the FLRA rejected). Second, an AFGE local can
allege that imposition of the dress code violates 10 U.S.C.
§ 10216—the claim AFGE raises sub judice. Such an
allegation easily falls within the definition of a “grievance”4
under the FSLMRS and thus can be challenged using
collective bargaining agreement grievance and arbitration
procedures. 5 U.S.C. § 7121. For example, AFGE Local
2361—a plaintiff in district court but not an appellant here—
filed a grievance regarding the Air Force instructions and
obtained a favorable ruling from the arbitrator. See, e.g.,

4
A “grievance” includes a complaint “by any employee, labor
organization, or agency concerning . . . any claimed violation,
misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment.” 5 U.S.C. § 7103(a)(9)(C)(ii).
 8
Appendix 21-44 (“The Employer violates the Agreement by
unilaterally requiring ARTs employees to wear military
uniforms while in civilian status performing civilian duties. . .
. The Employer shall . . . . not apply the uniform requirements
for ARTs in civilian status . . . for the life of the Agreement
unless and until the Union agrees to modify the Agreement to
permit those requirements or similar changes.”); see also
Appendix 78 (denying grievance brought by AFGE Local
1778, another non-appealing plaintiff). Third, to the extent the
dress code conflicts with an existing collective bargaining
agreement, an aggrieved party can file an unfair labor practice
charge over the issue. See 5 U.S.C. §§ 7116(a)(7), 7118(a)(1).
For example, AFGE Locals 2316 (an appellant here) and 3854
(a plaintiff in district court but not an appellant here) have
attempted to challenge the Air Force instructions in this
manner. In fact, we have already decided a petition for review
regarding one local’s different challenge to the same Air
Force instructions. See U.S. Dep’t of the Air Force v. FLRA,
648 F.3d 841, 848 (D.C. Cir. 2011) (granting Air Force’s
petition for review of FLRA decision that union proposal for
uniform cleaning is negotiable condition of employment). The
FSLMRS does not, however, authorize the dress code to be
challenged by way of a lawsuit begun in district court.
The CSRA can preclude a claim from being brought in a
district court even if it forecloses the claim from
administrative review and has not “identified some other kind
of plaintiff or some other kind of procedure for bringing the
claim.” Filebark, 555 F.3d at 1013. The case for preclusion is
stronger here because the FSLMRS in fact provides a means
to review the Air Force instructions—including, in some
circumstances, judicial review—via at least these three routes.
While the appellants may not prevail using one of these
procedures or would prefer to challenge the Air Force
instructions by some other means, that does not mean their
claims may be brought outside the CSRA’s exclusive
 9
remedial scheme. Rather, as we have explained, “it is the
comprehensiveness of the statutory scheme involved, not the
‘adequacy’ of specific remedies thereunder, that counsels
judicial abstention.” Spagnola v. Mathis, 859 F.2d 223, 227
(D.C. Cir. 1988) (en banc) (per curiam).
The appellants argue that while the CSRA may preclude
the AFGE locals’ claims, it does not preclude the claims of
National AFGE. Specifically, they complain that National
AFGE—unlike an employee or a union local with a collective
bargaining agreement with the Air Force—has no relief under
the FSLMRS and thus should be permitted to proceed outside
the CSRA to seek relief. But the fact that National AFGE may
not pursue a claim through the CSRA does not mean that it
has access to the courts. Rather, it means that National AFGE
may not raise the claim at all. The CSRA’s exclusion of
certain parties from judicial review is “not an invitation to
those [parties] to sue under other statutes but a ‘manifestation
of a considered congressional judgment that they should not
have statutory entitlement to review.’ ” Filebark, 555 F.3d at
1013 (quoting Fausto, 484 U.S. at 448-49); Davis v.
Billington, 681 F.3d 377, 388 (D.C. Cir. 2012) (“Indeed, the
only evidence Davis uses to suggest he is not ‘included’ in the
CSRA’s comprehensive remedial scheme is the lack of relief
available to him under that scheme. . . . [T]his is certainly not
a sufficient reason to place a claimant and his claims outside
the ambit of a comprehensive remedial scheme . . . . ”). The
FSLMRS provides the exclusive procedures by which federal
employees and their bargaining representatives may assert
federal labor-management relations claims. To the extent the
procedures omit other parties—like a national labor
organization (at least one that is not party to a collective
bargaining agreement)—we presume that exclusion is
intentional. Were we to hold otherwise, a union local could
circumvent the CSRA’s strictures by requesting that a
national union file general APA claims outside the CSRA on
 10
its behalf. We decline to allow National AFGE, which here
asserts only the rights of its member-employees and member-
union locals, to file a suit outside the CSRA simply because it
cannot do so under the CSRA. See Sackett v. EPA, 132 S. Ct.
1367, 1374 (2012) (“Where a statute provides that particular
agency action is reviewable at the instance of one party, who
must first exhaust administrative remedies, the inference that
it is not reviewable at the instance of other parties, who are
not subject to the administrative process, is strong.”); see also
Elgin v. Dep’t of the Treasury, 132 S. Ct. 2126, 2133 (2012)
(“Just as the CSRA’s ‘elaborate’ framework demonstrates
Congress’ intent to entirely foreclose judicial review to
employees to whom the CSRA denies statutory review, it
similarly indicates that extrastatutory review is not available
to those employees to whom the CSRA grants administrative
and judicial review.” (citation omitted)).5
Similarly, we reject AFGE’s argument that the district
court has jurisdiction because it can more efficiently
adjudicate AFGE’s claim that the Air Force instructions are
contrary to statute on a nationwide, rather than local-by-local,
basis. But a plaintiff’s inability to use the APA to circumvent
the CSRA’s requirements “applies to a ‘systemwide
challenge’ to an agency policy interpreting a statute just as it
does to the implementation of such a policy in a particular
case.” Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d

5
We reject the argument that “[t]he doctrine of associational
standing entitles the National AFGE to adjudicate a nationwide
claim.” Br. for Appellants 15. Standing vel non is a different issue
from claim preclusion under the CSRA. See, e.g., Nyunt v.
Chairman, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C. Cir.
2009) (plaintiff’s claim precluded by CSRA notwithstanding
plaintiff’s standing).
 11
445, 449 (D.C. Cir. 2009).6 Nor may a party avoid the CSRA
because it provides only an “inconvenient” remedy:
The controllers do have a remedy: if the FAA fails to
live up to its agreements, the union can pursue the
matter and if the union fails to live up to its duty of
representation, the controllers can pursue the union.
These procedures surely lack the directness and
immediacy of an APA suit, and the controllers have
apparently found them frustrating. But the choice of
procedures lies with Congress[.]
Filebark, 555 F.3d at 1014 (citations omitted).
Furthermore, AFGE’s reliance on AFGE Local 446 v.
Nicholson, 475 F.3d 341 (D.C. Cir. 2007) is misplaced. In
Nicholson, an AFGE local representing nurses employed by
the Department of Veterans Affairs (VA) won an arbitration
award against the VA. Id. at 346. When the VA refused to
recognize the award, the local filed an unfair labor practice
charge with the FLRA. Id. at 345. Subsequently, the VA

6
AFGE does not request that we apply the exception discussed
in Leedom v. Kyne, 358 U.S. 184 (1958), nor would we apply it if
AFGE had so argued. See Nyunt, 589 F.3d at 449 (Leedom
exception permits “judicial review of agency action for alleged
statutory violations even when a statute precludes review . . . .
where (i) the statutory preclusion of review is implied rather than
express; (ii) there is no alternative procedure for review of the
statutory claim; and (iii) the agency plainly acts in excess of its
delegated powers and contrary to a specific prohibition in the
statute that is ‘clear and mandatory’ ”; to satisfy the third
requirement the “agency error must be so extreme that one may
view it as jurisdictional or nearly so” (citations and quotation marks
omitted)). In Nyunt, we emphasized that the Leedom exception is
like “a Hail Mary pass” that “rarely succeeds.” Id.
 12
Under Secretary—acting under a specific statute pertaining
only to VA employees—issued an order making it impossible
to enforce the arbitration award. See id. at 345. The statute
provided that the Under Secretary’s order “ ‘may not be
reviewed by any other agency.’ ” Id. (quoting 38 U.S.C.
§ 7422(d)). The FLRA dismissed the unfair labor practice
charge, concluding that both the order and the statute deprived
it of jurisdiction. Id. The local then filed a complaint in
district court challenging the Under Secretary’s decision
insulating the unfair labor practice claim from FLRA review.
Id. Emphasizing that the local challenged the Under
Secretary’s decision as opposed to an FLRA decision, we held
that the CSRA did not deprive the district court of
jurisdiction. Id. at 347-48. Nicholson is distinguishable
because it involved a challenge to the Under Secretary’s order
insulating the underlying dispute from review, an order that is
“expressly outside the FLRA’s purview.” Id. at 348.
Finally, we note that the district court erroneously used
the administrative exhaustion doctrine to dismiss the
complaint. See Am. Fed. of Gov’t Empls., 841 F. Supp. 2d at
236. Administrative exhaustion means that a party cannot
bring a claim in a particular court until that party follows
certain administrative steps. But if judicial review were
available to AFGE, it would be available in circuit, not
district, court. See 5 U.S.C. § 7123(a). Thus, AFGE’s
argument that we should waive the requirements of
“administrative exhaustion” for equitable reasons misses the
point: the exclusive remedial scheme of the CSRA keeps
these claims out of the district court entirely.
In sum, the Congress has provided multiple paths by
which AFGE can challenge the Air Force instructions. And
AFGE cannot disturb the CSRA’s exclusive remedial regime
by following a path the Congress has closed.
 13
For the foregoing reasons, we affirm the district court’s
dismissal of the complaint for lack of subject matter
jurisdiction.
So ordered.