Amer Fed Govt Empl v. Loy, James M.

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 2004 Decided May 14, 2004

No. 03-5256

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL–CIO,
APPELLANT

v.

JAMES M. LOY, IN HIS OFFICIAL CAPACITY AS
UNDER SECRETARY OF TRANSPORTATION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(03cv00043)

Gony Frieder argued the cause for appellant. On the
briefs were Mark Roth and Anne M. Wagner.
William G. Kanter, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Peter D. Keisler, Assistant Attorney General, Roscoe C. How-

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

ard, Jr., U.S. Attorney, Douglas N. Letter and Howard S.
Scher, Attorneys.
Before: GINSBURG, Chief Judge; RANDOLPH and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: A union wishing to become the
bargaining representative of newly-federalized airport screen-
ers initiated two proceedings, one administrative, the other
judicial. The administrative action sought to have the Feder-
al Labor Relations Authority order representation elections.
The other action sought a judgment from the district court
that the screeners had the right to engage in collective
bargaining. The FLRA rejected the union’s petition. The
district court dismissed the complaint. The question in this
appeal is whether the district court had jurisdiction.
In response to the events of September 11, 2001, Congress
enacted the Aviation and Transportation Security Act, Pub.
L. No. 107–71, 115 Stat. 597 (2001), creating a federal work-
force to screen passengers and cargo at commercial airports.
Section 111(d) of the Security Act, 115 Stat. 620, codified at
49 U.S.C. § 44935 note, provides that ‘‘[n]otwithstanding any
other provision of law, the Under Secretary of Transportation
for Security may employ, appoint, discipline, terminate, and
fix the compensation, terms, and conditions of employment of
Federal service for [federally employed security screeners].’’
Thereafter, the American Federation of Government Em-
ployees filed several petitions with the Federal Labor Rela-
tions Authority, seeking elections among security screeners at
a number of airports and certification as the screeners’
exclusive representative for collective bargaining. On Janu-
ary 8, 2003, Under Secretary James M. Loy issued a directive
stating that, ‘‘[b]y virtue of the authority vested in the Under
Secretary of Transportation for Security in Section 111(d),’’
federally employed security screeners ‘‘shall not, as a term or
condition of their employment, be entitled to engage in collec-
tive bargaining or be represented for the purpose of engaging
in such bargaining by any representative or organization.’’
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The next day, the Transportation Security Administration
filed its response to the union’s petitions. The Administra-
tion’s main contention was that the FLRA could not order
representation elections in view of § 111(d) and Loy’s di-
rective.
One day later the union filed a complaint in the district
court seeking an injunction and a declaratory judgment on
the ground that Loy ‘‘did not have the statutory authority to
issue the directive’’ and that the directive was ‘‘arbitrary and
capricious agency action in violation of the Administrative
Procedure Act, 5 U.S.C. § 706.’’ The union also challenged
the directive on constitutional grounds, asserting that it ‘‘de-
prives affected federal employees of their right to free speech
and association under the First Amendment and to equal
protection under the Fifth Amendment’’ to the Constitution.
While the case was pending before the district court, the
FLRA’s Regional Director ruled that § 111(d) of the Security
Act and the Loy directive relieved the Transportation Securi-
ty Administration of any ‘‘duty to bargain over conditions of
employment of security screeners.’’
The district court later dismissed the union’s statutory
claims, holding that the ‘‘FLRA has exclusive authority over
conducting elections to determine whether a labor union has
the support of a majority of employees in an appropriate
unit’’ and that the ‘‘petitions for elections and the TSA
objection that the Loy Determination deprives FLRA of
jurisdiction to conduct any election are TTT properly before
that agency,’’ not the court. 281 F. Supp. 2d 59, 62 (D.D.C.
2003). As to the constitutional claims, the court took note of
the union’s failure to raise these before the FLRA. Id. at 64.
Finding the claims insubstantial, the court dismissed this
portion of the complaint for failure to state a cause of action.
Id. at 66.
In the meantime the FLRA affirmed the Regional Di-
rector’s decision dismissing the union’s petitions. United
States Dep’t of Homeland Security, et al. and AFGE, AFL–
CIO, 59 F.L.R.A. No. 63, 2003 WL 22669101 (Nov. 4, 2003).
The FLRA agreed that § 111(d) granted ‘‘unfettered discre-
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tion to the [Under Secretary] to determine the terms and
conditions of employment for [federal] screener personnel,’’
and that the Loy directive validly barred the screeners from
engaging in collective bargaining. Id. at *13. Therefore, the
union’s ‘‘petitions could not be processed’’ because the FLRA
had no authority to conduct elections. Id. at *7. The FLRA
refused to consider the union’s constitutional arguments be-
cause these were not properly raised before the Regional
Director. Id. at *13. The union did not seek judicial review
of the FLRA’s decision.
Title VII of the Civil Service Reform Act, 5 U.S.C.
§§ 7101–7134, governs labor relations between federal agen-
cies and their employees. One of the FLRA’s exclusive func-
tions is to conduct ‘‘elections to determine whether a labor
organization has been selected as an exclusive representative
by a majority of the [federal] employees in an appropriate
unit,’’ 5 U.S.C. § 7105(a)(2)(B). A union may file a petition
with the FLRA alleging that 30 percent or more of the
employees in an appropriate unit want the union to represent
them in collective bargaining. 5 U.S.C. § 7111(b)(1)(A). The
FLRA ‘‘shall investigate’’ such a petition and, if it finds that
‘‘a question of representation exists,’’ it shall conduct or
supervise an election after determining who is eligible to vote.
5 U.S.C. § 7111(b)(1)(A) & (d). Any person aggrieved by a
‘‘final order’’ of the FLRA, other than an order under § 7112
(unit determination) or § 7122 (arbitration award), may seek
review in the court of appeals. 5 U.S.C. § 7123(a).
If an FLRA order falls within one of § 7123(a)’s two
exceptions to review in the court of appeals, this does not
mean the district courts are open. It means that review is
precluded in any court. Ass’n of Civilian Technicians v.
FLRA, 283 F.3d 339 (D.C. Cir. 2002). On the other hand, if
an FLRA order is not within either exception and is ‘‘final,’’ it
may be reviewed only by a court of appeals. The district
courts do not have concurrent jurisdiction over matters within
the exclusive purview of the FLRA. Karahlios v. Nat’l Fed’n
of Fed. Employees, 489 U.S. 527, 533 (1989); see United
States v. Fausto, 484 U.S. 437, 445 (1988).
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The union thinks it was entitled to sue in district court
because this court could not review the FLRA’s refusal to
order representational elections. The FLRA rendered its
decision under § 7111. Citing U.S. Dep’t of Justice v. FLRA,
727 F.2d 481 (5th Cir. 1984), the union states that FLRA
rulings under § 7111 are unreviewable. That reads too much
into the opinion. The question before the Fifth Circuit was
whether an FLRA order requiring a rerun election pursuant
to § 7111 was a ‘‘final order’’ under § 7123(a). The court
held no because the FLRA had not finally determined if a
particular union would represent the employees. 727 F.2d at
493.
The order here is of a different sort. The FLRA’s decision
that the screeners could not engage in collective bargaining,
and thus were not entitled to union representation, was final
in every sense of the word, as counsel for the union admitted
at oral argument. We will have a few more words to say on
this subject when we discuss the union’s constitutional claims.
As to the union’s statutory claims, it is enough to point out
that the district court’s jurisdiction did not turn on the
presence or absence of our jurisdiction. We cannot review an
FLRA unit determination, see 5 U.S.C. § 7123(a)(2), but that
does not mean a district court may. Ass’n of Civilian
Technicians, 283 F.3d at 340. What matters is whether the
union’s claim – that the screeners had the right to engage in
collective bargaining – was ‘‘arguably’’ within the FLRA’s
authority to decide. See American Foreign Serv. Ass’n v.
Baker, 895 F.2d 1460, 1462 (D.C. Cir. 1990). On that score
there is no doubt. The union must have thought as much
when it filed its election petitions. Title VII gives the FLRA,
and the FLRA alone, the authority to order elections so that
federal employees may decide who, if anyone, will become
their exclusive bargaining representative. In investigating a
§ 7111 petition the FLRA necessarily must determine that
the employees are entitled to engage in collective bargaining.
Sometimes the determination will be made in the context of a
unit determination. Employees engaged in ‘‘security work
which directly affects national security,’’ for instance, cannot
be part of a bargaining unit. 5 U.S.C. § 7112(b)(6). Here
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the FLRA, acting under § 7111, never reached the unit
question. It ruled instead that the Security Act plus the Loy
directive foreclosed collective bargaining for all federally-
employed airport screeners and thus precluded representa-
tion elections. We do not say the FLRA was correct. That
issue is not properly before us. We do say the FLRA had
the exclusive authority to render judgment on the question,
subject to review only in a court of appeals pursuant to
§ 7123.
Citing Aid Ass’n for Lutherans v. U.S. Postal Service, 321
F.3d 1166 (D.C. Cir. 2003), the union argues that even if a
statute precluded judicial review of the legality of the Loy
directive, this would not deprive the district court of jurisdic-
tion to decide whether Loy acted ultra vires. The short
answer is that no statute precludes judicial review of the
union’s claims in this regard. Review may be had, but it
must be in the court of appeals and it may occur only after
the claim has been presented to and finally decided by the
FLRA.
We therefore agree with the district court that it did not
have jurisdiction over the union’s complaint. The district
court nevertheless went ahead and rejected the union’s con-
stitutional claims that the employees had a First Amendment
right to engage in collective bargaining and that the Loy
directive violated the equal protection component of the Fifth
Amendment’s due process clause. We think the court should
also have dismissed these claims for lack of jurisdiction. See
Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 877 (D.C. Cir.
2002). Parties may not bifurcate their case, pursuing only
statutory claims before the FLRA while litigating closely
related constitutional claims in the district court. NTEU v.
FLRA, 986 F.2d 537, 539–40 (D.C. Cir. 1993); Steadman v.
Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963, 967
(D.C. Cir. 1990). That the union did not present its constitu-
tional claims to the FLRA Regional Director is no reason for
allowing it to litigate those claims in the district court. To
hold otherwise would be to excuse non-compliance with the
requirement that one must exhaust administrative remedies
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on the basis that the party failed to comply. See Steadman,
918 F.2d at 968.
The cases just cited, and analogous cases concerning consti-
tutional claims raised in administrative proceedings, see Sha-
lala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1,
24 (2000), and Thunder Basin Coal Co. v. Reich, 510 U.S. 200,
214 (1994), assume that there can be judicial review of the
agency’s decision. Citing Bowen v. Michigan Academy of
Family Physicians, 476 U.S. 667, 681 n.12 (1986), the Court
in Thunder Basin dropped a footnote stating that there
would be a serious constitutional question ‘‘if an agency
statute were construed to preclude all judicial review of a
constitutional claim.’’ 510 U.S. at 215 n.20. Avoiding that
constitutional question might have been an additional factor
in favor of finding the FLRA’s dismissal of the union’s
petitions a ‘‘final order’’ within § 7123(a), and thus subject to
judicial review in this court if the union had raised its First
and Fifth Amendment claims in the agency proceedings. But
according to the FLRA, the union’s constitutional claims were
not properly before it and the union never sought judicial
review. At any rate, to decide that the district court had
jurisdiction over the union’s constitutional claims we would –
at the least – have to assume that the FLRA’s decision on
them would have been unreviewable. That assumption would
be unwarranted for the reasons we have given.
The district court’s judgment dismissing the complaint is
affirmed on the ground that the court lacked jurisdiction.
So ordered.