Amer Fed Govt Empl v. Nicholson, R. James

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 27, 2006 Decided January 16, 2007

No. 05-5365

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 446,
APPELLANT

v.

R. JAMES NICHOLSON, SECRETARY OF VETERANS AFFAIRS,
AND MICHAEL J. KUSSMAN, M.D., M.S., M.A.C.P.,
ACTING UNDER SECRETARY FOR HEALTH FOR THE VETERANS
HEALTH ADMINISTRATION,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 02cv00613)

Kevin M. Grile argued the cause for appellant. With him on
the briefs were Charles A. Hobbie and Mark D. Roth.

Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and R. Craig
Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant
U.S. Attorney, entered an appearance.
 2

Before: GINSBURG, Chief Judge, and SENTELLE and TATEL,
Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: This case has its roots in a labor
dispute between the Department of Veterans Affairs (“VA”)
Medical Center in Asheville, North Carolina, and the American
Federation of Government Employees, AFL-CIO, Local 446,
(“the Union”), which represents operating room nurses who
work at the Asheville Medical Center. The Union secured an
arbitration award in favor of the Asheville nurses, but a
subsequent decision by the VA’s Under Secretary for Health
made it impossible for the Union to enforce that award. The
Union filed this lawsuit against the Secretary of Veterans Affairs
and the VA’s Under Secretary for Health to have that decision
declared unlawful, so that the arbitration award could be
enforced. The district court dismissed the Union’s lawsuit for
lack of subject matter jurisdiction. On this appeal, the Union
argues that the district court erred in dismissing the suit and
should have ruled in its favor on the merits. For the reasons that
follow, we hold that the district court did have jurisdiction over
the Union’s complaint. On the merits, however, we hold that the
district court should have ruled for the VA defendants.

I. Jurisdiction

A. Background

Title VII of the Civil Service Reform Act of 1978
(“CSRA”), which is codified at title 5, chapter 71 of the U.S.
Code, authorizes most federal employees to collectively bargain
over the “conditions of [their] employment.” See 5 U.S.C. §
7102(2). The collective bargaining rights of doctors and nurses
employed by the VA, however, are more limited. In Colorado
 3

Nurses Ass’n v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988), we held
that the Secretary of the VA had the authority to set the
conditions of employment for these employees by regulation and
that VA medical professionals did not have a right to mandatory
collective bargaining. Colo. Nurses, 851 F.2d at 1492.
Following that decision, in 1991 Congress passed a new statute
providing that:

Except as otherwise specifically provided in this title, the
authority of the Secretary to prescribe regulations under
section 7421 of this title is subject to the right of Federal
employees to engage in collective bargaining with respect
to conditions of employment through representatives
chosen by them in accordance with chapter 71 of title 5
(relating to labor-management relations).

Department of Veterans Affairs Health-Care Personnel Act,
Pub. L. No. 102-40, title II, § 202, 105 Stat. 187, 200 (1991),
codified at 38 U.S.C. § 7422(a). Chapter 71 of title 5 governs
federal employees’ labor relations generally, including
grievance procedures under collective bargaining agreements.
5 U.S.C. §§ 7121–7123. In other words, 38 U.S.C. § 7422(a)
gives VA medical professionals the right to bargain according
to the rules set out in chapter 71 of title 5, subject to limitations
“specifically provided” in title 38. Title 38 imposes three
substantive limitations on the VA nurses’ bargaining rights
under title 5:

Such collective bargaining (and any grievance procedures
provided under a collective bargaining agreement) in the
case of employees described in section 7421(b) of this title
may not cover, or have any applicability to, any matter or
question concerning or arising out of (1) professional
conduct or competence, (2) peer review, or (3) the
establishment, determination, or adjustment of employee
 4

compensation under this title.

38 U.S.C. § 7422(b). The third of these limitations – matters
concerning employee compensation – is at issue in this case. In
addition, Congress authorized the VA Secretary to determine
whether a matter is subject to collective bargaining or instead
falls under one of the three listed exceptions. As applicable to
this case, the statute provides that “[a]n issue of whether a
matter or question concerns or arises out of . . . the
establishment, determination, or adjustment of employee
compensation under this title shall be decided by the Secretary
and is not itself subject to collective bargaining and may not be
reviewed by any other agency.” Id. § 7422(d). The VA
Secretary has delegated this § 7422(d) authority to the Under
Secretary for Health.

Pursuant to their collective bargaining rights under 38
U.S.C. § 7422(a) and chapter 71 of title 5, operating room
nurses at the VA Medical Center in Asheville, North Carolina
are represented by the plaintiff Union, AFGE Local 446. The
Asheville Medical Center is subject to a nationwide collective
bargaining agreement (“CBA”) between the American
Federation of Government Employees and the VA. In February
1999 AFGE Local 446 filed a grievance. The Union claimed
that, under the CBA, operating room nurses at the Medical
Center were entitled to “premium pay” for any hours worked at
night or on weekends. The Medical Center disagreed. The
grievance went to arbitration, and in December 1999 the
arbitrator ruled in favor of the Union. The arbitrator concluded
that operating room nurses were entitled to premium pay for
night and weekend work, and ordered appropriate back pay
dating to the filing of the grievance. The details of the
grievance, which are not relevant to the question of the district
court’s jurisdiction over this lawsuit, are discussed at greater
length in section II of this opinion.
 5

An arbitrator’s award may be appealed to the Federal Labor
Relations Authority (“FLRA”), but in this case the Medical
Center waited too long before filing its appeal,1 and the FLRA
dismissed the appeal as untimely. The Medical Center refused
to recognize the award. It is an unfair labor practice (“ULP”)
for a federal agency to fail to comply with a valid arbitration
award, see Dep’t of Health & Human Servs. v. FLRA, 976 F.2d
1409, 1413 (D.C. Cir. 1992), so to enforce the award the Union
filed a ULP charge with the FLRA. In September 2000 the
FLRA served a ULP complaint on the Medical Center.

Meanwhile, by letter of February 14, 2000, the Medical
Center had requested a determination from the VA that the
arbitrator lacked the authority to rule on the Union’s grievance,
on the grounds that 38 U.S.C. § 7422(b) excludes matters
concerning the determination of employee compensation from
the bargaining and grievance process. Several months later, the
VA Under Secretary for Health returned the Medical Center’s
request for a § 7422 determination. The Under Secretary
instructed the Center to first attempt to resolve the matter
through consultation with the Union, pursuant to the collective
bargaining guidelines then in effect between the AFGE and the
VA. Negotiations failed, and in October 2000 the Medical
Center again requested a ruling from the Under Secretary.

With this request still pending with the Under Secretary, the
FLRA General Counsel prepared to seek judgment against the
Medical Center in the ULP proceeding. On March 5, 2001, the
General Counsel moved for a summary judgment to enforce the
arbitration award. Also on March 5th, the VA Under Secretary
issued a Decision Paper (“§ 7422 Decision”). The Under
Secretary found, “[u]nder the authority in 38 U.S.C. 7422(d),”
that the arbitrator’s decision and the subsequent ULP proceeding

1
See Part II.A, infra.
 6

before the FLRA “concern[] the establishment, determination,
or adjustment of employee compensation.”

With the § 7422 Decision in hand, the Medical Center
opposed summary judgment in the FLRA proceeding and sought
dismissal of the Union’s attempt to enforce the arbitration
award. The Medical Center argued that the FLRA lacked
jurisdiction over the Union’s complaint, and that the Under
Secretary’s § 7422 Decision conclusively decided the issue
because a question decided by the VA under § 7422(d) “is not
itself subject to collective bargaining and may not be reviewed
by any other agency.” 38 U.S.C. § 7422(d). The FLRA agreed
and dismissed the complaint. The FLRA held that its
jurisdiction could be challenged at any stage in its proceedings,
and that because the Under Secretary “has made a § 7422(d)
determination, the Authority lacks jurisdiction over this matter.”
U.S. Dep’t of Veterans Affairs, VA Med. Ctr., Asheville, N.C., 57
F.L.R.A. 681, 2002 WL 1019134, at *5 (Jan. 31, 2002) (“VAMC
Asheville”).

The Union did not seek judicial review of the FLRA
decision, for reasons that will be discussed below. Instead, in
April 2002 it filed this lawsuit against the Secretary of Veterans
Affairs and the Under Secretary for Health in their official
capacities – collectively, the “VA” – on the theory that the
Under Secretary’s § 7422 Decision was unlawful. If the § 7422
Decision were declared unlawful by the district court, the Union
reasoned, then the arbitration award would be enforceable
against the Medical Center, and the operating room nurses at
that facility would finally receive their “premium pay” for night
and weekend work.

The Union and the VA filed cross motions for summary
judgment. The VA also sought dismissal under Federal Rule of
Civil Procedure 12(b)(1), arguing that the district court did not
 7

have subject matter jurisdiction over the claims raised in the
Union’s complaint. In July 2005 the district court granted the
VA’s motion to dismiss. AFGE, Local 446 v. Principi, 404 F.
Supp. 2d 14, 28 (D.D.C. 2005) (“Local 446”). The district court
concluded that, although the Union claimed to be challenging
the legality of the Under Secretary’s § 7422 Decision, the
Union’s “Complaint is properly characterized as a claim seeking
review of the January 31, 2002, FLRA decision in the ULP
proceeding, which dismissed Plaintiff’s administrative
complaint.” Id. at 21. Judicial review of such an FLRA order
is established by 5 U.S.C. § 7123(a), which provides that an
aggrieved person – here, the Union – may seek review of an
FLRA order involving an unfair labor practice in the United
States Court of Appeals. See id. at 20-22. And because the
Union’s FLRA case involved VA medical professionals whose
bargaining rights were established and limited by 38 U.S.C. §
7422, subsection (e) of that statute specifically requires that a
petition for judicial review authorized by 5 U.S.C. § 7123 be
brought in the U.S. Court of Appeals for the District of
Columbia Circuit. Id. at 21.

District courts do not have concurrent jurisdiction to review
challenges to FLRA orders, AFGE v. Loy, 367 F.3d 932, 935
(D.C. Cir. 2004), so the district court held that it lacked
jurisdiction over the FLRA’s January 31, 2002 order dismissing
the ULP complaint. Review of that order, the court concluded,
could be had only in the D.C. Circuit. Local 446, 404 F. Supp.
2d at 23. Having found that the Union’s complaint was
“actually an appeal of the FLRA ruling,” the district court
concluded that the Union had failed to “adequately set forth any
claim challenging the merits of the Under Secretary’s
determination.” Id. at 27-28. For the reasons explained below,
we reverse the district court’s jurisdictional determination.
 8

B. Analysis

This court reviews the district court’s dismissal for lack of
subject matter jurisdiction de novo. Doe v. Metro. Police Dep’t,
445 F.3d 460, 465 (D.C. Cir. 2006). First, the Union argues that
the district court mischaracterized its complaint. According to
the Union, this lawsuit is not a veiled attempt to appeal the
January 31, 2002 FLRA order. Rather, it is a straightforward
claim under the Administrative Procedure Act (“APA”) to set
aside agency action – the Under Secretary’s § 7422 Decision –
that the Union contends is arbitrary and capricious or otherwise
unlawful. See 5 U.S.C. § 706(2). Second, the Union argues that
the district court did have jurisdiction over its complaint. The
VA acknowledges that the legality of final agency action is
presumptively subject to judicial review, see Transactive Corp.
v. United States, 91 F.3d 232, 236 (D.C. Cir. 1996), but argues
that in this case the Union was required to bring its claims
against the VA in this court, not the district court. We agree
with the Union on this issue, and hold that the district court
erred in dismissing the Union’s complaint.

1. Judicial Review of the FLRA Order

As emphasized by the district court, the Union did not seek
review of the January 31, 2002 FLRA order in the D.C. Circuit,
although it was authorized to do so under 38 U.S.C. § 7422(e)
and 5 U.S.C. § 7123(a). The reason is simple: petitioning for
review of that order would have been to no avail, because the
D.C. Circuit lacked the authority to grant the relief sought by the
Union. The Under Secretary’s decision that a matter arises out
of a collective bargaining exclusion “may not be reviewed by
any other agency.” 38 U.S.C. § 7422(d). The Federal Labor
Relations Authority and the Department of Veterans Affairs, of
course, are separate agencies. The FLRA therefore lacked
authority to review the § 7422 Decision, and on review of the
 9

FLRA’s dismissal this court could not have concluded
otherwise.

It is true that “district courts do not have concurrent
jurisdiction over matters within the exclusive purview of the
FLRA.” AFGE v. Loy, 367 F.3d 932, 935 (D.C. Cir. 2004). The
district court concluded, under Loy, that the FLRA had exclusive
jurisdiction over the claims raised in this lawsuit. Local 446,
404 F. Supp. 2d at 21-22. The rule from Loy does not apply in
the instant case, however, because the legality of the disputed
§ 7422 Decision is expressly outside the FLRA’s purview.
Because the Union is presumptively entitled to judicial review
of its claim that the Under Secretary’s § 7422 Decision was
unlawful, and because the D.C. Circuit could not provide that
review on a petition for the review of the FLRA decision
dismissing the ULP complaint, Loy does not provide a basis for
the district court dismissing this case for lack of jurisdiction.

2. Judicial Review of the § 7422 Decision

Notwithstanding any mistaken reliance on Loy, the VA
contends that the district court nonetheless reached the right
result in dismissing this case for lack of subject matter
jurisdiction. The VA argues that the Union was required to
bring such a challenge directly to the D.C. Circuit. On this
theory, the district court correctly dismissed the Union’s lawsuit,
not because it was a veiled appeal of the FLRA order, but
because the district court lacked jurisdiction over the Union’s
challenge to the Under Secretary’s § 7422 Decision.

To resolve this question we must analyze the scope of 38
U.S.C. § 7422(e), which concerns judicial review of disputes
involving VA medical professionals. As discussed above, under
title 38 these VA employees are entitled to bargain collectively
“in accordance with chapter 71 of title 5,” “[e]xcept as otherwise
 10

specifically provided in [title 38].” 38 U.S.C. § 7422(a). One
of the exceptions to the rights provided under title 5 is found in
§ 7422(e):

A petition for judicial review or petition for enforcement
under section 7123 of title 5 in any case involving
employees described in section 7421(b) of this title or
arising out of the applicability of chapter 71 of title 5 to
employees in those positions, shall be taken only in the
United States Court of Appeals for the District of Columbia
Circuit.

Id. § 7422(e). As it concerns petitions for review of FLRA
orders, the effect of § 7422(e) is simply to channel all such
petitions involving VA medical professionals to the D.C.
Circuit, as opposed to any other United States court of appeals.
Thus – as noted above – had the Union sought judicial review of
the January 31, 2002 FLRA order, § 7422(e) would have
required the Union to file that petition for review in this court.
Such a petition for judicial review would be brought “under
section 7123 of title 5” (which authorizes judicial review of
unfair labor practice claims involving arbitration awards, see 5
U.S.C. § 7123(a)(1)), and would involve VA employees
“described in section 7421(b)” (which include registered nurses,
see 38 U.S.C. § 7421(b)(5)). 38 U.S.C. § 7422(e). In contrast,
a party whose right to judicial review of an FLRA order arises
directly under title 5 may choose to seek review “in the circuit
in which the person resides or transacts business or in the United
States Court of Appeals for the District of Columbia.” 5 U.S.C.
§ 7123(a) (emphasis added).

That much should not be controversial. The controversy is
over the meaning of the phrase “petition for judicial review” as
it is used in § 7422(e): “A petition for judicial review or petition
for enforcement under section 7123 of title 5 in any case
 11

involving employees described in section 7421(b) of this title or
arising out of the applicability of chapter 71 of title 5 to
employees in those positions” must be brought in the D.C.
Circuit. The VA argues that § 7422(e) applies not only to
petitions authorized under 5 U.S.C. § 7123, but also to all other
disputes that “aris[e] out of the applicability of chapter 71 of
title 5 to [VA medical] employees.” On this argument, the
Union’s claims in this lawsuit were required to be brought in a
petition for review filed in the D.C. Circuit because the Union’s
claims “aris[e] out of the applicability of chapter 71 of title 5”
to the Asheville operating room nurses. In defense of their
reading of subsection (e), the VA asks us to read § 7422 as a
whole. It makes sense – the argument goes – that subsection (e)
would govern all challenges to the VA’s authority, established
in subsection (d), to settle disputes concerning the collective
bargaining exclusions enumerated in subsection (b).

While plausible at first glance, the VA’s intuition is
inconsistent with the plain meaning of the statute. On the VA’s
reading of subsection (e), the term “petition for judicial review”
refers to two types of petitions: petitions “under section 7123 of
title 5 in any case involving employees described in section
7421(b) of this title,” and petitions “arising out of the
applicability of chapter 71 of title 5 to employees in those
positions.” In other words, according to the VA, subsection (e)
provides that “[a] petition for judicial review or petition for
enforcement” must be taken in the D.C. Circuit if that petition
is brought “under section 7123 of title 5 in any case involving
employees described in section 7421(b) of this title,” and a
petition must also be taken in the D.C. Circuit if that petition
“aris[es] out of the applicability of chapter 71 of title 5 to
employees in those positions.”

The statute does not support such an unwieldy construction.
To the contrary, the term “petition for judicial review” refers
 12

only to one type of petition: petitions authorized under section
7123 of title 5. It is clear that both “petition for judicial review”
and “petition for enforcement” are so authorized. Section
7123(a) provides that aggrieved persons may obtain judicial
review of specified final FLRA orders. Section 7123(b)
provides that the FLRA may petition “for the enforcement of
any order of the Authority.” And § 7123(c) contains rules
applicable to “a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for
enforcement.” Accordingly, the first fifteen words in § 7422(e)
must be read together: “A petition for judicial review or petition
for enforcement under section 7123 of title 5” must be taken in
the D.C. Circuit if that petition is from “any case involving
employees described in section 7421(b) of this title or arising
out of the applicability of chapter 71 of title 5 to employees in
those positions.” Subsection (e) does not apply to every “case
. . . arising out of the applicability of chapter 71 of title 5,”
because “any case” does not refer to all cases, but only to those
cases involving final FLRA orders that are subject to judicial
review under 5 U.S.C. § 7123.

Our construction of this statute is supported by a recent
decision in a very similar case. In AFGE, Local 2152 v.
Principi, 464 F.3d 1049 (9th Cir. 2006), the Ninth Circuit
rejected the argument that challenges to the VA’s § 7422(d)
authority must be brought in the D.C. Circuit. Though
subsection (e) is not a model of clear draftsmanship, we agree
with the Ninth Circuit that “[t]he plain language of § 7422(e)
refers only to petitions for review or petitions for enforcement
under § 7123 of title 5.” Id. at 1054. Read properly, § 7422(e)
merely channels 5 U.S.C. § 7123 petitions to the D.C. Circuit in
certain cases involving VA employees; it does not establish the
D.C. Circuit’s jurisdiction to review, in the first instance, all
cases involving the application of title 5 to VA medical
professionals. Congress did not preclude judicial review of the
 13

VA’s § 7422(d) authority, and because § 7422(e) does not
establish the D.C. Circuit as the forum for such challenges we
hold that the district court erred in dismissing this case for lack
of jurisdiction. Under 28 U.S.C. § 1331, the district courts have
original jurisdiction over civil actions arising under federal law,
and the Union properly filed this lawsuit in the United States
District Court for the District of Columbia.

II. Merits

The district court dismissed the Union’s complaint on fully-
briefed cross-motions for summary judgment. The facts are not
in dispute. Rather than remand the case for further proceedings,
in the interest of judicial efficiency – and mindful that the
Asheville operating room nurses with a stake in this litigation
received their favorable arbitrator’s award in December 1999 –
we turn to the merits of the Union’s claims. See, e.g., Block v.
Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986). Section 7422(d)
grants the VA broad authority to decide whether a question
“concerns or arises out of” a determination of employee
compensation, and we hold that the Under Secretary’s § 7422
Decision was not unlawful.

A. Background

In February 1999 the plaintiff in this case, AFGE Local 446,
filed a grievance on behalf of operating room nurses employed
by the VA Medical Center in Asheville, North Carolina. The
grievance alleged that the collective bargaining agreement in
place between the AFGE and the VA required the Medical
Center to pay its operating room nurses a premium for all work
at night or on weekends. The grievance was not resolved, so the
Union pursued arbitration under the collective bargaining
agreement.
 14

In December 1999 the arbitrator sided with the Union. The
arbitrator based this decision on 38 U.S.C. § 7453, which
governs VA nurses’ premium pay, and on corresponding
provisions in the collective bargaining agreement. Section 7453
provides, in relevant part:

(b) A nurse performing service on a tour of duty, any part
of which is within the period commencing at 6 postmeridian
and ending at 6 antemeridian, shall receive additional pay
for each hour of service on such tour at a rate equal to 10
percent of the nurse’s hourly rate of basic pay if at least
four hours of such tour fall between 6 postmeridian and 6
antemeridian. When less than four hours of such tour fall
between 6 postmeridian and 6 antemeridian, the nurse shall
be paid the differential for each hour of service performed
between those hours.

(c) A nurse performing service on a tour of duty, any part
of which is within the period commencing at midnight
Friday and ending at midnight Sunday, shall receive
additional pay for each hour of service on such tour at a rate
equal to 25 percent of such nurse’s hourly rate of basic pay.

38 U.S.C. § 7453(b)–(c). The “premium pay” section of the
CBA, in turn, repeats most of this statutory language and
provides that premium pay shall be provided “in accordance
with” § 7453. The Medical Center argued that nurses were
entitled to premium pay only for regularly scheduled tours of
duty that include night or weekend hours. Because the Medical
Center’s operating room was generally open only on weekdays,
operating room nurses did not work any regularly scheduled
tours on weekends or after 6:00 p.m., and the Center claimed
that the nurses were entitled only to overtime pay when their
work was required during those times. In support of this
argument the Medical Center pointed to an internal regulation
 15

that defined “tour of duty” as scheduled hours that employees
were required to work on a regular and recurring basis.

The arbitrator, however, concluded that service at night or
on weekends was service “on a tour of duty” as required by the
statute, and ruled that the Medical Center had violated 38 U.S.C.
§ 7453 and the CBA by failing to award the nurses premium pay
for all hours worked at night and on weekends. The arbitrator
ordered the Medical Center to compensate the nurses
accordingly, “hereafter and retroactive to the date of the
grievance filing.”

An arbitrator’s award may be appealed to the FLRA. If the
FLRA finds that the award is “contrary to any law, rule, or
regulation,” it “may take such action and make such
recommendations concerning the award as it considers
necessary.” 5 U.S.C. § 7122(a). But, “[i]f no exception to an
arbitrator’s award is filed . . . during the 30-day period
beginning on the date the award is served on the party, the
award shall be final and binding.” Id. § 7122(b). In this case,
the Medical Center waited 31 days before filing its exceptions,
and the FLRA rejected the appeal as untimely.

The Medical Center refused to recognize the award, so in
June 2000 the Union filed an unfair labor practice charge with
the FLRA. This attempt to enforce the arbitrator’s award was
thwarted by the VA Under Secretary’s March 2001 decision on
the Medical Center’s request for a § 7422 ruling. In that
decision, the Under Secretary noted that, under the VA’s pay
regulations, “tour of duty” is defined in terms of nurses’ basic,
40-hour work schedule, and that the nurses receive overtime pay
– but not premium pay – for work outside that normal
workweek. Because the operating room nurses’ regularly
scheduled tours of duty did not involve night or weekend work,
the Under Secretary concluded:
 16

Under the authority in 38 U.S.C. 7422(d), I find:

that the arbitrator’s decision and subsequent ULP concerns
[sic] the establishment, determination, or adjustment of
employee compensation.

Under the authority in 38 U.S.C. 7422(d), I find:

that the payment of night differential and weekend premium
pay to OR [operating room] nurses for periods of overtime
work concerns or arises out of a matter or question of the
establishment, determination, or adjustment of employee
compensation under title 38.

In response, the FLRA dismissed the ULP complaint for lack of
jurisdiction. VAMC Asheville, 2002 WL 1019134, at *5.

B. Analysis

We determine the parties’ motions for summary judgment
under the standard set by Federal Rule of Civil Procedure 56(c):
summary judgment is appropriate if there is no genuine issue as
to any material fact and if either the Union or the VA is entitled
to a judgment as a matter of law.

The Union makes two principal arguments. The first is
based on timing: the Union argues that the VA waited too long
before issuing the § 7422 determination. The second concerns
the substance of the Under Secretary’s determination: the Union
argues that the grievance did not concern the determination or
adjustment of employee compensation. We reject these
arguments and hold in favor of the VA.
 17

1. The Timing of the § 7422 Decision

The Union argues, first, that the VA lacks statutory
authority to issue a § 7422(d) determination after a grievance
has been resolved in a final and binding arbitration. Section
7422(b) provides that “grievance procedures provided under a
collective bargaining agreement” may not be applied to matters
concerning the determination of employee compensation;
according to the Union, those grievance procedures ended when
the arbitrator’s award became “final and binding” by operation
of 5 U.S.C. § 7122(b). On this argument, the VA impermissibly
undermined the finality of a legitimate arbitration by issuing its
§ 7422 Decision in March 2001, more than a year after the
arbitrator’s award became final. In a related argument, the
Union asserts that the VA violated the Union’s “substantive”
due process rights by interfering with the Union’s (and its
members’) property interest in the relief promised by the
arbitrator’s award.

We cannot agree that the VA loses its authority to decide an
issue under § 7422(d) once an arbitrator enters an award on that
same issue. As an initial matter, nothing in title 38 imposes such
a time limit. The Union argues that Congress is presumed to
legislate with existing law in mind, and therefore the interest in
arbitral finality reflected in § 7122 of title 5 must limit the VA’s
authority under title 38. We need not determine whether there
is a conflict between title 38 and title 5 in this case, however,
because 38 U.S.C. § 7425(b) expressly provides that “no
provision of title 5 . . . which is inconsistent with any provision
of . . . [chapter 74 of title 38] shall be considered to supersede,
override, or otherwise modify” any provision under chapter 74
of title 38. The plain text of this statute requires that, to the
extent 38 U.S.C. § 7422(d) creates a conflict with 5 U.S.C. §
7122, the latter provision must give way.
 18

Of greater importance, the collective bargaining exclusions
in § 7422(b) are jurisdictional: disputes that concern or arise out
of the determination or adjustment of employee compensation
are not subject to arbitration. In turn, a decision under § 7422(d)
will settle a dispute over an arbitrator’s jurisdiction, or, as in this
case, a dispute over the FLRA’s authority to enforce an award
in a ULP proceeding. It will not however address the “merits”
of an arbitrator’s award, because the effect of such a decision is
to establish whether the matter is subject to title 5 collective
bargaining procedures in the first place.2 The § 7422 Decision
states that the “FLRA has no jurisdiction to review the ULP,”
because the “ULP concerns the establishment, determination, or
adjustment of employee compensation.” In its decision
dismissing the Union’s attempt to enforce the arbitration award,
the FLRA stated that “[p]arties may raise arguments regarding
the Authority’s jurisdiction at any stage of the Authority’s
proceedings.” VAMC Asheville, 2002 WL 1019134, *5.
Though that decision is not now before us, there is nothing
troubling about the FLRA’s conclusion that its jurisdiction was
properly challenged in a ULP proceeding. In the analogous
private sector context, an arbitrator’s jurisdiction may be
challenged in an enforcement proceeding brought in a district
court, and this court has similarly approved the FLRA’s
authority to review the arbitrability of a dispute when that
challenge was raised in an unfair labor practice proceeding to
enforce an arbitrator’s award. See AFGE v. FLRA, 850 F.2d
782, 785 (D.C. Cir. 1988). As there was nothing improper about
the FLRA’s examination of its own jurisdiction over the ULP
proceeding, we cannot find that the VA exceeded its authority
by issuing the § 7422 Decision while that proceeding was
pending. Accordingly, we hold that the VA did not exceed its
authority under 38 U.S.C. § 7422(d) by issuing its decision after

2
Accordingly, the Union’s argument that the VA
impermissibly reviewed the merits of the arbitrator’s decision fails.
 19

the conclusion of the arbitration.

The Union’s constitutional claim is also without merit. This
court has recognized that an act of “grave unfairness,” such as
“a deliberate flouting of the law that trammels significant
personal or property rights,” may violate the right to
“substantive” due process under the Fifth Amendment. See,
e.g., Tri County Indus., Inc. v. District of Columbia, 104 F.3d
455, 459 (D.C. Cir. 1997) (quoting Silverman v. Barry, 845 F.2d
1072, 1080 (D.C. Cir. 1988)). The Union asserts a legitimate
claim of entitlement in the arbitration award and in the relief
ordered in that award, and claims that the government’s
interference with that interest “shocks the conscience.” See
Washington Teachers’ Union v. Bd. of Educ. of the District of
Columbia, 109 F.3d 774, 781 (D.C. Cir. 1997). The threshold
for such a constitutional violation is unclear, but this court has
held that a mere violation of law does not give rise to a due
process claim. See Tri County Indus., 104 F.3d at 459 (state
law); Comm. of U.S. Citizens Living in Nicaragua v. Reagan,
859 F.2d 929, 944 (D.C. Cir. 1988) (international law). We
have held that the timing of the VA’s § 7422 Decision was not
unlawful, and so our discussion of the Union’s due process
claim comes to an end.

The Union hints at a distinct constitutional challenge, one
rooted in the constitutional separation of powers. The Union
contends that “[a] final and binding arbitration award, in the
context of a collective bargaining agreement, is the equivalent
of a U.S. District Court judgment,” and argues that the VA may
not “use an administrative power [to] evade the labor equivalent
of a District Court judgment.” Br. of Appellant at 45, 46. It is
true that “[j]udgments within the powers vested in courts by the
Judiciary Article of the Constitution may not lawfully be
revised, overturned or refused faith and credit by another
Department of Government.” Chicago & S. Air Lines v.
 20

Waterman S.S. Corp., 333 U.S. 103, 113 (1948); see also
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). The problem with
the Union’s argument is that an arbitration award under chapter
71 of title 5 is not constitutionally equivalent to a judgment of
an Article III court. Enforcement of such an award is through an
FLRA unfair labor practice proceeding, which itself is subject
to review by the United States Court of Appeals. There may be
a point after which the VA may no longer invoke its § 7422(d)
authority to resolve a jurisdictional dispute, but because that is
not the case before us, we need not draw that line in holding that
a determination made during an FLRA proceeding is not too
late. It may be inconsiderate or even unfair, but it is not without
legal effect.

2. The Reasonableness of the § 7422 Decision

The Union next argues that the VA misapplied the
collective bargaining exclusion. We will rule for the VA if the
§ 7422 Decision is not arbitrary or capricious and if the Decision
is based on a permissible interpretation of the relevant statutes
under Chevron U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 842-43 (1984). See Shays v. FEC, 414
F.3d 76, 96-97 (D.C. Cir. 2005) (analyzing FEC regulations
pursuant to both arbitrary and capricious review and Chevron).
In applying these standards we part ways with the Ninth Circuit,
which applied a higher level of scrutiny to a similar § 7422(d)
determination in Local 2152. In that case, the court first
determined that the VA’s interpretation of the § 7422 bargaining
exclusions “is not entitled to the full level of deference typically
afforded administrative decisions pursuant to Chevron.” Local
2152, 464 F.3d at 1057. The court instead treated the Under
Secretary’s determination as an “opinion letter” entitled to
respect only for its “power to persuade.” Id. (relying on
Christensen v. Harris County, 529 U.S. 576, 587 (2000)).
 21

We disagree with that approach. Congress specifically
authorized the VA Secretary to decide disputes over the scope
of the collective bargaining exclusions listed in 38 U.S.C. §
7422(b), and under the APA we must set aside final agency
action if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Here, the Medical Center’s request for a § 7422(d)
determination arose from a specific grievance involving
operating room nurses, and the VA decided that the dispute was
exempt from collective bargaining and that the FLRA was
without jurisdiction to review the unfair labor practice
complaint. The § 7422 Decision is final agency action for the
purpose of judicial review under the APA and therefore will not
be disturbed unless it is arbitrary or capricious. And to the
extent that the VA’s decision turned on its interpretation of the
collective bargaining exclusions in § 7422, our review is similar,
because the VA’s interpretations are entitled to a deferential
review under Chevron. “[A]dministrative implementation of a
particular statutory provision qualifies for Chevron deference
when it appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that the
agency interpretation claiming deference was promulgated in the
exercise of that authority.” United States v. Mead Corp., 533
U.S. 218, 226-27 (2001). In our view, by treating a § 7422
decision as an opinion letter, the Ninth Circuit in Local 2152 did
not give effect to the text of the statute; a § 7422 decision does
not offer the VA’s opinion on the scope of the exclusions
enumerated in subsection (b). Rather, subsection (d) authorizes
the VA to “decide” an “issue of whether a matter or question
concerns or arises out of . . . the establishment, determination,
or adjustment of employee compensation under this title.” 38
U.S.C. § 7422(d). Congress’s delegation of such authority “may
be shown in a variety of ways,” see Mead at 227, and in
§ 7422(d) that delegation is express and unambiguous.
Moreover, we cannot read § 7422(d) to establish the VA’s
 22

decisional authority with respect to other agencies but not with
respect to judicial review, because it is clear from the text of the
statute that the bar on review by any other agency is independent
of the VA’s authority to decide disputes. A dispute over a
bargaining exclusion “shall be decided by the Secretary and is
not itself subject to collective bargaining and may not be
reviewed by any other agency.” 38 U.S.C. § 7422(d) (emphasis
added). A decision under § 7422(d) is subject to judicial review,
but it is a decision that we review, not an opinion.

The threshold question under Chevron is “whether Congress
has directly spoken to the precise question at issue.” Chevron,
467 U.S. at 842. In this case, this question is not whether the
VA is authorized to decide disputes over the scope of a
collective bargaining exclusion – it is – but whether § 7422 is
ambiguous as to the VA’s authority to interpret the statute to
exclude the Union’s grievance from the collective bargaining
process. While it seems fairly plain that Congress did intend to
grant that authority, to the extent that there is any ambiguity in
this regard, under the Chevron analysis we must defer to the
VA’s interpretation of 38 U.S.C. § 7422(d) if that interpretation
is “based on a permissible construction of the statute,” that is, if
the interpretation is reasonable. Chevron, 467 U.S. at 843.

Our inquiry under Chevron step two overlaps with our
inquiry under the arbitrary and capricious standard. “Whether
a statute is unreasonably interpreted is close analytically to the
issue whether an agency’s actions under a statute are
unreasonable.” Gen. Instrument Corp. v. FCC, 213 F.3d 724,
732 (D.C. Cir. 2000); see also Nat’l Ass’n of Regulatory Utility
Comm’rs v. ICC, 41 F.3d 721, 726 (D.C. Cir. 1994). Congress
gave the VA broad authority to decide whether a matter
“concerns or arises out of . . . the establishment, determination,
or adjustment of employee compensation under [title 38],” and
we hold that the VA’s decision in this case was reasonable. The
 23

Union argues that it merely sought the Medical Center’s
compliance with the premium pay standards already established
by 38 U.S.C. § 7453 and the CBA. But this begs the question.
The question is not whether the Medical Center failed to pay its
nurses in accordance with an agreed-upon standard. The
applicable standard is in dispute; the parties would agree that
§ 7453 provides that standard but the Union disagrees with the
VA’s ultimate conclusion that, as it applies to the operating
room nurses who work at the Asheville Medical Center, § 7453
does not mandate premium pay for night and weekend work.
The question before us, however, is whether it was reasonable
for the VA to determine that the dispute over the nurses’ pay for
night and weekend work “concerns or arises out of . . . the
establishment, determination, or adjustment of employee
compensation under [title 38].” 38 U.S.C. § 7422(d). To hold
for the VA in this case, we need not determine that the VA’s
reading of the premium pay statute is the best possible reading,
only that it was reasonable for the VA to conclude that the
matter concerns or arises out of the determination or adjustment
of the nurses’ compensation as that compensation is provided
for by § 7453.

That standard is met in this case, because the VA’s
interpretation of § 7453 is reasonable. The VA based its
decision on its interpretation of the phrase “[a] nurse performing
service on a tour of duty.” 38 U.S.C. § 7453(a), (b). The § 7422
Decision explained that “tour of duty” refers to the regularly
scheduled workweek for which the nurses receive regular pay.
The nurses receive overtime pay for work outside their normal
workweek, but at the Asheville Medical Center, operating room
nurses’ tours did not fall during the premium pay periods
identified in § 7453. This interpretation of “tour of duty” as a
“regularly scheduled tour of duty” might not be the only
permissible interpretation of the statute, but it is a reasonable
one. The VA’s interpretation of § 7453 as it applies to the
 24

Asheville operating room nurses is reasonable and clearly
concerns the determination or adjustment of employee
compensation under title 38. Therefore, we hold that the VA’s
decision – that “the payment of night differential and weekend
premium pay to OR [operating room] nurses for periods of
overtime work concerns or arises out of a matter or question of
the establishment, determination, or adjustment of employee
compensation under title 38” – was not unlawful.

III. Conclusion

For the reasons discussed above, the district court’s
dismissal for lack of jurisdiction is vacated and the case is
remanded to the district court with instructions to enter
judgment in favor of the appellees.