United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 26, 2007 Decided June 29, 2007
No. 06-5190
ASSOCIATION OF FLIGHT ATTENDANTS - CWA, AFL-CIO AND
TRANSPORTATION TRADES DEPARTMENT, AFL-CIO,
APPELLANTS
v.
ELAINE L. CHAO,
UNITED STATES SECRETARY OF LABOR AND
MARION C. BLAKEY, ADMINISTRATOR, FEDERAL AVIATION
ADMINISTRATION,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01850)
Edward J. Gilmartin argued the cause for appellants. With
him on the briefs was Larry I. Willis.
Lewis S. Yelin, Attorney, U.S. Department of Justice, argued
the cause for appellees. With him on the brief were Peter D.
Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S.
Attorney, and Thomas M. Bondy, Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
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Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Two labor organizations appeal
from a district court judgment dismissing their complaint
seeking to compel increased government regulation of airline
flight attendants’ working conditions. Because the unions came
to federal court without first exhausting their administrative
remedies, we affirm the district court’s dismissal of their
complaint.
I. Background
The Occupational Safety and Health Act of 1970 (“OSH
Act”) authorizes the Secretary of Labor, through the
Occupational Safety and Health Administration (“OSHA”), to
establish workplace health and safety standards applicable to
businesses in interstate commerce. 29 U.S.C. § 651 et seq. The
OSH Act provides, however, that “[n]othing in [the Act] shall
apply to working conditions of employees with respect to which
other Federal agencies . . . exercise statutory authority to
prescribe or enforce standards or regulations affecting
occupational safety or health.” Id. § 653(b)(1). The Federal
Aviation Administration (“FAA”) has broad authority to
regulate civil aviation, see 49 U.S.C. § 44701, and in 1975 it
asserted “complete and exclusive responsibility” for the
regulation of occupational health and safety aboard civil aircraft.
Occupational Safety or Health Standards for Aircraft
Crewmembers, 40 Fed. Reg. 29,114 (July 10, 1975). The FAA’s
preemption of OSHA’s regulatory authority extends “from the
time [an aircraft] is first boarded by a crewmember, preparatory
to a flight, to the time the last crewmember leaves the aircraft
after completion of that flight . . . even if the engines are shut
down.” Id.
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In 1990 the Association of Flight Attendants - CWA, AFL-
CIO filed a petition for rulemaking, requesting that the FAA
apply selected OSHA standards to airline industry
crewmembers. The FAA denied the petition in 1997. The union
did not seek judicial review of that decision. See 49 U.S.C.
§ 46110 (providing judicial review of FAA orders in the federal
courts of appeals).
In 2000, OSHA and the FAA announced a joint effort to
address aviation crewmember health issues and to assess
whether OSHA standards could be applied to aircraft without
compromising aviation safety. In its first report, the joint FAA-
OSHA team raised a number of concerns with this jurisdiction-
sharing approach. The team advised against the FAA ceding its
regulatory authority to OSHA, and in 2003 the FAA launched a
voluntary industry program to gather injury and illness data and
to recommend appropriate FAA rules. Aviation Safety and
Health Partnership Program, 68 Fed. Reg. 10,145 (Mar. 4,
2003).
In 2005, still dissatisfied with the FAA’s approach to
aircraft health and safety regulation, the Association of Flight
Attendants and the Transportation Trades Department - AFL-
CIO (together, “the unions”) filed suit in federal district court
against the FAA and OSHA. In short, the unions sued to force
the government to increase its regulation of aircraft working
conditions. The unions alleged that the FAA has “affirmatively
declined” to exercise the regulatory authority it asserted in 1975,
with the result that flight attendants face an unacceptably high
risk of on-the-job injury. As against the FAA, the unions
sought, under 28 U.S.C. § 2201, a declaratory judgment that the
FAA “has failed to exercise its asserted authority to regulate and
protect the occupational health and safety of crewmembers . . .
working aboard civil aircraft in operation” and that the FAA
therefore forfeited its jurisdiction over crewmember working
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conditions. As against OSHA, the unions sought a writ of
mandamus, under 28 U.S.C. § 1361, ordering the Secretary of
Labor to step into the void left by the FAA’s inaction and to
“perform her statutory duty under the OSH Act” by setting and
enforcing OSHA standards respecting crewmember health and
safety.
The government moved to dismiss the complaint, arguing
that the district court lacked subject matter jurisdiction and that
the unions failed to state a claim. The government also disputed
the unions’ claim that the FAA had refused to exercise its
regulatory authority, pointing to a number of FAA regulations
regarding aircraft working conditions. The district court granted
the motion to dismiss, holding that the unions’ claims were not
ripe for judicial review because the unions had not availed
themselves of the administrative procedures by which interested
parties may petition the agencies for a rulemaking. Association
of Flight Attendants - CWA, AFL-CIO v. Chao, No. 05-1850,
2006 WL 1442464 (D.D.C. May 22, 2006). The unions appeal.
Because the unions have not exhausted their administrative
remedies, we affirm.
II. Analysis
“[N]o one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy has
been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303
U.S. 41, 50-51 (1938). Broadly speaking, the doctrine of
exhaustion of administrative remedies “serves the twin purposes
of protecting administrative agency authority and promoting
judicial efficiency.” McCarthy v. Madigan, 503 U.S. 140, 145
(1992). The exhaustion requirement ensures that agencies – and
not the federal courts – take primary responsibility for
implementing the regulatory programs assigned by Congress.
Id.; see also McKart v. United States, 395 U.S. 185, 193-95
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(1969).
In this case, both OSHA and the FAA have broad authority
and discretion, granted by Congress, to gather facts and apply
their expertise to establish standards and regulations in their
respective domains. 29 U.S.C. § 651; National Cong. of
Hispanic Am. Citizens v. Usery, 554 F.2d 1196, 1199-1200
(D.C. Cir. 1977) (OSHA); 49 U.S.C. § 44701; Jifry v. FAA, 370
F.3d 1174, 1176 (D.C. Cir. 2004) (FAA). And both OSHA and
the FAA permit interested parties to participate in the regulatory
process by petitioning for new standards or regulations. 29
C.F.R. § 1911.3 (OSHA); 14 C.F.R. § 11.61 (FAA). Save for a
petition for FAA rulemaking denied ten years ago and informal
efforts to persuade the FAA to their point of view, the unions
did not pursue – much less exhaust – any administrative
remedies before bringing this case in federal court. Because the
unions may petition the agencies directly for the relief they seek
in this lawsuit, they have not exhausted their administrative
remedies.
Typically, exhaustion ensures that imminent or ongoing
administrative proceedings are seen through to completion. But
the exhaustion rule does not contain an escape hatch for litigants
who steer clear of established agency procedures altogether. To
the contrary, exhaustion is especially important where allowing
the litigants to proceed in federal court would deprive the
agency of any opportunity to exercise its discretion or apply its
expertise. See McCarthy, 503 U.S. at 145 (“exhaustion
principles apply with special force when ‘frequent and deliberate
flouting of administrative processes’ could weaken an agency’s
effectiveness by encouraging disregard of its procedures”
(quoting McKart, 395 U.S. at 195)).
Courts have discretion to excuse the requirement where the
litigant’s interest in an immediate judicial forum clearly
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outweighs the institutional interests underlying the exhaustion
requirement. McCarthy, 503 U.S. at 146. See Avocados Plus
Inc. v. Veneman, 370 F.3d 1243, 1247-48 (D.C. Cir. 2004)
(distinguishing discretionary “non-jurisdictional exhaustion”
from “jurisdictional exhaustion” expressly mandated by
Congress). For example, exhaustion may be excused if delaying
judicial review would cause irreparable injury, if the agency is
not competent to address the issue or to grant effective relief, or
if further pursuit of an administrative remedy would be futile.
See McCarthy, 503 U.S. at 146-49; see also Boivin v. U.S.
Airways, Inc., 446 F.3d 148, 157-58 (D.C. Cir. 2006); Avocados
Plus, 370 F.3d at 1247.
No exception applies in this case. To begin with, having
largely disregarded agency procedures the unions are in no
position to complain of agency delay. It is also clear that the
agencies are competent to address the unions’ concerns: the
unions seek regulation that only the agencies can provide. As
for futility, the unions contend that the FAA has for more than
30 years “refused” to regulate aircraft working conditions,
implying that administrative procedures would be pointless. We
will excuse exhaustion on grounds of futility “only when resort
to administrative remedies is ‘clearly useless.’” Boivin, 446
F.3d at 157 (citations omitted). “[E]ven where a controversy
survives administrative review, exhaustion of the administrative
procedure may produce a useful record for subsequent judicial
consideration, especially in a complex or technical factual
context.” McCarthy, 503 U.S. at 145. See also McKart, 395
U.S. at 194.
The unions contend their case is not about rulemaking but
rather “the legality of the FAA’s asserted jurisdiction” over
flight attendants’ workplace health and safety. This
characterization of the unions’ claim does not affect our
analysis. The unions recognize that the FAA asserted its
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jurisdiction in 1975; their argument is that in the intervening
decades the FAA has unlawfully failed to exercise that
jurisdiction. As discussed above, the FAA’s discretion to issue
regulations is left in the first instance to the FAA, not the federal
courts, and the unions must first challenge the FAA’s exercise
of that discretion before the agency.
We also reject the unions’ request for mandamus relief
against OSHA. Mandamus is an extraordinary remedy; a
plaintiff who shows a clear right to relief that the defendant has
a clear duty to provide must also show that there is no other
adequate remedy available. Even then, relief is in the discretion
of the court. 28 U.S.C. § 1361; In re Medicare Reimbursement
Litigation, 414 F.3d 7, 10 (D.C. Cir. 2005). In this case, the
unions ask the court to exercise its discretion without first asking
the agencies to exercise theirs. Where the law provides a
discretionary remedy before an agency, permitting a plaintiff to
first obtain a discretionary judicial remedy would undermine
agency autonomy and unnecessarily burden the federal courts.
In any event, the unions cannot meet the strict requirements for
mandamus relief. Because the unions have not exhausted their
administrative remedies, they cannot show that they are clearly
entitled to relief or that they have no other adequate remedy.
* * *
Exhaustion, ripeness, and the requirement of final agency
action are related and often overlapping doctrines that limit
challenges to agency action in federal court. See 2 RICHARD J.
PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 15.1 (4th ed.
2002). In this case, the district court held that the unions’ claims
were not ripe for judicial review, relying on the same concerns
we have discussed under the rubric of exhaustion. On the facts
of this case, we think exhaustion is the more appropriate
approach. Lack of ripeness suggests that the unions’ claims are
merely premature. In contrast, dismissal for failure to exhaust
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administrative remedies emphasizes the appropriate forum for
the unions’ request for relief. Here, it is the unions’ resort to
federal court that is premature. In addition, in holding that the
unions’ resort to federal court is premature on the ground of
failure to exhaust, we need not separately discuss whether the
FAA’s action – or inaction – is judicially reviewable final
agency action or falls within an exception to the finality
requirement.
Because the unions did not exhaust their administrative
remedies, the judgment of the district court dismissing the
complaint is affirmed.
So ordered.