Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, Afl-Cio v. Federal Service Impasses Panel ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
ASSOCIATION OF )
ADMINISTRATIVE )
LAW JUDGES, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-1026 (ABJ)
)
FEDERAL SERVICE )
IMPASSES PANEL, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
In this lawsuit, plaintiff, the Association of Administrative Law Judges, challenges the
constitutional legitimacy of the Federal Service Impasses Panel. See Complaint [Dkt. # 1]
(“Compl.”) ¶¶ 41–44. Defendants, the Federal Service Impasses Panel and its Chairman, Mark
Carter, and intervenor-defendant, the Social Security Administration, have moved to dismiss the
complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). Defs.’ Mot. to Dismiss [Dkt. # 22] (“Defs.’ Mot.”). Defendants argue that the judicial
review procedures set out in the statute concerning labor relations with the government bar any
review of plaintiff’s claims by the district court. Id. at 6. Because the application of binding D.C.
Circuit precedent requires the Court to agree that it lacks subject matter jurisdiction over this
dispute, it will grant the motion to dismiss.
BACKGROUND
I. Statutory Framework
The Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101–35 (“the
statute” or “FSLMRS”), enacted under Title VII of the Civil Service Reform Act of 1978, governs
labor relations between federal government agencies and their employees. See Am. Fed’n of Gov’t
Emps., AFL-CIO v. Trump, 929 F.3d 748, 752 (D.C. Cir. 2019) (“AFGE”), citing Bureau of
Alcohol, Tobacco & Firearms v. Fed. Labor Relations Auth., 464 U.S. 89, 91 (1983). The statute
ensures the “right of employees to organize, bargain collectively, and participate [in] labor
organizations of their own choosing.” 5 U.S.C. § 7101(a)(1). To that end, the statute called for
the creation of several entities and positions, including the Federal Labor Relations Authority, its
General Counsel, and the Federal Service Impasses Panel. Id. §§ 7104, 7119.
The Federal Labor Relations Authority (“Authority” or “FLRA”) is comprised of three
members who provide “leadership . . . and guidance relating to matters” under the statute. 5 U.S.C.
§ 7105(a). They are appointed by the President, with the advice and consent of the Senate, for a
term of five years. 1 Id. § 7104(b), (c), (f)(1). Among other duties, the Authority is assigned to
resolve “issues relating to the duty to bargain in good faith,” “conduct hearings and resolve
complaints of unfair labor practices,” and “take such other actions as are necessary and appropriate
to effectively administer the provisions of [the statute].” Id. § 7105(a)(2). The Authority is
assisted in its duties by the General Counsel. See id. § 7004. Among his duties, the General
Counsel is called upon to “investigate alleged unfair labor practices,” “file and prosecute
complaints,” and exercise “other powers” prescribed by the Authority. Id. § 7104(f)(2).
1 Members of the Authority may only be removed “upon notice and hearing and only for
inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 7104(b).
2
The Federal Service Impasses Panel (“Panel”), an entity within the Authority, includes a
Chairman and at least six other members, who are appointed by the President. 2 5 U.S.C.
§ 7119(c)(2). The Panel is intended “to provide assistance in resolving negotiation impasses
between agencies and exclusive representatives.” Id. § 7119(c)(1). Upon the presentation of an
impasse, the Panel shall “recommend . . . procedures for the resolution of the impasse” or “assist
. . . through whatever methods and procedures” in resolving the impasse. Id. § 7119(c)(5)(A). If
the parties do not arrive at a settlement after the Panel provides assistance, the Panel may take
action to resolve the impasse, including holding hearings, taking testimony under oath, and
imposing contract terms on the parties. See id. § 7119(c)(5)(B); Nat’l Fed’n of Fed. Emps. v.
FLRA, 789 F.2d 944, 945 (D.C. Cir. 1986). The statute provides that unless the parties agree
otherwise, the Panel’s final decision is binding. 5 U.S.C. § 7119(c)(5)(C).
The D.C. Circuit has explained that, therefore, a Panel decision is ordinarily “final and
nonreviewable.” Council of Prison Locals v. Brewer, 735 F.2d 1497, 1499 (D.C. Cir. 1984). But
a Panel decision may be reviewed by the Authority if there is an allegation of an unfair labor
practice. 3 See 5 U.S.C. § 7118(a)(7). If an unfair labor practice is alleged, the Authority, assisted
by the General Counsel, may issue an order reviewing a Panel decision in the context of an unfair
labor practice proceeding. Id. Once the Authority has issued an order resolving that proceeding,
2 The Chairman and members are to be appointed by the President “solely on the basis of
fitness to perform the duties and functions involved, from among individuals who are familiar with
Government operations and knowledgeable in labor-management relations.” 5 U.S.C.
§ 7119(c)(2).
3 Failure or refusal to cooperate with the Panel or refusal to comply with its decisions may
constitute an unfair labor practice. Id. § 7116(a)(6), (8), (b)(6), (8).
3
the parties may seek review directly with the federal courts of appeals. See id. § 7123(a); Brewer,
735 F.2d at 1500. 4
II. Factual Background
Plaintiff, the Association of Administrative Law Judges (“AALJ”), is the “national federal-
sector labor union serving as the exclusive bargaining unit for approximately 1,200 federal
administrative law judges who work at the Social Security Administration [(“SSA”)] throughout
the United States.” Compl. ¶ 28. Over the course of several months in 2019, the AALJ and the
SSA negotiated the terms of a successor collective bargaining agreement. Id. ¶ 30. The parties
agreed on numerous articles in the contract, but were unable to reach agreement on nine of them.
Id. During the negotiations, the parties sought the assistance of the Federal Mediation and
Conciliation Service, which then certified that the parties were at impasse on the remaining nine
articles. Id.; Defs.’ Mot. at 9.
In October 2019, the SSA requested that the Panel assert jurisdiction over the dispute.
Compl. ¶ 31. Plaintiff objected to the Panel’s jurisdiction, claiming that the Panel lacked authority
to issue a decision because the members’ appointment violated the Appointments Clause of the
Constitution. Id.; see U.S. Const. art. II, § 2, cl. 2. Specifically, plaintiff complained that the
Panel’s members had been appointed without the required advice and consent of the Senate.
Compl. at 1.
On January 9, 2020, the Panel notified the parties via email that it would assert jurisdiction
over the impasse. Compl. ¶ 32. On January 10, 2020, plaintiff filed a motion with the Authority
4 Alternatively, a party may submit an unfair labor practice complaint to an arbitrator. Id.
§ 7121 (a). The arbitrator’s decision is then subject to review by the Authority, and a determination
by the Authority is then reviewable by the appropriate court of appeals. Id. § 7122(a).
4
to stay the proceedings before the Panel, pending resolution of its jurisdictional objections. Id.
¶ 33. Despite plaintiff’s objections, on January 24, 2020, the Panel issued a letter to both parties
officially asserting jurisdiction over eight of the nine issues at impasse and ordering the parties to
attempt to resolve the ninth. Id. ¶ 34; Defs.’ Mot. at 9. None of the Panel’s communications
addressed AALJ’s jurisdictional objections. Compl. ¶ 34.
On January 30, 2020, the AALJ filed suit in the Fourth Circuit Court of Appeals asking the
court to review the Panel’s assertion of jurisdiction, and to stay the Panel’s proceedings until the
jurisdictional issue was resolved. See Defs.’ Mot. at 9–10. The circuit court dismissed the petition
and denied the request for a stay. See id.
On March 31, 2020, the Authority also denied the AALJ’s request for a stay, concluding
that because Panel orders are “not directly reviewable” by the Authority, a stay was not
appropriate. Compl. ¶ 35; see 71 F.L.R.A. No. 123 (March 31, 2020). On April 15, 2020, the
Panel issued its final decision on the impasse. Compl. ¶ 36. It rejected all of the plaintiff’s
jurisdictional objections and adopted the SSA’s proposals “on the majority of the key disputed
terms.” Id. ¶¶ 38–37.
III. Procedural Background
On April 20, 2020, five days after the Panel ruled on the impasse, the AALJ filed a
complaint in this Court asserting jurisdictional and constitutional challenges to the Panel’s
authority. See Compl. at 1. On April 24, 2020, plaintiff filed a motion for a preliminary injunction,
Mot. for Prelim. Inj. [Dkt. # 5] (Corrected) [Dkt. # 8], which the Court consolidated with the merits
pursuant to Federal Rule of Civil Procedure 65(a)(2). See Minute Order (Apr. 28, 2020).
On May 4, 2020, the Social Security Administration filed an unopposed motion to
intervene as a defendant [Dkt. # 18], which was granted. Minute Order (May 5, 2020).
5
On May 6, 2020, defendants filed a motion to dismiss for lack of subject matter jurisdiction.
See Defs.’ Mot. at 1. Plaintiff opposed the motion, Pl.’s Opp. to Mot. to Dismiss [Dkt. # 25] (“Pl.’s
Opp.”), defendants replied, Defs.’ Reply to Pl.’s Opp. [Dkt. # 30], and this motion is ripe for
decision. 5
STANDARD OF REVIEW
In evaluating a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6), the Court
must “treat the complaint’s factual allegations as true and must grant plaintiff ‘the benefit of all
inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation omitted), quoting Schuler v. United States, 617
F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.
Cir. 2011), quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005) (applying principle to
a Rule 12(b)(1) motion). Nevertheless, the Court need not accept inferences drawn by the plaintiff
if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept
plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)
(rule 12(b)(6) case); Food and Water Watch, Inc. v. Vilsack , 808 F.3d 905, 913 (D.C. Cir. 2015)
(rule 12(b)(1) case).
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan
v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited
5 The Court deemed the motion for preliminary injunction to be plaintiff’s motion for
summary judgment, Minute Order (Apr. 28, 2020), which the parties also briefed. See Defs.’ Opp.
and Cross-Mot. for Summ. J. [Dkt. ## 23 and 24]; Intervenor-Def.’s Mot. for Summ. J. [Dkt. # 26];
Pl.’s Reply and Cross-Opp. to Def.’s Mot. for Summ. J. [Dkt. # 31]; Def.’s and Intervenor-Def.’s
Reply [Dkt. # 32].
6
jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA,
363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with
an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as
well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction
upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003),
quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a
motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”
Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64(1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate
to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of
Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Scis.,
974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005).
ANALYSIS
The Federal Service Labor-Management Relations Statute makes Panel decisions “binding
on [the] parties . . . unless [they] agree otherwise.” 5 U.S.C. § 7119(c)(5)(C). Although the statute
provides for judicial review of decisions by the Authority, id. § 7123, there is no provision for
judicial review of Panel decisions. See id.; Antilles Consol. Educ. Ass’n v. FLRA, 977 F.3d 10, 14
(D.C. Cir. 2020) (holding that Panel orders “are not directly reviewable in court”). Further, the
statute “forecloses the assumption of general federal question or mandamus jurisdiction” for the
purpose of reviewing Panel decisions. Brewer, 735 F.2d at 1499. A dissatisfied party may “obtain
7
judicial review by violating a Panel order and then seeking review of any ensuing [Authority] order
finding an unfair labor practice.” Antilles Consol. Educ. Ass’n, 977 F.3d at 14, citing 5 U.S.C. §
7123(a); Brewer, 735 F.2d at 1500.
Defendant asserts that given these provisions, a district court does not have jurisdiction
over this case. It moves to dismiss for lack of subject matter jurisdiction because in its view, the
complaint seeks review of a Panel decision, albeit indirectly, outside of the exclusive statutory
scheme. Defs.’ Mot. at 1–2. Plaintiff submits that the statute’s provisions do not apply because it
is not seeking review of a specific Panel decision; rather, it is contesting the Panel’s overall
authority under the Constitution, raising “a single Appointments Clause challenge and seek[ing]
no judicial review of any Panel order.” Pl.’s Opp. at 2. It argues that the Court has jurisdiction
under National Air Traffic Controllers Ass’n v. Federal Service Impasses Panel (“NATCA II”), in
which the D.C. Circuit held that district courts have jurisdiction over claims challenging the
Panel’s authority, so long as they do “not entail reviewing a decision of the Panel.” 606 F.3d 780,
787 (D.C. Cir. 2010); Pl.’s Opp. at 3.
Defendants insist that plaintiff is required to present its claim to the agency first and then
appeal the agency’s decision to the Circuit, notwithstanding the nature of the claim. They point to
case law that suggests this principle applies even if what plaintiff is trying to do is challenge the
agency’s constitutional authority to render the decision in the first place – as opposed to the merits
of the decision – and even if the agency tribunal would demur on the grounds that it lacked
authority to rule on that issue, because plaintiff could then bring the matter to the Circuit. See
Defs.’ Mot. at 16, citing AFGE v. Trump, 929 F. 3d 748, 758 (D.C. Cir. 2019).
When a statute specifically provides for administrative and judicial review “it is ordinarily
supposed that Congress intended that procedure to be the exclusive means of obtaining judicial
8
review.” City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979). To determine whether a
statutory scheme is the exclusive means of obtaining judicial review, courts consider whether
(i) congressional intent is “fairly discernible in the statutory scheme,” and (ii) the claims are “of
the type Congress intended to be reviewed within [the] statutory structure.” Thunder Basin Coal
Co. v. Reich, 510 U.S. 200, 207, 212 (1994).
Here, plaintiff does not dispute the obvious congressional intent to provide for exclusivity.
The statute “provides the exclusive procedures by which federal employees and their bargaining
representatives may assert federal labor-management relations claims.” Am. Fed’n Gov’t Emps.
v. Sec’y of the Air Force, 716 F.3d 633, 636 (D.C. Cir. 2013) (“Air Force”); see 5 U.S.C.
§§ 7116–19, 7121–22. Thus, the first element of the Thunder Basin inquiry is satisfied.
The parties dispute how to apply the second principle identified in Thunder Basin: whether
plaintiff’s claims are “of the type Congress intended to be reviewed within [the] statutory
structure.” 510 U.S. at 207, 212; see also AFGE, 929 F.3d at 755; Jarkesy v. SEC, 803 F.3d 9, 15
(D.C. Cir. 2015). A statute does not preclude judicial review if “(1) a finding of preclusion might
foreclose all meaningful judicial review; (2) the claim[s] [are] wholly collateral to the statutory
review provisions; and (3) the claims are beyond the expertise of the agency.” AFGE, 929 F.2d
at 755, citing Arch Coal, Inc. v. Acosta, 888 F.3d 493, 500 (D.C. Cir. 2018). These factors are not
“three distinct inputs [of] a strict mathematical formula,” but they serve as “general guideposts
useful for channeling the inquiry.” Jarkesy, 803 F.3d at 17.
While the Court might have been inclined to conclude that the fundamental constitutional
claim at issue here was not what Congress had in mind when it established review procedures for
the resolution of individual labor disputes, there is Circuit authority that governs that determination
9
and compels a finding that plaintiff’s claims are “of the type Congress intended to be reviewed”
within the statutory structure for purposes of the Thunder Basin analysis. 510 U.S. at 212.
AFGE v. Trump was a case brought by a federal employee union in 2019 challenging three
executive orders affecting federal collective bargaining negotiations. 929 F.3d at 753. The district
court held that it had subject matter jurisdiction over the matter, rejecting the argument that
jurisdiction belonged exclusively to the Authority and then the Court of Appeals. Id. at 754. It
then decided the case on the merits, holding that nine provisions of the challenged executive orders
violated the statute, enjoining the executive branch from implementing them. Id. On appeal, the
D.C. Circuit reversed. Id. at 761.
Analyzing each of the Arch Coal factors, the D.C. Circuit first held that “meaningful
judicial review” was available “even though AFGE and its local unions could not obtain immediate
review of their ‘pre-implementation’ claims” before the Authority or obtain their preferred form
of relief. Id. at 756, citing Air Force, 716 F.3d 637–38 (explaining that an aggrieved union may
raise a claim with the Authority as a negotiability dispute under 5 U.S.C. § 7117(c), a grievance
proceeding under 5 U.S.C. § 7121, or a unfair labor practice claim under 5 U.S.C. §§ 7116(a),
7118(c), which can then be appealed to the appropriate circuit court). Accordingly, the Court
found the unions could obtain judicial review “by litigating their claims through the statutory
scheme in the context of concrete bargaining disputes.” Id. at 757. The Court went on:
[W]e need not map the precise contours of the FLRA’s authority to
adjudicate the claims in this case. For even if the FLRA could not address
the claims, circuit courts could do so on appeal from the FLRA. The
statutory scheme provides that the courts of appeals “shall have jurisdiction
of the [FLRA] proceeding and of the question determined therein” and “may
make and enter a decree affirming and enforcing, modifying and enforcing
as so modified, or setting aside in whole or in part the order of the [FLRA].”
5 U.S.C. § 7123(a), (c). Also, the courts of appeals generally may not
10
consider objections that were not at least “urged” before the FLRA. Id.§ 7123(c).
Id. at 758. The Court specifically noted that it is not unusual for an appellate court reviewing an
agency decision to consider a constitutional challenge to a federal statute that the agency found it
lacked authority to decide. Id., citing Elgin v. Dep’t of Treasury, 567 U.S. 1, 18 n.8 (2012); see
also Jarkesy, 803 F.3d at 19 (holding that because plaintiff’s constitutional claims can eventually
reach an Article III Court, “it is of no dispositive significance whether the [agency] has the
authority to rule on them in the first instance during the agency proceedings”).
The AFGE opinion also makes it clear that a union must start at the administrative level
even if it is seeking a form of review or relief that is unavailable under the statute. AFGE, 929 F.3d
at 756–57, citing Air Force, 716 F.3d at 639 (district court lacked jurisdiction even though the
union sought to challenge a particular regulation on a “nationwide” basis under the APA rather
than “on a concrete ‘local-by-local’ basis” through the Authority). The Circuit emphasized that in
the Air Force case, “[t]he statutory scheme provided no way to assert such a ‘nationwide’ attack,
but that did not mean [the plaintiff] could resort to the courts.” Id., citing Air Force, 716 F.3d
at 638.
As for the second consideration, the Court found that “for many of the same reasons,” the
plaintiffs’ claims were not “wholly collateral” to the statutory scheme. AFGE, 929 F.3d at 759.
While the second Arch Coal factor seems to ask a different question, the Circuit observed that the
factor is “related” to whether “meaningful judicial review” is available; according to the AFGE
opinion, the two are sometimes analyzed together, and this consideration is examined by asking
whether a plaintiff seeks the same relief it could seek in the agency proceeding. Id. at 759–60,
citing Jarkesy, 803 F.3d at 22–23 and Elgin, 567 U.S. at 22. After that discussion, the Court
11
concluded that the claims about the challenged executive orders were not “wholly collateral”
because they were the type of claim “regularly adjudicated” in the statutory scheme. Id. at 760.
Finally, it found that the claims fell within the expertise of the agency because “[m]any of
the claims” allege that the executive orders directed agencies to refuse to bargain over mandatory
subjects or take actions inconsistent with the duty to bargain in good faith, in violation of the
statute. Id. The Court held these were the type of matters the Authority determined in the
“ordinary course of business.” Id., citing Jarkesy, 803 F.3d at 28.
Applying the precedent set by the Court of Appeals in AFGE, the Court concludes that
plaintiff’s claims fall within the statutory scheme and that it lacks subject matter jurisdiction.
Another court in this district has recently come to the same conclusion. See Nat’l Veterans Affairs
Council v. Fed. Svc. Impasses Panel, 1:20-cv-00837-CJN (D.D.C. Feb. 10, 2021).
I. Meaningful judicial review is not foreclosed.
Plaintiff asserts that the Court has jurisdiction because the FSLMRS prevents parties from
“meaningfully pursuing their constitutional claims.” Pl.’s Opp. at 8, citing Free Enterprise,
561 U.S. at 490. This contention echoes the union’s position in AFGE, where the employees’
organization argued that because constitutional “systemwide” or “nationwide” challenges could
not be brought and resolved through administrative review on a case-by-case basis, the statute did
not provide for meaningful judicial review. See 929 F. 3d at 755–57. But the statute does provide
for review of Panel decisions through the unfair labor practice procedures, and that process
eventually leads to the Court of Appeals. See 5 U.S.C. § 7123(a). This means, according to the
decision in AFGE, that meaningful judicial review is available, even if the statute makes it
“impossible to obtain particular forms of review or relief.” AFGE, 929 F.3d at 756–57 (emphasis
omitted); see id. at 754 (unions “must pursue their claims through the scheme established by the
12
statute, which provides for administrative review by the [Authority] followed by judicial review
in the courts of appeals”).
Under the terms of the statute, plaintiff may obtain judicial review of its constitutional
claim by violating the Panel’s order, then seeking review of the Authority’s ensuing order finding
that it had engaged in an unfair labor practice. Antilles Consol. Educ. Ass’n, 977 F.3d at 14.
Plaintiff argues that being relegated to this procedure forecloses meaningful judicial review
because it “forc[es] a person to ‘incur a sanction,’” and “potentially risk ‘severe punishment.’”
Pl.’s Opp. at 8 (emphasis omitted), quoting Free Enterprise, 561 U.S. at 490–91. In Free
Enterprise, though, the plaintiff would have had to risk being convicted of a federal crime
punishable by up to twenty years of imprisonment or a $25 million fine before he could seek
judicial review, 561 U.S. at 485–86, so the situations are not analogous. The Court agrees that the
unfair labor practice procedure is time consuming and ill-suited to resolving the discrete
constitutional claim raised, but jumping through those hoops will not place plaintiff in jeopardy of
punitive sanctions. See F.E. Warren Air Force Base Cheyenne, WY, 52 F.L.R.A. 149, 160-61
(1996) (stating that remedies for unfair labor practices must be non-punitive, and that “traditional”
remedies include “a cease-and-desist order accompanied by the posting of a notice to employees”).
Plaintiff also argues that the procedure cannot be found to offer meaningful review because
if it were to defy the Panel in order to trigger an unfair labor practice allegation, it would be the
agency’s General Counsel who would have to decide to bring a complaint, and the General Counsel
might, in his discretion, decline to do so. Pl.’s Opp. at 8. But this argument is speculative, and
the statute provides an alternative avenue for plaintiff to obtain review in any event. It may submit
an unfair labor practice action to an arbitrator, whose decision is reviewable by the Authority, and
then by a court of appeals. See 5 U.S.C. §§ 7122(a), 7123(a). Accordingly, while judicial review
13
may be delayed, it is not foreclosed. See Nat’l Veterans Affairs Council, 1:20-cv-00837-CJN; Air
Force, 716 F.3d at 638 (“[I]t is the comprehensiveness of the statutory scheme involved, not the
adequacy of specific remedies thereunder, that counsels judicial abstention.”). 6 Thus, meaningful
judicial review of the claim is not foreclosed. AFGE, 929 F.3d at 755; see also id. at 756–57 (a
broad constitutional attack on the Panel may not be used to “circumvent the scheme established
by the Statute”).
II. Plaintiff’s claims are not wholly collateral.
The AFGE decision also requires the Court to find that plaintiff’s claims are not “wholly
collateral” to the statutory scheme. AFGE, 929 F.3d at 755. Courts consider whether claims are
“wholly collateral” by determining whether a party’s claims are “aimed to obtain the same relief
[it] could seek in the agency proceeding.” Jarkesy, 803 F.3d at 23, citing Elgin, 567 U.S. at 22;
see also NATCA II, 603 F.3d at 787. Specifically, courts consider whether a complaint
“identifies,” or a court’s decision would “reverse,” a specific decision of the Panel. See NATCA II,
603 F.3d at 787. If the complaint identifies, and the Court’s decision would impact, a specific
Panel decision, the claims are not wholly collateral, and “[t]here can be no doubt . . . [this] [C]ourt
lacks jurisdiction.” Id. If the complaint “identifies no specific decision of the [Panel],” the
challenge may be subject to review in a district court. Id.
Plaintiff relies on NATCA II, a case that preceded AFGE, for the proposition that claims
not seeking review of a Panel decision are wholly collateral and subject to a district court’s
jurisdiction. Pl.’s Opp. at 3, citing 606 F.3d at 787 (“In [NATCA II], the D.C. Circuit held that
6 Plaintiff also argues that the General Counsel position is currently unfilled, Pl.’s Opp. at 8,
but that is a temporary circumstance and not a statutory impediment to review.
14
district courts may properly exercise jurisdiction over actions against the Impasses Panel, like this
one, that do ‘not entail reviewing a decision of the Panel.’”). However, NATCA II is
distinguishable from this case for two reasons. First, and importantly, NATCA II, involved a
challenge to “ongoing policy” of the Panel, and the specific impasse in question “was resolved”
prior to seeking review in the district court. 606 F.3d at 786, n.*. Second, the case did not involve
any challenge, either directly or indirectly, to a specific Panel decision. See id. at 787. In fact, in
NATCA II, there was no specific Panel decision referenced in the complaint. Compare id. at 786,
with Compl. ¶¶ 36–40 (referencing the April 15, 2020 Panel decision affecting plaintiff, including
specific details of the decision that are unfavorable to plaintiff).
Here, plaintiff asserts that its challenge involves a “lone constitutional claim” alleging
Panel members were appointed in violation of the Appointments Clause. Pl.’s Opp. at 3. But the
plaintiff devotes a significant portion of the complaint to discussing a specific, and unfavorable,
Panel decision – the April 15, 2020 decision. 7 See Compl. ¶¶ 36–40. Furthermore, the complaint
asks the Court to declare Panel decisions “null and void” and to “[e]njoin the Panel . . . from
issuing, giving effect to, or otherwise enforcing a Panel decision.” Id. at 11. 8
7 Notably, this suit was filed five days after the Panel’s decision. Compl. at 1.
8 For the same reasons, plaintiff’s attempt to distinguish Brewer, 735 F.2d at 1498, and
Nat’l Air Traffic Controllers Ass’n v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1262–63 (D.C.
Cir. 2006) (“NATCA I”), fail. Those cases held that Congress precluded direct judicial review of
Panel decisions, and plaintiff attempts to distinguish them on the grounds that they involved
appeals of specific Panel decisions, while this one does not. See Pl.’s Opp. at 5–6. But plaintiff
ultimately seeks the invalidation of the Panel’s April 15, 2020 decision. See Compl. ¶¶ 36–40; id.
at 11; Mot. for Prelim. Inj. (Corrected) [Dkt. # 8] at 1 (stating that plaintiff “urgently seeks an
injunction to prevent implementation of extreme, draconian restrictions imposed on the
Association on April 15 by the Federal Service Impasses Panel”).
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Given the relief the union is seeking, plaintiff’s challenge can be fairly characterized as a
“vehicle by which” plaintiff seeks invalidation of a Panel decision, rather than a “lone
constitutional claim.” Jarkesy, 803 F.3d at 23. If the Court were to grant the relief plaintiff
requests, it would reverse and invalidate the April 15, 2020 Panel decision in circumvention of the
statutory scheme. This means that under circuit precedent, the claims are not wholly collateral to
the statutory review scheme for purposes of the second prong of Thunder Basin. Id., citing Elgin,
567 U.S. at 22; see also 5 U.S.C. §§ 7118, 7123(a); NATCA II, F.3d at 787. 9
III. Agency expertise
Finally, plaintiff asserts that its claims are “beyond the expertise” of the Authority. Pl.’s
Mot. at 12, n.4, cross-referencing Pl.’s Mot. for Prelim. Inj. (Corrected) [Dkt. # 8] at 27-31, citing
Arch Coal, 888 F.3d at 500. And there is no question that it is federal district courts, and not the
Authority, that spend their days resolving constitutional claims. But the Authority’s expertise on
constitutional issues “is not determinative.” Jarkesy, 803 F.3d at 28–29, citing Elgin, 567 U.S. at22–23. “[S]o long as a court can eventually pass upon the [constitutional] challenge, limits on an
agency’s own ability to make definitive pronouncements . . . do not preclude requiring the
challenge to go through the administrative route.” Id. at 18, citing Elgin, 567 U.S. at 17–18. 10
9 The Court of Appeals noted in Jarkesy that “[t]he result might be different if a
constitutional challenge were filed in court before the initiation of any administrative proceeding
(and the plaintiff could establish standing to bring the judicial action).” 803 F.3d at 23, citing Free
Enterprise, 561 U.S. at 490, but that may provide little comfort given the rigors of the prerequisites
for Article III standing.
10 The Court notes that the Authority has some experience considering constitutional claims.
See, e.g., U.S. Dep’t of Def. Educ. Activity, Arlington, Va., 56 F.L.R.A. 119, 120, 122 (2000)
(determining that a Panel order “would violate the Appropriations Clause, the doctrine of
separation of powers and the doctrine of sovereign immunity contained in the United States
Constitution”).
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In sum, then, the Court must find that plaintiff’s claims are “of the type Congress intended
to be reviewed within [the] statutory structure.” Thunder Basin Coal Co., 510 U.S. at 207, 212;
see also AFGE, 929 F.3d at 755; Jarkesy, 803 F.3d at 15. They “fall within the exclusive statutory
scheme,” and plaintiff “may not bypass [the statute] by filing suit in [this Court].” AFGE, 929 F.3d
at 761. Accordingly, the Court does not have jurisdiction over this matter.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss for lack of subject matter
jurisdiction [Dkt. # 22] is GRANTED. Further, plaintiff’s motion for preliminary
injunction/summary judgment [Dkt. # 5], defendants’ cross-motion for summary judgment [Dkt.
# 23], and intervenor-defendant’s cross-motion for summary judgment [Dkt. # 26] are DENIED
as moot. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: May 19, 2021
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