US Capitol Police v. Ooc , 908 F.3d 748 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
UNITED STATES CAPITOL POLICE,
Petitioner
v.
OFFICE OF COMPLIANCE,
Respondent
UNITED STATES CAPITOL POLICE LABOR
COMMITTEE,
Intervenor
______________________
2017-2061
______________________
Petition for review of a decision of the Board of Direc-
tors of the Office of Compliance in No. 16-LM-02 (NG).
----------------------
UNITED STATES CAPITOL POLICE,
Respondent
v.
OFFICE OF COMPLIANCE,
Applicant
FRATERNAL ORDER OF POLICE, DISTRICT OF
COLUMBIA LODGE NO. 1, U.S. CAPITOL POLICE
2 US CAPITOL POLICE v. OOC
LABOR COMMITTEE,
Intervenor
______________________
2018-1504
______________________
Petition for enforcement of a decision of the Board of
Directors of the Office of Compliance in No. 16-LM-02
(NG).
______________________
Decided: November 6, 2018
______________________
FREDERICK M. HERRERA, Office of Employment Coun-
sel, United States Capitol Police, Washington, DC, argued
for petitioner in 17-2061 and respondent in 18-1504. Also
represented by RAFIQUE OMAR ANDERSON, KELLY MARISSA
SCINDIAN in 17-2061.
JOHN D. UELMEN, Office of the General Counsel,
United States Office of Compliance, Washington, DC,
argued for respondent in 17-2061 and applicant in 18-
1504. Also represented by JULIA AKINS CLARK, SIMONE
JENKINS.
MEGAN KATHLEEN MECHAK, Woodley & McGillivary
LLP, Washington, DC, argued for intervenors.
______________________
Before DYK, LINN, and TARANTO, Circuit Judges.
DYK, Circuit Judge.
These appeals involve a negotiability dispute between
the U.S. Capitol Police (“Police”) and the Fraternal Order
of Police, District of Columbia Lodge No. 1 (“Union”). The
dispute arose during negotiations for a collective bargain-
US CAPITOL POLICE v. OOC 3
ing agreement (“CBA”) to replace the parties’ current
CBA. The Police proposed draft language that changed
the existing agreement by excluding employee termina-
tions from the scope of the CBA’s grievance and arbitra-
tion procedures, and the Union proposed removing the
Police’s proposed language and adding language to ensure
that terminations would continue to be covered by the
grievance procedures. The Police refused to negotiate
over the Union’s proposals. The Office of Compliance
Board of Directors (“Compliance Board”) found the Un-
ion’s proposals negotiable and ordered the Police to bar-
gain with the Union.
The Police petitions for review of the Compliance
Board’s negotiability decision, and the Office of Compli-
ance petitions for enforcement of that decision. We dis-
miss the Police’s petition for lack of jurisdiction, but,
applying the Administrative Procedure Act (“APA”)
standard of review, 5 U.S.C. § 706, we grant the enforce-
ment petition because the Compliance Board’s decision is
not contrary to law or otherwise invalid.
BACKGROUND
I
The Congressional Accountability Act of 1995 (“CAA”)
conferred several rights and protections to employees of
the legislative branch. In this respect, the CAA was
modeled after and incorporated various labor and em-
ployment statutes of the executive branch, including
portions of the Federal Service Labor-Management Rela-
tions Statute (“FSLMRS”) of title 5, which governs labor-
management relations of executive branch employees.
See 2 U.S.C. §§ 1302(a), 1351.
Section 1351 of the CAA gives legislative branch em-
ployees the right “to engage in collective bargaining with
respect to conditions of employment through” their chosen
4 US CAPITOL POLICE v. OOC
representative and requires agencies to bargain in good
faith. 5 U.S.C. §§ 7102, 7117 (incorporated by 2 U.S.C.
§ 1351(a)(1)). The CAA does not define “conditions of
employment,” but provides that “[t]he [Compliance] Board
shall, pursuant to section 1384 of this title, issue regula-
tions to implement [§ 1351],” and “the regulations issued
. . . shall be the same as substantive regulations promul-
gated by the Federal Labor Relations Authority
[(“FLRA”)] to implement the statutory provisions referred
to in [§ 1351(a)],” with some exceptions. 2 U.S.C.
§ 1351(d).
The Compliance Board promulgated regulations (“Of-
fice of Compliance Regs.”) under § 1351(d). See 142 Cong.
Rec. 16983–17001 (1996) (publishing the Office of Com-
pliance Regs.); H.R. Res. 504, 104th Cong. (1996) (approv-
ing the Office of Compliance Regs.); S. Res. 304, 104th
Cong. (1996) (same). The regulations tracked the
FSLMRS language in 5 U.S.C. § 7103(a)(14), defining
“conditions of employment” as “personnel policies, practic-
es, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that
such term does not include policies, practices, and matters
. . . [t]o the extent such matters are specifically provided
for by Federal statute.” Office of Compliance Regs.
§ 2421.3(m).
The CAA further requires agencies to bargain in good
faith over CBA proposals concerning conditions of em-
ployment “to the extent not inconsistent with Federal
law.” 5 U.S.C. § 7117 (incorporated by 2 U.S.C.
§ 1351(a)(1)). That is, negotiation is not required when
the proposed language for the CBA would be “inconsistent
with Federal law.” Id.
A negotiability dispute arises when a legislative
branch agency alleges that it has no duty to bargain over
a matter, for example, as in this case, because the pro-
US CAPITOL POLICE v. OOC 5
posal is inconsistent with federal law. When that hap-
pens, a union may either file a negotiability petition
directly with the Compliance Board, id. § 1351(c)(1), or
charge the agency with an unfair labor practice, which the
Compliance Board’s General Counsel investigates, id.
§ 1351(c)(2). If the General Counsel concludes the charge
states an unfair labor practice, then the General Counsel
may file a complaint with the Office of Compliance. Id.
II
The parties’ employment relationship here is gov-
erned by a CBA that was set to expire in 2013, but re-
mains in effect until the parties negotiate a successor
CBA. The current CBA provides procedures for the
settlement of grievances and lists fifteen “matters [that]
are excluded from coverage of this grievance procedure.”
J.A. 88–89. 1 Terminations of employees is not one of
those matters. During negotiations for a successor CBA,
the Police presented the Union with draft language that
would add employee terminations to the list of matters
excluded from the scope of the grievance procedures. The
Police’s proposed additions are underlined below.
Section 32.03:
The following matters are excluded from coverage
of this grievance procedure:
***
J. Policies, decisions, or directives of Congres-
sional authorities and entities, including approv-
ing of terminations of employees by the Capitol
Police Board; provided that the impact and im-
1 Citations to the record are to the joint appendix
(“J.A.”) in No. 2017-2061.
6 US CAPITOL POLICE v. OOC
plementation of those policies by the Department
will be negotiable to the extent permitted by law;
***
P. Any the [sic] termination of employment of a
bargaining unit employee.
J.A. 196.
The Union proposed removing those additions. The
Union also proposed including language in section 32.12’s
arbitration procedures to “ensure that terminations of
bargaining unit employees are covered by the grievance
and arbitration procedure and set the timelines for griev-
ing such removals.” J.A. 14. The Union’s proposed addi-
tions are underlined below.
Section 32.12:
The Union may, within thirty (30) days following
receipt of the Chief’s, or designee’s, final decision,
notify the Chief of Police by facsimile that it de-
sires the matter to be submitted to arbitration.
For the purposes of termination of employment,
the date of the final decision is the date the em-
ployee is removed from [Police] payroll . . . . In
cases where the Chief determines that removal is
an appropriate penalty under the circumstances,
the Chief shall notify the employee as soon as pos-
sible of this determination. However, the discipli-
nary removal shall not be ripe for arbitration until
the day after the employee is removed from the
Department’s payroll.
J.A. 200. The Police contended that the Union’s proposals
were nonnegotiable (i.e., that the Police need not negoti-
ate with respect to those proposals) and refused to negoti-
ate with the Union. The Union elected to file a
negotiability petition with the Compliance Board.
US CAPITOL POLICE v. OOC 7
III
Before the Compliance Board, the Police argued that
the proposals were “specifically provided for by” the U.S.
Capitol Police Technical Corrections Act of 2009 (“TCA”)
and thus, were not “conditions of employment.” This was
so because the TCA amended the CAA to provide the
Capitol Police Board (“Police Board”) with review and
approval of employee termination recommendations, and
the Police Board construed those amendments as making
Police Board decisions final and not reviewable. Addi-
tionally, even if the proposals were considered conditions
of employment, the Police contended that the proposals
would be inconsistent with federal law and therefore
nonnegotiable. The Police only raises the inconsistent
with federal law issue on review in this court.
The Compliance Board did not refer the petition to a
hearing officer, and no party requested a hearing before a
hearing officer. The Compliance Board then decided the
matter in the first instance. It concluded that the Union’s
proposals involved negotiable conditions of employment
and were not “specifically provided for” by the TCA or
inconsistent with federal law. It stated that the TCA does
not provide the Police Board with the sole and exclusive
authority regarding terminations, and nothing in the TCA
“states that termination decisions approved by the [Police
Board] are not subject to arbitration.” J.A. 9. Thus, the
Compliance Board ordered the Police to bargain with the
Union over the proposals. In No. 2017-2061, the Police
petitions for review of the Compliance Board’s decision.
In the meantime, the Union attempted to bargain
with the Police over its proposals that the Compliance
Board found negotiable. The Police refused to negotiate
with the Union while its petition for review was pending.
The Police does not dispute that it has not complied with
the bargaining order. In No. 2018-1504, the Office of
8 US CAPITOL POLICE v. OOC
Compliance seeks an enforcement order compelling the
Police to bargain.
DISCUSSION
I. Jurisdiction
The Police’s petition for review is the first of its kind
before this court. We first must determine whether this
court has jurisdiction over the Police’s petition for review
of the Compliance Board’s negotiability decision. Section
1410 of title 2 provides that “[e]xcept as expressly author-
ized by sections 1407 [and other sections not relevant to
this appeal], the compliance or noncompliance with the
provisions of this chapter and any action taken pursuant
to this chapter shall not be subject to judicial review.”
However, the Police contends this court has jurisdiction
under 2 U.S.C. § 1407(a)(1)(D). 2 That section provides
this court with jurisdiction “over any proceeding com-
menced by a petition of . . . the General Counsel or a
respondent before the [Compliance] Board who files a
petition [for judicial review] under section 1351(c)(3) of
this title.” Id. (emphasis added). Section 1351(c)(3), in
turn, states: “[T]he General Counsel or the respondent to
the complaint, if aggrieved by a final decision of the
[Compliance] Board under paragraph (1) or (2) of this
2 The Police originally contended that this court al-
so has jurisdiction under 2 U.S.C. § 1407(a)(1)(A), which
provides: “The United States Court of Appeals for the
Federal Circuit shall have jurisdiction over any proceed-
ing commenced by a petition of – (A) a party aggrieved by
a final decision of the [Compliance] Board under section
1406(e) of this title in cases arising under part A of sub-
chapter II . . . .” At oral argument, the Police conceded
that section does not provide the court with jurisdiction
over its petition. We agree because the Police’s case
arises under part D, not part A, of subchapter II.
US CAPITOL POLICE v. OOC 9
subsection, may file a petition for judicial review . . . .” 2
U.S.C. § 1351(c)(3) (emphasis added).
The Police essentially contends that it is a respondent
before the Compliance Board (under § 1407(a)(1)(D)), and
that it is also a respondent to a “complaint” (under
§ 1351(c)(3)) because a respondent to a negotiability
“petition” is a respondent to a “complaint.” The Office of
Compliance argues, on the other hand, that this court
does not have jurisdiction because the “complaint” in
§ 1351(c)(3) refers only to an unfair labor practice com-
plaint filed by the Compliance Board’s General Counsel
under paragraph (2). Because the Police was a respond-
ent to a negotiability “petition” filed by the Union and not
a respondent to an unfair labor practice “complaint” filed
by the Compliance Board’s General Counsel, the Office of
Compliance contends that this court lacks jurisdiction.
For several reasons, we think the Police’s argument is
not correct. Our decision in Morris v. Office of Compli-
ance, 608 F.3d 1344 (Fed. Cir. 2010), rejected that very
position. In Morris, a police officer sought review of a
Compliance Board decision denying exceptions to an
arbitrator’s decision. 608 F.3d at 1345–46. We held that
this court did not have jurisdiction over the officer’s
petition under § 1351(c)(3) since the officer was neither
the Compliance Board’s General Counsel nor a respond-
ent to an unfair labor practice “complaint.” Id. at 1347.
Morris stated that “the respondent to the complaint” in
§ 1351(c)(3) is “the respondent to the complaint alleging
an unfair labor practice.” 608 F.3d at 1347 & n.1 (altera-
tion omitted). While it is true that Morris came up in a
different context, and the statement is arguably dictum,
we think that Morris’s construction of the statute is
correct.
The CAA, which incorporated provisions of the
FSLMRS, carefully distinguishes between a “complaint”
10 US CAPITOL POLICE v. OOC
and a negotiability “petition.” See 2 U.S.C. §§ 1351(c)(1)–
(2) (incorporating 5 U.S.C. § 7117, which provides proce-
dures for the filing of a negotiability “petition,” and 5
U.S.C. § 7118, which provides procedures for the filing of
an unfair labor practice “complaint”). The Office of Com-
pliance’s regulations retain this distinction. Compare
Office of Compliance Regs. § 2424, with Office of Compli-
ance Regs. § 2423. This strongly suggests that a “com-
plaint” does not include a “petition.”
So too, while the CAA incorporated many of the provi-
sions of the FSLMRS, Congress did not incorporate the
FSLMRS’s judicial review provision and enacted a signifi-
cantly different judicial review provision for legislative
employees. For executive branch employees, Congress
provided that “[a]ny person aggrieved by any final order
of the [FLRA]” may obtain judicial review except those
orders involving an appropriate unit determination or
arbitration awards not involving unfair labor practices. 5
U.S.C. § 7123(a). Congress did not include the “any
person aggrieved” language in the CAA. Rather, Con-
gress restricted the right of judicial review to “the [Com-
pliance Board’s] General Counsel or the respondent to the
complaint.” 2 U.S.C. § 1351(c)(3). And this departure
from the FSLMRS was clearly deliberate since early
versions of the CAA included language giving the right of
judicial review to “any person aggrieved,” and that lan-
guage was deleted. See, e.g., S. Rep. No. 103-397, at 24
(1994), reprinted in U.S.C.C.A.N.
Significantly too, the effect of our decision is not to
deny judicial review of the Compliance Board’s decision
because the Police will be able to trigger judicial review
by failing to comply with the decision, as it has done here,
and forcing the Office of Compliance to bring an enforce-
ment action. And as discussed below, that judicial review
is full judicial review under the APA.
US CAPITOL POLICE v. OOC 11
The Police has no good answers as to why these con-
siderations do not confirm the correctness of Morris’s
construction. Its principal argument is that § 1351(c)(3)’s
reference to “a final decision of the [Compliance] Board
under paragraph (1) or (2) of this subsection” supports
judicial review. We do not agree. Paragraph (2) sheds no
light on whether the reference to a “complaint” includes a
negotiability “petition.” It simply provides that “the
[Board’s] General Counsel shall exercise the authorities of
the General Counsel of the [FLRA] under section[] . . .
7118 of title 5” with respect to unfair labor practice com-
plaints. 2 U.S.C. § 1351(c)(2). Nor does the reference to
paragraph (1). Paragraph (1) incorporates provisions that
refer both to a negotiability “petition,” 5 U.S.C. § 7117,
and an unfair labor practice “complaint,” 5 U.S.C. § 7118.
The statute’s reference to “paragraph (1),” thus, does not
suggest that everything in paragraph (1) is reviewable.
The statute only provides for judicial review of matters
set forth in paragraph (1) when review is sought by “the
General Counsel or the respondent to the complaint.” 3
We thus conclude that § 1351(c)(3), defining the right
to judicial review under the CAA, makes clear that only
the Compliance Board’s General Counsel and the re-
spondent to an unfair labor practice complaint are author-
ized to petition this court for judicial review, and
3 The Police also contends that had the Compliance
Board referred the matter to a hearing officer, as Police
argues is required by the statute, it would have been a
respondent to the “complaint” because “[h]earing officers
can only adjudicate complaints.” Petitioner’s Reply Br. at
3–4. We do not see how referring a negotiability petition
to a hearing officer would transform a petition into a
complaint. In any event, as we discuss below, the Com-
pliance Board was not required to refer a negotiability
petition to a hearing officer.
12 US CAPITOL POLICE v. OOC
therefore we only have jurisdiction over those petitions
under § 1407(a)(1)(D). Because the Police is neither the
General Counsel nor a respondent to an unfair labor
practice complaint, there is no jurisdiction over the Po-
lice’s petition for review. We therefore dismiss the Po-
lice’s petition for lack of jurisdiction.
II. Standard of Review
Unlike the Police’s petition for review, the CAA explic-
itly provides this court with jurisdiction over the Office of
Compliance’s enforcement action. Section § 1407(a)(2) of
title 2 provides:
The United States Court of Appeals for the Feder-
al Circuit shall have jurisdiction over any petition
of the General Counsel, filed in the name of the
Office and at the direction of the [Compliance]
Board, to enforce a final decision under section
1405(g) or 1406(e) of this title with respect to a vi-
olation of part A, B, C, or D of subchapter II.
Both parties agree this is “a final decision under section
1405(g) or 1406(e).” But the CAA is silent on the scope or
standard for our review of enforcement actions. See 2
U.S.C. § 1407(d). 4
4 Congress did provide a standard of review for pro-
ceedings under § 1407(a)(1) dealing with petitions for
judicial review of certain final decisions of the Compliance
Board:
To the extent necessary for decision in a proceed-
ing commenced under subsection (a)(1) of this sec-
tion and when presented, the court shall decide all
relevant questions of law and interpret constitu-
tional and statutory provisions. The court shall
US CAPITOL POLICE v. OOC 13
With respect to agencies subject to the APA, the APA
standard generally governs. “[A] reviewing court must
apply the APA’s court/agency review standards in the
absence of an exception.” Dickinson v. Zurko, 527 U.S.
150, 154 (1999). 5 However, the Office of Compliance is a
set aside a final decision of the [Compliance]
Board if it is determined that the decision was—
(1) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not consistent with
law;
(2) not made consistent with required pro-
cedures; or
(3) unsupported by substantial evidence.
2 U.S.C. § 1407(d). This is essentially identical to the
APA standard. See 5 U.S.C. § 706. Enforcement actions
are commenced under subsection (a)(2), not subsection
(a)(1).
5 Other circuits have recognized that the APA’s
standard of review is the default standard. See, e.g., Chu
v. U.S. Commodity Futures Trading Comm’n, 823 F.3d
1245, 1250 (9th Cir. 2016) (“Where Congress does not
specify a standard of review, an agency’s factual findings
are reviewed for substantial evidence under the Adminis-
trative Procedure Act, 5 U.S.C. § 706.”); Pattison Sand
Co., LLC v. Fed. Mine Safety & Health Review Comm’n,
688 F.3d 507, 513 (8th Cir. 2012) (“This court has previ-
ously recognized that the APA’s arbitrary and capricious
standard should be used if a statute does not specify a
standard of review for an agency’s nonfactual determina-
tions.”); Ninilchik Traditional Council v. United States,
227 F.3d 1186, 1193–94 (9th Cir. 2000) (“Dickinson
. . . mean[s] that § 706 of the APA functions as a default
judicial review standard.”); Certified Color Mfrs. Ass’n v.
Mathews, 543 F.2d 284, 292–93 (D.C. Cir. 1976) (“The
14 US CAPITOL POLICE v. OOC
legislative branch agency and is not directly subject to the
APA. See 2 U.S.C. § 1381. Various courts have recog-
nized that the APA is not directly applicable to agencies
in the legislative or judicial branch, in holding that there
is no right to judicial review of legislative or judicial
branch agency action under the APA. See, e.g., United
States v. Johnson, 703 F.3d 464, 467–68 (8th Cir. 2013);
United States v. Tercero, 734 F.3d 979, 984 (9th Cir.
2013); Ethnic Emps. of the Library of Cong. v. Boorstin,
751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985). But those
cases have not addressed the question of whether, when
judicial review is provided, legislative or judicial branch
agency action should be governed by the APA standard of
review when the statute fails to specify a standard. We
think the APA standard functions as a default rule in this
context, even though the APA is not directly applicable.
As the legislative history of the APA discloses, the
APA essentially adopted the common law standard for
review of agency action. 6 “[W]here a common-law princi-
ple is well established . . . courts may take it as given that
Congress has legislated with an expectation that the
principle will apply except when a statutory purpose to
the contrary is evident.” Astoria Fed. Sav. & Loan Ass’n
v. Solimino, 501 U.S. 104, 108 (1991) (quotation marks
omitted); see also Figueroa v. Sec’y of Health & Human
Transitional Provisions are silent as to the scope of review
of agency action such as is involved here . . . . Accordingly,
the appropriate standard for review . . . is that provided
by . . . the Administrative Procedure Act.”).
6 See S. Rep. No. 79-752, at 44–45 (1945) (“Section
10(e) [of the APA (i.e., 5 U.S.C. § 706)] . . . declares the
existing law concerning the scope of judicial review.”); 79
Cong. Rec. 2163 (1946) (“The drafting committee states
this subsection does not attempt to expand the scope of
judicial review, nor reduce it directly by implication.”).
US CAPITOL POLICE v. OOC 15
Servs., 715 F.3d 1314, 1318–19 (Fed. Cir. 2013). Since the
common law standard is the same as the APA standard,
we can assume that statutes that provide for judicial
review of legislative and judicial branch agencies have
adopted the common law standard, that is, the APA
standard, absent evidence of contrary intent. The legisla-
tion here—the CAA—was enacted in 1995, and we read
the statute in light of this background principle to adopt
the APA standard of review.
The Compliance Office argues that the standard in
Leedom v. Kyne, 358 U.S. 184 (1958), instead applies, and
the court should only review the Compliance Board’s
decision to determine whether the Compliance Board
exceeded its statutory authority or plainly violated an
unambiguous or mandatory provision of the CAA. In this
connection, the Compliance Office relies on cases applying
this standard to review a narrow category of FLRA deci-
sions involving arbitration awards under the FSLMRS. 7
See U.S. Dep’t of Homeland Sec. v. Fed. Labor Relations
Auth., 784 F.3d 821, 823 (D.C. Cir. 2015); Am. Fed’n of
Gov’t Emps., Local 1617 v. Fed. Labor Relations Auth.,
103 F. App’x 802, 806 (5th Cir. 2004). But the Leedom
standard only applies where the statute does not provide
for judicial review of agency action or other decision. 358
U.S. at 188–89. That is not the case here since the stat-
ute specifically provides for judicial review in the context
of enforcement proceedings, albeit not on direct review of
Compliance Board decisions.
Nor is this a situation in which either of the APA ex-
ceptions applies. The APA judicial review provisions
7 The FSLMRS provides for judicial review of FLRA
final decisions “other than an order . . . involving an
award by an arbitrator, unless the order involves an
unfair labor practice.” 5 U.S.C. § 7123(a).
16 US CAPITOL POLICE v. OOC
apply to agency actions “except to the extent that – (1)
statutes preclude judicial review; or (2) agency action is
committed to agency discretion by law.” 5 U.S.C. § 701(a).
“[T]he [Compliance Board’s] decision here does not fall
within the exception for action ‘committed to agency
discretion’” since this is not one of “those rare instances
where [a] ‘statute[] [is] drawn in such broad terms that
. . . there is no law to apply.’” Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 410 (1970), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99 (1977)
(quoting S. Rep. No. 752, at 26 (1945)). There is also no
basis for finding the first exception applies because there
is no statute precluding judicial review. Instead,
§ 1407(a)(2) squarely provides for judicial review.
The Office of Compliance argues there is a negative
inference from the language of 2 U.S.C. § 1407(d), which
essentially incorporates the APA standard, but applies
only to matters under § 1407(a)(1), and fails to include
matters under § 1407(a)(2). See Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 452–53 (2002). The language of this
section appears in footnote 4 above. But the legislative
history, in describing the bill that was enacted, confirms
that Congress intended the APA standard to apply both to
proceedings brought under § 1407(a)(1) and § 1407(a)(2).
See 141 Cong. Rec. 874 (1995). Specifically, the legislative
history states:
Section 407—Judicial Review of Board Decisions
and Enforcement
The United States Court of Appeals for the Feder-
al Circuit shall have exclusive jurisdiction over
any proceeding commenced by a petition of . . . the
general counsel or a respondent who files a peti-
tion under section 220(c)(3) [(i.e., 2 U.S.C.
§ 1351(c)(3))]. The same court shall also have ex-
clusive jurisdiction over any petition of the gen-
eral counsel filed in the name of the Office and at
US CAPITOL POLICE v. OOC 17
the direction of the Board, to enforce a final deci-
sion under section 405(g) or 406(e) . . . . The
Standard of review in proceedings under this sec-
tion is the standard that applies under the admin-
istrative procedures [sic] act, namely, that the
court shall set aside a final decision of the [Com-
pliance] Board only if it determines that the deci-
sion was arbitrary, capricious, and [sic] abuse of
direction, or otherwise not consistent with law;
not made consistent with required procedures; or
unsupported by substantial evidence.
Id. (emphasis added). It does not suggest that the failure
to specifically adopt the APA standard for § 1407(a)(2)
proceedings was anything but inadvertent.
As the Supreme Court has explained:
The force of any negative implication . . . depends
on context. We have long held that the expressio
unius canon does not apply unless it is fair to
suppose that Congress considered the unnamed
possibility and meant to say no to it, . . . and that
the canon can be overcome by contrary indications
that adopting a particular rule or statute was
probably not meant to signal any exclusion.
Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013)
(quotation marks omitted). The legislative history pro-
vides similar indications here. Notably, other courts have
held that reference to the APA standard in one section
cannot rebut the presumption that the APA standard
applies to other judicial review provisions. 8
8 See, e.g., Chu, 823 F.3d at 1249–50 (applying APA
standard where the statute was silent as to the standard
of review for one provision of the statute, even though
other parts of the statute specified that courts of appeals
18 US CAPITOL POLICE v. OOC
We thus hold that the APA standard of review gov-
erns enforcement actions brought under § 1407(a)(2). We
will grant the Office of Compliance’s enforcement action
unless the Compliance Board’s decision is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” “without observance of procedure
required by law,” or “unsupported by substantial evi-
dence.” 5 U.S.C. § 706.
III. Hearings
Turning to the merits of the enforcement action, the
Police first argues that the Compliance Board failed to
observe the procedures required by the CAA when it did
not refer the negotiability petition to a hearing officer,
and instead, decided the negotiability petition in the first
instance. The Police contends this was error.
The statute provides:
For purposes of this section and except as other-
wise provided in this section, the [Compliance]
Board shall exercise the authorities of the Federal
Labor Relations Authority under sections 7105,
7111, 7112, 7113, 7115, 7117, 7118, and 7122 of
title 5 . . . . For purposes of this section, any peti-
tion or other submission that, under chapter 71 of
title 5, would be submitted to the Federal Labor
Relations Authority shall, if brought under this
should review agency determinations in accordance with
the APA standard); Public Citizen, Inc. v. Fed. Aviation
Admin., 988 F.2d 186, 196 (D.C. Cir. 1993) (applying APA
standard to review the FAA’s nonfactual matters where
the statute provided that findings of fact were reviewed
under the “substantial evidence” standard, but was “si-
len[t] as to the standard for reviewing nonfactual mat-
ters”).
US CAPITOL POLICE v. OOC 19
section, be submitted to the [Compliance] Board.
The [Compliance] Board shall refer any matter
under this paragraph to a hearing officer for deci-
sion pursuant to subsections (b) through (h) of
section 1405 of this title, subject to review by the
[Compliance] Board pursuant to section 1406 of
this title.
2 U.S.C. § 1351(c)(1) (emphasis added). The Police argues
that the language “shall refer any matter under this
paragraph to a hearing officer” required the Compliance
Board to refer the Union’s negotiability petition to a
hearing officer.
To be sure, “[u]se of the word ‘shall’ in a statute can
indicate a mandatory compulsion which, if not followed,
negates action otherwise authorized by the statute.”
Hitachi Home Elecs. (Am.), Inc. v. United States, 661 F.3d
1343, 1353 (Fed. Cir. 2011) (citing Escoe v. Zerbst, 295
U.S. 490, 493 (1935)). But the quoted provision,
§ 1351(c)(1), is susceptible to two different meanings. It
could mean in every matter the Compliance Board is
required to refer the matter to a hearing officer; or it
could mean when a hearing is required by other provi-
sions of the statute, the Compliance Board is required to
refer the matter to a hearing officer.
In interpreting this provision of the CAA, we have to
take account of the overall structure of the statute. FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–
34 (2000) (“[A] reviewing court should not confine itself to
examining a particular statutory provision in isolation.
The meaning—or ambiguity—of certain words or phrases
may only become evident when placed in context.”); Davis
v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is
a fundamental canon of statutory construction that the
words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.”);
FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)
20 US CAPITOL POLICE v. OOC
(“[O]ur task is to fit, if possible, all parts into a harmoni-
ous whole.”); see also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 180
(2012) (“The provisions of a text should be interpreted in a
way that renders them compatible, not contradictory . . . .
[T]here can be no justification for needlessly rendering
provisions in conflict if they can be interpreted harmoni-
ously.”).
Here, Congress incorporated two different provisions
of the FSLMRS into § 1351(c)(1) by authorizing the Com-
pliance Board “to exercise the authorities of the [FLRA]
under sections . . . 7117 [and] 7118.” Section 7117 pro-
vides that, after a union “fil[es] a petition with the
[FLRA]” raising a negotiability dispute, “[a] hearing may
be held, in the discretion of the [FLRA], before a determi-
nation is made under this subsection.” 5 U.S.C.
§§ 7117(c)(2)(A), 7117(c)(5) (emphasis added). The D.C.
Circuit has confirmed that such hearings are discretion-
ary. See Nat’l Fed’n of Fed. Emps., Local 1167 v. Fed.
Labor Relations Auth., 681 F.2d 886, 891 (D.C. Cir. 1982)
(citing 5 U.S.C. § 7117(c)(5)) (“The FLRA has the statuto-
ry power to hold a hearing to aid in its decision, but such
hearings are discretionary.”). In contrast, § 7118 provides
that, after the General Counsel investigates a charge of
unfair labor practice and issues a “complaint,” “[t]he
[FLRA] . . . shall conduct a hearing on the complaint.” 5
U.S.C. §§ 7118(a)(1), 7118(a)(6) (emphasis added).
We think that, having incorporated these provisions
into the CAA, Congress intended to give the Compliance
Board the same authority as the FLRA. For negotiability
petitions, that means the Compliance Board has discre-
tion whether to hold a hearing before rendering a decision
and a hearing is not required, just as the FLRA has
discretion under § 7117 of title 5. In light of that,
§ 1351(c)(1) is best read as meaning that: “[If a hearing is
required pursuant to the above sections of title 5,] [t]he
US CAPITOL POLICE v. OOC 21
[Compliance] Board shall refer any matter under this
paragraph to a hearing officer for decision pursuant to
subsections (b) through (h) of section 1405 of this title,
subject to review by the [Compliance] Board pursuant to
section 1406 of this title.” 2 U.S.C. § 1351(c)(1). 9 Any
other interpretation under § 1351(c)(1) would read out the
statutory provision incorporating § 7117 of title 5, making
hearings discretionary as to negotiability petitions. Since
hearings are discretionary, the opportunity for a hearing
is lost if not timely requested. Here, a hearing was not
timely requested by the Police.
We conclude that the Compliance Board was not re-
quired to refer the matter to a hearing officer, and it was
not error for the Compliance Board to decide the Union’s
negotiability petition in the first instance.
IV. Negotiability
Finally, the Police argues that this court should deny
the enforcement action because the Compliance Board
erred in finding the Union’s proposals were “not incon-
9 Given that we find the statute unambiguous, we
do not reach the question of whether Chevron deference is
due to the Compliance Board’s interpretation of the
statute. In any event, the Compliance Board’s interpreta-
tion is consistent with our construction. See Office of
Compliance Regs. § 2424.9 (“A hearing may be held, in
the discretion of the [Compliance] Board, before a deter-
mination is made under 5 U.S.C. §§ 7117(b) or (c), as
applied by the CAA.”). And in adopting its regulations,
the Compliance Board discussed at length why the statu-
tory structure and legislative history shows that hearings
are not mandatory in matters not involving a charge of
unfair labor practice. See 142 Cong. Rec. 16983–94
(1996).
22 US CAPITOL POLICE v. OOC
sistent with Federal law.” 10 5 U.S.C. § 7117(a)(1) (incor-
porated by 2 U.S.C. § 1351(a)(1)).
As explained above, the Compliance Board adopted
the FSLMRS’s broad definition of “conditions of employ-
ment.” Office of Compliance Regs. § 2421.3(m). In gen-
eral, the comprehensive nature of “conditions of
employment” would include employee terminations.
However, the CAA incorporated 5 U.S.C. § 7117(a)(1),
which does not require negotiation when proposals are
contrary to law. 11 The Police makes two arguments as to
10 As noted above, the Police originally contended
that the proposals were also “specifically provided for by
Federal statute,” and thus not “conditions of employment”
under 5 U.S.C. § 7117(d) (incorporated by 2 U.S.C.
§ 1351(a)), because the TCA gives the Police Board the
sole authority to review and approve of termination
recommendations and those decisions are final. At oral
argument, the Police abandoned that position and pro-
ceeded only with its argument that the proposals were
“inconsistent with Federal law.” We agree that this is not
a situation, under Fort Stewart Schools v. Federal Labor
Relations Authority, 495 U.S. 641 (1990), in which the
proposals were “specifically provided for by Federal
statute.”
11 See U.S. Dep’t of Homeland Sec. v. Fed. Labor Re-
lations Auth., 751 F.3d 665, 672 (D.C. Cir. 2014) (Pro-
posals found nonnegotiable “which concern[ed]
investigations conducted by the Inspector General” and
“r[a]n afoul of the Inspector General Act’s mandate that it
is the Inspector General who has the authority to ‘con-
duct, supervise, and coordinate audits and investigations’
relating to the [agency].” (citation omitted)); Ass’n of
Civilian Technicians v. Fed. Labor Relations Auth., 250
F.3d 778, 780–81 (D.C. Cir. 2001) (“[P]roposals that would
have allowed for the assignment of technicians to Wage
US CAPITOL POLICE v. OOC 23
why the Union’s proposals were contrary to law. The
Police first argues that the TCA’s amendments to the
CAA removed the Police Board as an employing office,
provided for Police Board review of employee termina-
tions, and made Police Board decisions final and not
reviewable. Thus, the Police contends that the Union’s
proposals permitting arbitrator review of termination
decisions are inconsistent with the provisions for Police
Board review.
We disagree with the Police’s construction of the TCA.
The purpose of the TCA was “[t]o make technical correc-
tions to the laws affecting certain administrative authori-
ties of the [Police], and for other purposes.” Pub. L. No.
111-145, 124 Stat. 49 (2010) (codified in scattered sections
of 2 U.S.C.). Prior to the TCA, the Police Board was listed
as an employing office under the CAA. 2 U.S.C.
§ 1301(9)(D) (1994). The TCA, inter alia, removed the
Police Board as an employing office and substituted the
Police. 2 U.S.C. § 1301(9)(D). The TCA also created a
“Special rule for termination” (“Special Rule”), which
provides:
The Chief [of the Police] may terminate an officer,
member, or employee only after the Chief has pro-
Leader positions without restriction based on the techni-
cians’ military grade” were held to be nonnegotiable and
inconsistent with section of the National Guard Techni-
cian Act, “requiring civilian technicians to ‘[h]old the
military grade specified by the Secretary.”); U.S. Dep’t of
Def. v. Fed. Labor Relations Auth. 964 F.2d 26, 27 (D.C.
Cir. 1992) (“[P]roposal that would limit the manner in
which a federal agency responds to requests for infor-
mation under the Freedom of Information Act (‘FOIA’)
[wa]s inconsistent with federal law and therefore nonne-
gotiable.”).
24 US CAPITOL POLICE v. OOC
vided notice of the termination to the Capitol Po-
lice Board (in such manner as the [Police] Board
may from time to time require) and the [Police]
Board has approved the termination . . . .
2 U.S.C. § 1907(e)(1)(B). Following passage of the TCA,
the Police Board purportedly issued an “order” interpret-
ing the statute as follows:
[U]nder 2 U.S.C. § 1907(e) authorizing the Capitol
Police Board to approve termination actions for-
warded by the Chief of Police, the Capitol Police
Board hereby orders that any termination ap-
proved by the Capitol Police Board is a final deci-
sion of the Capitol Police Board and Capitol Police
Board approval decision [sic] are not reviewable or
appealable in any manner. Notwithstanding any
Office of Compliance Board of Directors decision,
which has no applicability to Capitol Police
Board’s approval of termination determinations,
the United States Capitol Police is directed to
comply with the Capitol Police Board’s approval of
all termination decision [sic] by the Capitol Police
Board.
J.A. 236.
The Police argues that statute as interpreted by the
“order” bars review by an arbitrator of a termination
decision by the Police Board, and that we are required to
follow the Police Board’s interpretation of the statute as
precluding review of Police Board decisions. It urges that
the Chevron framework applies, that the statute is am-
biguous, and thus deference is owed to the Police Board’s
“order” interpreting the statute (i.e., Special Rule). See
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843–44 (1984). But here, we are not con-
cerned with an arbitrator’s review of a decision of the
Police Board, but with an arbitrator’s review of a decision
US CAPITOL POLICE v. OOC 25
of the Chief of the Police. The section of the TCA where
the Special Rule is found is titled “Administrative Author-
ity of the Chief of the Capitol Police.” TCA, § 2, 124 Stat.
at 49 (emphasis added). That section focuses on the
Chief’s, not the Police Board’s, authority as the head of
the Police to “appoint, hire, suspend with or without pay,
discipline, discharge, and set the terms, conditions and
privileges of employment of employees of the Capitol
Police, subject to and in accordance with applicable laws
and regulations.” 2 U.S.C. § 1907(e)(1)(A) (emphasis
added). Even under the Special Rule, Congress did not
make termination a decision of the Police Board, but
merely required that the Police Board ratify the decision.
The statute made the termination decision a decision of
the Chief, and made that decision the final decision. The
Union’s proposals, thus, would subject a termination
decision made by the Chief as head of the Police to the
grievance and arbitration procedures outlined in the CBA.
It would not subject the Police Board’s decision to review
under the grievance procedures. 12 Whatever authority
the Police may have to preclude review of Police Board
decisions, the statute cannot be interpreted to preclude
review of the Chief’s decisions or to make a termination
decision a decision of the Police Board rather than a
decision of the Chief. 13 Thus, unlike the cases on which
12 The Police also argues that the requirement for
grievance and arbitration procedures in the statute is
only applicable to employing offices, and the Police Board
is not an employing office. But as discussed, it is not the
decision of the Police Board that would be reviewed, but
the decision of the Chief.
13 The Police cites cases in which proposals that
would have provided for arbitrator review of dismissal
and disciplinary decisions of the state adjutant general
were found inconsistent with the Natural Guard Techni-
26 US CAPITOL POLICE v. OOC
the Police relies, there is no statutory provision preclud-
ing review of the Chief’s termination decisions.
The rest of the CAA underscores that Congress did
not intend to preclude review of termination decisions
made by the Chief of the Police. Other sections of the
CAA show that Congress knew how to give the Chief
unreviewable authority over a matter when it intended,
and termination decisions was not one of them. For
example, 2 U.S.C. § 1931 gives the Chief the authority to
“establish and determine . . . positions in salary classes of
employees of the Capitol Police to be designated as em-
ployees with specialty assignments or proficiencies,” id.
§ 1931(a), and “[a]ny determination under section (a) shall
not be appealable or reviewable in any manner,” id.
§ 1931(d). See also id. §§ 1927(a)(1), 1927(a)(6) (similar
language in provision making “[a]ny determination of the
Chief under this subsection . . . not . . . appealable or
reviewable in any manner”). “[W]here Congress includes
particular language in one section of a statute but omits it
in another . . . , it is generally presumed that Congress
cian Act (“Technician Act”) and nonnegotiable. See, e.g.,
Cal. Nat’l Guard v. Fed. Labor Relations Auth., 697 F.2d
874, 879 (9th Cir. 1983); N.J. Air Nat’l Guard, 177th
Fighter Interceptor Grp. & Dep’t of Def. v. Fed. Labor
Relations Auth., 677 F.2d 276, 279–80 (3d Cir. 1982).
Those cases involved statutory provisions of the Techni-
cian Act that provided the adjutant general with the sole
and final discretion to discipline employees
“[n]otwithstanding any other provision of law” and pre-
cluded appeal of disciplinary action extending beyond the
adjutant general. 32 U.S.C. § 709(e) (1982). The CAA,
unlike the Technician Act, does not have a statutory
provision giving the Chief the sole and final authority
over terminations “[n]otwithstanding any other provision
of law” or a provision precluding review of terminations.
US CAPITOL POLICE v. OOC 27
acts intentionally and purposely in the disparate inclu-
sion or exclusion.” Russello v. United States, 464 U.S. 16,
23 (1983) (citation omitted). The fact that Congress made
decisions of the Chief “not . . . appealable or reviewable in
any manner” in certain parts of the CAA underscores that
we must refrain from reading that phrase into the Special
Rule when Congress has left it out. So too, 2 U.S.C.
§ 1351(a)(1), incorporating 5 U.S.C. § 7121(c) and defining
the subjects excluded from any negotiated grievance
procedure, excludes from negotiation “a suspension or
removal” under 5 U.S.C. § 7532 involving “interests of
national security,” suggesting that other suspensions or
removals are subject to negotiation. 14
Apart from the TCA, the Police argues that the pro-
posals were “inconsistent with Federal law” because
legislative employees lack rights, under title 5, to appeal
adverse personnel actions to the Merit Systems Protection
Board (“MSPB”), which implies that review through a
grievance procedure is also precluded. “Because Congress
did not afford [Police] employees the statutory right to
14 The Police relies on Department of the Air Force,
Luke Air Force Base v. Federal Labor Relations Authority,
844 F.3d 957, 961, 964 (D.C. Cir. 2016) (quoting Brown v.
Glines, 444 U.S. 348, 360 (1980)), which noted that, “‘[i]n
construing a statute that touches on’ matters of internal
military governance, like troop morale or discipline,
‘courts must be careful not to circumscribe the authority
of military commanders to an extent never intended by
Congress’” and held that where “Congress has vested the
military with ‘unfettered discretion’ over . . . matter[s],”
those matters are not subject to a negotiated grievance
procedure. However, there is no comparable line of au-
thority for matters of internal police governance, nor does
the CAA give the Police Board “unfettered discretion” over
terminations.
28 US CAPITOL POLICE v. OOC
appeal terminations, they cannot obtain those rights
through the negotiated grievance procedure.” Petitioner’s
Br. at 3. 15 The Police relies on the Supreme Court’s
decision in United States v. Fausto, 484 U.S. 439 (1988),
and cases interpreting Fausto. That argument is not
supported by the Fausto line of cases and is untenable.
Fausto presented the question of whether the Civil
Service Reform Act (“CSRA”) precluded a nonpreference
eligible employee in the excepted service from seeking
judicial review for an allegedly improper job suspension.
Such review was admittedly not available before the
MSPB under the CSRA. But the employee asserted that
review was available in the Court of Claims under the
Back Pay Act. Id. at 440–41. The Supreme Court noted
that the CSRA “comprehensively overhauled the civil
service system” and created an elaborate “new framework
for evaluating adverse personnel actions against” execu-
tive branch employees, including the right to appeal
agency decisions to the MSPB and then to this court. Id.
at 443, 446 (citation omitted). But “[n]o provision of the
CSRA gives nonpreference eligible members of the ex-
cepted service the right to administrative or judicial
review” of adverse personnel actions. Id. at 443. Because
the employee was classified as a “nonpreference eligible
[employee] in the excepted service,” the Court held that
the CSRA precluded judicial review under the Back Pay
Act, as well as under the CSRA. Id. at 455.
This was so because Congress intended the CSRA to
provide “an integrated scheme of administrative and
judicial review” of personnel action taken against execu-
tive branch employees. Id. at 445. The Court found that
“the comprehensive nature of the CSRA [and the failure
15 Citations are to the parties’ briefs in No. 2017-
2061.
US CAPITOL POLICE v. OOC 29
to provide review to nonpreference eligible employees as
part of the comprehensive scheme for review], combine to
establish a congressional judgment that those employees
should not be able to demand judicial review.” Id. at 448.
Thus, the CSRA’s “deliberate exclusion of employees in
respondent’s service category from the provisions estab-
lishing administrative and judicial review for personnel
action of the sort at issue here prevent[ed] respondent
from seeking review in the Claims Court under the Back
Pay Act.” Id. at 455.
Other circuits have read Fausto to preclude executive
branch employees (when not entitled to MSPB review as
to adverse personnel actions) from resort to review
through CBA grievance procedures. See, e.g., Dep’t of the
Treasury, Office of Chief Counsel v. Fed. Labor Relations
Auth., 873 F.2d 1467, 1469–72 (D.C. Cir. 1989); U.S. Dep’t
of Health & Human Servs. v. Fed. Labor Relations Auth.,
858 F.2d 1278, 1283–84 (7th Cir. 1988); see also Dep’t of
Health & Human Servs., Region IX, S.F., Cal. v. Fed.
Labor Relations Auth., 894 F.2d 333, 334 (9th Cir. 1990).
Those circuits have relied on the election of remedies
provision of 5 U.S.C. § 7121(e)(1) (set forth below) as
allowing arbitration only as an alternative to MSPB
review. If MSPB review is not available, neither is arbi-
tration.
The Police points out that Congress chose not to give
legislative employees MSPB rights, and argues that this
should preclude resort to grievance procedures as well.
The Police argues that the Union’s proposals were thus
inconsistent with law and therefore nonnegotiable.
Unlike the CSRA at issue in Fausto, the CAA did not
create a comprehensive statutory scheme giving MSPB
review to all but a few legislative branch employees. Nor
does the election of remedies provision of § 7121(e)(1)
apply to legislative employees. To be sure, § 7121 was
30 US CAPITOL POLICE v. OOC
incorporated into the legislative branch scheme by the
CAA because that provision created the right to negotiat-
ed grievance procedures. But § 7121(e)(1) has no applica-
tion to the legislative branch. The provision states:
Matters covered under sections 4303 and 7512 of
[the CSRA] which also fall within the coverage of
the negotiated grievance procedure may, in the
discretion of the aggrieved employee, be raised ei-
ther under the appellate procedures of section
7701 of this title [before the MSPB] or under the
negotiated grievance procedure, but not both.
5 U.S.C. § 7121(e)(1). This election of remedies provision
cannot be read as precluding arbitration where adminis-
trative or judicial review is not available. There is no
requirement under the CAA that legislative employees
elect between MSPB review and a negotiated grievance
procedure because MSPB review is not available to legis-
lative employees.
Notably, there is another election of remedies provi-
sion in § 7121(e)(1)—not relied on in the Fausto line of
cases. That provision states:
Similar matters which arise under other person-
nel systems applicable to employees covered by
this chapter may, in the discretion of the ag-
grieved employee, be raised either under the ap-
pellate procedures, if any, applicable to those
matters, or under the negotiated grievance proce-
dure, but not both.
5 U.S.C. § 7121(e)(1) (emphasis added). The incorporation
of § 7121 in the CAA makes this provision applicable to
legislative branch employees. See 2 U.S.C. § 1351(a)(1).
The D.C. Circuit’s decision in Department of the Treasury
concluded that employees covered under “other personnel
systems” (that is, other than the MSPB system), can
resort to grievance procedures even if they have no right
US CAPITOL POLICE v. OOC 31
to judicial review. 873 F.2d at 1472. 16 Under this theory,
the incorporation of that language in the CAA demon-
strates that legislative employees (being covered by an
“other personnel system”) could resort to grievance proce-
dures even if they have no right to judicial review. We
agree with the D.C. Circuit’s Department of the Treasury
decision and that its reasoning applies here as well.
In short, arbitrator review of termination decisions is
not precluded by a comprehensive scheme as in Fausto,
and the incorporation of § 7121 into the CAA confirms
that arbitrator review of termination decisions is not
contrary to law. Thus, unlike executive branch employees
who are subject to the CSRA but do not have MSPB
appeal rights, we see no reason why termination decisions
cannot be part of a negotiated grievance procedure for
Police employees, regardless of whether or not the Chief’s
decisions are themselves judicially reviewable.
In other words, there is no inconsistency between the
Union’s proposals, which would allow Police employees to
grieve termination decisions through arbitration, and the
fact that those employees lack MSPB appeal rights under
title 5.
CONCLUSION
Because this court does not have jurisdiction over the
Police’s petition for review, we dismiss the Police’s peti-
tion for lack of jurisdiction. We grant the Office of Com-
pliance’s petition to enforce the Compliance Board’s
decision because the Compliance Board was not required
to refer the matter to a hearing officer, and the Compli-
16 This is not to suggest that an arbitrator’s decision,
made pursuant to a negotiated grievance procedure of the
CBA, would be judicially reviewable. See Nieuwdorp v.
Library of Cong., 872 F.2d 1000, 1001–02 (Fed. Cir. 1989).
32 US CAPITOL POLICE v. OOC
ance Board correctly concluded that the proposals were
not inconsistent with law.
DISMISSED AS TO 2017-2061 AND GRANTED AS
TO 2018-1504
COSTS
No costs.