United States Capitol Police v. Ooc , 916 F.3d 1023 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
UNITED STATES CAPITOL POLICE,
Petitioner
v.
OFFICE OF COMPLIANCE,
Cross-Applicant
FRATERNAL ORDER OF POLICE, DISTRICT OF
COLUMBIA LODGE NO. 1, U.S. CAPITOL POLICE
LABOR COMMITTEE,
Intervenor
______________________
2018-1293, 2018-1396
______________________
Petitions for review of a decision of the Board of Direc-
tors of the Office of Compliance in No. 16-LMR-01 (CA).
______________________
Decided: February 21, 2019
______________________
RAFIQUE OMAR ANDERSON, Office of Employment
Counsel, United States Capitol Police, Washington, DC, ar-
gued for petitioner. Also represented by FREDERICK M.
HERRERA.
JOHN D. UELMEN, Office of the General Counsel, United
States Office of Compliance, Washington, DC, argued for
cross-applicant. Also represented by JULIA AKINS CLARK;
2 UNITED STATES CAPITOL POLICE v. OOC
SIMONE JENKINS, Congressional Office of Compliance,
Washington, DC.
MEGAN KATHLEEN MECHAK, Woodley & McGillivary
LLP, Washington, DC, argued for intervenor.
______________________
Before NEWMAN, LOURIE, and CLEVENGER, Circuit Judges.
CLEVENGER, Circuit Judge.
On September 26, 2017, the Board of Directors of the
Congressional Accountability Office of Compliance
(“Board”) issued a decision stating that the United States
Capitol Police (“Police”) committed an unfair labor practice
when it refused to engage in arbitration of an unresolved
grievance. U.S. Capitol Police and Fraternal Order of Po-
lice, D.C. Lodge No. 1 U.S. Capitol Police Labor Comm., No.
16–LMR–01, 2017 WL 4335144 (C.A.O.C. Sept. 26, 2017).
The Police petitions for review of that decision and the Of-
fice of Compliance (“OOC”) cross-applies for enforcement of
the Board’s decision and remedial order. For the reasons
set forth below, we deny the Police’s petition and grant the
OOC’s application.
BACKGROUND
Christopher Donaldson, a former officer with the Po-
lice, was involved in an off-duty domestic incident. The Po-
lice’s Office of Professional Responsibility investigated the
incident and ultimately recommended that he be termi-
nated. The Disciplinary Review Board then heard the mat-
ter and, although it agreed that Officer Donaldson should
be punished, it recommended only a forty-five day unpaid
suspension. The Chief of Police reviewed the evidence and
recommendations and decided to terminate Officer Don-
aldson. After thirty days passed from the date of the
Chief’s decision without intervention by the Capitol Police
Board, the Chief’s decision took effect and Officer Don-
aldson was terminated. See 2 U.S.C. § 1907(e)(1)(B)
UNITED STATES CAPITOL POLICE v. OOC 3
(stating that the Board is deemed to have approved a ter-
mination decision made by the Chief of Police if it does not
disapprove of that decision within thirty days).
The Fraternal Order of Police, District of Columbia
Lodge No. 1, U.S. Capitol Police Labor Committee (“Un-
ion”) and the Police are parties to a collective bargaining
agreement. Under the terms of that agreement, termina-
tion decisions by the Chief are subject to binding arbitra-
tion. The Union requested an arbitration panel to review
the termination decision. The Police refused to select an
arbitrator because it took the legal position that termina-
tion actions are not subject to arbitration and thus it
“would be in violation of a determination of the Capitol Po-
lice Board and its distinct statutory authority by consent-
ing to the jurisdiction of any arbitrator” in this case. J.A.
102.
The Union then protested to the General Counsel for
the OOC that the Police violated § 220(c)(2) of the Congres-
sional Accountability Act of 1995 (“CAA”), codified at
2 U.S.C. §§ 1301–1438, 1 by refusing to arbitrate an unre-
solved grievance and therefore committed an unfair labor
practice. The General Counsel investigated the charges,
determined that there was sufficient evidence and cause to
support them, and filed a complaint with the OOC alleging
an unfair labor practice. 2
1 The CAA was amended on December 21, 2018. See
Congressional Accountability Act of 1995 Reform Act, Pub
L. No. 115-397, 132 Stat. 5297 (2018). All citations to the
Act refer to the applicable provisions in effect before the
2018 amendments, unless otherwise indicated.
2 After that complaint was filed, the Police agreed to
select an arbitrator to consider the arbitrability of the ter-
mination decision while maintaining its objection to the
4 UNITED STATES CAPITOL POLICE v. OOC
A hearing officer considered cross-motions for sum-
mary judgment on the unfair labor practice charge and
granted judgment in favor of the OOC. The Police peti-
tioned the Board to review the hearing officer’s decision,
and the Board affirmed. The Board reasoned that the Po-
lice is obligated to arbitrate disputes arising under its col-
lective bargaining agreement, unless it can point to clearly
established law that removes the dispute in question from
arbitration, and that without such a clearly established law
excuse for refusal to arbitrate, the refusal is an unfair labor
practice. The Police asserted that the CAA should be in-
terpreted to bar arbitration of employee termination. The
best the Police could do to demonstrate clearly established
law that termination decisions are not arbitrable was a set
of arguments it made on how it thought provisions of the
CAA should be interpreted. 3 Because the Police’s legal
arbitrator’s jurisdiction. An arbitrator was selected and he
determined that the termination decision was arbitrable.
The Police argued before the Board that the contro-
versy between it and the Union was mooted by the Police’s
willingness to select an arbitrator and engage in arbitra-
tion limited to the issue of the arbitrator’s jurisdiction over
the controversy. The Board rejected the mootness argu-
ment noting that remedies for the Police’s initial refusal to
arbitrate survive the Police’s belated partial agreement to
proceed with arbitration. The Police do not maintain a
mootness argument on appeal, and we agree with the
Board that the instant controversy is not moot.
3 The Police argued that the United States Capitol
Police Administrative Technical Corrections Act of 2009
(“TCA”), Pub. L. No. 111-145, 124 Stat. 49 (2010), bore on
the question of arbitrability of termination decisions. Ac-
cording to the Police, the TCA gave the Capitol Police
Board sufficient authority over termination decisions to
deem those decisions “specifically provided for” by law and
thus statutorily excluded from “conditions of employment”
UNITED STATES CAPITOL POLICE v. OOC 5
arguments fell well short of being clearly established law,
the Board rejected the Police’s excuse and held that the Po-
lice committed an unfair labor practice by refusing to en-
gage in arbitration.
This appeal followed. We have jurisdiction over the Po-
lice’s petition under 2 U.S.C. § 1407(a)(1)(D) and over the
OOC’s application for enforcement pursuant to 2 U.S.C.
§ 1407(a)(2).
DISCUSSION
When we review a Board decision, we are required to
“decide all relevant questions of law and interpret consti-
tutional and statutory provisions.” 2 U.S.C. § 1407(d). We
must affirm a final decision of the Board unless that deci-
sion: “(1) [is] arbitrary, capricious, an abuse of discretion,
or otherwise not consistent with law; (2) [was] not made
consistent with required procedures; or (3) [is] unsupported
by substantial evidence.” Id. We review the Board’s legal
conclusions de novo and its factual findings for substantial
evidence. Cf. Archuleta v. Hopper, 786 F.3d 1340, 1346
and hence beyond the scope of a collective bargaining
agreement. Additionally, the Police argued it had no duty
to bargain over, and hence no duty to engage in arbitration
over, matters for which bargaining over or engaging in ar-
bitration over the matter would be inconsistent with fed-
eral law. The Police argued that allowing arbitration over
termination decisions specifically would be inconsistent
with the TCA, and generally inconsistent with a body of
case law that denied arbitration remedies for certain dis-
putes when direct judicial review over such disputes is
lacking. Those arguments have been rejected by this
Court. See U.S. Capitol Police v. Office of Compliance
(“Capitol Police II”), 913 F.3d 1361, 1366–68 (Fed. Cir.
2019); U.S. Capitol Police v. Office of Compliance (“Capitol
Police I”), 908 F.3d 748, 760–65 (Fed. Cir. 2018).
6 UNITED STATES CAPITOL POLICE v. OOC
(Fed. Cir. 2015) (reciting the standard of review for appeals
from the Merit Systems Protection Board).
We apply the Administrative Procedure Act standard
of review, 5 U.S.C. § 706, to enforcement actions brought
under 2 U.S.C. § 1407(a)(2). Capitol Police I, 908 F.3d at
758. That standard is essentially identical to the one re-
cited above for our review of final Board decisions. Id. at
755 n.4.
The parties do not dispute that it is an unfair labor
practice to refuse wrongfully to participate in arbitration,
which includes the improper refusal to select an arbitrator.
The question presented here is instead whether the Police’s
refusal to select an arbitrator is excusable.
The existence of an arbitration clause in a contract
raises a presumption of arbitrability, which means doubts
over whether a matter is arbitrable are generally resolved
in favor of coverage. AT&T Techs., Inc. v. Commc’ns Work-
ers of Am., 475 U.S. 643, 650 (1986) (citing United Steel-
workers of Am. v. Warrior & Gulf Navigation Co., 363 U.S.
574, 582–83 (1960)). That includes the question of arbitra-
bility itself where it is “clearly and unmistakably pro-
vide[d]” for by the parties. Id. at 649 (citing Warrior &
Gulf, 363 U.S. at 582–83); see also First Options of Chi.,
Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (“Courts should not
assume that the parties agreed to arbitrate arbitrability
unless there is ‘clea[r] and unmistakabl[e]’ evidence that
they did so.” (alterations in original) (citation omitted)).
Here, the presumption of arbitrability applies and extends
to the question of arbitrability itself. The CAA extends cer-
tain labor-management relations matters in the Federal
Service Labor Management Relations Statute (“FSLMRS”)
to covered employees of the federal government’s legisla-
tive branch, including the right to collectively bargain for
procedures to settle certain grievances. 2 U.S.C. §§ 1301,
1351; 5 U.S.C. § 7121. Incorporated provisions of the
FSLMRS expressly provide that “[a]ny negotiated
UNITED STATES CAPITOL POLICE v. OOC 7
grievance procedure” must “provide that any grievance not
satisfactorily settled under the negotiated grievance proce-
dure shall be subject to binding arbitration . . . .” 5 U.S.C.
§ 7121(b)(1)(C)(iii). The collective bargaining agreement
between the Union and the Police expressly provides for
arbitration of “any matter relating to conditions of employ-
ment,” and reserves for the arbitrator “[i]ssues concerning
the arbitrability of a grievance presented for arbitration . .
. .” J.A. 389–90, 395.
But an exception to the general rule that a particular
grievance should be presumed arbitrable exists when “it
may be said with positive assurance that the arbitration
clause is not susceptible of an interpretation that covers
the asserted dispute.” AT&T Techs., 475 U.S. at 650 (quot-
ing Warrior & Gulf, 363 U.S. at 582–83). In other words,
as applied in the context of federal sector arbitration, the
presumption of arbitrability does not attach to a matter
that “clearly established law” excludes from the coverage
of the applicable negotiated grievance procedures. See U.S.
Dep’t of Veterans Affairs Veterans Canteen Serv. Martins-
burg, W. Va. and Nat’l Ass’n of Gov’t Emps. Local R4–78,
65 F.L.R.A. 224, 228 (2010) (recognizing an exception to the
rule that “questions of arbitrability are solely for an arbi-
trator to decide” where “clearly established law” precludes
arbitration (citing Dir. of Admin. Headquarters, U.S. Air
Force and AFGE–GAIU Council of Headquarters USAF Lo-
cals, AFL–CIO (“AFGE–GAIU”), 17 F.L.R.A. 372, 374–75
(1985)). “Clearly established law” includes an express pro-
vision proscribing a particular grievance or “the most force-
ful evidence of a purpose to exclude the claim from
arbitration . . . .” Warrior & Gulf, 363 U.S. at 584–85. In
this case, such forceful evidence would encompass either
earlier Supreme Court or Federal Circuit decisions or stat-
utory text that is so clear that it forecloses the potential for
any contrary nonfrivolous argument. Cf. Bame v. Dillard,
637 F.3d 380, 384 (D.C. Cir. 2011) (assessing “clearly es-
tablished” law in the qualified immunity context by
8 UNITED STATES CAPITOL POLICE v. OOC
“look[ing] to cases from the Supreme Court and [the U.S.
Court of Appeals for the D.C. Circuit], as well as to cases
from other courts exhibiting a consensus view” (citation
omitted)); Reher v. Vivo, 656 F.3d 772, 775 (7th Cir. 2011)
(suggesting that a right is not clearly established for qual-
ified immunity purposes “[w]here the law is open to inter-
pretation” and one could “reasonably interpret an unclear
statute”); AFGE–GAIU, 17 F.L.R.A. at 375 (using court de-
cisions and the absence of “question[s] of interpretation or
statutory construction which can legitimately be resolved”
to ascertain the presence of “clearly established law”).
Binding legal authority must have placed the question of
arbitrability beyond debate. Cf. White v. Pauly, 137 S. Ct.
548, 551 (2017) (stating that, in the qualified immunity
context, a right is “clearly established” if “existing prece-
dent . . . placed the statutory or constitutional question be-
yond debate”).
As noted above, the Police argued before the Board that
it thought the CAA should be interpreted to mean that ter-
mination decisions should be excluded from arbitration un-
der the governing collective bargaining agreement. The
Board concluded, and we agree, that arguments over how
statutes might be interpreted cannot suffice as “clearly es-
tablished law” to show that a subject has been removed
from arbitration. Before the Board, the Police could point
to no clearly established law stating that Police termina-
tion decisions are not arbitrable, and it points to no such
law on appeal. Indeed, two recent decisions by this Court
flatly reject the statutory interpretation arguments made
by the Police to show that termination decisions are not ar-
bitrable. See Capitol Police II, 913 F.3d at 1367–69 (reject-
ing the argument that the special rule for terminations in
the TCA specifically provides for employee termination and
thus excludes the subject of employee removal from the am-
bit of arbitration because it would not be a condition of em-
ployment); Capitol Police I, 908 F.3d at 760–65 (rejecting
the arguments that the Capitol Police Board’s authority in
UNITED STATES CAPITOL POLICE v. OOC 9
2 U.S.C. § 1907(e)(1)(B) to ratify employee removals or a
comprehensive statutory scheme like the one in Fausto pre-
clude arbitrator review of the Police’s termination deci-
sions). The Board was correct in deciding that the Police
can point to no clearly established law to excuse the refusal
to arbitrate in this case. Accordingly, the Board correctly
concluded that the Police committed an unfair labor prac-
tice in this case.
CONCLUSION
For the reasons stated above, we deny the Police’s pe-
tition and affirm the Board’s decision that the Police com-
mitted an unfair labor practice when it refused to
participate in arbitration concerning Officer Donaldson’s
termination. As the Police’s challenge to the OOC’s appli-
cation seeking enforcement of the Board’s decision and re-
medial order depends on its challenge to the Board’s final
decision, its opposition to the OOC’s application fails. We
therefore grant the OOC’s application to enforce the
Board’s decision and order.
DENIED AS TO 2018-1293 AND GRANTED AS TO
2018-1396
COSTS
No costs.