American Federation of Government Employees v. Federal Service Impasses Panel ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
National Council of HUD Locals Council
222, AFL-CIO,
Civil Case No. 20-2683 (RJL)
Plaintiff,
Vv.
FEDERAL SERVICE IMPASSES
PANEL, et al.,
A A a _ a a_i
Defendants.
MEMORANDUM OPINION
(March ( 4, 2022) [Dkt. #19].
Plaintiff American Federation of Government Employees, National Council of
HUD Locals Council 222, AFL-CIO (“Council 222”) is a public-sector union that
represents employees of the U.S. Department of Housing and Urban Development
(“HUD”). After a breakdown in negotiations between Council 222 and HUD over a new
collective bargaining agreement (“CBA”), the Federal Service Impasses Panel (“Panel”)—
a federal entity that assists agencies and federal-employee unions facing negotiation
impasses—declared that the parties were at an impasse. The Panel resolved the disputed
terms by written decision. Council 222 then filed suit in this Court against the Panel, the
Federal Labor Relations Authority (“Authority”), and the Chairman of the Panel
(collectively, “defendants”), arguing that the Panel’s members were appointed in violation
of the Appointments Clause of the U.S. Constitution. See Complaint (“Compl.”’) [Dkt. #2].
Defendants and intervenor-defendant HUD now move to dismiss for lack of subject-matter
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jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Defs.’ Mot. to Dismiss
(“MTD”) [Dkt. #19].
Because this Court lacks subject-matter jurisdiction over Council 222’s claim under
applicable precedent from our Circuit, the Motion to Dismiss is GRANTED.
BACKGROUND
A. Legal Background
The Federal Service Labor-Management Relations Statute (“Statute”), 5 U.S.C.
§§ 7101 et seg., enacted under Title VII of the Civil Service Reform Act of 1978, governs
labor relations between public-sector unions and federal agencies. Congress tasked the
Federal Labor Relations Authority with administering the statute. 5 U.S.C. §§ 7104-7105.
Among other actions, the Authority shall “resolve[] issues relating to the duty to bargain
in good faith” under the Statute and “conduct hearings and resolve complaints of unfair
labor practices.” Id. § 7105(a)(2)(E), (G). The Federal Service Impasses Panel is an “entity
within the Authority, the function of which is to provide assistance in resolving negotiation
impasses between agencies” and unions representing federal employees. Jd. § 7119(c)(1).
The Panel’s “final action[s]” are “binding” on the parties unless they “agree otherwise.”
Id. § 7119(c)(5)(C).
Under the statutory “scheme of administrative and judicial review,” Am. Fed’n of
Gov’t Emps., AFL-CIO v. Trump (“AFGE v. Trump”), 929 F.3d 748, 752 (D.C. Cir. 2019),
a Panel decision can be reviewed by the Authority in two ways. First, the General Counsel
of the Authority may “investigate” and “file and prosecute [a] complaint[]” if a union or
an agency commits an unfair labor practice. 5 U.S.C. §§ 7104(f)(2), 7118(a). Under the
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Statute, failure or refusal to cooperate with the Panel or refusal to comply with the Panel’s
decisions (among other actions) constitutes an unfair labor practice. Jd. § 7116. Second, a
party may submit a claim alleging an unfair labor practice to an arbitrator, whose decision
is subject to the Authority’s review. Jd. § 7122(a). Either way, the Authority’s final order
is reviewable by a court of appeals. Jd. § 7123.
B. Factual and Procedural Background
Since June 2018, Council 222 and HUD have been bargaining over a successor
CBA. Compl. 422. HUD first requested the Panel’s assistance in resolving an initial
impasse in negotiations over a “ground rules” agreement that would govern the parties’
subsequent CBA negotiations. Compl. J] 23-24. After the Panel issued a decision
imposing ground rules, Council 222 challenged the decision by filing suit in this Court
against the same defendants as here. See Compl., Am. Fed’n of Gov’t Emps. v. Fed. Serv.
Impasses Panel (“AFGE v. FSIP I’), 2020 WL 6709775, Case No. 19-cv-1934 [Dkt. #1].
In this first suit, Council 222 asserted an Appointments Clause challenge, as well as two
additional counts: ultra vires action and violation of the Administrative Procedure Act
because the Panel issued an order without seven members. See Second Am. Compl., AFGE
v. FSIP I[Dkt. #14]. Because the parties continued to negotiate while the suit was pending
and Council 222 voluntarily complied with the ground rules imposed by the Panel, this
Court dismissed that action as moot in November 2020. See Mem. Op., AFGE v. FSIP I
[Dkt. #51].
HUD again requested the Panel’s assistance when the parties reached an impasse in
their CBA negotiations. Compl. 929. After mediation failed, the Panel declared an
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impasse and issued a second decision, HUD and Council 222 Term Agreement (the “CBA
Decision’), on August 12, 2020, resolving the remaining disputed terms. See Compl.
4] 30-36.
On September 21, 2020, Council 222 filed this suit against the defendants, claiming
that the CBA decision is void because the Panel’s members were improperly appointed.
See generally Compl. Council 222 seeks declaratory and injunctive relief (1) vacating the
Panel’s decision in HUD and Council 222 Term Agreement and declaring void the Panel’s
assertion of jurisdiction over the issues in that decision; and (2) declaring that the Panel
may not act without members who have been properly appointed. Jd. HUD successfully
intervened. See Minute Order of Dec. 7, 2020 (granting Mot. to Intervene [Dkt. #11]).
Nearly three months after filing its Complaint, Council 222 moved for preliminary relief
(1) “enjoin[ing] the Panel’s decision in HUD and Council 222 Term [Agreement| from
being implemented,” and (2) “enjoin[ing] the Panel from exercising its powers until its
members have been” properly appointed under the Appointments Clause. See Pl.’s Mot.
for Prelim. Inj. [Dkt. #12] at 26. Council 222 later withdrew its preliminary injunction
motion. See Pl.’s Notice of Withdrawal of Mot. for Prelim. Inj. [Dkt. #16].
Defendants and intervenor-defendant HUD now move to dismiss Council 222’s
Complaint for lack of subject-matter jurisdiction under Rule 12(b)(1). See MTD.
LEGAL STANDARD
‘“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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Under Federal Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by
a preponderance of the evidence. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
“TBjecause subject-matter jurisdiction is an Article HI 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)
(internal quotation marks omitted).
ANALYSIS
Defendants and intervenor-defendant contend that “[s]traightforward application of
[D.C. Circuit] precedent compels dismissal of [Council 222]’s constitutional challenge to
the Panel decision resolving its negotiation impasse with HUD.” MTD at 2. In their view,
the challenge impermissibly seeks direct review of a Panel decision. See id.; see also id.
at 11-16. Council 222 disagrees, contending that subject-matter jurisdiction exists because
its claim “does ‘not entail reviewing a decision of the Panel.’” Pl.’s Opp. to Mot. to
Dismiss (“Opp.”) [Dkt. #25] at 1 (quoting Nat’] Air Traffic Controllers Ass’n v. Fed. Serv.
Impasses Panel (“NATCA IT”), 606 F.3d 780, 787 (D.C. Cir. 2010)); see also id. at 5-8.
Unfortunately for plaintiff, precedent from our Circuit—as two recent opinions by my
colleagues also have concluded—supports defendants’ position. See generally Mem. Op.,
Nat’! Veterans Affairs Council v. Fed. Serv. Impasses Panel (“NVAC”), 2021 WL
5936407, Case No. 20-cv-837 [Dkt. #38] (filed Feb. 10, 2021) (J. Nichols); Mem. Op.,
Ass’n of Admin. L. Judges v. Fed. Serv. Impasses Panel (“AALJ”), 2021 WL 1999547,
Case No. 20-cv-1026 [Dkt. #52] (filed May 19, 2021) (J. Jackson). How so?
Our Circuit has held repeatedly that Panel orders “are not directly reviewable in
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court.” Antilles Consol. Educ. Ass’n v. FLRA, 977 F.3d 10, 14 (D.C. Cir. 2020); see also
Nat'l Air Traffic Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel (“NATCA I”),
437 F.3d 1256, 1258 (D.C. Cir. 2006) (“[D]ecisions of the [Panel] generally are not subject
to direct judicial review.”); Council of Prison Locs. v. Brewer, 735 F.2d 1497, 1498 (D.C.
Cir. 1984) (“Congress precluded direct judicial review of Panel orders.”). Generally, to
obtain judicial review, a union or other “aggrieved party may obtain judicial review by
violating a Panel order and then seeking review of any ensuing FLRA order finding an
unfair labor practice.” Antilles, 977 F.3d at 14 (citing 5 U.S.C. § 7123(a); Brewer, 735
F.2d at 1500).
Courts distinguish unreviewable challenges to Panel decisions from other
permissible suits against the Pancl. On the onc hand, our Circuit has held that this Court
lacked jurisdiction to review a challenge to a Panel decision declining to exercise
jurisdiction over bargaining impasses. NATCA I, 437 F.3d at 1258. The Circuit explained
that the unions sought declaratory and injunctive relief from a Panel decision, but failed to
demonstrate that their challenge fell within an “extremely limited exception”—one not
raised here—“to the nonreviewability of [Panel] orders.” Jd. at 1258, 1262. On the other
hand, subject-matter jurisdiction exists where a union “does not seek review of a[] [Panel]
decision.” NATCA II, 606 F.3d at 787-88. In a subsequent suit by one of the NATCA I
unions, our Circuit concluded that this Court had jurisdiction over a claim seeking
“declaratory relief as to an ongoing policy” of the Panel to refuse to exercise its mandatory
statutory jurisdiction over negotiation impasses between unions and the agency. Jd. at 786
n.*, Unlike in NATCA J, the union’s complaint did “not ask the court to review” “decisions
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of the [Panel] ... declining jurisdiction over the impasse.” Jd. at 787. In fact, “[t]he specific
impasse that prompted the [uJnion to seek assistance from the [Panel]” had been resolved,
such that the Panel “did not reach, let alone answer, the question whether it has jurisdiction
over impasses between the [Federal Aviation Authority] and the [uJnion.” Jd. at 786-87.
In short, to determine whether a suit is an unreviewable challenge to a Panel decision,
“courts focus on the relief sought in the complaint, and in particular whether it ‘identifies’
or would ‘reverse’ a ‘specific decision of the Panel.’” NVAC at 6 (quoting NATCA II, 606
F.3d at 787).
Not surprisingly, defendants and intervenor-defendant invoke Brewer and NATCA
J in support of their motion to dismiss, arguing that Council 222 “challenges a specific
Panel decision ... as the action it seeks to reverse.” MTD at 16. Plaintiff responds that its
claims “are not premised on the substance of the Panel’s decision” and that it “is not
seeking review of any Panel decision.” Opp. at 1-2, 5. Because Council 222 does not seek
review of a Panel decision, it contends, its suit is permissible under NATCA II.
Unfortunately for the plaintiff, its response is unpersuasive!
Unlike the union in NATCA II, Council 222 challenges—from the first sentence of
its Complaint—a specific decision, HUD and Council 222 Term Agreement, by the Panel.
Compare Compl. at 1 (“challeng[ing]” a decision of the Panel and attaching a copy of that
decision to the Complaint) with NATCA IT, 606 F.3d at 787 (the “complaint ... identifie[d]
no specific decision of the [Panel]”). Council 222 further alleges that it is harmed by this
decision and each ofits terms. See Compl. § 45 (“Each term imposed by the Panel in HUD
and Council 222 Term Agreement injures Council 222.”); id. {| 37-45 (identifying specific
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harm caused by the imposed terms). In NATCA JI, the union did not allege injury by a
specific Panel decision; indeed, no specific Panel decision on the relevant question existed.
NATCA II, 606 F.3d at 786-87.
And, as in NATCA I, Council 222 seeks declaratory and injunctive relief from the
allegedly invalid Panel decision—trelief which would protect Council 222 from the claimed
harms. See Compl. at 11 (requesting that the Court “[v]Jacat[e] the Panel’s decision in HUD
and Council 222 Term Agreement in its entirety’); id. at 3 (“The Panel’s decision should
therefore be declared void and vacated.”’); see also NATCA I, 437 F.3d at 1258 (plaintiffs
“sought a declaration that the Panel’s decisions violated its mandatory statutory duties”);
Compl., NATCA I, Case No. 1:04-cv-00138, Dkt. #1 at 1 (“seeking declaratory and
injunctive relief to remedy the January 9, 2004 decisions of the [Panel]”). In other words,
if this Court asserted jurisdiction and afforded the relief sought by Council 222, it would
void a specific decision that the Panel issued just five weeks prior to Council 222’s filing
of this suit. This is a far cry from the posture of NATCA JI, where no specific decision of
the Panel was at issue and the parties did not request that the Court void a Panel decision.
See NVAC at 9 (“Because the Union challenges specific Panel decisions, ‘[t]here can be no
doubt’ that this Court ‘lacks jurisdiction to review’ its claims in the first instance.” (quoting
NATCA II, 606 F.3d at 787)); see also AALJ at 15 n.8 (noting that the union failed to
distinguish NATCA I where the plaintiff “ultimately seeks the invalidation of the Panel’s
April 15, 2020 decision”). Because Council 222 seeks review of and relief from a Panel
decision, this Court lacks subject-matter jurisdiction over its claim.! See NATCA II, 606
F.3d at 787.
CONCLUSION
For the foregoing reasons, this Court must dismiss this case for lack of subject-
matter jurisdiction. The Motion to Dismiss [Dkt. #19] is hereby GRANTED. An order
consistent with this decision accompanies this Memorandum Opinion.
Js
/
RICHARD J. LEON
United States District Judge
' Application of our Circuit’s precedent is alone sufficient to dismiss Council 222’s challenge to a
Panel decision. As other recent decisions of this Court have concluded, the Thunder Basin Coal Co. v.
Reich, 510 U.S. 200 (1994), analysis leads to the same result. See NVAC at 9; AALJ at 12. Under that
“framework, courts determine that Congress intended that a litigant proceed exclusively through a statutory
scheme of administrative and judicial review when (i) such intent is fairly discernible in the statutory
scheme, and (ii) the litigant’s claims are of the type Congress intended to be reviewed within [the] statutory
scheme.” Jarkesy v. Sec. & Exch. Comm’n, 803 F.3d 9, 15 (D.C. Cir. 2015) (internal quotation marks
omitted). The parties do not dispute that the first prong is satisfied here. MTD at 18; Opp. at 8-21. On the
second prong, “[a] claim will be found to fall outside the scope of a special statutory scheme in only limited
circumstances, when (1) a finding of preclusion might foreclose all meaningful judicial review; (2) the
claim is wholly collateral to the statutory review provisions; and (3) the claims are beyond the expertise of
the agency.” Arch Coal, Inc. v. Acosta, 888 F.3d 493, 500 (D.C. Cir. 2018).
I agree with defendants and intervenor-defendant that all three factors weigh in favor of concluding
that Council 222’s claim is “of the type Congress intended to be reviewed within [the] statutory structure.”
Thunder Basin, 510 U.S. at 212. First, a finding of preclusion does not foreclose “all meaningful judicial
review.” Under the Statute, decisions of the Panel are reviewable by the Authority and, subsequently, by a
court of appeals. See Brewer, 735 F.2d at 1500. Because “failure to comply with any final action ordered
by the Panel constitutes an unfair labor practice,” id. at 1500, Council 222 may refuse to cooperate with the
decisions issued by the Panel to obtain review by the Authority and a court of appeals. NVAC at 16. Second,
Council 222’s claim is not “wholly collateral” to the statutory review scheme. Its “constitutional ... claim[]
do[es] not arise ‘outside’ the” administrative scheme, but rather “arise[s] from actions the [Panel] took in
the course of that scheme.” Jarkesy, 803 F.3d at 23. Indeed, the claim is “the ‘vehicle by which’ [Council
222] seeks to prevail in [its] administrative proceeding.” Jd. (quoting Elgin v. Dep’t of Treasury, 567 U.S.
1, 22 (2012)); see also AALJ at 14-15. Third, Council 222’s claim does not lie “beyond the expertise of
the agency.” Under our Circuit’s precedent, a court must ask “whether agency expertise may be ‘brought
to bear on’ the claims”—“not whether the expertise is essential.” AFGE v. Trump, 929 F.3d at 760 (quoting
Jarkesy, 803 F.3d at 29). Here, for example, defendants’ interpretation of the Statute may be relevant to
determining the scope of the Authority’s supervision over the Panel—an inquiry at the core of the
Appointments Clause challenge. See NVAC at 19; AALJ at 16. Council 222’s suit therefore must be
dismissed for this reason as well.
\O