Notice & Comment

DC Circuit Says District Courts Lack Jurisdiction to Hear FSLMRS Cases, by Lou Kolodner

On May 24, 2013, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court dismissal of a challenge by the American Federation of Government Employees (National AFGE), several local AFGE chapters that represent Air Reserve Technicians (ARTs), and ART Mark Winestead (jointly, the “Plaintiffs” or the “Appellants”).  The Appellants challenged three Air Force instructions requiring ARTs to wear military uniforms while performing civilian duties.  The district court dismissed the challenge for lack of subject matter jurisdiction because the Plaintiffs failed to exhaust administrative remedies under the Civil Service Reform Act (CSRA).  The Circuit Court noted that the district court “erroneously used the administrative exhaustion doctrine,” but affirmed the district court’s dismissal for lack of subject matter jurisdiction.  The case hinged on three key facts: the CSRA provides for ways to challenge Air Force instructions; parties cannot challenge the instructions under the Administrative Procedures Act (APA); and the statute places original review in the courts of appeals and not the district courts.

The Plaintiffs represent employees throughout the federal government, including ART bargaining units.  An ART is a federal employee who is required to maintain membership in the Selected Reserve of the Air Force and is assigned to a civilian position as a technician.  In this case, the Plaintiffs challenged three instructions issued by the Air Force on August 6, 2007 requiring ARTs to wear military uniforms while performing civilian duties.  The Plaintiffs challenged the instructions claiming they cause confusion between military and civilian status and wearing the uniform while working imposes rules of conduct that would not otherwise apply to the ARTs.

In 2008, the Plaintiffs filed a complaint in federal district court arguing that under the APA the instructions are arbitrary and capricious, contrary to law, and that the Secretary lacked the authority to issue the instructions.  The District Court dismissed the complaint because the Plaintiffs “failed to exhaust administrative remedies under the CSRA.”

Title VII of the CSRA, known as the Federal Service Labor-Management Relations Statute (FSLMRS), protects federal workers against a broad range of personnel practices and provides the workers with causes of action and remedies when their rights are violated.  It is “an integrated scheme of administrative and judicial review.”  United States v. Fausto, U.S. 439, 445 (1988).  Title VII of the CSRA governs federal labor-management relations and federal employees “may not circumvent” Title VII “by seeking judicial review outside the CSRA’s procedures.”  Grosdidier v. Chairman, Broad. Bd. Of Governors, 560 F.3d 495, 497 (D.C. Cir.), cert. Denied, U.S. 989 (2009); Steadman v. Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963, 967 (D.C. Cir. 1990).

Under the FSLMRS, to challenge management actions a party must invoke an arbitration procedure, or a local union can bargain over the action.  If the union requests to bargain over the action and management asserts the action is non-negotiable, the union can appeal the designation of non-negotiability to the Federal Labor Relations Authority (FLRA).  After arbitration, either party may file exceptions to the arbitrator’s award with the FLRA.  Either party can appeal an FLRA order in the D.C. Circuit or in the Circuit in which the party resides or transacts business.  Therefore, an FLRA order may only be reviewed in a court of appeals; not in district court.  The court dismissed National AFGE’s complaint noting that it could not seek relief under FSLMRS and therefore should be allowed to seek relief in district court under the APA.  Rather than allowing National AFGE to challenge the instructions outside of the FSLMRS procedures, the court determined that National AFGE may not raise the claim at all.

The court explained that the Plaintiffs have at least three administrative options to challenge the dress code: (1) a local can attempt to bargain over the dress code; (2) a local can allege that the imposition of the dress code violates a law, rule or regulation affecting the conditions of employment; or (3) file an unfair labor practice charge.  The court pointed out that one or more local chapters have begun each of the three options to challenge the instructions.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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