Savas Suzal v. Director, United States Information Agency

STEPHEN F. WILLIAMS, Circuit Judge,

concurring:

I write separately in part II.C. of this opinion because I believe that Suzal’s failure to exhaust his arbitration rights defeats the courts’ jurisdiction.

1. At least for employees who are covered by the civil service laws, exhaustion of available grievance rights is a jurisdictional prerequisite.

Where exhaustion is not required by statute, we have held that whether to invoke the exhaustion doctrine sua sponte rests within the sound discretion of the trial court. See, e.g., National Wildlife Fed’n v. Burford, 835 F.2d 305, 317-18 (D.C.Cir.1987); id. at 330-32 (Williams, J., concurring and dissenting). But when a statutory scheme — whether explicitly or by clear implication — requires plaintiffs to exhaust their nonjudicial remedies before turning to the courts, the exhaustion requirement becomes less flexible. McCarthy v. Madigan, — U.S. -, -, 112 S.Ct. 1081, 1086 , 117 L.Ed.2d 291 (1992); Patsy v. Board of Regents, 457 U.S. 496 , 502 n. 4, 102 S.Ct. 2557 , 2560 n. 4, 73 L.Ed.2d 172 (1982). Statutes of this sort make exhaustion a jurisdictional prerequisite. See, e.g., Brown v. General Servs. Admin., 425 U.S. 820 , 96 S.Ct. 1961 , 48 L.Ed.2d 402 (1976) (interpreting 42 U.S.C. § 2000e-16).

One might think that this kind of exhaustion requirement would never apply to grievance rights conferred by a collective bargaining agreement rather than a statute. Even with respect to employees covered by the CSRA, after all, agencies are under no obligation to make any particular matters “grievable”; the scope of an employee’s grievance rights is determined by contract. See 5 U.S.C. § 7121 (a)(2). A decade ago, we did not even discuss whether the CSRA might make exhaustion of such rights a statutory requirement; faced with civil service employees seeking to challenge actions taken pursuant to a reduction in force, we analyzed the exhaustion issues purely on prudential grounds, stating simply that “the exhaustion requirement is not in general jurisdictional in nature”. Andrade v. Lauer, 729 F.2d 1475, 1484 (D.C.Cir.1984); cf. National Fed’n of Federal Employees v. Weinberger, 818 F.2d 935, 940-41 (D.C.Cir.1987).

But the intervening case of United States v. Fausto, 484 U.S. 439 , 108 S.Ct. 668 , 98 L.Ed.2d 830 (1988), affected our later analysis. Describing the CSRA as “an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration”, Fausto held that the statute implicitly repealed prior laws to the extent *586 that they conferred implied rights to judicial review of personnel actions. Id. at 445, 453 , 108 S.Ct. at 672, 676 . The Supreme Court reasoned that Congress’s effort to erect an integrated and comprehensive system would have been thwarted if people could still proceed under the “haphazard arrangements for administrative and judicial review of personnel action” that had grown up before the CSRA. See id. at 444 , 108 S.Ct. at 672 ; cf. Smith v. Robinson, 468 U.S. 992, 1010 , 104 S.Ct. 3457, 3467 , 82 L.Ed.2d 746 (1984).

Fausto , of course, read the CSRA not merely to defer judicial consideration of certain challenges to federal personnel actions but to keep them out of court entirely. Cf. Carducci v. Regan, 714 F.2d 171, 173-75 (D.C.Cir.1983); Spagnola v. Mathis, 859 F.2d 223 , 230 n. 13 (D.C.Cir.1988) (en banc). But we have held that the district courts are open to challenges seeking equitable relief on constitutional grounds, at least when the CSRA does not provide an adequate alternative route to judicial review. 1 See, e.g., id. at 229-30 ; Griffith v. FLRA, 842 F.2d 487, 494-95 (D.C.Cir.1988); Hubbard v. United States EPA Administrator, 809 F.2d 1, 11 (D.C.Cir.1986); Carducci, 714 F.2d at 175-77 ; Borrell v. United States Int’l Communications Agency, 682 F.2d 981, 989-90 (D.C.Cir.1982); cf. Webster v. Doe, 486 U.S. 592, 603 , 108 S.Ct. 2047, 2053 , 100 L.Ed.2d 632 (1988) (stating presumption against interpreting statutes to preclude judicial review of constitutional challenges). Still, the principle that we should construe statutes to allow people with constitutional claims to come to court eventually hardly requires constructions allowing them to bypass the available nonjudicial remedies entirely.

To the contrary, in Steadman v. Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963 (D.C.Cir.1990), we interpreted the CSRA as imposing an implicit exhaustion requirement: except in “the unusual case in which the constitutional claim raises issues totally unrelated to the CSRA procedures”, 2 district courts cannot take jurisdiction until after plaintiffs have exhausted the nonjudicial structure contemplated by Congress. Steadman, 918 F.2d at 966-68. Steadman cited some pre-CSRA cases emphasizing the prudential argument that requiring exhaustion in such circumstances might' “eliminat[e] any need for the courts to pass on the constitutional issues”. See Wallace v. Lynn, 507 F.2d 1186, 1190-91 (D.C.Cir.1974); see also Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 774 , 67 S.Ct. 1493, 1504 , 91 L.Ed. 1796 (1947). But we relied principally on the rationale of Fausto : the same logic underlying the Supreme Court’s view that the CSRA “precludes district courts from taking jurisdiction over [nonconstitutional] CSRA-relat-ed claims” necessarily bars federal employees from sidestepping Congress’s scheme “even if their claim is based as well on the Constitution”. Steadman, 918 F.2d at 967. Congress, we reasoned, did not intend to let plaintiffs sidestep its careful remedial structure whenever they were able to cast their complaints in constitutional terms. Id. (citing Brown v. GSA 425 U.S. at 833 , 96 S.Ct. at 1968 ).

Steadman emphasized, moreover, that the authorization of collective bargaining is part of Congress’s “enormously complicated and subtle scheme to govern employee relations in the federal sector”, and that the grievance rights resulting from that authorization are woven into the overall scheme. Id. These rights, then, are part of the remedial structure that Congress intended to prevent federal employees from circumventing.

In Steadman itself, the plaintiff employees had failed to exhaust the grievance rights *587 that their employing agency had purported to extend to them through their collective bargaining agreement, but we did not rely on this failure because we thought that the agency might have been acting ultra vires when it gave these particular employees such grievance rights. See id. at 966 n. 4. Nonetheless, we found that the employees had failed to exhaust other channels of relief available through the Federal Labor Relations Authority. Accordingly, we remanded the case to the district court “with instructions to dismiss for lack of subject matter jurisdiction”. Id. at 968.

2. Even though Suzal was employed without regard to the civil-service laws, he still faced a statutory exhaustion requirement.

Steadman’s conclusion — that the CSRA implicitly imposes a broad bar on efforts to circumvent the nonjudicial remedies contemplated by Congress — is not directly applicable to Suzal, who was employed “without regard to” the CSRA. But Suzal still faced a statutory exhaustion requirement, because of a narrower bar that Congress explicitly made applicable to the collective bargaining agreement under which Suzal enjoyed his grievance rights.

Suzal’s union, Local 1812 of the American Federation of Government Employees, is the exclusive representative of a bargaining unit that includes many ordinary employees (fully covered by the CSRA) as well as some Smith-Mundt employees. The contract that the union reached with USIA in its capacity as the representative of this unit plainly qualifies as a “collective bargaining agreement” within the meaning of the CSRA’s chapter on labor-management relations. See 5 U.S.C. § 7103 (a)(8), (12). Suzal’s grievance rights stem from this same agreement. And the CSRA provides that the grievance procedures established in “any collective bargaining agreement” are “the exclusive procedures for resolving grievances which fall within [the agreement’s] coverage”, except to the extent of their overlap with the statutory appeals procedures set out in the CSRA. 6 U.S.C. § 7121 (a)(1) (emphasis added).

The Supreme Court has applied a strong presumption against reading statutes to preclude all judicial review of constitutional claims, see Webster v. Doe, 486 U.S. 592, 603 , 108 S.Ct. 2047, 2053 , 100 L.Ed.2d 632 (1988), but at a minimum § 7121(a)(1) must impose an exhaustion requirement: Congress plainly did not want employees to take their grievances straight to court when they could have pursued the negotiated procedure instead. 3 In § 7121(a)(1), then, Congress expressed its intention to prevent circumvention of available grievance rights far more clearly than it expressed the broader intention (which Steadman inferred merely from the comprehensiveness of the overall statutory scheme) to prevent circumvention of the other nonjudicial remedies that the CSRA contemplated.

The Smith-Mundt Act, moreover, does not mean that § 7121(a)(1) has no consequences for Suzal. While he personally was employed without regard to the CSRA, the CSRA certainly applies to the collective bargaining agreement through which USIA chose to give him his grievance rights. Of course, USIA was not obliged to use a collective bargaining agreement covered by the CSRA as the vehicle for extending grievance rights to Suzal. But it elected to do so. 4 *588 Since Suzal is raising grievances covered by the procedures erected in the collective bargaining agreement between USIA and Local 1812, and since Congress explicitly made those procedures the exclusive means for resolving covered grievances, Suzal cannot take his complaints straight to court.

3. No exception to the statutory exhaustion requirement applies here.

To the extent that § 7121(a)(1) merely imposes an exhaustion requirement rather than a true exclusivity requirement, Steadman suggests that it might incorporate an exception for constitutional claims “totally unrelated” to the grievance procedures contemplated by Congress. See supra at 586 n. 2. But in contrast to Andrade , where the constitutional claim was based on the Appointments Clause and could not have been pursued through arbitration, Suzal’s- First Amendment claim, made out a “prohibited personnel practice” that he could have challenged in the grievance procedure. See Maj. Op. at 579-80. Indeed, much of the relief Suzal sought in court was an order granting him access to arbitration. See Suzal’s Reply Brief at 3 (“Suzal made clear from the outset of his case that he sought a District Court order requiring VOA to afford him an opportunity to pursue the agency’s greivanee/arbitration procedures.”); Suzal’s Supplemental Brief at 14 (“[T]he essence of the remedy sought can still be given ... by requiring the agency to cease refusing to arbitrate on the basis of its view that the 1948 statute precludes arbitration-”). Suzal’s grievance route, then, apparently had the potential to redress fully his alleged constitutional violations. Cf. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53 , 85 S.Ct. 614, 616 , 13 L.Ed.2d 580 (1965) (“[F]ederal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.... [I]t cannot be said, in the normal situation, that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so.”).

Accordingly, I would vacate the district court’s orders and remand with instructions to dismiss the case for want of subject-matter jurisdiction.

. Other circuits have found the statutory procedures exclusive even when they provide for little or no judicial review. See Saul v. United States, 928 F.2d 829 , 843 & n. 27 (9th Cir.1991); Lombardi v. Small Business Admin., 889 F.2d 959 , 961-62 (10th Cir.1989); Pinar v. Dole, 747 F.2d 899, 909-12 (4th Cir.1984).

. If the constitutional claim can be pursued and fully remedied through the CSRA procedures, it does not fit this exception. And even if the claim cannot be pursued through those procedures, it is not "totally unrelated" to them if it (1) is premised on the same facts as claims that could be pursued through those procedures, and (2) could potentially be mooted by the relief available on those claims. Id. at 963, 967 ; accord National Treasury Employees Union v. King, 961 F.2d 240, 243 (D.C.Cir.1992). Cf. Andrade, 729 F.2d at 1493 .

. The principle of Webster v. Doe cannot be applied when Congress clearly intended to preclude judicial review altogether, and if we were to read § 7121(a)(1) as reflecting such a clear intent we would have to confront the "serious constitutional' question” of whether it is valid as applied to constitutional claims. See id. But even if we held § 7121(a)(1) invalid insofar as it keeps constitutional claims out of court altogether, Suzal would not benefit, for the provision still would operate as an exhaustion requirement. See Aircraft & Diesel Equip. Corp., 331 U.S. at 767 , 67 S.Ct. at 1501 ("When Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, whether or not when it has been rendered they may intervene either in presumed accordance with Congress’ will or because, for constitutional reasons, its will to exclude them has been exerted in an invalid manner.”).

. We need not decide whether USIA’s use of a different vehicle (such as an individual contract) might have freed Suzal from any statutory exhaustion requirements. This question would call upon us to determine the implicit statutory limits, if any, on the generosity of the grievance rights that USIA is empowered to give Smith- *588 Mundt employees. Cf. Steadman, 918 F.2d at 966 n. 4.