Petition for Writ of Certiorari — Filebark v. Department of Transportation (No. 08-1415)

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Supreme Court, U.S.

C1) FILED

No. 08-__ 081415 MAY 14 2009

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

JOSEPH J. FILEBARK, et al.,

Petitioners,

UNITED STATES DEPARTMENT

OF TRANSPORTATION and FEDERAL

AVIATION ADMINISTRATION,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

PETITION FORA WRIT OF CERTIORARI

ERIC SCHNAPPER*

School of Law

University of Washington

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

GEORGE M. CHUZ}I

KALIJARVI, CHUZI & NEWMAN, PC

1901 L Street, N.W.

Suite 610

Washington, D.C. 20036

(202) 331-9260

Counsel for Petitioners

*Counsel of Record

CUCKLE. LAW BRIFF PRINTING CO) (R00) 225-594

OK CALI. COLLECT (40% 442-254

QUESTION PRESENTED

The Civil Service Reform Act of 1978 regulates

adverse personnel actions, i.e. official actions that

unfavorably alter the employment, classification or

salary of federal employees. The Act provides a com-

prehensive set of remedies for such adverse personnel

actions, including in specified circumstances review

by the Merit Systems Protection Board and judicial

review of the action of the Board. In United States v.

Fausto, 484 U.S. 439 (1988), this Court held that the

Act precludes judicial review of such adverse

personnel actions under the Back Pay Act.

The Question Presented is: Does the Civil Service

Reform Act, as the District of Columbia Circuit held,

preclude judicial review under statutes other than

the Civil Service Reform Act itself of “federal

employee claims” generally, including claims that are

neither adverse personnel actions nor otherwise

covered by the Act?*

* A certiorari petition raising the same question presented

is pending in Grosdidier v. Chairman, Broadcasting Board of

Governors, No. 08-___

PARTIES

The petitioners are Joseph J. Filebark, II, Jerry

Todd, Sr., John J. Havens, II, and Richard Boatman.

The respondents are the United States Department of

Transportation and the Federal Aviation Administra-

tion.

TABLE OF CONTENTS

Page

Crpeation: Premerb0d cécciievscescevessssvcswsescsyensssnaessnace i

PI co saisdnccsimsticsciviisiessesae ie a ll

TORO AE FI oi vais idivccavcdsrwieisnemersaecs ees Vv

CS TOTO assoc see penance 1

Statement of JUrsisGiction. .....006s.sc0sscsesssecossesecserseoss 1

DUNE EROTIE.. s hoktscesscaceseicainc nese 2

Statement OF Ui COG 6icivoiiis esc ersscsseesvenees 5

Reasons for Granting the Writ..................ceeeeseeeees 10

I. There Is A Well Established Inter-Circuit

Conflict Regarding Whether The Civil Ser-

vice Reform Act Precludes Federai Em-

ployees From Bringing Actions Under

Other Statutes Regarding Claims Not In-

volving Adverse Personnel Actions ............. 10

II. This Inter-Circuit Conflict Involves An

Important and Recurring Issue................... 28

CN TIIIIN sas ccd es cctezencesle ree 36

Appendix

Opinion of the Court of Appeals for the District

of Columbia Circuit, February 13, 2009 ....... App. la

Opinion of the District Court for the District of

Columbia, February 27, 2006...............0...... App. l4a

TABLE OF CONTENTS —- Continued

Page

Opinion of the District Court for the District of

Columbia, March 31, 2008.............. cee App. 25a

Opinion of the Court of Federal Claims, May 5,

SIE 5s soadseasesaosannaiacvanensioatbusnventaymceiiaeienemeutonen App. 44a

Opinion of the Court of Appeals for the Federal

Cimeralt,, (CCRT B, DOIG. onc ccccevcccesecesscsveness App. 56a

TABLE OF AUTHORITIES

Page

CASES

Abramson v. United States, 42 Fed.Cl. 326

Wore eee ced aa gah cade eecgeey oaatcaccaien 22, 30

Adams v. United States, 48 Fed.Cl. 602 (2001) ....22, 30

Agee v. United States, 77 Fed.Cl. 84 (2007)......... 22, 30

Ainslie v. United States, 55 Fed.Cl. 103 (2003).....23, 30

Bailey v. United States, 52 Fed.Cl. 105 (2002).......... 23

Bell v. United States, 23 Ct.Cl. 73 (1991).................. 22

Berry v. United States, 86 Fed.Cl. 24 (2002)................. 23

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971).............. 32

Bosco v. United States, 931 F.2d 879 (Fed. Cir.

i desu cvcneinisis cs tdiecacnseasunenenecn aes 17, 18, 32. 27. 33

Bosco v. United States, 976 F.2d 710 (Fed. Cir.

|, DOA ITER Rae RTI RRS Sen pene en 19

Bradley v. United States, 42 Fed.Cl. 333 (1998) ....22, 30

Brock v. United States, 64 F.3d 1421 (9th Cir.

a ee 25

Broughton v. Courtney, 861 F.2d 639 (11th Cir.

| Seg ee eee RAR ND MI POR Prinne eR REN: 17

Burroughs v. OPM, 784 F.2d 933 (9th Cir. 1986)........33

Carducct v. Regan, 714 F.2d 171 (D.C.Cir.

EY 5st gs eotadccsads snares teen cseas ae 11, 16, 27

Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990)

ak ee eee a eae 31, 33

TABLE OF AUTHORITIES — Continued

Page

Contreras v. United States, 64 Fed.Cl. 583

Tee a a a lo a acu ea uae se int 22, 30

Cooper v. Kotarski, 487 U.S. 1212 (1988) ....... 32

Crowley v. United States, 398 F.3d 1329 (Fed.

Be MIND sissneasuvceesvasacnicannesacaes Reco RI ORS AN 21, 33

Dugan v. Ramsay, 727 F.2d 192 (1st Cir. 1984) ........ 11

Fausto v. United States, 791 F.2d 1554 (Fed.

Gallo v. United States, 529 F.3d 135, 1352 (Fed.

| Dee tea a ce ae ee ree le ue 24

Graham v. Ashcroft, 358 F.3d 931 (D.C.Cir.

gee aided ds Or de Si anaanes vnasnuanebersantake 15

Grosdidier v. Chairman, Broadcasting Board of

Governors, 560 F.3d 495 (D.C.Cir. 2009).......... 16, 27

Hannon v. United States, 48 Fed.Cl. 15 (2000)......... 30

Harper v. Frank, 985 F.2d 285 (6th Cir. 1993) ....16, 17

Hedman v. United States, 15 Ct.Cl. 304 (1988) ....22, 30

Hendrix v. Snow, 170 Fed.Appx. 68 (11th Cir.

i ei cE SERRE i ne oS ERNE Oe uN nea ee ee 17

In Re Korean Airlines Disaster of September 1,

MB oe Bye Rh eee Ry} ee 35

King v. United States, 81 Fed.Cl. 766 (2008)....... 23, 30

Lindahl v. OPM, 470 U.S. 768 (1985)....................008- 11

Mahtesian v. Lee, 406 F.3d 1131 (9th Cir. 2005)........ 25

TABLE OF AUTHORITIES — Continued

Page

Mangano v. United States, 529 F.3d 1243 (9th

iy MINE ncchc ce svenetaccoccasecsniececnvensieeasheumentuanevadeeu<tie, 24

Mudge v. United States, 308 F.3d 1220 (Fed.

ae MINT ccxouascicesscduidectaruaaesa cua as 12, 21,27, 33

Muniz v. United States, 972 F.2d 1304 (Fed.

Caeee Ici sccachasntnavoreanceuned jdeiltaaa aasteeouatiauietesiaseokondes 31

Orsay v. United States Department of Justice,

289 F.3d 1125 (Sth Cir. ZO0Z)..........cscccccssssscrseesseoces 25

Read v. United States, 254 F.3d 1064 (Fed. Cir.

+ DEN leap AR ter MI er kre tim Einar A 24

Romero v. Brady, 764 F.Supp. 227 (D.P.R. 1991)...... 31

Romero v. United States, 38 F.3d 1204 (Fed.

te I eh ccccceadasiasscncsacaiasetmasemeentes 18. 20, 23, 27, 33

Ryon v. O’Neill, 985 F.2d 204 (6th Cir. 1990)............. 17

Saul v. United States, 928 F.2d 829 (9th Cir.

UME Dv. c0s cae vstha saceeycvemencikeava teh ohenmcasinaeeeuantoianeiaes sees 26

Sawyer v. Musumeci, 1998 WL 743734 (2d Cir.

RR gear MOLNAR RAE AACN AEDS ENA FMS COME! ROME PPA SI IT! 26

Scholl v. United States, 61 Fed.Cl. 322 (2004) ....24, 29

Sloan v. United States, 36 Fed.Cl. 163 (1996).....22, 30

Steele v. United States, 19 F.3d 531 (10th Cir.

| | | See eee eer Map e ewCe ne oe, Re RY Le Pn,

Tiltti v. Weise, 55 F.3d 596 (2d Cir. 1998)................... 26

United States v. Fausto, 484 U.S. 439 (1988).... passim

United States v. Hohri, 482 U.S. 64 (1987)................ 31

V1ll

TABLE OF AUTHORITIES — Continued

Page

Vanderpool v. United States, 84 Fed.Cl. 66

SIE csc dascactaccdsasunasncriigusencstitwcisseaieeueiavausucen tas 22, 30

Weber v. Department of Veterans Affairs, 129

ee I oc ie aaencaauahvennbocentoeouminseteeridesnsasselll

Whitman v. Department of Transportation, 547

II revo deoccvinschechcnsecevalbrenshsacesosxoxes passim

Worthington v. United States, 168 F.3d 24 (Fed.

i Se AER ee EC OP As On ne en em 20, 21, 22, 26

Zervas v. United States, 26 Ct.Cl. 1425 (1992).......... 23

STATUTES

ee sv udessolenaitys csubladscamheecenaccocacwaiel 2

ee eG deca havi edesecocksusdcccupabsnacsbesiss icine 2

SC ese Sa wipnssondanbaseunees 2

ee oC Tos dda cu dacdseeisanpioeacinauineent 2,6

ee as aakndaysindessesssupannavesivenansavvine 6,9, 10

To Os ceapabemsenesenscuskedounraceneinal 2

ee os ccc lepwnnenecavedesusssadsondssseseinaresdee

ee Ct 2s occa pvcucswinensacineccysnapbeaeeeierte

ROR Soe Bey.) & ) eensiisaaetueshintoustanisecee

TABLE OF AUTHORITIES — Continued

Page

29 U.5.C., © Rei iiciiddsesissscsvevecccecesseneO h

49 U.S.C. § 40122(g).......... Ea vatgcacinseiseceessees 6, 35

49 U.S.C, © Se iiirrsasssccsecscsssccvccssesscceses 4

49 U.B.C. © QU reetteebatistersitnsscsscssoveresssccvccesesecees 4

49 U.S.C. 9 GOR Reade tsssctavsccasvosssssecccssscvesonscoeses 4

49 U.S.C. 5 QR etrseessascncsesscesscorcccscscsscvecveenees 4

49 U.S.C. 9 Qi ear esdisissncscesesesesssvececccseees 4

49 U.S.C, © Sei scisccscsvvererccccresen seco O

49 U.S.C. Se eis sisciscenscsssccccescoscossens. 12

Administrative Procedure Act................ 2,9, 16, 31, 34

Bankruptcy Be iaiasetsaresenscasersceseccccoses ‘seme

Civil Ser vicw Pe eirar each aaecsacceconccccceccscccccs passim

Fair Labor Standards Act.............0ssccsccossserssecessvvesesese dO

Federal Aviation Administration Personnel

SY SCO cccncal casa NT Tae acstvesscsesccccssescccccccess 4

Federal Law Enforcement Pay Reform Act............... 30

K1C88 ACE oisccccnssnsnsseeeE ER Ma ATA sahansveaccccnsscscescecess 30

Law Enforcement Availability Pay Act...................... 29

Little ‘Tce Fame rca ye aaah ixaraseseceses, eee cenugtt dl

SOVOP AICO Fy Fe iia saci nsnscssesescocccccsscecess 30

Tucker Att .cccccccseee as 8 21. 28, 29, 30

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Brief for Appellee, Grosdidier v. Chairman,

Broadcasting Board of Governors, No. 08-

ee Hein aE Ie Coeds s vasccsacebncctadceckcccsericeeemumeameiancenae

Brief for Defendants-Appellees, Johnson v. United

States, 81 Fed. Appx. 388 (2d Cir. 2003), 2003

2% ya) ) OeOenr ae SPI ANTS PROD PRPS HEN GME Ae 26

Brief of Defendant-Appellee, Mangano v. United

States, No. 05-17334 (9th Cir.), 2006 WL

SET TET cis dnb chacnuucatuatcstecencbesiasdtosbieseaniaasuaaeeace anes 26

Brief for Respondent, Whitman v. Department

of Transportation, No. 04-1131 (October 20,

BED indica ceincstissstedicusdicsvemeasaaniaeeaniscncene 13, 32

Brief for the Respondents in Opposition, Weber

v. Department of Veterans Affairs, No. 08-281

(FRMING i, MINE Nis acunccnuiaicesebensnenceetsondeusueaearbonadesdaaeacsieseee

Petition for Writ of Certioran, United States v.

Fausto, No. 86-595 .......... ae eet a den ees ere

Petition for Writ of Certiorari, Cooper v. Ko

RUIN, FE. A gad vasevececsdcetasstsceciticvisicea en 32

Petition for Writ of Certiorari, Weber v. Depart

ment of Veterans Affairs, No. 08-281.......... 00, 04

Petitioners Joseph Filebark, et al., respectfully

pray that this Court grant a writ of certiorari to re-

view the judgment and opinion of the United States

Court of Appeals entered on February 13, 2009.

OPINIONS BELOW

The February 13, 2009 opinion of the Court of

Appeals for the District of Columbia, which is

reported at 558 F.3d 1009 (D.C.Cir. 2009), is set out at

pp. la-13a of the Appendix. The March 31, 2008

opinion of the District Court for the District of

Columbia, which is reported at 542 F.Supp.2d 1

(D.D.C. 2008), is set out at pp. 25a-43a of the

Appendix. The February 27, 2006 opinion of the

District Court for the District of Columbia, which is

reported at 468 F.Supp.2d 3 (D.D.C. 2006), is set out

at pp. 14a-24a of the Appendix. The October 5, 2004,

opinion of the Court of Appeals for the Federal

Circuit, which is reported at 386 F.3d 1091 (Fed. Cir.

2004), is set out at pp. 56a-64a of the Appendix. The

May 5, 2003 opinion of the Court of Federal Claims,

which is reported at 56 Fed.Cl. 449 (2003), is set out

at pp. 44a-55a of the Appendix.

STATEMENT OF JURISDICTION

The decision of the court of appeals was entered

on February 13, 2009. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Administrative Procedure Act

Section 702 of Title 5 provides in pertinent part

“A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof.”

Section 704 of Title 5 provides in pertinent part

“Agency action made reviewable by statute and final

agency action for which there is no other adequate

remedy in court are subject to judicial review.”

Section 706 of Title 5 provides in pertinent part:

“The reviewing court shall ... hold unlawful and set

aside agency action, findings, and conclusions found

to be — (A) arbitrary, capricious, an abuse of discre-

tion, or not in accordance with law....”

Civil Service Reform Act

Section 7512 of Title 5 provides in pertinent part:

This subchapter applies to —

(1) removal;

(2) asuspension for more than 14 days;

(3) a reduction in grade;

(4) areduction in pay; and

(5) a furlough of 30 days or less ...

Section 7513 of Title 5 provides in pertinent part:

(a) Under regulations prescribed by the

Office of Personnel Management, an

agency may take an action covered by

this subchapter against an employee

only for such cause as will promote the

efficiency of the service.

(d) An employee against whom an action is

taken under this section is entitled to

appeal to the Merit Systems Protection

Board under section 7701 of this title.

Section 7701(a) of Title 5 provides in pertinent

part: “An employee, or applicant for employment,

may submit an appeal to the Merit Systems Protec-

tion Board from any action which is appealable to the

Board under any law, rule, or regulation.”

Section 7703(a) of Title 5 provides in pertinent

part: “Any employee or applicant for employment ad-

versely affected or aggrieved by a final order or deci-

sion of the Merit Systems Protection Board may

obtain judicial review of the order or decision.”

Section 7703(b)(1) of Title 5 provides in pertinent

part that “[elxcept as provided in paragraph (2) of

this subsection, a petition to review a final order or

final decision of the Board shall be filed in the United

States Court of Appeals for the Federal Circuit.”

Federal Aviation Administration Personnel Sys-

tem

Section 40122(g)(1) of Title 49 provides in perti-

nent part:

{NJjotwithstanding the provisions of title 5

and other Federal personnel laws, the Ad-

ministrator shall develop and implement,

no later than January 1, 1996, a personnel

management system for the Administration

that addresses the unique demands of the

agency’s workforce. Such a new system shall,

at a minimum, provide for greater flexibility

in the hiring, training, compensation, and

location of personnel.

Section 40122(g)(2) of Title 49 provides in perti-

nent part:

Application of title 5 — the provisions of

title 5 shall not apply to the new personnel

management system developed and imple-

mented pursuant to paragraph (1), with the

exception of —

(A) section 2302(b), relating to whistleblow-

er protection....;

* a *

relations;

* *” Ak

(H) sections 1204, 1211-18, 1221, and 7701-

7703 relating to the Merit Systems Pro-

tection Board.

Section 40122(g)(3) of Title 49 provides:

Appeals to Merit Systems Protection

Board. — Under the new personnel manage-

ment system developed and implemented

under paragraph (1), an employee of the

Administration may submit an appeal to the

Merit Systems Protection Board and may

seek judicial review of any resulting final

orders or decisions of the Board from any

action that was appealable to the Board

under any law, rule, or regulation as of

March 31, 1996.

STATEMENT OF THE CASE

The Statutory Scheme

The Civil Service Reform Act of 1978 (““CSRA”)

codified and reorganized a number of important sub-

stantive and procedural rights of federal employees.

Chapter 75 deals with adverse personnel actions

taken against employees “for the efficiency of the

service.” Section 7513 establishes certain procedures

which an agency must follow in taking a major

adverse personnel action, such as a dismissal or re-

duction in pay. Section 7513(d) provides that any

employee against whom such an action is taken may

appeal to the Merit Systems Protection Board

established under Chapter 12. Section 7703 autho-

rizes judicial review of actions by the Board.

Chapter 23 of the CSRA establishes a number of

prohibited personnel practices. Employees aggrieved

by asserted violations of those prohibitions may seek

redress from the Office of Special Counsel, establish-

ed under Chapter 12. Section 1222 of Title 5 provides

that “[e]xcept [with regard to certain whistleblower

claims], nothing in this chapter or chapter 23 shall be

construed to limit any right or remedy available

under a provision of statute which is outside of both

this chapter and chapter 23.”

Chapter 71 of the CSRA regulates labor relations

at federal agencies, and requires that any collective

bargaining agreement shall provide procedures for

the settlement of grievances arising under that agree-

ment. Those grievance procedures of a collective bar-

gaining agreement ordinarily are “the exclusive

administrative procedures for resolving grievances

which fall within its coverage.” 5 U.S.C. § 7121(a).

The Federal Aviation Administration is expressly

subject to the provisions of the CSRA regarding

appeals to the MSPB and judicial review of Board

actions. The labor relations provisions of Chapter 71

also apply to the FAA. On the other hand, most of the

provisions of Chapter 23 regarding prohibited person-

nel practices do not apply to the FAA, and in dealing

with major adverse personnel actions the FAA is free

to frame its own internal procedures. 49 U.S.C.

§ 40122(¢).

Proceedings Below

This case concerns the salary levels paid to

employees at the FAA Albuquerque air traffic control

facility. Salary levels for controllers and their super-

visors are governed by the classification given to the

particular facility at which they work. That classifi-

cation is based to a substantial degree on the amount

of air traffic which the facility must handle. Air traffic

controllers at facilities that handle a higher volume of

traffic are paid more. This salary and classification

system is embodied both in a collective bargaining

agreement between the FAA and the National Air

Traffic Controller Association (“NATCA”) and in a

separate order issued by the FAA that governs the

salaries of supervisors who are not covered by the

collective bargaining agreement. (Pet. App. 16a-17a

and note 2, 28a-30a). The Albuquerque Center is now

classified at an air traffic contro] (“ATC”) Level 10.

The plaintiffs (both union and non-union controllers)

seek to have the Center reclassified as an ATC Level

11, which would result in a significant increase in

salary for unionized and non-union workers alike.

Plaintiffs made repeated but unsuccessful efforts

to pursue administratively their contention that the

Albuquerque Center was misclassified. Filebark and

another plaintiff’ who were union members initially

filed a gmevance under the collective bargaining

agreement, asserting that the Center’s classification

' Filebark and Havens.

violated that agreement, and filed an unfair labor

practice charge based on that asserted violation. The

union subsequently filed a grievance of its own, and

then asked that the grievance and charge filed earlier

by the two individual controllers be dismissed in light

of that union grievance. Once the grievance and

charge of the two controllers had been dismissed as

requested, however, the union withdrew its own

grievance and refused to ask that the matter be sent

to arbitration. (Pet. App. 16a-17a).

The efforts of the controller supervisors were

equally unavailing. Under the FAA administrative

procedures, only the Albuquerque Center’s Facility

Manager was authorized to file an appeal of the FAA’s

classification decision. Petitioner Todd, one of the

controller supervisors, sought without success to

persuade the Facility Manager to file such an appeal.

Undeterred, Todd also tried to lodge a complaint with

the Merit Systems Protection Board, but the Board

declined to accept his complaint. (Pet. App. 32a).

Following the action of the Board, a group of

controllers including several of the plaintiffs filed suit

in the Court of Federal Claims under the Tucker Act,

seeking backpay based on the salaries they would

have received if the Albuquerque Center had been

reclassified. The Court of Federal Claims dismissed

that action, and the Federal Circuit affirmed. (Pet.

App. 44a-64a). The Federal Circuit reasoned that the

plaintiffs, even if successful on the merits of their

claims, would be entitled only to _ prospective

authorizes only retrospective awards. (Pet. App. 61la-

62a).

Finally, the plaintiffs filed the instant case in the

District Court for the District of Columbia. The com-

plaint asserted that the failure of the FAA to comply

with its own facility classification standard was

arbitrary and capricious, and sought relief under the

Administrative Procedure Act. The complaint sought

only prospective injunctive relief requiring the FAA to

upgrade the classification of the Albuquerque Center.

In its 2006 decision, the District Court dismissed

the claims of the union plaintiffs, holding that the

CSRA precluded union members from filing suit with

regard to any matter that could be the basis of a

grievance under the collective bargaining agreement.

(Pet. App. 18a-20a). The District Court acknowledged

that its construction of the CSRA, particularly of the

significance of section 7121l(a), had been rejected by

the Federal and Eleventh Circuits. (Pet. App. 19a-20a).

In 2008 the District Court dismissed the claims

of the non-union controllers. The CSRA, the district

judge held, precluded any civil action related to

federal employment except those forms of judicial

review expressly authorized by the CSRA itself. (Pet.

App. 39a-43a).

The District of Columbia Circuit affirmed. The

CSRA, it insisted, precluded the federal courts from

considering any claim arising out of federal employ-

ment except in those specific instances in which the

CSRA itself permitted such judicial review. That

general rule of preclusion, the court of appeals held,

barred the claims of both the union and non-union

plaintiffs. The circuit court therefore found it un-

necessary to decide whether the claims of the union

plaintiffs would also have been barred by section

7121(a). (Pet. App. 6a-7a).

REASONS FOR GRANTING THE WRIT

I. There Is A Well Established Inter-Circuit

Conflict Regarding Whether The Civil Ser-

vice Reform Act Precludes Federal Em-

ployees From Bringing Actions Under Other

Statutes Regarding Claims Not Involving

Adverse Personnel Actions

(1) The enactment in 1978 of the Civil Service

Reform Act has spawned three decades of litigation

about the effect of that statute on the judicial reme-

dies that federal employees enjoyed prior to 1978. The

recurring question has been

whether [a particular provision] (or the

CSRA as a whole) removes the jurisdiction

given to the federal courts [to hear such

claims] ... or otherwise precludes employees

from pursuing remedies beyond those set out

in the CSRA.

Whitman v. Department of Transportation, 547 U.S.

512, 514 (2006). The courts of appeals have long

disagreed about the preclusive effect of the CSRA.’

This case presents the most important unresolved

dispute about the impact of the CSRA: whether the

Act precludes federal employees from pursuing non-

CSRA judicial remedies for claims other than the type

of adverse personnel actions covered by the Act.

“Congress’ primary focus in the CSRA was on

adverse actions.” Lindahl v. OPM, 470 U.S. 768, 793

(1985). Chapter 75 of the CSRA establishes proce-

dures for reviewing actions, such as dismissals, sus-

pensions, or reduction in pay, taken against a federal

employee because of misconduct or inadequate perfor-

mance. In United States v. Fausto, 484 U.S. 439

(1988), this Court concluded that the CSRA precludes

federal employees not authorized to obtain judicial

review by Chapter 75 from bringing suit instead

under the Back Pay Act to challenge such adverse

personnel actions. “The CSRA established a compre-

hensive system for reviewing personnel action taken

against federal employees.” 484 U.S. at 455 (empha-

sis added). The terms of the CSRA, the Court con-

cluded,

combine to establish a congressional judg-

ment that those employees should not be

able to demand judicial review for the type of

personnel action covered by that chapter |75\.

484 U.S. at 446-48 (emphasis added).

AD Lad

* Compare Dugan vu. Ramsay, 727 F.2d 192, 194-95 (1st Cir

1984) (opinion by Breyer, J.) with Carducci v. Regan, 714 F.2d

171, 173-75 (D.C.Cir. 1983) (opinion by Scalia, J.).

Fausto left unresolved whether the CSRA also

barred judicial review regarding types of actions not

“covered by that chapter.” Since Fausto the lower

courts have reached sharply conflicting conclusions

about that question. Several circuits, most important-

ly the District of Columbia Circuit, hold that the

CSRA bars judicial scrutiny under statutes other

than the CSRA itself of all disputes related to federal

employment, regardless of whether a particular claim

is outside the scope of Chapter 75 or any other

provision of the CSRA. The Federal Circuit and

several others have repeatedly concluded — to the

contrary — that the CSRA precludes judicial review

under statutes other than the CSRA only of matters

covered by the CSRA, e.g., of claims of adverse

personnel actions.”

That recurring question was presented, but not

resolved, in Whitman v. Department of Transporta-

tion. In Whitman the plaintiff had allegedly been

subjected to repeated, non-random drug tests, in

violation of 49 U.S.C. § 45102(b)(1). Such treatment

was not an “adverse personnel action” under the

CSRA because (unlike the sort of personnel actions

covered by Chapter 75) the testing did not affect

‘In the instant case the District of Columbia Circuit

thought it particularly clear that non-CSRA based actions are

precluded against the Federal Aviation Administration. (Pet.

App. 10a-lla). The Federal Circuit, on the other hand, has

upheld just such a suit against the FAA. Mudge v. United States,

308 F.3d 1220 (Fed. Cir. 2002)

Whitman’s employment, grade, or pay’ and because it

was not based on any asserted misconduct or inade-

quate performance by Whitman. The government

acknowledged that the drug testing did not constitute

an adverse personnel action under the CSRA,’ but

urged the Court to extend the preclusion principle in

Fausto to matters not covered by Chapter 75. The

Solicitor General argued that the CSRA is the

exclusive judicial remedy, not merely for adverse

personnel actions, but for all “the employment claims

of federal employees.”

This Court’s decision in Whitman, however, did

not resolve whether the preclusion rule in Fausto

‘ As the government explained at the oral argument in

Whitman,

(Ijn Bush v. Lucas, the Court specifically identified

warrantless searches as an example of conduct in

which an employer might engage towards its employ-

ees that would not constitute a personnel action. And

we think that’s good authority for the proposition that

an allegedly unconstitutional drug test is not a per-

sonnel action. Now, if the employee had refused to

take the test and had been dismissed or disciplined,

that would be a personne! action

2005 WL 3387693 at *55.

’ As the government explained at the oral argument in

Fausto, although a reduction in the pay of a particular employee

would be a personnel action, it would fall outside the scope of

Chapters 43 and 75 if imposed for reasons unrelated to mis-

conduct or job performance, e.g., by mistake, or simply as a de-

vice to save money. 1987 U.S. Trans. LEXIS 194 at *9

* Brief for Respondent, Whitman v. Department of Trans

portation, No 04-1131, (October 20, 2005), at 14

should be extended to all such employment matters

affecting federal officials. The court of appeals in

Whitman had held only that the CSRA did not itself

confer jurisdiction over the claim in that case. 547

U.S. at 513-14. This Court noted that jurisdiction

over “all civil actions arising under the ... laws ... of

the United States” was already created by 28 U.S.C.

§ 1331. The dispositive issue in Whitman was

whether the CSRA had removed the jurisdictional

grant in section 1331 or otherwise precluded employ-

ees from pursuing remedies that existed prior to the

enactment of the CSRA. Because the court of appeals

in Whitman had not addressed those issues, this

Court remanded the case to permit the lower courts

to do so in the first instance. 547 U.S. at 514-15.

(2) The decision of the District of Columbia Cir-

cuit in the instant case resolved the precise question

that the Ninth Circuit had failed to determine in

Whitman. The court below reasoned that

the case for [the] controllers begins and ends

with the question identified as central by

the Supreme Court in Whitman ... namely,

“whether ... the CSRA as a whole ... removes

the jurisdiction given to the federal courts or

otherwise precludes employees from pursu-

ing” a claim under the APA, Whitman, 547

U.S. at 514.

(Pet. App. 7a-8a) (emphasis omitted). The court of

appeals concluded that “this APA claim [is] precluded

by the structure of Congress’s employment statutes

_—

and ‘the CSRA as a whole,’ Whitman, 547 U.S. at

514.” (Pet. App. 12a).

The circumstances of this case pose the issue left

unresolved by Whitman and Fausto — whether the

CSRA precludes judicial remedies for claims that do

not arise out of adverse personnel actions, the subject

matter of Chapter 75. The agency in this case did not

alter in some adverse manner the circumstances of

the plaintiffs’ employment, such as by reducing their

hours or classification; rather, the plaintiffs complain

that the agency improperly refused to take favorable

action that would have resulted in a substantial

increase in their salaries. That decision, unlike the

personnel decisions dealt with in Chapter 75, was not

based on any misconduct or other personal failing of

the plaintiffs themselves. Thus this action is not

governed by the holding of Fausto that the CSRA bars

remedies not contained in the CSRA for the “type of

personnel action” covered by Chapter 75.

The District of Columbia Circuit held that CSRA

preclusion extends to types of claims that are not

covered by Chapter 75 and that do not in any other

respect “concern ‘“a type of personnel action covered

by the CSRA.”’” (Pet. App. 10a) (quoting Graham uv.

Ashcroft, 358 F.3d 931, 934 (D.C.Cir. 2004)). Rather,

the court of appeals held, the CSRA “preclude[s]

litigation of an employment matter” — any employ-

ment matter — except where the CSRA itself autho-

rizes judicial action. (Pet. App. 10a). “[Wle treat the

CSRA and Congress’s related employment statutes as

covering the field of federal employee claims, and so

our cases expressly teach that those left out of this

scheme are left out on purpose.” (Pet. App. 10a-11la).

Although there is a wide range of employment issues

with which the CSRA does not deal at all, the court

below reasoned that the CSRA’s silence manifested

“intentionally not providing ... particular forums and

procedures” for all such omitted subjects. (Pet. App.

2a). The court of appeals thus concluded that the

CSRA precludes judicial review or resolution of

“federal employment disputes” except under the

CSRA. (Pet. App. 2a).

This broad view of the preclusive effect of the

CSRA dates from the District of Columbia Circuit’s

decision in Carducci v. Regan, 714 F.2d 171 (D.C.Cir.

1983). (See Pet. App. la) (“we have long held that

federal employees may not use the Administrative

Procedure Act to challenge agency employment action.”)

That interpretation of the CSRA was also recently

applied by that Circuit in Grosdidier v. Chairman,

Broadcasting Board of Governors, 560 F.3d 495, 496

(D.C.Cir. 2009) (stressing “the exclusivity of the

CSRA for suits targeting personnel decisions” and

“agency employment actions”).

The Sixth Circuit has given the CSRA a similarly

broad preclusive effect. In Harper v. Frank, 985 F.2d

285 (6th Cir. 1993), the Sixth Circuit held that the

A certiorari petition is pending in Grosdidier raising the

same question presented as the instant case

CSRA precludes a claim asserting that the plaintiff

was unlawfully denied a promotion.

The direct holding of the Court in Fausto

does not apply to [plaintiff’s] complaint be-

cause the Postal Service’s failure to promote

her was not an adverse action under Chapter

75.... Although Fausto’s holding relates only

to attempts to obtain judicial review of

adverse actions, its logic applies compellingly

to claims for review of nonadverse actions.

985 F.2d at 290-91; see Ryon v. O’Neill, 894 F.2d 199,

204 (6th Cir. 1990) (“the structure of the CSRA

indicate[s] that its [judicial] review provisions for

personnel actions were intended to be exclusive”).

The Eleventh Circuit also construes the CSRA

to preclude all federal employment actions under

statutes other than the CSRA and perhaps Title VII.

Broughton v. Courtney, 861 F.2d 639, 643 (11th Cir.

1988) (“Congress intended the CSRA to provide an

exclusive procedure for challenging federal personnel

decisions”); see Hendrix v. Snow, 170 Fed.Appx. 68,

80 (11th Cir. 2006) (“outside of Title VII claims, both

the Supreme Court and this Court have concluded

generally that the CSRA provides the exclusive pro-

cedure for challenging federal personnel decisions”).

(3) Four courts of appeals have rejected this

broad preclusionary rule.

The Federal Circuit has repeatedly construed the

CSRA, and applied the decision in Fausto, only to

preclude judicial review under other statutes of those

personnel matters that are covered by the CSRA

itself. In Bosco v. United States, 931 F.2d 879 (Fed.

Cir. 1991), that Circuit held that the CSRA did not

bar a claim by workers who objected to agency action

altering the basis on which the wage for their posi-

tions were to be calculated. The government argued

that the CSRA barred such suits because the Act was

“the exclusive means of appealing an unwanted

personnel action.” 931 F.2d at 882. The court of

appeals rejected that argument, holding that the

CSRA provided the exclusive remedy only for the

specific types of action addressed by the CSRA.

The Supreme Court did not rule that the

CSRA provided the only means of judicial

review of any actions affecting federal em-

ployees, but rather that it was the only

means of review as to the types of adverse

personnel action specifically covered by the

CSRA: Silence as to certain employees “dis-

plays a clear congressional] intent to deny the

excluded employees the protections of Chap-

ter 75 — including judicial review — for per-

sonnel action covered by that chapter.” 484

U.S. at 447 (emphasis added). Fausto in-

volved an adverse personnel action of the

general type covered by the CSRA, but

against a particular employee who was not

covered. In contrast, the instant case in-

volves a type of personnel action not covered

by the CSRA.... [T]he CSRA does not address

the transfer of positions from one pay system

to another. Since the CSRA thus does not

cover the action taken in the instant case, it

and the holding of Fausto have no applica-

tion here.

931 F.2d at 883 (emphasis in original). Chapter 75,

the Federal Circuit noted, concerned — and thus was

the exclusive remedy only for — adverse actions based

on misconduct and unacceptable performance. Id.°

In Romero v. United States, 38 F.3d 1204 (Fed.

Cir. 1994), the Federal Circuit gave a similarly

narrow reading of CSRA preclusion in upholding the

authority of the federal courts to entertain a claim

challenging the assertedly improper withholding of

funds from the paychecks of federal workers. Romero

was an appeal from a United States district court.”

Relying on Fausto, “(t]he government argue[d] that ...

district courts universally have no power to deter-

mine whether a ‘personnel action’ by a federal

* The court reiterated that distinction in response to the

government's petition for rehearing and suggestion for rehearing

en banc.

The Supreme Court in Fausto focussed on “precisely

drawn provisions” with respect to Board and judicial

review of adverse actions of any type within chapter

75 of the CSRA to infer a congressional judgment to

preclude Board and judicial review.... 484 U.S. at 448-

49.... [T]he Supreme Court grounded its holding in the

peculiar context of adverse personnel actions. Such

actions necessarily focus on the agency’s appraisal of

the misconduct of a particular employee. By contrast,

reclassifications have nothing to do with appraisals of

the actions of individual employees.

Bosco v. United States, 976 F.2d 710, 713-14 (Fed. Cir. 1992).

* See pp. 30-31, infra

employer is justified.” 38 F.3d at 1211. The Federal

Circuit again rejected that argument, explaining that

“when the passage [from Fausto] cited by the govern-

ment is read in the context of the Fausto case, the

government's argument loses any of its facial appeal.”

Id.

Fausto does not hold that the CSRA makes

impermissible “judicial review of any action

affecting federal employees.” Bosco v. United

States, 931 F.2d 879, 883 (Fed. Cir. 1991).

Rather, Fausto holds that the CSRA provides

“the only means of review as to the types of

adverse personnel action specifically covered

by the CSRA.” Jd. The present case involves

a type of personnel action — withholding of

pay for income tax purposes — that “is not

covered at all by the CSRA, for any em-

ployees.” Jd. There is no reason to suppose

that the CSRA was intended to preclude this

sort of action under the Back Pay Act and

therefore Fausto is inapplicable.

Id.

In Worthington v. United States, 168 F.3d 24

(Fed. Cir. 1999), the Federal Circuit upheld on the

same ground the authority of the federal courts to

determine if a federal employee was entitled to

backpay because he had been required to work a com-

pressed schedule.

This court has noted that Fausto deprives

the Court of Federal Claims of jurisdiction

over personnel actions covered by the CSRA....

The CSRA, by its terms, however, does not

encompass every adverse personnel action

against a federal employee.... To determine

the coverage of the CSRA, this court as-

sessed the juris‘liction of the [Merit Systems

Protection] Board.... [T]his court finds no

law, rule, or regulation that gives the Board

jurisdiction over Worthington’s claim....

[B]ecause Worthington’s claim is not within

the coverage of the CSRA ... the Court of

Federal Claims has jurisdiction to adjudicate

this dispute.

168 F.3d at 26-27.”

The narrower preclusion rule in the Federal

Circuit is of particular practical importance because

it governs actions in the Court of Federal Claims,

which has original jurisdiction under the Tucker Act

over claims by federal employees throughout the

nation." Applying the Federal Circuit precedents in

'’ Since Worthington the Federal Circuit rule has been suf-

ficiently well established that that court of appeals has upheld

federal jurisdiction over employment claims outside the scope of

the CSRA without reiterating that circuit’s longstanding rejec-

tion of the government’s interpretation of Fausto. Crowley uv.

United States, 398 F.3d 1329 (Fed. Cir. 2005) (action for higher

wages by federal employee claiming entitlement to supplemental

pay under the Federal Law Enforcement Pay Reform Act);

Mudge v. United States, 308 F.3d 1220 (Fed. Cir. 2002) (action

for backpay by federal employee asserting entitlement to pay

differential for work in Alaska)

’ That court has exclusive jurisdiction over Tucker Act

claims exceeding $10,000. 28 U.S.C. § 1346(a\2)

Bosco, Romero, and Worthington, the Court of Federal

Claims has entertained and resolved a wide variety of

federal employment actions that were not authorized

by the CSRA itself. The Court of Federal Claims, for

example, has repeatedly adjudicated claims that fed-

eral workers were being paid at a lower rate than

the rate to which they were entitled. Those lawsuits

included claims for severance pay, overtime pay,”

availability pay,’ premium pay,” remote duty

* Sloan v. United States, 36 Fed.Cl. 163, 165 (1996)

(severance pay claim not barred by Fausto so long as court does

not undertake to correct an adverse action); Bell v. United

States, 23 Ct.Cl. 73, 77 (1991) (claim for severance pay does not

require determination that dismissal was an “unjustified or un-

warranted personnel action”; such claims are “analogous to ones

for unpaid salary for time actually worked”); Hedman v. United

States, 15 Ct.Cl. 304, 317-22 (1988) (distinguishing Fausto).

’* Adams v. United States, 48 Fed.Cl. 602, 606 n.2 (2001)

(action permissible because “[t]he denial of FLSA overtime pay

falls outside the CSRA’s coverage”; citing Worthington); Abram-

son v. United States, 42 Fed.Cl. 326, 332 (1998) (“[pJlaintiffs

claim overtime pay fer overtime work.... The CSRA does not ex-

plicitly cover this claim”; citing Romero, Worthington and Bosco).

'* Vanderpool v. United States, 84 Fed.Cl. 66, 78-79 (2008)

(“[bjezause none of the plaintifts in this case initially received

availability pay, there could be no reduction in pay, and ... the

MSPB does not possess jurisdiction”; citing Worthington); Brad-

ley v. United States, 42 Fed.Cl. 333, 336 (1998) (although the

MSPB would have jurisdiction over a reduction in pay, “[pjlain-

tiffs did not suffer a reduction in pay.... [PJlaintiffs’ claims are

appropriately classified as ones for withholding pay as a result

of a miscalculation on the part of the government”; distinguish-

ing Fausto).

'’ Contreras v. United States, 64 Fed.Cl. 587 (2005) (dis-

putes about premium pay are outside the jurisdiction of the

(Continued on following page)

allowances,” living quarter allowances,” travel ex-

penses, and pay retention benefits,” as well as claims

that federal agencies failed to increase salaries as

required by law.” Actions by individuals claiming

they were unlawfully denied appointment to federal

positions have been upheld where the basis of the

claim was not covered by the CSRA.”’ None of these

MSPB because “[t]o be deprived of [premium pay] is not to have

one’s pay reduced; it is to lose a bonus”; citing Worthington);

Hannon v. United States, 48 Fed.Cl. 15, 25 (2000) (“[t]he plain-

tiffs do not allege entitlement as a result of a mistaken adverse

personnel action, but seek ... premium pay ... for work they com-

pleted. As the CSRA does not cover such claims, the MSPB does

not have jurisdiction over those claims’; citing Worthington and

Bosco).

'* Agee v. United States, 77 Fed.Cl. 84, 88 (2007) (although

MSPB has exclusive jurisdiction over disputes regarding retire-

ment benefits, pay claims can be adjudicated by courts even

though they may affect those benefits).

" Zervas v. United States, 26 Ct.Cl. 1425 (1992) (relying on

Bosco).

Bailey v. United States, 52 Fed.Cl. 105 (2002) (relying on

Worthington, Romero, and Bosco).

'* Zervas v. United States, supra.

* Berry v. United States, 86 Fed.Cl. 24, 30 (2009) (claim for

pay increase barred only if within the jurisdiction of the MSPB;

citing Worthington), King v. United States, 81 Fed.Cl. 766, 771

(2008) (“[ljike Worthington, and unlike Fausto, this case does not

involve a personne! action governed by the CSRA because plain-

tiffs’ claim for back pay is not based on personnel actions for

unacceptable job performance, prohibited personnel practices, or

adverse personnel actions”).

" Ainslie v. United States, 55 Fed.Cl. 103, 108 n.2 (2003)

({ederal law mandating hiring of certain former military reser-

vists; claim not barred because it was not “covered by the ...

(Continued on following page)

actions were authorized by the CSRA, and under the

District of Columbia Circuit preclusion rule all of

them were barred by the CSRA.

In those cases in which the Federal Circuit has

concluded that a claim is precluded by the CSRA, its

decision has been based on a finding that the specific

claim at issue was indeed covered by the CSRA. Read

v. United States, 254 F.3d 1064, 1067 (Fed. Cir. 2001)

(a specific provision of the CSRA “covers the ‘removal’

of an employee,” the action disputed by the plaintiff);

Gallo v. United States, 529 F.3d 135, 1352 (Fed. Cir.

2008) (claim under Federal Employees’ Compensation

Act covered by the CSRA because the issue was

“within the [MSPB]’s appellate jurisdiction under the

CSRA”).

Like the Federal Circuit, the Ninth Circuit

applies a preclusion rule more limited than that in

the District of Columbia Circuit. Except in cases

involving adverse personnel actions similar to Fausto,

in the Ninth Circuit the CSRA precludes an employ-

ment related claim of a federal worker only if the

action complained of constituted a “prohibited person-

nel practice” forbidden by Chapter 23 of the CSRA.”

CSRA”); Scholl v. United States, 61 Fed.Cl. 322, 325 (2004)

(mandatory reappointment of bankruptcy judges; claim not pre-

cluded by CSRA because it was not a “claim of the sort the

([MSRB] has subject matter jurisdiction over”; relying on Worth-

ington).

* Mangano v. United States, 529 F.3d 1243, 1246 (9th Cir.

2008) (“[t]he CSRA preempts Dr. Mangano’s [Federal Tort Claims

(Continued on following page)

Thus in the Ninth Circuit such a federal employment

claim is permitted if the action complained of was

neither an adverse personnel action within the scope

of the CSRA, nor a prohibited personnel practice for-

bidden by Chapter 23.

[Plaintiff’s allegations] fit no category of

personne! actions listed in § 2302(a)(2). Her

FTCA claims are therefore not preempted by

the CSRA. The Government attempts to

avoid this result by citing many of our pre-

vious holdings pertaining to the broad pur-

pose and preemptive effect of the CSRA....

[The cases cited by the government] are

distinguishable because the conduct in those

cases, unlike the conduct alleged [by the

plaintiff here], was within the scope of

personnel actions prohibited by the CSRA.

The CSRA is the exclusive remedy for all

prohibited personnel actions.

Brock v. United States, 64 F.3d 1421, 1424-25 (9th

Cir. 1995). That Ninth Circuit standard is reflected in

the briefs filed by the government in that circuit.

Act] claims in this case if the conduct underlying his complaint

can be challenged as ‘prohibited personnel practices’ within the

meaning of the CSRA”); Mahtesian v. Lee, 406 F.3d 1131, 1134

(9th Cir. 2005); Orsay v. United States Department of Justice,

289 F.3d 1125, 1128 (9th Cir. 2002) (“lilf the conduct that Appel-

lants challenge in this action falls within the scope of the CSRA’s

‘prohibited personnel practices, then the CSRA’s administrative

procedures are Appellant’s only remedy, and the federal courts

cannot resolve Appellant's claims under the Privacy Act and the

FTCA”).

“The ‘controlling factor’ in determining whether the

CSRA preempts a claim is whether the action can be

challenged as a ‘prohibited personnel practice’ under

the CSRA. Saul [v. United States, 928 F.2d 829,] 841

[((9th Cir. 1991)].””

The Tenth Circuit applies the same preclusion

standard as the Ninth. “Federal and state court actions

‘complain(ing] of activities prohibited by the CSRA ...

are preempted by the CSRA.’” Steele v. United States,

19 F.3d 531, 533 (10th Cir. 1994) (quoting Petrini v.

Howard, 918 F.2d 1482, 1485 (10th Cir. 1990)). The

Second Circuit also appears to apply this standard.

“(Fjor claims falling within its purview, the CSRA

provides the exclusive remedy. Tiltti v. Weise, [55 F.3d

596, 600 (2d Cir. 1998)].” Sawyer v. Musumeci, 1998

WL 743734 at *1 (2d Cir. 1998).”

(4) The District of Columbia Circuit recently ex-

pressed “doubts about [the Federal Circuit decision

in] Worthington, which appears to be in significant

* Brief of Defendant-Appellee, Mangano v. United States,

No. 05-17334 (9th Cir.), 2006 WL 2427080 at *9.

“ Although Sawyer is not officially reported, the govern-

ment reads the reported decision in 7i/tti in a similar manncr.

Brief for Defendants-Appellees, Johnson v. United States, 81

Fed.Appx. 388 (2d Cir. 2003), 2003 WL 24057791 at *15 (“The

CSRA provides the exclusive remedy by which federal employees

may challenge adverse personnel actions, more particularly de-

nominated as ‘prohibited personnel practices’; unless the CSRA

either explicitly or by necessary implication sanctions judicial

challenges to such actions, judicial challenge is foreclosed. Ti/tti

v. Weise.”) (emphasis added).

tension with this court’s precedents in Filebark ... and

Carducci.” Grosdidier v. Chairman, Broadcasting

Board of Governors, 560 F.3d at 496. But there is

far more than “significant tension” between the Dis-

trict of Columbia Circuit precedents in Carducci,

Grosdidier, and the instant case on the one hand, and

the Federal Circuit precedents in Bosco, Romero and

Worthington on the other. Those deeply embedded

sets of precedents are entirely inconsistent with one

another; the Federal Circuit precedents have re-

peatedly rejected the sweeping preclusion rule that

the government has advanced and that the District of

Columbia Circuit has repeatedly embraced.

Referring to another leading Federal Circuit

case, the court below commented that “it may ... be

true that Mudge [v. United States, 308 F.3d 1220 (Fed.

Cir. 2002)] correctly allowed the employees in that case

to proceed.” (Pet. App. 6a). But if, as the court below

held, the CSRA provides the exclusive basis on which

the federal courts can hear employment-related claims

of federal workers, it is impossible to understand how

the Federal Circuit in Mudge could properly have

permitted that action to continue. In Mudge the

Federal Circuit upheld the jurisdiction of the federal

courts to entertain an action for backpay against the

FAA — the very agency at issue in the instant case —

brought by a federal employee who claimed he was

entitled to premium pay for work in Alaska. The

government argued in Mudge — just as it did in the

instant case — that the federal courts could only

entertain employment-related claims of federal

employees in those specific circumstances enumer-

ated in the CSRA.” If the court of appeals below was

correct in upholding that sweeping contention, the

Federal Circuit decision in Mudge was necessarily

incorrect.

Il. This Inter-Circuit Conflict Involves An Im-

portant and Recurring Issue

Although this conflict involves a total of seven

circuits, it is particularly important to resolve the

conflict on this issue between the District of Columbia

Circuit and the Federal Circuit. Approximately

280,000 federal employees work in the District of

Columbia, a substantial portion of the federal civilian

workforce. When a federal employment dispute arises

in the District of Columbia, whether the governing

preclusion standard is that of the District of Colum-

bia Circuit or the Federal Circuit is controlled by

whether the claim falls within the Federal Circuit’s

Tucker Act jurisdiction. If the claim of a federal

worker can properly be cast as a claim within the

scope of the Tucker Act, his or her lawsuit may well

proceed in the Court of Federal Claims under the

narrower Federal Circuit preclusion rule. If, however,

as here, that claim does not fall within the Tucker

Act, and thus must be brought in the District Court

for the District of Columbia, that action will almost

certainly be dismissed under the sweeping District of

' Brief of Defendant-Appellee, 2002 WL 34235708 at *7-*8

Columbia Circuit preclusion rule. A federal employee

working in the District of Columbia who has an

ongoing dispute about his or her rate of pay could not

obtain an injunction, because that remedy would

have to be sought in the District Court and would be

governed by District of Columbia Circuit precedent;

that same employee could, however, achieve the same

result by bringing a series of backpay claims in the

Court of Federal Claims, where Federal Circuit prec-

edent applies. It is incongruous that federal appellate

courts located only three Metro stops apart on the

Red Line are applying to the claims of federal

employees in the nation’s capitol avowedly inconsis-

tent and outcome determinative preclusion stan-

dards.”

The differing treatment of federal employees

seeking the same type of remedy is equally incongru-

ous. Many claims asserting that a federal employee

is receiving insufficient compensation are within the

Tucker Act jurisdiction of the Court of Federal

Claims (and thus governed by the Federal Circuit

preclusion rule), but not all. The Court of Federal

Claims has upheld such compensation claims under

the Bankruptcy Reform Act,” the Law Enforcement

” Similarly, for federal employees in the Sixth and Eleventh

Circuits, which CSRA preclusion rule applies turns not on the

regional court of appeals within which the claim arises, but on

the happenstance of whether the claim happens to fall within

the subject matter jurisdiction of the Federal Circuit and is thus

outside the authority of those regional appellate courts

’ Scholl v. United States, 61 Fed.Cl. 322 (2004

Availability Pay Act,” the Federal Law Enforcement

Pay Reform Act,” the Severance Pay Act,” the Fair

Labor Standards Act,” the Kiess Act,” and a variety

of other federal statutes.” In the instant case,

however, the Federal Circuit concluded that only

prospective compensatory relief was available, thus

barring reliance on the Tucker Act. (Pet. App. 61a-

62a). Petitioners’ claim for increased compensation

was thus adjudicated in the District of Columbia

Circuit where, unlike compensation claims addressed

in the Federal Circuit, it was rejected as precluded by

the CSRA. That difference in outcome occurred solely

because of the conflicting preclusion rules applied by

the various circuits; no lower court to our knowledge

has suggested that the CSRA itself should be read to

distinguish in this way among federal employees

asserting entitlement to a higher rate of pay.

Resolution of this conflict is of particular im-

portance because of the unique appellate role of the

*“ Vanderpool v. United States, 84 Fed.Cl. 66 (2008); Bradley

v. United States, 42 Fed.Cl. 333 (1998).

” Contreras v. United States, 64 Fed.Cl. 583 (2005); Hannon

vu. United States, 48 Fed.Cl. 15 (2000).

” Sloan v. United States, 36 Fed.Cl. 163 (1996); Hedman v

United States, 15 Ct.Cl. 304 (1988)

** Agee v. United States, 77 Fed.Cl. 84 (2007); Adams vu

United States, 48 Fed.Cl. 602 (2001).

”

* Abramson v. United States, 42 Fed.Cl. 326 (1998)

* Ainslie v. United States, 55 Fed.Cl. 103 (5 U.S.C. § 3329(b)):

King v. United States, 81 Fed.Cl. 766 (2008) (28 U.S.C. § 540C),

Federal Circuit. In cases filed in a district court

anywhere in the United States, if that district court’s

jurisdiction was “based, in whole or in part, on section

1346” of Title 28, the Little Tucker Act, any appeal is

to the Court of Appeals for the Federal Circuit, rather

than to the regional court of appeals for the circuit in

which the district court is located. 29 U.S.C.

§ 1295(a)(2); see United States v. Hohri, 482 U.S. 64

(1987). The Federal Circuit decision in Romero, for

example, overturned the decision of a district court in

the First Circuit that had held the claim in that case

was barred by the CSRA;™ a number of other Federal

Circuit decisions applying that Circuit’s view of the

limited preclusive effect of the CSRA involved appeals

from the regional district courts.” In any case under

the Administrative Procedure Act, or any other

federal statute, in wnich the plaintiff could include a

colorable section 1346 claim, the appeal would lie to

the Federal Circuit, which limits CSRA preclusion to

adverse personnel action cases. That would include,

as in Hohri itself, an action filed in the District Court

for the District of Columbia.

The United States has repeatedly recognized

the considerable practical importance of whether the

“ Romero v. Brady, 764 F.Supp. 227, 237-38 (D.P.R. 1991).

* E.g., Muniz v. United States, 972 F.2d 1304 (Fed. Cir.

1992) (appeal from the District Court for the Northern District

of California); Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990) (en

banc) (appeal from the District Court for the Central District of

California)

CSRA precludes actions by individuals for whom the

CSRA itself provides no judicial remedy. In United

States v. Fausto, in seeking review by this Court of

the Federal Circuit decision permitting certain feder-

al employees to obtain review of adverse personnel

actions, the government correctly emphasized that

the issue was one of “considerable practical impor-

tance to the federal government.”” In Cooper v.

Kotarski, 487 U.S. 1212 (1988), the goverrsment asked

this Court to decide whether a federal employee can

bring a constitutional challenge to removal from a

probationary position. See Bivens v. Six Unknown

Named Agents of the Fed. Bureau of Narcotics, 403

U.S. 388 (1971). The United States explained that the

question was “of great and recurring practical impor-

tance to the federal government,” and highlighted the

“significant disparity in the treatment of federal em-

ployees, depending solely upon where they reside.”

In its response in Whitman, agreeing in part that

certiorari should be granted, the United States noted

the “considerable practical importance [of the issue]

to the Nation’s largest employer and its employees,”

pointed out that there was an “untenable lack of

uniformity in federal employment law.”” On six occa-

sions in which a circuit court has held that a federal

* Petition for Writ of Certiorari, United States v. Fausto,

No. 86-595, at 16.

" Petition for Writ of Certiorari, Cooper v. Kotarski, No. 56-

1813, at 10,15

* Whitman v. Department of Transportation, Brief of Re-

spondent, at 20 (June 6, 2005)

employee could bring an action under a statute other

than the CSRA, the United States has sought re-

hearing en banc in that court of appeals, arguing that

the issue was one of sufficient importance to warrant

that exceptional treatment.” See Fed. Rule App. Pro.

35(b)(1)(B).

In Weber v. Department of Veterans Affairs, 129

S.Ct. 754 (2009), the petitioner asserted that the

court of appeals decision in that case was inconsistent

with the Federal Circuit decisions in Romero and

Bosco.” The government argued in its response that

weoer was not an appropriate vehicle for raising that

issue because the petitioner’s claims in that case were

covered by the CSRA. Weber was challenging his dis-

missal, an adverse personnel action under the CSRA;

like the plaintiff in Fausto, Weber could not invoke

the remedies in Chapter 75 because he was outside

the definition of “employees” protected by that pro-

vision. The government correctly explained why the

dismissal of Weber’s claim was thus not inconsistent

with Romero and Bosco.

* See Crowley v. United States, 398 F.3d 1329 (Fed. Cir.

2005) (petition for rehearing denied); Mudge v. United States,

308 F.3d 1220 (Fed. Cir. 2002) (petition for rehearing en banc

denied); Burroughs v. OPM, 784 F.2d 933 (9th Cir. 1986) (deny-

ing rehearing en banc); Fausto v. United States, 791 F.2d 1554

(Fed. Cir. 1986) (denying rehearing en banc); Carter v. Gibbs,

909 F.2d 1452 (Fed. Cir. 1990) (en banc); Bosco v. United States,

976 F.2d 710 (Fed. Cir. 1992) (denying rehearing en banc)

“ Petition for Writ of Certiorari, Weber v. Department of

Veterans Affairs, No. 08-281 at 11

In Romero, the Federal Circuit interpreted

this Court’s holding in Fausto as being inap-

plicable to “the type of personne}! action —

withholding of pay for income tax purposes —

that ‘is not covered at all by the CSRA, for

any employees.’” Romero, 38 F.3d at 1211 ... ;

accord Bosco, 931 F.2d at 833 (viewing

Fausto as holding that the CSRA is “the only

means of review as to the types of adverse

personnel action specifically covered by the

CSRA” (first emphasis added)). But the “type

of personnel action” at issue in this case —

separation from the service — is expressly

addressed by the CSRA.

Brief for the Respondents in Opposition, Weber v. De-

partment of Veterans Affairs, No. 08-281 at 11 (Nov. 3,

2008).

Here, unlike Weber, the petitioners’ claims clearly

are not “addressed by the CSRA.” The underlying

claim — that the employing agency was required to

reclassify the facility at which the petitioners work —

an action which would inexorably raise their salaries

— bears not the slightest resemblance to the matters

covered by the CSRA. This case presents an appropri-

ate vehicle for resolving the question presented. The

court below squarely resolved the issue framed by

Whitman, holding that the CSRA precludes an action

that otherwise (and prior to the enactment of the

CSRA) would have been actionable under the Admin-

istrative Procedure Act. The district court earlier held

that the plaintiffs had done all they could to exhaust

their claim (Pet. App. 22a-23a), and the government

did not seek to reopen that issue in the court of

appeals. The linchpin of the District of Columbia’s

broad preclusion rule — the specific and limited grant

of judicial review in Chapter 75 of the CSRA - is

expressly applicable to FAA employees. 49 U.S.C.

§ 40122(¢g)(3).

Earlier this year in an appeal in the District of

Columbia Circuit the government pointed out that

the Federal Circuit’s Worthington decision is

not binding on this Court. “The federal

courts spread across the country owe respect

to each other’s efforts ... , but each has an

obligation to engage independently in reasoned

analysis. Binding precedent for all is set only

by the Supreme Court....””

Certiorari should be granted to establish the binding

precedent that this Court alone can provide.

Brief for Appellee, Grosdidier v. Chairman, Broadcasting

Board of Governors, No. 08-5181 (D.C.Cir.), at 22 n.5 (quoting In

Re Korean Airlines Disaster of September 1, 1983, 829 F.2d 1171,

1176 (D.C.Cir. 1987))

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals for the District of Columbia Circuit.

Respectfully submitted,

ERIC SCHNAPPER*

School of Law

University of Washington

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

GEORGE M. CHUZI

KALIJARVI, CHUZI & NEWMAN, PC

1901 L Street, N.W.

Suite 610

Washington, D.C. 20036

(202) 331-9260

Counsel for Petitioners

*Counsel of Record

555 F.3d 1009

United States Court of Appeals,

District of Columbia Circuit.

Joseph J. FILEBARK, II, et al., Appellants

UNITED STATES DEPARTMENT OF

TRANSPORTATION and Federal Aviation

Administration, Appellees.

No. 08-5163.

Argued Jan. 13, 2009.

Decided Feb. 13, 2009.

George M. Chuzi argued the cause and filed the

briefs for appellant.

Beverly M. Russell, Assistant U.S. Attorney,

argued the cause for appellees. With her on the brief

were Jeffrey A. Taylor, U.S. Attorney, R. Craig Law-

rence, Assistant U.S. Attorney, and Elizabeth J.

Head, Attorney, Federal Aviation Administration.

Before: HENDERSON, TATEL, and GARLAND,

Circuit Judges.

Opinion for the Court filed by Circuit Judge

TATEL.

TATEL, Circuit Judge.

We have long held that federal employees may

not use the Administrative Procedure Act to challenge

agency employment actions. See Fornaro v. James,

416 F.3d 63, 66-67 (D.C.Cir.2005); Graham v. Ash-

croft, 358 F.3d 931, 933-35 (D.C.Cir.2004); Carducci v.

Regan, 714 F.2d 171, 172 (D.C.Cir.1983). This is so

because Congress, through the Civil Service Reform

Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (codified

as amended in scattered sections of 5 U.S.C.), and

related employment statutes, has carefully con-

structed a system for review and resolution of federal

employment disputes, intentionally providing — and

intentionally not providing — particular forums and

procedures for particular kinds of claims. As such, we

have held that this comprehensive employment

scheme preempts judicial review under the more

general APA even when that scheme provides no

judicial relief — that is, “what you get under the CSRA

is what you get.” Fornaro, 416 F.3d at 67. In this case

four air traffic controllers nonetheless argue that they

may use the APA to litigate their pay dispute with the

Federal Aviation Administration because the CSRA

provides them no _ protection. Straightforwardly

applying our precedent, we affirm the district court’s

dismissal of their suit.

Appellants are four air traffic controllers of the

Albuquerque, New Mexico Air Traffic Contro] Center.

Two are bargaining unit members represented by the

National Air Traffic Controllers Association (NATCA)

while two are excluded from the unit as supervisors,

but agreements between NATCA and the FAA control

the pay of all four. Under those agreements, salary

levels vary from airport to airport based on the

amount and complexity of the air traffic they manage.

The controllers believe the Albuquerque Center’s

salary level is set too low because, in their view, the

site’s traffic figures erroneously exclude certain

military flights.

In April 2000, one of the bargaining unit em-

ployees, appellant Joseph Filebark II, following the

procedure set out in his collective bargaining agree-

ment, filed a grievance about the salary-level classifi-

cation with the Albuquerque Center. That grievance

was denied, and when Filebark asked the union to

pursue the matter to arbitration, the union declined.

The Center itself later applied to the FAA for a salary-

level upgrade, but that request was denied pending

validation of the computer systems that measure air

traffic. Although NATCA eventually filed a grievance

on behalf of employees at the Albuquerque Center,

it withdrew that grievance before it was decided.

Meanwhile, one of the non-bargaining unit controllers

attempted to file a grievance, which was refused. He

later sued in the Court of Federal Claims on a con-

tract theory, but the court rejected his claim as out-

side its Tucker Act jurisdiction. Todd v. United States,

56 Fed.Cl. 449, 453 (2003), aff’d, 386 F.3d 1091

(Fed.Cir.2004).

Having failed to obtain review on the merits

through any of these avenues, the controllers brought

a two-count complaint in United States District Court

for the District of Columbia. Count I sought review of

Filebark’s denied grievance, identifying 5 U.S.C.

§ 7121(a)(1), a provision of the CSRA, as the statutory

basis for judicial review of negotiated grievance

procedures. Am. Compl. {4 37-38. Count II sought

APA review of the Albuquerque Center’s salary-level

classification on behalf of all plaintiffs. Jd. 7] 39-42.

Concluding that section 7121(a)(1), rather than

authorizing the suit, “precludes [employees with

negotiated grievance procedures] from seeking judi-

cial review” of any kind, Filebark v. U.S. Dep’t of

Transp. (Filebark I), 468 F.Supp.2d 3, 6 (D.D.C.2006),

the district court dismissed both counts brought by

the bargaining unit employees, eliminating Count I

entirely and leaving only the APA claims of the non-

bargaining unit supervisors, id. at 6. Addressing and

rejecting only one argument — regarding exhaustion

of administrative remedies — the district court al-

lowed the supervisors’ APA claims to go forward. Id.

at 7-8. By minute order, the district court denied both

sides’ requests for reconsideration. In a second opin-

ion, however, it dismissed the supervisors’ APA

claims, finding them precluded under our CSRA

precedents. Filebark v. Dep’t of Transp. (Filebark ID),

542 F.Supp.2d 1, 6-9 (D.D.C.2008).

Significantly for our purposes, the FAA is largely

exempted from the CSRA by 49 U.S.C. § 40122(g)(1),

which directs the FAA to develop “a _ personnel

management system for the Administration that

addresses the unique demands on the agency’s work-

force,"“notwithstanding the provisions of title 5 [i.e.,

the CSRA] and other Federal personnel laws.” See

also § 40122(g)(2) (“The provisions of title 5 shall not

apply to the new personnel management system. .. .”).

Congress required that “[sJuch a new system shall, at

a minimum, provide for greater flexibility in the

hiring, training, compensation, and location of per-

sonnel.” § 40122(g)(1). In response the FAA created a

personnel management system with dispute resolu-

tion provisions that largely track those of the CSRA,

providing greater review for major adverse actions

and no review for minor actions like this pay-scale

dispute. The general exemption from the CSRA has

certain exceptions, however, as CSRA provisions such

as “chapter 71, relating to labor-management rela-

tions,” continue to apply. § 40122(g)(2)(C).

Among the provisions in that chapter that still

apply is section 7121(a)(1), which requires that collec-

tive bargaining agreements contain negotiated proce-

dures for the settlement of grievances, and which the

controllers cite as the statutory basis for Count I of

their amended complaint. This section previously

provided that such negotiated grievance procedures

would be “the exclusive procedures for resolving

grievances which fall within its coverage.” 5 U.S.C.

§ 7121(aX(1) (1994). In 1994, however, Congress

amended section 7121l(a)(1) to make negotiated

grievance procedures “the exclusive administrative

procedures for resolving grievances which fall within

its coverage.” § 7121(a)(1) (emphasis added). Having

held that the earlier version of this section precluded

all judicial review for employees with negotiated

grievance procedures, Carter v. Gibbs, 909 F.2d 1452,

1454 (Fed.Cir.1990) (en banc), the Federal Circuit

recently reversed course, holding that the 1994

amendment signaled Congress’s intent no longer to

preclude all review of covered grievances. Mudge v.

United States, 308 F.3d 1220, 1227 (Fed.Cir.2002).

Seeking reversal of the district court’s ruling that

they have no cause of action, the controllers make

three arguments: (1) that the district court erred in

dismissing the bargaining unit members because

section 7121(a)(1), as amended, no longer precludes

judicial review of negotiated grievance procedures; (2)

that by revisiting dismissal of the APA claims, the

district court violated the law of the case; and (3) that

because their employer is largely exempt from the

CSRA, the controllers can maintain an APA cause of

action notwithstanding our CSRA preclusion prece-

dents. We consider each argument in turn.

II.

The controllers’ first argument — applicable only

to the bargaining unit members - lacks in relevance

whatever it might have in merit. It may be true that

in amending section 7121(a)(1) Congress intended no

longer to preclude all judicial review for employees

with negotiated grievance procedures; it may also be

true that Mudge correctly allowed the employees in

that case to proceed; it may even be true that the

district court’s first opinion in this case erroneously

used section 7121(a)(1) as justification for dismissing

all bargaining-unit employee claims. But even if

section 7121(a)(1) no longer has this preclusive effect,

it is emphatically untrue that “§ 7121(a\(1) establish-

es [a] federal employee’s right to seek judicial remedy

for [a] grievance subject to negotiated procedures in

la] collective bargaining agreement,” as the control-

lers maintain in their complaint, Am. Compl. { 37

(emphasis added). To the contrary, as the Supreme

Court explained in Whitman v. Department of Trans-

portation, 547 U.S. 512, 513, 126 S.Ct. 2014, 164

L.Ed.2d 771 (2006), section “7121(a)(1) does not

confer jurisdiction,” nor does it create a cause of

action.

Because section 7121(a)(1), by itself, provides no

right to sue, the bargaining unit employees must

point to an independent source of law in order to

maintain this action. In Mudge a money claim within

the Tucker Act jurisdiction of the Court of Federal

Claims provided the cause of action, see 28 U.S.C.

§ 1491(a)(1); Mudge v. United States, 50 Fed.Cl. 500,

502 (Fed.Cl.2001); in Carter, the case that Mudge

held overruled by the 1994 amendment, the Fair

Labor Standards Act, 29 U.S.C. § 216(b), provided the

cause of action, see 909 F.2d at 1453. Neither is

available here. In fact, the only basis for a cause of

action the bargaining unit controllers even mention

in their complaint is the APA —- the same source

identified by the non-bargaining unit controllers.

Thus, the case for all four controllers begins and ends

with the question identified as central by the Su-

preme Court in Whitman and answered in the district

court’s second opinion — namely “whether § 7121 (or

the CSRA as a whole) removes the jurisdiction given

to the federal courts or otherwise precludes em-

ployees from pursuing” a claim under the APA,

Whitman, 547 U.S. at 514, 126 S.Ct. 2014 (emphasis

added, citation omitted). If we answer that question

in the affirmative, then neither the bargaining unit

members nor the supervisors have a claim, whether

or not the district court, in its first opinion, properly

relied on section 7121(a)(1) to dismiss all bargaining

unit employee claims.

Before we address that question, however, we

must resolve a preliminary matter. The controllers

argue that by reversing its previous denial of dismiss-

al on the APA claims without a change in facts or law

the district court violated the law of the case doctrine.

In its second opinion, the district court explained the

change as based in “the parties’ lack of clarity regard-

ing their arguments,” and held that reconsidering the

issue would not violate the law of the case because

failing to reconsider would “be erroneous and work a

manifest injustice.” Filebark II, 542 FSupp.2d at 5

n. 10.These justifications matter not at all, however,

because the law of the case doctrine just doesn’t apply

here. Federal Rule of Civil Procedure 54(b) provides

that “any order or other decision, however desig-

nated, that adjudicates fewer than all the claims...

may be revised at any time before the entry of a

judgment adjudicating all the claims and all the

parties’ rights and liabilities.” The district court’s first

denial of dismissal was never a final judgment and

never subject to appeal, and such “[i]nterlocutory

orders are not subject to the law of the case doctrine

and may always be reconsidered prior to final judg-

ment,” Langevine v. District of Columbia, 106 F.3d

1018, 1023 (D.C.Cir.1997). Accordingly, the district

court was free to reconsider the motion to dismiss the

controllers’ APA-based employment claim, as we are

free to consider that question now.

Reviewing de novo the dismissal of the APA

claims, e.g., Munsell v. Dep’t of Agric., 509 F.3d 572,

578 (D.C.Cir.2007), we find no error in the district

court’s decision. Twenty-five years ago, in Carducci v.

Regan, we held that “the exhaustive remedial scheme

of the CSRA would be impermissibly frustrated by

permitting, for lesser personnel actions not involving

constitutional claims, an access to the courts more

immediate and direct than the statute provides with

regard to major adverse actions.” 714 F.2d at 174.

Holding that “failure to include some types of [claims]

within the remedial scheme of so comprehensive a

piece of legislation reflects a congressional intent that

no judicial relief be available,” we found an APA

remedy beyond that provided in the CSRA precluded

by the comprehensiveness of the CSRA itself. Jd. at

174-75. The Supreme Court reached a similar conclu-

sion five years later in United States v. Fausto, hold-

ing that the exclusion of particular employees (rather

than particular claims) from the CSRA was not an

invitation to those employees to sue under other

statutes but a “manifestation of a considered congres-

sional judgment that they should not have statutory

entitlement to review.” 484 U.S. 439, 448-49, 108

S.Ct. 668, 98 L.Ed.2d 830 (1988).

We clarified the breadth of these precedents in

two recent cases. In Graham v. Ashcroft, we held that

10a

the lack of any entitlement to judicial review in the

CSRA precluded litigation of an employment matter

under the APA even where the complaint did not

concern “‘a type of personnel action covered by the

CSRA.’” 358 F.3d 931, 934 (D.C.Cir.2004) (quoting

Fausto, 484 U.S. at 448, 108 S.Ct. 668 (emphasis

added, brackets omitted)). Thus, we found preclusion

not because the CSRA identified some other kind of

plaintiff or some other kind of procedure for bringing

the claim, but because it provided no way of bringing

it. As to such claims we said, “the CSRA provides no

relief and precludes other avenues of relief.” Jd. at

935. One year later in Fornaro we made the point

even more directly, holding that “what you get under

the CSRA is what you get.” 416 F.3d at 67. Not one of

our precedents has cited section 7121(a)(1) in so

holding, and the controllers nowhere argue that the

1994 amendment affects these cases or their now-

familiar analysis.

To be sure, the controllers correctly point out that

Congress largely exempted the FAA from the CSRA,

and that we have never before had occasion to apply

our preclusion cases to employees of an exempt

agency. But the upshot of our precedents for this case

is absolutely clear. Far from saving an APA claim,

Congress’s exemption of these controllers’ agency

from the CSRA signals the same thing as Congress’s

omission of the type of personnel action at issue in

Graham or the type of employees at issue in Fausto —

namely that Congress intended to provide these

employees with no judicial review. This is because we

lla

treat the CSRA and Congress’s related employment

statutes as covering the field of federal employee

claims, and so our cases expressly teach that those

left out of this scheme are left out on purpose. Indeed

this case is easier than most, for we need make no

inferences about the pregnant meaning of legislative

silence. In exempting the FAA from the CSRA, Con-

gress made its intent perfectly clear: to “provide for

greater flexibility in the hiring, training, compen-

sation, and location of personnel.” 49 U.S.C.

§ 40122(gX1). Because giving FAA employees a

unique right of access to the courts would frustrate

rather than further that intent, proper application of

our precedents bars this suit. See also McAuliffe v.

Rice, 966 F.2d 979, 980-81 (5th C r.1992) (reaching

same conclusion as to different entity exempted from

CSRA because allowing APA review would “thwart[ ]

the goal of maintaining flexibility”).

The controllers argue that “[w]hatever the scope

of the ‘flexibility’ which Congress granted to the FAA,

it is inconceivable that Congress authorized the FAA

to devise a compensation plan for its Controllers and

then violate that plan with impunity and without

review.” Appellants’ Opening Br. 30. The controllers

never develop this apparent due process argument,

nor could they, for even its factual premise is flawed.

The controllers do have a remedy: if the FAA fails to

live up to its agreements, the union can pursue the

matter, see, e.g., Mot. to Dismiss Ex. 9 (union griev-

ance regarding Albuquerque Center salary level),

and if the union fails to live up to its duty of

12a

representation, the controllers can pursue the union,

see Steadman v. Governor, U.S. Soldiers’ and Air-

men’s Home, 918 F.2d 963, 966 (D.C.Cir.1990) (“A

failure to seek arbitration (which an employee may

not compel on his own) may constitute such a breach

of the union’s duty [of fair representation]. But, in

that event, only the FLRA — not a district court — may

remedy the breach by ordering arbitration.”). These

procedures surely lack the directness and immediacy

of an APA suit, and the controllers have apparently

found them frustrating, Appellants’ Reply Br. 6-7 n. 5

(accusing NACTA [sic] of “machinations” designed to

defeat Filebark’s claims). But the choice of procedures

lies with Congress, and as we have repeatedly held,

Congress had no intention of providing claimants like

these — unmentioned in the CSRA - with a level of

access to the courts unavailable to almost any other

federal employees, including those that the CSRA

identifies as most worthy of procedural protection.

See Graham, 358 F.3d at 935 (citing Fausto and

Carducci for the proposition that giving direct APA

review to claimants not entitled to review procedures

under the CSRA would upset careful congressional

layering of remedial procedures). Thus, we find this

APA claim precluded by the structure of Congress’s

employment statutes and “the CSRA as a whole,”

Whitman, 547 U.S. at 514, 126 S.Ct. 2014.

III.

Because the controllers identify only the APA as

the statutory basis for their claims, and because such

13a

claims are precluded by the CSRA as a whole regard-

less of who brings them, we affirm.

So ordered.

l4a

468 F.Supp.2d 3

United States District Court,

District of Columbia.

FILEBARK, et al., Plaintiffs,

U.S. DEPARTMENT OF TRANSPORTATION, et al.

Defendants.

No. 03-1685 (RJL).

Feb. 27, 2006.

George Michael Chuzi, Kalijarvi, Chuzi & New-

man, Washington, DC, for Plaintiffs.

Beverly Marie Russell, U.S. Attorney’s Office,

Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

(February 23rd 2006)

LEON, District Judge.

Plaintiffs, two current or former Air Traffic

Controllers and one Air Traffic Control Supervisor at

the Albuquerque, New Mexico Air Traffic Control

Center (“Albuquerque Center”), brought this action

seeking: (1) declaratory and injunctive relief against

the defendants, the Federal Aviation Administration

(“FAA”); and (2) the Department of Transportation,

and back pay from defendants’ for allegedly violating

agency rules and the collective bargaining agreement

between the FAA and the National Air Traffic Con-

trollers Association (“NATCA”). Upon consideration of

defendants’ motion and the entire record herein, the

15a

Court GRANTS defendants’ Motion to Dismiss as to

plaintiffs Filebark and Havens and DENIES defen-

dants’ Motion to Dismiss as to plaintiff Todd.’

FACTUAL BACKGROUND

Plaintiff Filebark is, and plaintiff Havens was,

an Air Traffic Control Specialist at the Albuquerque

Center. (Am.Compl. { 7.) Plaintiff Todd is currently a

Air Traffic Control Supervisor at the Albuquerque

Center. Ud. at 7 8.) Plaintiffs Filebark and Havens

are bargaining unit employees exclusively repre-

sented by the NATCA in labor-management dealings

with the FAA. (/d.) NATCA and the FAA have a

negotiated collective bargaining agreement (“CBA”)

‘ Federal courts are courts of limited jurisdiction, possess-

ing only those powers specifically granted to them by either the

United States Constitution or Congress. Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128

L.Ed.2d 391 (1994). If a court determines that it lacks subject

matter jurisdiction to hear and decide a claim, the claim must be

dismissed. Fed.R.Civ.P. 12(b)(1). All matters are presumed to lie

outside the limited jurisdiction of the federal courts until the

plaintiff establishes that subject matter jurisdiction is proper.

Rasul v. Bush, 215 F.Supp.2d 55, 61 (D.D.C.2002). Nevertheless,

the complaint must be construed liberally and a plaintiff should

receive the benefit of all favorable inferences that can be drawn

from the alleged facts E.E.O.C. v. St. Francis Xavier Parochial

Sch., 117 F.3d 621, 624 (D.C.Cir.1997). When reviewing a motion

to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1), the

court “must accept as true all material allegations of the com-

plaint, and must construe the complaint in favor of the com-

plaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct.

2197, 45 L.Ed.2d 343 (1975).

l6a

that governs plaintiffs Filebark’s and Haven’s em-

ployment. (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) Ex.

1.) Since plaintiff Todd is an Air Traffic Control

Supervisor, he is excluded from representation by

NATCA; therefore, the CBA does not apply to him.

(Am.Compl. 4 8; Pls.’ Opp’n to Defs.’ Mot. to Dismiss

and Supporting Mem. of Points and Authorities

(“Pls.’ Opp’n”) Ex. 13 at 1, 7 2; see5 U.S.C. § 7112(b)

(prohibiting unions from representing supervisors). )

Therefore, Todd’s claims need to be evaluated inde-

pendently.

A. Plaintiffs Filebark and Havens’ Claims

Plaintiffs Filebark and Havens allege that the air

traffic counts used to determine their compensation

at the Albuquerque Center are inaccurate because

they fail to take into account military traffic, a prob-

lem acknowledged by the FAA. (Am.Compl.{ 30.)

They argue that if military traffic had been taken

into account, the Albuquerque Center’s Air Traffic

Compensation System (“ATC”) Level’ would be

* In 1995, Congress directed the FAA Administrator to

develop and implement a new personnel management system

(“PMS”) for the FAA which put into effect a new compensation

and classification system which would classify FAA facilities and

determine the pay of the FAA workers at those facilities. 49

U.S.C. § 40122(g). The new PMS included an Air Traffic Com-

pensation System (“ATC”) involving a Position Classification

Standard that categorized facilities based on traffic count with

scores ranging from ATC Level 3-12. (Am. Compl. { 13; Defs.’

Mot. 2-3.) An FFA [sic] employee’s salary is scaled according to

(Continued on following page)

i7a

increased and consequently plaintiffs’ pay would

increase. (/d. at 44 22-31.) Filebark and Havens

allege that the FAA did not take any action in re-

sponse to the Albuquerque Center’s application for an

upgrade in its ATC Level classification. Ud. at ¥ 31.)

Indeed, plaintiff Filebark filed an Unfair Labor

Practice charge against the FAA for its failure to do

so, but it was dismissed, in part, because NATCA had

already filed a grievance pertaining to the same

action. (Defs.’ Mot. 4; see Am. Compl. {{ 33-35.)

Subsequently, however, NATCA withdrew its griev-

ance and request for arbitration. (Defs.’ Moc. 4, Ex.

12.) Nevertheless, both Filebark and Havens allege

that the FAA failed to comply with the bargained for

CBA between the FAA and the NATCA and seck

judicial review of these actions. (Am.Compl. {qq 37-

42.) Plaintiff Filebark also seeks review of the deci-

sion regarding the grievance he filed. (Jd. at { 37.)

Defendants contend, however, that section 7121(a)(1)

of Title 5 of the United States Code precludes them

from seeking judicial review of the FAA determina-

tion of the Albuquerque Center’s ATC Level and of

the ATC Level assigned to the facility at which he or she is

employed. (Am.Compl.{ 13.) ATC Levels are calculated with the

use of a formula, based on the volume of air traffic at a facility,

implemented by the FAA. (/d.) On October 1, 1998, an FAA

Administrator issued a message that extended the pay agree-

ment negotiated by the FAA and NATCA, for FAA employees

under the CBA, to supervisors and managers who work at FAA

facilities. (Am. Compl. { 20; Pls.’ Opp’n Ex. 2.)

18a

plaintiff Filebark’s grievance. For the following

reasons, the Court agrees.

Section 40122(g)(2) of the FAA PMS states

that the provisions of Title 5 of the United

States Code, 5 U.S.C. §§ 101 et seq., “shall

not apply to the new personal [sic] manage-

ment system developed and implemented.”

49 U.S.C. § 40122(g)(2). However, the FAA

PMS did state that certain provisions of Title

5 would apply as exceptions. Id. One of those

exceptions is chapter 71, relating to labor-

management relations, 5 U.S.C. §§ 7101

et seq. Id.

Our Circuit Court, in Johnson v. Peterson, held

that it will recognize federal court jurisdiction over a

matter covered by the Civil Service Reform Act of

1978 (““CSRA”), 5 U.S.C. §§ 7101 et seg., only where

the statute expressly provides for such jurisdiction.’

* Certain provisions of Title 5 of the United States Code

generally no longer apply to FAA personnel. 49 U.S.C.

§ 40122(¢\2). One exception to the inapplicability of Title 5 is

chapter 71, 5 U.S.C. §§ 7101 et seq., which relates to labor-

management relations. Jd. at §40122(g)(2XC). It is within

chapter 71 of Title 5 of the United States Code that the proce-

dures for resolving grievances relating to a CBA are found:

“(A]ny collective bargaining agreement shall provide procedures

for the settlement of grievances, including questions of arbitra-

bility. [With some exceptions,] the procedures shall be the

exclusive administrative procedures for resolving grevances

which fall within its coverage.” 5 U.S.C. § 7121(a\1) (emphasis

added to reflect language added by 1994 Amendment, Pub.L. No.

103-424, § 9(c\2), 108 Stat. 4365 (1994)).

(Continued on following page)

19a

996 F.2d at 401 (“[Rleading between the lines [of the

CSRA] to interpolate remedies Congress did not

provide can only lead the Court into error. According-

ly, we decline to create a method by which the em-

ployee can short-circuit the administrative process

without the explicit authorization of Congress.”

(quotation marks omitted; second alteration in origi-

nal)). Title 5 of the United States Code section

§ 7121(a)(1) does not expressly provide this Court

with the jurisdiction to resolve a grievance under the

NATCA/FAA CBA which contains negotiated griev-

ance procedures. And while the plaintiffs urge this

Court to adopt the Federal and Eleventh Circuits

interpretative approach to finding jurisdiction via a

While plaintiffs urge that this Court follow the deci-

sion in Mudge v. United States, 308 F.3d 1220

(Fed.Cir.2002), and allow judicial review of this ad-

ministrative decision, the defendants contend that

Johnson v. Peterson, 996 F.2d 397, 401 (D.C.Cir.1993),

is binding on this Court. (Pls.’ Opp’n 18-19; Defs.’ Mot.

12.) Mudge was decided in the Federal Circuit and

held that 5 U.S.C. § 7121(a)(1) allowed for judicial re-

view of grievance procedures under a collective bar-

gaining agreement because of the addition of the word

“administrative” to the statute in the 1994 amend-

ments, 308 F.3d at 1227-28. In other words, Mudge

states that the amendment narrowed the statute such

that the grievance procedures provided in a collective

bargaining agreement are the exclusive procedures

only to the extent that they are administrative and,

therefore, judicial review is not precluded. /d.; see also

Asociacion De Empleados Del Area Canalera (ASE:

DAC) v. Panama Canal Commission, 329 F.3d 1235

(11th Cir.2003).

20a

1994 amendment to the statute, this Court does not

believe doing so would be consistent with the spirit,

and letter, of our Circuit’s precedent in Johnson.

Therefore, after reviewing the pleadings, this Court

GRANTS defendants’ Motion to Dismiss as to plain-

tiffs Filebark and Havens."

B. Plaintiff Todd’s Claim

Plaintiff Todd, as a non-bargaining unit employee

of the Albuquerque Center, also seeks review of the

FAA decisions as to the proper ATC Level classifica-

tion of the Albuquerque Center as it relates to his

salary level.” (Am.Compl.9{ 8, 39.) Defendants con-

tend that plaintiff Todd’s action must be dismissed

because he failed to exhaust his administrative

remedies and because he already brought an action in

the Court of Federal Claims regarding the same

issue. (Defs.’ Mot. 5, 9 n. 2.) After reviewing the

* The Ninth Circuit has held in Whitman v. Department of

Transportation that the addition of the word “administrative” in

5 U.S.C. § 7121(a)(1) does not constitute an express grant of

federal court jurisdiction over such claims. 382 F.3d 938, 943-44

(9th Cir.2004). This decision conflicts with the decisions of the

Federal Circuit and the Eleventh Circuit in Mudge and ASE-

DAC respectively. The Supreme Court granted certiorari in

Whitman on June 27, 2005 and oral argument was held on

December 5, 2005. See www.supremecourtus.gov/oralarguments/

argument_calendars.html.

° According to a message from Administrator Garvey,

plaintiff Todd's salary is also based on the ATC Level classifica-

tion of the Albuquerque Center due to the “NATCA agreement”

with the FAA (Pis.’ Opp’n Ex. 2.)

2la

pleadings, this Court DENIES defendants’ Motion to

Dismiss as to plaintiff Todd.

Plaintiff Todd sued the FAA in the United States

Court of Federal Claims, on behalf of the non-

bargaining unit employees at the Albuquerque Cen-

ter, seeking back pay as third-party beneficiaries of

the contracts, including the CBA, between the FAA

and NATCA under the Tucker Act, 28 U.S.C. § 1491.

Todd v. United States, 56 Fed. Cl. 449, 450

(Fed.C].2003), aff’d 386 F.3d 1091 (Fed.Cir.2004). The

claim was dismissed by the Court of Federal Claims

because the contract did not state that the Albuquer-

que Center would be upgraded to ATC Level 11, thus

guaranteeing plaintiffs a salary increase, and because

the plaintiffs did not follow the established grievance

procedure set in the contract to which they were

claiming third party beneficiary status. Todd, 56 Fed.

Cl. at 453. The decision of the Court of Federal

Claims was affirmed by the Federal Circuit. Todd v.

United States, 386 F.3d 1091 (Fed.Cir.2004). Plaintiff

Todd alleges that he attempted to file a grievance

related to the FAA’s ATC Level classification of the

Albuquerque Center through the personnel office and

with the facility manager at the Albuquerque Center.

(Pls.’ Opp’n 7, Ex. 13.) The facility manager allegedly

told plaintiff Todd that she did have the authority to

act on such a grievance and that she would not file

any appeal as to the classification of the Albuquerque

Center. (/d.) Plaintiff Todd then called the Merit

Systems Protection Board in Denver seeking review

of the ATC Level classification and the person to

22a

whom he spoke told him that the Board would not

pursue his grievance. (Pls.’ Opp’n Ex. 10.)

Our Circuit requires that a party exhaust the

administrative remedies available to it in a labor

dispute before an action can be brought in District

Court. Steadman v. United States Soldiers’ and

Airmen’s Home, 918 F.2d 963, 968 (D.C.Cir.1990);

Convertino v. United States Dept. of Justice, 393

F.Supp.2d 42, 45 (D.D.C.2005) (finding that the

exhaustion requirement helps prevent the interrup-

tion of the administrative process, allows the admin-

istrative agency to exercise its expertise, and

promotes judicial efficiency). Our Circuit also re-

quires that a claim be decided on the merits before it

will be precluded by either collateral estoppel (issue

preclusion) or res judicata (claim preclusion). Stanton

v. D.C. Ct. of Appeals, 127 F.3d 72, 76 (D.C.Cir.1997).

In this case, the defendants have neither stated

explicitly how plaintiff Todd has failed to exhaust the

administrative remedies available to him, nor do the

defendants counter plaintiff Todd’s allegations that

he did seek administrative remedies. Moreover, the

record does not show that he failed to do so.” And, the

* Plaintiff Todd has alleged that he sought to exhaust his

administrative remedies through the Albuquerque Center's

personnel office, its Facility Manager and the local Merit

Systems Protection Board since he is not a bargaining unit

employee under the NATCA/FAA CBA. (See Pls.’ Opp'n 7, Ex. 10,

Ex. 13.)

(Continued on following page)

23a

fact that plaintiff Todd previously brought a claim

against the United States in the Court of Federal

Claims pertaining to the ATC Level classification of

the Albuquerque Center and its effect on his compen-

sation does not necessarily bar him from bringing this

action since his earlier action was not decided on the

merits and was dismissed for lack of subject matter

jurisdiction under the Tucker Act. See Todd v. United

States, 56 Fed. Cl. 449 (Fed.Cl.2003), aff’d 386 F.3d

1091 (Fed.Cir.2004); Stanton, 127 F.3d at 76. There-

fore, after reviewing the pleadings, the Court DE-

NIES defendants’ Motion to Dismiss as to plaintiff

Todd.

CONCLUSION

For the foregoing reasons, this Court GRANTS

with prejudice Defendants’ Motion to Dismiss for

Lack of Subject Matter Jurisdiction as to Plaintiffs

Filebark and Havens and DENIES Defendants’

Motion to Dismiss for Lack of Subject Matter Juris-

diction as to Plaintiff Todd. An Order consistent with

this ruling accompanies this Memorandum Opinion.

It should be noted that the defendants have failed to

file the administrative record in this action as ordered

by the Court, see Civil Action No. 03-1685, Minute

Order dated December 7, 2004, even taking into

account any applicable extensions of time granted by

this Court.

24a

ORDER

For the reasons set forth above, it is this 23rd

day of February, 2006 hereby

ORDERED that the Defendants’ Motion to

Dismiss is GRANTED with prejudice as to Plaintiffs

Filebark and Havens, and it is further

ORDERED that the Defendants’ Motion to

Dismiss is DENIED as to Plaintiff Todd, and it is

further

ORDERED that defendants file the administra-

tive record as to Plaintiff Todd within 10 days of this

order.

SO ORDERED.

25a

542 F.Supp.2d 1

United States District Court,

District of Columbia.

FILEBARK, et al., Plaintiffs,

U.S. DEPARTMENT OF TRANSPORTATION, et

al., Defendants.

Civil No. 03-1685(RJL).

March 31, 2008.

George Michael Chuzi, Kalijarvi, Chuzi &

Newman, Washington, DC, for Plaintiffs.

Beverly Maria Russell, U.S. Attorney’s Office for

DC, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Jerry Todd (“Todd”) and Richard S. Boatman

(“Boatman”) (“plaintiffs”), Air Traffic Control Super-

visors at the Albuquerque, New Mexico Air Traffic

Control Center (“Albuquerque Center” or “Center”),

brought this action against the Federal Aviation Admin-

istration (“FAA”) and the United States Department

of Transportation (“DOT”) (“defendants”) seeking, in

essence, a reversal of the FAA’s decision regarding the

air traffic control classification of the Albuquerque

Center. On February 23, 2006, the Court granted

in part and denied in part defendants’ motion to

26a

dismiss. Both parties filed motions for reconsider-

ation, which the Court denied via separate Minute

Orders on December 19, 2006. Now before the Court

are Defendants’ Motion to Dismiss, or Alternatively,

for Summary Judgment (Dkt.# 71) (“Defs. Mot.”);

Plaintiffs’ Cross-Motion for Summary Judgment and

Opposition to Defendants’ Motion to Dismiss or for

Summary Judgment (Dkt. # 74) (“Pls. Cross-Mot.”);

and Plaintiffs’ Motion to Include Additional Materials

(Dkt. # 75). Upon consideration of the briefs, the

relevant law and the entire record herein, the Court

GRANTS defendants’ motion to dismiss and DENIES

plaintiffs’ cross-motion for summary judgment.’

BACKGROUND

Pursuant to the Administrative Procedures Act

(“APA”), plaintiffs seek judicial review of the FAA’s

' In its February 23, 2006 Memorandum Opinion, the Court

dismissed plaintiffs Joseph J. Filebark IJ and John J. Havens II

but permitted the suit by plaintiff Todd to go forward on

the grounds that defendants had not demonstrated on the rec-

ord then before the Court that Todd had failed to exhaust his

administrative remedies. Filebark v. U.S. Dep't of Transp., 468

F.Supp.2d 3, 7 (D.D.C.2006). The remaining plaintiffs are Todd

and Boatman. The Court granted Boatman’s motion to intervene

on December 19, 2006 via Minute Order.

* In light of the Court’s determination that is [sic] lacks

jurisdiction, it DENIES as moot Plaintiffs’ Motion to Include

Additional! Materials.

* The parties agree that the material facts are undisputed,

but that the legal significance of those facts remains disputed.

27a

decisions to deny the Albuquerque Center’s requests

to upgrade its classification from an air traffic control

(“ATC”) Level 10 to an ATC Level 11. Ultimately,

plaintiffs want the FAA to pay them the higher salary

associated with working at an air traffic control

center classified as an ATC Level 11. For the follow-

ing reasons, the Court wili not reverse the FAA’s

classification decision.

A. General Background

The Department of Transportation Appropria-

tions Act of 1996, Pub.L. No. 104-50, § 347, 109 Stat.

436 (1995), as amended by Pub.L. No. 104-122, § 1,

110 Stat. 876 (1996) (“DOT Act”)’ directed the FAA

Administrator to develop and implement a new per-

sonnel management system, which would put into

effect a new compensation and classification system

that would classify FAA facilities and determine

the pay of the FAA workers at those facilities. File-

bark v. U.S. Dep't of Transp., 468 F.Supp.2d 3, 4 n. 2

(D.D.C.2006) (Leon, J.) (citing 49 U.S.C. § 40122(g)).

Congress directed that the “new system shall, at a

minimum, provide for greater flexibility in the hiring,

training, compensation, and location of personnel.”

49 U.S.C. § 40122(g)(1). Pursuant to this authori-

zation, the FAA implemented the FAA Personnel

* For ease of reference, the Court will use the term “COT

Act” to refer to not only the statute cited above, but also to any

subsequent amendments, which have collectively been codified

at 49 U.S.C. § 40122.

28a

Management System (“PMS”) in March 1996. (See

generally A.R. 2-31.) The PMS anticipated that the

FAA and the National Air Traffic Controller Associa-

tion (“NATCA”) would continue working together to

devise a compensation pian “that values job complex-

ity and compensates the employees based on level of

work performance.” (A.R. 14.)

In July 1998, the FAA and NATCA reached an

agreement on the new compensation system.’ (A.R.

133.) This system would transition the FAA from the

GS system to the air traffic control (“ATC”) system:

the Position Classification Standard for Air Traffic

Control Series ATC-2152 Terminal and En Route

(“PCS”). (A.R. 136-204.) The PCS categorizes facil-

ities based on traffic count, with classification levels

(“ATC Level”) ranging from ATC Level 3-12. (A.R.

313.) The FAA then compensates employees according

to the ATC Level assigned to the facility at which

they are employed. ATC Levels are assigned using a

Classification Index (“CI”), which is calculated based

* Although the pay agreements between the FAA and

NATCA do not encompass supervisors, such as plaintiffs here,

the FAA notified its employees that it had decided to extend the

agreements with the NATCA to supervisory employees. (A.R. 32-

33.)

* The parties dispute whether the July 1998 PCS or the

January 1999 PCS (A.R. 136-204) constitutes a final version of

the compensation plan. The dispute is only relevant for deter-

mining whether the appropriate break point between a Level 10

facility and a Level 11 facility is 1200 or 1250. Since the Court

does not have jurisdiction to reach the merits, resolution of this

dispute is unnecessary.

29a

on various factors, including traffic volume. See Todd

v. United States, 56 Fed.Cl. 449, 450 (Fed.Cl.2003),

aff’d 386 F.3d 1091 (Fed.Cir.2004); see also A.R. 313.

The methodology for computing the CI is set forth in

the PCS. (A.R. 180-81.) The FAA uses a software

program, called Enroute Track Analysis Program or

ETAP, to calculate traffic counts used to generate the

CI. See Todd, 56 Fed.Cl. at 450-51. The CI required

for a particular ATC Level is based on “break points”

established by the FAA and NATCA.'

Recognizing that a facility’ air traffic count

might change over time, the PCS provides general

" Despite reaching an agreement, the parties acknowledged

that further work was required to implement the PCS. They

memorialized their intent to continue working in a July 8, 1998

Memorandum of Understanding with Respect to Reclassification

and Associated Pay Rules (“July 1998 MOU”) and a July 9, 1998

Principal Memorandum of Agreement Between the National Air

Traffic Controllers Association and the Federal Aviation Admini-

stration (“July 1998 MO A”). (See generally A.R. 311-27; see A.R.

316, 325 (“The parties have made a good faith effort to devise a

new pay system consistent with the agreement on additional

funds to be made available in each of the first three fiscal years

of the life of the new collective bargaining agreement. The

parties recognize, however, that certain variables are sufficiently

complex that the fiscal year mark will likely not be met pre-

cisely.”).) Although the FAA transitioned to the ATC pay system

in October 1998, the FAA/NATCA Reclassification Team (“Re-

classification Team”) continued to work on the new classification

system. Updates provided by the Reclassification Team noted

that the classification process was ongoing, and due to addition-

al data collection, the previously-distributed facility grades

might change. (A.R. 133.) To mitigate any impact, they noted

that the break points might need to be adjusted. (A.R. 134.)

30a

guidelines for a facility to request an ATC Level

upgrade. (See A.R. 193.) The FAA and NATCA refined

the procedures for obtaining a facility upgrade in a

November 15, 1999 Memorandum of Understanding

with Respect to Reclassification and Associated Pay

Rules Between the National Air Traffic Controllers

Association and the Federal Aviation Administration

(“November 1999 MOU”). (A.R. 205-08.) The Novem-

ber 1999 MOU delineates seven requirements a

facility must meet to obtain an upgrade, including

providing the facility’s traffic count and CI calcula-

tion. (A.R. 206.) The final requirement is that “[t]he

data will be validated at the Regional and/or National

Level.” (/d.)

If an employee or facility wishes to challenge a

classification decision, the PCS delineates an Appeal

Process to seek review of “|tjhe way in which the

classification standard is interpreted or applied at a

specific facility.” (A.R. 194). Pursuant to the Appeal

Process, an individual employee may initiate an

appeal, but oly the Facility Manager and the NATCA

Facility Representative are authorized to file the

appeal. (/d.) Upon receipt of an appeal, a Classifica-

tion Appeal Review Committee (“CARC”), consisting

of a NATCA representative and an Air Traffic Man-

agement Representative, will be established; it will

issue a written statement of findings within sixty

days. Ud.) This decision is final and binding; no

further appeal is permitted. (A.R. 195.) To the extent

the CARC cannot reach a mutual decision, an appeal

3la

may be taken to the Classification Appeals Board

(“CAB”). Id.)

B. Albuquerque Center’s Upgrade Requests

The FAA originally assigned the Albuquerque

Center an ATC Level 10. The Albuquerque Center,

however, has repeatedly requested an upgrade to an

ATC Level 11. The Center’s air traffic manager, Joan

Mallen, initiated the Center’s first upgrade request

on June 7, 2000.” (A.R. 302-04.) Although the request

acknowledged that the Center’s current CI was below

the Level 11 break point, it attributed that to the

erroneous exclusion of some Special Use Airspace

traffic, such as military operations. (A.R. 302.) On

September 6, the air traffic manager sent a complete

application for an upgrade, which also requested

“assistance in validating this data” pursuant to the

terms of the November 1999 MOU. (A.R. 306-08,

308.)

* Plaintiffs’ Amended Complaint and Cross-Motion assert

that since the Albuquerque Center's initial classification, the

FAA has erroneously classified the Center as an ATC Level 10.

This assertion is based, in part, on their contention that the FAA

applied an incorrect break point and that ETAP did not count

certain special use airspace traffic, such as military traffic. (See,

e.g., Pls. Cross-Mot. 8 & n. 5; Am. Compl. ¥§ 22.) Although

plaintiffs argue that the initial classification was incorrect, they

do not challenge any agency decision relating to this determin-

ation

32a

The FAA denied Albuquerque Center’s request on

October 17, 2000. (A.R. 209.) It noted that until it

completed the validation of ETAP, it would not run a

CI for classification purposes. (/Jd.) The FAA also

pointed out that the current year of traffic data on file

indicated that the Center had not met the require-

ments for an upgrade. (Jd.) The Albuquerque Center

was encouraged to submit a new upgrade request

once the ETAP validation was complete and it met

the upgrade requirements. (Jd.)

Subsequently, Todd, in his capacity as an Air

Traffic Control Supervisor, sought to initiate an appeal

of the FAA’s decision. The Albuquerque Center’s

Facility Manager, Joan Mallen, declined to file the

appeal. (Pls. Opp’n to Mot. to Dismiss [Dkt. # 27], Ex.

13, 4 11.) Undeterred, Todd also tried to lodge a

complaint with the Merit Systems Protection Board

(“MSPB”), but they declined to accept the grievance.

(Id. J 13.)

In 2001, however, the Albuquerque Center re-

quested another upgrade. As part of this request, the

National Validation Team (“NVT”) conducted an audit

of the Center in July 2001.” (A.R. 265-300.) The NVT

determined that “the facility has experienced adapta-

tion problems between the HOST computer and ETAP

” Plaintiffs assert that the version of ETAP in use during

the summer of 2001 still did not count military traffic and also

did not calculate the CI based on the appropriate number of

hours, in violation of the PCS requirements for calculating a

facility's Cl.

33a

that had an impact on the facilities (sic) classification

index.” (A.R. 265.) Once the adaptation problems

were corrected during the validation process, the

Center’s CI was below the required breakpoint. (Jd. )

As a result, the Albuquerque Center’s upgrade

request was denied on September 26, 2001. (/d.)

In the interim, plaintiff Todd had filed a contract

claim in the Court of Federal Claims in July 2001,

seeking back pay on the grounds that the FAA's

refusal to upgrade the Albuquerque Center’s ATC

Level violated the collective bargaining agreement

between the FAA and the NATCA. See generally Todd

uv. United States, 56 Fed.Cl. 449 (Fed.Cl.2003), aff’d,

386 F.3d 1091 (Fed.Cir.2004). The Federal Circuit

upheld the dismissal of that case on October 5, 2004.

See Todd v. United States, 386 F.3d 1091 (Fed.Cir.2004).

Shortly thereafter, on December 22, 2004, plaintiffs

sought leave to file an Amended Complaint adding

Todd as a plaintiff to this action, but still seeking

judicial review of the FAA’s classification upgrade

decisions.

DISCUSSION

I. Standard of Review

Federal Rule of Civil Procedure 12(b)(1) provides

for dismissal of a complaint for lack of subject matter

jurisdiction. Under Rule 12(b)(1), “the plaintiff bears

the burden of establishing the factual predicates

of jurisdiction by a preponderance of the evidence.”

Lindsey v. United States, 448 FSupp.2d 37, 42

34a

(D.D.C.2006) (quoting Erby v. United States, 424

F.Supp.2d 180, 182 (D.D.C.2006)). “The [CJourt, in

turn, has an affirmative obligation to ensure that it is

acting within the scope of its jurisdictional authority.”

Id. at 42-43 (alteration in original) (quoting Abu Ali v.

Gonzales, 387 F.Supp.2d 16, 17 (D.D.C.2005)).

Il. The Department of Transportation Appro-

priations Act of 1996 Precludes Judicial

Review of the FAA’s Facility Classification

The FAA challenges the Court’s jurisdiction on

the grounds that judicial review of plaintiffs’ APA

claims is precluded by the DOT Act." Plaintiffs assert

Plaintiffs claim that the law of the case doctrine bars the

FAA from asserting its jurisdictional arguments because the

Court’s denial of the FAA's original motion to dismiss and motion

to alter or amend judgment implicitly rejected those arguments.

(See Pls. Cross-Mot. 23-26.) I disagree. The law of the case

doctrine embodies “the general concept that a court involved in

later phases of a !awsuit should not re-open questions decided

(i.e., established as the law of the case) by that court or a higher

one in earlier phases.” Crocker v. Piedmont Aviation, 49 F.3d

735, 739 (D.C.Cir.1995). The doctrine is prudential, not juris-

dictional. See id. at 739-40. This applies to issues decided

explicitly or by necessary implication. See LaShawn A. v. Barry,

87 F.3d 1389, 1394 (D.C.Cir.1996) (en banc). Although our

Circuit Court has rejected a subject matter jurisdiction excep-

tion to the doctrine, it also recognizes that it is a prudential

doctrine. See id. at 1393-94. If the initial decision was “clearly

erroneous and would work a manifest injustice,” reconsideration

is permissible. See id. at 1383 (citations and internal quotations

omitted). In its prior Memorandum Opinion, the Court explicitly

stated its understanding that defendants were moving to

dismiss plaintiff Todd’s claim “because he failed to exhaust his

(Continued on following page)

35a

that their claims are properly brought pursuant to

the APA since the upgrade decisions constitute a final

agency action for which there is no other remedy in

court." (Pls. Opp’n to Mot. to Dismiss [Dkt. # 27] 12

(citing 5 U.S.C. § 704).) They contend that the case

law regarding the preclusive effect of the Civil Service

Reform Act (“CSRA”) is irrelevant because the FAA is

exempt from that statute, and the PMS does not

provide comparable recourse. (/d. at 10-11.) The FAA,

administrative remedies and because he already brought an

action in the Court of Federal Claims regarding the same issue.”

Filebark v. U.S. Dep't of Transp., 468 F.Supp.2d 3, 7 (D.D.C.2006).

It did not believe that defendants’ § 70l(a) arguments were

made as to plaintiff Todd. Additionally, the pleadings with

regard to Defendants’ Motion to Alter or Amend Judgment pur-

ported to argue that the court lacked jurisdiction over clas-

sification decisions because they were committed to agency

discretion. Although both parties sprinkled variations of the

word “preclude” into their briefing on the Motion to Alter or

Amend Judgment, it was far from apparent to the Court that

they were making arguments as to whether the Court lacked

jurisdiction because a statute precluded judicial review pursu-

ant to § 701(aX(1), as opposed to because the matter was commit-

ted to agency discretion pursuant to § 701(a)(2). Any confusion

stemmed from the parties’ lack of clarity regarding their argu-

ments. Now that it is clear that defendants argue the Court

lacks jurisdiction pursuant to § 701(a)(1), as well as § 701(a)(2),

it is apparent that failing to consider this argument would, for

the reasons infra, be erroneous and work a manifest injustice

Thus, addressing this argument is not inconsistent with the law

of the case doctrine

' In support of their contention that the challenged agency

actions are subject to judicial review, plaintiffs rely exclusively

on their papers filed in conjunction with the prior motion to

dismiss and motion for reconsideration. (Pls Cross-Mot. 25-26.)

36a

on the other hand, argues that the PMS provides the

exclusive remedies for challenging FAA personnel

actions. It supports its argument by comparing the

PMS, which it implemented pursuant to § 347 of the

DOT Act, to the CSRA, which courts have routinely

held to preclude judicial review. (Defs.Mot.16-22.) For

the following reasons, I agree with the defendants.

The APA “embodies the basic presumption of ju-

dicial review.” Abbott Labs. v. Gardner, 387 U.S. 136,

140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Specific-

ally, “lalgency action made reviewable by statute and

final agency action for which there is no other

adequate remedy in a court are subject to judicial

review.” 5 U.S.C. § 704. The APA limits review, how-

ever, where “statutes preclude judicial review” or

where “agency action is committed to agency discre-

tion by law.” /d. § 701(a)(1), (2). Absent an express

statutory prohibition of judicial review, courts require

a showing of “clear and convincing” legislative intent

to preclude judicial review. See Abbott Labs., 387 U.S.

at 141, 87 S.Ct. 1507. “Whether and to what extent a

particular statute precludes judicial review is

determined not only from its express language, but

also from the structure of the statutory scheme, its

objectives, its legislative history, and the nature of

the administrative action involved.” Block v. Comty.

Nutrition Inst., 467 U.S. 340, 345, 104 S.Ct. 2450, 81

L.Fd.2d 270 (1984): see also United States v. Fausto,

484 U.S. 439, 443-44, 108 S.Ct. 668, 98 L.Ed.2d 830

(1988) (“examining the purpose of the [statute], the

entirety of its text, and the structure of review that

37a

it establishes” to determine whether it precludes

judicial review). An analysis of the DOT Act anJ the

subsequent PMS and PCS illustrate Congress’ clear

intent to limit judicial review of FAA personnel

decisions to what is explicitly provided.

Congress enacted the DOT Act “to give the FAA

the opportunity to replace standing regulations with

its own specific personnel management system” that

would address the “unique demands” of the FAA’s

workforce. See Fed. Air Marshals v. United States, 74

Fed.Cl. 484, 487 (Fed.Cl.2006). To permit the FAA to

create its own personnel management system that

would “provide for greater flexibility in the hiring,

training, compensation, and location of personnel,”

the DOT Act exempted the FAA from most federal

personnel laws, including many provisions of the

Civil Service Reform Act. See 49 U.S.C. § 40122(¢)(1);

see also H.R.Rep. No. 104-475(1I) (1996), available at

1996 WL 108579, *31 (DOT Act “deall[s] with these

problems by giving the agency the flexibility to

develop its own procurement and personnel systems

best suited to its unique mission.... by exempting

the agency from current ... personnel laws that

hinder its flexibility”). The Civil Service Reform Act,

Pub.L. No. 95-454, 92 Stat. 111 (codified, as amended,

in scattered sections of 5 U.S.C.) (““CSRA”), is “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 scund and efficient administration.” Fausto,

484 U.S. at 445, 108 S.Ct. 668. Despite the FAA's

38a

general exemption from the CSRA and other federal

personnel laws, Congress specifically maintained the

applicability of certain “existing laws on whistle-

blower protection, prohibiting strikes, prohibiting dis-

crimination and those laws relating to suitability,

security, conduct, workmen’s compensation, unemploy-

ment compensation, retirement, labor-management

relations, life insurance, and health insurance.” H.R.Rep.

No. 104-475(1), available at 1996 WL 108579 at *40.

In fact, Congress amended the statute in 2000 to give

FAA employees the right to petition the Merit

Systems Protection Board in connection with major

adverse personnel actions related to whistleblowing.

See Wendell H. Ford Aviation Investment and Reform

Act for the 21st Century, Pub.L. No. 106-181, § 308,

114 Stat. 61 (2000).

Exercising the discretion afforded it by Congress,

the FAA implemented the PMS, which, along with the

DOT Act, governs FAA personnel. In doing so, it chose

to make additional federal personnel laws applicable

to the FAA, (A.R. 3 (exercising discretion to have

certain sections of Title 5 applicable to FAA)), and

it established its own grievance and appeal pro-

cedures,’ (A.R. 22-26). Moreover, when the FAA

‘The PMS also provides additional procedural protections

akin to protections provided for by the CSRA. For example, both

the PMS and CSRA guarantee employees written notice of

adverse personnel actions, such as removal, with an opportunity

to respond. Compare A.R. 20-22 (FAA PMS Ch. III, 7 (g)-(q)),

with 5 U.S.C. § 4303(b).

39a

implemented the PCS pursuant to the PMS, it insti-

tuted an Appeal Process for facility classification

decisions. (A.R. 194-95.) Those procedures, however,

do not provide judicial review for agency decisions

regarding facility upgrade requests.

Indeed, allowing plaintiffs’ claims to proceed here

would undermine Congress’ clear intent to the con-

trary. Congress exempted the FAA from the CSRA

to give the FAA as much flexibility as possible in

developing its own personnel management system.

Permitting judicial review of personnel decisions that

neither Congress, nor the FAA, elected to subject to

judicial review would thwart that flexibility. Not sur-

prisingly, the Fifth Circuit reached a similar conclu-

sion in McAuliffe v. Rice, 966 F.2dG 979 (5th Cir.1992).

In McAuliffe, the Fifth Circuit faced an APA

claim by an employee of a nonappropriated funded

instrumentality (“NAFI”), run by the Air Force, chal-

lenging her termination. Congress had exempted

NAF Is from the CSRA to provide them with program

flexibility. See id. at 979. In holding that the action

was precluded, the Fifth Circuit explained that since

Congress “deliberately exempted NAFI employee”

from the CSRA to give them “the maximum possible

personnel flexbility,” requiring judicial review of

those decisions “thwarts the goal of maintaining

flexibility.” See id. at 980-81.

Moreover, the comprehensive personnel system

established by the DOT Act and the PMS supports

the finding that judicial review is precluded here.

40a

Courts have recognized that the comprehensiveness

of the CSRA demonstrates Congress’ intent for the

CSRA to provide the exclusive remedies for agency

personnel actions. Accordingly, absent a provision for

judicial review in the CSRA, challenges to agency

personnel actions cannot be pursued via other stat-

utes, like the APA. See Fausto, 484 U.S. at 455, 108

S.Ct. 668 (holding that Congress’ establishment of

a “comprehensive system for reviewing personnel

action” judicial review if the statute excludes an

employee from those provisions); see also Graham v.

Dep't of Justice, No. 02-1231, 2002 WL 32511002, *2

(D.D.C. Nov.20, 2002) (“The law is well-settled that

the CSRA displaces all other bases for judicial review

of personnel actions taken against federal employees,

including the APA.”), aff’d Graham v. Ashcroft, 358

F.3d 931 (D.C.Cir.2004); Forrey v. Office of Pers.

Megmt., 70 F.3d 1271, 1995 WL 696901 *1 (6th

Cir.1995) (unpublished table) (upholding determina-

tion that Congress did not intend that judicial review

be available pursuant to the APA after enactment of

the CSRA because “the [FAA's] classification decision

[of an employee’s position based on the density of air

traffic handled in the Cleveland region] was discre-

tionary and therefore not subject to judicial review”).

It has also been observed by various courts that

the principles regarding the CSRA’s exclusivity in

providing remedies “appl[y] even where the federal

employee in question is not covered by the CSRA

at all,” as is the case with the plaintiffs here. See

Graham, 2002 WL 32511002 at *3, n. 1 (citing

4la

McAuliffe v. Rice, 966 F.2d 979 (5th Cir.1992)); see

also Crodday v. FBI, No. 00-0651, 2006 WL 2844261

(D.D.C. Sept.29, 2006) (holding that the CSRA pre-

cluded judicial review of FBI personnel actions within

the ambit of the CSRA even though FBI is exempt

from CSRA). The DOT Aci was intended to supplant

the CSRA and permit the creation of a personnel

management system specifically designed for and by

the FAA. Where Congress wanted to guarantee cer-

tain remedies, it explicitly did so. Thus, by providing

the FAA with the discretion and flexibility to create

its own personnel management system, Congress in-

tended that resulting system to constitute the entire

personnel system.

That the statutory scheme specifically provides

for judicial review of certain other limited agency

actions also suggests Congress’ intent to preclude ju-

dicial review here. For example, Congress specified in

the statute that employees have the ability to ulti-

mately seek judicial review of an adverse ruling

regarding a “major adverse personnel action.” See

42 U.S.C. § 40122(h) (permitting review of “major

adverse personnel action” through the FAA’s Guaran-

teed Fair Treatment procedures); A.R. 24-26 (FAA

Guaranteed Fair Treatment procedures ultimately

permit an employee to seek judicial review). These

“major adverse personnel actions” include “a suspen-

sion of more thai 14 days, a reduction in pay or

grade, a removal for conduct or performance, a non-

disciplinary removal, a furlough of 30 days or less...

or a reduction in force action.” 42 U.S.C. § 40122()).

42a

Similarly, the DOT Act also provides for judicial

review of certain challenges to “prohibited personnel

practices” under “section 2302(b), relating to whistle-

blower protection.” 49 U.S.C. § 40122(g)(2)(A). By

contrast, neitix-r the DOT Act nor the PMS provide

the same review process to employees challenging

“classification decisions.” Indeed, the parties do not

dispute this, and to the extent an upgrade class-

ification decision could be considered in theory a

“prohibited personnel practice” under the CSRA (z.e.,

denying an employee equal pay for equal work),

Congress did not provide for the possibility of judicial

review for “prohibited personnel practices” in general,

only prohibited personnel actions relating to whistle-

blowers. 49 U.S.C. § 40122(g)(2)(A). Thus, Congress

left to the discretion of the FAA how to review erro-

neous classification decisions. And the FAA decided to

limit the process to the Appeal Process set forth in

the PCS, which does not contemplate judicial review.

(A.R. 194-95.) Thus, for this Court to allow plaintiffs

to proceed with judicial review here would “turn the

review structure of the [DOT Act] on its head.”” See

Plaintiffs contend that the case Jaw concerning the pre-

clusive effect of the CSRA is inapplicable here because the em-

ployees in those cases had adequate procedural protections,

which the plaintiffs lack here. (Pls. Opp’n to Mot. to Dismiss

[Dkt. # 27] 11-12.) Although plaintiffs assert that access to the

MSPB and Office of Special Counsel was the “linchpin” in Gray

u. Office of Personnei Management, 771 F.2d 1504 (D.C.Cir.1985),

and Carducc v. Regan, 714 F.2d 171 (D.C.Cir.1983), the avail-

ability of other remedies was only one factor the Circuit Court

considered. The Circuit Court also placed emphasis on not

(Continued on following page)

43a

Ryon v. O’Neill, 894 F.2d 199, 203 (6th Cir.1990); see

also McAuliffe v. Rice, 966 F.2d 979, 981 (5th Cir.1992).

Thus, in light of Congress’ clear intent, the pur-

pose and structure of the DOT Act limits judicial re-

view for FAA employees to those explicitly provided

for in the statute and accompanying procedures.

Accordingly, since that is not the case here, the Court

lacks jurisdiction to entertain plaintiffs’ APA claims.

Accordingly, in light of Congress’ clear intent, the

Court lacks jurisdiction to entertain plaintiffs’ APA

claims, and must GRANT defendants’ motion to

dismiss. An appropriate Order consistent with this

ruling accompanies this Memorandum Opinion.

conferring greater mghts to employees than provided for by

Congress. See Gray, 771 F.2d at 1510-11; cf. Carducci, 714 F.2d

at 175 (acknowledging that its ruling would render some limited

number of minor personnel actions reviewable by neither the

Office of Special Counsel nor the courts); Graham, 358 F.3d at

935 (“‘{I]t is the comprehensiveness of the statutory scheme

involved, not the “adequacy” of specific remedies thereunder,

that counsels judicial abstention.’” (quoting Spagnola v. Mathis,

859 F.2d 223, 227 (D.C.Cir.1988) (en banc)).). It bears noting,

however, that plaintiffs do have some recourse through their

facility manager, even if they deem that recourse unsatisfactory.

Cf. Stella v. Mineta, 284 F.3d 135, 142-43 (D.C.Cir.2002) (observ-

ing that prior to 2000 amendment to DOT Act granting FAA

employees access to enforcement and investigation provisions for

whistleblower actions, FAA employees’ recourse for whistle-

blowing reprisals was solely within the FAA’s PMS procedures).

44a

56 Fed.Cl. 449

United States Court of Federal Claims.

Jerry TODD, et al., Plaintiffs,

UNITED STATES of America, Defendant.

No. 01-409C.

May 5, 2003.

George M. Chuzi, Kalijarvi, Chuzi & Newman, P.C.,

Washington, DC, for plaintiffs.

Thomas D. Dinackus, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, for defendant. Peter J. Hannums,

Federal Aviation Administration, Washington, DC, of

counsel.

OPINION AND ORDER

HODGES, Judge.

laintiffs are managers and supervisors who

seek back pay as third-party beneficiaries of a con-

tract negotiated by the Federal Aviation Administra-

tion and the National Air Traffic Controllers Associa-

tion. The Government has not disputed plaintiffs’

alleged third-party beneficiary status until now. See

Todd v. United States, Hearing Tr. at 20, No. 01-409C

(Fed.Cl. May 15, 2003).' “The Government has never

' “Are you concerned at all about the fact that these

plaintiffs are not members of the union [that] negotiated this

deal to start with?

(Continued on following page)

45a

conceded that plaintiffs are third-party beneficiaries,

such that the CBA could provide jurisdiction for this

Court to entertain this suit.” Brief in Response to

Court Order, p. 10, n. 9 (April 29, 2003). Defendant

also contends now that “[a] third party cannot be

made a third party beneficiary of a contract by the

post-hoc unilateral act of one of the signatories to the

contract.” (citation omitted).

Plaintiffs argue that agreements and memoranda

of understanding between the Federal Aviation Ad-

ministration and the National Air Traffic Controllers

Association entitle them to higher salaries. The agree-

ments govern classification of FAA facilities and

establish procedures for reclassifying facilities accord-

ing to air traffic volume.

Defendant stated at a hearing last year that

Albuquerque Center was a Level 10 facility, and that

its traffic volume was well below the “break point” for

Level 11 classification. After that hearing, the parties

assured the court repeatedly that they would settle.

We granted many extensions based on those repre-

sentations, and the case is now nearly two years old.

“Probably not.... It appears that even though these

individuals were not members of the union, it. was

understood that they would be, in a sense, a benefi-

ciary of the union agreement because they work in the

same facility as the people who are covered by the

union agreement.

“And there was intent that they be benefitted?

“Correct.”

46a

The Government raised subject matter jurisdiction

for the first time in March of this year. Defendant

made little mention of jurisdiction during the hearing

last year or in the Answer filed October 2001.

BACKGROUND

Congress authorized the Administrator of the

Federal Aviation Administration in 1995 to develop a

new Personnel Management System to supplant the

compensation and classification system then in effect.

See 49 U.S.C. § 40122(g).’ The Personnel Manage-

ment System is exempt from Title 5 of the United

States Code with several exceptions.”

* Personnel management system —

[T]he Administrator shall develop and implement, not

later than January 1, 1996, a personne] management

system for the [Federal Aviation) Administration that

addresses the unique demands of the agency’s work-

force. Such a new system shall, at a minimum, pro-

vide for greater flexibility in the hiring, training,

compensation, and location of personnel. 49 U.S.C.

§ 40122(g)(1).

* Applicability of title 5. —

The provisions of title 5 shall not apply to the new

personnel management system developed and imple-

mented pursuant to paragraph (1), with the exception

of -

(H) sections ... relating to the Mert Systems Pro-

tection Board. 49 U.S.C. § 40122(g)(2).

AZva

The FAA classifies air traffic control facilities

according to the amount of traffic that passes through

the facilities’ air space. The Personnel Management

System compensates employees of a facility based on

its Classification Index. The FAA and the National

Air Traffic Controllers Association negotiated the

system for classifying air traffic volume and for com-

pensating employees.

FAA issued classification standards adopting the

negotiated system in January 1999, including a for-

mula for counting civilian and military aviation traf-

fic. The System uses a formula to make traffic counts

and to assign appropriate levels to FAA facilities. The

FAA calculates traffic counts with software known as

ETAP. The Classification System assigned the Albu-

querque Traffic Control Center a Level 10 (ATC-10) in

1998. This assignment was based on a traffic count of

less than 1250, which is considered the break point

for reclassification.

Alibuquerque Center notified FAA after the ATC-

10 assignment in 1998 that ETAP did not account for

military traffic handled by the Center, as the Class-

ification Standards require. The FAA released a new

version of ETAP in June 1999.

The FAA and NATCA negotiated a Memorandum

of Understanding in November 1999, to determine

when facilities would be upgraded based on their traf-

fic counts. The qualification procedure is an eight-

step process that requires data submitted by the

facility to be “validated at the Regional and/or

48a

National Level.” See Memorandum of Understanding,

November 15, 1999.

Albuquerque Center issued a memorandum to

the FAA in September 2000 stating that using the

new software, it had met the criteria for an upgrade

to ATC-11. The data were based on traffic counts for

June, July, and August of that year. The FAA re-

sponded that it could not validate Albuquerque

Center’s data. FAA released two newer versions of the

software the following year, and it has allowed

Albuquerque to augment the traffic count manually

since then.

Plaintiffs’ arguments suggested uncertain or

alternative legal theories, so we asked plaintiffs to

file the documents that support jurisdiction in this

court. It was clear after the March 20 hearing that

plaintiffs are claiming an express contract with the

United States.

DISCUSSION

The Tucker Act grants this court jurisdiction over

actions “founded either upon the Constitution, or any

“Onc reason that we have had trouble understanding

plaintiffs’ theory of this case is that they rely entirely on breach

of an expressed contract. Traditional breach damages should

give them sufficient relief if they could make the necessary

showing. Most of plaintiffs’ arguments seem to rely on back pay

provisions on the collective bargaining agreements.

49a

Act of Congress or any regulation of an executive

department, or upon any express or implied contract

with the United States, or for liquidated or unliqui-

dated damages in cases not sounding in tort.” 28

U.S.C. § 1491. The Tucker Act is a jurisdictional

statute; plaintiffs must show that a substantive right

exists elsewhere, such as in a contract or money-

mandating statute or regulation. See United States v.

Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77

L.Ed.2d 580 (1983); United States v. Testan, 424 U.S.

392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).

“Federal employees do not have contractual rela-

tionships with the Government, barring an explicit

agreement to the contrary.” Darden v. United States,

18 Cl.Ct. 855, 859 (1989). Federal law governs col-

lective bargaining agreements involving federal em-

ployees.

The FAA Administrator issued an order in March

1996 “to implement a new personnel management

system for the FAA that will be more efficient; cost

less to operate; provide greater flexibility in the

hiring, training, compensation, and location of FAA

personnel; and, above all, be fundamentally fair.” We

asked plaintiffs to provide authority in the Personne!

Management System for this court to review FAA’s

classification decision and to award them back pay.

They cited Paragraph 9 of the PMS:

50a

Agency funds may be used to pay back pay

to an FAA employee who, as the result of

a decision or settlement under the FAA

Grievance Procedure, a collective bargaining

agreement, the FAA appeals procedure, or

the Executive System Appeals Procedure is

found by an appropriate authority to have

been affected by an unjustified or unwar-

ranted personnel action that resulted in the

withdrawal, reduction, or denial of all or part

of the pay, allowances, and differentials

otherwise due to the employee.

FAA Personnel Management System, Chapter II,

Paragraph 9(a) (March 28, 1996). Paragraph 9 of the

PMS is a counterpart to the statute that authorizes

back pay for federal employees due to unjustified per-

sonnel actions. See 5 U.S.C. § 5596.° Title 49 U.S.C.

§ 40122(g)(2) excludes § 5596 from FAA’s Personnel

Management System (“The provisions of title 5 shall

not apply to the new personnel management system

. with the exception of [the Merit Systems Pro-

tection Board]”).

Plaintiffs seek back pay on the basis that the

Agency’s refusal to upgrade Albuquerque Center to an

* An employee of an agency who, on the basis of a timely

appeal or an administrative determination ... is found by an

appropriate authority under applicable law, rule, regulation, or

collective bargaining agreement, to have been affected by an

unjustified or unwarranted personne! action which has resulted

in the withdrawal or reduction of all or part of the pay, allow-

ances, or differentials of the employee 5 U.S.C. § 5596(b\11)

5la

ATC-11 facility was an unjustified or unwarranted

personnel action under the collective bargaining

agreement.’ They also cite portions of the September

1998 Collective Bargaining Agreement between FAA

and the National Air Traffic Control Association. The

Back Pay section in Article 37 of the Agreement

recognizes “the power of an appropriate authority to

render a remedy in accordance with the provisions

of 5 U.S.C. § 5596.”

A November 1999 Memorandum of Understand-

ing between the FAA and NATCA sets out procedures

for upgrading the pay classification of a facility.’ If a

facility establishes that its traffic count warrants a

higher classification, “the upgrade shall take effect

the first full pay period after the third consecutive

month the facility is at or above the breakpoint... . If

the administrative process is unable to be completed

to meet this time frame, the upgrade shall be retro-

active to the first full pay period after the third

* “Unjustified or unwarranted personnel action” includes an

“act of commission or omission that an appropmate authority

subsequently determines, on the basis of substantive or proce-

dural defects, to have been unjustified or unwarranted under

applicable law ... or through a collective bargaining agree-

ment.” FAA Personne! Management System, Chapter II, Para-

graph Yc) (March 28, 1996).

' Defendant argues that the Memorandum of Understand-

ing does not have legal effect because it was not incorporated

into an agency directive. We did not find it necessary to address

this point

52a

consecutive month the facility is at or above the break

point.”

Plaintiffs emphasize that this language is au-

thority for granting them back pay for the difference

between an ATC-10 and the ATC-11 classification to

which they believe they are entitled. However, the

FAA has not classified Albuquerque Center as an

ATC-11 facility. Employees at a facility are entitled to

an upgrade IF the facility establishes that its traffic

count warrants a higher classification. The upgrade

takes effect only then, retroactive to the first full pay

period three months after it reached the break point.

The FAA reviewed Albuquerque Center and deter-

mined in July 2001 that it did not warrant

reclassification. Plaintiffs’ claim for back-pay depends

upon their showing either that Albuquerque Center

had been upgraded to an ATC-11 facility, or that the

Government had an obligation to assign Albuquerque

an ATC-11 classification.

Mr. Tisdall is the FAA’s Acting Division Manager.

He helped draft the Classification Standards, and he

established the break points as well. He was in

charge of the team that analyzed Albuquerque

Center’s air traffic volume in July 2001 at the request

of the Center. The team determined after a week of

reviewing traffic volume statistics that Albuquerque

53a

Center’s Classification Index was below the 1250

break point.”

Government employees may not receive pay for

positions to which they have not been appointed,

regardless of their duties. United States v. Testan, 424

U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).

Plaintiffs in Testan sought a higher level of pay based

on the duties that they performed. They sued to be

reclassified at a pay grade that was commensurate

with those duties. The Supreme Court stated that

“Congress has not made available to a party wrong-

fully classified the remedy of money damages through

retroactive classification.” Testan, 424 U.S. at 403, 96

S.Ct. 948.

Plaintiffs ask the court to upgrade Albuquerque

Center to ATC-11 for the same reason that plaintiffs

sued in Jestan — to qualify for higher pay. They seek

money damages for positions to which they should

have been appointed, but were not. We cannot

address such a claim. See, e.g., United States v. King,

395 U.S. 1, 3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)

(holding that jurisdiction of this court calls for

“presently due money damages..”).

* Both parties speculated at a recent hearing that Albuquer-

que Center’s numbers would reach 1250 by this summer. Mr.

Tisdall has been reviewing the Center’s data as a part of this

litigation, however, and he concluded as of April 24, 2003 that

Albuquerque would remain below the 1250 breakpoint.

54a

CONCLUSION

Plaintiffs allege breach of a contract with the

United States, which is a claim within this court’s

jurisdiction. The contract did not promise plaintiffs

that Albuquerque Center would be upgraded to ATC-

11, however. We do not have the authority to order

FAA to make such a decision without a promise to do

so. Moreover,

plaintiff may not base his theory of recovery

on contract law since he was a federal

employee. Federal officials who by act or

word generate expectations in the persons

they employ, and then disappoint them, do

not ipso facto create a contract liability

running from the Federal Government to the

employee, as they might if the employer were

not the government.

Shaw v. United States, 226 Ct.Cl. 240, 640 F.2d 1254,

1260 (1981).

The contracts to which plaintiffs claim third-

party beneficiary status establish a grievance process

to protest a “major adverse action.” Plaintiffs did not

follow this grievance procedure. For that reason, we

do not address whether FAA’s classification ruling

was grievable or whether it was a major adverse

action. The collective bargaining agreement provides

that its grievance procedure is “exclusive.” Plaintiffs

argue only breach of contract.

55a

Plaintiffs have not stated a claim for which this

court can grant relief. The Clerk will dismiss their

complaint. No costs.

56a

386 F.3d 1091

United States Court of Appeals,

Federal Circuit.

Jerry TODD, Benjamin E. Abeyta, Christopher

Blas Abeyta, Richard Acker, Larry Allred, David Lind

Ausherman, Richard Severn Boatman, Russell T.

Bowlin, Larry Allan Braaten, Linda Kaye Brown,

William Duane Bryan, Jennifer Lee Ceithaml,

Richard Chavez, Oliver Dallas, Larry David Duke,

Brent Lee Eberhart, William J. Foley, Peter B.

Fredrikson, William L. Gonzales, Modesto R.

Gutierrez, Ray Martin Helman, Maurice Howland,

Steven Gerard Kubala, Carol Ann Latham, Larry

Layden, Terry L. Locke, Kent T. Mackenzie, Roger

Anthony Mandeville, Joan M. Mallen, Dale E.

McCabe, Joe! D. McCoy, Donald E. McFarland,

Holly L. Mings, James P. Morgan, David Car] Mott,

Janet Louise Mould, Glen R. Nicolet, Phillip Charles

Oliver, Terry Perez, Gary Clyde Perrin, Brenda

Louise Perry, Gary Albert Postlewait, Andrew Paul

Rankin, James M. Reeves, Larry Roy Rolls, Donald

Alan Schlosser, Roger Craig Schlotterback, Jon Leslie

Semanek, Librado Silva, Mark Spauling,

Jeffrey L. Sproul, Richard Alan Sutton, Michael

S. Szucs, Gregory Tingley, Richard Alan Underwood,

Larry M. Utterback, Stephen Price Van Sickle,

Deborah T. Vibbert, Lois J. Warwick,

David Bruce Wingert, and Craig L. York,

Plaintiffs-Appellants,

UNITED STATES, Defendant-Appellee.

No. 03-5120.

DECIDED: Oct. 5, 2004.

57a

George M. Chuzi, Kalijarvi, Chuzi & Newman, P.C.,

of Wasnington, DC, argued for plaintiffs-appellants.

Thomas D. Dinackus, Attorney, Commercial Litiga-

tion Branch, Civil Division, United States Depart-

ment of Justice, of Washington, DC, argued for

defendant-appellee. With him on the brief were Peter

D. Keisler, Assistant Attorney General; David M.

Cohen, Director; and Brian M. Simkin, Assistant

Director. Of counsel on the brief was Peter J. Han-

nums, Senior Attorney, Federal Aviation Administra-

tion, of Washington, DC.

William W. Osborne, Jr., Osborne Law Offices, P.C., of

Washington, DC, for amici curiae.

Before MICHEL, Circuit Judge, ARCHER, Senior

Circuit Judge, and RADER, Circuit Judge.

RADER, Circuit Judge.

Jerry Todd, et al. (collectively, appellants) appeal

their claim against the United States for back pay,

which claim the United States Court of Federal

Claims dismissed for failure to state a claim upon

which relief can be granted. Todd v. United States, 56

Fed.Cl. 449, 453 (2003). Because the Court of Federal

Claims did not err in dismissing appellants’ claims,

this court affirms.

Appellants are supervisors and managers at the

Albuquerque Air Traffic Control Center (Albuquerque

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Center) of the Federal Aviation Administration (FAA).

Supervisors and managers receive compensation

based, in part, on the volume and complexity of air

traffic at the Albuquerque Center. The FAA evaluates

this volume and complexity factor for each traffic

control center and assigns each an ATC Classification

Level. The FAA designated the Albuquerque Center

as an ATC Classification Level 10 (ATC-10) facility in

1998. Appellants allege that an increase in air traffic

at the Albuquerque Center during 1999 qualified the

Albuquerque Center for designation as an ATC-11

facility.

The FAA entered into a September 1998 Collec-

tive Bargaining Agreement (CBA) and a November

1999 Memorandum of Understanding (MOU) with

the National Air Traffic Control Association (Union).

Appellants, as supervisors, are not members of the

Union, but claim to be third party beneficiaries of the

CBA and MOU. Appellants allege that the CBA and

MOU obligated the FAA to reclassify the Albuquerque

Center as an ATC-11 facility when the air traffic

increased in 1999. Appellants further allege that the

FAA breached the CBA and MOU by refusing to

reclassify the Albuquerque Center.

An upgrade of the Albuquerque Center to an

ATC-11 facility would give appellants a higher salary.

Appellants brought the present suit seeking back pay,

retroactive to June 1999, for the difference between

their salary and benefits working at an ATC-10 facil-

ity and the salary and benefits at an ATC-11 facility.

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The FAA, however, has not reclassified the Albuquer-

que Center as an ATC-11 facility.

II.

Appellants brought the present suit in the Court

of Federal Claims under the Tucker Act. The Tucker

Act grants the Court of Federal Claims jurisdiction

over actions “founded either upon the Constitution, or

any Act of Congress or any regulation of an executive

department, or upon any express or implied contract

with the United States, or for liquidated or un-

liquidated damages in cases not sounding in tort.” 28

U.S.C. § 1491 (2000). The jurisdiction of the Court of

Federal Claims under the Tucker Act is “limited to

actual, presently due money damages from the

United States.” United States v. Testan, 424 U.S. 392,

398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting

United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 23

L.Ed.2d 52 (1969)). Thus, jurisdiction under the

Tucker Act requires the litigant to identify a sub-

stantive right for money damages against the United

States separate from the Tucker Act itself. /d.

Appellants argue that the FAA’s alleged breach of

the CBA and MOU with the Union supplies those

substantive rights for money damages against the

United States. Appellants are not, however, parties to

either the CBA or the MOU. Consequently, appellants

do not have a contract with the United States and

cannot base a claim for money damages against the

United States on a contract to which they are not a

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party. See Chu v. United States, 773 F.2d 1226, 1229

(Fed.Cir.1985) (“{TJhere is a ‘well-established princi-

ple that, absent specific legislation, federal employees

derive the benefits and emoluments of their positions

from appointment rather than from any contractual

or quasi-contractual relationship with the govern-

ment.’”); accord Hamlet v. United States, 638 F.3d

1097, 1101 (Fed.Cir.1995).

Appellants initiated suit in the United States

Court of Federal Claims to enforce the CBA as third

party beneficiaries. The CBA, however, includes its

own enforcement provisions. Specifically, the CBA

requires grievance procedures for all disputes under

that contract. Appellants have not invoked those

grievance procedures. Thus, appellants, in essence,

seek to gain the benefit of the CBA, and at the same

time, to circumvent the exclusive grievance proce-

dures of the contract. Ironically, the exclusive griev-

ance procedures of the CBA preclude any party from

challenging the CBA in the Court of Federal Claims,

thereby providing an additional reason that the Court

of Federal Claims lacks jurisdiction. See, e.g., Chin v.

United States, 890 F.2d 1143, 1144-47 (Fed.Cir.1989);

Harris v. United States, 841 F.2d 1097, 1098-1100

(Fed.Cir.1988); Rinner v. United States, 50 Fed. Cl.

333, 335-36 (2001); Hayes v. United States, 20 Cl.Ct.

150, 151, 156 (1990) (interpreting Chin and Harris).

Even assuming that a third party beneficiary

could enforce the CBA and MOU in the Court of

Federal Claims, appellants cannot establish jurisdic-

tion under the Tucker Act for a claim for money

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damages against the United States. Appellants essen-

tially seek to use the CBA or the MOU as leverage to

obtain a reclassification of the Albuquerque Center to

an ATC-11 facility. Absent a prior reclassification,

however, appellants have no claim for back pay. In

other words, appellants cannot show any entitlement

to an increased salary until the Albuquerque Center

qualifies as an ATC-11 facility. Even if the Albuquer-

que Center would becomes an ATC-11 facility, appel-

lants would have no claim for back pay because they

would not be eligible for an increase in salary for any

period before the Center’s status adjustment. Thus,

appellants are not seeking presently due money

damages, but instead seek the equitable remedy of a

reclassification of the Albuquerque Center to an ATC-

11 facility and a salary increase based on that

reclassification.

In Testan, the United States Supreme Court

expressly addressed the jurisdiction of the Court of

Federal Claims to provide this type of equitable relief.

424 U.S. at 394, 96 S.Ct. 948. The similarly-situated

plaintiffs in Testan sought both a retroactive pro-

motion from a pay-grade of GS-13 to GS-14 and back

pay based upon that promotion.* /d. The Jestan court

* Mr. Todd attempts to distinguish Testan by arguing that

Mr. Todd seeks merely a reclassification of a facility and a pay

raise, not a new position. However, the plaintiffs in Testan like

wise merely sought a pay raise from GS-13 to GS-14 for the

position they held at the time. See United States v. Testan, 424

U.S. 392, 393, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976),

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held that “federal agencies continue to have discre-

tion in determining most matters relating to the

terms and conditions of federal employment,” and

Government employees may not receive pay for po-

sitions to which they have not been appointed. Jd. at

406, 96 S.Ct. 948. Without first obtaining a retro-

active promotion, the Court found, the plaintiffs in

Testan lacked an entitlement to money damages

against the United States; the case was dismissed for

lack of jurisdiction. Jd. at 407-08, 96 S.Ct. 948.

The holding in Testan governs this case. This

court does not read the holding in Testan as limited to

cases involving the Classification Act or the Back Pay

Act, as suggested by appellants. TJestan confirms the

long-standing rule that “one is not entitled to the

benefit of a position until he has been duly appointed

to it.” Id. at 402, 96 S.Ct. 948 (citing United States v.

McLean, 95 U.S. 750, 752, 24 L.Ed. 579 (1877); Ganse

v. United States, 180 Ct.Cl. 183, 376 F.2d 900, 902

(Cl.Ct.1967)). This court also declines appellants’ in-

vitation to draw a distinction between the classifica-

tion of a position and the classification of a facility.

Appellants seek a retroactive promotion or pay raise

based on the reclassification of the Albuquerque

Center to an ATC-11 facility. Without first obtaining

the reclassification and retroactive promotion, how-

ever, appellants have no claim for money damages

against the United States. Absent a claim for

presently due money damages against the United

States, the Court of Federal Claims does not have

jurisdiction under the Tucker Act to entertain

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appellants’ claims. Accordingly, this court affirms the

Court of Federal Claims’ dismissal of appellants’

claims.

COSTS

Each party shall bear its own costs.

AFFIRMED.

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