Appeal from the United States District Court for the District of Columbia (03cv00043)
Before: Ginsburg, Chief Judge; Randolph and Roberts,
The opinion of the court was delivered by: Randolph, Circuit Judge
A union wishing to become the bargaining representative of newly-federalized airport screeners initiated two proceedings, one administrative, the other judicial. The administrative action sought to have the Federal Labor Relations Authority order representation elections. The other action sought a judgment from the district court that the screeners had the right to engage in collective bargaining. The FLRA rejected the union's petition. The district court dismissed the complaint. The question in this appeal is whether the district court had jurisdiction.
In response to the events of September 11, 2001, Congress enacted the Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597 (2001), creating a federal work force to screen passengers and cargo at commercial airports. Section 111(d) of the Security Act, 115 Stat. 620, codified at 49 U.S.C. § 44935 note, provides that "[n]otwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for [federally employed security screeners]."
Thereafter, the American Federation of Government Employees filed several petitions with the Federal Labor Relations Authority, seeking elections among security screeners at a number of airports and certification as the screeners' exclusive representative for collective bargaining. On January 8, 2003, Under Secretary James M. Loy issued a directive stating that, "[b]y virtue of the authority vested in the Under Secretary of Transportation for Security in Section 111(d)," federally employed security screeners "shall not, as a term or condition of their employment, be entitled to engage in collective bargaining or be represented for the purpose of engaging in such bargaining by any representative or organization."
The next day, the Transportation Security Administration filed its response to the union's petitions. The Administration's main contention was that the FLRA could not order representation elections in view of § 111(d) and Loy's directive.
One day later the union filed a complaint in the district court seeking an injunction and a declaratory judgment on the ground that Loy "did not have the statutory authority to issue the directive" and that the directive was "arbitrary and capricious agency action in violation of the Administrative Procedure Act, 5 U.S.C. § 706." The union also challenged the directive on constitutional grounds, asserting that it "deprives affected federal employees of their right to free speech and association under the First Amendment and to equal protection under the Fifth Amendment" to the Constitution.
While the case was pending before the district court, the FLRA's Regional Director ruled that § 111(d) of the Security Act and the Loy directive relieved the Transportation Security Administration of any "duty to bargain over conditions of employment of security screeners."
The district court later dismissed the union's statutory claims, holding that the "FLRA has exclusive authority over conducting elections to determine whether a labor union has the support of a majority of employees in an appropriate unit" and that the "petitions for elections and the TSA objection that the Loy Determination deprives FLRA of jurisdiction to conduct any election are ... properly before that agency," not the court. 281 F. Supp. 2d 59, 62 (D.D.C. 2003). As to the constitutional claims, the court took note of the union's failure to raise these before the FLRA. Id. at 64. Finding the claims insubstantial, the court dismissed this portion of the complaint for failure to state a cause of action. Id. at 66.
In the meantime the FLRA affirmed the Regional Director's decision dismissing the union's petitions. United States Dep't of Homeland Security, et al. and AFGE, AFL-CIO, 59 F.L.R.A. No. 63, 2003 WL 22669101 (Nov. 4, 2003). The FLRA agreed that § 111(d) granted "unfettered discretion to the [Under Secretary] to determine the terms and conditions of employment for [federal] screener personnel," and that the Loy directive validly barred the screeners from engaging in collective bargaining. Id. at *13. Therefore, the union's "petitions could not be processed" because the FLRA had no authority to conduct elections. Id. at *7. The FLRA refused to consider the union's constitutional arguments because these were not properly raised before the Regional Director. Id. at *13. The union did not seek judicial review of the FLRA's decision.
Title VII of the Civil Service Reform Act, 5 U.S.C. §§ 7101-7134, governs labor relations between federal agencies and their employees. One of the FLRA's exclusive functions is to conduct "elections to determine whether a labor organization has been selected as an exclusive representative by a majority of the [federal] employees in an appropriate unit," 5 U.S.C. § 7105(a)(2)(B). A union may file a petition with the FLRA alleging that 30 percent or more of the employees in an appropriate unit want the union to represent them in collective bargaining. 5 U.S.C. § 7111(b)(1)(A). The FLRA "shall investigate" such a petition and, if it finds that "a question of representation exists," it shall conduct or supervise an election after determining who is eligible to vote. 5 U.S.C. § 7111(b)(1)(A) & (d). Any person aggrieved by a "final order" of the FLRA, other than an order under § 7112 (unit determination) or § 7122 (arbitration award), may seek review in the court of appeals. 5 U.S.C. § 7123(a).
If an FLRA order falls within one of § 7123(a)'s two exceptions to review in the court of appeals, this does not mean the district courts are open. It means that review is precluded in any court. Ass'n of Civilian Technicians v. FLRA, 283 F.3d 339 (D.C. Cir. 2002). On the other hand, if an FLRA order is not within either exception and is "final," it may be reviewed only by a court of appeals. The district courts do not have concurrent jurisdiction over matters within the exclusive purview of the FLRA. Karahlios v. Nat'l Fed'n of Fed. Employees, 489 U.S. 527, 533 (1989); see United States v. Fausto, 484 U.S. 437, 445 (1988).
The union thinks it was entitled to sue in district court because this court could not review the FLRA's refusal to order representational elections. The FLRA rendered its decision under § 7111. Citing U.S. Dep't of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984), the union states that FLRA rulings under § 7111 are unreviewable. That reads too much into the opinion. The question before the Fifth Circuit was whether an FLRA order requiring a rerun election pursuant to § 7111 was a "final order" under § ...