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United States v. Office of Compliance

United States Court of Appeals, Federal Circuit

January 25, 2019

UNITED STATES CAPITOL POLICE, Petitioner
v.
OFFICE OF COMPLIANCE, Cross-Applicant FRATERNAL ORDER OF POLICE, DISTRICT OF COLUMBIA LODGE NO. 1, U.S. CAPITOL POLICE LABOR COMMITTEE, Intervenor

          PETITIONS FOR REVIEW OF A DECISION OF THE BOARD OF DIRECTORS OF THE OFFICE OF COMPLIANCE IN NO. 15-LMR-02 (CA).

          KELLY MARISSA SCINDIAN, OFFICE OF EMPLOYMENT COUNSEL, UNITED STATES CAPITOL POLICE, WASHINGTON, DC, ARGUED FOR PETITIONER. ALSO REPRESENTED BY FREDERICK M. HERRERA.

          JOHN D. UELMEN, OFFICE OF THE GENERAL COUNSEL, UNITED STATES OFFICE OF COMPLIANCE, WASHINGTON, DC, ARGUED FOR CROSS-APPLICANT. ALSO REPRESENTED BY JULIA AKINS CLARK; SIMONE N. JENKINS, CONGRESSIONAL OFFICE OF COMPLIANCE, WASHINGTON, DC.

          DAVID WILLIAM RICKSECKER, WOODLEY & MCGILLIVARY LLP, WASHINGTON, DC, ARGUED FOR INTERVENOR.

          BEFORE NEWMAN, LOURIE, AND CLEVENGER, CIRCUIT JUDGES.

          CLEVENGER, CIRCUIT JUDGE.

         On September 25, 2017, the Board of Directors of the Congressional Accountability Office of Compliance ("Board") issued a decision stating that the United States Capitol Police ("Police") committed an unfair labor practice when it refused to comply with a decision of an arbitrator made pursuant to a collective bargaining agreement to which the Police is a party. U.S. Capitol Police and Fraternal Order of Police, D.C. Lodge No. 1 U.S. Capitol Police Labor Comm., No. 15-LMR-02, 2017 WL 4335143 (C.A.O.C. Sept. 25, 2017).

         Background

         The Congressional Accountability Act of 1995 ("Act"), among other things, affords congressional employees the right to join together in bargaining units, bargain with their employer over conditions of employment, enter collective bargaining agreements, and resolve disputes through grievance and arbitration procedures specified in those collective bargaining agreements. 2 U.S.C. §§ 1301- 1438.[1] The Act achieves those goals by incorporation of many provisions found in chapter 71 of Title 5 of the U.S. Code relating to federal service labor-management relations. See, e.g., id. § 1351 (incorporating provisions in chapter 71 of Title 5). The Act created the Office of Compliance ("OOC"), which is overseen by its Board. Id. § 1381. For labor-management relations arising under the Act, the Board exercises the authorities of the Federal Labor Relations Authority under specified sections of chapter 71. Id. § 1351(c)(1). The Board is authorized to issue regulations to carry out the Act, and to submit a matter presented to it to a hearing officer, subject to review by the Board. Id. §§ 1351(c)(1), 1351(d)-(e), 1384.

         The Fraternal Order of Police, District of Columbia Lodge No. 1, U.S. Capitol Police Labor Committee ("Union") entered into a Collective Bargaining Agreement ("CBA") with the Police, effective June 8, 2010. The CBA provides that employee termination (defined as "removal") is a disciplinary action subject to the grievance and arbitration provisions of the CBA. J.A. 691, 697-98, 701-02. Section 32.14 of the CBA provides that when the grievance and arbitration processes are invoked, "[t]he decision of the arbitrator is final and binding." J.A. 702. The refusal by an agency to comply with a final arbitration award constitutes an unfair labor practice under the Act. 2 U.S.C. § 1351(a)(1) (incorporating 5 U.S.C. § 7116(a)(1), (8) into the Act).

         The Police is headed by the Chief of Police, who is appointed by and serves at the pleasure of the Capitol Police Board, which was created in 1867, and is composed of the Architect of the Capitol as well as the Sergeants at Arms of the U.S. House of Representatives and the U.S. Senate. Id. §§ 1901, 1961(a), 1969(a). The Capitol Police Board oversees the Police and supports its mission. H.R.J. Res. 2, 108th Cong. § 1014 (2003). The Chief of Police, an ex officio member of the Capitol Police Board, "is authorized to appoint, hire, suspend with or without pay, discipline, discharge, and set the terms, conditions, and privileges of employment of employees of the Capitol Police, subject to and in accordance with applicable laws and regulations." 2 U.S.C. § 1907(e)(1)(A). The United States Capitol Police Administrative Technical Corrections Act of 2009 ("TCA"), Pub. L. No. 111-145, 124 Stat. 49 (2010), amended a previous law providing for approval of Chief of Police termination decisions by the Committee on House Administration of the House of Representatives and the Committee on Rules and Administration of the Senate to instead place that approval authority in the Capitol Police Board. Compare 2 U.S.C. § 1907(e)(1)(B)(i) (2006), with id. § 1907(e)(1)(B) (2012). With regard to the role of the Capitol Police Board in an employee termination, the TCA reads:

The Chief may terminate an officer, member, or employee only after the Chief has provided notice of the termination to the Capitol Police Board (in such manner as the Board may from time to time require) and the Board has approved the termination, except that if the Board has not disapproved the termination prior to the expiration of the 30-day period which begins on the date the Board receives the notice, the Board shall be deemed to have approved the termination.

2 U.S.C. § 1907(e)(1)(B) (2012).

         Under the Act, the duty to bargain in good faith over conditions of employment extends to such conditions "to the extent not inconsistent with any Federal law or any Government-wide rule or regulation . . . ." 5 U.S.C. §§ 7102, 7117(a)(1); see also 2 U.S.C. § 1351(a)(1) (incorporating those provisions of chapter 71 of Title 5 into the Act). In addition, matters "specifically provided for by Federal statute" are not "conditions of employment" subject to collective bargaining, and therefore fall outside the duty to bargain. 5 U.S.C. § 7103(a)(14)(C), effective under the Act pursuant to Office of Compliance Fina Regulations § 2421.3(m)(3) ("OOC Regs."); see also 142 Cong. Rec. H10237, at H10370-71 (daily ed. Sept. 12, 1996) (noticing the OOC's issuance of final regulations).

         In this case, the Police on June 28, 2013, terminated one of its officers for misconduct, and the termination was specifically approved by the Capitol Police Board. The terminated officer invoked his rights under the CBA, seeking to arbitrate the question of whether his termination was proper. The arbitrator on May 13, 2014, held that for the misconduct shown, termination was excessive, and instead a 30-day suspension was proper. The arbitrator directed the Police to reinstate the officer, without setting a deadline for reinstatement, and awarded the officer back pay and benefits. The Police filed exceptions to the arbitration award with the Board, which in due course the Board denied on December 12, 2014. After back and forth communications among the Union, the Police, and the arbitrator over whether the Police would comply with the arbitrator's decision, the arbitrator on February 18, 2015, gave the Police a 30-day deadline for compliance. Just a few days before the deadline, the Police told the Union for the first time that it absolutely refused to comply with the direction of the arbitrator to reinstate the officer and provide the Union with information it previously requested.

         The Union filed charges with the OOC alleging that the refusal by the Police to comply with the arbitrator's decision constituted an unfair labor practice, and the General Counsel of the OOC filed an unfair labor practice complaint with the Board. The hearing officer assigned to the complaint sustained the charge, and on review the Board agreed with the hearing officer.

         Before the Board, the Police argued on the merits that the arbitrator lacked jurisdiction over the subject of employee termination. Without jurisdiction, the arbitrator's award would be of no effect, and consequently refusal to comply with the arbitrator's decision could not constitute an unfair labor practice. In addition, the Police argued that the Union's unfair labor practice charge was untimely filed, and consequently the hearing officer's decision has no effect. The Police's jurisdictional arguments, repeated now on appeal, contended that the subject of employee termination is barred from inclusion in a CBA because inclusion would be inconsistent with law. In addition, the Police argued that the subject of employee termination is specifically provided for by federal statute, and thus excluded from the scope of a CBA.

         The Board held that the unfair labor practice charge was timely filed, and rejected the Police's jurisdictional arguments. On September 25, 2017, the Board issued its decision and order. The order specifies that the Police cease and desist from failing to fully implement the arbitrator's May 13, 2014, award, as supplemented by the arbitrator's June 17, 2014, order.

         The Police petitions this court for review of the Board's decision, and the OOC for its part cross-applies to this court for an order enforcing the Board's decision and order. We have jurisdiction over the Police's petition under 2 U.S.C. § 1407(a)(1)(D) and jurisdiction over the OOC's application under 2 U.S.C. § 1407(a)(2). We apply the Administrative Procedure Act ("APA") standard of review, 5 U.S.C. § 706, to enforcement actions brought under § 1407(a)(2). U.S. Capitol Police v. Office of Compliance ("Capitol Police I"), 908 F.3d 748, 758 (Fed. Cir. 2018). As for the Police's petition, we apply the standard of review set out in 2 U.S.C. § 1407(d), which we have said "is essentially identical to the APA standard." Id. at 755 n.4.

         For the reasons set forth below, we deny the Police's petition and grant the OOC's application.

         The Issues

         This case does not present any challenge to the merits of the arbitrator's decision to reinstate the officer in question, nor is there any question that the CBA, to which the Police is bound, required an arbitrator vested with jurisdiction to make a final decision in the case. The only question before us is whether the Police committed an unfair labor practice. The Police does not contest that refusal to comply with an arbitrator's award under a CBA is an unfair labor practice. The Police argues here, as below, that the arbitrator had no jurisdiction over the case in the first place, leaving the arbitral award a nullity on its face, and thus refusal to comply with the award cannot constitute an unfair labor practice.

         The Police's jurisdictional argument is presented in two forms. The first is that the subject of employee termination is excluded entirely from CBAs covering legislative branch employees. That argument is premised on the fact that the Act does not provide for judicial review of employee termination decisions, and borrows its strength from cases decided under the Civil Service Reform Act of 1978 ("CSRA"), Pub. L. No. 95-454, § 205, 92 Stat. 1111, 1143. Under that statutory regime, which covers executive branch employees, certain employees lack judicial review of adverse actions taken against them by executive branch agencies. In a number of post-CSRA cases, executive branch employees lacking statutory appeal rights under the CSRA sought to obtain judicial review of adverse actions taken against them in other fora. In United States v. Fausto, 484 U.S. 439 (1988), and subsequent related cases, it was held that where Congress denied direct judicial review in the CSRA, it would violate the CSRA to permit an alternative avenue of judicial review. Because the Act provides no direct judicial review for employee termination, and because the CBA grants review of employee termination, the Police argues the situation under the CBA is like that in the post-CSRA cases, where a party denied judicial review by the CSRA was denied judicial review elsewhere. The Police thus contends that it is inconsistent with that CSRA body of law to allow employee termination ...


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