Opinion
Civil Action No. 1:20-cv-00837 (CJN)
2021-02-10
NATIONAL VETERANS AFFAIRS COUNCIL, Plaintiff, v. FEDERAL SERVICE IMPASSES PANEL, et al., Defendants.
Matthew M. Collette, Kathryn A. Robinette, Massey & Gail LLP, Washington, DC, for Plaintiff. Noah Barnett Peters, Rebecca Jean Osborne, Federal Labor Relations Authority, Sarah Catherine Blackadar, Office of the Solicitor, Washington, DC, for Defendants.
Matthew M. Collette, Kathryn A. Robinette, Massey & Gail LLP, Washington, DC, for Plaintiff.
Noah Barnett Peters, Rebecca Jean Osborne, Federal Labor Relations Authority, Sarah Catherine Blackadar, Office of the Solicitor, Washington, DC, for Defendants.
MEMORANDUM OPINION
CARL J. NICHOLS, United States District Judge
Plaintiff National Veterans Affairs Council, a union representing employees of the U.S. Department of Veterans Affairs, brings statutory and constitutional claims against a labor-dispute-resolution body called the Federal Service Impasses Panel. See Compl. ¶¶ 39–54, ECF No. 3. Defendants argue that this Court lacks subject-matter jurisdiction over those claims because the statutory scheme channels them through ongoing administrative proceedings first. The Court agrees and therefore grants Defendants’ Motion to Dismiss. Defs.’ Mot. to Dismiss, ECF No. 16 ("Mot. to Dismiss").
I. BACKGROUND
A. Statutory Framework
The Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101 – 35 ("Statute"), was enacted under Title VII of the Civil Service Reform Act of 1978 to "govern[ ] labor relations between federal agencies and their employees," Bureau of Alcohol, Tobacco & Firearms v. Fed. Labor Relations Auth. , 464 U.S. 89, 91, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983). As "part of a comprehensive revision of the laws governing the rights and obligations of civil servants," id. , the Statute "created ‘an integrated scheme of administrative and judicial review.’ " Grosdidier v. Chairman, Broad. Bd. of Governors , 560 F.3d 495, 496–97 (D.C. Cir. 2009) (citation omitted). In supplanting the previous "haphazard arrangements for administrative and judicial review of personnel action," Congress strove to "balance the legitimate interests of the various categories of federal employees" to "organize, bargain collectively, and participate through labor organizations" with the needs of "sound and efficient administration." Grosdidier , 560 F.3d at 496–97 (citation omitted); see also 5 U.S.C. § 7101.
The Statute created several entities, including the Federal Labor Relations Authority ("Authority") and its General Counsel. 5 U.S.C. § 7104. The Authority is composed of three members who are to "provide leadership in establishing policies and guidance relating to matters" under the Statute and, among other things, "resolve[ ] issues relating to the duty to bargain in good faith" and "conduct hearings and resolve complaints of unfair labor practices." 5 U.S.C. §§ 7104(a), 7105(a). The General Counsel, in turn, is authorized to "investigate alleged unfair labor practices," "file and prosecute complaints," and exercise any other powers directed by the Authority. 5 U.S.C. § 7104(f). The three members and the General Counsel are appointed by the President, with the advice and consent of the Senate, for a term of five years. 5 U.S.C. § 7104(b), (f)(1). Members can be removed by the President "only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office," while the General Counsel may be removed by the President at any time. See 5 U.S.C. § 7104(b), (f)(1).
The Statute also codified the Federal Service Impasses Panel ("Panel"), which had been first established by President Nixon in Executive Order 11491. Exec. Order No. 11491, 34 Fed. Reg. 17605 (1969). The Panel is "an entity within the Authority" that is to be "composed of a Chairman and at least six other members, who shall be appointed by the President, solely on the basis of fitness to perform the duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor-management relations." 5 U.S.C. § 7119(c)(1), (2). Panel members serve five-year terms and "[a]ny member of the Panel may be removed by the President." Id. § 7119(c)(3).
The Panel is charged with "provid[ing] assistance in resolving negotiation impasses between [a federal] agenc[y] and exclusive representatives" of agency employees. Id. § 7119 (c)(1). It is authorized to consider impasses presented by either party (whether union or agency) and may recommend procedures to resolve impasses or aid the parties by conducting factfinding and offering recommendations. Id. § 7119(c)(5)(A). If the parties are still unable to arrive at a settlement, the Panel can "take whatever action is necessary and not inconsistent with this chapter to resolve the impasse." Id. § 7119(c)(5)(B). The Panel's final actions are binding on the parties unless they agree otherwise. Id. § 7119(c)(5)(C). And failure to cooperate with the Panel or comply with its decisions may constitute an unfair labor practice. Id. § 7116(a)(6), (8), (b)(6), (8).
A Panel decision is not subject to direct review by another entity, including the Authority or a court. Council of Prison Locals v. Howlett , 562 F. Supp. 849, 851 (D.D.C. 1983) (quotation omitted), aff'd sub nom. Council of Prison Locals v. Brewer , 735 F.2d 1497 (D.C. Cir. 1984). But a Panel decision can be reviewed by the Authority (and thereafter by a court of appeals) in one of two ways. First, if a union or agency commits an unfair labor practice, the General Counsel may investigate and issue a complaint. 5 U.S.C. §§ 7104(f)(2), 7118(a). If the General Counsel does so, the Authority is "empowered to exercise its decision-making functions: conduct hearings, decide the merits of a complaint, and issue any appropriate remedial order." Turgeon v. Fed. Labor Relations Auth. , 677 F.2d 937, 938–39 (D.C. Cir. 1982) (citing 5 U.S.C. §§ 7105(a)(2)(G), 7118(a)(6)–(8) ). Authority decisions in those circumstances are reviewable by the appropriate court of appeals. See 5 U.S.C. § 7123(a). Second, a complaining party may submit an unfair-labor-practice claim to an arbitrator whose decision is subject to review by the Authority, 5 U.S.C.§ 7122(a) ; the Authority's order is then reviewable by the appropriate court of appeals. See 5 U.S.C. § 7123(a).
B. Facts & Procedural History
Plaintiff the National Veterans Affair Council, American Federation of Government Employees Council No. 53 (the "Union") is "composed of local unions that collectively represent approximately 350,000 bargaining unit employees employed by the U.S. Department of Veterans Affairs (VA)." Compl. ¶ 6, ECF No. 3. The Union and the VA were parties to a collective bargaining agreement with an initial term that expired in 2014 but are currently in an indefinite extension until they reach a new agreement. See id. at ¶ 34. In April 2019, the Parties identified the "ground rules" that would govern their negotiations. Id. ¶ 35. Approximately seven months later, after "multiple declarations that the parties had reached an impasse, ... the VA requested that the Impasses Panel intervene." Id. In March 2020, the Panel asserted jurisdiction over the Union's objection and ordered the Parties to submit statements of their positions and their rebuttal statements by July 5, after which the Panel would take whatever action it deemed necessary to resolve the dispute. Pl.’s Mot. for Summ. J. at 12.
On March 27, 2020, after the Panel asserted jurisdiction over the claimed impasse, the Union commenced this action against the Panel, its Chairman, and the Authority, alleging that the Panel is improperly constituted, in violation of the Appointments Clause (Count I), the Due Process Clause (Count II), and the Federal Service Labor-Management Relations Statute (Count III). See Compl. ¶¶ 39–54, ECF No. 3. In May, the Union moved for a preliminary injunction, which was later converted into a Motion for Summary Judgment. ECF No. 12. The VA intervened as Defendant and filed a cross-motion for summary judgment. ECF No. 17. Both Defendants also moved to dismiss for lack of subject-matter jurisdiction. ECF No. 16. In June, the Court held a telephonic hearing and ordered supplemental briefing on the question of Plaintiff's standing. See Minute Order dated June 25, 2020. On November 5, 2020, the Panel issued its decision in the underlying impasse, Status Report, ECF No. 35; the Court then ordered supplemental briefing on how that action affects this suit. See Minute Order dated January 5, 2021.
II. STANDARD OF REVIEW
Although the Parties have filed summary-judgment motions, the Court will turn first to Defendants’ Motion to Dismiss, ECF No. 16. Courts, of course, "have an independent obligation to determine whether subject-matter jurisdiction exists," and if "a federal court concludes that it lacks subject-matter jurisdiction, the complaint must be dismissed in its entirety." Arbaugh v. Y&H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). "To survive a motion to dismiss, a complaint must contain sufficient factual matter accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim crosses from conceivable to plausible when it contains factual allegations that, if proved, would ‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration omitted) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). When considering dismissal, this Court must "draw all reasonable inferences from those allegations in the plaintiff's favor." Id.
III. ANALYSIS
It is well settled that Panel orders "are not directly reviewable in court," Antilles Consol. Educ. Ass'n v. FLRA , 977 F.3d 10, 14 (D.C. Cir. 2020), and that the Statute "forecloses the assumption of general federal question or mandamus jurisdiction." Council of Prison Locals. v. Brewer , 735 F.2d 1497, 1499 (D.C. Cir. 1984). Instead, to obtain judicial review of a Panel order, a union or agency must typically wait for a decision and order, violate that order, "and then seek[ ] review of any ensuing [Authority] order finding an unfair labor practice." Antilles Consol. Educ. Ass'n , 977 F.3d at 14 (citing 5 U.S.C. § 7123(a) & Brewer , 735 F.2d at 1500 ).
That is not the procedural posture of this case. Instead, the Union has raised its statutory and constitutional objections to the Panel's structure by filing a direct action. The Union advances three theories to justify judicial review at this time: first, that it is not challenging a Panel order or decision; second, that the statutory scheme does not provide for meaningful judicial review of the types of claims it raises here; and, third, that its claims trigger a rare exception recognized in Leedom v. Kyne , which grants federal courts jurisdiction to review and invalidate orders issued "in excess of [an agency's] delegated powers and contrary to a specific prohibition of the Act." 358 U.S. 184, 188, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958).
A. Challenge to Panel Order
To decide whether a suit challenges a Panel order, courts focus on the relief sought in the complaint, and in particular whether it "identifies" or would "reverse" a "specific decision of the [Panel]." Nat'l Air Traffic Controllers Ass'n AFL-CIO v. Fed. Serv. Impasses Panel , 606 F.3d 780, 787 (D.C. Cir. 2010) (" NATCA II "). If so, then "[t]here can be no doubt" that a district court "lacks jurisdiction to review the decision[ ]." Id. But if not—if the complaint challenges a general policy instead of a specific Panel decision—then it is possible that the challenge can be brought directly. Id. Two D.C. Circuit opinions are relevant to discerning the line between an unreviewable Panel decision and a reviewable general policy.
NATCA I involved a challenge to a specific Panel decision. See Nat'l Air Traffic Controllers Ass'n AFL-CIO v. Fed. Serv. Impasses Panel , 437 F.3d 1256, 1261–62 (D.C. Cir. 2006) (" NATCA I "). Two unions asked the Panel to assert jurisdiction over a negotiation impasse with the Federal Aviation Administration (FAA). Id. at 1258. The Panel declined, finding that the FAA had "raised arguable questions" about whether recent statutory provisions barred the Panel from resolving the impasse. Id. at 1261–62. The unions sued in district court. Id. Their complaint sought "a declaration that the Panel's decisions violated its mandatory statutory duties," Id. at 1262, and an order reversing the Panel's previous decisions by compelling it to assert jurisdiction over the impasse. NATCA II , 606 F.3d at 787 (discussing NATCA I ); see also Pls.’ Compl. 8–9, 1:04-cv-00138, ECF No. 1 ( NATCA I complaint).
The district court held that it lacked subject-matter jurisdiction and the Court of Appeals affirmed, reasoning that "Congress precluded direct judicial review of Panel orders" in all but "extraordinary circumstances." NATCA I , 437 F.3d at 1262–63 (citing Brewer , 735 F.2d at 1498 ). The Panel's decisions not to assert jurisdiction were themselves unreviewable orders, and no "extraordinary circumstances" justified judicial intervention, as the unions could "vindicate their statutory rights ... before the [Authority]" by bringing an unfair-labor-practice charge against the FAA and appealing any adverse decision by the Authority to an appropriate court of appeals. NATCA I , 437 F.3d at 1265 ; see also NATCA II, 606 F.3d at 785. The statutory scheme offered a path to eventual (though not direct) judicial review, and therefore the unions had to challenge the Panel's decisions before the Authority, prior to seeking review in federal court. Id. at 1262–66.
NATCA II , in contrast, involved a challenge to what the Court of Appeals described as an "ongoing policy," not a specific Panel decision. See NATCA II , 606 F.3d at 786 n.*. In NATCA II , one of the two plaintiff unions from NATCA I filed a new complaint against the Panel in district court. Id. at 785–86. But the Panel orders and "specific impasse that prompted the [u]nion to seek assistance from the [Panel]" had already been resolved "through mediation," and therefore the union's complaint did not seek relief from any particular Panel decision. Id. at 786. Instead, the complaint sought a declaration that the Panel has "mandatory jurisdiction to resolve impasses between the FAA and labor organizations." Compare NATCA II , 606 F.3d at 786, with Pl.’s Compl. 11, 1:08-cv-00481, ECF No. 1 ( NATCA II complaint). The district court dismissed the case on the theory that, under NATCA I , the Authority "is the appropriate forum to determine whether the Panel has jurisdiction." NATCA II , 606 F.3d at 786 (quoting NATCA v. FSIP, 582 F. Supp. 2d 18, 19 (2008) ).
The Court of Appeals reversed, holding that "[b]ecause the [u]nion does not seek review of a decision of [the Panel] ..., the district court erred in dismissing the case ...." Id. at 787. NATCA I , the Court held, "has no bearing upon the jurisdiction of the district court" when a union "does not seek review of [a Panel] decision." Id. at 788. And in NATCA II , the "Union's complaint ... identifie[d] no specific decision of the [Panel]," but instead challenged the Panel's general policy of refusing to exercise jurisdiction over impasses between the FAA and labor unions. Id. at 787. As the district court could resolve the statutory dispute behind that policy without "revers[ing]" or reviewing any Panel decisions, the Court of Appeals held that a federal court could hear the jurisdictional challenge directly. Id. at 787–88.
The Union argues that it, like the plaintiff in NATCA II , is not challenging "a decision of the Panel." Pl.’s Opp. Mot. 4, ECF No. 19. But the Union filed its complaint just nine days after "the Panel asserted jurisdiction over the purported impasse," Compl. ¶ 37, ECF No. 3; alleges that the Panel lacked authority to assert jurisdiction over that impasse, id. at ¶ 45; and asks this Court to "[d]eclare that the rulings of the improperly constituted Panel are null and void" and "[e]njoin the Panel from issuing any decisions regarding [the Union]." Id. at 18 ¶¶ 4–5. If granted, that relief would reverse and void two specific Panel orders: the order asserting jurisdiction over the Parties’ impasse and the Panel's substantive decision resolving the impasse. Compare id., with Decision & Order 1, 104, ECF No. 35-1. Because the Union challenges specific Panel decisions, "[t]here can be no doubt" that this Court "lacks jurisdiction to review" its claims in the first instance. NATCA II, 606 F.3d at 787.
The primary reason the Union has Article III standing is that those Panel decisions presently affect it. See State Nat. Bank of Big Spring v. Lew , 795 F.3d 48, 53 (D.C. Cir. 2015) (holding that a bank has standing to bring an Appointments Clause challenge against the Consumer Financial Protection Bureau because it "is regulated by the Bureau"). Absent those decisions, it seems unlikely that the Union could have traced any injury-in-fact back to the Panel. See id.
B. Exclusivity of the Statutory Scheme
But even if NATCA I and NATCA II were less conclusive, that the Union can raise its claims through an "alternative statutory scheme" is reason to think that Congress precluded direct review in favor of that alternative. Am. Fed'n of Gov't Emps., AFL-CIO v. Trump , 929 F.3d 748, 754 (D.C. Cir. 2019) (" AFGE "); see also City of Rochester v. Bond , 603 F.2d 927, 931 (D.C. Cir. 1979) (If "there exists a special statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies.").
To decide whether a statutory review procedure is exclusive, courts "use the two-step framework set forth in Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994)" (" Thunder Basin "). Id. Under Thunder Basin , "Congress intended that a litigant proceed exclusively through a statutory scheme ... when (i) such intent is ‘fairly discernible in the statutory scheme,’ and (ii) the litigant's claims are ‘of the type Congress intended to be reviewed within [the] statutory structure.’ " Jarkesy v. S.E.C. , 803 F.3d 9, 15 (D.C. Cir. 2015) (quoting Thunder Basin , 510 U.S. at 207, 212, 114 S.Ct. 771 ).
The Parties do not dispute the first step. Compare Defs.’ Mot. to Dismiss 21, ECF No. 16, with Pl.’s Opp'n Mot. 7–16, ECF No. 19 (disputing the three factors under the second step). Nor could they. The Court of Appeals has already held that when "Congress creates procedures designed to permit agency expertise to be brought to bear on particular problems, those procedures are to be exclusive." Jarkesy , 803 F.3d at 16 (quoting Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd. , 561 U.S. 477, 489, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (" Free Enterprise ")). And here, the Statute's "enormously complicated and subtle scheme to govern employee relations in the federal sector," Steadman v. Governor U.S. Soldiers’ & Airmen's Home , 918 F.2d 963, 967 (D.C. Cir. 1990), shows that the "scheme provides the exclusive procedures by which federal employees and their bargaining representatives may assert federal labor-management relations claims," AFGE , 929 F.3d at 755 (internal quotation marks and citation omitted), and allows the Authority to bring institutional expertise to bear on the "claims within [the Statute's] scope." Id.
Instead, the Parties’ dispute centers on the second Thunder Basin step: whether Congress intended the type of claims raised here to be reviewed within the statutory scheme. Compare Defs.’ Mot. to Dismiss 21–34, ECF No. 16, with Pl.’s Opp'n Mot. 7–16, ECF No. 19. When analyzing the second step, courts "are to presume that Congress wanted the district court to remain open to a litigant's claims (1) if a finding of preclusion could foreclose all meaningful judicial review; (2) if the suit is wholly collateral to a statute's review provisions; and (3) if the claims are outside the agency's expertise." Jarkesy , 803 F.3d at 17 (summarizing Free Enterprise , 561 U.S. at 489–90, 130 S.Ct. 3138 & Thunder Basin , 510 U.S. at 212–13, 114 S.Ct. 771 ) (internal quotation marks omitted). These three factors are not rigid and "distinct inputs into a strict mathematical formula," but are instead to be viewed as "general guideposts for channeling the inquiry into whether the particular claims at issue fall outside an overarching congressional design." Id. at 17. In fact, the "wholly collateral" and "meaningful judicial review prongs" can be "analyzed together." Id. at 17, 23.
1. Meaningful judicial review
It is undisputed that the Statute's unfair-labor-practice procedure offers a path for judicial review of the Union's claims. Indeed, the Union acknowledges that if the Authority were to resolve an unfair-labor-practice charge against it, the Court of Appeals could meaningfully review its statutory and constitutional claims on appeal. See Tr. of Mot. Hearing 8–9, ECF No. 24. At issue is whether the Union can avail itself of that path and whether it is appropriate to require it to do so. Pls.’ Opp'n Mot. 7–8, ECF No. 19.
The Union argues that the unfair-labor-practice procedure is "indirect," "entirely out of [its] hands," and triggers Free Enterprise by forcing it to "bet the farm" for the privilege of securing judicial review. Id. at 8–10. Defendants counter that regardless of how indirect, the Statute's scheme provides meaningful review by bringing "the Union's claims before the Authority and, ultimately, a federal court of appeals." Mot. to Dismiss 16, ECF No. 16 (discussing AFGE , 929 F.3d at 757 ). A recent Court of Appeals decision shows that Defendants have the better argument.
In AFGE , the Court of Appeals held that, under Thunder Basin , the unfair-labor-practice procedure afforded "meaningful judicial review" of constitutional and statutory objections to three executive orders affecting federal collective bargaining negotiations. AFGE , 929 F.3d at 756–57. Seventeen federal unions sought "pre-implementation review of the executive orders or immediate relief barring all agencies from implementing the executive orders." Id. at 755 (internal quotation marks omitted). The unions claimed that they could not receive meaningful review within the statutory scheme because the Authority could not hear "systemwide" constitutional challenges or issue a nationwide injunction, the unions’ preferred form of relief. Id. at 757.
Even so, the Court of Appeals held that as "long as [the unions] can eventually obtain review and relief," "Congress may require them to litigate their claims solely through the statutory scheme." Id. at 756. The Court then identified several paths the unions could take to obtain judicial review after exhausting statutory proceedings, including the unfair-labor-practice proceeding. Id. at 757. Those "administrative options," the Court noted, "might enable the unions to obtain from the [Authority] much of the review and relief that they sought from the district court." Id. But even if the Authority "could not address" the statutory and constitutional claims raised by the unions, unfair-labor-practice proceedings still afforded meaningful review because the "circuit courts could" review all the union's claims "on appeal." Id. at 758.
So too here. The Union may pursue an unfair-labor-practice proceeding by refusing to "cooperate" with the Panel's recently issued decision. 5 U.S.C. § 7116(b)(6) ("[I]t shall be an unfair labor practice for a labor organization ... to refuse to cooperate with in ... impasse [Panel] decisions"); see also AFGE Local 1815 , 69 FLRA 309 (2016) (finding that a union's refusal to execute the Panel's resolution of a disputed article was an unfair labor practice). At that point, the VA would "file an unfair labor practice charge or grievance after the Panel proceedings are complete." Mot. to Dismiss 22, ECF No. 16. Indeed, the VA has represented that is "committed to implementing the final and binding Panel decision issued on November 5 ... as soon as practically possible." Joint Status Report 3, ECF No. 36.
After a charge is made, the Parties may choose one of two dispute-resolution tracks: they can air the charge before an arbitrator (whose decision is reviewable by the Authority), or they can bring the charge directly to the Authority through its General Counsel. See U.S. Dep't of Navy v. FLRA , 665 F.3d 1339, 1345 (D.C. Cir. 2012). Either way, by provoking an unfair-labor-practice proceeding, the Union may ensure that "[t]he Panel's decision is reviewable, first before the Authority, then in court, in an unfair labor practice proceeding." See Dep't of Treasury v. FLRA , 707 F.2d 574, 577 n.7 (D.C. Cir. 1983) ; Brewer , 735 F.2d at 1500 ; 5 U.S.C. § 7123(a). And in either proceeding (before an arbitrator or the Authority), the Union could raise its constitutional and statutory objections to the Panel's structure as the grounds for its refusal to cooperate. See Howlett , 562 F. Supp. at 851 ("In an unfair labor practice proceeding before the [Authority] the charged party may defend such noncompliance on the ground that the Authority should set aside the allegedly illegal Panel decision."). The Union contends that because other actors—the VA and (under track two) the Authority's General Counsel—are involved in the Statute's scheme, it cannot provide meaningful review. Pls.’ Opp'n Mot. 7–8, ECF No. 19. Not so. Under Thunder Basin , courts are not asked to speculate about every possible way a statutory scheme might break down and thwart judicial review. Instead, the Thunder Basin framework asks whether the statutory scheme forecloses all meaningful judicial review. AFGE , 929 F.3d at 755–56. This one does not. Indeed, just last year, the Court of Appeals observed that violating an order, and thereby provoking an agency to file an unfair-labor-practice charge, is the normal way unions secure judicial review under the Statute. See Antilles Consol. Educ. Ass'n , 977 F.3d at 14 ("Orders of the Impasses Panel are not directly reviewable in court. Instead, an aggrieved party may obtain judicial review by violating a Panel order and then seeking review of any ensuing [Authority] order finding an unfair labor practice.").
Moreover, the Union likely can bring an unfair labor practice charge against the VA, even if the VA does not initiate proceedings. Panel orders are not self-enforcing, Procedures of the Panel, 48 Fed. Reg. at 19,693 (May 2, 1982), but are "binding on [the] parties" only if they fail to "agree otherwise." 5 U.S.C. § 7119(c)(5)(C). The phrase "agree otherwise" creates a "good faith" duty for the VA "to consult or negotiate" with the Union about whether the Panel's decision should become part of the Parties’ collective bargaining agreement. 5 U.S.C. § 7116(a)(5) ; see also Reply 19, ECF No. 21. If the VA refuses to negotiate or opts to impose the Panel's decision unilaterally, the Union could file its own unfair-labor-practice charge directly against the VA. See AFGE, 929 F.3d at 757 ("[I]f an agency refuses to bargain ... the unions could charge in a negotiability or unfair labor practice dispute that the agency had refused to bargain over mandatory matters in violation of the Statute."); NATCA I , 437 F.3d at 1265 ("[W]here an agency has a duty to negotiate, a unilateral change in conditions of employment is a refusal to consult or negotiate in good faith and thus an unfair labor practice.").
Even if the Statute requires the Union to provoke an unfair labor practice charge indirectly, the scheme does not foreclose all meaningful judicial review because it starts a process designed to make Panel decisions "reviewable, first by the Authority, then in court in an unfair labor practice proceeding." Brewer , 735 F.2d at 1500 (collecting quotes and cases). To be sure, the Court of Appeals has recognized the "shortcomings" of a scheme that makes "unfair labor practices proceeding[s]" the "exclusive means for assuring judicial review of Panel orders." Id. at 1502 n.9. After all, a union's "decision to defy" contract terms "imposed by a Panel order—is not to be taken lightly," as "[s]uch defiance could subject the union to prolonged administrative proceedings, followed perhaps by a cease and desist order, before judicial review could be available." Id. Nevertheless, the Court has concluded that "[w]hile on occasion such a scheme may result in uncorrected errors of judgment, it is Congress, and not this court, that has the authority to alter the scheme of review." Id. at 1502 ; see also AFGE v. Trump , 929 F.3d at 756–57. The Union responds that this case mirrors Free Enterprise . Pls.’ Opp'n Mot. 10, ECF No. 19. There, an accounting firm—which was under investigation by the Public Company Accounting Oversight Board (an entity within the SEC)—brought an Appointments Clause challenge against the Board in district court. Free Enterprise, 561 U.S. at 487, 130 S.Ct. 3138. The government argued that the firm must go through an administrative scheme before seeking review in federal court. Id. at 487, 490–91, 130 S.Ct. 3138. The Supreme Court disagreed, concluding that it was implausible to assume that Congress wanted the firm to "bet the farm" by taking a "violative action" just to "test[ ] the validity of the law." Id. at 490–91, 130 S.Ct. 3138 (internal quotation marks omitted). For "[i]f the Commission then affirms [the sanction], the firm will win access to a court of appeals—and severe punishment should its challenge fail." Id. at 490, 130 S.Ct. 3138. The Court thus held that the firm could not receive meaningful review of its constitutional claims under the statutory scheme. Id. at 490–91, 130 S.Ct. 3138.
The Union also objects to a scheme that involves the Authority's General Counsel because, at present, that post is unfilled, and (once filled) the General Counsel's power to bring unfair-labor-practice complaints is discretionary. Pls.’ Opp'n Mot. 9, ECF No. 19. But those objections do not suggest a facial defect in the statutory scheme under Thunder Basin , as judicial review (while delayed) remains possible. Instead, they are an argument that the Union need not exhaust administrative proceedings here. Exhaustion, however, "may be waived in only the most exceptional circumstances." Commc'ns Workers of Am. v. Am. Tel. & Tel. Co. , 40 F.3d 426, 432 (D.C. Cir. 1994) (quoting Peter Kiewit Sons’ Co. v. United States Army Corps of Eng'rs, 714 F.2d 163, 168–69 (D.C. Cir. 1983) ). Waiver is reserved for situations when the available administrative remedies "would be futile because of the certainty of an adverse decision." Id. (internal quotation marks omitted). The General Counsel's absence, however, is temporary and the possibility that the General Counsel may choose to ignore an unfair-labor-practice charge is (at this point) speculative. The Union's argument does not establish the "certainty of an adverse decision" required to waive administrative exhaustion. That is especially true here, as the Parties may bypass the General Counsel entirely by channeling their unfair-labor-practice charge through (track one) arbitration proceedings, which also lead to review by the Authority, and then by a court of appeals. See 5. U.S.C. § 7123(a).
As the Court of Appeals later put it in Jarkesy , the scheme in Free Enterprise failed to provide meaningful review because it forced the firm to make an impossible choice: either "erect a Trojan-horse challenge to an SEC rule" by violating a Board rule at random for the sake of raising its constitutional claim or "bet the farm" by incurring millions of dollars in fines "under the securities laws." 803 F.3d at 20. Here, in contrast, the Union does not face that "constitutionally intolerable choice" for at least two reasons. Thunder Basin , 510 U.S. at 218, 114 S.Ct. 771. First, the Union need not devise some random dispute as a vehicle for its constitutional and statutory challenges. After all, the Panel had already asserted jurisdiction over the alleged impasse before the Union filed suit, and now that the Panel has issued its decision, the Union can justify its refusal to cooperate with the Panel's orders by fronting its constitutional and statutory objections to the Panel's structure—no "Trojan-horse challenge" necessary. Cf. Schwarz Partners Packaging, LLC v. NLRB , 12 F. Supp. 3d 73, 88 (D.D.C. 2014) ("Unlike in Free Enterprise Fund , where the Supreme Court found the statute did not intend the courts of appeal to be the ‘exclusive route’ to judicial review, ... it is well settled ... that the indirect method of review through defending against unfair labor practice claims is the sole method of review for NLRB certification decisions under the [National Labor Relations Act].").
Second, the Union need not "bet[ ] the farm" by incurring millions of dollars in fines to get itself into the Statute's administrative scheme. Instead, should the Authority find that the Union committed an unfair labor practice, the Union faces little more than a "non-punitive" "traditional" remedy, like a cease-and-desist order. Defs.’ Notice of Supp. Auth. 1–2, ECF No. 26. Indeed, a "cease-and-desist order accompanied by the posting of a notice" is the standard traditional remedy "provided in virtually all cases where a[n] [unfair-labor-practice] violation is found." F.E. Warren Air Force Base, Cheyenne, WY , 52 FLRA 149, 161 (1996). Receiving a cease-and-desist order is hardly the type of "bet-the-farm" injury at stake in Free Enterprise . And it does not justify bypassing the statutory scheme. Brewer , 735 F.2d at 1502, n.9 ; see also AFGE , 929 F.3d at 756–57.
In sum, because the statutory scheme offers the Union two paths to judicial review, and because the Union need not "bet the farm" to seek review through that process, the unfair-labor-practice procedure does not "foreclose all meaningful judicial review" of the Union's claims. Free Enterprise , 561 U.S. at 489, 130 S.Ct. 3138 (quoting Thunder Basin , 510 U.S. at 212–13, 114 S.Ct. 771 ).
2. Wholly collateral claims
The "wholly collateral" factor also tilts against the Union. "This consideration is ‘related’ to whether ‘meaningful judicial review’ is available, and the two considerations are sometimes analyzed together." AFGE , 929 F.3d at 759 (quoting Jarkesy , 803 F.3d at 22 ). To determine whether a litigant's claims arise outside of an administrative review scheme, courts ask whether the claims "arise from [administrative] actions" taken "in the course of that scheme." Jarkesy , 803 F.3d at 23. If a litigant is "not in that scheme at all," then the claims may well be collateral, as when a "constitutional challenge [is] filed in court before the initiation of any administrative proceeding." Id. (discussing Free Enterprise , 561 U.S. at 490, 130 S.Ct. 3138 ). But when the claims are the "vehicle by which" a litigant "seeks to prevail in [an] administrative proceeding," they arise from within the scheme and so are not "wholly collateral" under Thunder Basin . Id. (discussing Elgin v. Department of Treasury , 567 U.S. 1, 22, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012) ).
As discussed above, this case is "vehicle by which" the Union seeks to "prevail" by voiding at least two Panel decisions issued within the very statutory scheme that the Union aims to avoid. See Part III.A. The Union filed its complaint days after the Panel asserted jurisdiction over the Parties’ impasse, Compl. ¶ 37, ECF No. 3, and its requested relief would reverse and void two specific panel orders: the order asserting jurisdiction and the Panel's now-issued impasse decision. Compare id., with Decision & Order 1, 104, ECF No. 35-1. The Union's claims are thus "procedurally-entwined" with the Panel's impasse proceeding. See Bennett v. SEC , 844 F.3d 174, 187 (4th Cir. 2016) (collecting cases).
The Union argues with some force that its claims raise issues that "are separate from the merits of any specific Panel decision." Pl.s’ Opp'n 14, ECF No. 19. But as the Court of Appeals held in Jarkesy , whether claims are wholly collateral does not turn on whether the substance of those claims is "independent of and irrelevant to" the underlying administrative dispute that triggers an administrative enforcement scheme (in Jarkesy , "securities fraud allegations"—here, a collective bargaining impasse). 803 F.3d at 23. Instead, the question turns on whether the claims are the "vehicle by which" a claimant seeks to prevail in the statutory scheme. Id.
Here, the Union's statutory and constitutional objections to the Panel's structure are that "vehicle." Id. "At bottom," the Union asks this Court for relief that would reverse the Panel's order asserting jurisdiction and void its decision resolving the disputed impasse. Id. (citing Elgin , 567 U.S. at 22, 132 S.Ct. 2126 ); see also Bennett , 844 F.3d at 187 (holding that an Appointments Clause challenge to SEC's administrative law judges was not wholly collateral because the challenge "ar[ose] out of [SEC] enforcement proceedings," and, if successful, would "invalidate" any final enforcement order). The Union could obtain that same relief by challenging the Panel's orders within the statutory scheme, as the Authority can decide whether the Panel "exceed[ed] its authority in asserting jurisdiction" under the statute or issued any order that was "contrary to law," Veterans Admin. Washington, D.C. , 26 FLRA 264, 268–69 (1987), and a court of appeals could eventually pass on those arguments and the Union's constitutional claims. Accordingly, "[f]ar from a suit wholly collateral to the [Statute's] scheme," the Union's complaint challenges Panel orders and "request[s] relief that the" scheme is able to "afford[ ]." Elgin, 567 U.S. at 22, 132 S.Ct. 2126.
3. Agency expertise
The final Thunder Basin factor asks whether a litigant's claims fall outside the agency's expertise. Jarkesy , 803 F.3d at 28–29. The Union argues, again with some force, that "the [Authority] has no expertise in deciding Appointments Clause issues." Pl.’s Opp'n 15, ECF No. 19 (citing Free Enterprise , 561 U.S. at 491, 130 S.Ct. 3138 ). But when a litigant includes constitutional challenges among its claims, this factor does not turn on "an agency's relative level of insight into the merits of [the] constitutional question." Jarkesy , 803 F.3d at 28–29. Instead, it turns on whether the agency's expertise may be "brought to bear" on "the many threshold questions that ... accompany a constitutional claim." Elgin , 567 U.S. at 22–23, 132 S.Ct. 2126.
Here, it is not difficult to imagine the Authority's expertise being relevant to the Union's claims. For example, the Union's statutory and due process claims advance the theory that Panel members are unfit to perform their statutory duties because they are not "knowledgeable in labor-management relations" and are biased against unions. Compl. ¶¶ 46–54, ECF No. 3 (discussing 5 U.S.C. § 7119(c)(2) ). The Authority's "specialized expertise in its field of labor relations" and role in administering and interpreting the Statute make it well qualified to speak to those issues. "After all, ‘there are precious few cases involving interpretation of statutes authorizing agency action in which our review is not aided by the agency's statutory construction.’ " AFGE , 929 F.3d at 761 (quoting Jarkesy , 803 F.3d at 29 ); cf. Jarkesy , 803 F.3d at 29 (holding that the SEC "could offer an interpretation of the securities laws in the course of [administrative] proceedings that might ... shed light on [a] non-delegation challenge").
Even the Union's Appointments Clause challenge touches on important statutory questions, like the extent to which the Authority exercises "leadership" over the Panel. See, e.g. , 5 U.S.C. § 7105(a). The Authority also has some experience in deciding whether Panel decisions raise constitutional concerns. See, e.g. , U.S. Dep't of Def. Educ. Activity, Arlington, Va. , 56 FLRA 119, 120, 122 (2000) (finding that enforcing a Panel order "would violate the Appropriations Clause"). It is therefore at least plausible to think that the Authority's expertise in interpreting its enabling Statute would aid a court of appeals in resolving the constitutional and statutory claims raised here. This factor thus suggests that Congress did not "intend[ ] to exempt such claims from [the Statute's] exclusive [procedures for administrative] review." Elgin , 567 U.S. at 23, 132 S.Ct. 2126. In sum, all of the Thunder Basin factors weigh in favor of requiring the Union to bring its claims within the statutory scheme: the unfair-labor-practice procedure affords the Union a path to meaningful review (first, before the Authority, then a court of appeals); its claims are not wholly collateral because they arise within the scheme and are the vehicle by which the Union aims to prevail; and the Authority's expertise will aid in resolving the statutory questions disputed here. The Court thus finds that the Statute provides an "exclusive avenue for judicial review that" the Union "may not bypass by filing suit in district court." Jarkesy , 803 F.3d at 30.
C. Leedom v. Kyne
Even when a statutory scheme precludes judicial review, a litigant may bypass that scheme and go directly to federal court by showing "exceptional circumstances" under Leedom v. Kyne . NATCA I , 437 F.3d at 1258 (quoting Brewer , 735 F.2d at 1500–01 ). The Court of Appeals has emphasized that "[t]he invocation of Leedom jurisdiction ... is extraordinary," Ass'n of Civilian Technicians, Inc. v. FLRA , 283 F.3d 339, 344 (D.C. Cir. 2002) (quoting Brewer , 735 F.2d at 1501 ), and "extremely narrow in scope." NATCA I , 437 F.3d at 1263. Indeed, the Leedom standard demands a "nearly insurmountable" showing of "exceptional circumstances." U.S. Dep't of Justice v. FLRA , 981 F.2d 1339, 1342–43 (D.C. Cir. 1993). The Union devotes a few paragraphs to Leedom near the end of its brief. See Pl.s’ Opp'n 16–17, ECF No. 19. But it fails to clear that "nearly insurmountable" hurdle.
Under Leedom , "a plaintiff must show, first , that the agency has acted in excess of its delegated powers and contrary to a specific prohibition which is clear and mandatory, and second , that barring review by the district court would wholly deprive [the party] of a meaningful and adequate means of vindicating its statutory rights." NATCA I , 437 F.3d at 1263 (internal citations and quotation marks omitted). The Union stumbles over the second step: it has not shown that the unfair-labor-practice procedure denies meaningful review of its rights. See Part III.B.1. So long as a Union can "vindicate" its "statutory rights and gain appropriate redress before the [Authority]" by pursuing an unfair-labor-practice charge, Leedom does not apply. NATCA I , 437 F.3d at 1265. As discussed above, the Union can do so: It can provoke an unfair-labor-practice charge by refusing to cooperate with the Panel's decision; vindicate its refusal by raising its constitutional and statutory challenges to the Panel's structure; and air those claims before the Authority, followed by a court of appeals. And at each stage, the Union can seek relief from the Panel's orders.
To be sure, the unfair-labor-practice charge is not the Union's preferred path. But it still affords "meaningful judicial review," as even claims that may be insufficiently developed by the Authority can be resolved on appeal by a court of appeals. AFGE v. Trump , 929 F.3d at 758–59.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 16, is granted. An appropriate Order will be entered contemporaneously with this Memorandum Opinion.