Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-00481).
The opinion of the court was delivered by: Ginsburg, Circuit Judge
Before: GINSBURG and TATEL, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
When the National Air Traffic Controllers Association (the Union) and the Federal Aviation Authority reached an impasse in collective bargaining, the Union sought the aid of the Federal Service Impasses Panel. The FSIP declined to assert jurisdiction, whereupon the Union sued the FSIP, the FAA, and the Federal Labor Relations Authority, seeking both a declaratory judgment that the FSIP had jurisdiction over an impasse involving the FAA and an injunction requiring the FSIP to assert jurisdiction over all such pending and future impasses. The district court dismissed the suit for lack of subject matter jurisdiction. For the reasons that follow, we affirm that order insofar as it applies to the FAA but reverse it with respect to the FSIP and the FLRA.
We first explain the roles played by the agencies involved in this suit. We then recount the factual and procedural background of this case.
The "Congress established a distinct regulatory framework for collective bargaining between federal agencies and their employees under the Federal Service Labor-Management Relations Statute," which was passed as part of the Civil Service Reform Act of 1978 and codified in Chapter 71 of Title 5 of the U.S. Code. NATCA v. FSIP, 437 F.3d 1256, 1258 (D.C. Cir. 2006) [hereinafter NATCA I]. "The Statute grants federal agency employees the right to organize, provides for collective bargaining, and defines various unfair labor practices." Nat'l Fed'n of Fed. Employees v. Dep't of Interior, 526 U.S. 86, 88 (1999).
The FLRA is "primarily responsible for administering" the Statute. NATCA I, 437 F.3d at 1258. Much as the National Labor Relations Board does for the private sector, the FLRA "determine[s] the appropriateness of units for labor organization representation," "conduct[s] elections to determine whether a labor organization has been selected as an exclusive representative" and, most relevant here, "conduct[s] hearings and resolve[s] complaints of unfair labor practices" arising out of negotiations between a federal agency employer and the union that represents its employees. 5 U.S.C. § 7105(a)(2). Except in circumstances not relevant here, a final order issued by the FLRA is reviewable in the court of appeals. Turgeon v. FLRA, 677 F.2d 937, 938 (D.C. Cir. 1982) (citing 5 U.S.C. § 7123(a)).
The General Counsel of the FLRA, who "serves at the pleasure of the President," has by statute "separate authority" from that of the FLRA. Turgeon, 677 F.2d at 938 n.4. Her principal duties are to investigate unfair labor practice charges, issue unfair labor practice complaints arising from those charges, and prosecute those complaints before the FLRA. Id. A union or an employer accusing its counterpart of an unfair labor practice first submits a charge to a Regional Director of the FLRA, 5 C.F.R. § 2423.6(a), who, acting "on behalf of the General Counsel," investigates the charge, 5 C.F.R. § 2423.8(a), and decides whether to issue a complaint, 5 C.F.R. § 2423.10(a). If the Regional Director dismisses the charge, then the charging party may appeal that decision to the General Counsel, 5 C.F.R. § 2423.11(c), but the General Counsel's decision whether to issue a complaint is not subject to judicial review, see Turgeon, 677 F.2d at 940.
The FSIP, "an entity within the" FLRA, "serves as a forum of last resort in the speedy resolution of disputes between a federal agency and the exclusive representatives of its employees after negotiations have failed." NATCA I, 437 F.3d at 1257-58 (citing Council of Prison Locals v. Brewer, 735 F.2d 1497, 1501 (D.C. Cir. 1984)) (internal quotation marks omitted). The FSIP must "promptly investigate any impasse presented to it," 5 U.S.C. § 7119(c)(5)(A), and then "either (1) Decline to assert jurisdiction ... [for] good cause ... or (2) Assert jurisdiction," 5 C.F.R. § 2471.6(a). If the FSIP asserts jurisdiction, then it may ultimately "take whatever action is necessary and not inconsistent with [the Statute] to resolve the impasse," 5 U.S.C. § 7119(c)(5)(B)(iii), "including binding arbitration," Am. Fed'n. of Gov't Employees v. FLRA, 691 F.2d 565, 569 n.26 (D.C. Cir. 1982); see 5 C.F.R. § 2471.6(a)(2)(ii). A decision of the FSIP declining to assert jurisdiction over an impasse "is not reviewable 'except in extraordinary circumstances,' because 'Congress precluded direct judicial review of Panel orders.'" NATCA I, 437 F.3d at 1262 (quoting Brewer, 735 F.2d at 1498).
B. Factual and Procedural Background
The present drama unfolded in two acts, the first beginning in 2003 and the second in 2006. We begin, however, with a brief prologue reviewing the statutory provisions that form the background for these events. In 1995 the Congress "directed the FAA to establish its own personnel management system." NATCA I, 437 F.3d at 1259. In 1996, one day after the FAA had established its system, the Congress exempted that system from the requirements of Title 5 of the U.S. Code (Government Organizations and Employees) except, in relevant part, those in Chapter 71, i.e., the Statute. Id. at 1259-60; see 49 U.S.C. § 40122(g)(2)(C) (providing exemption). Later that year the Congress enacted 49 U.S.C. 106(l), which provides: "In fixing compensation and benefits ... the Administrator [of the FAA] shall not engage in any type of bargaining, except to the extent provided for in section 40122(a)" of Title 49. See NATCA I, 437 F.3d at 1260. That section in turn requires the FAA to negotiate with the representative of its employees before making a change to its personnel management system; if such negotiation reaches an impasse, then the FAA must first use the "services of the Federal Mediation and Conciliation Service" and, if mediation fails, "transmit the proposed change ... to Congress."
In 2003 the FAA reached an impasse in contract negotiations with both the NATCA and the Professional Airways Systems Specialists, another union. NATCA I, 437 F.3d at 1258. The two Unions "sought the assistance" of the FSIP. Id. The FAA argued the FSIP lacked jurisdiction because, although 5 U.S.C. § 7119 generally provides the FSIP with jurisdiction over an impasse between a federal agency and a union, 49 U.S.C. § 106(l) specifically prohibits the FAA from bargaining over compensation and benefits except as provided in 40122(a), which makes no mention of the FSIP. NATCA I, 437 F.3d at 1260-61. In January 2004 the FSIP declined to assert jurisdiction on the ground that it was "unclear whether [it] ha[d] the authority to resolve the parties' impasse." The Panel went on to say the question whether the Congress had divested it of jurisdiction over compensation-related impasses ...