                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
AMERICAN FEDERATION OF         )
GOVERNMENT EMPLOYEES,          )
et al.,                        )
               Plaintiffs,     )
                               )
                               )    Civil Action No. 08–692 (EGS)
          v.                   )
                               )
SECRETARY OF THE AIR FORCE,    )
                               )
               Defendant.      )
______________________________)

                        MEMORANDUM OPINION

     Plaintiffs are the American Federation of Government

Employees (“AFGE”), fourteen local labor unions chartered by the

AFGE, and one individual member of AFGE Local 1401.   On behalf

of the affected members, plaintiffs challenge 2007 amendments to

three Air Force Instructions (the “AFIs”).   The amendments to

the AFIs affected certain Air Force employees, referred to as

“dual status” technicians because of their status as both

civilian employees and military reservists, by requiring them to

wear their military uniforms while performing their civilian

duties.   The Secretary moved to dismiss the complaint or, in the

alternative, for summary judgment, and plaintiffs filed a cross-

motion for summary judgment.   Upon consideration of the motions,

responses and replies thereto, the supplemental memoranda, the

applicable law, the entire record herein, the arguments by
counsel at the June 2, 2011 motions hearing, and for the reasons

stated below, the Court GRANTS the Secretary’s motion to dismiss

and DENIES plaintiffs’ motion for summary judgment.

I.   BACKGROUND

      Air Reserve Technicians (“ARTs”) are civilian military

technicians employed by the Air Force primarily to provide

support to wartime deployable reserve units.    Compl. ¶¶ 7-9, 12;

Def.’s Statement of Material Facts Not in Genuine Dispute

(“Def.’s Statement of Facts”) ¶ 11.   Their responsibilities

include “the organizing, administering, instructing, or training

of the Selected Reserve or [] the maintenance and repair of

supplies or equipment issued to the Selected Reserve or the

armed forces.”    10 U.S.C. § 10216(a)(1)(C).   Although ARTs are

civilian employees, they are required, as a condition of their

employment, to maintain active membership in the Air Force

Selected Reserve.   As such, ARTs are referred to as “dual

status” technicians because of their status as both civilian

employees and military reservists.    They receive civilian

employee pay for their civil service jobs, plus military pay for

their weekend military duty and summer active military duty

hours.   Compl. ¶ 20; Def.’s Statement of Facts ¶ 15.    ARTs can

be ordered to deploy with their unit if it is mobilized.      Compl.

¶ 16; Def.’s Statement of Facts ¶ 14.

      The Secretary has the authority to promulgate regulations


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“to carry out his functions, powers, and duties.”      10 U.S.C.

§ 8013(g)(3).   Air Force regulations are set forth in

publications called AFIs, which “are certified and approved at

the Secretariat or the Air Staff level.”     Def.’s Statement of

Facts ¶ 17.   In August 2007, the Secretary made Interim Changes

to three AFIs, which had the effect of instituting a requirement

that ARTs wear their military uniform while performing civilian

duties.   See Compl. ¶ 24; AFIs 36-2903, 36-801, & 36-703

(attached to Def.’s Mot. to Dismiss or in the Alternative for

Summ. J. (“Def.’s Mot.”) at Exs. A-C).

      Plaintiffs filed an action in this Court for declaratory

and injunctive relief.      See generally Compl.   The three-count

Complaint challenges the 2007 changes requiring ARTs to wear

military uniforms when serving in their civilian capacity on the

basis that the Secretary’s regulations are (1) arbitrary and

capricious, in violation of the Administrative Procedure Act

(“APA”), 5 U.S.C. § 706(2)(A); (2) contrary to 10 U.S.C. §§ 771

and 10216, and 18 U.S.C. §§ 702 and 703; and (3) in excess of

the Secretary’s statutory authority under 10 U.S.C. § 10216.

II.   STANDARDS OF REVIEW

      On a motion to dismiss for lack of subject-matter

jurisdiction under Rule 12(b)(1), the plaintiff bears the burden

of establishing that the court has subject-matter jurisdiction.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).      “The


                                    3
court must address the issue of jurisdiction as a threshold

matter, because absent jurisdiction the court lacks the

authority to decide the case on any other grounds.”       Am. Farm

Bureau v. EPA, 121 F. Supp. 2d 84, 91 (D.D.C. 2000).       Moreover,

because subject-matter jurisdiction relates to the Court’s power

to hear the claim, the Court must give the plaintiff’s factual

allegations closer scrutiny when resolving a Rule 12(b)(1)

motion than would be required for a Rule 12(b)(6) motion.

Uberoi v. EEOC, 180 F. Supp. 2d 42, 44 (D.D.C. 2001).      In

resolving a motion to dismiss for lack of subject-matter

jurisdiction, the Court “may consider the complaint supplemented

by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court’s resolution of

disputed facts.”    Coal. for Underground Expansion v. Mineta, 333

F.3d 193, 198 (D.C. Cir. 2003) (internal citations and quotation

marks omitted).

III.   ANALYSIS

       The Court concludes that it lacks subject-matter

jurisdiction over plaintiffs’ claims because plaintiffs have

failed to exhaust any of the administrative remedies available

to them under the Civil Service Reform Act of 1978 (“CSRA”).1


1
     In its motion to dismiss or in the alternative for summary
judgment, the Secretary argued that the Complaint must be
dismissed for lack of subject-matter jurisdiction and failure to
state a claim upon which relief can be granted. Specifically,

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     The CSRA provides a remedial scheme to federal employees

that “protects covered federal employees against a broad range

of personnel practices” and provides them with “a variety of

causes of action and remedies . . . when their rights under the

statute are violated.”   Grosdidier v. Chairman, Broad. Bd. of

Governors, 560 F.3d 495, 497 (D.C. Cir. 2009).   Accordingly,

this Circuit has repeatedly held that the CSRA is “comprehensive

and exclusive,” and “[f]ederal employees may not circumvent the

[CSRA’s] requirements and limitations by resorting to the

catchall APA to challenge agency employment actions.”   Id.

(emphasis added); see also Filebark v. U.S. Dep’t of Transp.,

555 F.3d 1009 (D.C. Cir. 2009)(“Congress, through the [CSRA] and

related employment statutes, has carefully constructed a system

for review and resolution of federal employment disputes,

intentionally providing—and intentionally not providing—


the Secretary contended that (1) plaintiffs’ claims raise a
nonjusticiable political question, and (2) plaintiffs have
failed to state a cause of action as judicial review is
unavailable under the APA because Plaintiffs have an adequate
remedy at law. See Def.’s Mot. at 3-11. Alternatively, the
Secretary argued that plaintiffs have failed to state a claim
because they have not adduced any facts showing that the
Secretary’s decision to require ARTs to wear military uniforms
when performing civilian duties was (1) arbitrary and
capricious, (2) contrary to law, or (3) in excess of the
Secretary’s statutory authority. See id. at 11-16. However,
because the Court concludes that plaintiffs failed to exhaust
their administrative remedies, and therefore the Court lacks
subject-matter jurisdiction over any of plaintiffs’ claims, the
Court does not reach the other arguments asserted by the
parties.


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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.’” (quoting Fornaro v. James, 416

F.3d 63, 67 (D.C. Cir. 2005))).

     Plaintiffs admit that they could have availed themselves of

the grievance procedures outlined in § 7121(a)(1) of the CSRA,

which provides that “[e]xcept as provided in paragraph (2) of

this subsection, any collective bargaining agreement shall

provide procedures for the settlement of grievances, including

questions of arbitrability.”   5 U.S.C. § 7121(a)(1).

Furthermore, the CSRA states that the grievance procedures

contained in the collective bargaining agreement “shall be the

exclusive administrative procedures for resolving grievances

which fall within its coverage.”       Id.   The term “grievance” is

defined very broadly as:

     [A]ny complaint—

          (A) by any employee concerning any matter
          relating to the employment of the employee;

          (B) by any labor organization concerning any
          matter relating to the employment of any
          employee; or

          (C) by any employee, labor organization, or
          agency concerning—

               (i) the effect or interpretation, or a claim


                                   6
                  of breach, of a collective bargaining
                  agreement; or

                  (ii) any claimed violation,
                  misinterpretation, or misapplication of any
                  law, rule, or regulation affecting
                  conditions of employment[.]

Id. § 7103(a)(9).

        Plaintiffs in the instant case are attempting the same type

of circumvention of the CSRA as the Circuit rejected in

Filebark.     Conceding that they could have used the negotiated

grievance procedures outlined in § 7121(a), plaintiffs argue

that they are nonetheless entitled to proceed directly to this

Court because the available administrative remedy “would not

resolve the matter nationally.”    Pls.’ Mem. on Exhaustion at 2.

Plaintiffs assert that they cannot be required to exhaust any

administrative remedy because no agency has jurisdiction to

adjudicate their “nationwide claim.”    Pls.’ Mem. on Exhaustion

at 1.

        Even assuming a decision from this Court in this case would

have nationwide implications, plaintiffs have failed to identify

any authority entitling them to nationwide relief, nor has this

Court been able to find any such authority.    On the contrary,

this Circuit has “consistently read the CSRA narrowly, refusing

to imply remedies that cannot be found in the language of the

statute” because “[p]ersonnel management is ‘peculiarly within

the ken and concern of Congress.’”     Johnson v. Peterson, 996


                                   7
F.2d 397, 401 (D.C. Cir. 1993) (quoting Harrison v. Bowen, 815

F.2d 1505, 1515 (D.C. Cir. 1987)).    When Congress intends to

preserve remedies for federal employees outside the CSRA, “it

does so expressly; for example, the CSRA maintains federal

employees’ rights to bring suit under Title VII and other anti-

discrimination laws.”    Nyunt v. Chairman, Broad. Bd. of

Governors, 589 F.3d 445, 448 (D.C. Cir. 2009).

     Plaintiffs also argue that, rather than being

jurisdictional in nature, exhaustion under the CSRA is non-

jurisdictional, i.e. waivable at the Court’s discretion.       As

plaintiffs correctly point out, exhaustion requirements are non-

jurisdictional unless there is “sweeping and direct statutory

language indicating that there is no federal jurisdiction prior

to exhaustion.”   Munsell v. Dep't of Agric., 509 F.3d 572, 580

(D.C. Cir. 2007) (quoting Avocados Plus, Inc. v. Veneman, 370

F.3d 1243, 1248 (D.C. Cir. 2004)).    In the absence of such

statutory language, “the exhaustion requirement is treated as an

element of the underlying claim.”     Id. (quoting Avocados Plus,

370 F.3d at 1248).   However, this Circuit has made it clear that

the CSRA does indeed contain such language and that, “under the

CSRA, exhaustion of administrative remedies is a jurisdictional

prerequisite to suit.”    Weaver v. U.S. Info. Agency, 87 F.3d

1429, 1433 (D.C. Cir. 1996) (emphasis added); see also Suzal v.

Director, U.S. Info. Agency, 32 F.3d 574, 585 (D.C. Cir. 1993)


                                  8
(“[E]xhaustion of the nonjudicial remedies provided under the

authority of the CSRA is a jurisdictional prerequisite, and

because section 7121(a)(1) mandates exclusive recourse to the

CBA's grievance-resolving procedures, [the] failure to have

pursued arbitration deprives [the Court] of jurisdiction[.]”);

Fernandez v. Donovan, 760 F. Supp. 2d 31, 34-35 (D.D.C. 2011).

      Plaintiffs assert that the APA gives this Court subject-

matter jurisdiction over their claims, but—as this Court has

previously explained—“jurisdiction under the APA [i]s precluded

by ‘the structure of Congress’s employment statutes and the CSRA

as a whole.’   Otherwise, ‘the exhaustive remedial scheme of the

CSRA would be impermissibly frustrated[.]’”   Ramirez v. U.S.

Customs & Border Prot., 709 F. Supp. 2d 74, 81 (D.D.C. 2010)

(quoting Filebark, 555 F.3d at 1013-15).

      Plaintiffs’ claims are accordingly DISMISSED for lack of

subject-matter jurisdiction.

IV.   Conclusion

      For the reasons stated above, the Court hereby GRANTS the

defendant’s motion and DENIES plaintiffs’ motion.   An

appropriate Order accompanies this Memorandum Opinion.

Signed:    Emmet G. Sullivan
           United States District Judge
           January 27, 2012




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