                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

JOHN L. CORRIGAN,                             :
                                              :
                       Plaintiff,             :       Civil Action No.:      08-1403 (RMU)
                                              :
                       v.                     :       Re Document Nos.:      12, 14
                                              :
NATIONAL TREASURY EMPLOYEES                   :
UNION et al.,                                 :
                                              :
                       Defendants.            :

                                    MEMORANDUM OPINION

                    GRANTING THE DEFENDANTS’ RENEWED MOTIONS TO
                    DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

                                      I. INTRODUCTION

       This matter comes before the court on the renewed motions to dismiss filed by the

defendants, the National Credit Union Administration (“the NCUA” or “the agency”), the

National Treasury Employees Union (“the NTEU” or “the union”) and the Office of Personnel

Management (“the OPM”). The union represents the agency’s employees in the collective

bargaining process. The pro se plaintiff, an employee of the agency, commenced this action in

August 2008 challenging the validity of certain provisions of a collective bargaining agreement

(“CBA”) entered into by the agency and the union. The defendants previously filed motions to

dismiss, which the court denied without prejudice in August 2009. The defendants have now

filed renewed motions to dismiss. Because the court concludes that it lacks jurisdiction to

adjudicate the plaintiff’s claims, the court grants the defendants’ motions to dismiss.
                     II. FACTUAL & PROCEDURAL BACKGROUND

       The pro se plaintiff commenced this action against the union, the agency and the OPM in

August 2008, and filed an amended complaint shortly thereafter. See generally Compl.; Am.

Compl. The plaintiff seeks a declaratory judgment invalidating certain portions of the CBA that

the agency and the union entered into in early 2008. Id. While the plaintiff’s allegations are

somewhat unclear, it appears that he seeks to invalidate the portions of the CBA concerning the

compensation that agency employees are to receive for the time spent commuting and traveling

overnight. See Am. Compl. ¶ 6. More specifically, the plaintiff claims that the CBA violates the

OPM’s regulations concerning “hours of work” and that the OPM’s regulations concerning

“hours of work” are arbitrary, capricious or an abuse of discretion. See id. ¶¶ 6, 8. The plaintiff

also suggests that the CBA’s provisions concerning employees’ travel reimbursements

improperly revised the Federal Travel Regulation (“FTR”). See id. ¶ 7.

       In two separate motions, the three defendants moved to dismiss the amended complaint in

late 2008, contending that the court lacked subject matter over this action as a result of the

plaintiff’s failure to comply with the grievance procedures enumerated in the CBA. See

generally NTEU’s Renewed Mot.; NCUA and OPM’s Renewed Mot. Because neither motion

attached the provisions of the CBA concerning those procedures, however, the court was unable

to conclude that the plaintiff’s claims should be dismissed. See Mem. Order (Aug. 3, 2009).

Consequently, the court denied without prejudice the defendants’ original motions to dismiss. Id.

       The union filed a renewed motion to dismiss on August 10, 2009, see generally NTEU’s

Renewed Mot., and the agency and the OPM filed a joint renewed motion to dismiss on August

14, 2009, see generally NCUA and OPM’s Renewed Mot. With briefing now complete, the


                                                  2
court turns to the applicable legal standard and the parties’ arguments.



                                         III. ANALYSIS

            A. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)

       Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); see also Gen.

Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that “[a]s a

court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction”).

       Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory

requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal

court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins.

Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). On a motion

to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the

burden of establishing by a preponderance of the evidence that the court has subject matter

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

       Because subject matter jurisdiction focuses on the court’s power to hear the claim,

however, 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 for failure to state a

claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of

Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the court is

not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227,


                                                  3
241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). When necessary, 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.

Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

        B. The Court Lacks Subject Matter Jurisdiction Over the Plaintiff’s Claims

       All three defendants assert that the court lacks subject matter jurisdiction over the

plaintiff’s claims. See generally NTEU’s Renewed Mot.; NCUA and OPM’s Renewed Mot.

More specifically, the agency and the OPM contend that the plaintiff’s claims constitute a

grievance and, as such, are governed by the grievance procedures set forth in the CBA. See

NCUA and OPM’s Renewed Mot. at 6. Similarly, the union states that although the plaintiff’s

claims are difficult to decipher, he appears to be arguing either that the CBA is contrary to law or

that the union breached its duty of fair representation by entering into the CBA. See NTEU’s

Renewed Mot. at 6-9. If the plaintiff is arguing the former, he may only raise that claim by filing

a grievance or instituting an unfair labor practice proceeding. See id. at 6-7. And if the plaintiff

is arguing the latter, that claim would constitute an allegation that the union had engaged in an

unfair labor practice, which could only be raised in a non-judicial unfair labor practice

proceeding.1 See id. at 7-9.

       The plaintiff filed nearly identical oppositions to the defendants’ renewed motions to

dismiss. See generally Pl.’s Opp’n to NTEU’s Renewed Mot.; Pl.’s Opp’n to NCUA and OPM’s



1
       The OPM also contends that the complaint against it should be dismissed for failure to state a
       claim. See NCUA and OPM’s Renewed Mot. at 8. Because the court lacks subject matter
       jurisdiction over the plaintiff’s claims, however, the court will not address this argument.


                                                   4
Renewed Mot.2 In these oppositions, the plaintiff asserts that the grievance procedure is not an

adequate forum for his claims. See Pl.’s Opp’n to NCUA and OPM’s Renewed Mot. at 1. The

plaintiff notes that although he commenced an action before the Federal Labor Relations

Authority (“FLRA”), he instituted this action as well because he does not believe the FLRA can

grant him the relief he seeks. See id. at 2. The plaintiff also repeats his assertion that the agency

and the union were prohibited from agreeing to a CBA that violates the OPM’s regulations and

the FTR. See id. at 2-3. Finally, the plaintiff argues that the OPM regulations concerning “hours

of work” are arbitrary and capricious. See id. at 4-7.

       Despite the plaintiff’s claims to the contrary, the defendants are correct that the plaintiff

may not obtain relief for his claims in this court. The CBA defines a “grievance” as “any

complaint . . . by any employee concerning any matter relating the employment of that employee”

or “by any employee . . . concerning . . . the effect of interpretation, or claim of breach, of [the

CBA]; or . . . any claimed violation, misinterpretation, or misapplication of any law, rule or

regulation affecting conditions of employment.” NTEU’s Renewed Mot., Ex. 1 (“CBA”) Art.

31, § 2. Because the plaintiff’s claims in this case relate to his employment and contest the

CBA’s adherence to applicable laws and regulations, the claims constitute a grievance. See id.

       In addition, the Civil Service Reform Act (“CSRA”), 5 U.S.C. §§ 7101 et seq., imposes

on agencies and unions the duty to negotiate CBAs in good faith “to the extent not inconsistent


2
       The only difference between the plaintiff’s two oppositions is that his opposition to the NCUA
       and the OPM’s renewed motion to dismiss contains minor additions not contained in his
       opposition to the NTEU’s renewed motion. Compare Pl.’s Opp’n to NTEU’s Renewed Mot.
       with Pl.’s Opp’n to NCUA and OPM’s Renewed Mot. Accordingly, the court will cite to the
       plaintiff’s opposition to the NCUA and the OPM’s renewed motion in summarizing the
       plaintiff’s position.


                                                   5
with any Federal law or any Government-wide rule or regulation.” Id. § 7117(a)(1). Thus, the

plaintiff’s contention that the CBA is contrary to applicable laws and regulations may also

constitute a claim that the union violated the CSRA by entering into the CBA.

       Because the plaintiff’s claims amount to a grievance, a CSRA challenge, or both, he lacks

a remedy in this court. The CBA states that the grievance procedures enumerated therein are “the

exclusive procedure available to bargaining unit employees . . . for resolving any grievance,”

subject to exceptions not applicable in this case. CBA Art. 31, § 1. The CBA further specifies

that “[i]f a grievance also constitutes an unfair labor practice (‘ULP’), the aggrieved party may

seek redress either under [the grievance procedures set forth in the CBA] or through a ULP

pursuant to 5 U.S.C. § 7116, but not both.” Id. § 5.

       The CSRA sets forth a framework for enforcing a union’s obligation to “bargain in good

faith . . . to the extent not inconsistent with any Federal law or any Government-wide rule or

regulation.” Filipiczyk v. United States, 88 Fed. Cl. 776, 782-83 (2009) (citing 5 U.S.C. §

7117(a)(1); Karahalios v. Nat’l Federation of Fed. Employees, Local 1263, 489 U.S. 527, 532-

35 (1989)). Failure to comply with § 7117(a) constitutes an unfair labor practice. See 5 U.S.C. §

7116(a)(5), (b)(5) (establishing that a party’s failure to bargain in good faith constitutes an unfair

labor practice). The Supreme Court has clarified that the CSRA forecloses a parallel remedy in

the district courts in all but three limited instances not applicable here. Karahalios, 489 U.S. at

532. In other words, no private cause of action exists to judicially enforce a federal employees

union’s duty to bargain in good faith. Id. at 533; see also Burnett v. West, 1996 WL 471392, at

*1 (9th Cir. Aug. 19, 1996) (affirming the district court’s dismissal because “federal district

courts lack jurisdiction to adjudicate unfair labor claims arising under the [Civil Service Reform]


                                                  6
Act”); Nat’l Treasury Employees Union, 23 F.L.R.A. 720, 722 (1986) (holding that the court

lacked subject matter jurisdiction over the plaintiff’s allegations that a CBA violated applicable

laws, rules or regulations, and noting that those allegations could “be raised in other appropriate

proceedings (such as grievance arbitration and unfair labor practice proceedings) and, if the

agreement provisions [were] found to be violative of the Statute or any other applicable law, rule

or regulation, they would be void and unenforceable”). In short, the plaintiff’s objections to the

CBA must be raised pursuant to the procedures set forth in the CBA and the CSRA, and this

court lacks subject matter jurisdiction over his claims.



                                       IV. CONCLUSION

       For the foregoing reasons, the court grants the defendants’ renewed motions to dismiss

the plaintiff’s amended complaint. An Order consistent with this Memorandum Opinion is

separately and contemporaneously issued this 5th day of March, 2010.



                                                       RICARDO M. URBINA
                                                      United States District Judge




                                                 7
