268 F.3d 1089 (D.C. Cir. 2001)
Allan E. Lucas, Jr., et al., Appellantv.United States Government, et al., Appellees
No. 00-5149  Consolidated with No. 00-5191
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2001Decided October 30, 2001

Appeals from the United States District Court  for the District of Columbia (No. 98cv02779)
Donna Beasley argued the cause for appellant.  With her  on the brief was Karl W. Carter, Jr.
Mary T. Connelly, Assistant Corporation Counsel, argued  the cause for appellees.  With her on the brief were Robert  R. Rigsby, Corporation Counsel, Charles L. Reischel, Deputy  Corporation Counsel, Kenneth L. Wainstein, U.S. Attorney,  R. Craig Lawrence and Michael J. Ryan, Assistant U.S.  Attorneys.  Alexander D. Shoaibi, Assistant U.S. Attorney,  entered an appearance.
Before:  Randolph, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
In this appeal, employees of the  District of Columbia Department of Corrections claim federal  competitive status for the purpose of retirement benefits and  "entitlement" to federal employment.  They sued the District  of Columbia and the United States under 42 U.S.C.  1983,  the Due Process Clause of the Fifth Amendment to the  United States Constitution, and District of Columbia law, to  enforce their claimed federal status in connection with the  closing of the Lorton Reformatory, and to compel the United  States and the District of Columbia to follow correct procedures for reductions-in-force ("RIFs").  In appealing, appellants contend that the district court erred in dismissing their  claim to federal employment status under Fed. R. Civ. P.  12(b)(6), and in disposing of their other claims for failure to  exhaust, requiring them to pursue their remedies under  District of Columbia personnel procedures.  We find no error,  and accordingly we affirm the dismissal of the complaint.1 By separate order we remand the order imposing monetary sanctions on plaintiffs' counsel for entry of a final judgment  and clarification, by name, of the counsel against whom the  sanctions are entered.

I.

2
The status of employees of the District of Columbia government has changed over the years as Congress has changed  the nature of the local government.  Throughout at least a  part of its existence, the District government has had a  correctional facility, and at least prior to the establishment of  the Mayor-Commissioner form of government under Reorganization Plan No. 3 of 1967, see 32 F.R. 11669, 81 Stat. 948,  Sec. 301 (1967), some employees of the District government  were treated as federal officers for certain purposes.  See,  e.g., Reid v. Covert, 351 U.S. 487, 489-90 (1956), rev'd on other  grounds 354 U.S. 1 (1957);  Zinkhan v. District of Columbia,  271 F. 542, 544-45 (D.C. Cir. 1921).  Whatever their previous  status may have been, the question posed by appellant Corrections Department employees requires the court to address  their status upon enactment of the D.C. Self Government and  Governmental Reorganization Act of 1973 ("Home Rule Act"),  Pub. L. 93-198, 87 Stat. 774 (codified at D.C. Code  1-201,  et seq. (2001)).  If appellants were District government employees at the time of enactment, then they are subject to the  provisions of the D.C. Comprehensive Merit Personnel Act,  D.C. Code  1-602.01 (2001) ("Merit Act"), unless they can  point to authority preserving their claimed federal competitive status.


3
Prior to enactment of the Home Rule Act, Congress established a commission to study the District government.  See  Act of Sept. 22, 1970, Pub. L. No. 91-405, 84 Stat. 845.  The  Commission was referred to as both the "Little Hoover  Commission," because it was modeled on the congressional  commissions in the 1940s and 1950s that recommended improvements in the organization and management of the federal government, see Report of the Nelsen Commission, H.R.  Doc. No. 92-317, vol. II, at xv (1972), and the "Nelsen  Commission," after its chairman, the Honorable Ancher Nelsen.  As part of its Report to Congress in 1972, the Commission examined the multiple personnel systems for District  government employees and called for a comprehensive  District-government-wide merit personnel system "geared to  municipal needs."  Report of the Nelsen Commission, H.R.  Doc. No. 92-317, vol. II, at 178 (1972).  It recommended that  "[t]he District personnel system should be restructured along  the lines of municipal rather than Federal Systems...."  Id.  vol. II, at 550;  see also id. vol. II, at 177-78.  The Commission included in its Report a draft personnel bill, which  proposed that "[e]mployees of the District who are serving  with Federal competitive status shall be granted permanent  status in the [new District-government-wide] Career Service...."  Id. vol. III, at 275.


4
The following year Congress enacted the Home Rule Act. See D.C. Code, History of the D.C. Code, vol. 1 (2001) at 173  (The D.C. Self-Government and Governmental Reorganization Act as enacted December 23, 1973).  As relevant here,   422(3) of the Home Rule Act provided that the Mayor  would administer the personnel functions for District government departments and agencies, and that personnel legislation enacted by Congress applicable to District government  employees would continue in force only until the Council of  the District of Columbia enacted a District government merit  system.  See D.C. Code  1-204.22(3) (2001).  On October 31,  1978, the D.C. Council adopted the D.C. Comprehensive  Merit Personnel Act, codified at D.C. Code  1-601, et seq.  (2001), ("Merit Act"), which became effective on March 3,  1979.  See Am. Fed'n of Gov't Employees v. Barry, 459 A.2d  1045, 1048-49 (D.C. 1983).  Stating among its purposes the  desire to "[c]reate uniform systems for personnel administration among the executive departments and agencies reporting  directly to the Mayor," D.C. Code  1-601.02(a)(2), the Merit  Act adopted the general approach recommended by the Nelsen Commission.  See Nelsen Commission Report, vol. II, at  178, 553.


5
The Merit Act established a municipal personnel system  quite apart from that of the federal government, with Career,  Executive, and Excepted Services for "employees" performing "a function of the District government."  D.C. Code   1-603.01(3), -603.01(7), -608.01, -609.01, -610.51.  With  exceptions inapplicable here, see D.C. Code  1-602.01(a),  persons employed by the District government would, as of  January 1, 1980, "automatically transfer into the appropriate  personnel system established [by the Merit Act]."  Id. at   1-602.04(c).  At that time, personnel procedures, including  a right to review by the D.C. Office of Employee Appeals,  would become available to District government employees. See id. at  1-606.01.  In order to ensure continuity in  retirement benefits, the Merit Act provided that such employees first employed before October 1, 1987, would continue to  participate in the United States Civil Service Retirement  System, see id. at  1-626.02;  for employees hired on or after  that date, District retirement benefits would apply.  See id. at   1-626.03.


6
This background is reflected in the court's decision in  Thomas v. Barry, 729 F.2d 1469 (D.C. Cir. 1984).  In that  case, the court held that former United States Department of  Labor employees whose functions were transferred to the  District government as part of the governmental reorganization in the Home Rule Act ceased to be federal employees  with attendant federal employee rights and benefits once the  Merit Act took effect.  See id. at 1473.  The employees, who  had been career employees in the federal competitive service,  and retained their federal civil service rights prior to enactment of the Merit Act, claimed that they were entitled to  receive the same pay increases as federal government employees.  See id. at 1470-71.  For their claim to continued  status as federal competitive service employees, they relied  on two provisions of the Home Rule Act:   204(g), see D.C.  Code  1-202.04, which provided that federal employees  transferred to the District government retained their competitive service rights, and  713(d), see D.C. Code  1-207.13,  which provided that such transfers would not deprive the  transferred employees of the civil service rights they held  prior to transfer.  See Thomas, 729 F.2d at 1472.  The court  rejected the notion that the absence in the Home Rule Act of  an express time limit on these civil service rights was to be read as a continuing grant of federal benefits.  See id. at  1473.  Rather, the court concluded that the legislative history  of the Home Rule Act made clear that the transferred  employees' federal civil service rights were "merely interim  rights" that ceased to apply to the transferred employees  upon enactment of the Merit Act.  See id.  To hold otherwise  would "frustrate[ ] the congressional purpose of creating a  single, autonomous personnel system."  Id. at 1474.  Because  appellants, who do not claim to have ever been employees of  the federal government, have a lesser claim to federal benefits, Thomas would appear to be dispositive of their claims to  federal status.

II.

7
Appellants seek to distinguish themselves from the employees in Thomas and other District government employees by  virtue of their claim that they perform federal duties (and  thereby retain their federal status) because some federal  prisoners are committed to District of Columbia prisons. They point to case law and various provisions of the Home  Rule Act.  Neither source of authority supports their claims,  however, and Thomas controls, thereby resolving appellants'  other contentions as well.


8
Appellants rely on Reid v. Covert, 351 U.S. 487, where the  Superintendent of the D.C. Jail sought to appeal the issuance  of a writ of habeas corpus.  The Supreme Court held that  insofar as the Superintendent of the D.C. Jail was custodian  of a federal prisoner, he was an "officer or employee of the  United States" for purposes of meeting the requirement of 28  U.S.C.  1252 that the United States be a party to an appeal  involving a decision that an Act of Congress was unconstitutional.  See Reid, 351 U.S. at 489-90.  Appellants also rely on  Zinkhan where this court held that the Superintendent of the  Washington Asylum and Jail could not be held liable for  damages for false imprisonment based on the acts of his  subordinates over whom he had no power of appointment or  discharge.  See Zinkhan, 271 F. at 545.  Both cases, however, concern pre-Home Rule Act District government employees.  Consequently, as Thomas makes clear, they provide no  support for appellants' claim to federal competitive status  after enactment of the Merit Act.  See Thomas, 729 F.2d at  1473.  The Merit Act identified the Department of Corrections as an agency under the direct administrative control of  the Mayor, see D.C. Code  1-603.01(17)(E), and also identified employees of the Corrections Department as among  those employees who, if first hired after September 30, 1987,  would be covered by the District's retirement benefits.  See  id. at  1-626.03, -626.04(2)(B).  Appellants' attempt to  distinguish themselves from other District government employees thus fails to overcome both Congress' direction that  there be a comprehensive merit personnel system for District  government employees, see Thomas, 729 F.2d at 1473, and  the Merit Act's express provisions covering Corrections Department employees.  The basis for their claim to continued  federal competitive status, namely, their detention of federal  prisoners, was rejected implicitly when Congress directed the  new District government to enact an autonomous merit personnel act, and explicitly in the Merit Act itself, which treated  them as District government employees.


9
Appellants' reliance on other provisions of the Home Rule  Act is no more availing.  First, they contend that the Home  Rule Act provision barring the D.C. Council from amending  Title 24 of the D.C. Code for four years trumps applicability  of the Merit Act to Corrections Department employees.  Section 602(a)(9) provided that the D.C. Council would have no  authority to


10
enact any act, resolution, or rule with respect to any provision of Title 23 [of the District of Columbia code] (relating to criminal procedure), or with respect to any provision of any law codified in Title 22 or 24 (relating to crimes and treatment of prisoners) ... during the twenty-four full calendar months immediately following the day on which members of the Council first elected pursuant to this Act take office.


11
D.C. Code Ann.  1-233(a)(9) (1999 Repl.).  This section was  amended in 1976 to extend Congress' exclusive jurisdiction over the District's criminal laws from twenty-four to fortyeight months.  See Pub. L. No. 94-402, 90 Stat. 1220, (1976)  (codified as amended at D.C. Code Ann.  1-233(a)(9) (1999  Repl.)).  Appellants point in particular to  411, see D.C.  Code Ann.  24-411 (1999 Repl.), which they describe in their  brief as providing that Corrections Department employees  are under the general direction of the Mayor-Commissioner,  an interim post during implementation of District "home  rule."  But this gets them nowhere.  At the time Congress  enacted the Home Rule Act,  411 provided only that employees at Lorton, Occoquan and the D.C. Jail would be subject to  the supervision of the D.C. Corrections Department, with the  Superintendent to be appointed by the then Mayor Commissioner.  See D.C. Code Ann.  24-411 (1999 Repl.). In any event, the express language that Congress used to  describe the four-year bar was limited to criminal laws and  criminal procedure, and was designed to carry out Congress'  purposes to await the recommendations on the criminal code  from the D.C. Law Revision Commission.  See McIntosh v.  Washington, 395 A.2d 744, 751 (D.C. 1978).  Because Congress' purpose in retaining exclusive jurisdiction for four  years on amendments to provisions of Title 24 has nothing to  do with employee personnel rights or benefits, appellants  again fail to show that their personnel and retirement rights  are distinguishable from those of employees subject to the  Merit Act.  Although the Merit Act included provisions for  separate personnel systems for some District employees, such  as judges and teachers, see D.C. Code  1-602.01, no similar  exception was provided for Corrections Department employees.


12
Second, appellants' reliance on the provision of the Home  Rule Act that provides for work-sharing agreements with the  United States, see D.C. Code  1-207.31 (2001), likewise  provides no support for their claim of continued federal  status.  That provision neither states nor implies that District  government employees who provide services to the United  States government have federal personnel and retirement  rights.  To do so would be contrary to Congress' intention to have an autonomous personnel system for District government employees.  Cf. Thomas, 729 F.2d at 1474.


13
For similar reasons, appellants' reliance on federal regulations applying to federal government employees, see 5 C.F.R.   210.102(b), 211.102(b) and (c), 315.401-402, is misplaced; they are not employees of the federal government.  Lucas'  claim that he receives retirement benefits from the U.S. Civil  Service retirement system as a result of his employment with  the D.C. Metropolitan Police Department from 1972-73 would  not make him any different from District employees who  were hired prior to 1987.  See D.C. Code  1-204.22(3),  -626.02, -626.03;  Am. Fed'n of Gov't Employees, 459 A.2d at  1051.  Nor can appellants find support for their claim in the  Merit Act itself, for the Corrections Department is not a  grant-in-aid program under D.C. Code  1-632.07(d), but is  an agency of the District government funded by annual  appropriations by Congress.  See D.C. Code  1-201.03,  -626.04(2)(B).


14
Having failed to show that either Congress or the Merit  Act intended to treat Corrections Department employees  differently from other District government employees, appellants' substantive claims based on their claimed federal competitive status fail for the reasons stated in Thomas.  It  follows that their constitutional claim, based on an alleged  property right to federal competitive status, is meritless.  See  Bd. of Regents v. Roth, 408 U.S. 564, 576-77 (1972);  Am.  Fed'n of Gov't Employees, 459 A.2d at 1049.  Therefore,  because appellants cannot avoid exhaustion requirements by  raising garden-variety work-related grievances as statutory  and constitutional claims, see Barwood, Inc. v. District of  Columbia, 202 F.3d 290, 294 (D.C. Cir. 2000), they must  exhaust their administrative remedies under the Merit Act  before filing suit in court.  See D.C. Code  1-606.03,  -624.04;  Washington Teachers Union Local 6 v. Bd. of Educ.  of D.C., 109 F.3d 774, 782 (D.C. Cir. 1997);  Robinson v.  District of Columbia, 748 A.2d 409, 411 (D.C. 2000).  Contrary to appellants' claim, exhaustion is not impossible.  They  have established no right to federal employment status, and thus have no claim against the United States.  Further,  District of Columbia regulations permit intervention by nonparties before the Office of Employee Appeals.  See 6  D.C.M.R.  614.1, 46 D.C. Reg. 9306-07 (1999).  Appellants'  reliance on Anjuwan v. District of Columbia Dep't of Public  Works, 729 A.2d 883 (D.C. 1998), and Bridges v. Kelly, 84  F.3d 470 (D.C. Cir. 1996), is misplaced as neither case excuses  exhaustion here.  Even if these claims were exhausted, however, it is unclear how there would be federal subject matter  jurisdiction.  Finally, appellants' claim that their collective  bargaining agreement expired in 1997, before the RIFs occurred, was not raised in the district court and thus is not  properly before the court.  See Yee v. City of Escondido, 503  U.S. 519, 533-38 (1992);  Nat'l Fed'n of Fed. Employees v.  Greenberg, 983 F.2d 286, 288 (D.C. Cir. 1993).


15
Accordingly, we affirm the district court's dismissal of  appellants' amended complaint for lack of jurisdiction.



Notes:


1
  In light of appellants' constitutional claim, it appears that the  district court determined, in its discretion, to exercise supplemental  jurisdiction over appellants' claims under District of Columbia law. See 28 U.S.C.  1367.  Neither the United States nor the District of  Columbia challenge the district court's assertion of supplemental  jurisdiction.  We note that the court has treated the Home Rule Act  as a hybrid statute, not solely applicable to the District of Columbia  inasmuch as it affects various federal employees and the structure  of some federal agencies.  See Thomas v. Barry, 729 F.2d 1469,  1471 (D.C. Cir. 1984);  28 U.S.C.  1366.  We need not decide  whether this alternative jurisdictional ground applies.


