The opinion of the court was delivered by: PRATT
This matter comes before the Court on defendant's motion to dismiss on grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(1), (6). Upon consideration of the motion and plaintiffs' opposition thereto, the Court has determined that the motion should be granted on the ground that plaintiffs have failed to exhaust administrative remedies available to them.
The action was filed in response to the asserted failure of the Social and Rehabilitative Service (SRS), an agency of the Department of Health, Education & Welfare, properly to implement an arbitration award handed down after contractual grievance and arbitration proceedings. The plaintiff union is the recognized exclusive bargaining representative for SRS non-management employees, one of whom is plaintiff Thomas Dennison. The arbitration proceeding in question centered on the selection process by which SRS filled two computer systems analyst positions which had been advertised by a "Merit Promotion Vacancy Announcement" May 29, 1973. The Announcement elicited applications from 15 individuals, of whom 10 ultimately received "highly qualified" or "best qualified" ratings from the SRS Qualification Review Board. Of these 10 applicants, four, including plaintiff Dennison, were from within SRS; two were from other parts of the Department; two were elsewhere in the federal government, and two were from outside industry. The two from outside industry were selected for the vacancies, allegedly in furtherance of a course of action by which SRS had been importing outside "consultants" and placing them in regular positions at high grade levels, effectively promoting them over the heads of permanent SRS employees.
The union's argument in arbitration, which the arbitrator accepted, was that the SRS Merit Promotion Plan, taken together with applicable provisions of the collective bargaining agreement governing relations between the union employees and SRS, precluded SRS from considering applicants from outside SRS once at least three "highly qualified" SRS employees had applied for each position. Inasmuch as four "highly qualified" SRS applicants were under consideration, selection of one applicant for one of the two vacancies would leave three such applicants for the remaining vacancy. On the strength of this showing, the arbitrator made the following award:
The Grievance is sustained.
The Agency will vacate the two positions of Computer Systems Analyst, GS-334-14, filled as a result of processing the Merit Promotion Vacancy Announcement No. 73-29, issued May 29, 1973. The Agency will then run the selection process again, limiting the Selecting Officer to two choices from among the . . . four highly qualified SRS employees whose names appeared on the Qualification Rating Board's Certificate of June 22, 1973:
The employees selected shall receive back pay- the difference between what they would have earned in the posted positions and what they actually earned in their present jobs- for the period between the date the posted jobs were originally filled to the date offers of appointment are made pursuant to this Award.
The award, issued March 13, 1975, was appealed by SRS to the Federal Labor Relations Council pursuant to 5 C.F.R. § 2411.33. The Council referred several of the issues raised in the appeal to the Civil Service Commission. In April, 1976 the Council issued its Decision on Appeal from Arbitration Award, FLRC No. 75A-42 (Apr. 27, 1976), incorporating substantial portions of the Civil Service Commission response to the referral. The Council decision sustained the arbitration award on all counts, but indicated that the agency retained the right not to re-run the selection process and not to fill the two vacancies if it so decided. Decision on Appeal, FLRC No. 75A-42, at 4 n.3.
By letter dated August 6, 1976, the SRS Associate Administrator for Management notified the plaintiff union that the arbitration award had been implemented by vacating the two computer systems analyst positions and reassigning the incumbents "to positions with the same job title, but different duties" elsewhere in SRS. The letter stated also that "it is the agency decision not to refill the two (2) positions filled under Vacancy Announcement 73-29." The letter then examined the question "whether the erroneous promotion action invalidated the initial appointments of" the two outside consultants appointed to the vacancies, "thereby making them ineligible for reassignment to a subsequent position." Neither the arbitration decision or the Council affirmance thereof addresses this point. The agency received assistance on the question from the Civil Service Commission, which, according to the agency letter, indicated that an "authorized appointment is presumed valid unless there is substantial evidence the appointment was made in violation of applicable laws, regulations, and Civil Service requirements." The agency letter continued by noting that "[the] arbitrator's finding that the selection for the position was improper in terms of the negotiated [collective bargaining] agreement does not, by itself, constitute such evidence. As long as the appointments were otherwise proper and as long as the reassignment met all applicable requirements, no reason was seen why the reassignments might not be continued."
This action, filed in December, 1977, seeks a declaration of the parties' rights; retroactive promotion of plaintiff Dennison "to a position to which he was entitled by the Arbitration Award" with back pay; attorney's fees and costs. Jurisdiction was invoked under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. ; the civil service back pay recovery statute, id. § 5596, and several sections of Title 28, United States Code: section 1346 (actions against the United States); 1361 (mandamus against an officer of the United States); 1331 (federal question jurisdiction), and 2201-02 (declaratory judgments). The instant motion asserts that subject matter jurisdiction is absent.
The disposition of the action on exhaustion grounds obviates extended consideration of the jurisdictional issue. It should be noted that the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. ; the back pay statute, id. § 5596, and the Declaratory Judgments Act, 28 U.S.C. §§ 2201-02, are not jurisdictional in character. Califano v. Sanders, 430 U.S. 99, 106-07, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977) (APA); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 94 L. Ed. 1194, 70 S. Ct. 876 (1950) (Declaratory Judgments Act). Moreover, section 1346, Title 28, United States Code, limits the jurisdiction of the district courts to actions for money damages.
Whether jurisdiction over this kind of action lies under section 1331, Title 28, is unsettled. A corollary issue is whether Executive Order 11491, which governs labor relations between the Executive Branch and its regular employees, is a "law" of the United States for purposes of section 1331. Compare Local 2047, American Federation of Government Employees v. Defense General Supply Center, 573 F.2d 184, 186 n.1 (4th Cir. 1978) (per curiam) (union's action to enforce contract right arises under laws of United States for purposes of section 1331) with Local 1498, American Federation of Government Employees v. American Federation of Government Employees, 522 F.2d 486, 491 (3d Cir. 1975) (E.O. 11491 not a "law" of the United States for purposes of section 1331 jurisdiction over union local's action against parent for misappropriation of funds). The District of Columbia Circuit has indicated that even if the Executive Order is not a law for purposes of section 1331, judicial review of action thereunder may be had under section 1361, Title 28, the mandamus statute, when the agency action complained of "clashes with basic constitutional safeguards." National Association of Government Employees v. White, 418 F.2d 1126, 1129, 135 U.S. App. D.C. 290, 293 (1969).
If plaintiffs have not exhausted applicable administrative remedies, however, the action may be dismissed without consideration of the jurisdictional issue. See Weitzel v. Portney, 548 F.2d 489, 493 (4th Cir. 1977); National Association of Government Employees v. White, supra at 1130, 135 U.S. App. D.C. at 294. Plaintiffs have not disputed the applicability in general of the requirement of exhaustion of administrative remedies; their position is that the Federal Labor Relations Council, the body to which the administrative remedy ultimately runs, has already indicated herein ...