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September 5, 2003


The opinion of the court was delivered by: Rosemary Collyer, District Judge


The American Federation of Government Employees, AFL-CIO, ("AFGE"), a union dedicated to representing government workers, initiated an organizing drive among airport screeners after Congress ordered that all airport screeners must be federal employees. AFGE filed petitions with the Federal Labor Relations Authority ("FLRA" or "Authority) in November 2002 and thereafter, seeking elections at various airports in the United States; if a majority of the airport screeners voted in favor of AFGE, the Union would become their exclusive collective bargaining representative. The organizing campaign ran into a roadblock in January 2003 when James M. Loy, Under Secretary of the Department of Transportation, determined that airport screeners would not be entitled to engage in collective bargaining (the "Loy Determination").*fn1 Page 2 The Transportation Security Administration ("TSA"), for which the airport screeners work, has argued to the FLRA that the Loy Determination means that the Authority must dismiss the Union's petitions for an election. The Regional Director of the FLRA's Boston Region recently agreed and entered his Decision and Order to that effect on July 7, 2003. Department of Homeland Security and American Federation of Government Employees, AFL-CIO, WA-RP-03-0023 etc. (Decision and Order on Petitions, July 7, 2003) (hereafter "DHS and AFGE").
In the meantime, the Union and an interested airport screener brought this suit in federal court, alleging that the Loy Determination violates the constitutional rights of the airport screeners. They seek a judgment declaring that Mr. Loy did not have statutory authority to issue the Loy Determination. They ask the Court to declare that the Loy Determination deprives affected employees of their rights to free speech and association under the First Amendment and to equal protection under the Fifth Amendment to the Constitution, that it violates the Aviation and Transportation Security Act, Pub. L. 107-71, 115 Stat. 597 (2001) ("ATS A"), and that it is arbitrary and capricious agency action in violation of the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"). In addition, they ask the Court to enjoin Mr. Loy and his subordinates from implementing the Loy Determination.

The Court concludes that the Union's arguments concerning the statutory issues have been, and should be, made in the first instance to the FLRA and then, if needed, to the Court of Appeals. The constitutional claims lack merit and will be dismissed. Page 3

Background Facts

Domestic passenger airplanes were used as lethal weapons by terrorists attacking the United States on September 11, 2001. One part of the Congressional response to these tragedies was passage of ATSA. As relevant here, that meant that Congress ordered that screening of passengers and cargo at commercial airports be conducted by federal employees. ATSA § 111, amending 49 U.S.C. § 44935.

ATSA established the TSA. Section 114(n) of the statute required TSA to adopt the personnel system in place at the Federal Aviation Administration ("FAA"). 49 U.S.C. § 114(n). That system extends the rights to form, join, or assist any labor organization and the right to engage in collective bargaining to FAA employees. See 49 U.S.C. § 40122(b)(2)(C); 5 U.S.C. § 7102(1) & (2). Despite this apparent approval of federal collective bargaining, Section 111(d) of ATSA granted broad authority to the Under Secretary over matters customarily subject to collective bargaining: "Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for" federally-employed airport screeners. 49 U.S.C. § 44935 note.

Beginning in November 2002, AFGE filed a series of petitions with the FLRA seeking elections among airport screeners at various airports and certifications as their exclusive representative for collective bargaining. Those petitions have been opposed by TSA before the FLRA on the basis of a memorandum issued by Under Secretary Loy on January 8, 2003. Mr. Loy determined that federally-employed airport screeners "shall not, as a term or condition of their employment, be entitled to engage in collective bargaining or be represented for the purpose of Page 4 engaging in such bargaining by any representative or organization." Loy Determination, Exh. 1 to Defendant's Motion to Dismiss ("Def.'s Motion"). This lawsuit followed.


The Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq. ("FSLMRS"), extended the right to federal employees to form, join, or assist any labor organization or to refrain from any such activity, 5 U.S.C. § 7102, although certain federal employees are excluded from the statute. 5 U.S.C. § 7103. The FLRA has exclusive authority over conducting elections to determine whether a labor union has the support of a majority of employees in an appropriate unit. See 5 U.S.C. § 7105(2)(A) & (B). The Union's petitions for election and the TSA objection that the Loy Determination deprives FLRA of jurisdiction to conduct any election are therefore properly before that agency. See Karahalios v. National Fed'n of Fed. Employees, 489 U.S. 527 (1989) (when FLRA has exclusive jurisdiction, district courts cannot proceed).

The plaintiffs argue that the election petitions before the FLRA and the claims at issue here are not the same since one "concerns the scope of the Administrator's powers under ATS A" and the other turns on "whether AFGE has made a sufficient showing of interest to warrant an election." Plaintiffs' Opposition to Defendant's Motion to Dismiss at 9 ("Opp."). This argument ignores the nature of TSA's position before the FLRA: without regard to whether AFGE has demonstrated that a sufficient number of airport screeners wants to be represented by the Union, TSA argues that the Loy Determination precludes bargaining and that the FLRA is without jurisdiction. As the Regional Director's Decision and Order demonstrates, the Authority could not decide whether to hold any Page 5 elections without facing foursquare the argument that Mr. Loy has exercised his lawful discretion and that it has no jurisdiction to process the petitions. DHS and AFGE at 19 ("Whether the Authority has jurisdiction to conduct elections pursuant to these petitions is wholly dependent on the meaning of the three statutes at issue here — the ATSA, the HSA,*fn2 and the FSLMRS.") Thus, on the statutory claims raised by this complaint, the basic issue is very much the same before the administrative agency and this Court.

AFGE or TSA will be able to petition the Court of Appeals for review of any adverse final decision by the members of the Authority, assuming that the Regional Director's decision is appealed. SeeSU.S.C. § 7123. Unlike the procedures for the private sector under the National Labor Relations Act, 29 U.S.C. § 151 etseq., a dismissal of the election petitions by the FLRA would be immediately subject to review. Since the Loy Determination, and the parties' statutory arguments about it, can receive a full court hearing should one party appeal from the decision of the FLRA, it is highly improbable that this Court would need to assume jurisdiction to ensure a forum to the plaintiffs. See Sturm, Ruger & Co., Inc. v. Chao, 300 F.3d 867, 874 (D.C. Cir. 2002) (One factor counseling against district court jurisdiction was that "the employer's claims can still `be meaningfully addressed in the Court of Appeals' after the [Occupational Safety and Health Review] Commission has rendered a decision.")*fn3 Page 6 Inasmuch as the fundamental issue of statutory law regards the jurisdiction of the FLRA and the parties are currently litigating those very issues before the FLRA, with court review available, this Court does not have jurisdiction to decide the same claims.
The plaintiffs bring to this Court constitutional claims that they assert raise issues beyond the jurisdiction of the FLRA. The First Amendment claim is based on the alleged effect of the Loy Determination. Plaintiffs state that TSA airport screeners have been chilled in their willingness to engage in organizing activities because of the Loy Determination. See Opp. at 4 (federal screeners have "experienced a chilling effect on their right to organize such that a hostile environment has been created at some airports"), and 7-8 ("directive's transparent chilling effect upon their speech and associational activities"). Their Fifth Amendment claim is based on an alleged violation of the equal protection clause because the airport screeners are "being arbitrarily deprived of their right to participate in protected activities, ostensibly for national security reasons, while other airport workers continue to enjoy this right." Opp. at 8. The plaintiffs initiated the petition process in November 2002, before issuance of the Loy Determination. Therefore, contrary to TSA's argument, it cannot be said that they "elected" their forum for resolution of the constitutional claims.

Nonetheless, the FLRA could probably have considered these constitutional arguments. "When the statutory and constitutional claims are `premised on the same facts' and the [FSLMRS] remedy `would have been fully effective in remedying the constitutional violation,' exhaustion [of administrative remedies] is required. Only in the unusual case in which the constitutional claim raises issues totally unrelated to the [FSLMRS] procedures can a party come directly to district court." Steadman v. Governor, U.S. Soldiers' and Airmen's Home, 918 F.2d 963, 967 (D.C. Cir. 1990) (cites omitted). The "statutory claim" at issue here concerns the rights of airport screeners Page 7 working for TSA to select union representation and engage in collective bargaining. The "constitutional claim" arises from TSA's reliance on the Loy Determination to eliminate these bargaining rights. In reaching his decision, the Regional Director fully considered the rights of federal employees to form, join and assist unions under both the FSLMRS and Section 114(n) of ATS A and compared those to the discretion granted to the Under Secretary by Section 111(d) of ATS A. There appears no reason why the FLRA could not have considered the plaintiffs' constitutional claims in the process. Nat'I Treasury Employees Union v. FLRA, 986 F.2d 537 (D.C. Cir. 1993) (remanding for FLRA consideration of first amendment issues); see also Sturm, Ruger & Co., Inc. v. Chao, 300 F.3d at 874 (administrative adjudicators can determine constitutional claims when "(1) `the reviewing body is not the agency itself but an independent Commission'; (2) the Commission has addressed constitutional claims in previous enforcement proceedings; and (3) the employer's claims can still be `meaningfully addressed in the Court of Appeals' after the Commission has rendered a decision").*fn4

The Court recognizes that there are differences between the statutory and constitutional claims and that, despite the principle of exhaustion of administrative remedies, district courts can assert jurisdiction over "claims considered wholly collateral to a statute's review provisions and outside the agency's expertise." Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994). Plaintiffs seem to have avoided raising their constitutional claims before the FLRA — DHS and AFGE does not mention them — in order to bring them here. They cannot now be added to that case on appeal. DHS and AFGE at 29 ("An application [to the Authority for review] may not raise any Page 8 issue, or allege any facts, not timely presented to the Regional Director."). Therefore, in order to avoid the possibility that constitutional wrongs would have no redress, the Court will resolve those issues even though they might have been argued to the FLRA.

Unfortunately for the plaintiffs, however, their constitutional claims are insubstantial. The Loy Determination does not prevent airport screeners from engaging in organizing activities or joining the Union. Indeed, the Under Secretary instructed employees in a memo contemporaneous to the Loy Determination that "employees are still free to engage in employee organizational activities as long as they do not do so on work time and it does not interfere with our security work or otherwise undermine aviation security." Def.'s Motion, Exh. 4 at 2. Rather, the effect of the Loy Determination is on the other side of the table: it relieves TSA of any obligation to deal or bargain with AFGE. The right of federal employees to require the government to engage in collective bargaining is not constitutional but purely statutory. See Smith v. Arkansas ...

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