Appeal from the Superior Court of the District of Columbia (CA-4334-05) (Hon. Anna Blackburne-Rigsby, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before KRAMER and FISHER, Associate Judges, and BELSON, Senior Judge.
The American Federation of Government Employees (AFGE) is appealing an order of the Superior Court granting the motion of the District of Columbia Water and Sewer Authority (WASA) to dismiss a suit for attorneys fees that AFGE had filed under the Back Pay Act of 1966, 5 U.S.C. § 5596 (2000) (BPA). The claim for attorneys fees was based on AFGE having successfully engaged in arbitration on behalf of one of its members who had been suspended from his job at WASA. AFGE now asserts that the Superior Court erred in ruling that the Back Pay Act (the Act) did not grant an independent cause of action for attorneys fees, and that AFGE was required to exhaust its administrative remedies before seeking judicial relief. We affirm.
This case arose after AFGE filed two grievances in 2004 on behalf of one of its members, Charles Taylor, a WASA employee. Taylor had become involved in a dispute with a supervisor at WASA that culminated in the supervisor assaulting him. During WASA's internal investigation of the event, Taylor told WASA's human resources director and one of its attorneys that the same supervisor had put his hands on him previously. Taylor then said, "[I]f he does that again, what am I going to do?"As a result, Taylor was accused of threatening the supervisor and placed on indefinite administrative leave. He was also required to undergo a "fitness for duty [i.e., mental health] evaluation" as a condition of his return to work. AFGE claimed that WASA's actions violated various provisions of its Collective Bargaining Agreement with WASA. The matter went to arbitration, and after an evidentiary hearing, the arbitrator determined that under the Collective Bargaining Agreement Taylor had a right to return to work immediately, to recover his lost wages, and to have his leave and other benefits reinstated. The arbitrator denied AFGE's request for attorneys fees, however, ruling that AFGE had "not demonstrated that [he] ha[d] any source of authority to make such an award."
Rather than appeal the arbitrator's order to the Public Employees Relations Board (the Board), see D.C. Code § 1-605.01--.04 (2001), AFGE filed an independent action in the Superior Court to recover the attorneys fees expended in connection with the successful arbitration, claiming a right to attorneys fees under the Back Pay Act. WASA then moved to dismiss or, in the alternative, for summary judgment. The trial court held that the Board had exclusive jurisdiction pursuant to the Comprehensive Merit Personnel Act (CMPA), see D.C. Code § 1-601.01--636.03 (2001 & Supp. 2007), to hear the claim for attorneys fees because they arose out of a grievance filed pursuant to the collective bargaining agreement between AFGE and the District of Columbia. The trial court concluded that because AFGE had not exhausted its administrative remedies, the Superior Court lacked subject matter jurisdiction. In addition, the trial court ruled that "[t]he Back Pay Act does not provide a private right of action"; that it is derivative, rather than jurisdictional; and that "[t]his Court lacks the independent authority to award AFGE attorney's fees absent some other provision mandating the Court to award attorney's fees." We affirm.
AFGE asserts that "[t]he Court's conclusion that it lacked subject matter jurisdiction to hear the complaint because AFGE had failed to exhaust its administrative remedies is erroneous." Moreover, it contends that the arbitrator's decision "was correct" in concluding that "he did not have the authority to order the payment of such fees"(a statement that goes considerably beyond the arbitrator's position that AFGE had failed to provide him with "any source of authority" to justify his award of attorneys fees); that the Board's "jurisdiction is limited to whether the arbitrator acted within his authority;" and that "nothing could be gained by seeking review of a decision of the arbitrator that the collective bargaining agreement did not authorize him to award attorney's fees."
Citing United States v. Testan, 424 U.S. 392, 407 (1976), AFGE contends that the Superior Court has "independent authority to award such fees pursuant to the Back Pay Act." But Testan is a decision that pre-dated by three years the passage of the District's Comprehensive Merit Personnel Act, never mentioned the District's court system, and addressed an issue not analogous to what is raised in this case.*fn1 Thus, it provides us no guidance for resolution of the issues here.
WASA, on the other hand, while acknowledging that the Back Pay Act provides, inter alia, that an employee of an agency found by appropriate authority under a collective bargaining agreement to have been economically harmed by an unwarranted or unjustified personnel action may recover reasonable attorneys fees, nevertheless argues that only "'the appropriate authority' who determined the personnel action was unjustified or unwarranted" can award such fees. Thereafter, "[i]f the employee or his representative is dissatisfied with the appropriate authority's award, he may seek further administrative and/or judicial review in accordance with the applicable appeal procedures." In this case, WASA argues, that meant "the Union's sole recourse . . . was to appeal the arbitrator's decision [concerning attorneys fees] to the [Board] and, if necessary, seek judicial review of the [Board's] decision in Superior Court." According to WASA, "[t]he Union does not - and cannot - cite any case in which a court allowed a civil action for attorney's fees under the Back Pay Act to proceed where there were administrative remedies that had not been exhausted." The Superior Court's jurisdiction in such proceedings, according to WASA, "is limited . . . to appellate review."
The pertinent provision of the Back Pay Act reads:
An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under . . . [a] collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee . . . is entitled, on correction of the personnel action, to receive . . . reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice of a ...