United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 26, 2007 Decided June 29, 2007

No. 06-5190

ASSOCIATION OF FLIGHT ATTENDANTS - CWA, AFL-CIO AND

TRANSPORTATION TRADES DEPARTMENT, AFL-CIO,

APPELLANTS

v.

ELAINE L. CHAO,

UNITED STATES SECRETARY OF LABOR AND

MARION C. BLAKEY, ADMINISTRATOR, FEDERAL AVIATION

ADMINISTRATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01850)

Edward J. Gilmartin argued the cause for appellants. With

him on the briefs was Larry I. Willis.

Lewis S. Yelin, Attorney, U.S. Department of Justice, argued

the cause for appellees. With him on the brief were Peter D.

Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S.

Attorney, and Thomas M. Bondy, Attorney. R. Craig Lawrence,

Assistant U.S. Attorney, entered an appearance.
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Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: Two labor organizations appeal

from a district court judgment dismissing their complaint

seeking to compel increased government regulation of airline

flight attendants’ working conditions. Because the unions came

to federal court without first exhausting their administrative

remedies, we affirm the district court’s dismissal of their

complaint.

I. Background

The Occupational Safety and Health Act of 1970 (“OSH

Act”) authorizes the Secretary of Labor, through the

Occupational Safety and Health Administration (“OSHA”), to

establish workplace health and safety standards applicable to

businesses in interstate commerce. 29 U.S.C. § 651 et seq. The

OSH Act provides, however, that “[n]othing in [the Act] shall

apply to working conditions of employees with respect to which

other Federal agencies . . . exercise statutory authority to

prescribe or enforce standards or regulations affecting

occupational safety or health.” Id. § 653(b)(1). The Federal

Aviation Administration (“FAA”) has broad authority to

regulate civil aviation, see 49 U.S.C. § 44701, and in 1975 it

asserted “complete and exclusive responsibility” for the

regulation of occupational health and safety aboard civil aircraft.

Occupational Safety or Health Standards for Aircraft

Crewmembers, 40 Fed. Reg. 29,114 (July 10, 1975). The FAA’s

preemption of OSHA’s regulatory authority extends “from the

time [an aircraft] is first boarded by a crewmember, preparatory

to a flight, to the time the last crewmember leaves the aircraft

after completion of that flight . . . even if the engines are shut

down.” Id.
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In 1990 the Association of Flight Attendants - CWA, AFLCIO filed a petition for rulemaking, requesting that the FAA

apply selected OSHA standards to airline industry

crewmembers. The FAA denied the petition in 1997. The union

did not seek judicial review of that decision. See 49 U.S.C.

§ 46110 (providing judicial review of FAA orders in the federal

courts of appeals). 

In 2000, OSHA and the FAA announced a joint effort to

address aviation crewmember health issues and to assess

whether OSHA standards could be applied to aircraft without

compromising aviation safety. In its first report, the joint FAAOSHA team raised a number of concerns with this jurisdictionsharing approach. The team advised against the FAA ceding its

regulatory authority to OSHA, and in 2003 the FAA launched a

voluntary industry program to gather injury and illness data and

to recommend appropriate FAA rules. Aviation Safety and

Health Partnership Program, 68 Fed. Reg. 10,145 (Mar. 4,

2003).

In 2005, still dissatisfied with the FAA’s approach to

aircraft health and safety regulation, the Association of Flight

Attendants and the Transportation Trades Department - AFLCIO (together, “the unions”) filed suit in federal district court

against the FAA and OSHA. In short, the unions sued to force

the government to increase its regulation of aircraft working

conditions. The unions alleged that the FAA has “affirmatively

declined” to exercise the regulatory authority it asserted in 1975,

with the result that flight attendants face an unacceptably high

risk of on-the-job injury. As against the FAA, the unions

sought, under 28 U.S.C. § 2201, a declaratory judgment that the

FAA “has failed to exercise its asserted authority to regulate and

protect the occupational health and safety of crewmembers . . .

working aboard civil aircraft in operation” and that the FAA

therefore forfeited its jurisdiction over crewmember working
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conditions. As against OSHA, the unions sought a writ of

mandamus, under 28 U.S.C. § 1361, ordering the Secretary of

Labor to step into the void left by the FAA’s inaction and to

“perform her statutory duty under the OSH Act” by setting and

enforcing OSHA standards respecting crewmember health and

safety. 

The government moved to dismiss the complaint, arguing

that the district court lacked subject matter jurisdiction and that

the unions failed to state a claim. The government also disputed

the unions’ claim that the FAA had refused to exercise its

regulatory authority, pointing to a number of FAA regulations

regarding aircraft working conditions. The district court granted

the motion to dismiss, holding that the unions’ claims were not

ripe for judicial review because the unions had not availed

themselves of the administrative procedures by which interested

parties may petition the agencies for a rulemaking. Association

of Flight Attendants - CWA, AFL-CIO v. Chao, No. 05-1850,

2006 WL 1442464 (D.D.C. May 22, 2006). The unions appeal.

Because the unions have not exhausted their administrative

remedies, we affirm.

II. Analysis

“[N]o one is entitled to judicial relief for a supposed or

threatened injury until the prescribed administrative remedy has

been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303

U.S. 41, 50-51 (1938). Broadly speaking, the doctrine of

exhaustion of administrative remedies “serves the twin purposes

of protecting administrative agency authority and promoting

judicial efficiency.” McCarthy v. Madigan, 503 U.S. 140, 145

(1992). The exhaustion requirement ensures that agencies – and

not the federal courts – take primary responsibility for

implementing the regulatory programs assigned by Congress.

Id.; see also McKart v. United States, 395 U.S. 185, 193-95
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(1969). 

In this case, both OSHA and the FAA have broad authority

and discretion, granted by Congress, to gather facts and apply

their expertise to establish standards and regulations in their

respective domains. 29 U.S.C. § 651; National Cong. of

Hispanic Am. Citizens v. Usery, 554 F.2d 1196, 1199-1200

(D.C. Cir. 1977) (OSHA); 49 U.S.C. § 44701; Jifry v. FAA, 370

F.3d 1174, 1176 (D.C. Cir. 2004) (FAA). And both OSHA and

the FAA permit interested parties to participate in the regulatory

process by petitioning for new standards or regulations. 29

C.F.R. § 1911.3 (OSHA); 14 C.F.R. § 11.61 (FAA). Save for a

petition for FAA rulemaking denied ten years ago and informal

efforts to persuade the FAA to their point of view, the unions

did not pursue – much less exhaust – any administrative

remedies before bringing this case in federal court. Because the

unions may petition the agencies directly for the relief they seek

in this lawsuit, they have not exhausted their administrative

remedies.

Typically, exhaustion ensures that imminent or ongoing

administrative proceedings are seen through to completion. But

the exhaustion rule does not contain an escape hatch for litigants

who steer clear of established agency procedures altogether. To

the contrary, exhaustion is especially important where allowing

the litigants to proceed in federal court would deprive the

agency of any opportunity to exercise its discretion or apply its

expertise. See McCarthy, 503 U.S. at 145 (“exhaustion

principles apply with special force when ‘frequent and deliberate

flouting of administrative processes’ could weaken an agency’s

effectiveness by encouraging disregard of its procedures”

(quoting McKart, 395 U.S. at 195)).

Courts have discretion to excuse the requirement where the

litigant’s interest in an immediate judicial forum clearly
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outweighs the institutional interests underlying the exhaustion

requirement. McCarthy, 503 U.S. at 146. See Avocados Plus

Inc. v. Veneman, 370 F.3d 1243, 1247-48 (D.C. Cir. 2004)

(distinguishing discretionary “non-jurisdictional exhaustion”

from “jurisdictional exhaustion” expressly mandated by

Congress). For example, exhaustion may be excused if delaying

judicial review would cause irreparable injury, if the agency is

not competent to address the issue or to grant effective relief, or

if further pursuit of an administrative remedy would be futile.

See McCarthy, 503 U.S. at 146-49; see also Boivin v. U.S.

Airways, Inc., 446 F.3d 148, 157-58 (D.C. Cir. 2006); Avocados

Plus, 370 F.3d at 1247. 

No exception applies in this case. To begin with, having

largely disregarded agency procedures the unions are in no

position to complain of agency delay. It is also clear that the

agencies are competent to address the unions’ concerns: the

unions seek regulation that only the agencies can provide. As

for futility, the unions contend that the FAA has for more than

30 years “refused” to regulate aircraft working conditions,

implying that administrative procedures would be pointless. We

will excuse exhaustion on grounds of futility “only when resort

to administrative remedies is ‘clearly useless.’” Boivin, 446

F.3d at 157 (citations omitted). “[E]ven where a controversy

survives administrative review, exhaustion of the administrative

procedure may produce a useful record for subsequent judicial

consideration, especially in a complex or technical factual

context.” McCarthy, 503 U.S. at 145. See also McKart, 395

U.S. at 194.

The unions contend their case is not about rulemaking but

rather “the legality of the FAA’s asserted jurisdiction” over

flight attendants’ workplace health and safety. This

characterization of the unions’ claim does not affect our

analysis. The unions recognize that the FAA asserted its
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jurisdiction in 1975; their argument is that in the intervening

decades the FAA has unlawfully failed to exercise that

jurisdiction. As discussed above, the FAA’s discretion to issue

regulations is left in the first instance to the FAA, not the federal

courts, and the unions must first challenge the FAA’s exercise

of that discretion before the agency.

We also reject the unions’ request for mandamus relief

against OSHA. Mandamus is an extraordinary remedy; a

plaintiff who shows a clear right to relief that the defendant has

a clear duty to provide must also show that there is no other

adequate remedy available. Even then, relief is in the discretion

of the court. 28 U.S.C. § 1361; In re Medicare Reimbursement

Litigation, 414 F.3d 7, 10 (D.C. Cir. 2005). In this case, the

unions ask the court to exercise its discretion without first asking

the agencies to exercise theirs. Where the law provides a

discretionary remedy before an agency, permitting a plaintiff to

first obtain a discretionary judicial remedy would undermine

agency autonomy and unnecessarily burden the federal courts.

In any event, the unions cannot meet the strict requirements for

mandamus relief. Because the unions have not exhausted their

administrative remedies, they cannot show that they are clearly

entitled to relief or that they have no other adequate remedy.

* * *

Exhaustion, ripeness, and the requirement of final agency

action are related and often overlapping doctrines that limit

challenges to agency action in federal court. See 2 RICHARD J.

PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 15.1 (4th ed.

2002). In this case, the district court held that the unions’ claims

were not ripe for judicial review, relying on the same concerns

we have discussed under the rubric of exhaustion. On the facts

of this case, we think exhaustion is the more appropriate

approach. Lack of ripeness suggests that the unions’ claims are

merely premature. In contrast, dismissal for failure to exhaust
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administrative remedies emphasizes the appropriate forum for

the unions’ request for relief. Here, it is the unions’ resort to

federal court that is premature. In addition, in holding that the

unions’ resort to federal court is premature on the ground of

failure to exhaust, we need not separately discuss whether the

FAA’s action – or inaction – is judicially reviewable final

agency action or falls within an exception to the finality

requirement. 

Because the unions did not exhaust their administrative

remedies, the judgment of the district court dismissing the

complaint is affirmed. 

So ordered.