UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) ASSOCIATION OF ) ADMINISTRATIVE ) LAW JUDGES , ) ) Plaintiff, ) ) v. ) Civil Action No. 20

- 1026 (ABJ) ) FEDERAL SERVICE ) IMPASSES PANEL, et al. , ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION In this lawsuit, p laintiff , the Association of Administrative Law Judges , challenge s the constitutional legitimacy of the Federal Service Impasses Panel. See Com plaint [Dkt. # 1] (“Compl.”) ¶¶ 41

– 44. D efendants , the Federal Service Impasses Panel and its Chairman , Mark
Carter , and intervenor

- defendant , the Social Security Administration , have move d to dismiss the compl aint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)( 1 )

. Defs.’ Mot. to Dismiss [Dkt. # 22] (“Defs.’ Mot.”). Defendants argue that the judicial review procedures set out in the statute concerning labor relations with the government bar any review of plaintiff’s claims by th e district c ourt. Id. at 6. Because the application of binding D.C. Circuit precedent requires the Court to agree that it lacks subject matter jurisdiction over this dispute , it will grant the motion to dismiss.2 BACKGROUND I. Statutory Framework The Federal Service Labor

- Management Relations Statute, 5 U.S.C. §§ 7101

– 35 (“the
statute” or “FSLMRS” ) , enacted under Title VII of the Civil S ervice Reform Act of 1978, governs labor relations between federal government agencies and their employees. See Am. Fed’n of Gov’t Emps., AFL

- CIO v. Trump , 929 F.3d 748, 752 (D.C. Cir. 2019) (“ AFGE ”), citing Bureau of Alcohol, Tobacco & Firearms v. Fed. Labor Relations Auth. , 464 U.S. 89, 91 (19 83) . The s tatute ensures the “ right of employees to organize, bargain collectively, and participate [in] labor organizations of their own choosing

. ” 5 U.S.C. § 7101(a)(1)

. To that end, the statute called for the creation of several entities and positions , including the Federal Labor Relations Authority, its General Counsel, and the Federal Service Impasses Panel

. Id. § § 7104 , 7119. The Federal Labor Relations Authority (“Authority” or “FLRA” ) is comp ri sed of three members who provide “lea dership . . . and guidance relating to matters” under the s tatute. 5 U.S.C. § 7105(a). They are appointed by the President, with the advice and consent of the Senate, for a term of five years. 1 Id. § 7104(b), (c), (f)(1)

. Among other duties, the Autho rity is assigned to resolve “ issues relating to the duty to bargain in good faith ,” “ conduct hearings and resolve complaints of unfair labor practices ,” and “ take such other actions as are necessary and appropriate to effectively administer the provisions of [the s tatute].” Id. § 7105(a)(2). The Authority is assisted in its duties by the General Counsel. See id. § 7004. Among h is duties, t he General Counsel is called upon to “investigat e alleged unfair labor practices,” “fil e and prosecut e complaints,” and exercis e “other powers” prescribed by the Authority. Id. § 7104(f)(2).

1 Members of the Authority may only be removed “upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 7104(b).3 The Federal Service Impasses Panel (“Panel”) , an entity within the Authority , i ncludes a Chairman and at least six other members, who are appointed by the President

. 2 5 U.S.C. § 7119 (c)(2) . The Panel is intended “ to provide assistance in resolving negotiation impasses between agencies and exclusive representatives. ” Id. § 7119(c)(1). Upon the presentation of a n impasse, the Panel shall “recommend . . . procedures for the resolution of the impasse” or “assist

. . . through whatever methods and procedures” in resolving the impasse. Id. § 7119(c)(5)(A). If the parties do not arrive at a settlement after the Pane l provides assistance, the Panel may take action to resolve the impass e, including hold ing hearings, tak ing testimony under oath, and impos ing contract terms on the parties. See i d. § 7119(c)(5)(B); Nat’l Fed’n of Fed. Emps. v.
FLRA , 789 F.2d 944, 945 (D.C. Cir. 1986)

. The statute provides that u nless the parties agree otherwise, the Panel’s final decision is binding. 5 U.S.C. § 7119(c)(5)(C). The D.C. Circuit has explained that , therefore, a Panel decision is ordinarily “final and nonreviewable. ” Council of Prison Locals v. Brewer , 735 F.2d 1497 , 1499 (D.C. Cir. 1984)

. But

a Panel decision may be reviewed by the Authority if there is an allegation of an unfair labor practice. 3 See 5 U.S.C. § 7118(a)(7)

. If an unfair labor practice is alleged , t he Authority, assisted by the General Counsel, may issue an order reviewing a Panel decision in the context of an unfair labor practice proceedin g
. Id. Once the Authority has issued an order resolving that proceeding ,

2 The Chairman and members are to be appointed by t he President “solely on the basis of fitness to perform the duties and functions involved, from among individuals who a re familiar with Government operations and knowledgeable in labor

- management relations.” 5 U.S.C. § 7119(c)(2). 3 Failure or refusal to cooperate with the Panel or refusal to comply with its decisions may constitute an unfair labor practice. Id. § 7116(a)(6), (8), (b)(6), (8).4 the parties may seek review directly with the federal c ourts of a ppeals. See id. § 7123(a); Brewer , 735 F.2d at 1500

. 4
II. Factual Background Plaintiff , the Association of Administrative Law Judges (“AALJ”), is the “national federal

sector labor union se rving as the exclusive bargaining unit for approximately 1,200 federal administrative law judges who work at the S ocial Security Administration [ (“SSA”) ] throughout the United States. ” Compl. ¶ 28. Over the course of several months in 2019, the AALJ and the
SSA negotiated the terms of a successor collective bargaining agreement. Id. ¶ 30. The parties agreed on numerous articles in the contract, but were unable to reach agreement on nine of them. Id. During the negotiations, the parties sought the assistance of the Federal Mediation and Conciliation Service, which then certified that the parties were at impasse on the remaining ni ne articles. Id. ; Def s .’ Mot. at 9

. In October 2019, the SSA requested that the Panel assert jurisdiction over the dispute. Compl. ¶ 31. Plaintiff objected to the Panel’s jurisdiction , claiming that the Panel lacked authority to issue a decision becau se the members’ appointment violated the Appointments Clause of the Constitution. Id. ; see U.S. Const. a rt. II, § 2, cl. 2. Specifically, plaintiff complained that the
P anel ’s members had been appointed without the required advice and consent of the Sena te. Compl. at 1.
On January 9, 2020, the Panel notified the parties via email that it would assert jurisdiction over the impasse

. Compl. ¶ 32. On January 10, 2020, plaintiff filed a motion with the Authority

4 Alternatively, a party may submit an unfair labor practice complaint to an arbitrator. Id. § 712 1 (a). The arbitrator’s decision is then subject to review by the Authority, and a determination by the Authority is then reviewable by the appropriate court of appeals. Id. § 7122 (a).5 to stay the proceedings before the Panel, pe nding resolution of its jurisdictional objections. Id. ¶ 33. Despite plaintiff’s objections, o n January 24, 2020, the Panel issued a letter to both parties officially asserting jurisdiction over eight of the nine issues at impasse and ordering the parties to attempt to resolve the ninth. Id. ¶ 34; Defs.’ M ot . at 9. None of the Panel’s communications addressed AALJ’s jurisdictional objections

. Compl. ¶ 34.
On Janua ry 30, 2020, the AALJ filed suit in the Fourth Circuit Court of Appeals asking the court to review the Panel’s assertion of jurisdiction, and to stay the Panel’s proceedings until the jurisdictional issue was resolved. See Defs.’ M ot . at 9

– 10. The circui t court dismissed the petition and denied the request for a stay. See i d. On March 31, 2020, the Authority also denied the AALJ ’s request for a sta y, concluding that because Panel orders are “not directly reviewable” by the Authority , a stay was not
appro priate. Compl. ¶ 35; s ee 71 F

. L

. R

. A

. No. 123 (March 31, 2020) . On April 15, 2020, the Panel issued its final decision on the impasse. Compl. ¶ 36. It rejected all of the plaintiff ’s jurisdictional objections and adopted the SSA ’s proposals “on the majority of the key disputed
terms.” Id. ¶ ¶ 38

– 37.
III. Procedural Background On April 20, 2020, five days after the Panel ruled on the impasse, the AALJ filed a complaint in this Court asserting jurisdictional and constitutional challe nges to the Panel’s authority. See Compl. at 1. On April 24, 2020, plaintiff filed a motion for a preliminary injunction , Mot. for Prelim. Inj. [Dkt. # 5] (Corrected) [Dkt. # 8] , which the Court consolidated with the merits pursuant to Fed eral R ule of Civ il Proc edure 65(a)(2). See Minute Order (Apr. 28, 2020). On May 4, 2020, the Social Security Administration filed an unopposed motion to intervene as a defendant [Dkt. # 18], which was granted . Minute Order (May 5, 2020).6 On May 6, 2020, defendants filed a motion to dismiss for lack of subject matter jurisdiction.
See Defs.’ Mot. at 1. Plaintiff oppos ed the motion, Pl.’s Opp. to Mot. to Dismiss [Dkt. # 25] (“Pl.’s Opp.”) , de fendants replied, Defs.’ Reply to Pl.’s Opp. [Dkt

. # 30] , and this motion is ripe for decision. 5
STANDARD OF REVIEW In evaluating a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6) , the Court must “treat the complaint’s fa ctual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation omitted), quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am

. Nat ’l Ins. Co. v. FDIC , 642 F.3d 1137 , 1139 (D.C. Cir. 2011), quoting Thomas v. Principi , 394 F.3d 970, 972 (D.C. Cir. 2005) (applying principle to a Rule 12(b)(1) motion)

. Nevertheless, the Court n eed not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions. Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002) (rule 12(b)(6) case); Food and Water Watch, Inc. v. Vilsack , 808 F.3d 905, 913 (D.C. Cir. 2015) (rule 12(b)(1) case)

. Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992); Shekoyan v. Sibl e y Int’l Corp. , 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited

5 The Court deemed the motion for preliminary injunction to be plaintiff ’s motion for summary judgment, Minute Order (Apr. 28, 2020) , which the parties also briefed. See Defs.’ Opp. and Cross

- Mot. for Summ. J. [Dkt. ## 23 and 24]; Intervenor

- Def.’s Mot. for Summ. J. [Dkt. # 26]; Pl.’s Reply and Cross

- Opp. to Def.’s Mot. for Summ. J. [Dkt. # 31]; Def.’s and Intervenor

- Def.’s Reply [Dkt. # 32]

.7 jurisdiction , and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am

. , 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA , 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with

an examination of our jurisdiction.”). “[ B ] ecause subject

- matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject

- matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia , 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir

. , Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702 (1982)

. When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the all egations of the complaint.” Hohri v. United States , 782 F.2d 227, 241 (D.C. Cir. 1986) , vacated on other grounds , 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [ of ] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics , 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Scis

. , 974 F.2d 192, 197 (D.C. Cir. 199 2 ); see also Jerome Stevens Pharms

. , Inc. v. FDA , 402 F .3d 1249, 1253 (D.C. Cir. 2005).
ANALYSIS The Federal Service Labor

- Management Relations Statute makes Panel decisions “binding on [the] parties . . . unless [they] agree otherwise.” 5 U.S.C. § 7119(c)(5)(C). Although the statute provides for judicial r eview of decisions by the Authority, id. § 7123, there is no provision for judicial review of Panel decisions. See id. ; Antilles Consol. Educ. Ass’n v. FLRA , 977 F.3d 10, 14 (D.C. Cir. 2020) (holding that Panel orders “are not directly reviewable in court”). Further , the

s tatute “forecloses the assumption of general federal question or mandamus jurisdiction” for the purpose of reviewing Panel decisions. Bre wer , 735 F.2d at 1499. A dissatisfied party may “ obtain8 judicial review by violating a Panel order and then seeking review of any ensuing [Authority] order finding an unfair labor practice .” Antilles Consol. Educ. Ass’n , 977 F.3d at 14 , citing 5 U.S.C. § 7123(a) ; Brewer , 73 5 F.2d at 1500. Defendant asserts that given these provisions, a district court does not have jurisdiction over this case. It moves to dismiss for lack of subject matter jurisdiction because in its view, the complaint seeks review of a Panel decision, albeit indirectly, outside of the exclusive statutory scheme. Defs.’ Mot. at 1

– 2 . P laintiff submits that the s tatute’s provisions do not apply because it is not seek ing review of a specific Panel decision ; rather, it is contest ing the Panel’s overall authority under the Constitution, raising “a single Appointments Clause challenge and seek[ing] no judicial review of any Panel order.” Pl.’s Opp. at 2 . It argues that the Court has jurisdiction under National Air Traffic Controllers Ass’n v. Federal Service Impasses Panel (“NATCA II”) , in which the D.C. Circuit held that district courts have jurisdiction over claims challenging the Panel’s authority, so long as they do “no t entail reviewing a decision of the Panel.” 606 F.3d 780, 787 (D.C. Cir. 2010) ; Pl.’s Opp. at 3. Defendants insist that plaintiff is required to present its claim to the agency first and then appeal the agency’s decision to the Circuit , notwithstanding the nature of the claim. They point to case law that suggests this principle applies even if what plaintiff is trying to do is challenge the agency’s constitutional authority to render the decision in the first place

– as opposed to the merits of the decision

– and even if the agency tribunal would demur on the grounds that it lacked authority to rule on that issue, because plaintiff could then bring the matter to th e Circuit. See Defs.’ Mot . at 16 , citing AFGE v. Trump , 929 F. 3d 748, 758 (D.C. Cir. 2019). When a statute specifically provides for administrative and judicial review “ it is ordinarily supposed that Congress intended that procedure to be the exclusive m eans of obtaining judicial9 review

. ” City of Rochester v. Bond , 603 F.2d 927, 931 (D.C. Cir. 1979) . To determine whether a statutory scheme is the exclusive means of obtaining judicial review, courts consider whether (i) congressional intent is “fairly di scernible in the statutory scheme,” and (ii) the claims are “of the type Congress intended to be reviewed within [the] statutory structure.” Thunder Basin Coal Co. v. Reich , 510 U.S. 200 , 207, 212 (1994)

. Here, plaintiff does not dispute the obvious congressional intent to provide for exclusivity

. The s tatute “ provides the exclusive procedures by which federal employees and their bargaining representatives may assert federal labor

- management relations claims.” Am. Fed’n Gov’t Emps. v. Sec’y of the Ai r Force , 716 F.3d 633, 636 (D.C. Cir. 2013) (“ Air Force ”) ; see 5 U.S.C. §§ 7116

– 1 9, 7121

– 22. Thus, the first element of the Thunder Basin inquiry is satisfied. The parties dispute how to apply the second principle identified in Thunder Basin : whether plaintiff’s claims are “of the type Congress intended to be reviewed within [the] statutory
structure.” 510 U.S. at 207, 212; see also AFGE , 929 F.3d at 755 ; Jar kes y v. SEC , 803 F.3d 9, 15 (D.C. Cir. 2015)

. A statute does not preclude judicial review if “ (1) a finding of preclusion might foreclose all meaningful judicial review; (2) the claim[s] [are] wholly collateral to the statutory review provisions; and (3) the claims are beyond the expertise of the agency.” AFGE , 929 F.2d
at 755 , citing A rch Coal, Inc. v. Acosta , 888 F.3d 493 , 500 (D.C. Cir. 2018). These factors are not

“ three distinct inputs [of] a strict mathematical formula ,” but they serve as “ general guideposts useful for channeling the inquiry .” Jarkesy , 803 F.3d at 17. While the Court might have been inclined to conclude that the fundamental constitutional claim at issue here was not what Congress had in mind when it established review procedures for the resolution of individual labor disputes , there is Circuit authority that gove rns th at determinatio n10 and compels a finding that plaintiff’s claims are “of the type Congress intended to be reviewed ” within the statutory structure for purposes of the Thunder Basin analysis. 510 U.S. at 212

. AFGE v. Trump was a case brought by a federal employee union in 2019 challenging three executive orders affecting federal collective bargaining negotiations. 929 F.3d at 75 3

. The district court held that it had subject matter jurisdiction over the matter, rejecting t he argument that jurisdiction belonged exclusively to the Authority and then the C ourt of A ppeals. Id. at 754. It then decided the case on the meri ts, h olding that nine provisions of the challenged executive orders violated the statute, enjoin ing the exe cutive branch from implementing them. Id. On appeal, t he D.C. Circuit reversed

. Id. at 761.
A nalyzing each of the Arch Coal factors , the D.C. Circuit first held that “meaningful judicial review” was available “ even though AFGE and its local unions could not obtain immediate review of their ‘pre

- implementation’ claims” before the Authority or obtain their preferred form of relief. Id. at 756 , citing Air Force , 716 F.3d 63 7

– 38 (explaining that an aggrieved union may raise a claim with the Authority as a negotiability dispute under 5 U.S.C. § 7117(c), a grievance proceeding under 5 U.S.C. § 7121, or a unfair labor practice claim under 5 U.S.C. §§ 7116(a),
7118 (c), which can then be appealed to the appropriate circu it court)

. Accordingly, the Court found the unions could o b tain judicial review “by litigating their claims through the statutory scheme in the context of concrete bargaining disputes .” Id. at 757. The Court went on: [W]e need not map the precise contours of the FLRA’s authority to adjudicate the claims in this case. For even if the FLRA could not address the claims, circuit courts could do so on appeal from the FLRA. The statutory scheme provides that the courts of appeals “shall have jurisdicti on of the [FLRA] proceeding and of the question determined therein” and “may make and enter a decree affirming and enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the [FLRA].” 5 U.S.C. § 7123(a), (c). A lso, the courts of appeals generally may not11 consider objections that were not at least “urged” before the FLRA. Id. § 7123(c). Id. at 758 . The Court specifically noted that it is not unusual for an appellate court reviewing an agency decision to consi der a constitutional challenge to a federal statute that the agency found it lacked authority to decide. Id ., citing Elgin v. Dep’t of Treasury , 567 U.S. 1, 18 n.8 (2012) ; see also Jarkesy , 803 F.3d at 19 (holding that because plaintiff’s constitutional claims can eventually reach an Article III Court, “it is of no dispositive significance whether the [agency] has the authority to rule on them in the first instance during the agency proceedings”).
Th e AFGE opinion also makes it clear that a union must start at the administrative level

even if it is seeking a form of review or relief that is unavailable under the statute

. AFGE , 929 F.3d
at 756

– 57, citing Air Force , 716 F.3d at 639 ( district court lacked jurisdiction even though the union so ught to challenge a particular regulation on a “nationwide” basis under the APA rather than “on a concrete ‘local

- by

- local’ basis” through the Authority). The Circuit emphasized that in the Air Force case, “ [t] he statutory scheme provided no way to assert such a ‘ nationwide ’ attack, but that did not mean [the plaintiff] could resort to the courts.” Id. , citing Air Force , 716 F.3d
at 638. As for the second consideration, the Court found that “ f or many of the same reasons, ” the plaintiffs ’ claims were not “ wholly collateral ” to the statutory scheme

. AFGE , 929 F.3d at 759. While the second Arch Coal factor seems to ask a different question, the Circuit observed that th e factor is “related” to whether “meaningful judicial review” is available ; according to the AFGE opinion, the two are sometimes analyzed together , and this consideration is examined by asking whether a plaintiff seeks the same relief it could seek in the agency proceeding. Id. at 759

– 60 , citing Jarkesy , 803 F.3d at 22

– 23 and E lgin , 567 U.S. at 22. After that discussion, the Court12 conclude d that the claims about the challenged executive orders were not “wholly collateral” because they were the type of claim “regularly adjudicated” in the statutory scheme. Id. at 76 0. Finally, it found that the claims fell within the expertise of the agency because “[m] any of the claims” allege that the executive orders direct ed agencies to refus e to bargain over mandatory subjects or tak e actions inconsistent with the duty to bargain i n good faith , in violation of the

s tatute

. Id

. The Court held these were the type of matters the Authority determined in the “ordinary course of business.” Id. , citing Jarkesy , 803 F.3d at 28. Applying the precedent set by the Court of Appeals in AFGE, the Court concludes that plaintiff’s claims fall within the s tatut ory scheme and that it lacks subject matter jurisdiction. Another court in this district has recently come to the same conclusion

. S ee Nat’l Veterans Affairs Council v. Fed. Svc. Impasses Panel , 1:20

- cv - 00837

- CJN (D.D.C. Feb

. 10, 2021).
I. Meaningful judicial review is not foreclosed . Plaintiff asserts that the Court has jurisdiction because the F S LM R S prevents part ies from “meaningfully pursuing their constitutional claims

. ” Pl.’s Opp. at 8 , citing Free Enterprise , 561 U.S. at 490. This contention echoes the union’s position in AFGE , where the employees’ organization argued that because constitutional “systemwide” or “nationwide” challenges could not be brought and resolved through administrative review on a case

- by

- case basis, the statute did not provide for meaningful judicial review. See 929 F. 3d at 755

– 57. But the s tatute does provide for review of Panel decisions through the unfair labor practice procedures , and that process eventually leads to the Court of Appeals

. See 5 U.S.C. § 7123(a)

. This means, according to the decision in AFGE, that meaningful judicial review is available , even if the statute makes it

“ impossible to obtain particular forms of review or relief .” AFGE , 929 F.3d at 756

– 57 ( emphasis omitted ) ; s ee id. at 754 (unions “ must pursue their claims through the scheme established by the13 s tatute, which provides for administrative review by the [Authority] followed by judicial review in the courts of appeals ” )

. Under the terms of the statute, plaintiff may obtain judicial review of its constitutional claim by violating the Panel’s order, then seeking review of the Authority’s ensuing order finding that it had engaged in an unfair labor practice. Ant illes Consol. Educ. Ass’n , 977 F.3d at 14. Plaintiff argues that being relegated to this procedure forecloses meaningful judicial review because it “forc [es] a person to ‘incur a sanction,’” and “potentially risk ‘severe punishment

. ’” Pl.’s Opp. at 8 ( em phasis omitted ) , quoting Free Enterprise , 561 U.S. at 490

– 91. In Free Enterprise , though, the plaintiff would have had to risk being c onvicted of a federal crime punishable by up to twenty years of imprisonment or a $25 million fine before he could seek judicial review, 561 U.S. at 485

– 86, so the situations are not analogous

. T he Court agrees that the unfair labor practice procedure is time consuming and ill

- suited to resolving the discrete constitutional claim raise d, but jumping through those hoops w ill not place plaintiff in jeopardy of punitive sanctions. See F.E. Warren Air Force Base Cheyenne, WY , 52 F

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. 149, 16 0

- 6 1 (1996) ( stating that remedies for unfair labor practices must be non

- punitive , and th at “tr aditional” remedies include “a cease

- and

- desist order accompanied by the posting of a notice to employees”). Plaintiff also argues that th e procedure cannot be found to offer meaningful review becaus e if it were to defy the Panel in order to trigger an unfair labor practice allegation , it would be the agency’s General Counsel who would have to decide to bring a compla int , and the General Counsel might, in his discretion, decline to do so . Pl.’s Opp. at 8. But this argument is speculative , a nd the statute provides a n alternative avenue for plaintiff to obtain review in any event. It may submit an unfair labor practice action to an arbitrator, whose decision is reviewable by the Authority, and then by a court of appeals. See 5 U.S.C. §§ 7122 (a), 7123(a) . Accordingly, while judicial review14 may be delayed, it is not foreclosed. S ee Nat’l Veterans Affairs Council , 1:20

- cv - 00837

- CJN ; Air
Force , 716 F.3d at 638 ( “ [I] t is the comprehensiveness of the statutory scheme involved, not the adequacy of specific remedies thereunder, that counsels judicial abstention.” ). 6 Thus, meaningful judicial review of the claim is not foreclosed

. AFGE , 929 F.3d at 755 ; s ee also id. at 756

– 57 ( a broad constitutional attack on the Panel may not be used t o “circumvent the scheme established by the Statute” ).
II. Plaintiff’s claims are not w holly collateral . The AFGE decision also requires the Court to find that p laintiff’s claims are not “wholly collateral” to the statutory scheme. AFGE , 929 F.3d at 755. Courts consider whether claims are “wholly collateral” by determining whether a party’s claims are “aimed to obtain the same relief [it] could seek in the agency proceeding.” Ja r k

es

y , 803 F.3d at 23, citing Elgin , 567 U.S. at 22; see also NATCA II , 603 F.3d at 787. Specifically, courts consider whether a complaint “identifies , ” or a court’s decision would “reverse , ” a specific decision of the Panel. See NATCA II , 603 F.3d at 787

. If the complaint identifies, and the Court’s decision would impact, a sp ecific Panel decision, the claims are not wholly collateral, and “[t]here can be no doubt . . . [this] [C]ourt lacks jurisdiction.” Id. If the complaint “identifies no specific decision of the [Panel],” the challenge may be subject to review in a distric t court. I d.
P laintiff relies on NATCA II , a case that preceded AFGE , for the proposition that claims not seeking review of a Panel decision are wholly collateral and subject to a district court’s jurisdiction. Pl.’s Opp. at 3, citing 606 F.3d at 787 (“ In [ NATCA II ] , the D.C. Circuit held that

6 Plaintiff also argues that the General Counsel po sition is currently unfilled, Pl.’s Opp. at 8, but that is a temporary circumstance and not a statutory impediment to review

.15 district courts may properly exercise jurisdiction over actions against the Impasses Panel, like this one, that do ‘ not entail reviewing a decision of the Panel. ’ ” ) . However, NATCA II is distinguishable from this case for two reasons . First, and i mportantly , NATCA II , involved a challenge to “ongoing policy” of the Panel, and the specific impasse in question “was resolved” prior to seeking review in the district court

. 606 F.3d at 786, n.*. Second , t he cas e did not involve any challenge, either directly or indirectly, to a specific Panel decision. See id. at 787. In fact, in
NATCA II , there was no specific Panel decision referenced in the complaint. Compare id. at 786, with Compl. ¶¶ 36

– 40 (referencing t he April 15, 2020 Panel decision affecting plaintiff, including specific details of the decision that are unfavorable to plaintiff). Here, plaintiff asserts that its challenge involves a “lone constitutional claim” alleging Panel members were appointed i n violation of the Appointments Clause. Pl.’s Opp. at 3. But the plaintiff devotes a significant portion of the complaint to discussing a specific , and unfavorable, Panel decision

– the April 15, 2020 decision

. 7 See Compl. ¶¶ 36

– 40. Furthermore, t he complaint asks th e Court to declare Panel decision s “null and void” and to “ [ e ] njoin the Panel . . . from issuing, giving effect to, or otherwise enfor cing a Pan el decision.” Id. at 11. 8

7 Notably, this suit was filed five days after the Panel’s decision. Compl. at 1.
8 For the same reasons, plaintiff’s attempt to distinguish Brewer , 735 F.2d at 1498 , and Nat ’ l Air Traffic Controllers Ass ’ n v. Fe d. Serv

. Impasses Panel , 437 F.3d 1256 , 1262

– 63 (D.C. Cir. 2006) (“ NATCA I ”), fail. Those cases held that Congre ss precluded direct judicial review of Panel decisions, and plaintiff attempts to distinguish them on the grounds that they involve d appeals of specific Panel decisions , wh ile this one does not

. S ee Pl.’s Opp. at 5

– 6 . But p laintiff ultimately seeks the invalidation of the Panel’s April 15, 2020 decision. See Compl. ¶ ¶ 36

– 40; id. at 11 ; Mot. for Prelim. Inj. (Corrected) [Dkt. # 8] at 1 (stating that plaintiff “urgently seeks an injunction to prevent implementation of extreme, draconian restrictions impo sed on the Association on April 15 by the Federal Service Impasses Panel”).16 Given the relief the union is seeking, pl aintiff’ s challeng e can be fairly characterized as a “vehicle by which” plaintiff seeks invalidation of a Panel decision, rather than a “lone constitutional claim

. ” Jar kes y , 803 F.3d at 23. If the Court were to grant the relief plaintiff requests, it would revers e and invalidate the April 15, 2020 Panel decision in circumvention of the statutory scheme. This means that under circuit precedent, the claims are not wholly collateral to the statutory review scheme for purposes of the second prong of Thunder Basin

. I d. , citing Elgin , 567 U.S. at 22 ; s ee also 5 U.S.C. § § 7118, 7123(a) ; NATCA II , F.3d at 787. 9
III. Agency expertise Finally, p laintiff asserts that its claims are “beyond the expertise” of the Authority. Pl.’s Mot. at 12, n.4, cross - referencing Pl.’s Mot. for Prelim. Inj. (Corrected) [Dkt. # 8] at 27

- 31 , citing Arch Coal , 888 F.3d at 500. And there is no question that it is federal district courts, and not the Authority, that spend their days resolving constitutional claims. B ut the Authority’s expertise on constitutional issues “ is not determinative

. ” Jarkesy , 803 F.3d at 28

– 29 , citing Elgin , 567 U.S. at
22

– 2 3. “[S] o long as a court can eventually pass upon the [constitutional] challenge, limits on an
agency ’ s own ability to make definitive pronouncements

. . . do not preclude requiring the challenge to go through the administrative route. ” Id. at 18, citing Elgin , 567 U.S. at 17

– 18. 10

9 The Court of Appeals noted in Jarkesy that “[t] he result might be different if a constitutional challenge were filed in court before the initiation of any administrative proceeding (and the plaintiff could establish standing to bring the judicial action) .” 803 F.3d at 23, citing Free Enterprise , 561 U.S. at 490, but that may provide little comfort given the rigors of the prerequisites for Article III standi ng. 10 The Court notes that the Authority has some experience considering constitutional claims

. S

ee, e.g., U.S. Dep’t of Def. Educ

. Activity, Arlington, Va ., 56 F

. L

. R

. A

. 119, 120, 122 (2000) ( determining that a Panel order “ would violate the Appropriat ions Clause, the doctrine of separation of powers and the doctrine of sovereign immunity contained in the United States Constitution ”).17 In sum , then, the Court must find that plaintiff’s claims are “of the type Congress intended to be reviewed within [the] statutory structure.” Th under Basin Coal Co. , 510 U.S. at 207, 212; see also AFGE , 929 F.3d at 755; Jarkes y , 803 F.3d at 15. They “fall within the exclusive statutory scheme ,” and plaintiff “may not bypass [t he s tatute] by filing suit in [this Court] .” AFGE , 929 F.3d
at 761. Accordingly, the Court does not have jurisdiction over this matter.
CONCLUSION For the foregoing reasons, defendants’ motion to dismiss for lack of subject matter jurisdiction [Dkt. # 22] is GRANTED . Further, plaintiff’s motion for preliminary injunction /summary judgment [Dkt. # 5], d ef endants’ c ross -motion for summ ary judgment [Dkt. # 23], and intervenor

- defendant’s cross

- motion for summary judgment [Dkt. # 26] a re DENIED as moot. A separate order will issue.

AMY BERMAN JACKSON United States District Judge DATE: May 19, 2021