UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

______________________________ 

 ) 

AMERICAN FEDERATION OF ) 

GOVERNMENT EMPLOYEES, ) 

et al., ) 

 Plaintiffs, ) 

 ) 

 ) Civil Action No. 08–692 (EGS) 

 v. ) 

 ) 

SECRETARY OF THE AIR FORCE, ) 

 ) 

 Defendant. ) 

______________________________) 

MEMORANDUM OPINION

 Plaintiffs are the American Federation of Government 

Employees (“AFGE”), fourteen local labor unions chartered by the 

AFGE, and one individual member of AFGE Local 1401. On behalf 

of the affected members, plaintiffs challenge 2007 amendments to 

three Air Force Instructions (the “AFIs”). The amendments to 

the AFIs affected certain Air Force employees, referred to as 

“dual status” technicians because of their status as both 

civilian employees and military reservists, by requiring them to 

wear their military uniforms while performing their civilian 

duties. The Secretary moved to dismiss the complaint or, in the 

alternative, for summary judgment, and plaintiffs filed a crossmotion for summary judgment. Upon consideration of the motions, 

responses and replies thereto, the supplemental memoranda, the 

applicable law, the entire record herein, the arguments by 
2

counsel at the June 2, 2011 motions hearing, and for the reasons 

stated below, the Court GRANTS the Secretary’s motion to dismiss 

and DENIES plaintiffs’ motion for summary judgment. 

I. BACKGROUND

 Air Reserve Technicians (“ARTs”) are civilian military 

technicians employed by the Air Force primarily to provide 

support to wartime deployable reserve units. Compl. ¶¶ 7-9, 12; 

Def.’s Statement of Material Facts Not in Genuine Dispute 

(“Def.’s Statement of Facts”) ¶ 11. Their responsibilities 

include “the organizing, administering, instructing, or training 

of the Selected Reserve or [] the maintenance and repair of 

supplies or equipment issued to the Selected Reserve or the 

armed forces.” 10 U.S.C. § 10216(a)(1)(C). Although ARTs are 

civilian employees, they are required, as a condition of their 

employment, to maintain active membership in the Air Force 

Selected Reserve. As such, ARTs are referred to as “dual 

status” technicians because of their status as both civilian 

employees and military reservists. They receive civilian 

employee pay for their civil service jobs, plus military pay for 

their weekend military duty and summer active military duty 

hours. Compl. ¶ 20; Def.’s Statement of Facts ¶ 15. ARTs can 

be ordered to deploy with their unit if it is mobilized. Compl. 

¶ 16; Def.’s Statement of Facts ¶ 14. 

 The Secretary has the authority to promulgate regulations 
3

“to carry out his functions, powers, and duties.” 10 U.S.C. 

§ 8013(g)(3). Air Force regulations are set forth in 

publications called AFIs, which “are certified and approved at 

the Secretariat or the Air Staff level.” Def.’s Statement of 

Facts ¶ 17. In August 2007, the Secretary made Interim Changes 

to three AFIs, which had the effect of instituting a requirement 

that ARTs wear their military uniform while performing civilian 

duties. See Compl. ¶ 24; AFIs 36-2903, 36-801, & 36-703 

(attached to Def.’s Mot. to Dismiss or in the Alternative for 

Summ. J. (“Def.’s Mot.”) at Exs. A-C). 

 Plaintiffs filed an action in this Court for declaratory 

and injunctive relief. See generally Compl. The three-count 

Complaint challenges the 2007 changes requiring ARTs to wear 

military uniforms when serving in their civilian capacity on the 

basis that the Secretary’s regulations are (1) arbitrary and 

capricious, in violation of the Administrative Procedure Act 

(“APA”), 5 U.S.C. § 706(2)(A); (2) contrary to 10 U.S.C. §§ 771 

and 10216, and 18 U.S.C. §§ 702 and 703; and (3) in excess of 

the Secretary’s statutory authority under 10 U.S.C. § 10216. 

II. STANDARDS OF REVIEW 

On a motion to dismiss for lack of subject-matter 

jurisdiction under Rule 12(b)(1), the plaintiff bears the burden 

of establishing that the court has subject-matter jurisdiction. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). “The 
4

court must address the issue of jurisdiction as a threshold 

matter, because absent jurisdiction the court lacks the 

authority to decide the case on any other grounds.” Am. Farm 

Bureau v. EPA, 121 F. Supp. 2d 84, 91 (D.D.C. 2000). Moreover, 

because subject-matter jurisdiction relates to the Court’s power 

to hear the claim, the Court must give the plaintiff’s factual 

allegations closer scrutiny when resolving a Rule 12(b)(1) 

motion than would be required for a Rule 12(b)(6) motion. 

Uberoi v. EEOC, 180 F. Supp. 2d 42, 44 (D.D.C. 2001). In 

resolving a motion to dismiss for lack of subject-matter 

jurisdiction, the Court “may consider the complaint supplemented 

by undisputed facts evidenced in the record, or the complaint 

supplemented by undisputed facts plus the court’s resolution of 

disputed facts.” Coal. for Underground Expansion v. Mineta, 333 

F.3d 193, 198 (D.C. Cir. 2003) (internal citations and quotation 

marks omitted). 

III. ANALYSIS

 The Court concludes that it lacks subject-matter 

jurisdiction over plaintiffs’ claims because plaintiffs have 

failed to exhaust any of the administrative remedies available 

to them under the Civil Service Reform Act of 1978 (“CSRA”).1

 

 

1

 In its motion to dismiss or in the alternative for summary 

judgment, the Secretary argued that the Complaint must be 

dismissed for lack of subject-matter jurisdiction and failure to 

state a claim upon which relief can be granted. Specifically, 
5

The CSRA provides a remedial scheme to federal employees 

that “protects covered federal employees against a broad range 

of personnel practices” and provides them with “a variety of 

causes of action and remedies . . . when their rights under the 

statute are violated.” Grosdidier v. Chairman, Broad. Bd. of 

Governors, 560 F.3d 495, 497 (D.C. Cir. 2009). Accordingly, 

this Circuit has repeatedly held that the CSRA is “comprehensive 

and exclusive,” and “[f]ederal employees may not circumvent the 

[CSRA’s] requirements and limitations by resorting to the 

catchall APA to challenge agency employment actions.” Id. 

(emphasis added); see also Filebark v. U.S. Dep’t of Transp., 

555 F.3d 1009 (D.C. Cir. 2009)(“Congress, through the [CSRA] and 

related employment statutes, has carefully constructed a system 

for review and resolution of federal employment disputes, 

intentionally providing—and intentionally not providing—

 

the Secretary contended that (1) plaintiffs’ claims raise a 

nonjusticiable political question, and (2) plaintiffs have 

failed to state a cause of action as judicial review is 

unavailable under the APA because Plaintiffs have an adequate 

remedy at law. See Def.’s Mot. at 3-11. Alternatively, the 

Secretary argued that plaintiffs have failed to state a claim 

because they have not adduced any facts showing that the 

Secretary’s decision to require ARTs to wear military uniforms 

when performing civilian duties was (1) arbitrary and 

capricious, (2) contrary to law, or (3) in excess of the 

Secretary’s statutory authority. See id. at 11-16. However, 

because the Court concludes that plaintiffs failed to exhaust 

their administrative remedies, and therefore the Court lacks 

subject-matter jurisdiction over any of plaintiffs’ claims, the 

Court does not reach the other arguments asserted by the 

parties. 
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particular forums and procedures for particular kinds of claims. 

As such, we have held that this comprehensive employment scheme 

preempts judicial review under the more general APA even when 

that scheme provides no judicial relief—that is, ‘what you get 

under the CSRA is what you get.’” (quoting Fornaro v. James, 416 

F.3d 63, 67 (D.C. Cir. 2005))). 

Plaintiffs admit that they could have availed themselves of 

the grievance procedures outlined in § 7121(a)(1) of the CSRA, 

which provides that “[e]xcept as provided in paragraph (2) of 

this subsection, any collective bargaining agreement shall 

provide procedures for the settlement of grievances, including 

questions of arbitrability.” 5 U.S.C. § 7121(a)(1). 

Furthermore, the CSRA states that the grievance procedures 

contained in the collective bargaining agreement “shall be the 

exclusive administrative procedures for resolving grievances 

which fall within its coverage.” Id. The term “grievance” is 

defined very broadly as: 

[A]ny complaint— 

(A) by any employee concerning any matter 

relating to the employment of the employee; 

(B) by any labor organization concerning any 

matter relating to the employment of any 

employee; or 

(C) by any employee, labor organization, or 

agency concerning— 

(i) the effect or interpretation, or a claim 
7

of breach, of a collective bargaining 

agreement; or 

(ii) any claimed violation, 

misinterpretation, or misapplication of any 

law, rule, or regulation affecting 

conditions of employment[.] 

Id. § 7103(a)(9). 

Plaintiffs in the instant case are attempting the same type 

of circumvention of the CSRA as the Circuit rejected in 

Filebark. Conceding that they could have used the negotiated 

grievance procedures outlined in § 7121(a), plaintiffs argue 

that they are nonetheless entitled to proceed directly to this 

Court because the available administrative remedy “would not 

resolve the matter nationally.” Pls.’ Mem. on Exhaustion at 2. 

Plaintiffs assert that they cannot be required to exhaust any 

administrative remedy because no agency has jurisdiction to 

adjudicate their “nationwide claim.” Pls.’ Mem. on Exhaustion 

at 1. 

Even assuming a decision from this Court in this case would 

have nationwide implications, plaintiffs have failed to identify 

any authority entitling them to nationwide relief, nor has this 

Court been able to find any such authority. On the contrary, 

this Circuit has “consistently read the CSRA narrowly, refusing 

to imply remedies that cannot be found in the language of the 

statute” because “[p]ersonnel management is ‘peculiarly within 

the ken and concern of Congress.’” Johnson v. Peterson, 996 
8

F.2d 397, 401 (D.C. Cir. 1993) (quoting Harrison v. Bowen, 815 

F.2d 1505, 1515 (D.C. Cir. 1987)). When Congress intends to 

preserve remedies for federal employees outside the CSRA, “it 

does so expressly; for example, the CSRA maintains federal 

employees’ rights to bring suit under Title VII and other antidiscrimination laws.” Nyunt v. Chairman, Broad. Bd. of 

Governors, 589 F.3d 445, 448 (D.C. Cir. 2009). 

Plaintiffs also argue that, rather than being 

jurisdictional in nature, exhaustion under the CSRA is nonjurisdictional, i.e. waivable at the Court’s discretion. As 

plaintiffs correctly point out, exhaustion requirements are nonjurisdictional unless there is “sweeping and direct statutory 

language indicating that there is no federal jurisdiction prior 

to exhaustion.” Munsell v. Dep't of Agric., 509 F.3d 572, 580 

(D.C. Cir. 2007) (quoting Avocados Plus, Inc. v. Veneman, 370 

F.3d 1243, 1248 (D.C. Cir. 2004)). In the absence of such 

statutory language, “the exhaustion requirement is treated as an 

element of the underlying claim.” Id. (quoting Avocados Plus, 

370 F.3d at 1248). However, this Circuit has made it clear that 

the CSRA does indeed contain such language and that, “under the 

CSRA, exhaustion of administrative remedies is a jurisdictional 

prerequisite to suit.” Weaver v. U.S. Info. Agency, 87 F.3d 

1429, 1433 (D.C. Cir. 1996) (emphasis added); see also Suzal v. 

Director, U.S. Info. Agency, 32 F.3d 574, 585 (D.C. Cir. 1993) 
9

(“[E]xhaustion of the nonjudicial remedies provided under the 

authority of the CSRA is a jurisdictional prerequisite, and 

because section 7121(a)(1) mandates exclusive recourse to the 

CBA's grievance-resolving procedures, [the] failure to have 

pursued arbitration deprives [the Court] of jurisdiction[.]”); 

Fernandez v. Donovan, 760 F. Supp. 2d 31, 34-35 (D.D.C. 2011). 

Plaintiffs assert that the APA gives this Court subjectmatter jurisdiction over their claims, but—as this Court has 

previously explained—“jurisdiction under the APA [i]s precluded 

by ‘the structure of Congress’s employment statutes and the CSRA 

as a whole.’ Otherwise, ‘the exhaustive remedial scheme of the 

CSRA would be impermissibly frustrated[.]’” Ramirez v. U.S. 

Customs & Border Prot., 709 F. Supp. 2d 74, 81 (D.D.C. 2010) 

(quoting Filebark, 555 F.3d at 1013-15). 

Plaintiffs’ claims are accordingly DISMISSED for lack of 

subject-matter jurisdiction. 

IV. Conclusion

 For the reasons stated above, the Court hereby GRANTS the 

defendant’s motion and DENIES plaintiffs’ motion. An 

appropriate Order accompanies this Memorandum Opinion. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 January 27, 2012