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File Name: 07a0150p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

TEODORO TOLEDO and JOSEPH TUCKER,

Plaintiffs-Appellants,

v.

ALPHONSO JACKSON, Secretary, United States

Department of Housing & Urban Development,

Defendant-Appellee.

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No. 06-5887

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 04-00466—John G. Heyburn II, Chief District Judge.

Argued: March 15, 2007

Decided and Filed: May 1, 2007 

Before: KENNEDY, MARTIN, and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Michael L. Boylan, Louisville, Kentucky, for Appellants. Terry M. Cushing,

ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee. ON BRIEF:

Michael L. Boylan, Louisville, Kentucky, for Appellants. Terry M. Cushing, Monica Wheatley,

ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.

_________________

OPINION _________________

SUTTON, Circuit Judge. Teodoro Toledo and Joseph Tucker claim that the United States

Department of Housing and Urban Development (HUD) breached their rights under a collective

bargaining agreement. Because Toledo and Tucker failed to establish the district court’s jurisdiction

over their suit, we affirm.

I.

Toledo and Tucker tried, and failed, to obtain “community builder” positions within HUD.

After HUD rejected their transfer applications, the American Federation of Government Employees

(the union) asked HUD on behalf of Toledo and Tucker to release the placement records that it had

considered in filling the positions. Unsatisfied with HUD’s response, the union filed a complaint

with the Federal Labor Relations Authority, after which the Authority ordered HUD to provide

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No. 06-5887 Toledo, et al. v. Jackson Page 2

additional records to the union. While HUD provided some of the relevant records, it failed to send

all of them. “Despite a diligent search,” the agency explained, it “was unable to locate all of the

competitive placement records.” JA 50.

Toledo, Tucker and Deborah Knight—a third unsuccessful community-builder

applicant—responded by pursuing a grievance against HUD under the union’s collective bargaining

agreement. Lisa Lowery, the president of the local union chapter, filed the grievance on their behalf.

During step one of the three-step grievance procedure, Lowery and Deborah Swann, a HUD

representative, negotiated a settlement agreement. The agreement (1) granted Toledo, Tucker and

Knight “[p]riority [c]onsideration” for future vacancies at HUD and (2) acknowledged that the

settlement “constitute[d] a waiver of all appeal rights respective of this action to any Federal

administrative agency or Federal court.” JA 53.

Apparently unsatisfied with this resolution of the grievance, Toledo and Tucker (though not

Knight) filed a claim in federal court alleging that HUD violated their rights under the collective

bargaining agreement. Their complaint repeated, word for word, the allegations in the grievance

filed with the agency. The district court dismissed the case, concluding that no statute granted it

jurisdiction to resolve disputes “concerning employment-related matters within the scope of a

federal employee’s collective bargaining agreement.” JA 17. Toledo and Tucker appeal.

II.

The district court did not reach the merits of Toledo and Tucker’s claim, and neither do we,

for they have not established that the district court had jurisdiction over their claim. See Welsh v.

Gibbs, 631 F.2d 436, 438 (6th Cir. 1980). Not one of the plaintiffs’ proposed bases for

jurisdiction—28 U.S.C. §§ 1331, 1343 or 2201—suffices to give the federal courts authority to

resolve this dispute.

Section 1331 is the general federal-question-jurisdiction statute. Because Toledo and Tucker

named the secretary of HUD in his official capacity, they must do more than invoke this general

statute; they also must “identify a waiver of sovereign immunity in order to proceed.” Reetz v.

United States, 224 F.3d 794, 795 (6th Cir. 2000); see also United States v. Sherwood, 312 U.S. 584,

586 (1941) (“The United States, as sovereign, is immune from suit save as it consents to be sued.”);

Whittle v. United States, 7 F.3d 1259, 1262 (6th Cir. 1993) (affirming dismissal of suit against

federal agency because federal sovereign immunity “extends to agencies of the United States” and

“[t]he federal question jurisdictional statute is not a general waiver of sovereign immunity”).

Toledo and Tucker have failed to satisfy this requirement. Rather than invoking an

applicable waiver of immunity, they essentially have used the federal-question statute to bring a

claim for breach of contract—breach namely of the collective bargaining agreement between HUD

and the union. See JA 6 (claiming that HUD “refus[ed] Plaintiffs their rights under the Collective

Bargaining Agreement” by failing to follow the agreement’s procedures for filling the vacant

positions Toledo and Tucker unsuccessfully sought). Although Toledo and Tucker claim that their

suit is “authorized and instituted pursuant to the labor agreement in effect between” the union and

HUD, Br. at 1, it is by no means clear that a collective bargaining agreement by itself could impact

the immunity of a federal agency. Cf. 14 Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3655, at 348 (1998) (“When a federal

agency is the named defendant in an action, the general rule . . . is that the agency may be sued only

if Congress has consented to the action . . . .”) (emphasis added). Nothing about the agreement, at

any rate, purports to empower the federal courts to resolve claims against the agency. To the

contrary: the agreement creates non-judicial procedures to resolve employee grievances; alleged

breaches of the agreement amount to grievances within the coverage of these procedures; and the
No. 06-5887 Toledo, et al. v. Jackson Page 3

grievance procedures established by the agreement “constitute[] the sole and exclusive procedure[s]

for the resolution of grievances by employees of the bargaining unit,” JA 54 (emphasis added).

Sections 1343 and 2201, for their part, do no better when it comes to giving the federal courts

jurisdiction over this matter. Section 1343 grants district courts jurisdiction over civil actions to,

among other things, “recover damages or to secure equitable . . . relief under any Act of Congress

providing for the protection of civil rights.” 28 U.S.C. § 1343(a)(4). But plaintiffs filed this lawsuit

under “the labor agreement in effect between” the union and HUD, JA 5, not under any statute,

much less under a civil rights statute. Despite the ruling against them below, plaintiffs have not

pointed to any authority for the proposition that § 1343 gives the federal courts authority to resolve

such a collective-bargaining dispute against a federal agency.

Section 2201 is part of the Declaratory Judgment Act. Before “invoking the Act,” however,

a federal court must “have jurisdiction already” under some other federal statute. Heydon v.

MediaOne of S.E. Mich., Inc., 327 F.3d 466, 470 (6th Cir. 2003). Put another way, the Act is not

“an independent basis for federal subject matter jurisdiction,” id.; see also Skelly Oil Co. v. Phillips

Petroleum Co., 339 U.S. 667, 671–72 (1950), and plaintiffs have not identified any other

congressional statute that gives the federal courts jurisdiction over this dispute.

Also unavailing is plaintiffs’ reliance on a line of cases from the Federal Circuit. In Carter

v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), the Federal Circuit held that the Civil Service Reform Act

(CSRA), 5 U.S.C. § 7101 et seq., precluded federal courts from exercising jurisdiction over claims

falling within the scope of grievance procedures established by collective bargaining agreements

between a federal agency (in that case, the IRS) and its employees. Carter, 909 F.2d at 1454. The

court based its conclusion on § 7121(a)(1) of the Act, which at that time read that “‘the procedures

[set out in the collective bargaining agreement] shall be the exclusive procedures for resolving

grievances which fall within its coverage.’” Id. (quoting 5 U.S.C. § 7121(a)(1)). According to the

Federal Circuit, that language “foreclosed . . . avenue[s] to the courts that, pre-CSRA, had been open

to federal employees by statute.” Id. at 1456.

In 1994, however, Congress amended § 7121(a)(1), adding one word. The provision now

says that “the procedures [set out in the collective bargaining agreement] shall be the exclusive

administrative procedures for resolving grievances which fall within its coverage.” (Emphasis

added). In Mudge v. United States, 308 F.3d 1220 (Fed. Cir. 2002), the Federal Circuit held that the

1994 amendment effectively overruled Carter: Because Congress added the word “administrative”

to § 7121(a)(1), “that subsection no longer restricts a federal employee’s right to pursue an

employment grievance in court.” Id. at 1232; see also Asociacion De Empleados Del Area Canalera

v. Panama Canal Comm’n, 329 F.3d 1235, 1241 (11th Cir. 2003) (same).

Even if for the sake of argument we were to accept Mudge as accurately construing the

CSRA, that does not solve plaintiffs’ problem. For one, they still have not identified an applicable

waiver of sovereign immunity—by, say, invoking the Administrative Procedure Act. See 5 U.S.C.

§ 702. For another, they cannot tenably claim that § 7121(a)(1) by itself confers jurisdiction. It is

one thing to say that the statute does not restrict an employee’s right of action, which is what Mudge

says; it is quite another to say that the statute creates jurisdiction to hear the right of action, which

no case says. As the Supreme Court confirmed in Whitman v. Department of Transportation, 126

S. Ct. 2014 (2006), § 7121(a)(1) “does not confer jurisdiction,” id. at 2015. Although it “or the

CSRA as a whole” may, contrary to Mudge, “remove[] the jurisdiction [otherwise] given to the

federal courts,” id., the Supreme Court did not answer that question in Whitman, and neither need

we answer it in this case.
No. 06-5887 Toledo, et al. v. Jackson Page 4

III.

For these reasons, we affirm.