United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2009 Decided June 1, 2010

No. 08-5479

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION,

AFL-CIO,

APPELLANT

v.

FEDERAL SERVICE IMPASSES PANEL, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00481)

William W. Osborne Jr. argued the cause for appellant. 

With him on the briefs were Marie Louise Hagen and 

Marguerite L. Graf.

James F. Blandford, Attorney, Federal Labor Relations 

Authority, argued the cause for appellees Federal Service 

Impasses Panel and the Federal Labor Relations Authority. 

With him on the brief were Rosa M. Koppel, Solicitor, and

William R. Tobey, Deputy Solicitor.

R. Craig Lawrence and Beverly M. Russell, Assistant 

U.S. Attorneys, and Michael Doherty, Attorney, Federal 
2

Aviation Administration, were on the brief for appellee 

Federal Aviation Administration.

Before: GINSBURG and TATEL, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: When the National Air Traffic 

Controllers Association (the Union) and the Federal Aviation 

Authority reached an impasse in collective bargaining, the 

Union sought the aid of the Federal Service Impasses Panel. 

The FSIP declined to assert jurisdiction, whereupon the Union 

sued the FSIP, the FAA, and the Federal Labor Relations 

Authority, seeking both a declaratory judgment that the FSIP 

had jurisdiction over an impasse involving the FAA and an 

injunction requiring the FSIP to assert jurisdiction over all 

such pending and future impasses. The district court 

dismissed the suit for lack of subject matter jurisdiction. For 

the reasons that follow, we affirm that order insofar as it 

applies to the FAA but reverse it with respect to the FSIP and 

the FLRA.

I. Background

We first explain the roles played by the agencies involved 

in this suit. We then recount the factual and procedural 

background of this case. 

A. The FLRA and the FSIP

The “Congress established a distinct regulatory 

framework for collective bargaining between federal agencies 

and their employees under the Federal Service LaborManagement Relations Statute,” which was passed as part of 
3

the Civil Service Reform Act of 1978 and codified in Chapter 

71 of Title 5 of the U.S. Code. NATCA v. FSIP, 437 F.3d 

1256, 1258 (D.C. Cir. 2006) [hereinafter NATCA I]. “The 

Statute grants federal agency employees the right to organize, 

provides for collective bargaining, and defines various unfair 

labor practices.” Nat’l Fed’n of Fed. Employees v. Dep’t of 

Interior, 526 U.S. 86, 88 (1999). 

The FLRA is “primarily responsible for administering” 

the Statute. NATCA I, 437 F.3d at 1258. Much as the 

National Labor Relations Board does for the private sector, 

the FLRA “determine[s] the appropriateness of units for labor 

organization representation,” “conduct[s] elections to 

determine whether a labor organization has been selected as 

an exclusive representative” and, most relevant here, 

“conduct[s] hearings and resolve[s] complaints of unfair labor 

practices” arising out of negotiations between a federal 

agency employer and the union that represents its employees. 

5 U.S.C. § 7105(a)(2). Except in circumstances not relevant 

here, a final order issued by the FLRA is reviewable in the 

court of appeals. Turgeon v. FLRA, 677 F.2d 937, 938 (D.C. 

Cir. 1982) (citing 5 U.S.C. § 7123(a)).

The General Counsel of the FLRA, who “serves at the 

pleasure of the President,” has by statute “separate authority” 

from that of the FLRA. Turgeon, 677 F.2d at 938 n.4. Her 

principal duties are to investigate unfair labor practice 

charges, issue unfair labor practice complaints arising from 

those charges, and prosecute those complaints before the 

FLRA. Id. A union or an employer accusing its counterpart 

of an unfair labor practice first submits a charge to a Regional 

Director of the FLRA, 5 C.F.R. § 2423.6(a), who, acting “on 

behalf of the General Counsel,” investigates the charge, 5 

C.F.R. § 2423.8(a), and decides whether to issue a complaint, 

5 C.F.R. § 2423.10(a). If the Regional Director dismisses the 
4

charge, then the charging party may appeal that decision to 

the General Counsel, 5 C.F.R. § 2423.11(c), but the General 

Counsel’s decision whether to issue a complaint is not subject 

to judicial review, see Turgeon, 677 F.2d at 940.

The FSIP, “an entity within the” FLRA, “serves as a 

forum of last resort in the speedy resolution of disputes 

between a federal agency and the exclusive representatives of 

its employees after negotiations have failed.” NATCA I, 437 

F.3d at 1257–58 (citing Council of Prison Locals v. Brewer, 

735 F.2d 1497, 1501 (D.C. Cir. 1984)) (internal quotation 

marks omitted). The FSIP must “promptly investigate any 

impasse presented to it,” 5 U.S.C. § 7119(c)(5)(A), and then

“either (1) Decline to assert jurisdiction ... [for] good cause ...

or (2) Assert jurisdiction,” 5 C.F.R. § 2471.6(a). If the FSIP 

asserts jurisdiction, then it may ultimately “take whatever 

action is necessary and not inconsistent with [the Statute] to 

resolve the impasse,” 5 U.S.C. § 7119(c)(5)(B)(iii), 

“including binding arbitration,” Am. Fed’n. of Gov’t 

Employees v. FLRA, 691 F.2d 565, 569 n.26 (D.C. Cir. 1982); 

see 5 C.F.R. § 2471.6(a)(2)(ii). A decision of the FSIP 

declining to assert jurisdiction over an impasse “is not 

reviewable ‘except in extraordinary circumstances,’ because 

‘Congress precluded direct judicial review of Panel orders.’” 

NATCA I, 437 F.3d at 1262 (quoting Brewer, 735 F.2d at 

1498).

B. Factual and Procedural Background

The present drama unfolded in two acts, the first 

beginning in 2003 and the second in 2006. We begin, 

however, with a brief prologue reviewing the statutory 

provisions that form the background for these events.
5

In 1995 the Congress “directed the FAA to establish its 

own personnel management system.” NATCA I, 437 F.3d at 

1259. In 1996, one day after the FAA had established its 

system, the Congress exempted that system from the 

requirements of Title 5 of the U.S. Code (Government 

Organizations and Employees) except, in relevant part, those 

in Chapter 71, i.e., the Statute. Id. at 1259–60; see 49 U.S.C. 

§ 40122(g)(2)(C) (providing exemption). Later that year the 

Congress enacted 49 U.S.C. 106(l), which provides: “In fixing 

compensation and benefits ... the Administrator [of the FAA] 

shall not engage in any type of bargaining, except to the 

extent provided for in section 40122(a)” of Title 49. See 

NATCA I, 437 F.3d at 1260. That section in turn requires the 

FAA to negotiate with the representative of its employees 

before making a change to its personnel management system; 

if such negotiation reaches an impasse, then the FAA must 

first use the “services of the Federal Mediation and 

Conciliation Service” and, if mediation fails, “transmit[] the 

proposed change ... to Congress.”

In 2003 the FAA reached an impasse in contract 

negotiations with both the NATCA and the Professional 

Airways Systems Specialists, another union. NATCA I, 437 

F.3d at 1258. The two Unions “sought the assistance” of the 

FSIP. Id. The FAA argued the FSIP lacked jurisdiction 

because, although 5 U.S.C. § 7119 generally provides the 

FSIP with jurisdiction over an impasse between a federal 

agency and a union, 49 U.S.C. § 106(l) specifically prohibits 

the FAA from bargaining over compensation and benefits 

except as provided in 40122(a), which makes no mention of 

the FSIP. NATCA I, 437 F.3d at 1260–61. In January 2004

the FSIP declined to assert jurisdiction on the ground that it 

was “unclear whether [it] ha[d] the authority to resolve the 

parties’ impasse.” The Panel went on to say the question

whether the Congress had divested it of jurisdiction over 
6

compensation-related impasses involving the FAA “must be 

addressed in an appropriate forum before the [FSIP would] 

commit[] its resources” to assist in “resolving the merits of 

[the] impasse.” The FSIP did not indicate what forum it 

believed was “appropriate.” 

The Unions then sued the FSIP and the FLRA in the 

district court, seeking both a declaration that “the FSIP’s 

decisions ... are in violation of specific provisions of the 

Panel’s statutory authority” and an order that the FSIP 

“proceed forthwith to resolve the existing impasses.” Citing 

Brewer, the district court held it did not have jurisdiction to 

review the decision of the FSIP and dismissed the case. 

NATCA v. FSIP, No. Civ. A. 04-0138(RMC), 2005 WL 

418016, at *4–5 (Feb. 22). 

We affirmed, explaining that “a Panel order” is subject to 

review in district court only in the “exceptional 

circumstances” identified in Leedom v. Kyne, 358 U.S. 184 

(1958), viz., where (1) the agency acts “in excess” of its 

“delegated powers and contrary to a specific prohibition” that 

“is clear and mandatory,” and (2) denying review “would 

wholly deprive [a party] of a meaningful and adequate means 

of vindicating its statutory rights.” NATCA I, 437 F.3d at 

1263 (internal quotation marks omitted).

Neither requirement was met in that case. There was no 

“specific and unambiguous statutory directive” about the 

jurisdiction of the FSIP over an impasse between the FAA 

and a union; on the contrary, there were “compelling 

arguments” on each side “regarding the proper interpretation 

of the disputed statutory provisions.” Id. at 1264. In addition, 

“the Unions [could] vindicate their statutory rights and gain 

appropriate redress before the FLRA.” Id. at 1265. We then 

described a path by which the Unions could seek review in 
7

that forum, namely, by challenging the FAA’s refusal to 

submit to the jurisdiction of the FSIP as an “unfair labor 

practice.” If the General Counsel filed a complaint based 

upon that charge, then the FLRA would have to answer the 

underlying question about jurisdiction. Id. at 1265. 

Our decision, however, was not the last word on the 2003 

impasse. As it happened, even before we heard its appeal the 

Union had filed an unfair labor practice charge concerning 

that impasse, and after we issued our decision a Regional 

Director of the FLRA entered into a “unilateral Settlement 

Agreement” with the FAA in lieu of issuing a complaint. 

In 2006 the Union again reached an impasse with the 

FAA and again requested help from the FSIP, which again 

declined to assert jurisdiction, giving again the explanation it 

had given in 2004. In due course the Union again filed an 

unfair labor practice charge alleging the FAA had “refused to 

bargain under the auspices” of the FSIP. 

A Regional Director of the FLRA dismissed that charge

on the ground that “issuance of a complaint [was] not 

warranted” because 49 U.S.C. § 40122(a) deprived the FSIP 

of jurisdiction over the impasse. The Union appealed to the 

General Counsel, who denied both the appeal and the Union’s 

subsequent motion for reconsideration. Because the General 

Counsel did not issue a complaint, the question of the FSIP’s 

jurisdiction raised by the unfair labor practice charge was 

never put before the FLRA. 

In 2008 the Union sued the FSIP, the FLRA, and the 

FAA. It sought both a declaration that “the FSIP has 

mandatory jurisdiction to resolve impasses between the FAA 

and labor organizations ... of the same kind and extent as its 

mandatory jurisdiction over such impasses between other 
8

federal agencies and exclusive representatives of their 

employees” and an injunction in support of that declaration. 

In its motion for summary judgment, the Union argued the 

exception provided in § 40122(a) and referred to in § 106(l) 

does not “divest the FSIP of its ... jurisdiction” over an 

impasse between the FAA and one of its unions.

The FSIP and the FLRA moved to dismiss, arguing the 

Union was seeking review of a decision of the FSIP, which 

review was beyond the jurisdiction of the court. The FAA 

filed its own motion to dismiss, contending in addition that

(1) the Union did not have standing to sue the FAA because 

the “harm [it] alleged ... is not ‘traceable’ to the FAA and 

cannot be redressed by that Agency”; and (2) the Union 

“failed to plead facts indicating that it can receive relief from 

the FAA.”

The district court granted the agencies’ motion to dismiss 

the suit for lack of subject matter jurisdiction. The court 

explained that “the [FLRA] is the appropriate forum to 

determine whether the Panel has jurisdiction,” NATCA v. 

FSIP, 582 F. Supp. 2d. 18, 19 (2008), and that therefore the 

court did not have jurisdiction to review “[a] decision by the 

FLRA’s General Counsel to settle or dismiss an unfair labor 

practice charge, instead of issuing a complaint,” id. at 21. In 

the court’s view, the Union effectively had asked it to do just 

that, seeking “the same [ruling] it sought before the Panel and 

before the FLRA—a ruling that the Panel has jurisdiction to 

resolve these impasses.” Id.

The specific impasse that prompted the Union to seek 

assistance from the FSIP in 2006 was resolved in 2009
9

through mediation.

*

 The Union and the FAA continue to 

negotiate about other matters.

 *

The appellees do not argue this suit is therefore moot, but we must 

consider the question nonetheless. See Ass’n of Admin. Law Judges 

v. FLRA, 397 F.3d 957, 960 n.* (D.C. Cir. 2005). We conclude the 

suit is not moot because the plaintiff is “seek[ing] declaratory relief 

as to an ongoing policy.” Del Monte Fresh Produce Co. v. United 

States, 570 F.3d 316, 321 (D.C. Cir. 2009); see Entergy Servs., Inc. 

v. FERC, 391 F.3d 1240, 1246 (D.C. Cir. 2004) (“it is true that a 

petitioner with a mooted individual controversy may at times have 

standing to challenge an ongoing policy”); City of Houston, Tex. v. 

Dep’t of Housing and Urban Dev., 24 F.3d 1421, 1429 (D.C. Cir.

1994) (“if a plaintiff’s specific claim has been mooted, it may 

nevertheless seek declaratory relief forbidding an agency from 

imposing a disputed policy in the future”). The plaintiff must still 

have standing to challenge the policy and the “request for 

declaratory relief [must be] ripe.” Del Monte, 570 F.3d at 321; see 

Entergy Servs., 391 F.3d at 1246. 

In this case the Union has standing because the disputed policy 

injures it both by denying it recourse to the services of the FSIP 

with respect to impasses that will likely arise between it and the 

FAA in the foreseeable future and by denying the Union, in 

negotiations with the FAA, whatever leverage it derives from the 

ability to threaten recourse to the FSIP. We determine whether a 

request for declaratory relief is ripe by “evaluat[ing] both the fitness 

of the issues for judicial decision and the hardship to the parties of 

withholding court consideration.” Toca Producers v. FERC, 411 

F.3d 262, 289 (D.C. Cir. 2005) (quoting Abbott Labs. v. Gardner, 

387 U.S. 136, 149 (1967)). “In applying the ripeness doctrine to 

agency action we balance the interests of the court and the agency 

in delaying review against the petitioner’s interest in prompt 

consideration of allegedly unlawful agency action.” Toca, 411 F.3d 

at 289. The issue here involves a pure question of law, and neither 

the court nor agencies have a cognizable interest in delaying 

review.
10

II. Analysis 

We review “de novo the district court’s grant of a motion 

to dismiss for lack of subject matter jurisdiction.” Piersall v. 

Winter, 435 F.3d 319, 321 (D.C. Cir. 2006). We consider first 

whether the district court lacked subject matter jurisdiction 

over this case because, as in NATCA I, the complaint seeks 

review of an unreviewable decision of the FSIP or of the 

General Counsel of the FLRA. We then consider two issues

the FAA raises alone — whether the court lacks jurisdiction 

over the case against it because of sovereign immunity and 

whether the Union fails to state a claim upon which relief can 

be granted against the FAA.

A. Reviewability

The Union argues the district court has subject matter 

jurisdiction because it is seeking a declaratory judgment 

rather than “review of, or relief from an administrative 

determination by the General Counsel ... or the FSIP.” The 

agencies all contend the court does not have jurisdiction 

because the Union is seeking review of just such a decision,

review of which is precluded by a specific statute and 

therefore cannot be founded upon “more general grants of 

judicial authority,” such as 28 U.S.C. § 1331 (federal question

jurisdiction).

There can be no doubt, and the petitioners agree, the 

district court lacks jurisdiction to review the decisions of the 

FSIP and of the General Counsel respectively declining 

jurisdiction over the impasse and refusing to issue an unfair 

labor practice complaint. See NATCA I, 437 F.3d at 1258; 

Turgeon, 677 F.2d at 940. Unlike the complaint the Union 

filed in 2004, however, its complaint in this case does not ask 

the court to review either of those decisions. Whereas the
11

Union in the former case asked the court to “[d]eclare ... the 

FSIP’s decisions of January 9, 2004 [declining jurisdiction 

were] in violation of specific provisions of the Panel’s 

statutory authority,” the Union’s complaint here identifies no 

specific decision of the FSIP or of the General Counsel. 

Rather, it complains of the “FSIP’s refusal to exercise its 

mandatory ... jurisdiction over ... negotiation impasses 

between the FAA and labor organizations representing its 

employees” and asks the court to “[d]eclare ... the FSIP has 

mandatory jurisdiction to resolve [such] impasses.”*

Declaring the FSIP has jurisdiction over impasses 

between the FAA and the Union would not require the district 

court to review the decision of the FSIP declining jurisdiction 

on the ground that an “appropriate forum” had not yet 

addressed whether it had such jurisdiction. The FSIP did not 

reach, let alone answer, the question whether it has 

jurisdiction over impasses between the FAA and the Union. 

Nor would the district court need to review the General 

Counsel’s decision not to issue a complaint. The effect of that 

decision was to prevent the FLRA from adjudicating the 

Union’s unfair labor practice charge and the claim entailed 

therein that the FSIP does indeed have mandatory jurisdiction 

over an impasse involving the FAA.**

 * That the Union also seeks an injunction does not alter our analysis 

of whether it is asking the district court to review an unreviewable 

decision; the injunction is merely a means by which to enforce the 

requested declaratory judgment.

 Nothing the district 

** The Union charged the FAA with failing to bargain in good faith 

because the FAA objected to the FSIP asserting jurisdiction over 

the impasse. If the FSIP had jurisdiction, then the FAA was acting 

in bad faith when it refused to accept the mediation and other 

services of the FSIP. As we explained in NATCA I: “[I]f the 

Unions’ interpretation of the disputed statutory provisions [defining 

the jurisdiction of the FSIP] is correct, then it is clear that they have 
12

court does will reverse the decision not to issue a complaint in 

this case. Because the Union does not seek review of a 

decision of either the FSIP or the General Counsel, the district 

court erred in dismissing the case for lack of jurisdiction. 

The agencies and the district court all seem to have read 

NATCA I so broadly as to require that any question about the 

jurisdiction of the FSIP — even one that does not entail 

reviewing a decision of the Panel — be submitted to the 

FLRA in the garb of an unfair labor practice charge and 

resolved by the FLRA before a court may consider it.

*

 In 

NATCA I, however, we determined only that, under Leedom v. 

Kyne, a decision of the FSIP to decline jurisdiction over a 

bargaining impasse is not reviewable in court until the FLRA 

has first reviewed it. 437 F.3d at 1258. In the present case 

the Union does not seek review of an FSIP decision; hence 

NATCA I has no bearing upon the jurisdiction of the district 

court.

Nor is there reason to believe the Congress intended to 

keep the courts from ever considering a question about the 

jurisdiction of the FSIP until the FLRA has passed upon it. 

Indeed if every such question had to be framed as an unfair 

 

viable unfair labor practice charges that can be raised with and 

addressed by the FLRA.” 437 F.3d at 1265. 

*

See, e.g., FAA’s Br. 6 (NATCA I held “the proper course of action 

for the Unions to resolve the issue of the appropriate impasse 

mechanism for FAA and its Unions was by filing” an unfair labor 

practice charge); FSIP’s Br. 11 (NATCA I held the “proper forum 

for addressing the underlying question of the Panel’s jurisdiction is 

the FLRA”); NATCA v. FSIP, 582 F. Supp. 2d 18, 19 (D.D.C. 

2008) (NATCA I held in order to “determine whether the [FSIP] is 

an available mechanism to resolve certain types of impasses” the 

“proper course of action” is to “file an unfair labor practices charge 

... with the FLRA”).
13

labor practice charge and resolved first by the FLRA, then it 

would be the General Counsel who, by her exercise of 

unreviewable discretion not to issue a complaint, could strip 

the court of jurisdiction over issues concerning the reach of 

the FSIP’s authority. We do not believe the Congress 

intended the General Counsel of the FLRA to exercise such 

control over our jurisdiction.*

 

B. Separate Arguments of the FAA

The FAA alone makes two additional arguments. First, it 

contends the district court lacks subject matter jurisdiction 

over this suit against it because, although the Union is suing 

agencies of the Federal government, it has identified no 

waiver of sovereign immunity to this type of suit. In reply, 

the Union invokes 5 U.S.C. § 702 (Administrative Procedure 

Act), which waives immunity in “actions seeking relief ‘other 

than money damages’” from an agency of the United States. 

Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 186 (D.C. Cir. 

2006) (citing Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 

260–61 (1999)). We agree § 702 provides the necessary 

waiver. 

 * We are not unaware the Supreme Court has said “the FLRA shall 

[first] pass upon issues arising under the [Statute], thereby bringing 

its expertise to bear on the resolution of those issues.” EEOC v. 

FLRA, 476 U.S. 19, 23 (1986). The agencies properly do not cite 

that case because the Court made the quoted statement in relation to 

5 U.S.C. § 7123, which provides a party seeking review of a final 

order of the FLRA may not raise an “objection that has not been 

urged before the Authority.” The Union is not seeking review of a 

final order of the FLRA — indeed, the FLRA has issued no final 

order — nor is the Union belatedly raising in court any objection to 

the FSIP’s refusal to assert jurisdiction over its impasse with the 

FAA that the Union failed to raise before the agencies. 
14

Although it is true the Union did not refer to § 702 in its 

complaint, “courts are not restricted to the statutory basis [for 

jurisdiction] alleged if the factual allegations fairly support an 

alternative basis.” United States v. AT&T, 551 F.2d 384, 389

n.7 (D.C. Cir. 1976); see, e.g., In re Mailman Steam Carpet 

Cleaning Corp., 196 F.3d 1, 5 (1st Cir. 1999) (“Affirmative 

pleading of the precise statutory basis for federal subject 

matter jurisdiction is not required as long as a complaint 

alleges sufficient facts to establish jurisdiction”). It is clear 

from the facts of this case, in which the Union is suing 

agencies of the United States and seeking non-monetary 

relief, § 702 provides a waiver of sovereign immunity. 

 

Second, the FAA argues that because “none of the relief 

sought by [the Union] can be obtained from the FAA,” the 

Union’s complaint fails to state a claim upon which relief can 

be granted against the FAA. See Fed. R. Civ. P. 12(b)(6). 

The point, to which the Union makes no reply, is obviously 

well taken. 

III. Conclusion

For the forgoing reasons, we affirm the order of the 

district court insofar as it dismissed this case against the FAA

and reverse that order insofar as it dismissed the case against 

the FSIP and the FLRA. Accordingly, the matter is remanded 

to the district court for further proceedings consistent with 

this opinion.

So ordered.