Abbott v. USA, Local 4

• Court: Court of Appeals for the First Circuit
• Decided: April 27, 1998
• Docket: 97-2254
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2254



                  DENNIS J. ABBOTT, III, ET AL.,



                     Plaintiffs, Appellants,



                                v.



                UNITED STATES OF AMERICA, ET AL.,



                      Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



            [Hon. Gene Carter, U.S. District Judge]


Before



                      Lynch, Circuit Judge,

                                

           Coffin and Bownes, Senior Circuit Judges.


James G. Noucas, Jr., with whom Christopher W. Keenan and

Noucas & Keenan were on brief, for plaintiffs.

     Deborah Ruth Kant, Attorney, Department of Justice, with whom

Frank W. Hunger, Assistant Attorney General, Jay P. McCloskey,

United States Attorney, and Barbara C. Biddle, Attorney, Department

of Justice, were on brief, for defendant the United States.

     Julia Akins Clark for defendant International Federation of

Professional and Technical Engineers, AFL-CIO & CLC, Local 4.


April 27, 1998


LYNCH, Circuit Judge.  Engineering and technical

employees at the Portsmouth Naval Shipyard felt they were not being

paid overtime to which they were entitled.  Their union filed a

grievance and asked the employees specifically to notify the union

if they wished to be part of the grievance.  The union also used

language which implied that those employees who did not join this

grievance could later file grievances.  A settlement was reached of

the union grievance: from November 12, 1993 forward, each employee

in these categories would receive overtime pay, but only those

individuals who had joined the grievance would receive compensation

for overtime past due and owed up to that date.

  This lawsuit is by those who did not join in the union

grievance, trying to recover past overtime pay for the period up to

November 12, 1993.  In 1996, these employees filed suit against

both the United States and the union.  The suit proceeds under the

special sets of laws which govern the federal employees at the

Shipyard, and those laws determine the outcome.  Congress enacted

a comprehensive remedial scheme for such claims, a scheme which

requires that we affirm the dismissal of the action against the

union; we also affirm dismissal against the United States on

statute of limitations grounds.

                         I.  Background

  In reviewing the district court's decision to grant the

defendants' motions to dismiss under Fed. R. Civ. P. 12(b)(6), we

take all well-pleaded facts in the complaint to be true, but need

not credit the complaint's "bald assertions" or legal conclusions. 

See Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1216 (1st Cir.

1996).

  Plaintiffs are a group of over one hundred present and

former employees at the Portsmouth Naval Shipyard.  The United

States Navy owns the Portsmouth Naval Shipyard.  Plaintiffs are or

were members of defendant union, the International Federation of

Professional and Technical Engineers, AFL-CIO & CLC, Local 4.  The

union is the exclusive bargaining agent for certain professional

and technical federal employees at the Shipyard.

  This saga starts in November of 1985, when the Fair Labor

Standards Act regulations of the United States Office of Personnel

Management became effective.  These regulations presumed that

federal employees at the GS-11 level and above were exempt from the

overtime pay provisions of the Fair Labor Standards Act ("FLSA"),

29 U.S.C.  201-19.  Under the provisions of FLSA  7(a)(1),

covered employees must be paid one and one-half times their regular

hourly wage if they work more than forty hours in a work week.  See29 U.S.C.  207(a)(1).  Federal employees exempted from this

provision, however, are compensated for overtime work in accordance

with the (less generous) Federal Employment Pay Act.  See 5 U.S.C.

 5542.  The OPM regulations were invalidated in 1987, see American

Fed'n of Gov't Employees v. Office of Personnel Management, 821

F.2d 761 (D.C. Cir. 1987), but the "exempt" status of the

plaintiffs as GS-11 or higher pay grade employees was not changed.

     In 1990, the Federal Circuit held that under the Civil

Service Reform Act, Pub. L. No. 95-454, 92 Stat. 1111 (codified as

amended in various sections of 5 U.S.C.) ("CSRA"), the grievance

procedure in a collective bargaining agreement was the exclusive

forum for the resolution of FLSA claims, unless the grievance

procedure explicitly excluded FLSA claims.  See Carter v. Gibbs,

909 F.2d 1452, 1458 (Fed. Cir.) (en banc), cert. denied sub nom.Carter v. Goldberg, 498 U.S. 811 (1990).  The union, accordingly,

filed a grievance as provided in its collective bargaining

agreement, in September of 1990.  The grievance challenged the

Shipyard's classification of the bargaining unit employees as

"exempt" from the overtime pay requirements of the FLSA.

     The union advised its members about the status of the

grievance.  In the summer of 1992, the union circulated a bulletin

stating, "This is also a 'last call' for all who have not filed a

grievance and would like to join in.  If you do not file at this

time, you will not be considered in this case.  Another grievance

will have to be filed at a later date."  Plaintiffs did not

participate in this grievance.  Plaintiffs assert that the union's

communications led them to believe that their interests would be

protected by the union in the pending grievance, or that they would

be able to file a subsequent grievance.

     In November of 1993, the union and the United States

entered into a settlement agreement, memorialized in a memorandum

of understanding ("MOU"), which resolved the pending grievance. 

The MOU classified the listed grievants as non-exempt and awarded

them back pay for overtime for up to six years.  The MOU classified

employees not listed in the grievance as non-exempt from November

12, 1993, thus agreeing that they would get overtime from that date

forward.  But the MOU precluded them from receiving, or filing new

grievances for, FLSA overtime back pay for work done prior to

November 12, 1993.

     In a letter dated June 2, 1994, plaintiffs requested

arbitration of their grievances concerning the 1993 MOU under the

collective bargaining agreement between the union and the Shipyard. 

This request for arbitration was denied by the Shipyard in a letter

dated August 23, 1994, on the ground that the issue had been

resolved by the MOU and the plaintiffs did not have authority to

invoke arbitration under the terms of the collective bargaining

agreement between the union and the Shipyard.  The plaintiffs

renewed their request in a letter dated September 7, 1994, and this

request was again turned down by the Shipyard in a letter dated

October 28, 1994.

     Plaintiffs had also filed unfair labor practice claims

against the Shipyard and the union with the Federal Labor Relations

Authority ("FLRA") in May of 1994.  The FLRA denied the plaintiffs'

appeal on May 31, 1994.  According to the FLRA, there was "no

reason to conclude that the grievance settlement . . . violates the

Statute or that either the Shipyard or Local 4 violated the

protected rights of any bargaining unit employees by entering into

that settlement. . . . [N]othing suggests that [the settlement] was

arrived at arbitrarily or discriminatorily or that it was based on

any considerations prohibited by the Statute." 

     Some of the plaintiffs also sought to be included in a

"global settlement" of FLSA issues that was negotiated between the

International Federation of Professional and Technical Engineers

and the Naval Sea Systems Command on a national level.  This

process resulted in a partial "global settlement" dated July 20,

1995, and in a final "Global Memorandum of Understanding" dated

December 6 and 7, 1995.  These plaintiffs were not included in the

global settlement or the global MOU because their claims were

declared by the Navy to have been settled in the November, 1993

MOU.

     Plaintiffs then filed suit against the union and the

United States in United States District Court for the District of

Maine on March 13, 1996.  The plaintiffs alleged that each of them

had either filed a grievance based on the settlement of the union's

1990 grievance, filed unfair labor practice claims against the

defendants based on their handling of the 1990 union grievance, or

were "listed grievants" in the 1990 union grievance who were

dropped from the grievance by the union.  Plaintiffs sought

declaratory relief establishing that the November 1993 MOU is

illegal and invalid to the extent that it precluded them from

seeking overtime back pay under the FLSA and the Back Pay Act, 5

U.S.C.  5596.  Against the United States, the plaintiffs also

sought monetary relief, including overtime back pay with interest,

statutory liquidated damages, and attorney's fees.

     Both the union and the United States moved to dismiss the

complaint under Rules 12(b)(1) and (6) of the Federal Rules of

Civil Procedure.  The union contended that the complaint failed to

establish subject matter jurisdiction or to state a claim upon

which relief may be granted.  The United States alleged that the

plaintiffs had failed to establish subject matter jurisdiction and

proper venue, and had raised claims that were barred by the

applicable statute of limitations.  After the plaintiffs amended

their complaint to allege jurisdiction under 28 U.S.C.  1331, the

United States argued that the court nonetheless did not have

subject matter jurisdiction.

     The district court referred the case to a magistrate. 

The district court adopted the recommended decision of the

magistrate judge and granted the defendants' motions to dismiss. 

The district court decided the motions as motions to dismiss for

failure to state a claim.  As to the union, the court held that the

complaint failed to state a claim upon which relief could be

granted because it was tantamount to a claim that the union had

breached its duty of fair representation, and, under the CSRA, the

grievance procedure established by the collective bargaining

agreement is the exclusive route available to plaintiffs to resolve

their FLSA claims.  

     As to the United States, the court found the statute of

limitations to be dispositive.  The court held that the two year

statute of limitations imposed by  255(a) of the FLSA barred the

plaintiffs' claims under the FLSA, all of which accrued more than

two years before the action was filed in federal court.  The court

concluded that the pendency of administrative proceedings, i.e.,

the grievances, did not toll the FLSA's limitations period.

               II.  The Claims Against the Union

     The action against the union was dismissed because the

claim was viewed as a duty of fair representation claim

masquerading in different garb.  No duty of fair representation

claim could be sustained in federal court for two reasons.

     The first reason is that the remedy for any breach of the

duty of fair representation lies with the Federal Labor Relations

Authority.  See 5 U.S.C.  7118.  Congress assigned this task to

that agency as part of the overall scheme in the CSRA.  Under the

CSRA, the union is the exclusive representative of bargaining unit

employees.  And the union, in turn, owes a duty of fair

representation:

                    A labor organization which has been accorded

                    exclusive recognition is the exclusive

                    representative of the employees in the unit it

                    represents and is entitled to act for, and

                    negotiate collective bargaining agreements

                    covering, all employees in the unit.  An

                    exclusive representative is responsible for

                    representing the interests of all employees in

                    the unit it represents without discrimination

                    and without regard to labor organization

                    membership.

                    

          5 U.S.C.  7114(a)(1).  A breach of the duty of fair representation

is an "unfair labor practice."  See 5 U.S.C.  7116(b)(8).  And

unfair labor practices are to be adjudicated by the FLRA.

     The second reason is that, as the Supreme Court has held,

no parallel private cause of action may be implied from the CSRA. 

See Karahalios v. National Fed'n of Fed. Employees, 489 U.S. 527,

533 (1989) ("[N]either the language nor the structure of the [CSRA]

shows any congressional intent to provide a private cause of action

to enforce federal employees unions' duty of fair

representation.").

     Thus, while the duty itself "parallels the fair

representation obligation of a union in the private sector that has

been found implicit in the National Labor Relations Act (NLRA),"

id. at 532, the places to seek remedies for a violation of the duty

of fair representation vary.  If the CSRA and a covered federal

employee are involved, as here, recourse is to the FLRA.  "There

exists no equivalent to  301 of the Labor Management Relations Act

. . . which permits judicial enforcement of private collective-

bargaining contracts."  Id. at 534.  "Consequently, district courts

cannot entertain federal employees' fair representation suits." 

Montplaisir v. Leighton, 875 F.2d 1, 5 (1st Cir. 1989) (citation

omitted).

     The enactment of the CSRA "'comprehensively overhauled

the civil service system' . . . creating an elaborate 'new

framework for evaluating adverse personnel actions against federal

employees.'" United States v. Fausto, 484 U.S. 439, 443 (1988)

(quoting Lindahl v. Office of Personnel Management, 470 U.S. 768,

773, 774 (1985)).  In some respects, the Act gives federal

employees greater protections than private sector employees.  In

other respects, it alters the forum in which claims may be brought

and the procedures used.  See Roth v. United States, 952 F.2d 611

(1st Cir. 1991) (CSRA preempts state law claim); Montplaisir, 875

F.2d at 8 (same).  At times, federal employees must meet a more

rigorous standard in order to obtain injunctive relief.  SeeSampson v. Murray, 415 U.S. 61 (1974) (discussed in DeNovellis v.

Shalala, 135 F.3d 58, 62 (1st Cir. 1998)).

     The plaintiffs do not dispute that this general statement

is indeed the law for duty of fair representation claims, but argue

that they have been misunderstood.  First, they say, they are

different from plaintiffs in other cases such as O'Connell v. Hove,

22 F.3d 463 (2d Cir. 1994), because they have actually exhausted

their administrative remedies.  Secondly, they say, the CSRA

procedures failed due to violations and misinterpretations of

federal law.  More specifically, citing Barrentine v. Arkansas-Best

Freight Sys., Inc., 450 U.S. 728 (1981), they claim the union could

not waive the individual rights of union members under the FLSA to

get overtime back pay.

     In this, it is the plaintiffs who misapprehend the law,

not the district court.  We start with the plaintiffs' last

attempted distinction.  In Barrentine, a 1981 decision, the Supreme

Court held that a private sector employee could bring a federal

court action alleging a violation of the minimum wage provisions of

the FLSA after having unsuccessfully submitted the same claim to a

grievance committee under the collective bargaining agreement. 

Barrentine was a private sector case, not involving a federal

employee covered by the CSRA, and expressly recognized that the

statutory enforcement scheme granted broad access to the courts,

and "[n]o exhaustion requirement or other procedural barriers are

set up, and no other forum for enforcement of statutory rights is

referred to or created by the statute." 450 U.S. at 740.  Here, in

contrast, another forum for enforcement of statutory rights of a

duty of fair representation is contemplated by the statute and no

implied right of action may be inferred from the CSRA.

     The contention that this is just an exhaustion of

administrative remedies case is also misplaced.  Karahaliosprevents such an argument.  As Karahalios points out, the CSRA at

Title VII:

                    provides recourse to the courts only in three

                    instances: with specified exceptions, persons

                    aggrieved by a final FLRA order may seek

                    review in the appropriate court of appeals, 

                    7123(a); the FLRA may seek judicial

                    enforcement of its orders,  7123(b); and

                    temporary injunctive relief is available to

                    the FLRA to assist it in the discharge of its

                    duties,  7123(d).

                    

          489 U.S. at 532.  None of those situations exist here.  When the

plaintiffs filed their duty of fair representation complaint with

the FLRA, the General Counsel decided not to issue a complaint. 

But "the General Counsel of the FLRA was to have exclusive and

final authority to issue unfair labor practice complaints, and only

those matters mentioned in  7123 were to be judicially

reviewable."  Id. at 533 (citation omitted).  The matter ends when

the General Counsel of the FLRA decides not to issue a complaint.

     There remains the argument that the strong federal

interest in fair pay for employees found in the FLSA should trump

the administrative scheme in the CSRA where there is a claim

against the union.  The Supreme Court has also foreclosed that

argument in United States v. Fausto, 484 U.S. 439 (1988).  In

Fausto, the Court held that an employee seeking back wages under

the Back Pay Act, 5 U.S.C.  5596, may not bring an action in the

Court of Federal Claims under the Tucker Act, 28 U.S.C.  1491, in

light of the "comprehensive system" established by the CSRA. 

     We hold here that federal claims under the FLSA against

the union involving overtime pay and the union's duty of fair

representation may not be brought in federal court due to the

comprehensive scheme of the CSRA.

           III.  The Claims Against the United States

     The claims against the United States stand on different

footing.  It is arguable that there may be jurisdiction under the

Tucker Act or the "Little Tucker Act," 28 U.S.C.  1346(a)(2).  If

so, then jurisdiction would lie in the U.S. Court of Federal Claims

and appellate jurisdiction in the Federal Circuit.  But plaintiffs

did not purport to rely on the Tucker Act, and have asserted

colorable federal claims, and so, as the government has conceded,

we have jurisdiction to consider this appeal.  See Northeast

Erectors Ass'n v. Secretary of Labor, 62 F.3d 37, 39 n.1 (1st Cir.

1995); Chabal v. Reagan, 822 F.2d 349, 355 (3d Cir. 1987).

     The district court, in a thoughtful opinion, dismissed

the action against the United States because the statute of

limitations had run.  The United States urges us to affirm on this

ground, but says that if we find that the statute has not run, we

should transfer the case to the Court of Federal Claims and require

plaintiffs to specify the amounts of their claims for Tucker Act

purposes.  Because we believe the statute of limitations issue is

dispositive and because we have no wish to prolong this already

aged dispute, we affirm on the grounds that the claim was not

brought within the FLSA's two-year statute of limitations.  It

would not be "in the interest of justice" under 28 U.S.C.  1631 to

transfer a case clearly barred by the statute of limitations.  We

affirm largely on the basis of the decisions of the district court

judge and the magistrate judge.  We add a brief comment to respond

to plaintiffs' argument on appeal that the statute of limitations

was tolled while they exhausted the grievance process.

     The Supreme Court has squarely held in Unexcelled Chem.

Corp. v. United States, 345 U.S. 59 (1953) that the FLSA's statute

of limitations is not subject to tolling on the basis of pending

administrative proceedings.  The plaintiffs say, in response, that

Unexcelled predates the enactment of the CSRA and thus could not

have anticipated the required negotiated grievance procedure in the

CSRA.  But nothing in the logic of the reasoning in Unexcelled is

undercut by this argument and the Supreme Court has not since

suggested any infirmity in its holding in Unexcelled.

                              IV.

     For these reasons, we affirm the dismissal of the action.