United States Court of Appeals, District of Columbia Circuit
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION SCOBEY, MONTANA, PETITIONER
FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT NATIONAL TREASURY EMPLOYEES UNION, INTERVENOR
Argued March 18, 2015
On Petition for Review of an Order of the Federal Labor Relations Authority.
Mark W. Pennak, Attorney, U.S. Department of Justice, argued the cause for petitioner. With him on the briefs was Leonard Schaitman, Attorney. Howard S. Scher, Attorney, entered an appearance.
Fred B. Jacob, Solicitor, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief were Zachary R. Henige, Deputy Solicitor, and Stephanie J. Sverdrup Stone, Attorney.
Paras N. Shah argued the cause for intervenor. With him on the brief were Gregory O'Duden and Larry J. Adkins.
Before: TATEL and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Tatel, Circuit Judge
Although the amount of money at issue in this dispute about overtime pay is small, the amount of energy that the parties have expended fighting over it is not. It has been the subject of arbitration, three Federal Labor Relations Authority decisions, and now this petition for review. It has taken three years and, according to the government, implicates the august constitutional principle of sovereign immunity. Notwithstanding all this time and effort, our task is easy.
We need not belabor the facts. The question presented is whether Customs and Border Protection must provide a border guard, whom an arbitrator found was wrongfully denied an overtime opportunity in violation of Customs' assignment policy, with monetary compensation under the Back Pay Act, 5 U.S.C. § 5596(b)(1) (authorizing back pay awards to employees " affected by an unjustified or unwarranted personnel action" ), or merely the next available overtime opportunity pursuant to the agency's assignment policy, see Revised National Inspectional Assignment Policy, Section B.6 (" The remedy for a missed overtime opportunity due to administrative error shall be provision of the next overtime opportunity to the affected employee." ). According to Customs, subsection (b)(4) of the Back Pay Act, which provides that " [t]he pay . . . under this section . . . shall not exceed that authorized by the applicable . . . regulations. . . under which the unjustified or unwarranted personnel action is found," 5 U.S.C. § 5596(b)(4) (emphasis added), limits the guard's remedy to the terms of its assignment policy. In a series of decisions, the Authority rejected Customs' reading of subsection (b)(4) and ruled that even if the Back Pay Act limits awards to the terms of the agency's assignment policy, that policy was inapplicable in this case because it
applies only in situations involving " administrative error" and the arbitrator had concluded that the denial of overtime was " more than a mere mistake." NTEU, Chapter 231 and U.S. Department of Homeland Security, U.S. Customs and Border Protection, Scobey, Montana, 66 FLRA 1024 (Sep. 25, 2012) (internal quotation marks omitted); NTEU, Chapter 231 and U.S. Department of Homeland Security, U.S. Customs and Border Protection, Scobey, Montana, 67 FLRA 67 (Dec. 12, 2012); NTEU, Chapter 231 and U.S. Department of Homeland Security, U.S. Customs and Border Protection, Scobey, Montana, 67 FLRA 247 (Feb. 11, 2014). The Authority therefore awarded back pay, and Customs now petitions for review. The Authority argues that we lack jurisdiction, and we agree.
Section 7123 of the Federal Service Labor-Management Relations Statute vests this court with jurisdiction to review the Authority's final orders " other than an order . . . involving an award by an arbitrator." 5 U.S.C. § 7123(a)(1). As we explained in Griffith v. Federal Labor Relations Authority, 842 F.2d 487, 268 U.S. App.D.C. 491 (D.C. Cir. 1988), Congress imposed this limitation in order to protect " the features of the arbitral process that . . . Congress had in mind when it set up the scheme: finality, speed and economy." Id. at 491. We have nonetheless exercised jurisdiction in a narrow category of arbitral cases. In Griffith, we held that though there was " unusually clear congressional intent generally to foreclose review" of " nonconstitutional claims . . . Congress's language was not specific enough to foreclose review" of " constitutional challenges." Id. at 490. Then, in United States Department of Treasury, United States Customs Service v. Federal Labor Relations Authority, 43 F.3d 682, 310 U.S. App.D.C. 31 (D.C. Cir. 1994), we added a second exception for cases where " the Authority exceeds its jurisdiction," explaining that the Authority has jurisdiction only over statutes that were " fashioned for the purpose of regulating the working conditions of employees." Id. at 691.
This case implicates neither exception. The Authority applied a statute within its purview, the Back Pay Act, see Treasury, 43 F.3d at 689 (explaining that the Back Pay Act " undisputedly was designed to deal directly with employee working conditions" ), and the case presents no constitutional question, as that statute waives sovereign immunity, see 5 U.S.C. § 5596. Recognizing as much, Customs argues that when " the Authority has awarded back pay in violation of the Back Pay Act," it " violat[es] . . . sovereign immunity" and the " order exceeds its jurisdiction and is thus reviewable under this Court's decision in Treasury." Petitioner's Br. 15 (internal quotation marks omitted); see also id. at 24 (grounding the same argument in the Appropriations Clause, U.S. Const. Art. I, § 9, cl. 7). This is incorrect. Routine statutory and regulatory questions--in this case, the meaning of the " shall not exceed" clause in the Back Pay Act and " administrative error" in Customs' assignment policy--are not transformed into constitutional or jurisdictional issues merely because a statute waives sovereign immunity. Otherwise, Congress's creation of a mostly unreviewable system of arbitration would be eviscerated, as every Authority decision involving an arbitral award arguably in excess of what the Back Pay Act authorizes would be reviewable. To make matters worse, as Customs ...