United States Department of Homeland Security, Us Customs v. Federal Labor Relations Authority

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2015 Decided May 5, 2015
No. 14-1052
UNITED S TATES D EPARTMENT OF HOMELAND S ECURITY, US
C USTOMS AND BORDER P ROTECTION S COBEY, M ONTANA ,
P ETITIONER
v.
FEDERAL LABOR R ELATIONS AUTHORITY,
R ESPONDENT
NATIONAL TREASURY E MPLOYEES UNION ,
INTERVENOR
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.

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Paras N. Shah argued the cause for intervenor. With him
on the brief were Gregory O’Duden and Larry J. Adkins.
Before: TATEL and M ILLETT, Circuit Judges, and
S ENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
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

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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 (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

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“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 (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 concedes, Oral Arg. Rec. at
1:09–2:05, this evisceration would be distinctly asymmetrical:
when the Authority awards back pay, the government could

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seek judicial review, but when the Authority denies back pay,
the employee would have no recourse because only decisions
adverse to the government could implicate sovereign
immunity. As we said of a similar argument in Treasury,
“[t]hat seems to us to be a labored, even silly, construction of
the statute.” Treasury, 43 F.3d at 688.
Customs insists that this conclusion “has to be wrong, as
it would mean that there could be no review over the
Authority’s interpretation of the Back Pay Act no matter how
extreme that application was and no matter how gigantic the
liability imposed on the Treasury.” Petitioner’s Reply Br. 4
(internal quotation marks omitted). We have two responses.
First, this is exactly what Congress intended. Section 7123’s
plain language “removes [Authority] decisions reviewing
arbitral awards from judicial review” unless “the
[Authority’s] order ‘involves an unfair labor practice.’”
Overseas Education Association v. Federal Labor Relations
Authority, 824 F.2d 61, 63 (D.C. Cir. 1987) (quoting 5 U.S.C.
§ 7123(a)); see also H.R. C ONF. R EP . NO. 1717, 95th Cong.,
2d sess. 153 (1978), U.S. Code Cong. & Admin. News 1978
at 2887 (“[T]here will be no judicial review of the Authority’s
action on those arbitrators [sic] awards in grievance cases
which are appealable to the Authority.”). Congress obviously
believed that protecting the beneficial “features” of
arbitration, supra at 3, was more important than providing for
judicial review of every arbitral decision. See City of
Arlington, Texas v. FCC, 133 S. Ct. 1863, 1868 (2013)
(“Congress has the power (within limits) to tell the courts
what classes of cases they may decide”). Second, this case
does not come close to raising the specter Customs fears.
Involving just a night’s worth of overtime pay, the case turns
on either “some marginal nuance of the Back Pay Act,”
Griffith, 842 F.2d at 494, or a phrase in Customs’ assignment
policy. We thus have no need to decide whether any

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alternative avenues of review might exist in the event the
Authority egregiously misinterprets the Act.
For the foregoing reasons, we dismiss the petition.
So ordered.

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