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WALSH v. UNITED STATES

December 16, 1983

MARY WALSH, Plaintiff, v UNITED STATES OF AMERICA, Defendant.


The opinion of the court was delivered by: MCCURN

NEAL P. McCurn, D.J.

MEMORANDUM-DECISION AND ORDER

 Plaintiff, Mary Walsh, has been employed by the IRS, Albany District, as a GS-4 "WAE" (While Actually Employed) Taxpayer Service Representative since 1974. In July of 1978 she applied for a permanent GS-4 Revenue Representative position pursuant to a vacancy posted by the Agency, but was not selected. She then filed a grievance in accordance with the provisions of the Multi-District Collective Bargaining Agreement (MDA) then in effect between the IRS and the National Treasury Employees Union (NTEU). Arbitrator James M. Harkless heard the grievance, together with another grievance not involved in this litigation, and decided as follows:

 The grievance of August 18, 1978 is sustained. The grievant was erroneously omitted from the Best Qualified List for the Revenue Representative position for which she applied in July 1978. The grievant is therefore entitled to priority consideration for the next appropriate permanent vacancy for which he is qualified.

 In February of 1981, the Albany District announced a vacancy for two permanent GS-5 Tax Auditor positions. Walsh applied and was considered, but was not placed on the Best Qualified List, and was not selected for either position. A grievance filed by Walsh was denied by the Agency on April 1, 1981, on the ground that the GS-5 Tax Auditor position was not an "appropriate vacancy" under the meaning of either the MDA or the arbitral award.

 Walsh neither sought arbitration of her grievance as provided by the MDA, nor filed an unfair labor practice charge with the Federal Labor Relations Authority. Instead, she commenced this action in federal district court, asserting general federal question jurisdiction under 28 U.S.C. § 1331.

 Two causes of action are set forth in the complaint. First, Walsh claims that the government "violated the award of the Hon. James M. Harkless in violation of Article 7, Article 35 and Article 36 of the MDA between the Internal Revenue Service and the National Treasury Employees Union," and that this was done to deprive Walsh of a position "to which she was entitled under the appropriate Civil Services laws and regulations." Second, Walsh alleges that she had written her Congressman about this unfair treatment, and claims that "because of her exercise of freedom of speach [sic] . . . she was subject by her superiors to harassment, vilification, nonpromotion, though entitled to the same, and conspiracy to keep her in her place."

 Based on the facts recited above, which are not in dispute, the government has moved for summary judgment, contending that the claims are not within the court's federal question jurisdiction and are otherwise barred by failure to exhaust contractual and administrative remedies. For the reasons set forth below, the court finds that it lacks jurisdiction over the claims, and dismisses the complaint.

 DISCUSSION

 Subject matter jurisdiction is predicated upon 28 U.S.C.§ 1331, which enables this court to adjudicate matters arising "under the Constitution, laws, or treaties of the United States." Walsh asserts in her first claim a right to priority consideration for the GS-5 Tax Auditor position, and identifies three sources of that right: the MDA, the previous arbitral award, and "the appropriate Civil Service laws and regulations." None of these sources furnish a basis for federal question jurisdiction.

 Neither a collective bargaining agreement nor an arbitral award is a Constitution, law, or treaty of the United States, and claims arising under either source are plainly outside the embrace of 28 U.S.C. § 1331. Moreover, any general basis for invoking federal district court jurisdiction to enforce a collective bargaining greement or arbitral award is preempted by Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 1701 et seq., which "contains the first statutory scheme governing labor relations between federal agencies and their employees." Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 464 U.S. 89, 52 L.W. 4013, 4014, 78 L. Ed. 2d 195, 104 S. Ct. 439; See also Carter v. Kurzejeski, 706 F.2d 835, 839 (8th Cir. 1983); Yates v. U.S. soldiers' and Airmen's Home, 533 F. Supp. 461, 465 (D.C. D.C. 1982); Clark v. Mark, 79-CV-777 (N.D.N.Y. 1980)(McCurn, J.). Although Congress considered including in Title VII a grant of district court jurisdiction over actions to enforce collective bargaining agreements and arbitration awards, as it had done for private sector employees in section 301 of the Labor Management Relations Act, 29 U.S.C. § 189, it purposely omitted any such provision in order to require an aggrieved federal employee to pursue his grievance through the carefully constructed administrative scheme rather than in the courts. See, Columbia Power Trades Council v. United States Department of Energy, 671 F.2d 325, 329 (9th Cir. 1982); Yates, supra, 533 F. Supp. at 463-64. Thus, Congress meant for judicial review to be available only after exhaustion of administrative remedies, and then only to the limited extent permitted by 5 U.S.C. § 7123. See, BATF v. FLRA, supra, 52 L.W. at 4015 n.7.

 Nor, for the same reason, could general federal jurisdiction be predicated on the assertion of rights "under the appropriate Civil Service laws and regulations." Complaint P6. The pertinent statute is the Civil Service Reform Act of 1978, and as this court has previously held:

 The [Act's] legislative history demonstrates that the FLRA [Federal Labor Relations Authority] was intended by Congress to possess and exercise exclusive jurisdiction over cases involving complaints which alleged violations of the Act.

 Clark v. Mark, 79-CV-777, supra, slip op. at 809. See also, Carter v. Kurzejeski, supra, Columbia Power Trades Council, supra. ...


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