plaintiff had the right to have his union representative present at the March 27 meeting, since it would be reasonable to expect that the misconduct plaintiff was accused of might lead to disciplinary action. Denial of this right is an unfair labor practice, see 5 U.S.C. § 7116(a)(8), for which plaintiff could have filed a charge with the FLRA. See 5 U.S.C. § 7118(a)(1). Plaintiff's probationary status forecloses neither this right nor plaintiff's right to resort to grievance procedures. See 5 U.S.C. § 7103(a)(2). The FLRA has authority to conduct a hearing on the complaint and grant the appropriate relief, see 5 U.S.C. § 7118(a)(2),(5)-(8), with ultimate judicial review or enforcement of its final action available in the appropriate United States Court of Appeals. See 5 U.S.C. § 7123(a),(b).
Alternatively, since Title VII mandates that grievance procedures be included in collective bargaining agreements, see 5 U.S.C. § 7121(a)(1), plaintiff could have asserted his claim through the applicable grievance procedure. Since Title VII defines "grievance" broadly enough to encompass plaintiff's claim that his right to union representation was denied, see 5 U.S.C. § 7103(a)(9)(A) ("'grievance' means any complaint by any employee concerning any matter relating to the employment of the employee."), plaintiff could have used this procedure.
Unresolved grievances are submitted to arbitration, see 5 U.S.C. § (b)(3)(C), with review of the arbitration award in the FLRA, see 5 U.S.C. § 7122(a), and, in cases involving unfair labor practices, in the United States Courts of Appeals. See 5 U.S.C. § 7123(a),(b).
Since plaintiff's constitutional claim is indistinguishable from his Title VII claim and the administrative process is fair and capable of providing him with complete relief, the constitutional claim must be dismissed along with the statutory one.
Lastly, defendants have moved to dismiss plaintiff's claim that his dismissal was arbitrary and capricious, arguing that plaintiff's claim is insufficient on the merits. This issue, however, need not be decided because the court lacks jurisdiction to hear the claim.
In his complaint, plaintiff bases jurisdiction over this claim on the judicial review provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. However, plaintiff misconceives the nature of the APA. The APA is not interpreted as a grant of jurisdiction to review agency actions. See, e.g., Estate of Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978). Jurisdiction must be based on some authority outside of the Act.
An alternate basis for jurisdiction might be the federal courts' authority to review decisions of the Merit Systems Protection Board ("MSPB"), since plaintiff appealed his dismissal to the Board pursuant to 5 C.F.R. § 315.806 (1992).
However, exclusive jurisdiction to review the MSPB's denial of plaintiff's claim is lodged in the Court of Appeals for the Federal Circuit, except in cases involving discrimination. See 5 U.S.C. § 7703(b)(1), (2); 28 U.S.C. § 1295(a)(9). Since plaintiff has not alleged that his dismissal was the product of discrimination, this court has no jurisdiction over an appeal from the MSPB. Likewise, plaintiff cannot base jurisdiction on the federal courts' authority to review Title VII claims, since he has not pursued his claim in Title VII's administrative processes and federal court review of such claims is available only in the Courts of Appeals.
The complaint asserts other bases for jurisdiction over a challenge to agency decisionmaking but these are also inadequate. District Court jurisdiction may not be founded on 28 U.S.C. § 1331 when a different court is given exclusive jurisdiction over challenges to agency action. See, e.g., Estate of Watson, supra, 586 F.2d at 932. Likewise, plaintiff's attempt to ground jurisdiction in the mandamus statute, 28 U.S.C. § 1361, cannot succeed, since "the extraordinary relief it provides is unavailable when adequate alternative remedies exist." Wingate v. Harris, 501 F. Supp. 58 (S.D.N.Y. 1980) (Carter, J.). Since, as explained above, the statutory scheme governing plaintiff's claims provided him with a plethora of remedies, the mandamus statute does not provide additional relief.
The court has been unable to discern any basis for jurisdiction over plaintiff's challenge to his dismissal as arbitrary and capricious and this claim must be dismissed.
Accordingly, plaintiff's motion, under Rule 56, F.R.Civ.P., for summary judgment on his Fifth Amendment claim is denied. Defendants' motion, under Rule 12(c), F.R.Civ.P., for judgment on the pleadings is denied. Defendants' motion, under Rule 56, F.R.Civ.P., for summary judgment on all of plaintiff's claims is granted and this action is dismissed.
IT IS SO ORDERED.
Dated: New York, New York
June 26, 1992
Robert L. Carter