[00:00:00] Speaker 00:
Case number 23, that's 1751, Ed L. Neolukas, defelant, versus American Federation of Government Employees, AFGE, and AFGE Local 228.

[00:00:11] Speaker 00:
Mr. Matz, for the defelant, Mr. Wunkoman, and Mr. Vinson, for the evidence.

[00:00:16] Speaker 00:
Good morning.

[00:00:20] Speaker 05:
Good morning, Your Honor.

[00:00:21] Speaker 05:
My name is Joshua Matz.

[00:00:22] Speaker 05:
I represent Plaintiff Appellant Neolukas.

[00:00:26] Speaker 05:
I hope to simplify things this morning by zeroing in on the most straightforward basis for reversal.

[00:00:32] Speaker 05:
In our view, this is fundamentally a funder basin step two case.

[00:00:37] Speaker 05:
The key question, therefore, is whether the CSRA evinces a congressional purpose to preclude claims of this kind, namely federal anti-discrimination and retaliation claims against federal employee unions, from being filed in district court.

[00:00:52] Speaker 05:
And the answer to that question is no.

[00:00:54] Speaker 05:
There are four fundamental reasons why that is true.

[00:00:57] Speaker 05:
A principal reason, that in my view is sufficient, and three significant supporting reasons.

[00:01:02] Speaker 05:
And if you'll allow me just a minute or two to set the table, I'll summarize what those reasons are.

[00:01:08] Speaker 05:
First and principally, the CSRA does not create effective or meaningful judicial review here.

[00:01:15] Speaker 05:
When a federal employee grieves a discrimination issue against her union, and that grievance is denied by the FLRA's regional director and general counsel, as happens in virtually all cases, there is absolutely no right whatsoever to judicial review in any court.

[00:01:33] Speaker 05:
So a finding of preclusion would foreclose judicial review of virtually all discrimination claims against unions decided by the agency.

[00:01:42] Speaker 05:
That alone distinguishes this case from all those cited by appellee, where the plaintiff's claims could ultimately, in at least some form, reach a court, and in our view that is a sufficient basis.

[00:01:53] Speaker 01:
But there are three- Are you sure that it can't reach a reviewing court?

[00:01:57] Speaker 01:
Because if the general counsel agrees, then it goes through a process and there's a final

[00:02:04] Speaker 01:
Right, if the general counsel sustains, I guess, the grievance.

[00:02:07] Speaker 05:
So this court actually lays out in Turchin versus FLRA, which is a case from 1982 that's cited in our reply brief, basically the way the act works is if a grievant succeeds before the regional director or before the general counsel, then it can potentially go to the FLRA and from there to a federal appellate court.

[00:02:29] Speaker 05:
But if a claim does not succeed at that stage, which studies indicate is the case for roughly 99% of claims, then there is no further right of judicial review.

[00:02:41] Speaker 01:
And so what that means- It's just I think the legal senior says any right, and it just seems like there is a right, although unlikely, to judicial review.

[00:02:49] Speaker 05:
Respectfully, the standard is meaningful or effective.

[00:02:52] Speaker 05:
That's the phrase the court has repeatedly used.

[00:02:54] Speaker 01:
And in the Axon enterprise case- But it would be meaningful if you succeed.

[00:02:59] Speaker 01:
and go to the appeals, that's meaningful review.

[00:03:02] Speaker 01:
So I guess I'm focused on any not meaningful because you can't say that it's not meaningful review if you succeed.

[00:03:09] Speaker 01:
You go all the way through and get a ruling from the Federal Circuit.

[00:03:12] Speaker 01:
Respectfully, I disagree with that.

[00:03:13] Speaker 05:
No?

[00:03:14] Speaker 05:
As Justice Kagan pointed out in the Axon Enterprise case, the premise underlying this step in the funder basin step two inquiry is that it would be passing strange, and it is certainly not the norm in our system, that a claimant never has a chance to get to court.

[00:03:29] Speaker 01:
And in particular, that agency action is an- But again, you're saying never, and if they succeed, then they do.

[00:03:34] Speaker 05:
What she highlights is it's unusual for there not to be some opportunity for there to be judicial review of agency decisions.

[00:03:41] Speaker 05:
And the rule has never been that the Thunder Basin step is satisfied.

[00:03:47] Speaker 05:
If you win in the district, if you win in the agency,

[00:03:50] Speaker 05:
And then you have the possibility, I suppose, of losing in federal district court.

[00:03:54] Speaker 05:
The concern is on the part of the person bringing the claim.

[00:03:57] Speaker 05:
Accepting the district court's finding would mean that if the agency rejects the claim of discrimination, which again happens virtually always,

[00:04:06] Speaker 05:
then there is no ability at all to get into district court.

[00:04:09] Speaker 02:
So the only circumstance where- So Mr. Matz, on this first factor, is there another case other than Axon on which you would rely for showing that this scheme doesn't allow for meaningful judicial relief, or do you think Axon is the best comparison?

[00:04:23] Speaker 05:
I think the Free Enterprise Fund versus PCAOB case is our best case on that.

[00:04:28] Speaker 05:
And the reason I would refer to that case is there what the Supreme Court emphasized is that although certain decisions could go to the commission and then ultimately to a court, not all board decisions were memorialized or encapsulated in a final commission ruling.

[00:04:42] Speaker 05:
And the fact that there was a gap there where there's some internal process could lead not to judicial review was sufficient to treat that first step as satisfied.

[00:04:51] Speaker 05:
And what I would highlight is that having reviewed a great many of this court's cases on the topic, I haven't found a single case in which this court has ever said that if the agency rules against you and you have no opportunity for judicial review,

[00:05:06] Speaker 02:
that would support a finding

[00:05:19] Speaker 02:
substantive right to judicial review.

[00:05:21] Speaker 02:
And instead, one reading of especially Axon, right, is you have an ill fit for this type of claim within the statutory scheme.

[00:05:29] Speaker 02:
In other words, its chances of meaningful judicial review are much lower than the normal claims that Congress obviously intended to go to the agency.

[00:05:40] Speaker 02:
And the point being that even if you're correct,

[00:05:43] Speaker 02:
that you only have a low chance of judicial review.

[00:05:47] Speaker 02:
It's exactly the chance of review Congress saw sufficient for every unfair labor practice.

[00:05:53] Speaker 02:
In other words, you wouldn't be somehow disfavored

[00:05:58] Speaker 02:
in terms of your chances of judicial review compared to everything else the FLRA does.

[00:06:03] Speaker 02:
Does that concern make sense and can you give a response?

[00:06:06] Speaker 05:
It does make sense.

[00:06:06] Speaker 05:
I have two responses to that.

[00:06:08] Speaker 05:
There are sort of different kinds of responses.

[00:06:10] Speaker 05:
One response, and this is a sort of bigger point so we can come back to it, is that in addition to the lack of judicial review, we think there are additional features of the Title VII

[00:06:20] Speaker 05:
of the Civil Rights Act framework and the ADA framework that would further support not having preclusion here.

[00:06:27] Speaker 05:
And I can come back to those because those in my mind are also helpful.

[00:06:29] Speaker 05:
But on the specific point that you're asking, the way that the scheme works, as you point out, is that there isn't in general the ability to get federal district court review of agency decisions denying unfair labor practice grievances.

[00:06:43] Speaker 05:
But as the Supreme Court made clear in Cahalios, there's no implied cause of action in general to bring a student federal district court relating to a breach of the duty of fair representation in this setting.

[00:06:53] Speaker 05:
And so the thing that you're saying can't otherwise be brought to court is a claim that doesn't exist, which would be that kind of stand-alone claim.

[00:07:00] Speaker 05:
The practical implication of that is that there's a kind of unique disfavoring in the way that this is set up of discrimination-related claims in particular.

[00:07:10] Speaker 05:
And I do think that that is a somewhat sort of specific circumstance.

[00:07:13] Speaker 01:
Can you explain why that's unique?

[00:07:14] Speaker 01:
Because I think what Judge Garcia is getting at is that the CSRA says in 7116B that it's an unlawful labor practice to discriminate against an employee for a list of things, including on the basis of sex and handicap condition.

[00:07:33] Speaker 01:
And so maybe Congress just intended that there wouldn't be

[00:07:37] Speaker 01:
anything beyond this.

[00:07:39] Speaker 01:
Look, what you get is what you get in the CSRA.

[00:07:41] Speaker 05:
Sure.

[00:07:42] Speaker 05:
I have a few responses to that.

[00:07:43] Speaker 05:
But I want to start by rejecting the premise, if I can.

[00:07:45] Speaker 05:
7116B4 doesn't apply to this case, because it only applies to discrimination by labor organizations against their, relating to the terms and conditions of membership in the labor organization.

[00:08:01] Speaker 01:
But that's what we have before us, isn't it?

[00:08:03] Speaker 05:
It is not.

[00:08:03] Speaker 05:
Miss Lucas was not a member of the union, which probably explains why Appellee

[00:08:07] Speaker 05:
Nowhere in their brief relies on 7116B4 as the font of the prohibition on discrimination.

[00:08:14] Speaker 05:
They instead rely on 5 USC 7114A1.

[00:08:20] Speaker 05:
This is clear at appellee brief page 36.

[00:08:23] Speaker 05:
Under 7114A1, the relevant sentence that they rely on is a sentence that says, an exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor union membership.

[00:08:40] Speaker 05:
organization membership, they take the position that that language encompasses comprehensively Title VII, ADA, and FLSA anti-discrimination protections.

[00:08:51] Speaker 05:
So that's the first thing I just want to clarify, which is they're actually not relying on that.

[00:08:55] Speaker 05:
But the more basic point is that even if you grant the premise, which I don't,

[00:09:00] Speaker 05:
that under the CSRA, the prohibition on discrimination is coterminous with that in the anti-discrimination laws, and that such discrimination is characterized as an unfair labor practice.

[00:09:12] Speaker 05:
The fact that it is an unfair labor practice does not automatically imply that federal district courts are otherwise divested of the jurisdiction they would have under 28 U.S.C.

[00:09:21] Speaker 05:
1331 to hear a claim.

[00:09:24] Speaker 05:
And the way that courts have traditionally approached that, as I pointed out, is the funder basin

[00:09:27] Speaker 05:
Inquiry.

[00:09:28] Speaker 05:
The fact that if the agency denies the discrimination claim, you can never get into court on it is at least one reason to have some skepticism that Congress would have intended.

[00:09:37] Speaker 05:
No judicial review of discrimination claims that the agency doesn't accept.

[00:09:41] Speaker 01:
The more direct approach is it's an

[00:09:45] Speaker 01:
unfair labor practice, and Congress didn't intend for any of these unfair labor practices to get into district court.

[00:09:50] Speaker 05:
Well, I think that's the question that we're really talking about here.

[00:09:53] Speaker 05:
And, you know, in thinking about reasons why... I'm sorry, Judge Pillard?

[00:09:56] Speaker 06:
No, no, I didn't want to interrupt your answer, but it's just in my mind that you had four reasons, and I'd love to just...

[00:10:04] Speaker 06:
for understanding where you're coming from, have those at some point, but I didn't mean to interrupt.

[00:10:08] Speaker 05:
Why don't I put those on the table if it's okay?

[00:10:10] Speaker 05:
Happy to talk about them more.

[00:10:12] Speaker 05:
Right, so as I indicated, under Thunder Basin, right, the ultimate question is how to understand what Congress has done.

[00:10:18] Speaker 05:
The first traditional Thunder Basin factor is judicial review, as we point out if the agency denies that you can't get review.

[00:10:24] Speaker 05:
We think there are three additional reasons that it doesn't make sense to think that Congress would have wanted to preclude these claims from getting into district court.

[00:10:31] Speaker 05:
First, there's a powerful congressional presumption that the Supreme Court recognized years before the CSRA was enacted, that Title VII protections operate concurrently with other statutory schemes.

[00:10:41] Speaker 05:
So this is, for example, the opposite of the norm in the constitutional setting, where usually if you have a mixed constitutional and agency claim, you have to exhaust the agency machinery before you go to court.

[00:10:51] Speaker 05:
The presumption is flipped in this context.

[00:10:53] Speaker 05:
You presume that Title VII operates concurrently.

[00:10:55] Speaker 05:
The second reason that it would make sense to think Congress did not intend preclusion is that that would leave federal employees with a second-rate slate of anti-discrimination protections vis-a-vis their own unions, which would separate them starkly from the protections that federal employees have against their government employer, and that would separate them from the protections that private employees have against both their employer and their union.

[00:11:19] Speaker 05:
In that grid,

[00:11:21] Speaker 05:
federal employees as against their unions would be uniquely disadvantaged remedially, substantively, and procedurally with respect to discrimination, there's no evidence that Congress meant that result.

[00:11:31] Speaker 05:
And the final reason that it makes sense to think that there wouldn't be preclusion here is that Congress expressly preserved district court jurisdiction over anti-discrimination claims arising under Title II of the CSRA, which involves prohibited personnel actions by the federal government as an employer against their employees.

[00:11:48] Speaker 05:
The unions would have us believe that the inference from that is they didn't intend such a savings to operate here.

[00:11:54] Speaker 05:
But I actually think the opposite inference is the more natural one.

[00:11:57] Speaker 05:
Congress believed that the CSRA scheme was perfectly consistent with the exercise of concurrent jurisdiction.

[00:12:03] Speaker 05:
They said so expressly.

[00:12:05] Speaker 05:
in the context of prohibited personnel actions.

[00:12:07] Speaker 05:
It made sense that they did that because that provision, which works a waiver of sovereign immunity, expressly referenced a whole series of specific federal anti-discrimination laws as prohibited personnel actions.

[00:12:19] Speaker 05:
And they wanted to make sure that in doing so, they didn't inadvertently strip away the jurisdiction that would otherwise exist for claims under those statutes.

[00:12:27] Speaker 01:
But given that discrimination is also expressly mentioned in the two

[00:12:32] Speaker 01:
Provisions we previously talked about, both 71-14A1 and 71-16B.

[00:12:37] Speaker 01:
Why would that also spark them to say, there's a carve out, there's a savings clause?

[00:12:43] Speaker 05:
I think for two reasons, a kind of formal one, and then if I can, a practical one.

[00:12:47] Speaker 05:
The formal one is that having expressly articulated that the provision that covers prohibited personnel actions incorporates, and they actually enumerate a specific series of federal statutes, it would make sense that they felt like, oh, but we also want to be really clear that we're not removing the jurisdiction that would generally arise under those claims.

[00:13:05] Speaker 05:
Whereas here, they describe the prohibition on discrimination in frankly just rougher and shorter and more abbreviated terms.

[00:13:12] Speaker 05:
There isn't an express enumeration in anything like the same way of the incorporation of those provisions.

[00:13:18] Speaker 05:
And with respect to 7114A1 in particular, and I would highlight this, when you're not a union member, the only protection you have against discrimination is when the union is representing your interest.

[00:13:30] Speaker 05:
it doesn't on its face prohibit discrimination against you in other ways, which the union all but admits when they treat the sexual harassment that happens here as not part of the representational conduct.

[00:13:40] Speaker 05:
The implication of that would be that Congress essentially intended a gap in which you both can't go to federal court, but also you get weaker anti-discrimination protections.

[00:13:51] Speaker 05:
And I think the more natural question to ask is, would Congress have intended

[00:13:56] Speaker 05:
a sort of skim milk anti-discrimination regime here, when in the private sector context, under Title VII of the Civil Rights Act, unions are actually subject to a broader duty of non-discrimination than employers are.

[00:14:10] Speaker 05:
And so the question is, why would they flip that here?

[00:14:11] Speaker 05:
And to me, that supports the inference that under Title II of the CSRA, they expressly authorized it because they needed to be extra careful, given their enumeration of these provisions,

[00:14:21] Speaker 01:
How do you deal with our case law that says if Congress wants to preserve remedies outside the CSRA, it does so expressly?

[00:14:29] Speaker 05:
Well, so for starters, all of those arose in the context of Title II, where it makes more sense to think that that would be the case because of the way they expressly carved out the data discrimination laws.

[00:14:37] Speaker 01:
It doesn't say under Title II, it says the CSRA.

[00:14:40] Speaker 05:
Well, those cases arose in the context of Title II, and so at best it's dicta for them to be cross-applied without any sort of consideration to the pretty different scheme that applies under Title VII of the CSRA.

[00:14:50] Speaker 05:
But even acknowledging that, the question still remains under the Thunder Basin analysis whether

[00:14:58] Speaker 05:
whether the traditional factors for preclusion apply, because the courts of this, this court's decisions, which do admittedly have some broad language, I think better apply to that thunder base and step one way of thinking about it.

[00:15:12] Speaker 05:
Is there a comprehensive scheme?

[00:15:14] Speaker 05:
And in asking whether there's preclusion at the second step, I mean, think about the Trump case, the AFGE versus Trump case, right?

[00:15:22] Speaker 05:
Judge Sridharvasan in that case didn't just say, well, there's no expressive carve-out, so you lose, which would essentially follow from the reasoning that Your Honor just described.

[00:15:29] Speaker 05:
He wrote a quite lengthy opinion in which he really highlighted the fact that there were at least three administrative ways in which you could ultimately get judicial review.

[00:15:37] Speaker 05:
Oh, sorry, that wasn't Chief Judge Sridharvasan.

[00:15:38] Speaker 05:
That was Judge Griffith.

[00:15:39] Speaker 05:
I'm thinking of the Jarkazee case in which Judge Sridharvasan similarly had a quite comprehensive analysis

[00:15:44] Speaker 05:
But this court, in its more recent opinions, and that includes Judge Pillard, your recent Ahuja case in which you did the same thing with respect to OPM employee benefit determinations, where you highlighted the fact that there's ultimately an appeal through the APA into the federal district courts.

[00:16:00] Speaker 05:
All of the cases engage in that analysis instead of just saying it's preclusive unless there's an express carve out, which is why we think this mode of analysis is correct.

[00:16:09] Speaker 02:
Can you just address the Thunder basin factor to if we're going to think about it that way.

[00:16:13] Speaker 02:
My understanding is at least some of our cases can be read to say basically can the same conduct be redressed or is this something that is.

[00:16:25] Speaker 02:
well, totally collateral to the types of claims that the agency typically considers, and it struck me that that might be a difficult factor for you.

[00:16:33] Speaker 02:
What's your argument on factor two?

[00:16:35] Speaker 05:
I'm going to have two points.

[00:16:36] Speaker 05:
The first is that it's okay if I don't win on that factor, and the second is that we think we have a good argument under it.

[00:16:41] Speaker 05:
So let me start with the first point, which is that

[00:16:43] Speaker 05:
The Supreme Court and this court have repeatedly emphasized that the three thunder basin considerations are not mechanical, that you don't need to have all of them.

[00:16:51] Speaker 05:
The Supreme Court made that clear in Axon.

[00:16:53] Speaker 05:
This court highlighted that in the Trump case.

[00:16:55] Speaker 05:
And the reason I want to emphasize that is some of the points that I foregrounded at the beginning about the presumption about Title VII operating concurrently, about the peculiarity of a skim milk anti-discrimination regime here.

[00:17:06] Speaker 05:
You could think of those as loosely tracking the second and third thunder basin considerations.

[00:17:11] Speaker 05:
But maybe not, maybe they're not the best fit, but we think there's still really powerful evidence of how you would think of congressional purpose.

[00:17:18] Speaker 05:
And I just want to emphasize that.

[00:17:19] Speaker 05:
But with respect to the second funder-based factor, which is this wholly collateral to the agency's review provisions.

[00:17:27] Speaker 05:
That has been spoken about in a bunch of different ways.

[00:17:30] Speaker 05:
That factor, I have to admit, has always struck me as not a model of precision.

[00:17:34] Speaker 05:
Sometimes court talk about it as, does your claim have nothing at all to do with what's going on in the agency process?

[00:17:39] Speaker 05:
That's the free enterprise fund way of thinking about it.

[00:17:42] Speaker 05:
In other context, the court asks, can you get the same remedy, which is how the Supreme Court foregrounds it in the Axon Enterprise case.

[00:17:49] Speaker 05:
And in other contexts, it seems to be more of a gestalt inquiry into does this feel like it's related or not.

[00:17:56] Speaker 05:
From the perspective, at least, of the remedy inquiry, which is the Supreme Court's most recent guidance, we think that the remedies that you can get within the agency with respect to discrimination are quite significantly and starkly different.

[00:18:08] Speaker 05:
All you can get within the agency process

[00:18:11] Speaker 05:
if you make it all the way, which no one does, is a make-all remedy in general.

[00:18:17] Speaker 05:
You can get an informational poster, you can get a requirement of getting back pay, you can get reimbursement, you can't get compensatory damages, you can't get punitive damages.

[00:18:27] Speaker 02:
Is it clear that you can't get compensatory damages?

[00:18:29] Speaker 02:
It's certainly clear that FLRA doesn't think you can impose penalties, so nothing akin to punitive damages.

[00:18:34] Speaker 02:
But you can have a make-hole remedy, and at least I just couldn't find a clear answer about the scope of the FLRA's authority to give a make-hole remedy that looks a lot like compensatory damages.

[00:18:46] Speaker 05:
I haven't found a case that says you can't, but I also haven't found anything that says you can.

[00:18:51] Speaker 05:
And I've read a lot of FLRA opinions, and maybe my friend on the other side will be able to indicate one, and if so, I'll happily concede the point.

[00:18:59] Speaker 05:
But we have not found authority for that proposition.

[00:19:01] Speaker 05:
The EEOC, I should note, reached the same conclusion in their amicus briefs based on their understanding of how the FLRA operates.

[00:19:08] Speaker 05:
And I would note on this second factor, and this maybe relates both to the second and third funder basing consideration.

[00:19:13] Speaker 05:
The EEOC has long understood it to be the case that someone in my client's position is not precluded from going the EEOC route and going to that agency and going to federal district court.

[00:19:26] Speaker 05:
Also the FLRA.

[00:19:27] Speaker 05:
So if you go on the FLRA website, and I'm not sure this is in our papers and if it's not, and if it would be helpful, I'm happy to submit this in a supplemental letter, but I spent a lot of time on the FLRA website in advance of this hearing.

[00:19:37] Speaker 05:
They have a section on their website that is advice for employees who want to bring on fair labor practices.

[00:19:42] Speaker 05:
And in that part of their website where they offer advice about what to do if you would like to bring in unfair labor practice, what they tell you to do is to go to the EEO state.

[00:19:51] Speaker 05:
Here's the exact language.

[00:19:53] Speaker 05:
If you believe that you have been discriminated against because of race, ethnicity, religion, age, gender, national origin, or sexual orientation, contact the Equal Employment Opportunity Commission or the EEO office at your agency.

[00:20:05] Speaker 05:
And when we more broadly, and we do cite these materials in our papers, when we more broadly looked at has the FLRA addressed these sorts of things, which goes partially to the collateralism angle and partially to the agency expertise angle.

[00:20:18] Speaker 05:
The short answer is no.

[00:20:19] Speaker 05:
I could not find a single opinion at all of the FLRA in which they resolved, at the FLRA level at least, a claim of discrimination against a union on the protected characteristics at issue here.

[00:20:32] Speaker 06:
Right, we don't see the claims against the union, but isn't that language on the FLRA website telling employees it represents what to do in the event that they've been discriminated against on those bases by the employer?

[00:20:47] Speaker 05:
It's not, because that's on the page for unfair labor practices, which are distinct in kind from prohibited personnel practices.

[00:20:54] Speaker 05:
prohibited personnel practices govern the relationship between the employer and the employee.

[00:20:59] Speaker 05:
Unfair labor practices, which are set forth at 7114B, sorry, 5 U.S.C.

[00:21:04] Speaker 05:
7116B govern the relationship between the union and the people within the board.

[00:21:10] Speaker 06:
But isn't this, you said there's a separate page on prohibited employment practices?

[00:21:17] Speaker 06:
I know there's a separate provision, but you're saying there's a separate page for it?

[00:21:20] Speaker 06:
Like, is this ULP sort of like, you've got a ULP, hey, if there's a discrimination piece of what's happened to you?

[00:21:27] Speaker 06:
I'm just trying to, I haven't looked at any of that.

[00:21:30] Speaker 05:
If it's helpful, I'm happy to just submit the website after the argument.

[00:21:33] Speaker 05:
You know, part of what we struggled with here is,

[00:21:37] Speaker 05:
It seems to me improbable that there are no instances of federal unions being accused of discrimination on these grounds by their members.

[00:21:45] Speaker 05:
But there are, as you know, exceedingly few federal district court cases that address this.

[00:21:49] Speaker 05:
There are a few.

[00:21:49] Speaker 05:
There's a sort of split of district court authority about whether you can have a Title VII claim in this circumstance.

[00:21:54] Speaker 05:
And so I thought, well, maybe there's just a whole bunch of FLRA cases that would evidence the fact that this is part of their normal process and they do this all the time and it's within their expertise.

[00:22:02] Speaker 02:
Well, that might be because 99% don't get a complaint and get to a hearing.

[00:22:06] Speaker 05:
Well, so I think that may be part of what we're seeing, which is that the agency's online outline of case law that they make publicly available from their general counsel's office does not provide any examples of this.

[00:22:17] Speaker 05:
that they're on their website telling people to go to the EEOC, that there's no FLRA authority about this, and that all of the available public data is that, to the extent claims of this kind are ever brought, ever brought, and even under the B6 provision that Your Honor was referring to, they reported in an eight-year period only 26 of which, every single one of which, failed within the agency before it got to the FLRA stage.

[00:22:39] Speaker 02:
Can I ask you about you said as a factual matter?

[00:22:41] Speaker 02:
I think it's before doesn't apply Because she wasn't a member of the union.

[00:22:47] Speaker 02:
Yes, sir.

[00:22:47] Speaker 02:
My understanding from the brief was that

[00:22:50] Speaker 02:
part of the conduct that issue here is that the union terminated Lucas's membership, so that she was a member.

[00:22:57] Speaker 02:
She's complaining about a whole host of actions, including her termination of membership, but that, for that reason, B4 would apply.

[00:23:06] Speaker 02:
Is that why you said that?

[00:23:07] Speaker 05:
I appreciate that this is confusion.

[00:23:10] Speaker 05:
Based on my review of the record and of what the district court concluded,

[00:23:14] Speaker 05:
and my conversations with my client, which I appreciate is not part of the record, my understanding is that she was not part of the union and that what she was referring to in that part of her pleading was that she was essentially kicked out of the bargaining unit, that they wouldn't advocate for her or represent her anymore, but that she wasn't talking about union membership in the B6 sense of the term, as that provision would apply here.

[00:23:35] Speaker 05:
Some indication of that is that the appellee, despite having every reason in the world to have featured B4 prominently in their brief, did it.

[00:23:48] Speaker 05:
And instead, they locate, and it was sort of an arresting sentence, they locate the entirety of federal anti-discrimination law in this context within 711481.

[00:23:58] Speaker 05:
That's at page 36 of their brief.

[00:24:00] Speaker 01:
I understand.

[00:24:00] Speaker 01:
And can you address, I mean, what I hear you saying is that you contemplate

[00:24:04] Speaker 01:
parallel proceedings before the FLRA and in the district court.

[00:24:08] Speaker 01:
But isn't that exactly what the CSRA is trying to prevent?

[00:24:12] Speaker 01:
It doesn't want duplicative proceedings.

[00:24:14] Speaker 01:
It doesn't want contradictory rulings on the same sets of facts.

[00:24:18] Speaker 01:
So how is this consistent with the intent of the CSRA?

[00:24:22] Speaker 05:
Sure, two responses to that, one of which is about Title II of the CSRA and the other of which is actually about the NLRB.

[00:24:29] Speaker 05:
So let me start with the second of those.

[00:24:32] Speaker 05:
There have been, just to start, a number of federal district court cases, the EEOC cites them in their amicus brief, in which Title VII claims were brought in a similar posture to this one, and district courts seemingly sort of didn't do a thunder, they just didn't have that question in front of them, but they did address them as it were on the merits rather than from a posture of jurisdiction or preclusion.

[00:24:51] Speaker 05:
So there's some authority that district courts have done this.

[00:24:54] Speaker 05:
So it's a thing that can happen.

[00:24:56] Speaker 05:
And in the NLRB context, which strikes me as a decent analogy for this one, the norm is of concurrent jurisdiction over fair representation issues when they encompass a discrimination aspect.

[00:25:07] Speaker 06:
What about state or local employees versus their unions, as opposed to you just refer to the concurrent jurisdiction for federal employees

[00:25:19] Speaker 06:
versus their employers, what about state or local government employees versus their unions?

[00:25:26] Speaker 05:
Also a good analogy, I would expect.

[00:25:29] Speaker 05:
The idea that you can have simultaneously that discrimination by a union against its members can give rise both to an administrative process and jurisdiction in a federal district's court over a claim is the norm, not the exception in federal labor law.

[00:25:47] Speaker 06:
bit of an odd terrain here where we have circuit precedent of our own building off of Supreme Court precedent about the CSRA that both pre and post Thunder Basin that doesn't use a Thunder Basin analysis.

[00:26:06] Speaker 06:
And, you know, one takeaway from that is that it doesn't matter for purposes of

[00:26:14] Speaker 06:
understanding Congress's intent in the CSRA, whether the individual may not get as good remedies or even any remedy at all.

[00:26:23] Speaker 06:
And I'm just wondering how do we square that with the Thunder Basin analysis that you lead with, that you feature, really to the exclusion of all that doctrine?

[00:26:35] Speaker 05:
Sure question.

[00:26:36] Speaker 05:
The way I would approach that is to say the following.

[00:26:39] Speaker 05:
In its most recent guidance on how you approach preclusion in the CSRA context, the Supreme Court in Elgin applied the thunder basin factors.

[00:26:48] Speaker 05:
I think that by itself renders any other approach inconsistent with binding Supreme Court precedent.

[00:26:54] Speaker 05:
Axon Enterprise further confirms that, and this court's recent decisions in cases like the Trump case, the Ahuja case, indirectly the Jarkazi case, all support that idea.

[00:27:06] Speaker 05:
The more modern cases, and certainly the Supreme Court's guidance, has been that Thunder Basin does provide the appropriate analytical framework from which to approach this issue.

[00:27:18] Speaker 01:
Although Thunder Basin does just try to get at congressional intent, and sometimes there's more direct evidence of congressional intent than having to go through those factors.

[00:27:25] Speaker 01:
But can you address the case of Spagnola versus Mathis?

[00:27:30] Speaker 01:
I'm talking about not the on point one, but the panel opinion.

[00:27:34] Speaker 01:
And that seems to be quite on point in some ways.

[00:27:37] Speaker 01:
And are you familiar with this case?

[00:27:39] Speaker 01:
This is the case where there was

[00:27:44] Speaker 01:
an employee that wanted to proceed under 42 USC 1985-1.

[00:27:47] Speaker 01:
Is this the Bivens case?

[00:27:51] Speaker 01:
No.

[00:27:51] Speaker 01:
Well, there was a Bivens aspect which went en banc, but there was also a claim to proceed under statutory provisions.

[00:27:59] Speaker 01:
I apologize.

[00:27:59] Speaker 05:
I'm not familiar with the case.

[00:28:00] Speaker 01:
Oh.

[00:28:01] Speaker 01:
So it was written by Judge Skelly Wright.

[00:28:05] Speaker 01:
And he says, this is section three of the opinion, whether Congress in enacting the CSRA may permissibly have foreclosed Bagnola's

[00:28:13] Speaker 01:
resort to a pre-existing statutory action is a question entirely distinct from the foreclosure of his constitutional claim.

[00:28:21] Speaker 01:
And then he goes on to talk about the statutory, the way CSRA interacts with the statutory claim.

[00:28:28] Speaker 01:
And ultimately, he says, CSRA is the exclusive remedy for aggrieved federal employees advancing non-constitutional claims.

[00:28:38] Speaker 01:
And that seems to be a pretty strong statement that

[00:28:43] Speaker 01:
These Title VII claims would be precluded.

[00:28:44] Speaker 01:
Title VII predated the CSRA, and it was a preexisting statutory claim.

[00:28:50] Speaker 01:
And this case says that the CSRA is the exclusive remedy.

[00:28:56] Speaker 05:
Was that a case that involved a union, or was that a prohibited personnel action case, if I may ask?

[00:29:01] Speaker 01:
I believe it was a union.

[00:29:03] Speaker ?:
OK.

[00:29:05] Speaker 05:
Well, I'll take the court at its word on that.

[00:29:06] Speaker 05:
What I would say is that if that were the rule, then a great deal of this court's jurisprudence since then has involved a needless expenditure of energy, because there have been a number of cases, including Judge Pillard, your case, the Ahuja case, in which you did not simply say, oh, well, there's a challenge to this OPM personnel action.

[00:29:26] Speaker 05:
The CSRA is implicated.

[00:29:28] Speaker 05:
It's a statutory claim in character, therefore,

[00:29:31] Speaker 05:
You know, cite that case, it's over.

[00:29:33] Speaker 05:
This court has repeatedly gone through that analysis, including in the Trump case.

[00:29:38] Speaker 05:
And in some ways, I think that there's a collision of two instincts here.

[00:29:42] Speaker 05:
One is that the CSRA is really broad, and this court has repeatedly held that it precludes a lot of things.

[00:29:48] Speaker 05:
The only thing that a circuit court has expressly held that doesn't preclude is defamation claims in some circumstances.

[00:29:53] Speaker 05:
We refer to that in our reply brief.

[00:29:54] Speaker 05:
On the other hand, this court has never held that Title VII is precluded by anything.

[00:29:59] Speaker 05:
And the irregularity of finding Title VII to be precluded is only magnified by the fact that four years before the CSRA was enacted,

[00:30:08] Speaker 05:
The Supreme Court said in the Alexander case that the baseline assumption here is that Title VII operates in parallel to other schemes.

[00:30:16] Speaker 05:
And you would have to infer that when Congress enacted the CRA, they specifically contemplated a circumstance in which federal employees as to their unions have worse and weaker and substantively narrower anti-discrimination protections than every other class of public and private employees against their employers and unions.

[00:30:33] Speaker 05:
And that's like a big reach to me.

[00:30:35] Speaker 01:
Can we talk about that?

[00:30:36] Speaker 01:
Because it seems that there is some support for that.

[00:30:40] Speaker 01:
First, there is the statement, this is in ATF versus Federal Labs, it's a Supreme Court opinion, that Congress unquestionably intended to strengthen the position of federal unions and to make the collective bargaining process more effective in the CSRA.

[00:30:54] Speaker 01:
So they were trying specifically to do something for federal unions versus other.

[00:31:00] Speaker 01:
And then in the Carahalios opinion, they talked about the differences between

[00:31:05] Speaker 01:
I guess, you know, private collective bargaining type agreements versus the situation of federal unions.

[00:31:12] Speaker 01:
And it said that it's finding an applied right of action for duty of fair representation of the NLRA.

[00:31:23] Speaker 01:
And it stressed that by providing for exclusive bargaining agents, the pertinent statutes deprived bargaining unit employees of their individual rights to bargain for wages, hours, and working conditions.

[00:31:32] Speaker 01:
So it was critical that unions be required to represent all in good faith.

[00:31:36] Speaker 01:
That's the private unions.

[00:31:38] Speaker 01:
However, Title VII operates in a different context, Title VII of the CSRA.

[00:31:43] Speaker 01:
As the United States, as Amicus explains, the federal employment does not rest on a contract in the private sector sense,

[00:31:49] Speaker 01:
Nor is it clear that the deprivation of a federal employee suffers from the election of a bargaining agent, if there is such a deprivation, is comparable to the private sector predicament.

[00:31:58] Speaker 01:
Moreover, the collective bargaining mechanisms created by Title VII do not deprive employees of recourse to any of the remedies otherwise provided by statute or regulation.

[00:32:06] Speaker 01:
So this is Karahalios, and it's noticing the differences between private unions, unions representing private employees and government employees, and noting

[00:32:17] Speaker 01:
that there are substantial differences where unions who are relying on I guess private sector unions to represent them are much more dependent on them than the federal sector ones because there are statutory protections and other things.

[00:32:33] Speaker 01:
for federal employees.

[00:32:35] Speaker 05:
I completely take the point, and I understand that the underlying congressional design in the CSRA was to strengthen the position of federal employee unions to bargain with the government on behalf of their bargaining units as compared to the haphazard and scattershot scheme that existed before 1978.

[00:32:52] Speaker 05:
But it doesn't follow from the fact that Congress intended to strengthen the positions of unions in bargaining on behalf of their employees, on behalf of the members of their bargaining units, that it also intended to strengthen unions' abilities to engage in race and sex discrimination against the people they're supposed to represent.

[00:33:08] Speaker 05:
I just don't think that follows.

[00:33:11] Speaker 05:
And it's true that in Karahalios the court made clear that it was reluctant to imply a private right of action under the jurisprudence that had developed around implied causes of action that had kind of overthrown the Ancien regime and replaced it with a more stringent approach.

[00:33:25] Speaker 05:
And in doing so, it highlighted that the statutory structure was not one that seemed to contemplate freestanding federal causes of action for DFR claims.

[00:33:33] Speaker 05:
But here, we're not talking about whether to imply a cause of action.

[00:33:36] Speaker 05:
We're talking about whether to strip courts of jurisdiction over Title VII claims.

[00:33:39] Speaker 01:
I totally understand that.

[00:33:40] Speaker 01:
This just speaks to the idea that there are reasons to treat

[00:33:44] Speaker 01:
public employee unions differently from the ones that represent private employees?

[00:33:48] Speaker 05:
I agree and to me the question is how do we think Congress intended that they be treated differently and did Congress intend that they be able to discriminate more and that if they did discriminate more that there would be fewer remedies and worse procedural protections available to those against whom they discriminated.

[00:34:04] Speaker 05:
And I don't see evidence of that.

[00:34:06] Speaker 01:
It just seems that that seems to be the case in many of these CSRA cases where they find that all these other things are precluded.

[00:34:13] Speaker 01:
Other people can bring these claims, but you can't under the CSRA.

[00:34:16] Speaker 01:
Why is this any different?

[00:34:18] Speaker 05:
I disagree with that, Your Honor, respectfully.

[00:34:20] Speaker 05:
I mean, in all of those other cases, everyone, every case cited by appellee, every case by this court, this court made clear that a significant part of its conclusion was that the dispute could ultimately go to a court for review.

[00:34:31] Speaker 05:
There were cases where it said, you can't have a pre-enforcement challenge.

[00:34:34] Speaker 05:
You have to do it in the context of a concrete bargaining dispute.

[00:34:37] Speaker 01:
There were cases that said, we're not going to- But we've had cases that say, you don't have a claim here.

[00:34:42] Speaker 01:
And just because you don't have a claim here and you can't have a claim anywhere doesn't mean that you get one.

[00:34:47] Speaker 01:
And we have cases that say, it doesn't matter what the remedies are, because it seems to me that the CSRI specifically talks about discrimination.

[00:34:55] Speaker 01:
It's not like this is something new.

[00:34:57] Speaker 01:
And you're saying, well, Title VII gives us remedies of,

[00:35:00] Speaker 01:
damages and attorney's fees, but we have case law that says remedies doesn't matter.

[00:35:04] Speaker 01:
It's about the comprehensiveness of the scheme.

[00:35:06] Speaker 01:
I just think it's hard to get around the case law.

[00:35:08] Speaker 01:
I mean, if we were writing on a clean slate, it might be different.

[00:35:11] Speaker 01:
Given everything that's here, I think your position is difficult.

[00:35:15] Speaker 05:
I appreciate that.

[00:35:15] Speaker 05:
I believe you can and should get around the case law that you're describing, and if you'll allow me to draw a few distinctions to help you do it, I'll do that right now.

[00:35:23] Speaker 05:
Some of those cases are really highlighting the fact that pre-enforcement or systematic or nationwide challenges are not the appropriate means by which to attack certain alleged illegal action.

[00:35:34] Speaker 05:
That's the Air Force case, that's the Trump case, there's a number of other cases in that line.

[00:35:39] Speaker 05:
But in all of those cases, the crux of the court's reasoning is you can still challenge this, you just have to do it in a more concrete, individualized way that can still go to a federal appellate court for review at the end of it.

[00:35:51] Speaker 05:
That isn't the case here.

[00:35:53] Speaker 05:
Then there are a number of other cases in which the court says, and this is kind of like how Karahalios reasons about it, and there's a few others as well,

[00:35:59] Speaker 05:
that with respect to a class of persons who don't appear to have any rights vested in them by the statute, we're not going to infer that they should have a right because the scheme otherwise looks like Congress tried to pretty clearly decide who gets rights and who doesn't.

[00:36:14] Speaker 05:
And so we're not going to imply causes of action on that basis alone.

[00:36:17] Speaker 05:
And then there's a third class of cases where the court says, well, even if you don't get the same remedies that you could get with a standalone federal cause of action,

[00:36:27] Speaker 05:
You get remedies that are sort of good enough or something, and you can ultimately go to court on the substance of your claim.

[00:36:33] Speaker 05:
What's most striking and different here, what separates this case from all the others, is not only that the anti-discrimination protections within the agency are worse, it's that if you bring a grievance about them in the agency and you don't succeed, you don't get judicial review.

[00:36:48] Speaker 05:
I can't think of any other case

[00:36:50] Speaker 05:
in which a federal court has held that if someone discriminates against somebody in an agency setting, and the agency rejects their claim, and there's no further judicial review, you lose anti-discrimination protections that you otherwise have as a matter of federal law, which are themselves broader, not just in remedy, but in what they prohibit than the relevant intra-agency anti-discrimination protections.

[00:37:15] Speaker 05:
To me, that would be a startling announcement for this court to make.

[00:37:18] Speaker 05:
And again, remember that Congress passed the CSRA in 1970.

[00:37:22] Speaker 05:
I keep going back to this because the congressional intent inquiry is an important part of it.

[00:37:27] Speaker 05:
They passed it against the recent enactment of Title VII as a crown jewel of the Civil Rights Movement, against the Supreme Court's declaration that it presumptively exists alongside any other remedies that may exist within the law.

[00:37:40] Speaker 05:
They put into Title II of the law an express savings clause

[00:37:45] Speaker 05:
which I think they needed because of the way they wrote that provision, but in my mind, very clearly evinced their understanding that Title VII remedies would exist concurrently alongside their scheme.

[00:37:54] Speaker 02:
How much of this argument turns on the idea that she wasn't a member of the Union?

[00:37:58] Speaker 02:
Because one powerful argument on the other side to exactly what you just said is that at least as to 716B4, it sure looks like Congress looked at Title VII

[00:38:12] Speaker 02:
and maybe the Rehabilitation Act, and wrote an unfair labor practice that, yes, the introductory language is slightly different, but it says it's an unfair labor practice to discriminate on all of these exact bases.

[00:38:25] Speaker 02:
And in that situation, if that were this case, I mean, I guess you would still have all of the same arguments, but it would be far more difficult to say, oh, Congress just didn't think about

[00:38:41] Speaker 02:
Well, here's a different way of putting it.

[00:38:43] Speaker 02:
Isn't 716B4 a affirmative indication that Congress thought about discrimination claims and said they can and they should go to the FLRA?

[00:38:53] Speaker 05:
I think it is.

[00:38:54] Speaker 05:
I do think it is that.

[00:38:55] Speaker 05:
The question is whether you infer from that a further assumption that they thought they couldn't also be brought in federal district court, which is that kind of preclusion question.

[00:39:04] Speaker 05:
But A, the fact that she was not a member of the union is certainly helpful to us.

[00:39:09] Speaker 05:
I won't deny that.

[00:39:10] Speaker 05:
On the other hand, even if you look at 5 U.S.C.

[00:39:12] Speaker 05:
7116B4, it doesn't create as categorical a prohibition on discrimination.

[00:39:18] Speaker 05:
And this is the EEOC's major argument in its brief.

[00:39:21] Speaker 05:
We make this point as well.

[00:39:22] Speaker 05:
It doesn't sweep nearly as far as the general federal anti-discrimination protections because all it refers to is the terms or conditions of membership in the legal organization.

[00:39:32] Speaker 05:
And there are maybe other respects in which a union discriminates against people within its bargaining unit or even against its members that may not fit that category.

[00:39:40] Speaker 05:
The union certainly thinks that's true.

[00:39:41] Speaker 02:
What's an example of that?

[00:39:42] Speaker 05:
Well, they seem to believe sexual harassment would fall within that compass.

[00:39:46] Speaker 05:
And more generally, when we look at FLRA cases that seem to address this in the case outlines, those cases all seem to involve kicking people out or not allowing them into unions, and you don't have the terms and conditions type jurisprudence that you would expect to see that would be maybe more analogous to the Title VII of the Civil Rights Act.

[00:40:06] Speaker 05:
But it's a totally fair point, which is Congress understood that some forms of odious discrimination would be unfair labor practices with respect to the way that unions treat members of the unions in some settings.

[00:40:19] Speaker 05:
The question then is with respect to the way that unions treat nonmembers who are part of their exclusive bargaining unit, which would be my client, and with respect to the way that unions treat their members outside of the limitations of B4,

[00:40:33] Speaker 05:
Is it fair to think that Congress thought it was stripping federal district courts of the jurisdiction they already possessed under Title VII, and that they would in the future come to possess under the ADA and the FLSA?

[00:40:43] Speaker 05:
We think the better position is no.

[00:40:45] Speaker 06:
The FLSA seems different.

[00:40:48] Speaker 06:
How much of what you're arguing, I mean, there's no Alexander versus Gardner Denver.

[00:40:52] Speaker 06:
It's more labor law-ish.

[00:40:57] Speaker 06:
It doesn't have that.

[00:40:59] Speaker 06:
that pedigree, that kind of supercharged character.

[00:41:03] Speaker 06:
It's not dealt with in the employer part of the CSRA differently.

[00:41:09] Speaker 06:
You don't, you know, in the reply brief really say much about Lucas's FLSA claim.

[00:41:17] Speaker 05:
We think the FLSA claim is on somewhat weaker footing than the Title VII and the ADA claim.

[00:41:21] Speaker 05:
We think it is fully consistent with the broader congressional design that a retaliation claim in that setting could be separately filed, but I think the stronger heart of our case is in the ADA and Title VII realm.

[00:41:38] Speaker 01:
I'm wondering about this distinction between 116B and 114A1, because you're telling us that she's not a member of the union, so only

[00:41:49] Speaker 01:
114 a one applies, but don't we have to go by what's in her complaint because she says that she was expelled from the union.

[00:41:55] Speaker 01:
Do we need to treat her as a union member for our purposes because that's what she alleged.

[00:42:02] Speaker 05:
So I can pull the relevant parts of the, I think the complaint is a little unclear about whether, it says expelled her from the union, you know, this was a pleaded in, I think, in a way that was not a model of clarity.

[00:42:15] Speaker 05:
She hasn't affirmatively pleaded, she was, I'm sorry, Judge Butler.

[00:42:17] Speaker 06:
No, no, no, I'm just listening.

[00:42:18] Speaker 06:
I think I agree with you that it means that she was not given the

[00:42:23] Speaker 06:
representation.

[00:42:24] Speaker 05:
She was kicked out of the bargaining unit.

[00:42:26] Speaker 05:
They essentially stopped.

[00:42:27] Speaker 01:
I understand what the actual facts are as you're representing them, but I'm just wondering if we have to go by the facts that are in the complaint or that the complaint treats her as a union member.

[00:42:37] Speaker 05:
Given the sort of liberal pleading standard that applies here and given the context in which she's describing what occurred, which is they stopped representing her with respect to her union matters, I think the complaint can be fairly read as supporting that interpretation.

[00:42:50] Speaker 05:
And I am I'm happy to.

[00:42:51] Speaker 05:
I just don't have the site in front of me.

[00:42:52] Speaker 05:
I'm happy to revisit it and if helpful submit a 28G letter to indicate where in the complaint we think we may find further support for that.

[00:43:00] Speaker 01:
But you agree we have to go with what's in the complaint.

[00:43:03] Speaker 05:
I agree that you should read the complaint in the light most favorable to my client.

[00:43:06] Speaker 05:
You know accounting for all the circumstances and recognizing that this is a 12 B 1 and not a 12 B 6.

[00:43:11] Speaker 01:
So you agree.

[00:43:12] Speaker 01:
It's the complaint that we construed.

[00:43:14] Speaker 05:
Yes.

[00:43:15] Speaker ?:
OK.

[00:43:15] Speaker ?:
Thank you.

[00:43:16] Speaker 01:
I'm sorry, go ahead.

[00:43:16] Speaker 01:
It's certainly nothing else.

[00:43:18] Speaker 05:
Okay.

[00:43:18] Speaker 05:
It's certainly nothing else.

[00:43:20] Speaker 05:
But again, I have to be clear.

[00:43:22] Speaker 05:
Our case does not hinge on the inapplicability of 7116B4.

[00:43:27] Speaker 05:
We think that it is even clearer with respect to non-members.

[00:43:31] Speaker 05:
But as I explained in my colloquy with Judge Garcia and as I think Judge Pillard has also brought out, there are a number of respects in which it is not apparent that B4 evinced that congressional purpose to oust district courts of the jurisdiction they'd otherwise possess.

[00:43:45] Speaker 01:
I would like to go back to Spagnola.

[00:43:47] Speaker 01:
I'm sorry that I know that you haven't read this, but I'm told that it is against an employer.

[00:43:54] Speaker 01:
Given that it's against an employer, but it speaks broadly about the CSRA, how should we look at a case that says that you have a statutory remedy for existing claims?

[00:44:06] Speaker 05:
Let me answer that more broadly.

[00:44:07] Speaker 05:
This court has a bunch of cases in the employer context, which is Title II of the Civil Service Reform Act.

[00:44:14] Speaker 05:
As we've already had a quality about, that is written differently in a number of respects, including its express invocation of the anti-discrimination protections, the Express Savings Clause for jurisdiction.

[00:44:24] Speaker 05:
And this court, in deciding those cases, this court has used some broad language to describe the CSRA.

[00:44:31] Speaker 01:
But haven't we also used broad language to talk about the

[00:44:35] Speaker 01:
union provision to say that it also is a comprehensive scheme intended to do all the things that Title II does?

[00:44:42] Speaker 05:
Well, you haven't intended to do all the same things as Title II because it obviously exists for a different purpose than Title II.

[00:44:48] Speaker 01:
It does, but in terms of being comprehensive.

[00:44:50] Speaker 05:
I think the court has said that in a way that does, from my perspective, make this not a thunder base in step one case.

[00:44:56] Speaker 05:
But if the court's early holdings on that point were taken as foreclosing any possibility of any statutory claim outside the CSRA framework, then again, there have been a number of recent decisions from this court, including the Ahuja case, that don't, in my mind, make a great deal of sense.

[00:45:12] Speaker 05:
I think the way the court has understood that language is, if you want to call it, as a thumb on the scale.

[00:45:17] Speaker 05:
As the court is clear, and I won't deny this, the court has made clear that there is a broad effect of this statute, that it covers a lot of ground, that it is preclusive against the APA and against Bivens and against a variety of other types of claims, for all of which you could go to federal district court and get review if you lost in the agency, which didn't have the same history as these anti-discrimination laws.

[00:45:38] Speaker 05:
But I don't take those cases as a categorical statement.

[00:45:43] Speaker 05:
that you simply, that everything is precluded by the CSRA without regard to ThunderBase and or anything that follows it.

[00:45:48] Speaker 05:
And to the extent they said that, I think they are incompatible with LGN and Axon Enterprise.

[00:45:54] Speaker 01:
So if we look at Spagnola and it says that all

[00:45:58] Speaker 01:
pre-existing statutory claims are precluded by the CSRA for employment cases, what would be the reason to distinguish the union cases?

[00:46:08] Speaker 01:
Other than the fact that it's a union case versus an employee case.

[00:46:12] Speaker 05:
The fact that you're interpreting Title II of the statute and not Title VII and you're just using the word CSRA, if I'm honest, strikes me as some overdrafting.

[00:46:20] Speaker 05:
I don't think that when a federal court issues an opinion about Title IX of the Civil Rights Act, governing gender discrimination and employment, courts don't ordinarily assume that that also comprehensively applies to Title VII and to Title VI and to every other part of the Civil Rights Act, even if in the opinion they refer to the Civil Rights Act.

[00:46:40] Speaker 05:
I think referring to the CSRA as a shorthand, because the actual acronym for Title VII, the FRM, it's long and annoying and none of us know it, I assume, and I certainly couldn't pronounce it right now if I tried.

[00:46:53] Speaker 05:
Just like I haven't spent this argument referring to Title VII, because it turns out that would be very confusing, right?

[00:46:59] Speaker 06:
We call it full service.

[00:47:01] Speaker 05:
There you go.

[00:47:03] Speaker 05:
I defer to the court.

[00:47:04] Speaker 05:
But just like courts refer to the CSRA in those cases, they're simply not referring to the set of statutory provisions that we are interpreting here and from which we have to divine congressional intent.

[00:47:16] Speaker 05:
And if the question is, did Congress in Title VII of the CSRA

[00:47:20] Speaker 05:
intend to create a skim milk anti-discrimination regime for this class of people against their union.

[00:47:26] Speaker 05:
Unlike in the private sector and unlike everywhere else in the public sector, it would seem to me that you would find some evidence somewhere of that purpose, and there's no evidence of it to me.

[00:47:35] Speaker 01:
But why isn't the evidence that they put it in this 116B provision made it a ULP?

[00:47:40] Speaker 01:
And we all know that it's a ULP.

[00:47:43] Speaker 01:
You don't get to go to federal court.

[00:47:46] Speaker 01:
That's their intent.

[00:47:47] Speaker 01:
They put it in this provision.

[00:47:49] Speaker 05:
And I had the risk of repeating myself.

[00:47:51] Speaker 05:
I think that provision is narrower than the substantive anti-discrimination laws.

[00:47:57] Speaker 05:
The EOC emphasizes that it's clear on the face of the language, which refers only to membership in the labor organization and doesn't refer more broadly to any of the activity by the union, which is what you see in 42 USC 2000, whatever it is that governs unions, right?

[00:48:12] Speaker 05:
So it's a narrower provision than that.

[00:48:15] Speaker 05:
And the fact that they, the fact that Congress would have made some discrimination by unions against their members with respect to the membership in the organization,

[00:48:25] Speaker 05:
an unfair labor practice, it doesn't automatically follow from that, that they would have intended to preclude the presumptive existing baseline protections that the Supreme Court had just told them were baseline, and that they are expressly carved out elsewhere in the statute where the need to do so was highlighted by their direct incorporation of that law.

[00:48:44] Speaker 06:
So it's not context or fact specific.

[00:48:46] Speaker 06:
There's no CSRA preemption of Title VII or ADA claims against unions.

[00:48:54] Speaker 06:
It's just parallel to the express employer preservation.

[00:48:58] Speaker 06:
That's your position.

[00:48:59] Speaker 05:
That would be our position.

[00:49:00] Speaker 05:
And to the extent the court is in doubt, I would emphasize that the, at least as to a non-union member, the case is stronger still.

[00:49:09] Speaker 05:
All right.

[00:49:09] Speaker 05:
Thank you.

[00:49:09] Speaker 06:
I've kept you up for a long time.

[00:49:10] Speaker 06:
Thank you.

[00:49:11] Speaker 05:
Thank you for your questions.

[00:49:17] Speaker 06:
Now we'll hear from the EEOC.

[00:49:23] Speaker 06:
Mr. Winkleman.

[00:49:26] Speaker 04:
Good morning, your honors, and may it please the court, Steven Winkleman with the EEOC.

[00:49:32] Speaker 04:
The district court's dismissal of Lucas's Title VII and ADA claims rested on its assumption that discrimination claims against a federal employee union are essentially unfair representation claims under the CSRA when both sets of claims are based on the same conduct.

[00:49:50] Speaker 04:
That assumption is incorrect.

[00:49:51] Speaker 04:
under a proper understanding of the respective statutory schemes, discrimination claims under Title VII and the ADA are fundamentally different in kind from unfair representation claims under the CSRA.

[00:50:05] Speaker 04:
First, as we explained in our brief, title VII and the ADA prohibits a broader range of union discrimination than the CSRA.

[00:50:16] Speaker 04:
Unlike the CSRA, Title VII is not limited to protecting bargaining unit members.

[00:50:23] Speaker 04:
It is not limited to discrimination with respect to the terms and conditions of union membership.

[00:50:29] Speaker 04:
And it is not limited to rights arising under a collective bargaining agreement.

[00:50:33] Speaker 04:
Thus, a plaintiff may have a discrimination claim against her union, even when she does not have an unfair representation claim.

[00:50:40] Speaker 06:
Can you say something sort of concretely, factually, examples of what you mean?

[00:50:45] Speaker 06:
When does that come up, what kind of behavior, and it seems to me that the relationship between someone in the bargaining unit and the union is principally a relationship of representation.

[00:51:00] Speaker 04:
I have two responses to that.

[00:51:02] Speaker 04:
One is,

[00:51:03] Speaker 04:
At a very broad level, the Supreme Court has addressed a very similar interpretive question in Burlington, Northern V. White, where it was comparing Title VII's anti-discrimination provision that applies to employers and its anti-retaliation provision.

[00:51:19] Speaker 04:
And what it held is that the anti-retaliation provision

[00:51:23] Speaker 04:
is broader in scope than the anti-discrimination provision that applies to employers because that provision is limited to discrimination with respect to the terms, conditions, and privileges of employment.

[00:51:36] Speaker 04:
That same reasoning applies with equal force in comparing Title VII's union provision and the CSRA anti-discrimination provision in 7116B4.

[00:51:47] Speaker 01:
Can I ask you a question about this?

[00:51:49] Speaker 01:
Because if the facts before us are that

[00:51:53] Speaker 01:
It's the exact same conduct that underlies the unlawfully practice, as well as the Title VII claim.

[00:52:02] Speaker 01:
That's kind of a different question, because it could be that there might be some instance in which there are Title VII claims that are not subsumed.

[00:52:09] Speaker 01:
But on the facts before us, it seems,

[00:52:12] Speaker 01:
the district court found, and I think everybody's conceded, that this is the same conduct.

[00:52:17] Speaker 01:
So we could do a narrower ruling that just addresses when the conduct is exactly the same, there is no Title VII freestanding claim.

[00:52:28] Speaker 04:
Well, that actually leads to the second response I was going to provide, which is there one example of conduct that would fall outside the scope of the CSRA but would fall within Title VII scope occurred in this case.

[00:52:43] Speaker 04:
There was some harassment.

[00:52:45] Speaker 04:
I believe Lucas alleges that some of the harassment that occurred occurred after her employment with the SBA ended.

[00:52:51] Speaker 04:
And the FLRA dismissed her claims premised on that conduct specifically because it fell outside of the union's duty of fair representation.

[00:53:01] Speaker 01:
So even if it related to her the duty of fair representation if she wasn't an employee she couldn't bring it?

[00:53:08] Speaker 04:
At least that's the way that FLRA treated her claim was to dismiss it because at that point it reasoned the union could not have violated its or breached its duty of fair representation.

[00:53:17] Speaker 06:
Well, was it wrong about that?

[00:53:19] Speaker 06:
Because I was just going to ask.

[00:53:21] Speaker 06:
I suppose sometimes unions work for former employees, grieving, for example, their dismissal.

[00:53:26] Speaker 06:
So does the union's duty to represent outlive the employment?

[00:53:36] Speaker 04:
Your Honor.

[00:53:38] Speaker 04:
There may be circumstances in which that occurs.

[00:53:40] Speaker 04:
We haven't taken a position on that.

[00:53:42] Speaker 06:
And if it doesn't, then in what respect does she have a claim against the union?

[00:53:49] Speaker 04:
Well, again, to the extent the CSRA does not encompass harassment that occurs after a plaintiff's employment ended, a plaintiff would not have a claim under the CSRA.

[00:54:01] Speaker 06:
But you also probably wouldn't have it under Title VII or the ADA.

[00:54:05] Speaker 04:
She may have a claim under Title VII and the ADA for discrimination that occurs post-employment.

[00:54:11] Speaker 04:
Title VII prohibits a union from discriminating against any individual and does not tie it specifically to current or former employees.

[00:54:20] Speaker 04:
So a union's harassment of a former member would fall within the scope of Title VII.

[00:54:25] Speaker 01:
I'm sorry, I just want to make sure I'm understanding this.

[00:54:28] Speaker 01:
Is it correct that if

[00:54:30] Speaker 01:
employee is sexually harassed by a union representative and then is no longer an employee, she can't bring an unfair labor practice claim.

[00:54:42] Speaker 04:
Again, we haven't taken a position expressly on whether that would be the case, but that at least, it's harder to see how that would fit within the, or fall under the CSRA.

[00:54:52] Speaker 04:
And in fact, again, that's how the FLRA treated Lucas's harassment claim here, at least the harassment that was based on conduct that occurred after her employment.

[00:55:02] Speaker 04:
The other thing I will note here.

[00:55:04] Speaker 01:
Okay, I'm sorry, so even if it is still within the context of a bargaining relationship or a bargaining unit relationship,

[00:55:12] Speaker 01:
If she's no longer an employee, there's no claim.

[00:55:17] Speaker 04:
It's difficult to see how that harassment would be part of the bargaining unit relationship.

[00:55:22] Speaker 04:
My understanding is based on her allegations is that the former president of her local called her and made harassing statements or abusive statements over the phone.

[00:55:32] Speaker 01:
I mean, based on her complaint sheet, it's all in the context of and failed to represent her and her grievance against the agency in light of this, based on her sex or

[00:55:41] Speaker 01:
based on her sex.

[00:55:42] Speaker 01:
It's all tied to the union representation and her complaint.

[00:55:45] Speaker 04:
Respectfully, I would disagree with that characterization.

[00:55:47] Speaker 04:
I think the discrimination that Lucas identifies in her complaint generally falls into two categories.

[00:55:54] Speaker 04:
One is the failure to represent her in her grievances or in her arbitration against her employer.

[00:56:00] Speaker 04:
But she also alleges that the former president of her local sexually harassed her over a period of time.

[00:56:10] Speaker 01:
If you could point to the parts of the complaint that you think separates it from the representation, that would be helpful.

[00:56:17] Speaker 01:
Because I see she said she had to endure a hostile work environment in order to continue with the arbitration.

[00:56:24] Speaker 01:
That's paragraph 107.

[00:56:25] Speaker 01:
And from my reading, we looked for this.

[00:56:27] Speaker 01:
It looked like all of the allegations of sexual harassment were linked to the representation.

[00:56:32] Speaker 04:
They were linked only in the sense that the individual who was harassing Miss Lucas was the same individual who was initially representing her in her grievance and arbitration proceedings.

[00:56:45] Speaker 01:
I understand, but we looked for it and everything linked to sexual harassment.

[00:56:50] Speaker 01:
It was because he was a union representative.

[00:56:52] Speaker 04:
representative but it was also linked to the fact that therefore he wasn't representing her properly so if you can find it I don't have the paragraph and we're happy to submit a supplement but she does allege that

[00:57:08] Speaker 04:
or the former president made sexual advances that happened during the course of his representation of her in the grievance and arbitration proceedings.

[00:57:19] Speaker 04:
But the fact that they happened at the same time, I don't think necessarily means it was tied to the representational activity.

[00:57:25] Speaker 01:
No, what she said was in order to continue the arbitration, she had to endure a hostile work environment.

[00:57:31] Speaker 01:
It's paragraph 107.

[00:57:33] Speaker 04:
But again, Your Honor, I think construing her complaint liberally is that there is at least some of the harassment that occurred, again, concurrently with her representation by this individual, but the fact that she was... But if it were the case that the factual allegations are completely congruent, that the Title VII claims are completely congruent with the ULP, does that change your

[00:58:02] Speaker 01:
position or the argument?

[00:58:03] Speaker 04:
That doesn't change our argument, Your Honor, because the central premise is that discrimination claims are fundamentally different in kind from the unfair representation claims.

[00:58:14] Speaker 04:
There may be circumstances in which some conduct constitutes both unfair representation and discrimination, but there are going to be other types of conduct that constitute discrimination but not unfair representation.

[00:58:27] Speaker 01:
But in an individual case, if all the conduct is the same,

[00:58:30] Speaker 01:
you would still maintain that.

[00:58:33] Speaker 04:
Yes, your honor, and my part because it would be possible even when it's the same conduct, it would be possible for the plaintiff to prevail on the discrimination claim and fail under the unfair representation claim.

[00:58:44] Speaker 04:
And that's essentially the conclusion that the Ninth Circuit reached in charity.

[00:58:48] Speaker 04:
And that's because the

[00:58:50] Speaker 04:
unfair representation claims under the CSRA are subject to more demanding substantive requirements.

[00:58:58] Speaker 04:
Courts accord deference to unions in determining whether or not they have breached their duty of fair representation and grant unions a wide latitude.

[00:59:08] Speaker 04:
By contrast, there is no reason to extend the same deference to unions in determining whether or not they discriminated against an individual on a protected characteristic.

[00:59:17] Speaker 06:
I don't think it's in the briefs, but that we have a pretty recent case, Patton versus DC, which was about weather administrative remedies under the Randolph-Shepard Act, the federal program, state administrative program for blind individuals employment.

[00:59:38] Speaker 06:
that that preempted suing separately under the ADA.

[00:59:42] Speaker 06:
And so it seems to suggest that there just isn't something special about anti-discrimination statutes, that they cannot be preempted or displaced by an administrative regime that may have lesser remedies, that typically doesn't have de novo judicial review.

[01:00:03] Speaker 06:
And I don't know if you have a response to that at all.

[01:00:07] Speaker 04:
Your honor, I'll start by saying I'm not familiar with that case.

[01:00:10] Speaker 06:
I realize it's a little unfair for that reason.

[01:00:12] Speaker 04:
I'm not prepared to speak about it.

[01:00:14] Speaker 04:
What I will say is that the Supreme Court's cases and other cases have regularly noted that Congress has evinced a general intent to provide overlapping and parallel remedies for discrimination.

[01:00:30] Speaker 04:
And in the NLRA context, for example, this court has said,

[01:00:34] Speaker 04:
the NLRB's exclusive jurisdiction over unfair labor practice claims does not give an exclusive jurisdiction over all conduct that would constitute an unfair labor practice.

[01:00:48] Speaker 04:
And that extends with equal force here.

[01:00:50] Speaker 04:
The FLRA's exclusive jurisdiction over unfair representation claims does not extend to all conduct that could constitute unfair representation.

[01:01:02] Speaker 02:
Just one question.

[01:01:03] Speaker 02:
So assume that they were perfectly overlapping.

[01:01:07] Speaker 02:
I understood one of your main arguments to be that a key feature of Title VII and ADA, and the ADA, is they provide compensatory and punitive damages, because Congress thought those were the remedies you need to eradicate these appropriate types of discrimination.

[01:01:24] Speaker 02:
And so do you think that's an independently sufficient

[01:01:32] Speaker 02:
reason, if we're asking, did Congress intend to strip this away from public sector union employees and only those employees?

[01:01:41] Speaker 02:
You know, what role do you think that disparate remedy should play in our analysis?

[01:01:47] Speaker 04:
I don't know that it's independently sufficient, but it's certainly relevant.

[01:01:51] Speaker 04:
We have not taken a position on whether Thunder Basin is the appropriate framework within which to consider whether the CSRA precludes Title VII.

[01:02:00] Speaker 04:
But I will say that this court has recognized that under Thunder Basin in determining whether a claim is wholly collateral to the comprehensive scheme, you look at whether the plaintiffs aim to obtain the same relief they could seek in the agency proceedings.

[01:02:15] Speaker 04:
So the fact that compensatory and punitive damages would be available in a district court but not in the administrative scheme is at least a relevant consideration.

[01:02:25] Speaker 04:
Okay.

[01:02:25] Speaker 02:
Thank you.

[01:02:26] Speaker 06:
Are there reasons that Thunder Basin would not be applicable?

[01:02:30] Speaker 04:
Again, Your Honor, we have not taken a position on whether Thunder Basin is the appropriate framework, and that's largely a function of the way this case arose in the district court.

[01:02:39] Speaker 06:
All right.

[01:02:39] Speaker 06:
Thank you.

[01:02:40] Speaker 06:
And we'll hear now on behalf of AFGE from Mr. Vinson.

[01:02:53] Speaker 03:
Thank you.

[01:02:58] Speaker 03:
When Congress

[01:03:00] Speaker 03:
enacted the CSRA, we know that Congress gave deliberate thought to discrimination vis-a-vis the unions and their bargaining unit employees, because it said so in two different places, 5 USC 7114A1 and 7116B4.

[01:03:18] Speaker 03:
The meaning of discrimination in 7114A1 cannot be narrower than the discrimination listed in 5 USC 7116B4.

[01:03:28] Speaker 03:
The 7114 lays out the duty of fair representation.

[01:03:34] Speaker 03:
And it says that unions who are the exclusive representatives cannot discriminate, I'm sorry, must provide, must represent the interests of all employees in the unit without discrimination and without regard to labor organization.

[01:03:49] Speaker 03:
So there are two things that are under consideration.

[01:03:52] Speaker 03:
Without discrimination, which we find in 7114A1,

[01:03:57] Speaker 03:
and with regard to labor organization.

[01:04:03] Speaker 03:
Here, it's clear that Lucas is simply repackaging her ULP claims to get another bite at the apple regarding the union's conduct.

[01:04:16] Speaker 03:
This court should reject that notion.

[01:04:19] Speaker 02:
Can I ask, is it your understanding that she was a member of the union or that she was just a member of the bargaining union?

[01:04:25] Speaker 03:
Because we're working with the operative complaint and the operative complaint says that she was kicked out of the union, my position is she was a member of the union at the time.

[01:04:38] Speaker 03:
In addition, when you're looking at, I know that there was a comment that one of my brothers mentioned that in regards to 7116B4,

[01:04:49] Speaker 03:
We're talking about membership.

[01:04:51] Speaker 03:
It's not just about membership.

[01:04:52] Speaker 03:
We know it's not just about membership because in 5 USC 7116 says, for the purposes of this chapter, it shall be an unfair labor practice for an exclusive representative to oust a member.

[01:05:12] Speaker 03:
So in 7116B4, we're not just talking about discrimination, whether or not you're going to kick the member out.

[01:05:20] Speaker 03:
We're talking about the terms and condition of that membership, whether or not they get represented properly based upon their race or they're not getting represented improperly based upon their race and all the protected classes.

[01:05:38] Speaker 03:
Regarding the Thunder Basin,

[01:05:42] Speaker 03:
We rely on Trump.

[01:05:44] Speaker 03:
Trump is on point here.

[01:05:46] Speaker 03:
And AFGE v. Trump, this court said that AFGE would be able to get meaningful review by filing ULPs.

[01:05:58] Speaker 03:
That is what Ms.

[01:05:58] Speaker 03:
Lucas has done here.

[01:06:00] Speaker 03:
The fact that Lucas' claim was dismissed was only because it was untimely.

[01:06:07] Speaker 03:
We can't reward her for an untimely action on her part.

[01:06:12] Speaker 03:
to award her with allowing her to proceed in district court based upon there's no meaningful judicial review in her case because her case was dismissed, would undermine the purpose of the statute.

[01:06:27] Speaker 03:
That would allow plaintiffs like Lucas to circumvent the statute altogether by filing a complaint late and then saying, well,

[01:06:37] Speaker 03:
We get through the thunder-basing factors because I can't even get any meaningful judicial review.

[01:06:43] Speaker 02:
It seems like fundamentally that point is that you think it would be really strange for there to be a ULP proceeding before the agency based on the same facts at the same time as a Title VII claim based on the same facts.

[01:06:57] Speaker 02:
Correct.

[01:06:58] Speaker 02:
Well, one of the key responses from Lucas is that that's how it works everywhere else other than in suits involving public sector unions.

[01:07:07] Speaker 02:
So it kind of raises the question, why in this context and in only this context, not for suits against agencies, not for suits against private unions, why would Congress have wanted to preclude the ability to have a resort to this fundamental, you know, Title VII ADA type remedy?

[01:07:26] Speaker 03:
When you think of the purpose of the overall CSRA scheme, it was to prevent claims being litigated in different forms, facts being developed on those claims in different places, coming up on review.

[01:07:42] Speaker 03:
And what Congress said is we're going to remedy all of that.

[01:07:47] Speaker 03:
We're going to create a comprehensive scheme that's going to address any type of labor management relations issues that would prevent this type of duplicative litigation.

[01:08:03] Speaker 03:
point to private sector law.

[01:08:06] Speaker 03:
But that argument is weak.

[01:08:09] Speaker 03:
In the private sector, the unions are governed by the NLRA.

[01:08:14] Speaker 03:
And the NLRA, unlike the CSRA, does not have exclusive jurisdiction over the unfair labor practice complaints or the duty of representation claims.

[01:08:25] Speaker 03:
Section 301 of the LMRA allows

[01:08:29] Speaker 03:
union members employees to go into district court with those claims.

[01:08:36] Speaker 03:
So to so to compare.

[01:08:43] Speaker 03:
to compare private sector with a public sector union, in this case, would be inapplicable.

[01:08:49] Speaker 03:
Because we know that the exclusive jurisdiction of the FLRA over all UOP claims, we know that from Carrie Halleosus, that that's specifically what the court had in mind.

[01:08:58] Speaker 06:
The Congress had in mind.

[01:08:59] Speaker 06:
But aren't a lot of, there are a lot of CSRA claims that don't sound in Title VII or ADA discrimination, right?

[01:09:08] Speaker 06:
So all of those claims would be,

[01:09:10] Speaker 06:
addressed by Congress's streamlining and unifying desire, right?

[01:09:16] Speaker 03:
Absolutely.

[01:09:17] Speaker 06:
The Back Pay Act, the APA claims, constitutional claims.

[01:09:22] Speaker 03:
Right.

[01:09:23] Speaker 06:
So the statute would still, in large, be functioning the way that Congress.

[01:09:30] Speaker 06:
To make this a question, why wouldn't we just think, well, yeah, Congress had that objective,