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United States Capitol Police v. Office of Compliance

United States Court of Appeals, Federal Circuit

February 21, 2019


          Petitions for review of a decision of the Board of Directors of the Office of Compliance in No. 16-LMR-01 (CA).

          Rafique Omar Anderson, Office of Employment Counsel, United States Capitol Police, Washington, DC, argued for petitioner. Also represented by Frederick M. Herrera.

          John D. Uelmen, Office of the General Counsel, United States Office of Compliance, Washington, DC, argued for cross-applicant. Also represented by Julia Akins Clark; Simone Jenkins, Congressional Office of Compliance, Washington, DC.

          Megan Kathleen Mechak, Woodley & McGillivary LLP, Washington, DC, argued for intervenor.

          Before Newman, Lourie, and Clevenger, Circuit Judges.


         On September 26, 2017, the Board of Directors of the Congressional Accountability Office of Compliance ("Board") issued a decision stating that the United States Capitol Police ("Police") committed an unfair labor practice when it refused to engage in arbitration of an unresolved grievance. U.S. Capitol Police and Fraternal Order of Police, D.C. Lodge No. 1 U.S. Capitol Police Labor Comm., No. 16-LMR-01, 2017 WL 4335144 (C.A.O.C. Sept. 26, 2017). The Police petitions for review of that decision and the Office of Compliance ("OOC") cross-applies for enforcement of the Board's decision and remedial order. For the reasons set forth below, we deny the Police's petition and grant the OOC's application.


         Christopher Donaldson, a former officer with the Police, was involved in an off-duty domestic incident. The Police's Office of Professional Responsibility investigated the incident and ultimately recommended that he be terminated. The Disciplinary Review Board then heard the matter and, although it agreed that Officer Donaldson should be punished, it recommended only a forty-five day unpaid suspension. The Chief of Police reviewed the evidence and recommendations and decided to terminate Officer Donaldson. After thirty days passed from the date of the Chief's decision without intervention by the Capitol Police Board, the Chief's decision took effect and Officer Donaldson was terminated. See 2 U.S.C. § 1907(e)(1)(B) (stating that the Board is deemed to have approved a termination decision made by the Chief of Police if it does not disapprove of that decision within thirty days).

         The Fraternal Order of Police, District of Columbia Lodge No. 1, U.S. Capitol Police Labor Committee ("Union") and the Police are parties to a collective bargaining agreement. Under the terms of that agreement, termination decisions by the Chief are subject to binding arbitration. The Union requested an arbitration panel to review the termination decision. The Police refused to select an arbitrator because it took the legal position that termination actions are not subject to arbitration and thus it "would be in violation of a determination of the Capitol Police Board and its distinct statutory authority by consenting to the jurisdiction of any arbitrator" in this case. J.A. 102.

         The Union then protested to the General Counsel for the OOC that the Police violated § 220(c)(2) of the Congressional Accountability Act of 1995 ("CAA"), codified at 2 U.S.C. §§ 1301-1438, [1] by refusing to arbitrate an unresolved grievance and therefore committed an unfair labor practice. The General Counsel investigated the charges, determined that there was sufficient evidence and cause to support them, and filed a complaint with the OOC alleging an unfair labor practice.[2]

         A hearing officer considered cross-motions for summary judgment on the unfair labor practice charge and granted judgment in favor of the OOC. The Police petitioned the Board to review the hearing officer's decision, and the Board affirmed. The Board reasoned that the Police is obligated to arbitrate disputes arising under its collective bargaining agreement, unless it can point to clearly established law that removes the dispute in question from arbitration, and that without such a clearly established law excuse for refusal to arbitrate, the refusal is an unfair labor practice. The Police asserted that the CAA should be interpreted to bar arbitration of employee termination. The best the Police could do to demonstrate clearly established law that termination decisions are not arbitrable was a set of arguments it made on how it thought provisions of the CAA should be interpreted.[3] Because the Police's legal arguments fell well short of being clearly established law, the Board rejected the Police's excuse and held that the Police committed an unfair labor practice by refusing to engage in arbitration.

         This appeal followed. We have jurisdiction over the Police's petition under 2 U.S.C. § 1407(a)(1)(D) and over the OOC's application for ...

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