Nia Lucas v. American Federation of Government Employees, (afge) and Afge Local 228

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2024 Decided August 15, 2025
No. 23-7051
NIA LUCAS,
APPELLANT
v.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
(AFGE) AND AFGE LOCAL 228,
APPELLEES
Consolidated with 23-7054
Appeals from the United States District Court
for the District of Columbia
(No. 1:22-cv-00777)
(No. 1:22-cv-01540)
Joshua A. Matz argued the cause for appellant. On the
briefs were David R. Dorey, Brian Wolfman, and Regina Wang.
Steven Winkelman, Attorney, Equal Employment
Opportunity Commission, argued the cause for amicus curiae

-- 1 of 68 --

2
Equal Employment Opportunity Commission in support of
appellant. With him on the brief were Karla Gilbride, General
Counsel, Jennifer S. Goldstein, Associate General Counsel,
and Dara S. Smith, Assistant General Counsel.
Mark L. Vinson argued the cause and filed the brief for
appellees.
Before: PILLARD, PAN, and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARCIA.
Opinion concurring in part and dissenting in part filed by
Circuit Judge PAN.
GARCIA, Circuit Judge: Nia Lucas, a former federal
employee, filed charges against her union with the Federal
Labor Relations Authority. She alleged that the union had
mishandled an arbitration proceeding and discriminated
against her based on sex and disability. Lucas then filed two
lawsuits in district court asserting similar claims under Title
VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act (ADA), and the Fair Labor Standards Act
(FLSA). The district court dismissed the suits for lack of
subject matter jurisdiction, ruling that the Federal Service
Labor-Management Relations Statute (FSLMRS) precluded
Lucas’s claims. We affirm the dismissal of the FLSA claim
but reverse the dismissal of the Title VII and ADA claims.
I
A
These appeals concern the interplay between the FSLMRS
and three other federal statutes that regulate the workplace.

-- 2 of 68 --

3
The first is Title VII of the Civil Rights Act of 1964, which
prohibits employers and labor organizations from
discriminating on the basis of race, color, religion, sex, or
national origin. See 42 U.S.C. § 2000e-2(a), (c). Plaintiffs who
prove “unlawful intentional discrimination” under Title VII
may recover compensatory and punitive damages. Id.
§ 1981a(a)(1). Congress established the Equal Employment
Opportunity Commission (EEOC) to enforce Title VII and
investigate charges of discrimination. See id. §§ 2000e-4(a),
2000e-5(a)–(b).
The second statute is the ADA, which prohibits
discrimination against individuals with disabilities. See id.
§§ 12101(b)(1), 12112(a). As in Title VII, the ADA applies to
both employers and unions, see id. § 12111(2), and
compensatory and punitive damages are available on the same
terms to prevailing plaintiffs, see id. § 1981a(a)(2). And, as
with Title VII, the EEOC enforces the ADA’s employment-
related provisions. See EEOC v. Waffle House, Inc., 534 U.S.
279, 285 (2002).
The third statute is the FLSA, which is a wage-and-hour
statute aimed at combatting “labor conditions detrimental to the
maintenance of the minimum standard of living.” 29 U.S.C.
§ 202(a). Most relevant here is the FLSA’s anti-retaliation
provision, which prohibits “any person” from “discharg[ing] or
in any other manner discriminat[ing] against any employee” for
engaging in activity that the statute protects. Id. § 215(a)(3).
Finally, we have the FSLMRS, which governs the role and
responsibilities of unions in the federal workplace. See 5
U.S.C. § 7102. The FSLMRS imposes on federal unions a duty
of fair representation, which makes them “responsible for
representing the interests of all employees in the unit [they]
represent[] without discrimination and without regard to labor
organization membership.” Id. § 7114(a)(1). The FSLMRS
also proscribes unions from engaging in unfair labor practices

-- 3 of 68 --

4
(ULPs), such as refusing to “negotiate in good faith,” id.
§ 7116(b)(5), or calling any strike or work stoppage that
“interferes with an agency’s operations,” id. § 7116(b)(7)(A).
As relevant here, three ULPs address union discrimination
against employees. Two of them incorporate the duty of fair
representation. See id. § 7116(b)(1), (8). That means that
whenever a union fails to represent employees in a bargaining
unit “without discrimination,” id. § 7114(a)(1), those
employees can file ULP charges under the FSLMRS. A third
ULP explicitly mentions discrimination based on certain
characteristics: A union may not “discriminate against an
employee with regard to the terms or conditions of membership
in the labor organization” based on race, sex, disability, or
other protected traits. Id. § 7116(b)(4).1
The FSLMRS empowers the Federal Labor Relations
Authority to investigate ULP charges. See id. §§ 7118(a)(1),
7104(f)(2). If the Authority finds that a union committed a
ULP, it may issue a cease-and-desist order, award backpay, or
take “such other action as will carry out the purpose of [the
statute].” Id. § 7118(a)(7). The FSLMRS does not expressly
provide for compensatory or punitive damages, or for
attorney’s fee awards.
The statute funnels ULP charges through a special review
process. Congress passed the FSLMRS as part of the broader
Civil Service Reform Act of 1978 (CSRA), which instituted an
“integrated scheme of administrative and judicial review” of
claims that arise within the federal civil service system. United
States v. Fausto, 484 U.S. 439, 445 (1988). The CSRA
1 There is yet another ULP that mentions discrimination, but it
is not relevant to these appeals. See 5 U.S.C. § 7116(b)(2)
(prohibiting unions from “caus[ing] or attempt[ing] to cause an
agency to discriminate against any employee in the exercise by the
employee of any right under [the FSLMRS]”).

-- 4 of 68 --

5
generally directs claims concerning personnel actions first to
the Merit Systems Protection Board, and then to the Federal
Circuit for judicial review. See Fed. L. Enf’t Officers Ass’n v.
Ahuja, 62 F.4th 551, 555 (D.C. Cir. 2023). The FSLMRS
establishes a similar scheme to process disputes related to
union representation and collective bargaining. In broad
strokes, the FSLMRS directs covered claims to the Federal
Labor Relations Authority and then, if the Authority issues a
final order, provides for judicial review in a court of appeals.
See Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump (AFGE II),
929 F.3d 748, 752 (D.C. Cir. 2019).
The Authority has exclusive jurisdiction to adjudicate ULP
charges in the first instance. See Karahalios v. Nat’l Fed’n of
Fed. Emps., Loc. 1263, 489 U.S. 527, 532 (1989). The
FSLMRS does not “furnish a parallel remedy in a federal
district court to enforce” a federal union’s responsibilities to
the employees it represents. Id. District courts therefore lack
subject matter jurisdiction over claims that a federal union
committed a ULP. See Steadman v. Governor, U.S. Soldiers’
& Airmen’s Home, 918 F.2d 963, 966 (D.C. Cir. 1990).
To request the Authority’s assistance, an employee must
file a ULP charge with one of the Authority’s Regional
Directors. See 5 C.F.R. § 2423.6(a). That Regional Director
may initiate a complaint and refer the case to an administrative
law judge or dismiss the charge. See id. §§ 2423.10(a),
2423.20(a). If the Regional Director dismisses the charge, the
employee may appeal to the Authority’s General Counsel. See
id. § 2423.11(c). The General Counsel can then either refer the
matter to an administrative law judge or affirm the Regional
Director’s dismissal. See id. § 2423.11(f).
If an employee’s case proceeds to an administrative law
judge, she can appeal an adverse ruling to the Authority. See
id. §§ 2423.40–.41. And, in turn, “[a]ny person aggrieved by

-- 5 of 68 --

6
any final order of the Authority” may seek review in a federal
court of appeals. 5 U.S.C. § 7123(a).
If, however, the Regional Director and General Counsel
both dismiss the employee’s ULP charge, the employee has no
further recourse. The General Counsel’s decision not to file a
complaint cannot be appealed to the Authority and is “not
judicially reviewable.” Pat. Off. Pro. Ass’n v. FLRA, 128 F.3d
751, 753 (D.C. Cir. 1997); see also 5 C.F.R. § 2423.11(f), (g).
The Authority, we note, has not had a General Counsel since
2017. See Memorandum from Dana Rooney, Inspector Gen.
to the Fed. Lab. Rels. Auth. 3 (Sept. 16, 2024),
https://perma.cc/HQW2-8ZKP. Thus, for most of the past
decade, a Regional Director’s decision dismissing a ULP
charge has been, in practice, final and unreviewable.
B
At the motion-to-dismiss stage, we accept the factual
allegations in Lucas’s complaints as true. See Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Nia Lucas, a woman
with a traumatic brain injury, worked for the U.S. Small
Business Administration (SBA) from 2017 to 2020. Lucas
believed that the SBA had discriminated against her and had
not compensated her properly. In late 2017, she brought these
allegations to her union’s local chapter.
The local did not take any action for several months. That
changed when the local’s new president, Johnnie Green, began
his term in January 2018. Not long after taking office, Green
filed a workplace grievance against the SBA on Lucas’s behalf.
Green told Lucas that the union “had a history of animus
towards female bargaining unit employees with disabilities.”
Compl. (No. 22-cv-777) ¶ 31. Two months later, Green
scheduled an arbitration hearing on Lucas’s grievance.
Around this time, Green began professing his love for
Lucas and making unwanted sexual advances toward her.

-- 6 of 68 --

7
Lucas told him to stop and reported his conduct to Michael
Kelly, one of the union’s national officers.
Green stepped down as Lucas’s designated representative
ahead of the arbitration hearing, but the two of them remained
in contact as the hearing date approached. Lucas had recently
given birth, and, on one occasion, Green told her that “she did
not have a right or need to be at the arbitration hearing based
on the additional expenses and logistics associated with her
being a nursing mother.” Id. ¶ 48. He added that Lucas’s
“having a newborn was a burden to the union.” Id. ¶ 49. Lucas
again reported his comments to Kelly.
At Green’s instruction, the local postponed the arbitration
hearing after it had begun. Six months later, Lucas filed a ULP
charge with the Federal Labor Relations Authority,
complaining of Green’s harassment and the hearing’s delay.
After learning about the charge, Green called Lucas, told her
she was a “b*tch,” and threatened to “ruin her federal career”
if she did not withdraw the allegations. Id. ¶ 64. The local later
pulled out of the arbitration proceedings. Green explained that
the union “did not want to represent disabled mothers of
newborns such as [Lucas].” Id. ¶ 71.
Lucas filed two more ULP charges with the Authority: one
asserting that the local had wrongfully withdrawn from the
arbitration hearing, and another contending that Kelly had
conspired with Green to restrict her rights as an employee in
the union’s bargaining unit.
It is unclear exactly what happened next. We know that
the Regional Director dismissed two of the charges as
untimely. Lucas appears to have appealed those dismissals to
the General Counsel, where they will remain pending until a
new General Counsel is appointed. The fate of Lucas’s third
charge is not evident from the record.

-- 7 of 68 --

8
Separately, Lucas filed a discrimination charge against the
union with the EEOC, which declined to pursue the matter and
issued her a right-to-sue letter. Lucas then filed in district court
the two lawsuits that are now before us. The first named the
union and the local as defendants and alleged violations of Title
VII and the ADA, including claims of sex discrimination,
disability discrimination, sexual harassment, and hostile work
environment. The second, which Lucas brought pro se, named
the union, the local, Green, and Kelly as defendants. Lucas
alleged that the local’s delay of and withdrawal from the
arbitration proceedings constituted unlawful retaliation in
violation of the FLSA.2
In each case, the defendants filed a motion to dismiss for
lack of jurisdiction. They argued that Lucas’s claims were, in
essence, allegations that the union had breached its duty of fair
representation, and so she could seek relief only from the
Federal Labor Relations Authority.
The district court granted the motions, reasoning that the
charges Lucas had filed with the Authority concerned “the very
same facts and circumstances” underlying her complaints.
Lucas v. AFGE, 2023 WL 2682175, at *9 (D.D.C. Mar. 29,
2023). “[Lucas’s] allegations,” the court continued, “are
properly characterized as a mere repackaging of her claims
under the [FSLMRS] for breach of the duty of fair
representation.” Id. Relying on the Supreme Court’s holding
in Karahalios that only the Authority may adjudicate ULP
charges, the district court ruled that Lucas could not file Title
VII, ADA, and FLSA claims based on the same facts as her
ULP charges.
2 In addition to the FLSA retaliation claim, Lucas asserted a
range of state-law claims in her second lawsuit. Those claims are not
at issue in these appeals.

-- 8 of 68 --

9
These appeals followed.
II
We review the district court’s dismissals for lack of subject
matter jurisdiction de novo. See Am. Fed’n of Gov’t Emps.,
AFL-CIO, Loc. 446 v. Nicholson, 475 F.3d 341, 347 (D.C. Cir.
2007).
The question before us is whether the FSLMRS precludes
Lucas’s claims under Title VII, the ADA, and the FLSA, and
limits her to whatever claims and remedies she is afforded by
the FSLMRS itself. To perform that inquiry, we look to the
“terms, structure, and purpose” of the relevant statutes. Ahuja,
62 F.4th at 559.3
A
We begin by addressing whether the district court properly
dismissed Lucas’s first lawsuit, which asserted claims under
Title VII and the ADA. We conclude that the FSLMRS did not
divest the district court of subject matter jurisdiction over that
suit.
1
The defendants (whom we will refer to collectively as the
“union”) contend that the FSLMRS extinguishes federal
employees’ rights to bring Title VII and ADA claims against
labor organizations, at least where the claims concern actions a
union takes in its representative capacity. As detailed in
Section II.A.3 below, this court and others have concluded that
the FSLMRS precludes causes of action under certain other
statutes. If that were so for Title VII and the ADA, federal
3 The parties have also briefed several issues that the district
court did not pass upon below. We review only the district court’s
jurisdictional ruling.

-- 9 of 68 --

10
employees’ only recourse for discrimination by their unions
would be to pursue the materially weaker and more limited
avenues for relief that the FSLMRS provides. Several features
of the statutes’ texts and contexts render it implausible that
Congress intended that result.
To start, it is unlikely that Congress would have quietly
done away with fundamental protections that it conspicuously
and specifically made applicable to discrimination by unions.
Title VII and the ADA represent two of the most “significan[t]”
legislative enactments of “our time.” Bostock v. Clayton Cnty.,
590 U.S. 644, 649 (2020); Tennessee v. Lane, 541 U.S. 509,
516 (2004). Moreover, both statutes explicitly apply their
prohibitions against discrimination to “labor organizations.”
See 42 U.S.C. § 2000e-2(c) (Title VII describing what “shall
be an unlawful employment practice for a labor organization”);
id. § 12111(2) (ADA defining “covered entity” to include
“labor organization[s]”).4 That is, the plain text of these
statutes reflects Congress’s considered, specific judgment that
labor organizations be subject to them. And, contrary to the
union’s reading of the FSLMRS to implicitly displace that
arrangement, we have a general “presumption that Congress
legislates against and preserves existing law and background
understandings,” United States v. Long, 997 F.3d 342, 356
(D.C. Cir. 2021), and a party arguing otherwise shoulders a
4 Lucas asserted her disability-related claims under Title II of
the ADA, which prohibits the exclusion of people with disabilities
from “the services, programs, or activities of a public entity.” 42
U.S.C. § 12132. On appeal, the parties do not focus on Title II
specifically. Instead, they either discuss the ADA as an
undifferentiated whole or cite Title I, which prohibits disability
discrimination in employment, see id. § 12112. The union’s position
is that the FSLRMS precludes discrimination claims under the ADA
writ large, and we address that argument by drawing on Title I as
appropriate.

-- 10 of 68 --

11
“heavy burden,” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510
(2018).
Consistent with how fundamental these statutory
protections are, Congress has long afforded claimants multiple,
overlapping avenues to obtain relief from the discrimination
they prohibit. Thus, it is well-settled that employees in every
other relevant context can concurrently pursue administrative
remedies for discrimination and Title VII or ADA claims (or
the materially identical Rehabilitation Act claim) in federal
district court.5 For federal employees suing their employers,
this is explicit in 5 U.S.C. § 2302, part of Title I of the CSRA.
Section 2302(b) makes it a prohibited personnel practice for
covered supervisors to discriminate against employees or
applicants in violation of, among other statutes, Title VII or the
Rehabilitation Act. See 5 U.S.C. § 2302(b)(1)(A), (D). And
Section 2302(d) then explicitly ensures that these employees
may nevertheless concurrently bring claims under Title VII and
the Rehabilitation Act in district court. See id. § 2302(d)(1),
(4).
Similarly, private-sector employees may bring Title VII
and ADA claims in district court against their unions even if
they can also pursue overlapping administrative remedies
before the National Labor Relations Board. See Macklin v.
Spector Freight Sys., Inc., 478 F.2d 979, 996–97 (D.C. Cir.
1973) (noting, in the context of claims based on race
discrimination, “concurrent jurisdiction in EEOC, the NLRB,
and the District Courts over employer and union discrimination
5 Title II of the ADA is interpreted alongside Section 504 of the
Rehabilitation Act, as if the two statutes were one law. See Am.
Council of the Blind v. Paulson, 525 F.3d 1256, 1260 n.2 (D.C. Cir.
2008). Similarly, Section 501 of the Rehabilitation Act, which
prohibits disability discrimination in federal employment, is
governed by the same standards as Title I of the ADA. See 29 U.S.C.
§ 791(f).

-- 11 of 68 --

12
against employees”); Figueroa v. Foster, 864 F.3d 222, 233
(2d Cir. 2017) (“A union, therefore, is subject to liability under
both the NLRA’s duty of fair representation and under Title
VII, as well as under other federal anti-discrimination statutes
enforced by the EEOC.”). The Supreme Court has recognized
that “legislative enactments in this area have long evinced a
general intent to accord parallel or overlapping remedies
against discrimination.” Alexander v. Gardner-Denver Co.,
415 U.S. 36, 47 (1974).
Since the CSRA’s 1978 enactment, Congress has either
created or enhanced remedies for discrimination claims
without ever hinting that federal employees suing their unions
were excluded in any respect from the statutes’ protections.
The ADA itself was enacted twelve years after the CSRA and
the FSLMRS and, again, it defined its coverage to include all
“labor organization[s],” not just private-sector unions. 42
U.S.C. § 12111(2). Similarly, the Civil Rights Act of 1991
made compensatory and punitive damages available to a
plaintiff who establishes “unlawful intentional discrimination”
in violation of Title VII or the ADA. Id. § 1981a(a)(1)–(2).
There is no indication that Congress understood this
enhancement not to apply to federal employees suing their
unions.6
6 The general rule of overlapping remedies for discrimination is
also consistent with how the Federal Labor Relations Authority
seems to view its role within the remedial scheme. The Authority’s
website directs employees who believe they have been
“discriminated against” to “contact the Equal Employment
Opportunity Commission” or the “EEO Office at [their] agency.”
ULP Frequently Asked Questions (FAQs), Fed. Lab. Rels. Auth.,
https://perma.cc/7R99-7C5C (choose “Who the FLRA Helps”). If
the union is right about the FSLMRS’s preclusive effect, then the
Authority has been sending many aggrieved employees on a fool’s
errand. And, consistent with the Authority’s understanding of how
the statutes overlap, the EEOC’s own guidance contemplates that a

-- 12 of 68 --

13
2
With the norm of overlapping remedies for discrimination
in mind as compelling evidence in Lucas’s favor, we would
expect the union to proffer significant countervailing evidence
that, in enacting the FSLMRS, Congress implicitly intended a
radical departure. The union has not done so. It points to two
features of the CSRA as support for its view that Congress
meant to deprive federal employees suing their unions—only
those employees, and only when they seek to hold their unions,
rather than their employers, accountable for invidious
discrimination—of the ability to bring Title VII and ADA
claims in district court. Neither of the union’s statutory
arguments persuades us that Congress intended that result.
First, the union emphasizes that Congress made
discrimination against employees a ULP and channeled all
ULP charges to the Federal Labor Relations Authority’s
exclusive jurisdiction. See 5 U.S.C. § 7114(a)(1). The union’s
position is essentially that because the FSLMRS creates a
remedy for discrimination, that must be the only remedy
Congress intended. But given the norm of concurrent,
overlapping remedies for discrimination, the union’s
conclusion does not follow from its premise. The FSLMRS’s
mentions of discrimination are perfectly consistent with
Lucas’s view that Congress hewed to its longstanding practice
of affording employees multiple avenues for relief in this
particular context. Indeed, a more natural reading of the
FSLMRS is that Congress meant to complement existing
remedies by providing employees who might lack the resources
to file a Title VII or ADA claim with a faster and less expensive
means to obtain relief, albeit with a far more modest payoff.
plaintiff may pursue both FSLMRS and Title VII or ADA remedies
against a federal union for discriminatory behavior. See EEOC’s
Brief 19–20 (citing EEOC Compliance Manual § 2-III(B)(1)(c)).

-- 13 of 68 --

14
Again, providing two complementary routes to relief in this
context would be the norm, not an aberration.
That logic would hold even if the FSLMRS offered redress
commensurate to Title VII and the ADA. The remedies
explicitly guaranteed in the FSLMRS, however, are paltry by
comparison. It is particularly implausible that Congress would
so drastically curtail federal employees’ protections from
discrimination by their unions without ever saying it was doing
so, and without any apparent justification.
The union would have us hold that federal employees
suing over discriminatory representation have no explicit
statutory entitlement to compensatory damages, punitive
damages, or attorney’s fee awards—remedies that Congress
has expressly guaranteed under Title VII and the ADA to
“mak[e] victims whole” while “encouraging private
enforcement . . . and deterring future violations of federal law.”
H.R. Rep. No. 102-40, pt. 1, at 65 (1991) (compensatory and
punitive damages); see also id. at 75 (attorney’s fees). Instead,
for employees who demonstrate misconduct by federal unions,
the FSLMRS appears to offer only cease-and-desist orders and,
if applicable, backpay awards.
And even those limited remedies are subject to an
administrative scheme that, in practice, almost never results in
judicial review. Unlike a Title VII or ADA claim, federal
employees cannot bring a ULP charge directly to a district
court. Instead, their charges of discrimination are subject to the
discretion of the Regional Director and the unreviewable
discretion of the General Counsel (if and when one is
appointed, see supra at 6) over whether to initiate a complaint.
And by one account based on seven years of data, fewer than
1% of ULP charges filed by individuals against unions result
in a complaint; nearly all other such ULP charges are either
withdrawn or dismissed. See David Osborne, Federal Labor

-- 14 of 68 --

15
Board Records Show Challenge of Union Accountability 2
(Apr. 2023).
The statutes’ respective limitations periods also differ.
The FSLMRS gives employees only six months to file a ULP
charge, while a discrimination charge under Title VII or the
ADA “may be filed up to 300 days after the challenged
conduct” if an employee first seeks relief from a state or local
agency. EEOC’s Brief 16.7
Further, Lucas and the EEOC (as amicus) make a
substantial case that the FSLMRS provisions are not just
weaker than Title VII and the ADA in terms of procedure and
remedies, but also more limited in terms of substantive
coverage. Start with the duty of fair representation. As Lucas
and the EEOC note, the Supreme Court has observed that
“[a]ny substantive examination of a union’s performance . . .
must be highly deferential, [in light of] the wide latitude that
negotiators need for the effective performance of their
bargaining responsibilities.” Air Line Pilots Ass’n, Int’l v.
O’Neill, 499 U.S. 65, 78 (1991). In the context of private-
employee claims, the Supreme Court has emphasized that
because “a breach of the union’s duty of fair representation
may prove difficult to establish,” it is all the more “noteworthy
that Congress thought it necessary to afford the protections of
Title VII against unions as well as employers.” Gardner-
Denver Co., 415 U.S. at 58 n.19.
Indeed, several courts of appeals have held that proving a
breach of the duty of fair representation requires a showing
beyond what is necessary to make out a Title VII or ADA
7 That disparity could make a difference here: The Authority
dismissed many of Lucas’s FSLMRS charges as untimely. The
union has not offered a similar defense to most of her claims under
Title VII and the ADA, but its position would bring them under the
FSLMRS’s time bar. See EEOC’s Brief 17 n.2

-- 15 of 68 --

16
claim. See Garity v. APWU Nat’l Lab. Org., 828 F.3d 848, 864
(9th Cir. 2016); Peeples v. City of Detroit, 891 F.3d 622, 636–
38 (6th Cir. 2018); Green v. Am. Fed’n of Tchrs./Ill. Fed’n of
Tchrs. Loc. 604, 740 F.3d 1104, 1105–07 (7th Cir. 2014). If
that is true, stripping federal employees of Title VII’s and the
ADA’s protections from discrimination by their unions would
put some misconduct beyond the law’s reach.
If a claim centered on the duty of fair representation is
unavailable, Lucas’s only other option under the FSLMRS
would be to invoke Section 7116(b)(4). That provision makes
it a ULP for a union to discriminate in the “terms or conditions
of [its] membership” based on race, disability, and other
protected traits. 5 U.S.C. § 7116(b)(4). At first blush, Section
7116(b)(4) might seem similar in scope to Title VII and the
ADA, but its focus on discrimination in membership could
limit its applicability. Lucas and the EEOC submit that Section
7116(b)(4) does not protect employees who decide against
joining their union, but who belong to a bargaining unit that a
union represents. That includes Lucas, who herself was not a
member of the union at the time relevant to her allegations. See
J.A. 27 (complaint exhibit noting that Lucas was not a “dues
paying member”); J.A. 83 (union recognizing that Lucas
alleged only “that she was a bargaining unit employee,” not
“that she was a member of [the local]).
Title VII, by contrast, contains no such limitation. Instead,
Title VII makes it unlawful for a union “to exclude or to expel
from its membership, or otherwise to discriminate against, any
individual because of [a protected trait].” 42 U.S.C. § 2000e-
2(c)(1) (emphasis added). According to Lucas and the EEOC,
this “otherwise” clause explicitly sweeps in discrimination by
unions against non-members. The ADA’s language is
similarly expansive. See id. § 12112. On this understanding, a
non-union member like Lucas can seek relief for
discriminatory representation under Title VII and the ADA, but
not under Section 7116(b)(4). The union does not argue

-- 16 of 68 --

17
otherwise, and, tellingly, it does not discuss Section 7116(b)(4)
in its brief.
The Federal Labor Relations Authority does not appear to
have any published decisions addressing when a union’s
discrimination based on protected traits breaches its duty of fair
representation. Nor, for that matter, has the Authority clarified
whether a non-member can bring a claim under Section
7116(b)(4). That dearth of authority likely stems from the
reality that virtually all ULP charges filed by individuals
against labor organizations are either withdrawn or dismissed.
See Osborne, supra, at 2. When a charge is dismissed, the
Authority does not issue an official decision. Instead, the
General Counsel “provide[s] the person making the charge a
written statement of the reasons for not issuing a complaint,”
leaving no public trace of the Authority’s application of the
ULPs to particular facts. 5 U.S.C. § 7118(a)(1). As a result,
the Authority’s decisions to date offer no response to Lucas’s
and the EEOC’s contention that the duty of fair representation
hardly rivals the protections available under Title VII and the
ADA.
We do not resolve whether Lucas and the EEOC have the
best reading of the FSLMRS on these issues. It is significant
enough for present purposes to note that there are serious and
unanswered questions about the FSLMRS’s scope, and that
those ambiguities further undermine the union’s request that
we divine from the FSLMRS’s text a congressional intent to
displace Title VII and ADA remedies. And even if the scope
of the FSLMRS’s coverage perfectly overlapped with that of
Title VII and the ADA, the stark disparities in remedies,
opportunities for judicial review, and limitations periods would
remain.
Having disposed of the union’s first statutory argument,
we turn now to the second feature of the CSRA that supposedly
reflects Congress’s intent to extinguish claims like Lucas’s.

-- 17 of 68 --

18
This time, the union calls our attention to Section 2302 in Title
I of the CSRA, which prohibits discrimination by federal
agencies against their employees. Section 2302(d), referenced
above, explicitly preserves federal employees’ ability to bring
Title VII and other specific statutory claims in district court,
notwithstanding the availability of administrative remedies.
The FSLMRS does not do the same for those employees’
claims against their unions. The union argues that Congress
evidently knew how to craft a savings clause and must have
decided not to include one in the FSLMRS. And it asks us to
draw a negative inference that Congress did intend to preclude
these claims on the theory that “the presence of a phrase in one
provision and its absence in another reveals Congress’ design.”
City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536
U.S. 424, 436 (2002).
The negative inference the union seeks to draw from
Section 2302’s savings clause would hold together only if the
FSLMRS provisions were otherwise identical to the Title I
provisions. As the Supreme Court has put it, this type of
negative inference “grows weaker with each difference in the
formulation of the provisions under inspection.” Id.; see also
Nat’l Postal Pol’y Council v. Postal Regul. Comm’n, 17 F.4th
1184, 1191 (D.C. Cir. 2021) (explaining that this reasoning
“has limited force” when “the two provisions use different
words and are not otherwise parallel”). And here, there is a
fundamental difference between the two provisions: Unlike in
the FSLMRS, Congress in Section 2302(b) chose to explicitly
define prohibited personnel practices based on Title VII and
other specific statutes by name. See 5 U.S.C. § 2302(b). That
labeling gave rise to the obvious implication that Congress
intended to funnel those statutory claims exclusively through
the CSRA scheme. Confronted with that implication, Congress
carefully specified that employees could still concurrently
pursue these claims in district court. See id. § 2302(d).

-- 18 of 68 --

19
If the FSLMRS defined violations of Title VII and other
specific statutes as ULPs, and then omitted the carveout that is
present in Section 2302(d), the union’s argument would be a
sure winner. In that scenario, the omission of a savings clause
would be the “sole difference” between the provisions. Ours
Garage, 536 U.S. at 435.
But that is not how the FSLMRS provisions are structured,
and so the union’s argument falls apart. None of the FSLMRS
provisions that encompass discriminatory conduct explicitly
reference any antidiscrimination statute. Although the union
insists that Congress must have intended for the FSLMRS to
extinguish the statutory causes of action cited in Section
2302(d), Congress likely did not provide a carveout because it
simply did not think the FSLMRS was naturally read as
precluding those claims.
Against that backdrop, the treatment of these causes of
action in Section 2302 is better read as a strong point for Lucas:
In Section 2302, the one context where Congress was squarely
presented with the question whether federal employees should
have concurrent CSRA-based and district court remedies for
these types of discrimination, Congress chose to be clear that
employees did have such concurrent rights. That leads us back
to the fundamental question that pervades this case: Why
would Congress have intended to extinguish federal
employees’ Title VII and ADA remedies and depart from the
general norm of overlapping remedies only when they seek to
sue their unions, and not when they sue their employers?
The union has no meaningful answer. The most direct
theory the union has offered is that, in passing the FSLMRS,
Congress generally sought to place federal unions on a stronger
footing. See Appellees’ Brief 2. But the case the union cites
to support that contention suggests that Congress wanted to
bolster federal unions’ strength vis-à-vis federal agencies in
collective bargaining. See Bureau of Alcohol, Tobacco &

-- 19 of 68 --

20
Firearms v. FLRA, 464 U.S. 89, 92 (1983) (noting that the
FSLMRS “significantly strengthened the position of public
employee unions while carefully preserving the ability of
federal managers to maintain ‘an effective and efficient
Government’” (quoting 5 U.S.C. § 7101(b)). The union has
identified no support—and we cannot find any, in law or
reason—for the idea that Congress wanted to give federal
unions more freedom to engage in invidious discrimination
against the very employees they are obligated to represent.
It is also true that Congress passed the CSRA largely to
streamline preexisting litigation and consolidate review of
similar issues in a single forum. See Ahuja, 62 F.4th at 559.
But “[n]o statute pursues a single policy at all costs.”
Bartenwerfer v. Buckley, 598 U.S. 69, 81 (2023). And here, as
discussed, we have no reason to think that the CSRA went so
far as to displace all other statutory discrimination claims.
Moreover, to the extent the legislative history sheds any light
on our interpretive question, Congress’s concern with
duplicative and lengthy litigation was plainly more front of
mind in the context of federal employees challenging their
employers’ actions, rather than in the context of employees
suing their unions. Compare S. Rep. No. 95-969 at 3, 9 (1978)
(emphasizing that “delays” and the “lengthy and complex
appeals processes” frustrated agencies’ efforts to remove and
discipline employees), with id. at 7–8 (describing the creation
of the Federal Labor Relations Authority as motivated by the
need to consolidate review before a single administrative body
and to ensure that body was free from conflicts of interest).
Yet, as explained, Congress was perfectly happy to tolerate
dual-track discrimination claims against federal agencies.
3
Lacking support for its position in the statutory text or
context, the union relies heavily on language in our CSRA and
FSLMRS precedent describing the statutes’ preclusive force in

-- 20 of 68 --

21
broad terms. The union argues that our caselaw treats the
FSLMRS as effectively preempting the field, so that when it
comes to remedies for the conduct of a federal employee’s
union, all that employee gets is whatever the FSLMRS
prescribes. Cf. Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir.
2005) (“[W]hat you get under the CSRA is what you get.”).
For example, we have concluded that Congress’s choice in the
CSRA to provide and not provide particular remedies to
different types of employees was “intentional[],” so that the
CSRA precludes review under certain other statutes “even
when that scheme provides no judicial relief.” Filebark v.
Dep’t of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009);
Carducci v. Regan, 714 F.2d 171, 174 (D.C. Cir. 1983). We
have reached similar results in cases where federal employees
brought labor-management claims in district court rather than
under the FSLMRS’s review scheme. See, e.g., Am. Fed’n of
Gov’t Emps. v. Sec’y of Air Force (AFGE I), 716 F.3d 633, 636
(D.C. Cir. 2013).
The rationale of those cases, however, is not as categorical
as the union insists, and it does not apply here. Our precedent
has generally asked whether the CSRA and FSLMRS preclude
a cause of action under a certain kind of federal statute:
“general,” “catchall” statutes that could cover “a vast number
of cases” that Congress intended to funnel through the CSRA’s
process of administrative review instead of through district
courts. Lacson v. DHS, 726 F.3d 170, 176 (D.C. Cir. 2013)
(cleaned up).
The Administrative Procedure Act—the most frequent
basis for attempts to circumvent the CSRA—is illustrative. It
allows any person aggrieved by agency action to challenge that
action as “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
If the CSRA did not preclude APA claims addressing
employment disputes, a savvy litigant could recast just about
any such dispute with her employer as an APA suit, giving rise

-- 21 of 68 --

22
to a parallel proceeding in district court. That is why we have
repeatedly concluded that plaintiffs “may not circumvent the
[CSRA’s] requirements and limitations by resorting to the
catchall APA to challenge agency employment actions.”
AFGE I, 716 F.3d at 636 (quoting Grosdidier v. Chairman,
Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009));
see also Filebark, 555 F.3d at 1010; Ahuja, 62 F.4th at 562;
Carducci, 714 F.2d at 172; Fornaro, 416 F.3d at 67; Nyunt v.
Charmain, Broad. Bd. of Governors, 589 F.3d 445, 448–49
(D.C. Cir. 2009).
A similar concern underlay the Supreme Court’s decision
in United States v. Fausto, 484 U.S. 439 (1988). Fausto
addressed whether the CSRA precluded district court suits
under the Back Pay Act, which entitles employees to lost wages
whenever they are “affected by an unjustified or unwarranted
personnel action.” Id. at 454 (quoting 5 U.S.C. § 5596(b)(1)).
Like the APA, the Back Pay Act could conceivably apply to
any employment-related dispute, so long as the dispute affected
the employee’s wages. It was therefore “obvious” that
permitting a Back Pay suit in district court “would undermine”
the CSRA’s remedial scheme. Id. at 451; see also Lacson, 726
F.3d at 176 (recognizing Fausto’s anti-circumvention
rationale).
Likewise, in Spagnola v. Mathis, 809 F.2d 16 (D.C. Cir.
1986), we held that the CSRA precluded claims under 42
U.S.C. § 1985(1). We rejected the view that Section 1985(1)
was a “narrow and limited remedy” and instead described it as
“a statute cast in general language of broad applicability.” Id.
at 29 (cleaned up). That is because the statute provides access
to the courts whenever two or more people conspire to “impede
[an employee] in the discharge of his official duties.” Id. at 28
(quoting 42 U.S.C. § 1985(1)). We reasoned that the CSRA’s
preclusive effect on Section 1985(1) claims followed from our
precedent dealing with similarly broad causes of action,
including the APA. See id. at 30. We then invoked the

-- 22 of 68 --

23
principle that a “precisely drawn, detailed statute preempts
more general remedies.” Id. (quoting Brown v. GSA, 425 U.S.
820, 834 (1976)).8
Title VII and the ADA do not suffer from the same “defect
of generality” as the APA and the other causes of action we
have found the CSRA and FSLMRS to preclude. Lacson, 726
F.3d at 176. Neither Title VII nor the ADA is a catchall statute.
Instead, both statutes address the specific evils of invidious
discrimination by labor organizations, rather than labor-
management relations writ large. Similarly, there is no concern
that every ULP charge under the FSLMRS could give rise to a
parallel Title VII or ADA claim, as unions can commit nearly
all of the ULPs in the FSLMRS without acting on any
discriminatory animus whatsoever. We therefore are not
presented with the same fear that allowing claims like Lucas’s
to proceed would swallow the CSRA or FSLMRS whole.
This statute-specific analysis—rather than the categorical
preclusion rule the union urges—is reinforced by our rationale
and holding in Lacson. There, we permitted a federal air
marshal to pursue a “specific[]” cause of action provided by 49
U.S.C. § 46110, under which an interested party may seek
judicial review of an order issued by the Under Secretary of
Transportation. 726 F.3d at 176. We held that the marshal’s
suit under Section 46110 could proceed even though the order
8 It is true that Spagnola describes our precedent as holding that
the CSRA “seems to . . . preclude[] resort to other statutory schemes
for aggrieved federal employees raising nonconstitutional claims
against their employers.” 809 F.2d at 30. But that statement cannot
be divorced from the context of the decision, which emphasized just
how general § 1985(1) was. Moreover, Spagnola (a panel opinion
we vacated in part and reheard en banc, see Spagnola v. Mathis, 859
F.2d 223, 224 (D.C. Cir. 1988) (en banc) (per curiam)) did not
concern the FSLMRS and had no occasion to consider the CSRA’s
special treatment of discrimination claims.

-- 23 of 68 --

24
at issue formed “much of the legal basis” for his termination,
over which the Merit Systems Protection Board, per the
CSRA’s review scheme, had exclusive jurisdiction. Id. at 175.
As we explained in Lacson, a variety of statute-specific
considerations inform our analysis of the CSRA’s preclusive
effect, including the breadth of the statute under which the
employee seeks relief, the statute’s text, and the timing of its
enactment. See id. at 176–77. We have already detailed the
numerous unique statutory considerations that favor Lucas’s
position here. But on the generality metric that Lacson and our
other cases have focused on, Lucas comes out ahead again.
The union also draws on language from our precedent
stating that the CSRA can preclude constitutional and statutory
causes of action “even if that ma[kes] it impossible to obtain
particular forms of review or relief.” AFGE II, 929 F.3d at 756
(emphasis omitted). Here, too, context is critical. We used this
“impossibility” language to describe a specific subset of cases:
our precedent holding that plaintiffs cannot bring systemic or
nationwide challenges to policies or practices that, if litigated
through specific bargaining disputes or employment
grievances, would fall within the CSRA’s preclusive sweep.
For example, in AFGE I, unions could not sue to invalidate Air
Force Instructions on a “nationwide” basis when they could
challenge the Instructions on a “local-by-local” basis through
grievances, ULP charges, and negotiability disputes. 716 F.3d
at 639. We have likewise held that unions cannot circumvent
the CSRA by bringing systemic challenges to Executive Orders
and guidance documents. See AFGE II, 929 F.3d at 757–59;
Ahuja, 62 F.4th at 560–62.
These cases are materially distinguishable from Lucas’s.
Lucas does not bring a systemic attack on practices she would
otherwise have to challenge before the Federal Labor Relations
Authority. Instead, she seeks to sue her union for specific acts
that she claims were discriminatory, under statutes that

-- 24 of 68 --

25
specifically target such conduct. And Lucas cannot litigate her
Title VII and ADA claims “through the statutory scheme in the
context of concrete bargaining disputes.” AFGE II, 929 F.3d
at 757. The union’s position is that Lucas cannot litigate those
claims at all, and instead must resort to a watered-down ULP
charge.
4
The union appeals to one last strain of precedent: the
framework the Supreme Court developed in Thunder Basin
Coal Co. v. Reich, 510 U.S. 200 (1994), to discern the scope of
a remedial scheme’s preclusive effect. The Thunder Basin
inquiry unfolds in two steps. First, we ask whether
congressional intent to “allocate[] initial review to an
administrative body . . . is ‘fairly discernible in the statutory
scheme.’” Id. at 207 (quoting Block v. Cmty. Nutrition Inst.,
467 U.S. 340, 351 (1984)). Second, we ask whether the claim
at issue is “of the type Congress intended to be reviewed within
th[e] statutory structure.” Id. at 212.
We doubt that Thunder Basin is the right frame of analysis
in this case. That framework is typically applied to determine
where a claim should first be brought—often whether the claim
can be brought in federal district court under general federal
question jurisdiction or instead whether it must be presented to
an agency and then a particular reviewing court or courts per a
special statutory review scheme. See, e.g., Axon Enter., Inc. v.
FTC, 598 U.S. 175, 185 (2023); Elgin v. Dep’t of Treasury, 567
U.S. 1, 10 (2012) (“Like the statute in Thunder Basin, the
CSRA does not foreclose all judicial review of petitioners’
constitutional claims, but merely directs that judicial review
shall occur in the Federal Circuit.”). The question we confront
today is different, because the union’s claim is that Lucas
cannot bring her statutory Title VII and ADA claims in any
venue. When the argument is that a statutory review scheme
completely extinguishes a plaintiff’s rights under another

-- 25 of 68 --

26
federal statute, we have generally not applied the Thunder
Basin framework. See, e.g., Filebark, 555 F.3d at 1012–15;
Grosdidier, 560 F.3d at 497–98; AFGE I, 716 F.3d at 637–39.
In any event, insofar as Thunder Basin is instructive, it
supports Lucas. The parties’ arguments turn on Thunder
Basin’s second step, which asks whether Lucas’s claim is of
the type that Congress channeled through the FSLMRS’s
remedial scheme. Three factors guide our thinking: first,
whether “a finding of preclusion could foreclose all meaningful
judicial review”; second, whether the claim is “wholly
collateral” to the statutory scheme; and, third, whether “agency
expertise could be brought to bear” to resolve the claim.
Thunder Basin, 510 U.S. at 212–15 (cleaned up).
The first of these three factors is all but dispositive here.
Unless Lucas can proceed with her Title VII and ADA lawsuit,
she will have no meaningful opportunity for judicial review of
her discrimination allegations (even in ULP garb) because her
access to the courts will be subject to the General Counsel’s
unreviewable discretion to dismiss her charges. Indeed, as
noted, an unreviewable dismissal is the fate met by nearly
every ULP charge filed by federal employees against their
unions. See Osborne, supra, at 2. The second factor
(collateralism) can be “analyzed together” with the first. AFGE
II, 929 F.3d at 759; see also Free Enter. Fund v. Pub. Co. Acct.
Oversight Bd., 561 U.S. 477, 490 (2010) (assessing first two
factors together). The union has a more compelling argument
as to the third Thunder Basin factor (agency expertise), as we
do not doubt that the Federal Labor Relations Authority’s
familiarity with arbitration proceedings and ULP charges
would be relevant to Lucas’s claims. But the Authority also
claims no particular expertise in the generally applicable
antidiscrimination laws at issue in this case and has itself
directed federal employees with such claims to seek assistance
from other quarters. See ULP Frequently Asked Questions
(FAQs), Fed. Lab. Rels. Auth., https://perma.cc/7R99-7C5C

-- 26 of 68 --

27
(choose “Who the FLRA Helps”). At any rate, the third factor
on its own does not tip the Thunder Basin scales in the union’s
favor, especially when the prospect of meaningful judicial
review is so remote.
5
With the union’s arguments behind us, we turn to the
rationale the district court gave for why, in its view, the
FSLMRS precluded Lucas’s Title VII and ADA claims. The
district court did not entirely embrace the union’s broad
position that “Congress channeled nearly every type of claim a
person may have against a covered labor organization through
the CSRA’s administrative scheme.” Appellees’ Brief 3.
Instead, its ruling rested largely on the fact that Lucas had
submitted ULP charges with materially similar factual
contentions to the Federal Labor Relations Authority before
filing her lawsuits. See Lucas, 2023 WL 2682175, at *9. The
district court regarded her complaints as a “mere repackaging”
of her ULP charges, and it reasoned that exercising jurisdiction
“would provide [Lucas] with a ‘parallel remedy in a federal
district court to enforce the duty of fair representation.’” Id.
(quoting Karahalios, 489 U.S. at 532).
We disagree with that estoppel-like approach. On that
view, the FSLMRS’s preclusive force would be at its apex
when an employee has already filed ULP charges alleging the
“same facts and circumstances” described in the complaint. Id.
We cannot agree, however, that an employee’s decision about
where to first seek relief is an accurate or appropriate barometer
of federal courts’ subject matter jurisdiction. As we have
explained, the FSLMRS’s preclusive effect on other causes of
action depends on a range of statute-specific considerations,
see Lacson, 726 F.3d at 176, not whether an employee filed a
ULP charge before turning to the courts.

-- 27 of 68 --

28
6
Our dissenting colleague would hold that the FSLMRS
extinguished Lucas’s right to sue her union under Title VII and
the ADA. We close with a few high-level observations about
the nature of our disagreement.
The dissent could be read to argue for either of two distinct
rules of decision. At times, the dissent urges that the FSLMRS
automatically and categorically precludes any non-FSLMRS
cause of action a federal employee may have against her union.
See, e.g., Dissenting Op. 19–20. The dissent attempts to
ground that rule in dicta from our cases about the CSRA’s
interaction with broad, catchall statutes. We have explained
already why those cases are not dispositive here. Supra at 21–
25. We add only two observations. First, if those cases truly
stood for the categorical rule the dissent ascribes to them, our
decisions in this area would be considerably more concise (and
Lacson would be wrong). Second, the dissent’s rule would
suggest that federal employees could not sue their unions even
for intentional torts like defamation and assault, as the
FSLMRS nowhere explicitly preserves those claims. Even the
union concedes that such causes of action should not be
preempted, see Appellee’s Brief 34, and the dissent offers no
reason to think that Congress intended them to be. Unless the
dissent is willing to embrace that extreme result, the bounds of
the CSRA’s preclusive effect must be drawn somewhere, and
dicta from cases addressing other statutory causes of action
cannot tell us where those bounds lie.
At other times, the dissent suggests a very different rule.
In this version, the FSLMRS ousts courts of jurisdiction to hear
any claim “that appears on its face to be an unlawful labor
practice under the CSRA.” Dissenting Op. 2. Putting aside

-- 28 of 68 --

29
that language’s inapposite provenance,9 it would be a quite
difficult rule for district courts to apply. Discerning whether a
claim is a ULP “on its face” would require clarity as to both the
factual allegations in question and the conduct that each of the
ULPs prohibits. As detailed supra at 17, however, there are
very few judicial or Federal Labor Relations Authority
decisions interpreting the FSLMRS’s ULP provisions. To take
this case as an example, the dissent confidently declares that
the union’s alleged misconduct here is “on its face” a breach of
the duty of fair representation. Dissenting Op. 18 (quotation
omitted). But the dissent cites no caselaw or other reason to
believe that is so, except that Lucas alleged as much in her
charges to the Authority.
Nor is it clear how district courts would apply the dissent’s
“on its face” standard in practice. Would a district court need
to ask if the allegations in the complaint state a successful ULP
charge? A plausible charge? Something else? The dissent
does not say. Whatever the answer, the dissent’s approach
would require district courts to engage in an unenviable case-
by-case assessment simply to determine if they have
jurisdiction. Congress generally does not intend for
jurisdictional rules to “invite extensive threshold litigation”
that “could present serious difficulties for district courts.”
9 The dissent draws the “on its face” language from Steadman
v. Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963, 966
(D.C. Cir. 1990), which held that federal employees must exhaust
their administrative remedies under the CSRA before raising
constitutional claims in an Article III court. Id. at 967–68. Steadman
explained that the employees could raise their constitutional claims
after exhausting their fair representation claims. It bears repeating
that this case does not concern exhaustion, but rather whether district
courts are entirely without jurisdiction over federal employees’ Title
VII and ADA claims against their unions.

-- 29 of 68 --

30
Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 464 n.13 (1980)
(citation modified).
The dissent also criticizes our discussion of Title VII, the
ADA, and the norm of concurrent, overlapping remedies for
discrimination claims. It accuses us of “‘disregard[ing]’ [the
CSRA’s] ‘text in favor of alleged congressional intent divined
from other statutes.’” Dissenting Op. 29 (quoting Corner Post,
Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 815
(2024)). But there is nothing remarkable about us considering
the particular statutes at issue in this case. See Lacson, 726
F.3d at 176 (illustrating how preclusion inquiry can vary by
statute). As we have explained, Congress’s special solicitude
for discrimination claims is manifest in Title VII, the ADA, and
even the CSRA. Most notably, the CSRA explicitly preserved
federal employees’ ability to pursue overlapping remedies
when they sue their employers for discrimination. And, for all
the reasons we have given, we are unpersuaded that Congress
intended to extinguish such claims when those same employees
seek to sue their unions for similar misconduct.
Finally, several of the dissent’s principal arguments hinge
on its view that Lucas’s claims are clearly within the scope of
Section 7116(b)(4) (the ULP that prohibits unions from
discriminating in “the terms or conditions of membership”
based on sex, disability, and other characteristics). See
Dissenting Op. 3, 13–14, 16, 22, 25. To start, recall that the
union does not so much as cite Section 7116(b)(4) in its brief.
In any event, as we have explained, that provision does nothing
to show that Congress sought to abandon rather than follow the
norm of overlapping remedies in this context. The dissent also
offers no response to our explanation that Section 7116(b)(4)
may not reach discrimination by unions against bargaining-unit
members who are not union members.
Most confoundingly, the dissent incorrectly assumes that
Section 7116(b)(4) applies to Lucas by misreading the

-- 30 of 68 --

31
complaint. The dissent insists that Section 7116(b)(4) clearly
encompasses Lucas’s claims because the complaint alleges she
was treated differently from “other union member[s],” which
the dissent treats as an allegation that Lucas was in fact a dues-
paying union member. Compl. (No. 22-cv-777) ¶ 54;
Dissenting Op. 11 n.3. The dissent ignores that an exhibit
Lucas attached to her complaint states more precisely that she
was “not a dues paying [union] member” at the time relevant
to her allegations. J.A. 27; see also N. Am. Butterfly Ass’n v.
Wolf, 977 F.3d 1244, 1249 (D.C. Cir. 2020) (noting that we
consider documents attached to a complaint in reviewing a
Rule 12(b)(1) motion). As the union itself acknowledged
below, Lucas “only alleges that she was a bargaining unit
employee”—in other words, a “member” of the bargaining
unit—not “that she was a member of [the local.]” J.A. 83. And
insofar as there is any ambiguity in the complaint about what
Lucas meant when she used the word “member,” we must
construe it in her favor. See N. Am. Butterfly Ass’n, 977 F.3d
at 1249.
Our statutory interpretation and rationale do not turn on
whether Lucas was in fact a dues-paying union member. But
the dissent’s appears to (at least when it is not arguing that the
CSRA precludes any and all other causes of action without
limit). It is unclear how much of the dissent’s rationale
survives that basic factual misunderstanding.
***
At bottom, our CSRA and FSLMRS precedent to date has
not addressed a statute like Title VII or the ADA. Those
statutes create their own elaborate schemes to root out
invidious misconduct, and specifically include labor unions
within their coverage. Congress has explicitly ensured that
federal employees can bring concurrent district court and
CSRA-based actions for alleged discrimination by their
employers, and private employees can also bring overlapping

-- 31 of 68 --

32
claims against their unions. Yet the union’s position would
depart from that norm of overlapping remedies and leave
federal employees without the protections Congress deemed
necessary to address invidious discrimination, and even to
judicial review in many cases. We cannot conclude that
Congress quietly upset the norm of overlapping remedies and
concurrent jurisdiction for discrimination claims under Title
VII and the ADA.
Accordingly, we hold that the FSLMRS does not preclude
Lucas’s claims under those statutes. The district court erred by
dismissing them for lack of subject matter jurisdiction.
B
We cannot say the same of Lucas’s claim under the
FLSA’s anti-retaliation provision, which prohibits employers
from retaliating against any employee for invoking her wage-
and-hour rights under the statute. See 29 U.S.C. § 215(a)(3).
Lucas alleges that, after she filed a grievance related to her
wages, the union colluded with the SBA to retaliate against her
by failing to represent her properly in an arbitration proceeding.
The special considerations that save her Title VII and ADA
claims from the Federal Labor Relations Authority’s exclusive
jurisdiction do not apply to her retaliation claim. The district
court thus properly dismissed her second lawsuit.
Unlike Title VII and the ADA, the FLSA is a wage-and-
hour statute, not an antidiscrimination statute. Lucas has not
identified any general norm of concurrent administrative and
judicial jurisdiction over retaliation claims that arise in wage-
and-hour disputes. Nor does the CSRA carve out retaliation
claims under the FLSA for concurrent treatment. Neither
Section 2302(b) nor any other provision of the CSRA provides
that employees may bring such claims in the CSRA’s scheme.
Additionally, unlike the antidiscrimination provisions in
Title VII and the ADA, the FLSA does not expressly apply its

-- 32 of 68 --

33
prohibition against retaliation to “labor organizations.” The
prohibition applies instead to “any person,” 29 U.S.C.
§ 215(a)(3), which the statute defines in a general and
capacious way, id. § 203(a). The statutory text thus does not
reflect a specific congressional choice to have the FLSA’s
protections against retaliation encompass misconduct by labor
organizations. Indeed, few cases have even held that the anti-
retaliation provision creates a cause of action against unions.
See, e.g., Bowe v. Judson C. Burns, Inc., 137 F.2d 37, 39 (3d
Cir. 1943).
By contrast, a claim of sex discrimination under the FLSA
in violation of 29 U.S.C. § 206(d) is specifically targeted for
concurrent jurisdiction under the CSRA in Sections 2302(b)
and (d), and does expressly run against “labor organization[s].”
Perhaps a sex discrimination claim under the FLSA would still
be viable under the logic we have set out for Title VII and the
ADA, but that is not the type of FLSA claim Lucas brought.
In short, Lucas’s FLSA lawsuit is clearly within the
Federal Labor Relations Authority’s purview because it wholly
concerns the representative conduct of her union, and there is
no compelling indication that Congress intended for her to also
be able to bring a FLSA claim in district court. The district
court correctly granted the union’s motion to dismiss.
III
The district court’s judgment as to Case No. 22-cv-00777
(involving the Title VII and ADA claims) is reversed, and that
case is remanded for proceedings consistent with this
opinion. The district court’s judgment as to Case No. 22-cv-
01540 (involving the FLSA claim) is affirmed.
So ordered.

-- 33 of 68 --

PAN, Circuit Judge, concurring in part and dissenting in part:
Nia Lucas is a former federal employee who believes that
her union betrayed her. The union represented her when she
filed a grievance against her employer, the Small Business
Administration. Lucas alleges that during the course of that
representation, the union discriminated against her because she
is a woman, a mother, an African-American, and a disabled
veteran.
Congress created a specialized statutory scheme for
federal employees, like Lucas, who claim that their unions did
not fairly represent them. Under the Civil Service Reform Act
of 1978 (CSRA), Congress channeled such claims to an
independent agency, the Federal Labor Relations Authority
(FLRA). Lucas brought her case before the FLRA but lost.
Undeterred, she turned to federal court, repackaging the same
factual allegations as claims under Title VII of the Civil Rights
Act of 1964, the Americans with Disabilities Act of 1990
(ADA), and the Fair Labor Standards Act (FLSA).
The question before us is not whether federal employees
who suffer discrimination at the hands of their unions should
get relief. Rather, this case is about the proper forum and
remedies for such disputes. Congress gets to make that choice.
And it put “discrimination” on a list of unlawful labor practices
that must be addressed under the section of the CSRA that
pertains to federal unions. Congress also designed the CSRA
to be comprehensive and exclusive, as we and the Supreme
Court have emphasized time and again. Thus, under
longstanding precedents, a federal employee whose claims
against her union fall within the CSRA’s scope may not evade
its statutory review scheme by coming to federal court.
Today, my colleagues in the majority veer away from the
vast body of law that has strictly interpreted the exclusivity of
the CSRA’s statutory scheme. Relying on their understanding

-- 34 of 68 --

2
that other anti-discrimination laws have broad applicability and
offer more favorable remedies to plaintiffs than the CSRA, my
colleagues create a new exception to the CSRA’s
comprehensive and exclusive regime: They hold that
discrimination claims that fall under the CSRA’s union-
specific section may also be brought under Title VII and the
ADA in federal court. I disagree. In my view, statutory text
and binding precedent constrain us to hold that if a federal
employee alleges misconduct by her union that appears on its
face to be an unlawful labor practice under the CSRA, relief
must run through the FLRA, and federal courts lack jurisdiction
to hear claims based on the same conduct. I therefore
respectfully dissent as to all but Part II.B of the majority
opinion.1
I.
A. The CSRA and the FSLMRS
The CSRA “establishes a comprehensive scheme” that
“governs federal labor-management relations.” Am. Fed’n of
Gov’t Emps. v. Sec’y of Air Force (AFGE I), 716 F.3d 633, 636
(D.C. Cir. 2013). Congress enacted it to be “an integrated
scheme of administrative and judicial review, designed to
balance the legitimate interests of the various categories of
federal employees with the needs of sound and efficient
administration.” United States v. Fausto, 484 U.S. 439, 445
(1988).
1 I believe that the CSRA precludes Lucas from bringing any of
the statutory claims that she filed in the district court. I therefore
concur with the majority’s holding in Part II.B that her FLSA claim
is precluded.

-- 35 of 68 --

3
Title II of the CSRA addresses adverse actions by federal
agency employers against their employees. See 5 U.S.C.
§§ 7501–7515. Title VII of the CSRA, known as the Federal
Service Labor-Management Relations Statute (FSLMRS),
regulates unions that represent federal employees. See id.
§§ 7101–7135.
The FSLMRS defines and forbids unfair labor practices
(ULPs) by any “labor organization” “composed in whole or in
part of [federal] employees.” 5 U.S.C. § 7103(a)(4). The list
of forbidden ULPs expressly addresses discrimination by a
union against a federal employee. In relevant part, the statute
provides:
(b) For the purpose of this chapter, it shall be an unfair
labor practice for a labor organization —
(4) to discriminate against an employee
with regard to the terms or conditions
of membership in the labor
organization on the basis of race, color,
creed, national origin, sex, age,
preferential or nonpreferential civil
service status, political affiliation,
marital status, or handicapping
condition[.]
Id. § 7116(b)(4). In addition, section 7114(a)(1) states that “[a]
labor organization which has been accorded exclusive
recognition is . . . responsible for representing the interests of
all employees in the unit it represents without discrimination
and without regard to labor organization membership.”
Relying on the foregoing statutory provisions, the
Supreme Court has held that it is also a ULP for a union to

-- 36 of 68 --

4
“breach . . . the duty of fair representation.” Karahalios v. Nat’l
Fed’n of Fed. Emps., Loc. 1263, 489 U.S. 527, 532 (1989).
That duty requires a federal union to “represent[] the interests
of all employees in the unit it represents without discrimination
and without regard to labor organization membership.” Id. at
531 (quoting 5 U.S.C. § 7114(a)(1)). It also “generally requires
the union to serve the interests of all bargaining unit employees
without hostility or discrimination toward any, to exercise its
discretion with complete good faith and honesty, and to avoid
arbitrary conduct.” Jacoby v. NLRB, 325 F.3d 301, 309 (D.C.
Cir. 2003). In certain circumstances, a union’s “failure to seek
arbitration (which an employee may not compel on his own)
may constitute . . . a breach” of the duty of fair representation.
Steadman v. Governor, U.S. Soldiers’ & Airmen’s Home, 918
F.2d 963, 966 (D.C. Cir. 1990).
To address ULP claims, the CSRA “establishes a scheme
of administrative and judicial review.” Am. Fed’n of Gov’t
Emps., AFL-CIO v. Trump (AFGE II), 929 F.3d 748, 752 (D.C.
Cir. 2019). Disputes under the CSRA are adjudicated by the
FLRA, an independent administrative agency. Id. (citing 5
U.S.C. § 7105(a)); see also 5 U.S.C. § 7118(a)(1). If the FLRA
finds that a ULP occurred, it may issue a cease-and-desist
order, require reinstatement with backpay, or mandate “such
other action as will carry out the purpose of this chapter.” See
5 U.S.C. § 7118(a)(7).
To charge a union with a ULP, a party must file the charge
with the Regional Director of the FLRA. 5 C.F.R. § 2423.6(a).
After conducting an investigation, id. § 2423.8(a), the Regional
Director may either (1) issue a complaint and refer the case to
an administrative law judge, or (2) dismiss the charge, id.
§ 2423.10(a). A dismissal may be appealed to FLRA’s General
Counsel. Id. § 2423.11(c). The CSRA provides for judicial
review of “any final order of” the FLRA. 5 U.S.C. § 7123(a).

-- 37 of 68 --

5
But if the General Counsel declines to issue a complaint after
reviewing the Regional Director’s decision, that is not a final
order and is not judicially reviewable. Turgeon v. FLRA, 677
F.2d 937, 939 (D.C. Cir. 1982).
Both the Supreme Court and our court have developed a
vast body of law interpreting the CSRA. “As our Court has
emphasized, the CSRA is comprehensive and exclusive.”
Grosdidier v. Chairman, Broad. Bd. of Governors, 560 F.3d
495, 497 (D.C. Cir. 2009) (Kavanaugh, J.). The statute
“regulates virtually every aspect of federal employment and
‘prescribes in great detail the protections and remedies’
applicable to adverse personnel actions, ‘including the
availability of administrative and judicial review.’” Nyunt v.
Chairman, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C.
Cir. 2009) (Kavanaugh, J.) (quoting Fausto, 484 U.S. at 443).
The broad scope of the overall regulatory regime holds
true for the FSLMRS, the section that deals with federal
unions: “With the FSLMRS, as with all of the CSRA:
‘Congress passed an enormously complicated and subtle
scheme to govern employee relations in the federal sector,
including the authorization of collective bargaining.’” AFGE I,
716 F.3d at 636 (quoting Steadman, 918 F.2d at 967). The
comprehensiveness of this scheme advances “[t]he purpose of
the CSRA,” which was “designed to replace an outdated
patchwork of statutes and rules that afforded employees the
right to challenge employing agency actions in district courts
across the country.” Elgin v. Dep’t of the Treasury, 567 U.S.
1, 13–14 (2012) (cleaned up). By making the CSRA an
exclusive source of remedies available for federal employees,
Congress avoided the “wide variations in the kinds of decisions
issued on the same or similar matters [under the prior regime]
and a double layer of judicial review that was wasteful and
irrational.” Id. at 14 (cleaned up).

-- 38 of 68 --

6
“Congress designed the CSRA’s remedial scheme with
care, ‘intentionally providing — and intentionally not
providing — particular forums and procedures for particular
kinds of claims.’” Grosdidier, 560 F.3d at 497 (quoting
Filebark v. Dep’t of Transp., 555 F.3d 1009, 1010 (D.C. Cir.
2009)). “[T]he ‘failure to include’ any relief ‘within the
remedial scheme of so comprehensive a piece of legislation
reflects a congressional intent that no judicial relief be
available.’” Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir.
2005) (Roberts, J.) (quoting Carducci v. Regan, 714 F.2d 171,
174 (D.C. Cir. 1983)). In other words, a plaintiff whose claim
falls within the CSRA’s scope “must rely on the ‘variety of
causes of action and remedies’ created by the CSRA.” AFGE I,
716 F.3d at 636 (quoting Grosdidier, 560 F.3d at 497). That is
so “[e]ven if the plaintiff ‘cannot prevail in a claim under the
CSRA,’ [and] no other relief is available.” Id. (quoting
Grosdidier, 560 F.3d at 497). To sum up, “so far as review of
determinations under the CSRA is concerned, what you get
under the CSRA is what you get.” Fornaro, 416 F.3d at 67.
Indeed, “[w]hen Congress wants to preserve remedies outside
the CSRA, it does so expressly.” Nyunt, 589 F.3d at 448.
“‘It follows, then, that federal employees may not
circumvent [the CSRA’s] structure’ by seeking judicial review
outside the CSRA’s procedures.” AFGE I, 716 F.3d at 636
(quoting Steadman, 918 F.2d at 967). In other words, a
plaintiff may not “circumvent” and “end-run” the CSRA by
bringing claims under other statutes. Grosdidier, 560 F.3d at
497. Our cases “establish that the CSRA is the exclusive
remedy for aggrieved federal employees advancing
nonconstitutional claims.” Spagnola v. Mathis (Spagnola I),
809 F.2d 16, 30 (D.C. Cir. 1986); see also Spagnola v. Mathis
(Spagnola II), 859 F.2d 223, 224 (D.C. Cir. 1988) (en banc)
(on rehearing en banc, holding that the CSRA precludes

-- 39 of 68 --

7
constitutional Bivens actions as well). Consistent with that
principle, we and the Supreme Court have held that the CSRA
precludes federal-court jurisdiction over a wide variety of
claims if they are based on facts within the CSRA’s scope. See
Spagnola I, 809 F.2d at 28 (workplace retaliation claim under
42 U.S.C. § 1985(1)); Spagnola II, 859 F.2d at 224 (Bivens
claim); Fausto, 484 U.S. at 455 (Back Pay Act claim);
Carducci, 714 F.2d at 175 (APA claim); Graham v. Ashcroft,
358 F.3d 931, 935 (D.C. Cir. 2004) (Vitarelli claim that agency
violated own regulations).
B. Factual and Procedural History
Lucas is an African-American woman, a mother, and a
U.S. Army veteran, with a disability stemming from a
traumatic brain injury that she suffered while in the military.
From January 2017 until April 2020, she worked as a program
analyst for the Small Business Administration (SBA). The
local chapter (Local) of the American Federation of
Government Employees (AFGE) was the exclusive
representative of her bargaining unit.
As the majority explains, Lucas’s claims arise out of
alleged discrimination by AFGE, the Local, and two union
officials — Johnnie Green and Michael Kelly — in connection
with the union’s representation of Lucas in a dispute with the
SBA. See Maj. Op. 6–9. Briefly put, Green, the Local’s
president, filed a grievance on Lucas’s behalf and invoked
arbitration, but he did not include all the charges that Lucas
thought should be included, and Lucas had to pay the
arbitration fee and attorney’s fee. While representing Lucas,
Green allegedly sexually harassed her. When she complained,
defendants allegedly retaliated by assigning an inexperienced
union steward to represent her, postponing and then
withdrawing her arbitration, and expelling her from the union.

-- 40 of 68 --

8
Initially, Lucas sought relief by filing three ULP charges
with the FLRA. In her first charge, she alleged that AFGE
violated its duty of fair representation through “continuous
postponement of the arbitration hearing”; and she “included her
claims for [the] sexual harassment she endured from Johnnie
Green.” Title VII/ADA Compl. ¶¶ 62–63. In her second
charge, also against AFGE, she alleged that Kelly and Green
collaborated “in the restriction of [her] union rights and
expelling [her] from the union.” J.A. 98. She also alleged that
Kelly “sought to support the discrimination [she] experienced
as [a] result of [her] sex, . . . and inhibit[ed] the negotiation with
the [SBA by] failing to follow both the law and AFGE
constitution.” J.A. 98. Finally, in her third charge, against the
Local, she claimed that Green threatened her with the loss of
her settlement agreement with the SBA if she did not “support
the union activities” and sexually harassed her, resulting in
discrimination. J.A. 104. She further stated that the union
expelled her “for filing an unfair labor practice with FLRA,
[and] for participating in [the] Board investigation”; and that
“because of her criticism of . . . Green,” it withdrew her
arbitration and “interfere[ed] [with] and restrict[ed] her right[s]
under” the FSLMRS. J.A. 104.
Lucas’s efforts were unsuccessful. The FLRA issued two
letters dismissing as untimely her first two ULP charges. The
fate of her third ULP charge is unclear from the record.
Because the FLRA has been without a General Counsel since
2017, Lucas effectively has been unable to pursue any appeals.
Stymied by the FLRA, Lucas turned to the federal district
court, bringing one case under Title VII and the ADA, and
another under the FLSA. In her Title VII/ADA Complaint, she
alleged that AFGE and the Local (1) discriminated against her
on the basis of her sex, in violation of Title VII; (2)

-- 41 of 68 --

9
discriminated against her on the basis of her disability, in
violation of the ADA; (3) created and allowed a hostile work
environment, in violation of both statutes; and (4) retaliated
against her when she engaged in various protected activities, in
violation of both statutes.2 In her FLSA Complaint, Lucas
alleged in relevant part that AFGE, the Local, Green, and Kelly
retaliated against her after she filed an employee grievance, in
violation of the FLSA. FLSA Compl. ¶¶ 62–78.
Defendants moved to dismiss both cases for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). The district court observed that Lucas “filed multiple
unfair labor practices with the FLRA against AFGE and the
Local complaining about the very same facts and
circumstances she has now put before the Court” in the Title
VII/ADA Case. Lucas v. Am. Fed’n of Gov't Emps., No. 22-
cv-0777, 2023 WL 2682175, at *9 (D.D.C. Mar. 29, 2023). It
noted that “[i]n each of the ULPs, plaintiff specifically asserted
that the conduct now underlying her claims under [Title VII]
and the ADA contravened the CSRA’s prohibition against
unfair labor practices.” Id. The district court concluded that
“[h]er allegations, therefore, are properly characterized as a
mere repackaging of her claims under the CSRA for breach of
the duty of fair representation.” Id. The district court likewise
2 The facts underlying the Title VII and ADA claims included
allegations that defendants (1) failed to represent Lucas with respect
to her 2017 grievances; (2) failed to file a ULP charge for that failure
to represent her; (3) made Lucas pay the arbitration fee and attorney’s
fee for her arbitration; (4) assigned an inexperienced union steward
to represent her; (5) forced her “to endure a hostile work environment
in order to continue with the arbitration”; (6) postponed and
ultimately withdrew her arbitration; (7) expelled her from the union;
and (8) told Lucas that the union “did not want to represent disabled
mothers of newborns.” See Title VII/ADA Compl. ¶¶ 27–30, 52, 62,
80–85, 95, 107–08, 115–16.

-- 42 of 68 --

10
determined that Lucas’s FLSA Complaint “cannot be
construed to be about anything other than the breach of the duty
of fair representation” since “[a]ll of these allegations also
underlie the claims in the ULPs she submitted to the FLRA.”
Id. at *10. Accordingly, the district court found that the CSRA
precluded jurisdiction over Lucas’s claims and granted the
motions to dismiss. Id. at *12. Lucas filed a timely notice of
appeal. We have jurisdiction under 28 U.S.C. § 1291.
II.
As a threshold matter, Lucas’s claims are within the scope
of the CSRA because her allegations support a claim that the
union committed a ULP by violating its duty of fair
representation. The district court carefully compared the facts
alleged in Lucas’s district court complaints with those that
supported her ULP charges before the FLRA: It determined
that Lucas’s Title VII, ADA, and FLSA claims rely on the
“very same facts and circumstances” as the ULP claims.
Lucas, 2023 WL 2682175, at *9. Lucas has not challenged that
conclusion. Thus, we must accept that each of the instances of
discrimination alleged in the complaints is also a breach of the
duty of fair representation, which required AFGE to
“represent[] the interests of all employees in the unit it
represents without discrimination and without regard to labor
organization membership.” Karahalios, 489 U.S. at 531
(quoting 5 U.S.C. § 7114(a)(1)).3
Against that backdrop, our task is to answer the following
question: Did Congress intend to allow federal employees with
3 Although the majority suggests, without elaboration, that a fair-
representation ULP may have been unavailable to Lucas, Maj. Op.
15–16, Lucas herself alleged before the FLRA that defendants

-- 43 of 68 --

11
ULP claims under the FSLMRS to bring other claims based on
the same facts under different statutes? In my view, the
CSRA’s text, binding precedent, and the Thunder Basin
framework all point to Congress’s intent to keep such claims
within the exclusive purview of the CSRA. Because Lucas’s
violated the duty of fair representation, and she has maintained that
position throughout the pendency of this case. In any event, even if
we assume that Lucas could not make a fair-representation claim, she
also asserted before the FLRA that the union committed a different
ULP by “discriminat[ing] against an employee with regard to the
terms or conditions of membership in the labor organization on the
basis of” a protected characteristic. See 5 U.S.C. § 7116(b)(4). The
majority disregards this ULP on the ground that Lucas was not
actually a union member. Maj. Op. 16. But Lucas alleged before the
district court that she was a “member” of the union, Title VII/ADA
Compl. ¶ 54, and a “union steward,” FLSA Compl. ¶ 14, until she
was “expelled,” Title VII/ADA Compl. ¶ 65, and “discharged” from
the union in retaliation for her protected activity, FLSA Compl. ¶¶
16, 38, 53, 94. Because we are “[a]t the motion-to-dismiss stage, we
accept the factual allegations in Lucas’s complaints as true.” Maj.
Op. 6 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The majority nonetheless relies on representations by Lucas’s
counsel at oral argument, based on “my conversation with my client,
which I appreciate is not part of the record.” Oral Arg. Tr. 24. The
majority also relies on a quote taken out of context from an exhibit
attached to Lucas’s complaint. In that exhibit, Lucas sent an email
cataloguing her complaints against union leader Johnnie Green.
Lucas wrote, among other things, that Green removed her as a
“national steward” of the union and that Green asserted that Lucas
“was not a dues paying member” of the union. J.A. 27. The majority
takes the latter statement as definitive proof that Lucas was not a
union member. But Green’s statement to that effect in that context
does nothing to negate Lucas’s repeated allegations that she was a
union member, especially considering Lucas’s simultaneous
assertion that Green fired her as a union steward. The bottom line is
that Lucas’s claims before the district court unquestionably fall
within the scope of the CSRA.

-- 44 of 68 --

12
allegations establish that the union breached its duty of fair
representation, her only remedy is to pursue claims under the
CSRA before the FLRA. The district court therefore correctly
dismissed both her complaints for lack of jurisdiction.
My colleagues in the majority arrive at a different
conclusion based on “special considerations” for Title VII and
the ADA. Maj. Op. 32. They go wrong by departing from the
traditional tools of statutory interpretation. Their holding that
Lucas may bring her Title VII and ADA claims is contrary to
the CSRA’s text and comprehensive scheme. Moreover,
binding precedents foreclose their reasoning and their holding.
But they rely on the generally broad reach of Title VII and the
ADA to get to their preferred outcome, instead of focusing on
the specific, anti-discrimination provisions of the CSRA. See
Spagnola I, 809 F.2d at 30 (in evaluating the exclusivity of the
CSRA, we apply the familiar “principle . . . that a precisely
drawn, detailed statute preempts more general remedies”
(cleaned up)); see also Corner Post, Inc. v. Bd. of Governors of
Fed. Rsrv. Sys., 603 U.S. 799, 815 (2024) (a court may not
“disregard[]” a statute’s “text” “in favor of alleged
congressional intent divined from other statutes with very
different language” (emphasis in original)).
The majority also is mistaken when it cites the supposed
inadequacy of the remedies available for anti-discrimination
claims under the CSRA. See AFGE I, 716 F.3d at 638 (“[I]t is
the comprehensiveness of the [CSRA], not the adequacy of
specific remedies thereunder, that counsels judicial
abstention.” (cleaned up)); see also Fornaro, 416 F.3d at 67
(“What you get under the CSRA is what you get.” (cleaned
up)). And finally, the majority unwisely wonders why
Congress would preclude federal employees from benefiting
from statutory remedies that are generally available to others.
See Badgerow v. Walters, 596 U.S. 1, 16–17 (2022) (“However

-- 45 of 68 --

13
the pros and cons shake out, Congress has made its call.”).
Because I disagree with the majority’s unconventional methods
of statutory interpretation, I respectfully dissent.
A. Statutory Text
“In addressing a question of statutory interpretation, we
begin with the text.” City of Clarksville v. FERC, 888 F.3d
477, 482 (D.C. Cir. 2018). Here, the CSRA’s text indicates
that Congress did not intend to allow a federal employee to
bring a claim against her union in federal court if the facts
underlying her claim fall within the scope of the CSRA.
Congress explicitly placed discrimination claims within
the purview of the CSRA, providing that discrimination is both
a prohibited personnel practice by an employer, 5 U.S.C.
§ 2302(b)(1), and a ULP by a union, id. §§ 7114(a)(1),
7116(b)(4), (8). But the CSRA treats such claims differently
when they involve an employer: The statute expressly allows
a federal employee to also bring discrimination claims under
Title VII and other anti-discrimination statutes against federal
employers. See id. § 2302(d). It contains no parallel saving
clause to permit free-standing discrimination claims against
federal unions.
That is so even though the two CSRA provisions that
reference discrimination claims are functionally identical. In
relevant part, section 2302(b)(1) makes it a prohibited
personnel practice for an employer to discriminate in personnel
actions against employees “on the basis of race, color, religion,
sex, or national origin, as prohibited under section 717 of the
Civil Rights Act of 1964” or “on the basis of handicapping
condition, as prohibited under section 501 of the Rehabilitation
Act of 1973,” 5 U.S.C. § 2302(b)(1)(A), (D); while section
7116(b)(4) makes it a ULP for a union “to discriminate against

-- 46 of 68 --

14
an employee with regard to the terms or conditions of
membership in the labor organization on the basis of race,
color, creed, national origin, sex, age, preferential or
nonpreferential civil service status, political affiliation, marital
status, or handicapping condition,” id. § 7116(b)(4).
With respect to claims against employers, the saving
clause in section 2302(d) preserves other statutory remedies,
providing that “[t]his section shall not be construed to
extinguish or lessen . . . any right or remedy available to any
employee or applicant for employment in the civil service
under . . . section 717 of the Civil Rights Act of 1964,
prohibiting discrimination on the basis of race, color, religion,
sex, or national origin” or “section 501 of the Rehabilitation
Act of 1973, prohibiting discrimination on the basis of
handicapping condition.” 5 U.S.C. § 2302(d)(1), (4).
In a glaring omission, however, the CSRA contains no
similar saving clause for discrimination claims against unions.
The logical inference we should draw from that disparity is that
Congress knew how to preserve federal-court jurisdiction over
discrimination claims brought by federal employees, but it
chose not to do so for discrimination claims against unions.
Indeed, “[w]here Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” NetCoalition v. SEC, 715 F.3d 342, 350 (D.C. Cir.
2013) (quoting Russello v. United States, 464 U.S. 16, 23
(1983)); see also Antonin Scalia & Bryan A. Garner, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 107 (2012) (“The
expression of one thing implies the exclusion of others . . . .”).
The Supreme Court has “invoked this [expressio unius] canon
time and time again.” City & Cnty. of San Francisco v. EPA,

-- 47 of 68 --

15
145 S. Ct. 704, 714 (2025). Thus, the absence of an explicit
provision that preserves the right of federal employees to bring
suits against their unions under Title VII and the ADA is strong
evidence that Congress did not intend to allow such suits to
proceed. And that inference is reinforced by our specific
CSRA precedents. We have explained that “[w]hen Congress
wants to preserve remedies outside the CSRA, it does so
expressly.” Nyunt, 589 F.3d at 448 (citing 5 U.S.C. § 2302(d)
and Grosdidier, 560 F.3d at 497 n.2).
With no express preservation of outside remedies,
Congress placed “discrimination” on the list of ULPs in the
FSLMRS, thereby demonstrating its intent to channel
discrimination claims, like all ULPs, to the FLRA, and not to a
federal court. See Steadman, 918 F.2d at 966 (noting that
Karahalios “bars a district court from entertaining an unfair
labor practice claim, over which the FLRA has exclusive
jurisdiction”). The text of the statute thus strongly supports the
conclusion that the CSRA precludes parallel actions under Title
VII and the ADA.
Although the expressio unius principle may be overcome
by contrary indications of congressional intent, Marx v. Gen.
Revenue Corp., 568 U.S. 371, 381 (2013), my colleagues have
not offered any other “plausible explanation” for Congress’s
pointed omission of a saving clause for discrimination cases
against unions, Nat’l Shooting Sports Found., Inc. v. Jones, 716
F.3d 200, 211 (D.C. Cir. 2013) (cleaned up). I am unconvinced
by my colleagues’ contention that it was necessary for
Congress to include a saving clause for claims against agencies
but not against unions because the provision that defines
prohibited personnel practices for agencies refers to “Title VII
and other specific statutes by name,” thereby creating the need
to dispel an “obvious implication that Congress intended to
funnel those statutory claims exclusively through the CSRA

-- 48 of 68 --

16
scheme.” Maj. Op. 18. My colleagues overstate the
significance of this difference. Although the FSLMRS does
not expressly reference Title VII or other statutes, it broadly
covers discrimination “on the basis of race, color, creed,
national origin, sex, age, preferential or nonpreferential civil
service status, political affiliation, marital status, or
handicapping condition.” 5 U.S.C. § 7116(b)(4). It makes
such discrimination a ULP and places ULPs within the
exclusive jurisdiction of the FLRA. See id. §§ 7105(a)(2)(G),
7118. Thus, the wording of the FSLMRS provision also comes
with “the obvious implication that Congress intended to funnel
[the listed] claims exclusively through the CSRA scheme.”
Maj. Op. 18. Yet Congress did not expressly preserve remedies
outside the CSRA, even though it easily could have done so
with a saving clause like the one in section 2302(d). See Nyunt,
589 F.3d at 448 (“When Congress wants to preserve remedies
outside the CSRA, it does so expressly . . . .”).
Ultimately, we should presume that the legislature meant
what it said: “Congress designed the CSRA’s remedial scheme
with care, ‘intentionally providing — and intentionally not
providing — particular forums and procedures for particular
kinds of claims.’” Grosdidier, 560 F.3d at 497 (quoting
Filebark, 555 F.3d at 1010). In my view, Congress has
deliberately declined to preserve the ability of federal
employees to file claims against their unions in federal court
when the alleged misconduct can instead be resolved before the
FLRA under the CSRA. We must respect that choice.
B. Precedent
Binding precedent buttresses my interpretation of the
statutory text and independently requires us to hold that the
CSRA precludes Lucas from bringing claims under Title VII
and the ADA.

-- 49 of 68 --

17
1. Karahalios and Steadman
Karahalios is the Supreme Court’s leading decision on the
FSLMRS, and our court’s decision in Steadman builds on the
analysis in Karahalios. See Karahalios, 489 U.S. at 529;
Steadman, 918 F.2d at 966. Together, those cases stand for the
general proposition that plaintiffs may not seek recourse in
federal court simply by framing their ULP claims under the
CSRA as claims under other statutes.
In Karahalios, the Court addressed whether there is an
implied cause of action to enforce a federal union’s duty of fair
representation in federal court. The Court evaluated the text,
structure, and legislative history of the CSRA and the FSLMRS
and concluded that Congress did not “intend[] to furnish a
parallel remedy in a federal district court to enforce the duty of
fair representation.” 489 U.S. at 532; see also id. at 536.
Although the Court did not directly address whether a district
court has jurisdiction when a plaintiff relies on facts underlying
a fair representation claim to assert a cause of action under
another statute, it closely examined Congress’s intent to permit
parallel remedies. In so doing, the Court noted that “[t]o hold
that the district courts must entertain such cases in the first
instance would seriously undermine what we deem to be the
congressional scheme, namely to leave the enforcement of
union and agency duties under the [CSRA] to the General
Counsel and the FLRA and to confine the courts to the role
given them under the [CSRA].” Id. at 536–37. Thus, under
Karahalios, “the FLRA enjoys exclusive jurisdiction over a
claim of a union’s breach of its duty of fair representation.”
Steadman, 918 F.2d at 966 (citing Karahalios, 489 U.S. at 533–
34).
Applying Karahalios in Steadman, we rejected an attempt
by federal employees to evade the FSLMRS by repackaging

-- 50 of 68 --

18
what were essentially fair representation claims against their
unions. See Steadman, 918 F.2d 963. The plaintiffs had sued
their union, alleging that after they were fired, their union failed
to effectively invoke arbitration on their behalf. Although the
employees asserted due process and other claims, we noted that
“the union’s mishandling of the employees’ claims on its face
appears to be a breach of the union’s duty of fair representation,
under 5 U.S.C. § 7114(a)(1), which is actionable as an unfair
labor practice pursuant to 5 U.S.C. § 7116(b)(8).” Id. at 966
(emphasis in original). Accordingly, we held that the district
court lacked jurisdiction over the employees’ claims. Id. at
967–68. We explained that a plaintiff could not pursue a claim
that “on its face appears to be a breach of the [federal] union’s
duty of fair representation” simply through “clever drafting of
a complaint.” Id. at 966–67.
As in Steadman, Lucas purports to bring claims under
statutes other than the CSRA even though the union’s alleged
misconduct “on its face appears to be a breach of the union’s
duty of fair representation.” Steadman, 918 F.2d at 966. But
she may not evade the CSRA through artful pleading.4
Because Lucas’s claims “fall within [CSRA’s] scope,” that
statute “provides ‘the exclusive avenue for suit.’” AFGE I, 716
F.3d at 636 (quoting Grosdidier, 560 F.3d at 497). She “must
rely on the ‘variety of causes of action and remedies’ created
by the CSRA” and “‘may not circumvent the Act’s
4 To be sure, unlike the Steadman plaintiffs, Lucas first pursued
her remedies under the CSRA. But Steadman stated that the
plaintiffs could have come to federal court had they exhausted their
CSRA remedies only because they advanced intertwined statutory
and constitutional claims. Steadman, 918 F.2d at 967–68 (citing
Andrade v. Lauer, 729 F.2d 1475, 1493 (D.C. Cir. 1984) and Griffith
v. FLRA, 842 F.2d 487 (D.C. Cir. 1988)). Since Lucas brings only
statutory claims, exhaustion does not unlock the courthouse door.

-- 51 of 68 --

19
requirements and limitations by resorting to’” Title VII or the
ADA. See id. (quoting Grosdidier, 560 F.3d at 497).
2. Spagnola I
As discussed, the federal reporters brim with cases that
treat the CSRA as comprehensive and exclusive. See Part I.A.
But the most directly on-point decision in our jurisdiction is
Spagnola I, which forecloses any argument that federal
employees have statutory remedies outside the CSRA for
discrimination by their unions.
In Spagnola I, a federal employee who allegedly suffered
harassment and retaliation by his superiors asserted a claim
against his employer under 42 U.S.C. § 1985(1). See 809 F.2d
at 28. That provision “proscribes conspiracies that, by means
of force, intimidation, or threats, prevent federal officers from
discharging their duties or accepting or holding office.”
Thompson v. Trump, 590 F. Supp. 3d 46, 62 (D.D.C. 2022),
aff’d sub nom. Blassingame v. Trump, 87 F.4th 1 (D.C. Cir.
2023).
We accepted that section 1985(1) protects federal
employees’ rights to be free of retaliation in the workplace —
just like Title VII and the ADA. Spagnola I, 809 F.2d at 28–
29. But we held that “Congress meant the CSRA to be the
exclusive statutory remedy for aggrieved federal employees
and thereby foreclosed [plaintiff’s] resort to § 1985(1).” Id. at
28. Indeed, we noted that the “unifying thread” of our CSRA
cases was “that the CSRA precludes resort to other statutory
schemes for aggrieved federal employees raising
nonconstitutional claims against their employers.” Id. at 30. In
reaching that conclusion, we noted that “[t]here is no
requirement that Congress’ alternative remedy be ‘adequate’ or
that Congress afford a certain kind of tribunal for claims that

-- 52 of 68 --

20
do not arise under the Constitution,” because “Congress can
create and modify nonconstitutional claims as it sees fit; the
role of the courts is simply to divine congressional intent.” Id.
at 28. Here, Lucas’s claims under Title VII and the ADA are
barred by a straightforward application of Spagnola I’s holding
that “the CSRA is the exclusive remedy for aggrieved federal
employees advancing nonconstitutional claims.” Id. at 30.
Although Spagnola I could not be clearer, the majority
points out that we have not rested our later decisions on the
broad language from that case. See Maj. Op. 23 n.8. But that
makes little difference because we are “bound to follow circuit
precedent until it is overruled either by an en banc court or the
Supreme Court.” Maxwell v. Snow, 409 F.3d 354, 358 (D.C.
Cir. 2005). To the extent there is any conflict with later cases,
Spagnola I controls as the earlier precedent. See Rosenkrantz
v. Inter-Am. Dev. Bank, 35 F.4th 854, 868 (D.C. Cir. 2022). In
any event, our later cases are consistent with the general rule
announced in Spagnola I, as its strict approach to preclusion
remains central to our CSRA jurisprudence: “What you get
under the CSRA is what you get.” Fornaro, 416 F.3d at 67
(cleaned up).
Even setting aside Spagnola I’s broad holding precluding
all statutory claims, the case’s narrower holding also controls.
In Spagnola I, we held that the CSRA precluded a federal
employee with a claim under the CSRA from pursuing a
workplace retaliation claim under another statute,
section 1985(1), that serves to “root out invidious misconduct.”
Maj. Op. 31. In my view, Spagnola I forecloses the majority’s
jurisdictional carve-out and requires us to affirm the dismissal
of Lucas’s claims.

-- 53 of 68 --

21
3. The “General” “Catchall Statute” Argument
Confronted with our “CSRA and FSLMRS precedent,”
which “describ[es] the statutes’ preclusive force in broad
terms,” Maj. Op. 20–21, my colleagues attempt to find a
distinguishing feature to save Lucas’s claims. They argue that
our precedents that highlight the CSRA’s “preclusive force”
have “generally” been limited to “a certain kind of federal
statute: ‘general,’ ‘catchall’ statutes that could cover ‘a vast
number of cases’ that Congress intended to funnel through the
CSRA’s process of administrative review instead of through
district courts.” Maj. Op. 21 (quoting Lacson v. DHS, 726 F.3d
170, 176 (D.C. Cir. 2013)). But the majority’s reasoning falls
short because Title VII and the ADA are precisely the sort of
“general” statutes that we have found precluded by the CSRA.
In harmonizing the CSRA with other statutes, “[w]e are
guided by the ‘old and familiar rule’ that ‘the specific governs
the general,’ which is ‘particularly true’ where ‘Congress has
enacted a comprehensive scheme and has deliberately targeted
specific problems with specific solutions.’” Patten v. District
of Columbia, 9 F.4th 921, 926 (D.C. Cir. 2021) (quoting
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.
639, 645–46 (2012)). Accordingly, in Spagnola I we
recognized that our CSRA preclusion cases “seem to be
applications of the general principle . . . that ‘a precisely drawn,
detailed statute preempts more general remedies.’”
809 F.2d at 30 (quoting Brown, 425 U.S. at 834). Applying
that principle in Patten, 9 F.4th at 926, we held that a statute
establishing a special statutory review framework precluded
resort to the ADA and other generally applicable
antidiscrimination statutes — notwithstanding the supposed
“norm of concurrent, overlapping remedies for
discrimination.” Maj. Op. 13.

-- 54 of 68 --

22
Here, the FSLMRS specifically addresses discrimination
against a federal employee by any “labor organization”
“composed in whole or in part of [federal] employees.”
5 U.S.C. § 7103(a)(4). In a precisely drawn provision, the
statute forbids that kind of discrimination on the basis of “race,
color, creed, national origin, sex, age, preferential or
nonpreferential civil service status, political affiliation, marital
status, or handicapping condition.” Id. § 7116(b)(4). Title VII
and the ADA are statutes of broader and more general
applicability than the CSRA.5 They permit plaintiffs to sue in
a wide variety of circumstances, and the majority concedes that
they sweep more broadly than the FSLMRS “in terms of
substantive coverage.” See Maj. Op. 15 (“Lucas and the EEOC
(as amicus) make a substantial case that the FSLMRS
provisions are . . . narrower [than Title VII and the ADA] in
terms of substantive coverage.”). Thus, the CSRA’s
comprehensive scheme, which deliberately targets the specific
problem of discrimination by federal-employee unions,
preempts the more general prohibitions against discrimination
in Title VII and the ADA.
The majority’s heavy reliance on Lacson v. Department of
Homeland Security, 726 F.3d 170, is misplaced. In my view,
Lacson is entirely consistent with our broader CSRA
5 See 42 U.S.C. § 2000e-2(a)–(c) (prohibiting discrimination on
the basis of “race, color, religion, sex, or national origin” by
employers, employment agencies, and unions); id. § 2000e-16(a)
(providing that personnel actions affecting federal employees “shall
be made free from any discrimination based on race, color, religion,
sex, or national origin”); id. § 12112(a) (prohibiting discrimination
“on the basis of disability” by any “covered entity”); id. § 12111(2)
(defining “covered entity” to include employers, employment
agencies, and unions).

-- 55 of 68 --

23
jurisprudence and does not support the majority’s
unprecedented carveout for discrimination claims.
In Lacson, an air marshal who had been fired for leaking
sensitive security information sought review of the TSA order
that justified his firing. See 726 F.3d at 172. He sought review
in federal court under 49 U.S.C. § 46110, which expressly
grants federal courts jurisdiction to review that specific type of
TSA order. Id. at 173 (citing 49 U.S.C. §§ 46110, 114(r)). We
recognized that Lacson’s suit “ha[d] much in common” with
lawsuits that we had deemed precluded by the CSRA. Id. at
175. But we distinguished those precedents because we found
“something special about § 46110’s grant of jurisdiction.” Id.
at 176. The prior cases precluding non-CSRA claims
“involved attempts to use quite general statutory review
provisions to reach other federal courts,” whereas
section 46110 “specifically addresses the type of order at issue
here.” Id. We explained that “because the statute is so
narrowly drawn, we need not worry that hearing Lacson’s case
would permit employees to circumvent the CSRA’s
requirements and limitations in a vast number of cases that
would otherwise go to the MSPB,” the independent agency that
adjudicates prohibited personnel actions by employers under
the CSRA. Id. (cleaned up).
This case is nothing like Lacson because Title VII and the
ADA are not “narrowly drawn.” 726 F.3d at 176. The CSRA
precludes claims under Title VII and the ADA because those
statutes are more general than the CSRA. By misapplying that
basic principle and greenlighting parallel suits under Title VII
and the ADA, the majority “permits employees to circumvent
the CSRA’s requirements and limitations” in a potentially “vast
number of cases that would otherwise go to” the FLRA — and

-- 56 of 68 --

24
that plainly contravenes our reasoning in Lacson. See id.
(cleaned up).6
In sum, Title VII and the ADA provide remedies that are
more general than those available under the FSLMRS, and “the
specific governs the general.” Patten, 9 F.4th at 926 (cleaned
up). Because Lucas’s claims fall within the scope of the
FSLMRS, she may not bring claims under Title VII and the
ADA in federal court.
D. Thunder Basin
The Thunder Basin framework provides further
confirmation that the CSRA precludes parallel claims under
Title VII and the ADA. Thunder Basin is a tool for discerning
congressional intent when evaluating the exclusivity of a
statutory review scheme. See Axon Enter. v. FTC, 598 U.S.
175, 186 (2023) (“The ultimate question is how best to
understand what Congress has done — whether the statutory
review scheme, though exclusive where it applies, reaches the
claim in question.”). “Under that framework, Congress
intended that a litigant proceed exclusively through a statutory
scheme when (i) such intent is ‘fairly discernible in the
statutory scheme,’ and (ii) the litigant’s claims are ‘of the type
Congress intended to be reviewed within [the] statutory
6 Moreover, the majority’s attempt to limit the CSRA’s
preclusive effect to “catchall” statutes like the APA is inconsistent
with precedent. We have held that the CSRA precluded resort to
section 1985(1), which covers conspiracies against federal officials
that extend beyond the federal employment context. See id. Yet
section 1985(1) is plainly not a “catchall” statute that “could cover
‘a vast number of cases’ that Congress intended to funnel through
the CSRA’s process of administrative review instead of through
district courts.” Maj. Op. 21 (quoting Lacson, 726 F.3d at 176).

-- 57 of 68 --

25
structure.’” AFGE II, 929 F.3d at 754 (cleaned up) (quoting
Thunder Basin, 510 U.S. at 207, 212).7
Under step one of the Thunder Basin test, Congress
unquestionably intended the CSRA to be comprehensive and
exclusive. See supra Parts II.A, II.B. As we have explained:
With the FSLMRS, as with all of the CSRA:
Congress passed an enormously complicated
and subtle scheme to govern employee
relations in the federal sector. . . . Thus, we
can fairly discern that Congress intended the
statutory scheme to be exclusive with respect
to claims within its scope.
AFGE II, 929 F.3d at 755 (cleaned up).
Step two of Thunder Basin also is satisfied: The district
court made an uncontested finding that Lucas’s discrimination
claims under Title VII and the ADA also were ULPs that are
reviewable within the CSRA’s statutory structure. As
discussed, Congress expressly included discrimination claims
as ULPs subject to adjudication by the FLRA. See 5 U.S.C.
§§ 7114(a)(1), 7116(b)(4). And the statutory text and
precedent strongly indicate that Lucas’s claims must be
brought through the CSRA’s scheme. See supra Parts II.A,
II.B.
7 The majority doubts that Thunder Basin applies to this case,
suggesting that this “framework is typically applied to determine
where a claim should first be brought,” rather than whether “a
statutory review scheme completely extinguishes a plaintiff’s rights
under another federal statute.” Maj. Op. 25–26. But the majority
cites no authority that limits Thunder Basin in that way.

-- 58 of 68 --

26
My colleagues in the majority dispute that step two of the
Thunder Basin framework favors defendants. They note that
when courts apply step two, they may consider whether: “(1) a
finding of preclusion might foreclose all meaningful judicial
review; (2) the claims are wholly collateral to the statutory
review provisions; and (3) the claims are beyond the expertise
of the agency.” AFGE II, 929 F.3d at 755 (cleaned up). The
majority contends that the first of these factors “is all but
dispositive here” because a failure to bring a complaint by the
FLRA’s General Counsel is not judicially reviewable. Maj.
Op. 26.
But that misunderstands the Thunder Basin inquiry. The
limited scope of judicial review cannot be “dispositive”
evidence of Congress’s intent regarding the CSRA’s
exclusivity. The three listed “considerations . . . serve as
general guideposts useful for channeling the inquiry into
whether the particular claims at issue fall outside an
overarching congressional design.” AFGE II, 929 F.3d at 755
(cleaned up). Even “when the answer to all three questions is
yes,” that just means that a court will “presume that Congress
does not intend to limit jurisdiction.” Axon Enter., 598 U.S. at
186 (cleaned up) (emphasis added). “The ultimate question is
how best to understand what Congress has done — whether the
statutory review scheme, though exclusive where it applies,
reaches the claim in question.” Id. For all the reasons
previously discussed, discrimination claims premised on
conduct that would support ULP claims under the CSRA
plainly are “of the type Congress intended to be reviewed
within this statutory structure.” Thunder Basin, 510 U.S. at
212.
Accordingly, the Thunder Basin framework confirms that
the district court lacked jurisdiction over Lucas’s Title VII and
ADA claims.

-- 59 of 68 --

27
E. Congressional Intent
The majority opinion advances the overarching view that
it is “implausible” that Congress meant to relegate
discrimination claims against federal unions to an inferior
status by channeling them exclusively through the CSRA. Maj.
Op. 10. I cannot agree. The majority appears to make an
incorrect assumption that the legislative intent behind the
CSRA is to expand protections for federal workers, despite
contrary signals from Congress.
First, “[t]he best evidence of [congressional] purpose is the
statutory text adopted by both Houses of Congress and
submitted to the President.” W. Va. Univ. Hosps. v. Casey, 499
U.S. 83, 98 (1991). “[T]he text of a law controls over purported
legislative intentions unmoored from any statutory text” and a
court “may not replace the actual text with speculation as to
Congress’ intent.” Corner Post, 603 U.S. at 815 (cleaned up).
For the reasons previously discussed, I believe that the CSRA’s
text strongly favors preclusion of Title VII and ADA claims.
See supra Part II.A.
Second, the majority effectively imposes a clear statement
rule to constrain Congress’s ability to pare back discrimination
protections in the federal labor context. See Maj. Op. 32 (“We
cannot conclude that Congress quietly upset the norm of
overlapping remedies and concurrent jurisdiction for
discrimination claims under Title VII and the ADA.”). But the
majority opinion gets things backwards: It is far more unlikely
that Congress quietly opened a discrimination-claim loophole
in the CSRA’s otherwise “comprehensive and exclusive”
scheme. Grosdidier, 560 F.3d at 497. Contrary to the
majority’s assumption, parallel remedies are presumptively
precluded by the CSRA, not permitted. See Nyunt, 589 F.3d at
448 (“When Congress wants to preserve remedies outside the

-- 60 of 68 --

28
CSRA, it does so expressly.”); see also AFGE II, 929 F.3d at
755 (“[W]e can fairly discern that Congress intended the
[CSRA] statutory scheme to be exclusive with respect to claims
within its scope.”). And while the majority asserts that the
FSLMRS should not be read to “implicitly displace” remedies
under Title VII and the ADA, Maj. Op. 10, Title VII predates
the CSRA, so “the proposition that ‘pre-CSRA remedies were
not meant to be affected by the CSRA is inherently
implausible,’” Lacson, 726 F.3d at 177 (cleaned up) (quoting
Fausto, 484 U.S. at 451) (emphasis in original).
Third, the majority overlooks precedents that plainly limit
plaintiffs to the processes and remedies of the CSRA, even if
that exclusivity closes the courthouse doors to would-be
plaintiffs. We have noted that “it is the comprehensiveness of
the statutory scheme involved, not the ‘adequacy’ of specific
remedies thereunder, that counsels judicial abstention.”
AFGE I, 716 F.3d at 638 (quoting Spagnola II, 859 F.2d at
227). In fact, “the CSRA can preclude a claim from being
brought in a district court even if it forecloses the claim from
administrative review and [one] has not identified . . . some
other kind of procedure for bringing the claim.” Id. (cleaned
up); see also AFGE II, 929 F.3d at 756 (explaining that the
CSRA can preclude claims even if that makes “it impossible to
obtain particular forms of review or relief” (emphasis in
original)); Grosdidier, 560 F.3d at 497 (“Congress designed the
CSRA’s remedial scheme with care, intentionally providing —
and intentionally not providing — particular forums and
procedures for particular kinds of claims.” (cleaned up)).8
8 The majority seeks to limit this line of cases to “systemic or
nationwide challenges.” Maj. Op. 24–25. But we have never
cabined these cases in such a way. See, e.g., Grosdidier, 560 F.3d at
497 (stating without qualification that “the CSRA is the exclusive
avenue for suit even if the plaintiff cannot prevail in a claim under

-- 61 of 68 --

29
Fourth, the majority opinion errs by attempting to divine
the congressional intent behind the CSRA by looking to other
anti-discrimination statutes. The majority notes that
“legislative enactments in” the area of employment
discrimination “have long evinced a general intent to accord
parallel or overlapping remedies against discrimination.” Maj.
Op. 12 (quoting Alexander v. Gardner-Denver Co., 415 U.S.
36, 47 (1974)). And it observes that employees may bring Title
VII and ADA claims against private-sector unions despite also
being able to pursue administrative remedies under the
National Labor Relations Act (NLRA). Id. The majority thus
reasons that, “given the norm of concurrent, overlapping
remedies for discrimination,” Congress “hewed to its
longstanding practice of affording employees multiple avenues
for relief in this particular context.” See Maj. Op. 13.
Yet a court may not “disregard” a statute’s “text in favor
of alleged congressional intent divined from other statutes with
very different language,” even when those other statutes are
said to reflect Congress’s uniform judgment about how all such
statutes should operate. Corner Post, 603 U.S. at 815 (cleaned
up) (emphasis in original). Precedents interpreting Title VII
the CSRA”). Indeed, we have taken this approach outside the
context of systemic or nationwide challenges. See Graham, 358 F.3d
at 933–35 (explaining that for a plaintiff seeking to challenge his
letter of censure — an adverse personnel action for which the CSRA
provides no right of review — “the CSRA provides no relief and
precludes other avenues of relief”). Rather than being limited to “a
specific subset of cases,” Maj. Op. 24, the principle that the CSRA
may preclude review even if it makes relief impossible reflects the
broader tenet that “[t]here is no requirement that Congress’
alternative remedy be ‘adequate’ or that Congress afford a certain
kind of tribunal for claims that do not arise under the Constitution,”
Spagnola I, 809 F.2d at 28.

-- 62 of 68 --

30
and the ADA shed little light on Congress’s intent when it
enacted the CSRA’s comprehensive and exclusive statutory
scheme. Furthermore, the majority’s reliance on the norm of
overlapping remedies in the private sector is precluded by
Karahalios. There, the Supreme Court rejected any effort to
limit the exclusivity of the CSRA by analogizing it to the
NLRA because “[v]ery dissimilarly [to the NLRA], [the
FSLMRS] not only expressly recognizes the fair representation
duty but also provides for its administrative enforcement.”
Karahalios, 489 U.S. at 534. Indeed, Karahalios declined to
follow precedents governing private-sector unions when it
determined that Congress did not “intend[] to furnish a parallel
remedy in a federal district court to enforce the duty of fair
representation” under the FSLMRS. Id. at 532–33.
Fifth and finally, the majority opinion puzzles over why
Congress would want to preclude federal court jurisdiction
over discrimination claims against federal unions, but not
against federal employers or private sector unions. See Maj.
Op. 19 (stating that “the fundamental question that pervades
this case” is “Why would Congress have intended to extinguish
federal employees’ Title VII and ADA remedies and depart
from the general norm of overlapping remedies only when they
seek to sue their unions, and not when they sue their
employers?” (emphasis in original)). We need not ponder that
question because, as discussed in detail above, Congress’s
preclusive intent was clear. See Badgerow, 596 U.S. at 16–17
(“However the pros and cons shake out, Congress has made its
call.”). Nevertheless, I believe that Congress had rational
reasons to exclude parallel remedies in this specific context.
As a practical matter, it makes sense for the CSRA to be
more protective against discrimination by federal agencies than
by federal unions, because employees are more likely to
experience discrimination by their employers. See Meredith v.

-- 63 of 68 --

31
Fed. Mine Safety & Health Rev. Comm’n, 177 F.3d 1042, 1055
(D.C. Cir. 1999) (noting that the CSRA “was designed to
govern the federal employer-employee relationship and to
normalize the procedures for sanctioning federal employee
misconduct”). That is simply because employees typically
interact daily with their employers but much more sporadically
with their unions.
Moreover, Congress could afford to be less vigilant in
targeting discrimination by federal unions as compared to
private sector unions because federal unions have less control
over their members’ terms of employment. As Karahalios
noted, courts have found an implied right of action to enforce
the duty of fair representation against private sector unions
because those unions are “exclusive bargaining agents” that
“deprive[] bargaining unit employees of their individual rights
to bargain for wages, hours, and working conditions.”
Karahalios, 489 U.S. at 535. The FSLMRS, however,
“operates in a different context” because “federal employment
does not rest on [collective bargaining] in the private sector
sense,” and so a federal employee’s election of a bargaining
agent does not subject her to a “deprivation” that is
“comparable to the private sector predicament.” Id. at 535–36.
Indeed, as Karahalios explained, “the collective-
bargaining mechanisms created by [the FSLMRS] do not
deprive employees of recourse to any of the remedies otherwise
provided by statute or regulation.” Id. at 536 (citing 5 U.S.C.
§§ 7114(a)(5), 7121(e)(1)). Thus, federal employees may
individually bring grievances under the CSRA and need not
rely on their unions to gain access to the grievance process. By
contrast, unions in the private sector are often the gatekeeper
of employee grievances. See Bowen v. U.S. Postal Serv., 459
U.S. 212, 225 n.14 (1983) (“Most collective-bargaining
agreements . . . contain exclusive grievance-arbitration

-- 64 of 68 --

32
procedures and give the union power to supervise the
procedure. . . . When the collective bargaining agreement
provides the union with sole authority to press an employee’s
grievance, the union acts as the employee’s exclusive
representative in the grievance-arbitration procedure.”).
In sum, differences in the roles played by private-sector
and public-sector unions, and in the amount of power that each
type of union wields over its members, justify Congress’s
decision to provide less protection from discrimination by
federal-employee unions.
F. “High-Level Observations”
The majority closes with some “high-level observations”
about our differences, and so will I. Maj. Op. 28. My analysis
employs traditional tools of statutory construction: It relies on
the statutory text, the expressio unius canon of construction,
and binding precedents. See supra Parts II.A, II.B. All of those
sources overwhelmingly point to a single conclusion: That the
comprehensive and exclusive scheme of the CSRA precludes
Lucas from repackaging the facts underlying her ULP claims
as claims under Title VII and the ADA. By contrast, my
colleagues resist going where the law takes us. They employ
unconventional methods to reach an incorrect conclusion:
They rely on “the norm of concurrent, overlapping remedies
for discrimination,” Maj. Op. 13; they express discomfort with
the CSRA’s remedies, which they believe are inadequate, id. at
13–14; and they ask questions about why Congress would
shortchange federal union members, id. at 19, and how district
courts can be expected to implement the CSRA’s preclusive
effect, id. at 28–29. In sum, they rest their decision on policy-
based doubts about whether Congress meant what it said. I am
unable to agree with my colleagues’ non-traditional approach
to statutory interpretation.

-- 65 of 68 --

33
My colleagues seek to divine what “rule[] of decision” I
am “argu[ing] for.” Maj. Op. at 28. They categorize my
analysis as either some kind of “categorical rule” or a “different
rule.” Id. That attempt to pin down a specific, fully formed,
alternative “rule” about how exactly the CSRA applies in
various situations misses the boat. The question before us is
simply whether the CSRA precludes Lucas from bringing
discrimination claims that also are ULPs in federal court. I
conclude that it does. I need not decide whether “intentional
torts like defamation and assault” fall within the scope of the
CSRA because that question is not before us, nor is it necessary
to set the exact “bounds” of the CSRA’s reach. Id.
Moreover, my colleagues express misplaced concern that
district courts might have trouble discerning whether facts
alleged in a complaint amount to ULPs “on their face.” Maj.
Op. at 29 (“Nor is it clear how district courts would apply the
dissent’s ‘on its face’ standard in practice.”); see also id.
(“Congress generally does not intend for jurisdictional rules to
invite extensive threshold litigation that could present serious
difficulties for district courts.” (cleaned up)). That concern
betrays a surprising lack of familiarity with the routine work of
the district court in ruling on motions under Federal Rule of
Civil Procedure 12(b)(6). District judges have no “difficulties”
evaluating whether alleged facts state a claim under any
number of statutory schemes, and there is no reason to suppose
that the FSLMRS will be their downfall. Indeed, in this case,
the district court determined that Lucas’s claims fell under the
FSLMRS, Lucas, 2023 WL 2682175, at *6–10; and several
other judges on the district court also have displayed no
“difficulties” in this regard, see, e.g., Conejo v. Am. Fed’n of
Gov’t Emps., AFL-CIO, 377 F. Supp. 3d 16, 26 (D.D.C. 2019);
Doe P v. Goss, No. 04-cv-2122, 2007 WL 106523, at *6–11
(D.D.C. Jan. 12, 2007). Furthermore, even if we put aside the
discrimination claims at issue here, my colleagues cannot deny

-- 66 of 68 --

34
that the CSRA precludes a slew of claims, such as those that
state adverse personnel actions. See, e.g., Nyunt, 589 F.3d at
448. My colleagues do not explain why determining whether
alleged conduct amounts to a ULP is so much more difficult
than making such a determination about adverse personnel
actions. If I sound “confident[]” on this point, it may be
because I am the only member of this appellate panel who has
also served as a district court judge. Maj. Op. 29.
The majority is “confound[ed]” by my understanding that
Lucas’s discrimination claims are ULPs on their face. Maj. Op.
30. But the district court made that finding and Lucas does not
contest it. See Lucas, 2023 WL 2682175, at *9 (Lucas’s Title
VII and ADA claims rely on the “very same facts and
circumstances” as Lucas’s ULP claims before the FLRA.);
World Wide Mins., Ltd. v. Republic of Kazakhstan, 296 F.3d
1154, 1160 (D.C. Cir. 2002) (“As we have said many times
before, a party waives its right to challenge a ruling of the
district court if it fails to make that challenge in its opening
brief.”). In any event, the law is clear that discrimination by a
union against a member of the bargaining unit, like Lucas, is a
breach of the duty of fair representation and therefore a ULP
under the CSRA, regardless of whether the bargaining-unit
member also belongs to the union. See, e.g., Karahalios, 489
U.S. at 532; Jacoby, 325 F.3d at 309. Indeed, the majority
makes no real argument to the contrary. See Maj. Op. 15–16.
Because a breach of the duty of fair representation does not turn
on the victim’s union membership, the majority opinion is
wrong that my “principal arguments hinge on the view that”
Lucas was a union member and that her claims therefore fall
within section 7116(b)(4), which makes it a ULP for a union to
discriminate in “the terms or conditions of membership in the
union.” 5 U.S.C. § 7116(b)(4).

-- 67 of 68 --

35
* * *
The majority opinion raises legitimate concerns about
denying federal employees the opportunity to litigate
discrimination claims against their unions in federal courts.
But a court may not “employ untethered notions of what might
be good public policy to expand our jurisdiction.” Badgerow,
596 U.S. at 16 (quoting Whitmore v. Arkansas, 495 U.S. 149,
161 (1990)). The text of the statute and the precedents of the
Supreme Court and this court make it abundantly clear that the
CSRA is comprehensive and exclusive. There is no basis to
create an exception that allows a plaintiff to bring parallel suits
under Title VII and the ADA in federal court. Lucas therefore
cannot bring claims against her union under those statutes,
based on facts that facially support ULPs under the CSRA.
Accordingly, I respectfully dissent from all but Part II.B of the
court’s opinion. I would affirm the district court’s dismissals
of both of Lucas’s complaints in their entirety.

-- 68 of 68 --