Aamodt v. United States

OPINION BRUGGINK, Judge. This action involves overtime pay claims brought pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219 (1988). Plaintiffs are past or present GS-1811 special agents with the Immigration and Naturalization Service (“INS”). On January 18, 1991, this court considered its jurisdiction to entertain the plaintiffs' claims in light of the holding in Carter v. Gibbs, 909 F.2d 1452, 1458 (Fed.Cir.) (en banc), cert. denied, — U.S. -, 111 S.Ct. 46, 112 L.Ed.2d 22 (1990).1 The court divided the plaintiffs’ claims into three categories: 1) plaintiffs presently in a bargaining unit covered by a 1976 collective bargaining agreement between INS and the National Border Patrol Council (“NBPC”), 2) plaintiffs presently in a bargaining unit covered by a 1990 agreement between INS and the National Immigration and National Naturalization Service Council (“NINSC”), and 3) plaintiffs who were formerly either bargaining unit members covered by the NBPC agreement or bargaining unit members covered by the NINSC agreement. Applying Carter, the court held that it had jurisdiction as to the claims of the NBPC plaintiffs but lacked jurisdiction as to the claims of the NINSC plaintiffs. The court found that the NBPC agreement specifically excluded FLSA overtime pay disputes, while the NINSC agreement did not. As to the plaintiffs in the third group, plaintiffs who were no longer members of either bargaining unit, the court directed further briefing by the parties, as well as by designated amici who are involved in certain related cases.2 After considering the amicus briefs and the parties’ written and oral arguments, the court concludes that it does not have jurisdiction over the claims of former members of bargaining units for whom a grievance process was available when their claims arose. DISCUSSION The issue is whether this court has jurisdiction over the claims of former bargaining unit members whose claims arose while they were employed by INS and while they were bargaining unit members. Relying on the rationale of Carter, the Government contends that jurisdiction is lacking as to claims that arose when the claimants were bargaining unit members since they could have raised those claims in the negotiated grievance process.3 Plaintiffs counter that neither the Civil Service Reform Act (“CSRA”)4 nor the relevant bargaining agreements bar these plaintiffs from seeking relief in this court. In Carter, the Federal Circuit held that the CSRA made grievance procedures in bargaining agreements the exclusive method for resolving FLSA overtime disputes between parties to those agreements unless the parties specifically provided otherwise. The court concluded that the CSRA’s exclusivity provision precluded plaintiffs from obtaining judicial review of their overtime claims. That provision states that negotiated grievance procedures in a collective bargaining agreement — 718 — “shall be the exclusive procedures for resolving grievances which fall within its coverage.” 5 U.S.C. § 7121(a)(1). As the court observed, Congress through the CSRA “ ‘comprehensively overhauled the civil service system,’ ” 909 F.2d at 1455 (quoting Lindahl v. OPM, 470 U.S. 768, 773, 105 S.Ct. 1620, 1624, 84 L.Ed.2d 674 (1985)), and “narrowly circumscribed the role of the judiciary in its carefully crafted civil service scheme,” id. at 1456. In its January 18, 1991 order, the court addressed, in light of Carter, the question of whether the court has jurisdiction over the FLSA claims of current bargaining unit members. The court considered the relevant bargaining agreement exclusions and held that there is jurisdiction as to the claims of NBPC plaintiffs who were covered at all relevant times by the 1976 bargaining agreement, but that there is not jurisdiction as to the claims of NINSC plaintiffs who were covered at all relevant times by the 1990 bargaining agreement. The bargaining agreement relevant to the NBPC plaintiffs did exclude FLSA overtime disputes while the bargaining agreement relevant to the NINSC plaintiffs did not. The court did not address the question of whether the court has jurisdiction over the FLSA claims of former NINSC bargaining unit members.5 It is clear that if these plaintiffs were still employed in their former positions and were bargaining unit members covered by the 1990 agreement, the court would lack jurisdiction under the exclusivity provision of the CSRA and the plain import of Carter. What is not clear is whether a subsequent change in employment status or bargaining unit membership removes the jurisdictional bar. There is no clear authority on this issue. The court in Carter did not identify any plaintiffs as former members of the union and thus had no occasion to address whether any change in employment status between the time the employees’ claims arose and the filing of their claims would have affected the result there. The 1990 agreement and the exclusivity provision of the CSRA apply only to “employees.” Plaintiffs contend that since persons who retired, died, transferred or were promoted out of the bargaining unit prior to filing are not employees, they are no longer affected by the 1990 bargaining agreement or the CSRA.6 In making their argument plaintiffs assume that the time of filing their complaint is controlling in determining whether plaintiffs are “employees.” 7 That assumption begs the question at issue, however.8 — 719 — Defendant points to Hess v. Internal Revenue Serv., 892 F.2d 1019, 1020 (Fed.Cir.1989), in support of its argument that the proper focus of this court’s jurisdictional inquiry is the time the claim arose and that subsequent events should not affect that determination. In Hess, the Federal Circuit held that the arbitrability of an employee’s claim, in an adverse action context, is determined by the employee’s employment and bargaining unit status at the time the adverse action is taken by the agency, and not his status at the time the underlying conduct occurred. At the time the conduct charged occurred, the plaintiff in Hess was a supervisor and excluded from the bargaining unit. Id. at 1020. Hess was later demoted from his supervisory position and returned to the bargaining unit. After his demotion, Hess was dismissed for conduct which occurred while he was a supervisor but which was not related to the demotion. Hess elected to grieve his dismissal through arbitration, as provided for in the I.R.S. bargaining agreement. The I.R.S. opposed Hess’ right to arbitrate on the grounds that the misconduct occurred while he was a supervisor. Rejecting the Government’s position, the court determined that the bargaining agreement remedies were available to Hess because he was a member of the bargaining unit on the date of the Government’s adverse action, the dismissal. The court pointed out that an employee becomes “aggrieved” due to an agency’s adverse action and not because of any action on the employee’s part. Id. Defendant urges the court to draw the general lesson from Hess that it is the bargaining unit status at the time of the action complained of that should be the focus of the court’s jurisdictional inquiry. It also cites for the same general proposition several arbitration decisions. See In re San Francisco Community College Dist., 92 LA 109, 111 (1988); In re South Lyon Board of Educ., 86 LA 398, 402 (1985); In re Dover Corp., 48 LA 965, 968 (1966); In re Hudson Tool and Mach. Co., 21 LA 431, 433-34 (1953) (arbitrator found in each of these cases that the claim was grievable even though the grievant was no longer an employee, because it arose while the grievant was still an employee and a member of the bargaining unit). Other than the analogous support which can be drawn from Hess and the arbitration decisions, the court has little further to draw on other than the rationale of Carter and earlier cases discussing the CSRA. That rationale, however, represents a distinct inertia created by earlier Supreme Court decisions construing the CSRA,9 and plainly would suggest a preference in the present circumstance for a non-judicial remedy. Carter emphasized that there are important policy considerations involved in interpreting the CSRA: “We have consistently heeded ‘the Supreme Court’s admonitions to leave the architecture of the federal personnel system to Congress.’ ... We also stressed that courts ‘should abstain completely from inventing other remedies when Congress has set up a complete, integrated statutory scheme.’ ” Carter, 909 F.2d at 1456 (quoting Volk v. Hobson, 866 F.2d 1398, 1402-03 (Fed.Cir.1989)). “[I]t is ‘inappropriate’ to ‘supplement’ the ‘comprehensive procedural and substantive provisions’ of the CSRA.” Carter, 909 F.2d at 1456 (quoting Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 2406, 76 L.Ed.2d 648 (1983)). “[W]e decline [the] invitation to — 720 — meddle with the civil service system.” Carter, 909 F.2d at 1458. The rationale of these decisions would be severely undercut if any grievance, which otherwise would have to be arbitrated, could be bought in court by the serendipity of a plaintiff having retired or died, for example. Permitting such persons (or their estates) the option of filing a suit after some change in bargaining unit status would be inconsistent with the reasoning in Carter and with the plain meaning of the phrase, “exclusive remedy,” in the CSRA. Every pay claim committed to the negotiated grievance process also would be potentially actionable in the federal courts. The “carefully crafted civil service scheme” created by the CSRA would be disrupted if any claim committed to the negotiated grievance process could become subject to judicial resolution merely by virtue of the claimant’s departure from the bargaining unit. It is no answer to argue that, if the court were to decide that plaintiffs must seek redress through their negotiated grievance procedure, these remedies may well be unavailable at this time. The court takes no position on whether these claims are in fact grievable. It may be that they are. See In re San Francisco Community College Dist., 92 LA at 111; In re South Lyon Board of Educ., 86 LA at 402; In re Dover Corp., 48 LA at 968; In re Hudson Tool and Mach. Co., 21 LA at 433-34. In any case, the fact that the claims are non-grievable would not be enough for the court to assert jurisdiction. See Beall, 22 Cl.Ct. at 62 n. 7 (fact that arbitrator may apply the statute of limitations to limit plaintiffs’ claims is insufficient to confer jurisdiction of the court); Adams, 20 Cl.Ct. at 549 (fact that pay claims were ultimately found nonnegotiable does not confer jurisdiction on the court); McGregor v. Greer, 748 F.Supp. 881, 884 (D.D.C.1990) (court dismissed challenge to adverse personnel action on ground CRSA provided exclusive remedy for such actions, even though plaintiff had no remedy under the CSRA). Although there may be anomalous results in some cases, the question is whether the court should honor the clear statutory preference for directing employees to resolve covered disputes through the collective bargaining mechanism. Besides being consonant with Carter, analytically, this is the correct result. Insofar as defendant seeks dismissal, there was no time during which plaintiffs were potentially entitled to overtime pay when they were not also under a disability with respect to litigating their claims in court. Now that they are no longer bargaining unit members, plaintiffs wish to return to that same period of time with respect to the merits of their claims, but they want to ignore another aspect of their employment at that same time — their bargaining unit status. There is no principled reason not to take into account as well the latter aspect of their status. The court concludes that the employee’s employment and bargaining unit status at the time aggrieved determines whether the employee is covered by a bargaining agreement and its grievance procedure, and not the employee’s status at the time of filing. The court also concludes that if the grievance procedure was the exclusive remedy for claims that were grievable when they arose, the court lacks jurisdiction regardless of whether the employee subsequently left the bargaining unit. Accordingly, the claims of NINSC plaintiffs who are no longer members of the bargaining unit covered by the 1990 agreement, and whose claims arose while they were members in the bargaining unit, will be dismissed. CONCLUSION For the reasons expressed above, and there being no just reason for delay, the court grants defendant’s motion to dismiss for lack of jurisdiction the claims of NINSC plaintiffs who are former bargaining unit members covered by the 1990 agreement and whose claims arose while they were members of that bargaining unit. In accordance with this order and the order of — 721 — January 18, 1991, the Clerk is directed to enter partial judgment dismissing the claims of all NINSC plaintiffs listed in the attachments.10 NATIONAL IMMIGRATION & NATURALIZATION SERVICE COUNCIL ADAMS, DONNA ALANIZ, JR., MARCELINO ALLMAN, EUGENE IGNATIUS AMBROGIO, JOSEPH PAUL ANDRADE, VALENTIN AUGUSTINE, LAWRENCE J. AYALA, JESSE BABCOCK, BLAIR ANDREW BARLOW, CRAIG R. BARRANTI, MICHAEL BAUMGARDNER, JAN B. BEDDOW, WALTER H. BENNETT, ELODIA GUZMAN BLANK, NORMA J. BOETEL, LARRY DENNIS BOURAS, MICHAEL D. BOWER, MICHAEL JOHN BRAZIER, IDA M. BRIOLA, JULIAN S. BROWER, VICTOR DOMINIC BUCHANAN, MICHAEL DENNIS BYERS, DONALD W. CAMPBELL, THOMAS C. CANDLER, RONALD R. CANNAN, LAWRENCE CHARLES CAPPELL, BRUCE E. CARTON, RAYMOND J. CASSITY, DONALD F. CASTILLO, JUAN CLAIBORNE, DALE E. CLOVER, STEVEN HARDING COLON, ROBERT COOK, JAMES E. COPLEY, III, JAMES RILEY CORREA, JR., ANDRES COTE, GARY L. CRISPINO, GERALD RAYMOND CURTIN, JAMES W. D’ALESSIO, THEODORE SAM DECHOUDENS, JOSE R. DONNELLY, JOSEPH THOMAS DUKETE, PETE DUNKIN, RONNIE GENE De LEON, GUSTAVO EGBERT, GARY L. ELLIS, KENNETH PAUL ENGLAND, GODFREY GERALD ESCARCEGA, JESUS EVANS, DONALD IVAN FEHER, JOHN J. FINNERTY, MICHAEL JOSEPH FISHER, EDWARD W. AGUIRRE, BENNY C. ALEXANDER, BONNIE J. ALVARADO, DANIEL S. ANDERSON, LARRY ALAN ANTON, HENRY GEORGE AYALA, ARTHUR J. AYERS, RONNIE R. BALL, LARRY E. BARR, BERNARD BARRY, MICHAEL JOHN BEATTY, RICHARD M. BENNETT, ANDREW A. BIGGS, THAD A. BLEEZARDE, PHILIP M. BORLIN, KERN A. BOURNAZOS, BILL J. BRADLEY, DALE BREWSTER, RONALD RICHARD BRIONES, JUAN BROWN, SAMUEL C. BURKLAND, BILLY CHARLES CAMPBELL, GEORGE E. CAMPOS, GUSTAVO CANN, DEBORA LYNN CAPIO, FRED THOMAS CARSTENS, WADE LARRY CASON, THOMAS P. CASTILLO, AURORA ELSA CHABOT, RICHARD JOHN CLARK, DANNY J. COLON, JOSE RAUL CONGLETON, WILLIAM J. COOKFAIR, WILLIAM EARL COPPAGE, MARY DIANNE CORTEZ, JUSTINO C. CRANE, KENNETH K. CRUMB, MICHAEL ALBERT CURTIS, TERRY LEE DANTER, THOMAS LEONARD DEVINE, PATRICK JOHN DOWDLE, JR., EDWARD D. DUMOND, WILSON GUY De ALBA, CRESENCIANO EASTON, BRENT LEE EHRLICH, NELSON A. EMBICK, WILLIAM EPPERLY, JAMES NEAL ESPARZA, MARIO F. FAIRLEY, VERNON FERNANDEZ, FRANCISCO ENRIQUE FIRTH, ROBERT ALFRED FISHER, JR., WILLIAM E. — 722 — FLANAGAN, EUGENE M. FORD, TYRONE THEODORE FRADERA, THOMAS S. FUHRMANN, RONALD L. GARCIA, LOUIE RAMIREZ GATI, MICHAEL ANGELO GIBBLE, BETH M. GLIDDEN, DWIGHT EDWARD GRABSKI, JON DANIEL GRITZUK, RICHARD L. GUTIERREZ, JR., JOE GILBERT HALL, MAURICE SAMUEL HALL, RUSSELL WARREN HARDING, THOMAS K. HARRIS, ROBERT N. HAWES, MICHAEL THOMAS HIGGINS, JR., JAMES JOS. HOBERT, TONY R. HOELTER, PETER FREDERICK HOPKINSON, FRANK SCHRYER HOUGHTALING, TIMOTHY C. HRYSYZEN, JAMES JAHRMAN, VINCENT W. KELLY, SEAN PATRICK KILLEBREW, RONALD H. KUNKLE, JAMES D. LASACK, ROBERT LOUIS LEGGS, NARCISO P. LEVERING, DAVID L. LINDEMANN, DAVID SCOTT LOPEZ, GILBERTO LOPEZ, JR., ALBERTO LUCAS, ROBERT DARREL LYNCH, ANDREW JAMES MAHONEY, MICHAEL THOMAS MARQUEZ, ARMANDO VALLES MARTINEZ, JUAN MARTZ, CHESTER L. MAYNARD, DAVID LARRY MCINTYRE, JAMES P. MCMAHON, JR., ROBERT J. MENDEZ, JOHNNY G. MESHIRER, DAVID DONALD MILLER, JAMES D. MITCHELL, CHARLES THOMAS MOORE, ROBERT G. MOSS, RONNIE LEE MURRAY, KEVIN FRANCIS NAVE, LARRY WAYNE NICHOLSON, DAVID E. NORRMAN, NEIL R. NUSBAUM, STEVEN EUGENE OKAMURA, FRANK M. ONN, EDWARD A. OWENS, JOHN J. PATTERSON, STEPHEN M. PHILPOTT, HEATHER FERN PINEDA, ALFONSO MEDINA PIWOWARCZYK, RONALD E. POSADA, YASMIN PREJEAN, LEE R. FORD, LARRY P. FOX, JR., JOHN D. FRAUSTO, EDWARD GARCIA, JOSEPH M. GARDSBANE, JOSEPH GIAIMO, WILLIAM J. GIDRON, JOHNNY GOVE, GARY CLIFFORD GRIMSEY, ROBERT W. GUILLAN, JUAN M. HAGELSTEIN, EDWARD K. HALL, RONALD NORMAN HANKIN, DALE S. HARDMAN, MICHAEL THOMAS HATCH, CURTIS D. HERNANDEZ, JUAN C. HILL, ROBERT C. HODSON, BARRY OLIVER HOLGUIN, ROBERTO I. HORNUNG, ROBERT HOWELL, BRENDA G. HUTCHENS, CHARLES V. KEEFE, KEVIN JOHN KICKBUSH, JAMES KENNETH KRUG, LAWRENCE D. KUNTZ, CONSTANCE BARBARA LEE, CEDRIC S.Y. LEIGHTON, BRIAN DEREK LINDAMOOD, JOHN D. LOBAUGH, JR., HOWARD S. LOPEZ, ROQUE L. LORENZ, MICHAEL DEAN LUND-COHEN, LILLIAN EVELYN LeGATES, PAMELA D. MALLON, BRIAN PETER MARSICO, JEFFREY A. MARTINEZ, JR., ALONZO MATHEOS, GEORGE JOHN MCCASLIN, CRAIG EUGENE MCKENZIE, CLYDE W. MELNYK, IHOR RAYMOND MENTZ, ALBERT G. MICHELIN, MICHAEL A. MINER, LLOYD WILLIAM MONIN, FRANCIS MICHAEL MORELLI, ROCCO A. MOY, LARRY W. MURRAY, STEPHEN M. NEYSTEL, OLE NOLAND, GERALD W. NOVAK, WALTER J. NYGAARD, J. KENT OLSON, GARY W. ORTIZ, ALBERT PARODI, FRANK PETERSON, JOAN MARIE PIERCE, KERRY VICTOR PINKERTON, LARRY LEE PLASCENSIA, DIANE MARIE POWELL, RICHARD JOHN PRINCE, CHARLES E. — 723 — PROTTEAU, LONALD GREGORY PULETASI, PALASI SAM PUZIO, MICHAEL EDWARD REEVES, JR., WILLIS THOMAS RETKOWSKI, EUGENE JOSEPH REYNA, JOSE L. RIEBAU, MICHAEL G. ROBINSON, JAMES M. RONEY, STEVEN K! RUDOLPH, DeANDRE DARRYL SALEMME, PHILIP MICHAEL SANCHEZ, GUILLERMO SAVINI, RICHARD C. SCHEPF, EDWARD EARL SCHULTZ, STEVEN W. SIMANK, ROGER A. SIUDA, JR., MATTHEW J. SMIETANA, JR., JOHN J. SMITH, RAND H. SMOTHERS, GILBERT AUSTIN SOTO, GUILLERMO, W. SPREKELMEYER, ROBERT JOSEPH ST. JOHN, LYDIA STENNIS, GROVER E. STIVER, JEFFREY KEITH STONEBRAKER, RICHARD TABER, THOMAS HARRY TANAKA, BYRON M. TERRY, ANDREW JACKSON TOLA, EDWARD V. TRENT, ROBERT M. UPSON, JAMES STUART VALENCIA, HECTOR MANUEL VEGA, MANUEL P. VERRILLI, JOHN G. VON OHLEN, RICHARD JOHN WADE, JAMES FRANCIS WALLACE, WILLIAM D. WARD, ALAN DALE WEBB, JACK E. WEESS, JOHN ANDREW WILLIS, JIMMIE W. WISE, GILBERTO J. WOLSTENHOLME, JEFFREY LYNN WOODS, CHARLES ALLEN WYNN, SHARON ANN ZAPPULLA, HENRY JOHN PRUITT, CHARLES ALFRED PUTNAM, GEORGE CHARLES RAMIREZ, DAVID G. REMSEN, JOHN MICHAEL REYES, GLENN EDWARD RICE, RONALD WILLIAM ROBINSON, DONALD ALLEN ROBINSON, RANDOLPH ROSEMOND, JAMES TIMOTHY RUTHLING, HUGO EUGENE SANCHEZ, EDMUNDO SANTIAGO, ARNALDO M. SCHAUB, WILLIAM F. SCHLOSS, VICTOR A. SHILLAIR, KENNETH ALAN SIMMONS, SOCORRO GRAFTON SMALL, CAROLYN ANN SMITH, DENNIS JAMES SMITH, WILLIAM F. SORRENTO, ANGELO V. SPENCE, JIMMY L. SPURLOCK, ERNEST M. STACHOWSKI, WILLIAM JOHN STETHEM, MERLE EDWARD STOLFI, THOMAS J. STRAUB, RONALD R. TAFOYA, LISA S. TECZAR, JAMES L. THOMPSON, CARYL GEORGE TOY, GILBERT TURNER, ALVIN PRESTON VAILLANCOURT, BRIAN J. VALERIO, STEVEN VELA, RUBEN DARIO VILLARREAL, JOSE MANUEL VOSPER, MARK DAVID WAGNER, BRUCE A. WANG, ARTHUR P. WASHINGTON, JOHN J. WEBER, SCOTT ALAN WILEY, RICHARD CLAUDE WILSOW, TERENCE D. WOFFORD, JR., MONTIE WEESE WOLSTENHOLME, PATRICK JOHN WOODWARD, LUKE D. WYNNE, CAROLE J. ZARFL, MANFRED RETIRED OR TRANSFERRED OUT OF UNIT (NINSC) KIRKLAND, JOSEPH C. SAUSSER, RONALD LEE WARD, JIMMIE M. PASSAFIUME, COLLEEN S. VRAA, IVAN S. Footnotes [1] In Carter, the Federal Circuit held that, pursuant to 5 U.S.C. § 7121 (1988), negotiated grievance procedures in collective bargaining agreements are the exclusive method for resolving overtime pay disputes unless the agreement specifically provides otherwise. See also Amos v. United States, 22 Cl.Ct. 724 (Cl.Ct.1991); Beall v. United States, 22 Cl.Ct. 59 (1990); Ackerman v. United States, 21 Cl.Ct. 484 (1990); Adams v. United States, 20 Cl.Ct. 542 (1990). [2] Amicus briefs were filed by the plaintiffs in Adams v. United States, No. 90-162C (Cl.Ct. filed Feb. 16, 1990) and Armitage v. United States, No. 139-89C (Cl.Ct. filed Mar. 17, 1989). [3] The Government does not contend that the court lacks jurisdiction to entertain those claims that arose after plaintiffs left the bargaining unit. [4] 5 U.S.C. § 7101 et seq. (1988). [5] There is no dispute that the court has jurisdiction over the NBPC plaintiffs who are no longer members of the bargaining unit. The claims of those plaintiffs, even if covered by their unit’s bargaining agreement, are excluded from its grievance procedures. [6] Unlike retirees and separated employees, persons who transferred to other government bases prior to filing their claims in this court are still employed by "an agency” and so they may be "employees” within the definition of the CSRA. However, the transferee plaintiffs are no longer members of any bargaining units at issue in this case. [7] The Armitage amicus cites F. Alderete Gen. Contractors v. United States, 715 F.2d 1476, 1480 (Fed.Cir.1983), as a basis for focusing on the employee’s status within a bargaining unit at the time the suit is filed to determine jurisdiction. The court in Alderete stated that there is a "longstanding rule in the Federal courts that jurisdiction is determined at the time the suit is filed.” Id. at 1480. The court held that the fact that a public contract was awarded after transfer from district court but before the Claims Court could rule on the merits of the case did not defeat jurisdiction in this court. Alderete is inapposite. It merely stands for the proposition that, if a court possesses jurisdiction at the time the suit is filed, it is not divested of jurisdiction by subsequent events, including action of the parties. It does not shed light on whether this court has jurisdiction over the FLSA claims at issue in this case. [8] Plaintiffs also rely on Beall, 22 Cl.Ct. at 62. In Beall, the court declined to apply Carter as a jurisdictional bar to FLSA claims of two employees who were no longer members of the relevant collective bargaining unit. Contemporaneously with this opinion, the court has reconsidered the issue presented by these two employees and is entering an order dismissing the plaintiffs remaining in that action. To the extent the procedural posture of that case framed the issue resolved here, the earlier decision in Beall was in error in not granting the motion to dismiss. [9] See also United States v. Fausto, 484 U.S. 439, 445, 108 S.Ct. 668, 672, 98 L.Ed.2d 830 (1988) (CSRA’s "integrated scheme of administrative and judicial review”); Lindahl, 470 U.S. at 773, 105 S.Ct. at 1624 (CSRA "comprehensively overhauled the civil service system”); Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 2417 (CSRA’s "elaborate remedial system that has been construed step by step, with careful attention to conflicting policy considerations”); Carter, 909 F.2d at 1455 (quoting Karahalios v. National Fed’n of Fed. Employees, Local 1263, 489 U.S. 527, 535, 109 S.Ct. 1282, 1287-88, 103 L.Ed.2d 539 (1989)) (" ‘the collective bargaining mechanisms created by the [CSRA] do not deprive employees of recourse to any of the remedies otherwise provided by statute or regulation,’ the agreement they negotiate with the government may”); Harris v. United States, 841 F.2d 1097, 1099 (Fed.Cir.1988) (where negotiated grievance procedures bar access to this court "the issue is not whether anyone’s judicial review is foreclosed, but only whether a claimant must pursue one route or another"). [10] Plaintiff Cindy Wishinsky presents a unique case. She has been promoted to a non-supervisory position. As a result of her promotion, she has been excluded from the bargaining unit. She seeks backpay for the time period prior to and after her promotion. Only her claims accruing before her promotion are dismissed. She otherwise remains a plaintiff.