
    163 F.3d 616
    UNIVERSITY OF THE DISTRICT OF COLUMBIA FACULTY ASSOCIATION/NEA, et al., Appellees, v. DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY, et al., Appellants.
    Nos. 98-7024 and 98-7025.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 30, 1998.
    Decided Dec. 22, 1998.
    
      Daniel A. Rezneck argued the cause for appellants. With him on the briefs was Robin C. Alexander. John M. Ferren, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Lutz Alexander Prager, Assistant Deputy Corporation Counsel, entered appearances
    Andrew D. Rdh argued the cause for appellees With him on the brief was Laurence Gdd. Jeffrey L. Gibbs entered an appearance.
    Before: EDWARDS, Chid Judge; GINSBURG and ROGERS, Circuit Judges
   Opinion for the Court filed by Chid Judge EDWARDS.

EDWARDS, Chid Judge:

In response to the Distrid d Cdumbia’s “financial problems and management ineffitienties,” Congress enaded the Distrid d Cdumbia Finandal Responsibility and Management Assistance Ad d 1995, Pub.L. No 104-8, 109 Stat. 97 (1995) (“FRMAA” or “Act”). Under the Act, a Control Board was granted substantial authority over the financial management of the District. The scope of this statutory authority is at issue in this case.

In 1997, in an effort to keep the District’s budget under a congressionally-imposed deficit ceiling, the Control Board issued an order authorizing the Board of Trustees (“Trustees”) of the University of the District of Columbia (“UDC”) to reduce its faculty “[n]otwithstanding the provisions of any collective bargaining agreement.” Joint Appendix (“J.A.”) 8a Appellees — UDC faculty members — contend that the Control Board’s order was ultra vires and, therefore, without legal effect. Accordingly, they assert, UDC violated the collective bargaining agreement between the university and the faculty when it conducted a reduction-in-force (“RIF”) that disregarded the specific provisions covering Rl Fs in the parties? agreement.

We agree with the District Court that Congress did not grant the Control Board the authority to abrogate existing contracts between the District and its employees. Because the Control Board’s action was ultra vires, we remand appellees’ contract claim to the District Court for a determination as to whether the claim should now be submitted to arbitration.

I. Background

Congress created the Control Board in April 1995, citing the District’s “faii[ure] to provide its citizens with effective and efficient services,” warning that “[t]he current financial and management problems of the District government have already adversely affected the long-term economic health of the District,” and calling for “[a] comprehensive approach to fiscal, management, and structural problems ... which exempts no part of the District government.” FRMAA § 2(a).

Sections 103 and 203 of the FRMAA delineate the authority of the Control Board, the members of which are appointed by the President. Under these provisions, the Control Board is empowered to hold hearings and receive evidence, obtain official data from the federal and District Government, issue subpoenas, enter into contracts, and approve or disapprove of Acts passed by the D.C. Council. See FRMAA §§ 103, 203; see also Shook v. District of Columbia Fin. Responsibility and Management Assistance Auth., 132 F.3d 775, 777 (D.C.Cir.1998) (“[T]he Control Board has been given wide-ranging powers to improve the District government’s operations”).

In July 1996, Congress enacted the District of Columbia Appropriations Act, 1997, Pub.L. No. 104-194, 110 Stat. 2356 (1996) (“Appropriations Act”). Section 141(a)(1) of the Appropriations Act imposed on the District a deficit ceiling of $74 million for fiscal year 1997. See Appropriations Act § 141(a)(1). Section 141(a)(2) stated that the “Chief Financial Officer of the District of Columbia [and the Control Board] shall take such steps as are necessary to assure that the District of Columbia meets the requirements of this section.” id § 141(a)(2).

Congress subsequently amended the FRMAA. See Omnibus Consolidated Appropriations Act, 1997, Pub.L. No.104-208, 110 Stat. 3009 (1996). The amended § 207(d)(1) (“1996 Amendment”) gives the Control Board the power to issue “such orders, rules; or regulations as it considers appropriate to carry out the purposes of [the FRMAA] ... to the extent that the issuance of such an order, rule, or regulation is within the authority of the Mayor or the head of any department or agency of the District government.” Id. § 5203(f). The parties agree that the 1996 Amendment allows the Control Board to “stand in the shoes?’ of the Mayor and other District officials — such as the UDC Trustees — and perform whatever functions those officials would be authorized to perform themselves.

As fiscal year 1997 unfolded, the District was in grave danger of exceeding the $74 million deficit ceiling. UDC was a major contributor to the deficit, so university officials were obliged to consider spending limitations to cut costa Among the options available to UDC was a Rl F of faculty members This option was less than ideal, however, because UDC was bound to comply with the enumerated RIF and employee benefit protections contained in the faculty’s collective bargaining agreement (“CBA”). Although the CBA permits UDC to conduct a RIF when such action is compelled by a fiscal emergency, it affords important protections for the faculty in the event of a RIF. First, the agreement provides that senior members of the faculty must be retained ahead of junior members See J.A. 163. Second, the agreement requires that faculty members receive one year’s notice of a Rl F or severance pay in lieu thereof. See id. at 165. The CBA also mandates that UDC “maintain” the retirement plans of existing faculty members Id. at 152.

On January 13, 1997, Julius F. Nimmons, Jr., Acting President of UDC, wrote to Dr. Andrew F. Brimmer, chairman of the Control Board, requesting that the Control Board exempt UDC from the seniority, notice, and benefits provisions of the CBA. See id. at 84-85. Nimmons wrote that “[i]t would be impossible for the University to meet the goals of my [financial] plan without the legal authority” requested in the letter. Id. at 84.

Nine days later, the Control Board responded by issuing the order at issue in this casa Noting that “a state of fiscal crisis exists” at UDC and that the CBA represents a “significant impediment[] to the achievement of any budget savings through personnel reductions,” the Control Board found that “there are no other less drastic means of achieving the required budget savings than through the unilateral modification of the [CBA].” Id. at 87. Accordingly, the Control Board authorized UDC, “[n]otwithstanding ... the provisions of any collective bargaining agreement, [to] ... conduct its [Rl F] in a manner which will allow it to achieve its planned budget savings” Id. at 87-88. The order specifically directed that UDC contribute no more than 7% to its employee retirement plans, and allowed UDC to disregard the seniority and notice provisions of the CBA. See id. On February 4, 1997, the UDC Trustees implemented the Control Board’s order by approving a RIF that did, in fact, disregard the applicable terms of the CBA. See id. at 103-05. UDC also lowered its contributions to the faculty retirement plan to 7%, effective March 1,1997.

On February 14, 1997, the UDC Faculty Association (“Faculty”) challenged the RIF by filing grievances pursuant to the grievance procedures outlined in the CBA. UDC responded on April 7,1997, in a letter stating that UDC’s actions were not reviewable under the CBA’s grievance procedures, because its actions were “mandated by” the Control Board and “were taken notwithstanding the provisions of the [CBA].” Id. at 198-99.

The Faculty filed the instant lawsuit on May 15,1997, naming the Control Board and UDC as defendants The suit alleged that the Control Board had exceeded its congres sionally-delegated authority, and that UDC had violated the terms of the CBA. On February 3, 1998, the District Court granted the Faculty’s motion for summary judgment. See University of the Dist. of Columbia Faculty Ass’n/NEA v. Board of Trustees of the Univ. of the Dist. of Columbia, 994 F.Supp. 1 (D.D.C.1998) (“UDC Faculty"). The court surveyed the congressional acts that delineated the scope of the Control Board’s authority and found no basis for the order that the Control Board had promulgated. See id. at 10. Accordingly, the court found UDC in breach of the CBA and ordered “full compliance by the University with the terms of the [CBA].” University of the Dist. of Columbia Faculty Ass’n/NEA v. Board of Trustees of the Univ. of the Dist. of Columbia, Na 97-01080 (D.D.C. Feb. 3, 1998) (“UDC Faculty Order"), reprinted in J.A. 244.

This appeal followed. I n addition to challenging the District Court’s interpretation of the relevant congressional statutes, appellants contend for the first time that the District Court lacked subject matter jurisdiction to consider this case.

II. Analysis

A. The U Itra Vires Claim

1. Jurisdiction

Appellants now claim that, under District of Columbia law and the terms of the CBA, the Faculty should have sought redress through arbitration rather than in the Dis trict Court. They contend that the District Court improperly exercised subject matter jurisdiction over the case, and request a remand with orders to dismiss. It is, of course, axiomatic that a challenge to the jurisdiction of a federal district court may be raised for the first time on appeal. See Insurance Corp. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-02, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). The Control Board’s jurisdictional daim fails, however, not because it is untimely, but because it is without merit.

Section 105(a) of the FRMAA, which provides for jurisdiction in the District Court, reads as fdlcuvs:

Jurisdiction Established in District Court for District of Columbia. — Except as provided in section 103(e)(2) (relating to the issuance of an order enfordng a subpoena), any action against the [Control Board] or any adion otherwise arising out of this Ad, in whole or in part, shall be brought in the United States Distrid Court for the Distrid of Columbia.

FRMAA § 105(a). In their brief to this court, appellants virtually ignore § 105(a), relegating it to passing mention in a footnote. See Brief of Appellants at 24 n.11. Instead, appellants daim that “[t]he essence of the plaintiffs’ daim here was for breach of con-trad; the [Control Board’s] Order, if valid, was a defense to that daim.” Id. Thus, according to appellants, the Faculty’s adion did not arise under the FRMAA, but rather arose under the terms of the CBA, and should have been adjudicated under the CBA’s grievance and arbitration procedures. This argument is simply wrong, because It patently mischaraderizes the gravamen of the F acuity’s daim.

The Faculty’s complaint alleged, inter alia, that “[t]he adion of the Control Board in promulgating the Control Board Order was neither required nor authorized by the [FRMAA], as amended, or by any other Ad of Congress” Complaint ¶ 33, reprinted in J.A. 13. The complaint went on to request that the Distrid Court “[d]edare that the Contrd Board Order ... [was] ultra vires, and ... therefore null and vdd and of no effed.” Id. at 18-19, reprinted in J.A. 18-19. In short, the Faculty’s primary contention before the Distrid Court was that the Contrd Board exceeded its authority when it issued the disputed order. I n fad, the principal focus d the parties in the trial court was on the validity d the Contrd Board’s order. Given the complaint before the Distrid Court and the issues addressed by the parties at trial, it cannd seriously be disputed that, for the purposes d determining jurisdidion under § 105(a), the adion was “against” the Contrd Board and “ar [ose] out d” the FRMAA. Accordingly, the Distrid Court properly exerdsed jurisdidion over the F acuity’s ultra vires daim.

2. The Scope d the Contrd Board’s Authority Under the FRMAA

This court reviews grants d summary judgment de novo. See Washington Teachers’ Union Local #6 v. Board of Educ., 109 F.3d 774, 778 (D.C.Cir.1997). Because no fadual matters are in dispute, we must determine whether the Distrid Court’s dedsion in favor d the Faculty was corred as a matter d law. We hdd that it was

The Faculty’s ultra vires daim is quite straightforward. As articulated by the Distrid Court, the Faculty’s contention is that “nowhere in the FRMAA’s studiously detailed spedfication d the Contrd Board’s powers is there any mention d a power to unilaterally repudiate unwanted provisions in cdledive bargaining agreements previously entered into by the Distrid d Cdumbia or its agendes.” UDC Faculty, 994 F.Supp. at 4. It is undisputed that the FRMAA does nd expressly grant the Contrd Board the power to authorize nullification d existing cdledive bargaining agreements The issue, then, is whether, as the Contrd Board asserts, the language d the FRMAA and subsequent legislation may be read to suggest that Congress intended the Contrd Board to have the power that it exerdsed when it issued the order.

As an initial matter, we nde that the Contrd Board’s persistent refrain that Congress itsdf, by virtue d its plenary authority over the Distrid, could have granted UDC the authority to unilaterally modify the CBA, see, e.g., Brief d Appellants at 29-30, is completdy irrelevant to the issue at hand. The Contrd Board concedes, see Brief d Appellants at 6, and we agree, that Congress never delegated its plenary authority to the Contrd Board or any dher agency d government in the Distrid d Cdumbia. Thus, the Contrd Board’s power over the Distrid is limited in a way that Congress’s is nd; Congress’s power is bounded only by the Constitution, whereas the Contrd Board’s power is bounded by the parameters set forth in its enabling Act and subsequent legislation.

The FRMAA itself does not lend support to the Control Board’s claim of authority. 11 is true that Congress, in its statement of findings, detailed at length the unfortunate state of the District’s financial health. See FRMAA § 2(a). Congress also stated that the purpose of the Act was to “eliminate budget deficits and cash shortages of the District” and “ensure the long-term financial, fiscal, and economic vitality and operational efficiency of the District.” Id. § 2(b). Appellants contend that this background section of the FRMAA serves as “an indispensable road map to a reading of the statute as a whole,” Brief of Appellants at 28. However, appellants’ argument continually loses sight of the fact that Congress specifically enumerated the Control Board’s powers in §§ 103 and 203 of the FRMAA. And, as the District Court aptly noted, “given the well known concerns about how an unelected entity with considerable power over the District government’s operations would affect ‘Home Rule’” in the District, UDC Faculty, 994 F.Supp. at 6, it is hardly surprising that Congress did not grant the Control Board carte blanche to run the city.

The only mention of collective bargaining agreements in the FRMAA is found in the provision granting the Control Board the authority to review and approve collective bargaining agreements into which the D.C. Council proposes to enter. See FRMAA § 203(b)(1). Appellants claim that it is an “enormous stretch” to infer that when Congress gave the Control Board the authority to review and approve new collective bargaining agreements, it simultaneously meant to prohibit the Control Board from unilaterally modifying existing agreements. Brief of Appellants at 34. In other words, according to appellants, it was improper for the District Court to assume that, because Congress did not speak to the issue of existing collective bargaining agreements, it meant to protect such agreements from the authority of the Control Board. Appellants’ premise — that the Control Board has the authority to do anything that is not expressly prohibited by the FRMAA — Is quite extraordinary and we reject it.

I n Railway Labor Executives’ Ass’n v. National Mediation Board, 29 F.3d 655 (D.C.Cir.1994) (en banc), this court rejected an argument virtually identical to the one advanced by appellants in this case. I n Railway Labor, the court invalidated the National Mediation Board’s (“NMB”) attempt to exercise a power that was not explicitly conferred by the Railway Labor Act (“RLA”), but which nevertheless furthered the NMB’s “purported mandate.” Id. at 660. It is true, as appellants point out, that the facts of Railway Labor are distinguishable from those of this case, because Congress's grant of authority to the NMB was narrower than that granted to the Control Board. Nevertheless, the fundamental principle of statutory interpretation articulated by the en banc court in Railway Labor is equally compelling in this case:

The [NMB] does not even claim that the terms of [the RLA] support the authority it asserts____ Instead, the Board would have us presume a delegation of power from Congress absent an express withholding of such power. This comes dose to saying that the [NMB] has the power to do whatever it pleases merely by virtue of its existence, a suggestion that we view to be incredible,

Id. at 659; see also American Petroleum Inst. v. EPA, 52 F.3d 1113, 1120 (D.C.Cir.1995). Despite the broad language of the FRMAA’s findings and purposes section, which only establishes Congress’s concern for the District’s finandal well-being, appellants cannot avoid the condusion that their argument essentially boils down to a daim that because Congress never said that the Control Board could not unilaterally modify existing agreements, the power to do so is implidt in the Ad.

We agree with the Distrid Court that appellants? reading of the FRMAA requires predseiy the kind of tortured statutory interpretation that we spurned in Railway Labor. See UDC Faculty, 994 F.Supp. at 7 (“[T]he position that the Control Board has taken in this litigation is analytically indistinguishable from one that already has been roundly rejeded in {Railway Labor].”). We also agree with the Distrid Court that it is highly unlikely that Congress intended to give the Control Board the power to repudiate existing labor contracts — a power that the Constitution denies to the States) see Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 242-44, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978) (explaining hew the contract clause, U.S. Const, art. I, § 10, d. 1, limits “the power of a State to abridge existing contradual relationships”) — without seeing fit to mention this power even once in the Ad or its legislative history. See UDC Faculty, 994 F.Supp. at 8 In sum, we hold that the FRMAA, standing alone, does nd provide the Contrd Board with the authority it exerdsed in this case

3. The 1996 Amendment to the FRMAA

The subsequent congressional legislation appellants dte in support d their argument is no more availing. Before the Distrid Court, and in their brief to this court, appellants contended that the 1996 Amendment— granting the Contrd Board the power to “stand in the shoes?’ d the UDC Trustees-established the Contrd Board’s “independent” authority to issue its order. The theory was that if the UDC Trustees themselves had the authority in the event d a fiscal emergency to nullify certain provisions d the CBA, the Contrd Board could have done so as well, under the 1996 Amendment. See Brief for Appellants at 30-32.

At oral argument, however, counsel for the Contrd Board essentially abandoned this argument, and rightfully so The argument fails because it is simply nd true that the U DC Trustees had the authority to repudiate the provisions at issue in the CBA. Article X d the CBA does give UDC the authority to “take whatever actions may be necessary to carry out the mission d the University in emergency situations” J.A. 122. However, Artide X allows UDC to take such emergency actions only to the extent that they are nd “spedfically limited by the provisions d this Agreement.” Id. By its very terms, then, the CBA does nd allow UDC to repudiate the seniority, ndice, and benefit provisions that it repudiated pursuant to the Contrd Board’s order. Thus, as the Distrid Court determined, “[b]ecause the University does nd have an independent entitlement to renounce unwanted provisions in the Agreement, the Contrd Board, likewise, has no authority under the 1996 Amendment to compel renouncement by the University.” UDC Faculty, 994 F.Supp. at 9.

Far from supporting appellants’ cause, the 1996 Amendment adually serves to weaken their contention that the broad language d the original FRMAA should be read to authorize the Contrd Board’s action. Although the 1996 Amendment gave the Contrd Board “enormous power vis-avis the Mayor, as well as all department and agency heads subordinate to the Mayor,” Shook, 132 F.3d at 779, it also further delineated the parameters d the Contrd Board’s authority pursuant to the Ad. Ndhing in the original Ad prohibited the Contrd Board from “standing in the shoes” d the Mayor and dher officials, yd Congress fdt it necessary to expressly grant the Contrd Board this authority in the 1996 Amendment. While nd dispositive, Congress’s 1996 amendment d the FRMAA certainly suggests that it did nd intend, when it originally enacted the Ad, to provide the Contrd Board with the unbridled authority that appellants seek.

4. The Appropriations Ad

Finally, appellants pdnt to § 141 d the Appropriations Ad, which direds the Contrd Board to “take such steps as are necessary” to avdd exceeding the $74 million deficit ceiling. Appropriations Ad § 141(a)(2). The accompanying conference report states that the “conferees urge the Mayor, the City Council, and the contrd board to use every means possible to reduce the costs of operating the Nation’s Capital and make every effort to avdd defidt spending.” H.R. Conf. Rep. No. 104-740, at 17 (1996). Appellants contend that the language d § 141 and its legislative history establish authority for the Contrd Board’s order. We disagree.

It is dear to us, just as it was to the Distrid Court, that § 141 d the Appropriations Ad cannd be read to provide the Contrd Board with the grant d authority required to promulgate the order at issue in this case. The Ad’s cryptic diredion to “take such steps as are necessary” surely does nd give the Contrd Board unlimited authority, and the Contrd Board makes no such daim here. Rather, in dting the Appropriations Ad, appellants once again appear to rely on the implidt contention that any adion taken by the Control Board was lawful unless expressly prohibited by Congress. We rejeded this kind of reasoning as spedous in Railway Labor and we rejed it here as well. In disposing of the parties' arguments on the Appropriations Ad, the Distrid Court gd it right when it held that, in drafting § 141, Congress simply “communicated its desire for the Control Board to make full use of the powers that Congress had delegated to it in the FRMAA.” UDC Faculty, 994 F.Supp. at 10.

We nde that our condusion in this regard is supported by three additional pointa First, while Congress may amend substantive law in an appropriations ad, it must do so “dearly.” Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992). Section 141 is far from dear, inasmuch as it makes no reference to any grant of new authority to cut spending, and does nd purport to amend the FRMAA. Second, under the language of § 141, the scope of the powers that the Contrd Board daims for itself would accrue as well to the Distrid’s Chief Finandal Officer. There is ndhing to suggest that Congress intended this result, and appellants do nd even daim as much. Thus, it is doubtful that Congress viewed § 141 as vesting broad new powers in either the Chief Finandal Officer or the Contrd Board. Third, in § 140(b) d the Appropriations Ad, the sedion immediately preceding the one upon which appellants rely, Congress authorized agency heads in the Distrid (but nd the UDC Trustees) to terminate employees “[n]dwithstanding any dher provision d law, regulation, or cdleotive bargaining agreement.” Appropriations Ad § 140(b). This authorization undermines appellants? argument by making dear that if Congress meant to suggest that it could authorize certain Distrid offidals to abrogate existing cdledive bargaining agreements, it knew how to do so expressly. Sedion 140(b) also contains procedural prdedions for terminated employees that were nd provided to the faculty members in this case, suggesting that the Contrd Board’s daim d unfettered discretion to terminate existing cdledive bargaining agreements far exceeds the scope d authority that Congress might have delegated.

5. Summary

We affirm the Distrid Court’s determination that the Contrd Board’s order was issued ultra vires. Ndhing in the FRMAA or in the subsequent congressional legislation dted by appellants gave the Contrd Board the authority to repudiate the CBA. Accordingly, we hdd that the order was without legal effed.

B. The Contract Claim

In conjundion with its primary contention that the Contrd Board’s order was issued without legal authority, the Faculty argues that, if that is the case, UDC undeniably vidated the terms d the CBA. The Faculty’s complaint therefore requested that the Distrid Court dedarethat “all adions taken pursuant to the Order are resdnded.” Complaint at 19, reprinted in J.A. 19. The Distrid Court did so, dedaring UDC to be in breach d the CBA and ordering “full compliance” with its terms UDC Faculty Order at 2, reprinted in J.A. 244. Ndhing in the record indicates that the parties or the trial court dwelt long, if at all, on the contrad daim. Rather, as nded above, the prindpal focus in the Distrid Court was on the validity d the order. It appears that the Distrid Court, after finding that the Contrd Board’s order was ultra vires, conduded, a fortiori, that UDC had breached the CBA.

The Faculty asserts that, because the con-trad daim was undoubtedly “related to” the ultra vires daim, the Distrid Court properly exerdsed its supplemental jurisdidion in considering and resdving the contrad daim. See 28 U.S.C. § 1367(a) (1994). Appellants, however, contend that, under the terms d the CBA, and in accordance with Distrid d Columbia law, the Faculty was required to submit its grievance to arbitration before bringing a breach d contrad adion in court. See District of Columbia v. Thompson, 593 A.2d 621, 635 (D.C.1991) (hdding that the D.C. Council intended the Distrid’s Comprehensive Merit Personnel Ad (“CMPA”), D.C.Code Ann. §§ 1-601.1 to -637.2, to provide Distrid employees with an exdusive administrative remedy for the resolution of their grievances); J.A. 117-21 (detailing the CBA’s grievance procedure). Thus, appellants argue that the District Court never had jurisdiction over the contract claim, because the Faculty failed to exhaust its administrative remedies.

I n the trial court, however, appellants never raised exhaustion, in part because they appeared to concede that the CBA had been abrogated pursuant to the Control Board’s order. Accordingly, the Faculty claims that appellants waived their exhaustion defense by failing to raise it before the District Court. The Faculty also asserts that, under District of Columbia law, it would have been futile to pursue arbitration in the face of UDC’s flat refusal to follow the CBA’s grievance procedures See Board of Trustees, Univ. of the Dist. of Columbia v. Myers, 652 A.2d 642, 645 (D.C.1995) (establishing that a showing of futility may overcome an employer’s exhaustion defense). For their part, appellants dte Thompson and its progeny for the propostion that the so-called “exhaustion” requirement is in fact, jurisdictional and, therefore, cannot be waived. See Brief of Appellants at 20-24.

I n our view, the parties are on a wild goose chase in contesting whether the CBA’s grievance procedures amount to a “jurisdiotional” bar that precludes resolution of the contract claim in District Court. District of Columbia law clearly subscribes to the rule— long considered fundamental to federal labor policy — that parties to a collective bargaining agreement who have agreed to submit their disputes to arbitration normally may not bypass their contract grievance procedures in favor of a lawsuit. I n Jordan v. Washington Metropolitan Area Transit Authority, 548 A.2d 792, 796 (D.C.1988), the D.C. Court of Appeals stressed that:

if the collective bargaining agreement establishes procedures which are intended to be exclusive for resolving employer-employee grievances ... and if the employee brings suit against the employer before those grievance procedures have been exhausted, the employer may defend on the ground that the employee has not exhausted the exclusive remedies available under the contract.

(footnote omitted); see also Myers, 652 A.2d at 645; cf. Communications Workers v. AT&T, 40 F.3d 426, 434 (D.C.Cir.1994) (“It is a well-settled rule of labor law that parties to a collective bargaining agreement normally must seek to resolve their contract disputes under agreed-upon grievance and arbitration procedures; and where the parties have agreed to final and binding arbitration, disputes within the scope of the arbitration clause may not be pursued in a breach of contract action under section 301 of the [Labor Management Relations Act] in lieu of arbitration.”).

Under prevailing D.C. and federal law, an employee may bypass the agreed-upon arbitration procedures only by showing that the “grievance procedures are unreasonable or that the hostility of union officials makes a fair hearing impossible,” Jordan, 548 A.2d at 797 (citations omitted), or that “pursuit of [administrative] remedies would be futile.” Myers, 652 A.2d at 645; see also Vaca v. Sipes, 386 U.S. 171, 185-88, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In this case, nothing about the CBA’s grievance procedures is alleged to be unreasonable And, since it is the faculty’s union that brought this action, there is certainly no claim that the union has breached its duty of fair representation. Finally, although the Faculty now contends that an attempt to arbitrate would be futile, the District Court has made no such finding. Thus, it appears that the Faculty’s contract claim is subject to arbitration.

It is true that the D.C. Court of Appeals, in Wilson v. District of Columbia, 608 A.2d 161, 161 n. 1 (D.C.1992), intimated in a footnote that failure to raise exhaustion in the trial court could preclude the defense on appeal. 11 is also true that the D.C. Court of Appeals has never explicitly referred to the exhaustion requirement as a “jurisdictional” bar, thus at least ostensibly leaving open the possibility that a federal district court could hear an employee grievance under its supplemental jurisdiction if an objection to exhaustion has been waived. The Faculty would have us conclude from these two facts that, as a matter of District of Columbia law, appellants have waived their exhaustion defense in this case, because the issue was never raised by appellants before the District Court.

We decline the invitation to decide this question. We are convinced that, in normal circumstances, D.C. law holds that parties to a collective bargaining agreement must resolve their contract disputes under agreed-upon grievance and arbitration procedures. I n this case, however, because of the way the matter was initially presented, neither party focused on the contractual issue in the District Court. Appellants? failure to raise the so-called exhaustion issue is at least partially explained by the fact that the validity of the Control Board’s order, and not the actual RIF, was the primary concern of the parties in the trial court. In these circumstances, we are loath to find that appellants “waived” anything; indeed, all that may be at issue here is a possible “forfeiture” of the exhaustion defense. Cf. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (explaining the legal distinction between “waiver” and “forfeiture”). In any event, we happily eschew the temptation to wander through the maze of District of Columbia law — to cut fine lines between futility, forfeiture, waiver, exhaustion, and jurisdiction — when a less indulgent course is apparent.

Prudence beckons; so we will remand the contract daim to the District Court. Upon remand, the District Court should determine whether there are any viable issues remaining to be resolved in arbitration; if the trial court so finds, then the case should be submitted to arbitration. In ether words, the District Court should not resolve the contractual issue unless UDC, upon remand, (1) refuses to partidpate in an arbitration of the merits of the Faculty’s centrad daim, so that a remand to arbitration would be futile; or (2) abandons its exhaustion defense in light of our dedsion that the Contrd Board’s aotion was ultra vires.

III. Conclusion

For the reasons stated above, we affirm the opinion of the Distrid Court, insofar as it holds that the Control Board aded ultra vires when it issued its order. We remand to the Distrid Court to determine whether the Faculty’s contrad daim should now be submitted to arbitration.

So ordered.  