Monday’s Argument in Whitman v. Department of Transportation

On Monday, December 5, the Court will hear oral argument in Whitman v. Department of Transportation, No. 04-1131. The case presents the question whether the Civil Service Reform Act (CSRA), which establishes administrative procedures for resolving employee complaints, precludes federal employees from going into federal court to obtain equitable relief for certain employment-related constitutional and statutory violations.

Pamela Karlan of the Stanford Law School Supreme Court Litigation Clinic will argue for petitioner, Terry Whitman. Malcolm Stewart of the United States Solicitor General’s Office will argue on behalf of respondent, Department of Transportation. The parties’ briefs are available here.

Air Traffic Assistant Terry L. Whitman has worked in an air control tower for the Federal Airline Administration (FAA) in Anchorage, Alaska for the last twenty years. The Department of Transportation regulations mandate random, non-discriminatory drug and alcohol testing of FAA air traffic assistants. Between 1996 and 2002, Whitman was asked to submit to breathalyzer or urinalysis exams fourteen times. Whitman came to believe that he was being forced to take the tests far more frequently than similarly-situated colleagues. Convinced that he was being subjected to illegal, non-random drug testing, Whitman filed a charge with the Federal Labor Relations Authority (FRLA). Because the charge did not involve an “unfair labor practice,” the FLRA turned Whitman away and recommended that he file a grievance. Instead, Whitman filed a pro-se complaint in federal district court, requesting equitable relief for both constitutional and statutory violations.

The district court dismissed Whitman’s claims for lack of subject matter jurisdiction, and the Ninth Circuit affirmed, holding that the CSRA’s scheme precludes employees from seeking relief in federal court for employment-related claims, and that represented employees like Whitman are restricted to the grievance and arbitration procedures established by their collective bargaining agreements. That process permits employees to file informal grievances with their supervisors, and allows an employee’s union (but not the employee) to request arbitration of the dispute with eventual review by the FLRA. The process culminates in judicial review by the local U.S. Court of Appeals, but only if the grievance involved an “unfair labor practice” (a term that does not include complaints about drug testing, the FLRA informed Whitman in this case). The Ninth Circuit rejected the view of the Federal and Eleventh Circuits that 5 U.S.C. 7121(a)(1) — which provides, with certain inapplicable exceptions, that the negotiated grievance process “shall be the exclusive administrative procedure[]” for resolving such complaints – indicates Congress intend to leave open non-administrative (i.e. judicial) avenues of redress. Consequently, the Court held, employees like Whitman that are subject to the CSRA are precluded from bringing constitutional and statutory claims in federal court, and must resolve such complaints in available administrative procedures.

On appeal to the Supreme Court, Whitman – now represented by attorneys from Goldstein & Howe and the Stanford Supreme Court Litigation Clinic – argued that both his constitutional and statutory claims may be heard in federal court without first progressing through the administrative grievance process. Whitman’s argument before the Court revolves around his view that that the CSRA did not revoke the federal courts long-standing jurisdiction to hear claims for injunctive relief for constitutional violations or revoke Whitman’s pre-existing right to challenge agency actions that violate federal statutory rights under the Administrative Procedures Act. Thus, contrary to the approach of the courts below, which both held that the CSRA did not create jurisdiction in the federal courts, petitioner argues in its briefs that the proper question is whether the CSRA strips the district court of jurisdiction it would otherwise possess.

From this vantage point, petitioner argues that neither the text nor the structure of the CSRA supports the conclusion that federal district courts have been stripped of their jurisdiction over federal questions. Noting the “strong presumption” in favor of the availability of judicial review over constitutional claims, petitioner repeatedly emphasizes that the plain language of section 7121(a)(1) only applies to administrative, not judicial, avenues of redress. The lower courts’ conclusion that petitioner’s claims cannot receive judicial review can only be justified, petitioner argues, by reading “administrative” out of section 7121(a)(1) and by ignoring the common distinction between “administrative” and “judicial” procedures. Petitioner also analyzes the legislative history of section 7121(a)(1), which was amended by Congress in 1994 by adding the word administrative after the D.C. Circuit interpreted section 7121(a)(1) to preclude judicial relief of grievable claims. Petitioner argues that the only reasonable interpretation of that amendment was to make clear that judicial relief is available for employees like Whitman, even if an alternate, administrative process exists.

Whitman also argues that a federal court can hear his statutory claim, which alleges that the FAA violated its duty under 49 U.S.C. 45104(8) to “ensure that employees are selected for tests by nondiscriminatory and impartial methods, so that no employee is harassed by being treated differently from other employees in similar circumstances.” Although – as the government points out – the Supreme Court interpreted the CSRA to preclude a federal employee from seeking judicial relief for a Back Pay Act claim in United States v. Fausto, petitioner argues that it only did so after finding specific evidence foreclosing judicial review for the particular class of plaintiss involved in that case. The Court did not, Whitman argues, preclude judicial review of all employment-related claims merely because of the “comprehensiveness” of the CSRA. In contrast to Fausto, petitioner argues that there is nothing in the CSRA to suggest that drug testing claims were meant to be precluded from judicial review.

In its brief, the government argues that all statutory-based employment claims by federal employees are precluded by the comprehensive structure of the CSRA. Not surprisingly, the government reads Fausto more broadly than petitioner, and interprets the decision to mean that petitioner cannot receive judicial review of his statutory claims in this case. The government takes Fausto to mean that because Congress has explicitly preserved some remedial schemes outside the CSRA – for example by expressly preserving the right to bring suit under Title VII of the Civil Rights Act of 1964 directly in district court – it follows that employees cannot receive similar judicial review for claims like this one that are not expressly preserved under the CSRA.

After arguing that the CSRA’s general structure foreclosed judicial review, the government then seeks to show that section 7121(a)(1) did not confer a right to judicial review of grievances. Noting that the word “administrative” was added to section 7121(a)(1) without explanation and in a technical and conforming amendment, the government argues that reading the provision to allow judicial review would create a “significant anomaly.” Because non-represented employees are subject to different rules, such a reading of section 7121(a)(1) would allow unionized employees, but not non-represented employees, to bring their claims in federal court. In the government’s opinion, such a result was not intended by Congress. Instead, the 1994 amendment can be interpreted as an attempt to clarify that federal employees retain the right under section 7121(f) to seek judicial review of arbitrator awards involving certain adverse employment actions, notwithstanding section 7121(a)(1)’s apparent restriction of judicial review.

With respect to the constitutional claim, the government makes a surprising concession, implicitly acknowledging that the Ninth Circuit was incorrect in holding that petitioner’s constitutional claim cannot receive judicial review. The government admits that the language of the CSRA does not “overcome th[e] presumption” in favor of judicial review of constitutional claims. However, the government does not agree that an employee can simply bring his or her constitutional claims directly in federal district court, proposing instead that the Court require employees to exhaust their administrative remedies through the negotiated grievance procedure. However, the government recognizes that, as currently written, the CSRA permits judicial review only of grievances involving “unfair labor practices.” To remedy this problem, the government suggests that the Court nonetheless hold that courts of appeals may hear an appeal from any grievance raising a substantial constitutional claim.

In petitioner’s reply brief, Whitman makes clear that he views the government’s proposed scheme as complicated and unnecessary. He argues that the government’s proposal would force the Court to rewrite no less than three provisions of the CSRA simply to set up an exhaustion process that was never intended. “There is no need” to make such a revision, petitioner argues, because nothing about the CSRA’s text or structure requires employees to exhaust their claims before seeking review in federal court.

The parties’ position seems to present the Court with a dilemma. On the one hand, the government’s argument arguably allows the Court to avoid a decision that may permit employees to evade the administrative process and the benefits that informal conciliation offers. On the other hand, the government has proposed a scheme that only allows the Court to preserve the advantages of exhaustion and administrative resolution by rewriting provisions of the CSRA, a seemingly legislative task that members of the Court may be reluctant to undertake.