Recap of Oral Argument in Whitman v. Department of Transportation

Disclaimer: The author worked on the briefs on behalf of petitioner Terry Whitman as a student in Stanford’s Supreme Court Litigation Clinic.

If anyone sitting in today’s oral argument in Whitman v. Department of Transportation had familiarized themselves with the case through the parties’ certiorari briefs, they may well have wondered whether they had walked in on a different case. Initially framed as an appeal from a Ninth Circuit decision holding that the comprehensive nature of the Civil Service Reform Act (CSRA) bars federal employees from seeking relief for constitutional and statutory through the judicial system, oral argument dealt little with that ultimate question due to rather significant concessions made by the government.

In its merits brief, the government did not defend the Ninth Circuit’s decision, instead conceding that the language of the CSRA is not sufficiently clear to wholly preclude judicial review of a federal employee’s employment-related constitutional claims. However, the government had argued in its brief that even were an employee to enjoy a legitimate constitutional claim, they should first exhaust that claim through any available administrative procedure before proceeding directly to appellate review. In his reply brief, petitioner Whitman argued that the government’s proposal called for the Court to rewrite significant portions of the CSRA and forced employees into an appellate review process that found no textual support in the statute. Perhaps persuaded that its stance was untenable, Malcolm Stewart, arguing on behalf of the Solicitor General, made a further concession today, agreeing that under certain circumstances, it may be appropriate for employees such as Whitman to proceed into district court after exhausting their claims in the administrative process.

The concession clearly chagrined Justice Scalia, who wondered why the government was giving up on the argument that had won in the Ninth Circuit below: namely, that by explicitly providing for judicial review when an employee is punished with a “major adverse action,” Congress foreclosed all judicial review of non-major actions, even if constitutional in nature. The concession was an obvious boost for petitioner; since the Court seemed reluctant to go along with Justice Scalia’s suggestion that the CSRA be read as a jurisdiction-stripping statute, it seems quite possible that Whitman will win the ultimate question of whether an employee can – at some point – receive judicial review of a constitutional claim that arises out of a non-major adverse action.

The argument was hardly a cakewalk for petitioner, however, as many members of the Court pushed Pamela Karlan of the Stanford Supreme Court Litigation Clinic to explain why an employee like Whitman should not have to first exhaust his administrative remedies before seeking relief in court. Justice Breyer suggested that perhaps what would make the most sense is to allow judicial review of an employee’s constitutional claims in such a situation, but only after the employee has taken all the steps within his power to receive relief through the administrative process. In this case, Justice Breyer explained, the employee could have grieved his claim pursuant to the process established by his collective bargaining agreement, by informally bringing his complaint to the attention of his supervisor and facility manager. Whitman could then have requested his union to arbitrate the claim should he receive no satisfactory remedy through the informal process. At that stage, Justice Breyer suggested, an employee like Whitman could bring his claim in federal could were the union to refuse to arbitrate his claim. Although Professor Karlan responded that such an exhaustion requirement would have to be “written into” the statute, a number of the Justices appeared comfortable with imposing such a common law exhaustion requirement given the benefits of such a scheme. For example, Justice Ginsburg suggested that Whitman’s claim – which revolved around allegedly unconstitutional drug testing – was precisely the kind of dispute “that would have been handled” by the administrative process.

Imposing an exhaustion requirement may also satisfy other members of the Court who clearly felt uncomfortable with petitioner’s argument that even though the CSRA requires federal employees with claims that arise from “major” adverse actions to exhaust their claims before seeking review, employees with claims that arise from non-major actions can go straight to court simply because Congress failed to explicitly impose an exhaustion requirement. Justice Roberts explained that he struggled to accept that notion, and Justice Kennedy suggested that the results of that proposed regime would be “anomalous.”

Only Justice O’Connor expressed any reservations about imposing an exhaustion scheme, doing so on the ground that the government argued below that the CSRA bars constitutional claims – not that it requires exhaustion. Two questions asked by Justice O’Connor revealed her concern that by failing to brief or argue exhaustion below, the Solicitor General might not be able to belatedly argue for exhaustion now.

Thus, neither petitioner nor respondent are likely to walk away with a complete victory. By conceding that federal employees may seek judicial review of their constitutional claims in district court whenever their union fails to grieve the claim, the government has opened the door for the Court to rule on behalf of Whitman on the ultimate issue. At the same time, the Court’s overwhelming interest in some sort of exhaustion requirement may mean that even if federal employees can eventually receive review, they have to jump through a number of administrative hoops first.

The real question mark in this case will be what the Court decides to do with Whitman’s statutory claim. On the one hand, Justice Breyer’s questioning suggested that he saw little difference between the constitutional and statutory claims, and that both ought to receive judicial review so long as properly exhausted. On the other hand, Justice Roberts at least asked the parties to explain whether the two claims should be treated differently, leaving open the possibility that the Court may read the CSRA to preclude judicial review of an employee’s statutory claims in such a scenario, even if the constitutional claim can proceed.