Issues
Does the Civil Service Reform Act, which provides that that procedures established by collective bargaining agreements for redressing employment grievances serve as the "exclusive administrative procedures" available, preclude Federal employees from bringing actions in Federal court to redress grievances, even if the employee seeks equitable relief, such as an injunction against future drug tests, for claims that an employer violated an employee's constitutional rights?
Terry Whitman served as an air traffic controller with the Federal Aviation Administration for twenty years. Under FAA and Department of Transportation rules, Whitman and all other air traffic controllers were subject to random drug tests due to the "safety-sensitive functions" of their employment. From 1996 to 2002, Whitman was repeatedly subjected to such tests, even though the results were negative each time. He learned over the course of the years that he was required to take many more tests than his coworkers. Whitman felt that his employers were violating his constitutional right to privacy by using non-random searches, and Whitman wanted them to be stopped. He brought a suit in the Federal district court in Alaska seeking an injunction against further testing. The court dismissed his complaint, however, stating that under the Civil Service Reform Act, the Federal court had no power over his action, and that he had to use the proper administrative procedures under the Civil Service Reform Act to obtain the remedy he desired. The Ninth Circuit Court of Appeals affirmed the district court. Now the Supreme Court must decide whether under the Civil Service Reform Act, Federal courts are precluded from hearing grievances for which the Act has already provided an administrative grievance procedure.
Questions as Framed for the Court by the Parties
1.? Whether 5 U.S.C. ? 7121(a)'s provision that the negotiated grievance procedures of a federal collective bargaining agreement be "the exclusive administrative procedures" to resolve grievances precludes an employee from seeking direct judicial redress when he would otherwise have an independent basis for judicial review of his claims.
2.? Whether the Civil Service Reform Act, 5 U.S.C. ? 7101 et seq., precludes federal courts from granting equitable relief for constitutional claims brought by federal employees against their employer.
Facts
Petitioner Terry Whitman ("Whitman") was employed as an air traffic controller at the Federal Aviation Administration's ("FAA") Anchorage Air Route Traffic Control Center. Brief of the Petitioner at 8-9. As part of his employment, under Department of Transportation ("DOT") and FAA regulations, Whitman was subject to periodic random drug tests, such as breathalyzers and urinanalysis examinations. Id. at 7. From 1996 to 2002, Whitman took fourteen separate drug tests, an amount he learned was far higher than that of his coworkers. Id. Feeling his employers had violated his right to privacy, Whitman filed an unfair labor charge with the Federal Labor Relations Authority ("FLRA") in June 2001 alleging that the FAA had subjected him to a disproportionate amount of drug tests. Brief for the Respondents at 9. The FLRA denied Whitman's charge on the ground that it did not allege discrimination based on a protected union activity, and told Whitman that the proper avenue for recourse was the grievance procedure established under a collective bargaining agreement ("CBA") between his union, the National Association of Government Employees, and the FAA. Id.
Instead of using the grievance procedure provided for in the CBA, Whitman filed an action in Federal district court in Alaska alleging that the FAA violated 49 U.S.C. ? 5331(d), which requires that employees be selected for testing in a nondiscriminatory matter. Brief for the Respondents at 9. Whitman later amended his complaint to allege that the drug tests violated his First Amendment right to privacy. Brief of the Petitioner at 10. As part of the complaint, Whitman sought an injunction prohibiting the FAA from administering any further tests on him, and ordering the Anchorage Center to conduct a survey to determine if its methods for selecting employees for drug tests complied with statutory requirements. Id. The district court dismissed the complaint for lack of subject-matter jurisdiction. Brief for the Respondents at 10. The court held that under the Civil Service Reform Act ("CSRA"), and particularly the 1994 amendments contained in 5 U.S.C. ? 7121(a), the grievance procedures contained in the CBA were the "exclusive administrative procedures," and thus, Whitman had no available judicial remedy. Id. The Court of Appeals for the Ninth Circuit affirmed, concluding that the remedial system established under the FAA Personnel Management System and the CSRA was comprehensive and precluded the Federal courts from providing direct judicial relief for employee grievances. Id. The Appellate Court acknowledged that other Circuit Courts, such as the Eleventh Circuit and the Federal Circuit, had interpreted the 1994 amendments to the CSRA differently. In their view, the addition of the word "administrative" to "exclusive procedures" implied that courts as well as Federal agencies had the power to hear employee grievances. Id. The Supreme Court granted certiorari on June 27, 2005 to resolve this split in the Circuits and to determine whether or not Federal courts have the power to hear employee grievance claims under the Civil Service Reform Act.???
Analysis
The facts of this case give rise to a number of competing concerns including the extent of the autonomy of Federal administrative agencies like the FAA, the ability of Federal employees to bring constitutional claims against the agencies for whom they work, and the power of Federal courts to decide issues when conflicts arise between the employee and the agency. Ultimately, however, the dispute in this case is fundamentally a jurisdictional one: whether a Congressional statute must expressly provide a Federal court with jurisdiction over a constitutional issue, or, alternatively, just not prohibit jurisdiction, in order for a Federal court to hear the case.
Whitman argues that this case was improperly dismissed at the trial court level for lack of subject-matter jurisdiction, a decision that was later affirmed by the Ninth Circuit. The central support for Whitman's argument derives from 28 U.S.C. ? 1331, the general jurisdictional statute by which Federal courts "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. ? 1331 (emphasis added). Based on the text of that statute, and the language of the Administrative Procedure Act, Whitman asserts that a Federal court always has the power to hear a case like his which raises a constitutional claim unless a competing statute specifically strips the court of that jurisdiction. Brief of the Petitioner at 25 (explaining that there is a "presumption that the Federal courts have jurisdiction over constitutional claims.")
The apparent "competing statute" at issue in this case is the Civil Service Reform Act, 5 U.S.C. ? 7121(a)(1), which provides that negotiated grievance procedures (as exist in this case) "shall be the exclusive administrative procedures for resolving grievances which fall within its coverage." 5 U.S.C. ? 7121 (a)(1). So while the respondent in this case, the Department of Transportation, contends that this language strips the court of jurisdiction, Whitman's argument is that "it does not follow from the fact that 7121 did not create jurisdiction that Congress somehow stripped the district court of the jurisdiction it would otherwise undoubtedly have enjoyed" under 28 U.S.C. ? 1331. Brief of the Petitioner at 12. Whitman suggests that any other reading would, in fact, be "radical." Brief of the Petitioner at 13.?
In further support of his argument, Whitman discusses the 1994 amendment to the Civil Service Reform Act. Brief of the Petitioner at 13, 32-35. Prior to 1994, the CSRA simply said that the negotiated grievance procedures were the "exclusive procedures" for resolving grievances. But the 1994 amendment changed the plain language of the statute to read that negotiated grievance procedures "shall be the exclusive administrative procedures" for resolving these grievances. Such a change, Whitman contends, was made to underscore the fact that while the CSRA was the only recourse available to the aggrieved employee at the administrative level, judicial review was still clearly available-and this judicial review can be obtained under the regular jurisdiction conferred on Federal courts for constitutional issues by 28 U.S.C. ? 1331. Brief of the Petitioner at 13-14.
On the other hand, the Department of Transportation, seeks to demonstrate that the CSRA was passed by Congress for the express purpose of simplifying and streamlining the grievance process for Federal employees and limiting the involvement of courts in resolving disputes. Brief for the Respondents at 12 (explaining that in passing the CSRA, Congress had a "clear intent to channel employment claims through administrative mechanisms before review.and thereby.eliminate duplicative and inefficient review of agency action"). Indeed, DOT explains that "the Civil Service Reform Act regulates virtually every aspect of Federal employment and 'prescribes in great detail the protections and remedies applicable.including the availability of.judicial review.'" Brief for the Respondents at 2. DOT relies heavily on the Supreme Court's own decision in the case of U.S. v. Fausto, which said that judicial review was not available for a claim under the CSRA involving alleged employee misconduct. 484 U.S. 439 (1988). There, the Court said, "we think Congress' intention is fairly discernible, and that 'the presumption favoring judicial review ... [has been] overcome by inferences of intent drawn from the statutory scheme as a whole...'". Id. at 453 (citations omitted). Whitman distinguishes this case from his own, however, by pointing out that Fausto was decided before the 1994 amendment, and that the decision was based on employee misconduct of which there is no claim here.
DOT further points out that the CSRA, along with rules promulgated by the FAA to effect its purpose, has a three-tiered system of grievance procedures designed to handle exactly the kind of complaint that Whitman presents here. Brief for the Respondents at 3. DOT points to specific language in the CSRA which clearly states that "any covered grievance that is not settled by the negotiated grievance procedure 'shall be subject to binding arbitration which may be invoked by.the agency.'" Brief for the Respondents at 7; 5 U.S.C. ? 7121(b)(1)(C)(iii). However, DOT points out, Whitman by-passed the agency procedures and went straight to the courts with a petition for review. In doing so, DOT asserts that he not only circumvented the procedures already in place and usurped the FAA's authority, but he improperly sought review from a court without power to give it. Brief for the Respondents at 13. Both the district court and the Ninth Circuit agreed with DOT's argument.
Discussion
This decision has significant implications for many parts of the Federal Government. Federal employees have the most at stake in this decision, as the decision will determine their ability to use Federal courts to seek redress for grievances, including constitutional claims. As Whitman argues, Federal employees may already bring constitutional claims of employment discrimination in Federal court without using any administrative procedures, a right guaranteed to them under the United States Constitution, the provisions of the United States Code dealing with Federal court subject-matter jurisdiction, 28 U.S.C. ? 1331, and the Administrative Procedure Act. If the Court determines that the grievance procedures provided for in the CSRA are the "exclusive administrative procedures" available to Federal employees, the decision will close the doors of the Federal courts to employees with constitutional claims arising out of their employment, thus removing an important avenue to obtain needed remedies. Further, Executive officials would now be the entities evaluating constitutional claims, such as discrimination. This raises additional concerns about whether these Executive officials are as adequately suited for this task as the Federal courts.
Federal employers also have much at stake in this decision. Under the CSRA, all employment and labor disputes are handled within the Executive branch, as employees must take their grievances either to their unions, if they are covered by a collective bargaining agreement, or to one of a variety of Federal agencies and boards depending on the nature of the injury. These Federal agencies include the FAA Personnel Management System, the Merit Systems Protection Board, the Office of Special Counsel, and the Federal Labor Relations Authority. Only after going through these agencies may a Federal employee seek judicial review. In some cases the scope of the review is limited. If the Court determines that the procedures discussed in the CSRA are the "exclusive administrative procedures" available, then this system of grievance resolution will continue, and the agencies responsible for making employment decisions, such as who will be subjected to drug tests, will not face initial judicial scrutiny. On the other hand, if the Court decides that the CSRA refers only to administrative procedures, and that judicial procedures are available as well, Federal employers will be subject to intense judicial scrutiny. Employees will be able to bypass the available administrative procedures and go directly to Federal courts for redress of their injuries.
The Court's decision also has implications for the Federal judiciary. If the Court decides that Federal courts cannot provide equitable relief for Federal employees' constitutional claims, it will significantly limit Federal court jurisdiction in an area in which they have played an important role-the protection of constitutional rights.? Federal courts will have to send these types of claims to the administrative agencies discussed in the CSRA, who will then have jurisdiction over the grievances and any constitutional questions that may arise. Conversely, if the Court decides that Federal courts can grant equitable relief, and that Federal employees may go directly to Federal courts for redress of their grievances instead of administrative procedures, the Federal docket may be greatly burdened at a time when Federal judicial resources are limited and stretched thin. In addition, the decision may put the Federal courts in the role of Executive watchdog-evaluating any employment-related decisions that may lead to a grievance, including those that may be within an employer's discretion. This has the potential to create serious problems for the separation of powers doctrine, which emphasizes the independence of the three branches of government.???
The decision will also effect the role of collective bargaining in Federal employment.? As the CSRA states, any grievances covered by a collective bargaining agreement will be limited to the "exclusive administrative procedures" of the CSRA. If the Court rules that the administrative procedures discussed in the CSRA are exclusive, Federal employees may be hesitant to engage in collective bargaining for fear of denying themselves of the opportunity to seek redress of grievances in a court of law further down the road. Even if employees do choose to engage in collective bargaining, they may decide to severely limit the types of grievances covered by collective bargaining agreements in order to ensure that suing in Federal court is always an option. For the unions representing Federal employees, this is a very important issue because the ability to bargain collectively is the source of much of their power and influence. Without strong collective bargaining agreements, employees may look to other types of organizations besides unions to represent them in grievance procedures.
Conclusion
While it remains unclear which way the court will decide, the 1994 amendment to the language of the Civil Service Reform Act itself remains an important piece of information, and may indeed dictate the outcome in this case. By specifically adding the word "administrative" between "exclusive" and "remedy," it appears that Congress was both reasserting the agency's administrative authority and making clear that other avenues of redress are available to employees with complaints. Beyond the amendment, by adding the fact that Whitman presents a constitutional claim, the argument that this action belongs in Federal court becomes compelling. At the same time, the Court will likely be uncomfortable with the fact that Whitman bypassed the procedures put in place to specifically address a concern like his. Taken together, the Court may use these two arguments to decide that Whitman's case does belong in Federal court, but if, and only if, he has first exhausted his administrative appeals at the agency level.
Written by: Daniel Fisch & Micaela McMurrough
Acknowledgments
Additional Resources
- More on the Civil Service Reform Act
- Information Paper on Drug Testing in the Workplace
- LII Law about... Jurisdiction
- Wikipedia on jurisdiction