Whitman, Terry v. U.S. Dept. of Transportation, et al. (06/05/2006)

Questions presented: (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 othewise have an independent basis for judicial review of his claims? (2) Whether the Civil Service Reform Act, 5 U.S.C. 7101 ete seq., precludes federal courts from granting equitable relief for constitutional claims brought be federal employees against their employer?

MARIA HEGSTAD & CAROLINE MOSES, MEDILL NEWS SERVICE

It was the 11th time, and Terry Whitman was frustrated. It didn't help that his two co-workers, also selected for drug testing, announced it was their first.

All three had been at the Alaska Regional Air Traffic Control Center for 13 years. Each was required to submit to random drug and alcohol testing, since they were responsible for the safety of airplane passengers crossing the tundra sky. Yet Whitman had been tested 10 more times than the other two air traffic assistants. Each time, he tested negatively.

Whitman filed a grievance with the Federal Labor Relations Agency in June 2001. The regional director replied that the matter was outside his jurisdiction. Whitman appealed to the general counsel, who declined to hear his complaint.

So in June 2002, Whitman filed a lawsuit in federal court in Anchorage. By then, he had been tested a total of 14 times. He asked a judge to order a survey of his co-workers. Whitman wanted proof the testing was unfairly applied, he wanted something done about it, and he was prepared to fight alone. He represented himself in the U.S. District Court.

The government claimed that Whitman couldn't sue; instead, he had to use the grievance procedure for federal employees described in the 1978 Civil Service Reform Act. Judge Ralph Beistline agreed that the federal courts lacked jurisdiction to hear Whitman's case. Whitman appealed, and in August 2004, the 9th Circuit Court of Appeals affirmed. Judge Kim McClane Wardlaw wrote the opinion without hearing oral argument.

The 9th Circuit held that the CSRA only allowed employees of the federal government to sue after they had exhausted grievance proceedings outlined in the CSRA. Whitman failed to do so, and therefore, could not sue. Wardlaw wrote the CSRA defines a grievance as anything relating to the employment of the employee, meaning Whitman's concern falls within this system.

The 9th Circuit rejected earlier rulings from the 11th Circuit Court of Appeals and the Federal Circuit. In 2000, the Federal Circuit held a 1994 amendment to the CSRA allows federal employees to sue before exhausting administrative grievance processes. "The plain language of [the CSRA] is clear . . . the text of the statute does not restrict an employee's right to avail him or herself of alternative, non-administrative avenues of redress," the Federal Circuit opined. In 2003, the 11th Circuit incorporated the Federal Circuit's decision.

The 9th Circuit determined its circuit had no comparable precedents as the Federal Circuit's Mudge case or the 11th Circuit's ASEDAC v. Panama Canal Commission case. "Our well-established rule is to the contrary," Wardlaw wrote. "Federal courts ‘have no power to review federal personnel decisions and procedures unless such review is expressly authorized by Congress.'"

Whitman planned to petition the U.S. Supreme Court for review himself. Before he did, he received a call from an attorney specializing in constitutional law.

"Tom Goldstein called me in December 2004, and asked if I'd be interested in letting him take the case pro bono," Whitman recalled. "I said, ‘Sure!'"

The government also agreed that the Supreme Court needed to address the appeals courts' conflicting rulings. The Solicitor General's brief argued that the 9th Circuit was correct in ruling that the civil service reform act doesn't allow judicial review of Federal Aviation Administration employees' work-related grievances. But, the government agreed that the Supreme Court should determine if a 1994 amendment to the civil service reform act allows the courts to consider federal employee grievances.

The amendment was very slight: Congress added an adjective. Before the amendment, the CSRA stated that the grievance procedures "shall be the exclusive procedures for resolving grievances within its coverage." After the amendment, the CSRA read as follows: The required grievances "shall be the exclusive administrative procedures." This was the amendment the 11th Circuit and Federal Circuit relied on in their opinions. Whitman's attorneys argue the amendment further demonstrates Congress did not intend to strip federal employees of the right to file lawsuits.

The government urged the court to limit its review to the conflicting federal circuit rulings because Whitman didn't pursue the grievance procedure before filing his lawsuit.

Whitman's attorneys argue that he tried and was rebuffed. None of the grievance procedures were able to handle Whitman's complaint. The only place he could go was the federal court.

"There are virtually no avenues for him to raise his complaint. His complaint doesn't fit. The labor relations board only hears unfair labor practice [claims]," said Pam Karlan, who represents Whitman before the Supreme Court.

Karlan argues that the Supreme Court has maintained a presumption that legislation doesn't strip the federal courts of jurisdiction to hear constitution-based cases. Karlan argues the 9th Circuit's decision is fundamentally flawed: the judges assumed "Congress stripped the district courts of jurisdiction" because the civil service reform act doesn't specifically include the courts as an avenue for federal employees to redress their grievances.

On June 27, 2005, the final day of the Court's 2004-05 term, the Court accepted review in the case, to be heard during its 2005-06 term.

The case is important because of the sheer number of federal employees, all of whom could be affected, Karlan said. In fact, an amicus brief has been submitted to the Court by Allen Dotson, a former probation officer in the Southern District of New York, who contends he was fired after 10 years of service because he is African American. Dotson also sought Supreme Court review, but his case has been held. Dotson's attorney expects the case to be remanded to the 2nd Circuit.

According to Dotson's attorney, the only difference between his case and Whitman's is that Whitman is an employee of the federal executive branch, while Dotson is an employee of the federal judicial branch. Dotson's case is in fact more problematic because the CSRA provides some administrative remedies for executive branch employees like Whitman, while judicial branch employees like Dotson have no recourse, Amanda Frost wrote in the amicus brief.

Whatever the Supreme Court decides will not settle Whitman's case.

Should the Court rule in Whitman's favor, he will take his case back to the district court in his hometown of Anchorage. He plans to represent himself as he did before.

"I felt like I held my own in the motions," Whitman said. "I'll battle it out with the U.S. attorney. She's thrilled … she told me in [her] 15 years with the U.S. attorney's office, she's never seen an Alaskan case in the Supreme Court."

Whitman, 51, has no formal legal training. He attended grade school in a one-room schoolhouse in Pennsylvania. After graduating, he served four years in the Marine Corps before taking the air traffic assistant job in Anchorage.

Since he filed his lawsuit in 2002, Whitman has been drug or alcohol tested four more times. He considers it additional evidence that the testing is not random.

When Whitman questioned the testing personnel, he was assured the testing was random. At any one time, one-third of the acting shift was available for testing, he was informed.

"The chance of my being selected for testing at random the first seven times in a row is one-third raised to the seventh power, or one chance in 2,187," Whitman wrote in his original June 2002 complaint.

As the case pended in the Supreme Court, he looked forward to a vacation in December, visiting relatives on the East Coast and stopping in Washington, D.C., to hear his case argued December 5.

During those arguments, the justices sought to determine just what Karlan wanted for her client that the CSRA could not provide. Karlan said her main concern was that her client would have the right to judicial review, if the union lost or even refused to take on Whitman's case.

"But what you're worried about is if they (the union) don't win or if they don't do it, they can go to court only if it involved an unfair labor practice or a major adverse personnel action. That's what's worrying you, I take it," Justice Stephen Breyer clarified.

As it stands, the CSRA statute only provides judicial review for major personnel actions.

"Now, the CSRA is absolutely comprehensive in its field, but its field is personnel actions. And this case is not a personnel action," Karlan noted.

Both sides joined on the issue that Whitman's claims of allegedly unconstitutional drug tests were not considered personnel actions. But, since Karlan said Whitman's claims fall outside personnel action and into a residual category- which includes any other significant change in duties, responsibilities, or working conditions - Whitman could not get proper judicial review though CSRA.

"So now the most minor things go to court. That seems very anomalous," said Justice Anthony Kennedy.

However, Karlan agreed. "This is a 4th Amendment violation. It is not minor," she said.

The Court probed as to whether the only difference between Whitman and the government was when.

"So your difference - what's separating you and Whitman, it seems, is a question of timing. The action that you're describing that would come at the end, after he's used the administrative process, is the same one that he is seeking to bring at the front end," said Justice Ruth Bader Ginsburg of Malcolm Stewart, arguing for the government.

Stewart replied by saying timing is not the main issue. "To say that it's simply a question of when the individual can file suit is to pre-suppose that the grievance procedures won't work. And there's no reason to assume that that will happen," Stewart argued.

He said that Whitman did not take advantage of the administrative remedies that were available to him. Stewart said if Whitman had, then judicial review would have been available.

Karlan maintained in her rebuttal that because Whitman's claims of warrantless searches were not considered personnel actions, her client would not have been allowed access to judicial review. Therefore, she said, the CSRA should not have jurisdiction over Whitman's case.

"I think it's clear at this point that the government really is asking this Court to rewrite the CSRA on the fly," Karlan said.

On May 2, 2006, the Court directed the parties to brief the applicability of the 1993 opinion in Darby v. Cisneros to the case, and on June 5, issued a three-page per curiam opinion, vacating the 9th Circuit opinion, and remanding the case for the appeals court to consider both the jurisdiction and preclusion issues.

Justice Samuel Alito took no part in the case.