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More on Whitman v. DOT

The petitioner in this case is Terry Whitman, an air traffic control assistant for the FAA. Whitman filed a suit in the U.S. District Court for the District of Alaska in which he contended that the FAA had disproportionately subjected him to drug testing, in violation of a statute requiring the FAA to ensure that drug testing is random. He later amended his complaint to further allege that the non-random testing violated his constitutional right to privacy. The district court dismissed his suit for lack of subject matter jurisdiction and the court of appeals affirmed.

At issue in this case is 5 U.S.C. 7121(a), which provides that when federal employees are subject to collective bargaining agreements containing negotiated grievance procedures, those procedures are the “exclusive administrative procedures” to resolve those grievances. Prior to 1994, the statute had provided that those procedures would be the “exclusive procedures,” and courts had unanimously construed the statute to preclude federal employees from seeking direct judicial review when they would otherwise have an independent basis for judicial review of their claims. In 1994, Congress amended the statute to add the word “administrative.” The Federal and Eleventh Circuits have construed the post-amendment statute as removing the bar to judicial review, but the Ninth Circuit in this case rejected those holdings, concluding that judicial review of Whitman’s claims was barred because the statute does not directly authorize such review.

The cert. petition presents two questions. The first goes to the proper construction of Section 7121(a) generally — e.g., does it remove the pre-1994 bar to direct judicial review? The second goes to Whitman’s constitutional claim, and whether he may seek equitable relief for such claims against the federal government.