New issue on federal workers’ rights
on May 2, 2006 at 4:02 pm
In an important case on the rights of federal employees, the Supreme Court on Tuesday broadened its review to test the federal courts’ power to impose added obligations to run through administrative machinery before taking a legal complaint to court. The Court, in an order noted by Marty Lederman in his post just below, raised a new issue for its consideration of Whitman v. Department of Transportation (04-1131). (Justice Samuel A. Alito, Jr., did not take part in the order; he has been recused because the case was heard before he joined the Court.) The order can be found here.
Attorneys in the case were ordered to submit, by May 15, new briefs on the impact on Whitman of the Court’s unanimous decision on June 21, 1993, in Darby, et al., v. Cisneros, Secretary of House and Urban Development, et al. The Court ruled there that federal courts lack the authority to require an individual to exhaust available administrative remedies before seeking court review under the Administrative Procedure Act, “where neither the relevant statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review.” (Marty’s post below provides a link to the Darby decision.)
The Whitman case involves an employee of the Federal Aviation Administration in Alaska, Terry L. Whitman. Because he is an air traffic assistant, a job involving safety concerns, he is required to take random drug and alcohol tests. He contends that he has been tested numerous times, much more often than his colleagues, and thus the testing is not random. He argues that this violates both his rights under federal civil service law, and his rights under the Fourth Amendment against “unreasonable” searches. He took his complaint to the Federal Labor Relations Authority, but it said it had no jurisdiction because he was not making a claim involving protected union activity. He did not take his claim to a labor union grievance, but instead sued in federal District Court. The Ninth Circuit Court, in a ruling splitting with other circuits, ruled that he could not sue directly because he had failed to exhaust his labor grievance rights.
The Civil Service Reform Act, on which the Ninth Circuit relied, says that federal workers covered by labor union contracts may pursue grievances under that contract, and the grievance procedures are declared to be “the exclusive administrative procedures” for such grievances. In Whitman’s case, the government argues that this means that, on both his statutory and constitutional claims, he must first try to get the union to pursue his complaint about the drug-testing program before he may sue. Circuit Courts that disagree say that the Act only meant to establish an exclusive administrative remedy, and thus did not foreclose alternative, non-administrative avenues of redress.
Significantly, perhaps, Whitman’s constitutional claim is based on the Administrative Procedure Act — the same law at issue in the Darby decision.
The Circuit Courts’ rulings that conflict with the Ninth Circuit’s Whitman decision make it clear that the Civil Service Reform Act does not explicitly require exhaustion of remedies as a prelude to a court suit. (The most important of the conflicting Circuit Court rulings is that of the Federal Circuit in Mudge v. U.S. — interestingly, also involving a Federal Aviation Administration employee in Alaska. There, the Federal Circuit found that Congress had overruled one of that Court’s earlier decisions, Carter v. Gibbs [1990], against judicial review of a CSRA case. The other conflicting ruling, by the Eleventh Circuit in ASEDAC v. Panama Canal Commission, simply built upon the Mudge precedent. Neither Mudge nor ASEDAC cited the Darby decision.)
The Darby case involved an order that excluded some real estate developers, for an 18-month period, from any participation in federal programs because of claims that those developers had operated a “sham” mortgage insurance scheme that left HUD responsible for more than $6.6 million in insurance claims. The developers lost a challenge before an administrative law judge, who upheld the 18-month suspension. Instead of seeking further administrative review, the developers sued in federal court, relying on the Administrative Procedure Act.
In the Supreme Court ruling on the case, the Justices overturned a Fourth Circuit Court ruling that, even though federal housing law and regulations did not expressly mandate exhaustion, the District Court should have required it because there was no indication that it would have been futile.
The Supreme Court commented: “Whether courts are free to impose an exhaustion requirement as a matter of judicial discretion depends, at least in part, on whether Congress has provided otherwise, for of paramount important to any exhaustion inquiry is congressional intent.” It went on to hold that APA set conditions for when an agency action became final for purposes of bringing a court suit, and concluded that the Act “limits the authority of courts to impose additional exhaustion requirements….” Congress, it said, was intent on making the exhaustion requirement in the APA unambiguous, so courts may not add to conditions explicitly listed in the Act. Once the specified exhaustion steps had been taken, “it would be inconsistent with the plain language [of the Act] for courts to require litigants to exhaust optional appeals as well.” (Although the Court was unanimous, three Justices did not join in the part of the opinon that discussed legislative history.)
During the oral argument in the Whitman case on Dec. 5 last year, the Justices seemed most interested in whether the FAA employee was required to try a labor union grievance before he could bring his constitutional claim to court. While the Darby decision was not explicitly mentioned during that hearing, the transcript makes it clear that the Court was interested in the scope of rights to sue under APA, and the issue of “finality” — an issue apparently resolved in the Darby decision. (The transcript in Whitman can be found here.)
The Court’s order Tuesday does not specify which Justice or Justices asked for the added briefing on the Darby decision. It appears that, by requiring the new briefs to be filed by May 15, the Court intends to attempt to decide the case during the current Term, and thus appears unlikely to order it reargued, even though it is being considered by only an eight-member Court.
