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No. 04-1131

In the Supreme Court of the United States

Terry L. Whitman, petitioner

v.

Department of Transportation, et al.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

Paul D. Clement
Acting Solicitor General
Counsel of Record
Peter D. Keisler
Assistant Attorney General
William Kanter
Lewis S. Yelin
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

The Civil Service Reform Act of 1978, 5 U.S.C. 1101 et seq. (CSRA or Act), provides that "any collective bargaining agreement" between the government and employees' unions "shall provide procedures for the settlement of grievances, including questions of arbi trability." 5 U.S.C. 7121(a)(1). Until 1994, Section 7121(a)(1) also provided that, with specified exceptions not implicated here, "the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage." 5 U.S.C. 7121(a)(1) (1988). As part of a 1994 technical and conforming amendment, the word "administrative" was added to Section 7121(a)(1), which now provides that "the [collective bargaining agreement grievance] procedures shall be the exclusive administrative procedures for resolving grievances which fall within its coverage."

The questions presented are as follows:

1. Whether the 1994 technical amendment to 5 U.S.C. 7121(a)(1) implicitly authorized federal em ployees to sue in federal district court for employment grievances, despite the absence of an explicit judicial remedy for grievances in the CSRA and the com prehensive nature of the remedial system created by the Act.

2. Whether the CSRA precludes a federal employee from seeking equitable relief from a federal district court for an alleged constitutional violation by his or her employer.

In the Supreme Court of the United States

No. 04-1131

Terry L. Whitman, petitioner

v.

Department of Transportation, et al.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-11a) is reported at 382 F.3d 938. The opinion of the district court (Pet. App. 12a-15a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on August 30, 2004. The court of appeals denied a petition for rehearing on November 24, 2004 (Pet. App. 16a). The peti tion for a writ of certiorari was filed on February 22, 2004. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress enacted the Civil Service Reform Act of 1978 (CSRA or Act), Pub. L. No. 95-454, 92 Stat. 1111, to replace a "patchwork system" of federal personnel law "with an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration." United States v. Fausto, 484 U.S. 439, 445 (1988). The personnel system created by the CSRA provides a "comprehensive" scheme of protections and remedies for federal employment dis putes, id. at 448, and "prescribes in great detail the protections and remedies applicable * * * , including the availability of * * * judicial review." Id. at 443. Because of its comprehensive nature, courts have routinely held that "Congress meant to limit the remedies of federal employees bringing claims closely intertwined with their conditions of employment to those remedies provided in the [CSRA]." Lehman v. Morrissey, 779 F.2d 526, 527-528 (9th Cir. 1985).

Under legislation enacted in 1995 and 1996, and amended in 2000, Congress revised federal personnel law as it applies to employees of the Federal Aviation Adminis tration (FAA). Department of Transportation and Related Agencies Appropriations Act, 1996, Pub. L. No. 104-50, Tit. III, § 347, 109 Stat. 460 (repealed by Wendell H. Ford Avia tion Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, Tit. III, § 307(d), 114 Stat. 125); Federal Aviation Reauthorization Act of 1996, Pub. L. No. 104-264, Tit. II, § 253, 110 Stat. 3237 (49 U.S.C. 40122); Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, §§ 307(a), 308, 114 Stat. 124, 126 (49 U.S.C. 40122(g)). In those enactments, Congress made certain provisions of the CSRA applicable to FAA employees, but exempted the agency from the remaining provisions. See 49 U.S.C. 40122(g)(2). In lieu of the inapplicable provisions of the CSRA, Congress directed the FAA to create a "per sonnel management system for the Administration that addresses the unique demands on the agency's workforce." 49 U.S.C. 40122(g)(1). To discharge that responsibility, the agency created the FAA Personnel Management System. See Federal Aviation Administration, U.S. Dep't of Transp., FAA Personnel Management System (Mar. 28, 1996), <http://www.faa.gov/ahr/policy/PMS/PMshom2.htm> (FAA Pers. Mgmt. Sys.).

The applicable provisions of the CSRA and the FAA Personnel Management System together comprise a per sonnel system that is as fully comprehensive as that created by the CSRA. Like the CSRA, the hybrid FAA personnel system is an "elaborate remedial system that has been con structed step by step, with careful attention to conflicting policy considerations." Bush v. Lucas, 462 U.S. 367, 388 (1983).

2. Chapter 71 of the CSRA, which governs the work- related grievances of federal employees, continues to apply to FAA personnel. 49 U.S.C. 40122(g)(2)(C). Under Chap ter 71, federal employees may join unions to engage in col lective bargaining, 5 U.S.C. 7101, 7102; management is obli gated to engage in collective bargaining, 5 U.S.C. 7111, 7114(a)(1), 7117; and every collective bargaining agreement is required to contain a procedure for "the settlement of grievances," 5 U.S.C. 7121(a)(1). However, a "collective bargaining agreement may exclude any matter from the application of the grievance procedures."1 5 U.S.C. 7121(a)(2).

Any grievance that is subject to but not settled under the negotiated grievance procedures "shall be subject to binding arbitration which may be invoked by either the [union] or the agency." 5 U.S.C. 7121(b)(1)(C)(iii). Either party may then challenge the arbitrator's decision by filing exceptions with the Federal Labor Relations Authority (FLRA), 5 U.S.C. 7122(a), which may "take such action and make such recommendations concerning the [arbitral] award as it considers necessary, consistent with applicable laws, rules, or regulations." 5 U.S.C. 7122(a)(2). The FLRA's decision regarding a challenge to an arbitration award is not subject to judicial review, unless the matter decided by the arbitrator involves an unfair labor practice. 5 U.S.C. 7123(a)(1). However, if the subject of the griev ance is an adverse employment action covered by 5 U.S.C. 4303 or 7512 (discussed at p. 16, infra), the employee may seek judicial review of the arbitrator's award under 5 U.S.C. 7703 to the same extent as if the matter had been decided by the Merit Systems Protection Board.

The CSRA and the FAA Personnel Management Sys tem identify certain personnel actions as "prohibited per sonnel practice[s]." 5 U.S.C. 2302(a); FAA Pers. Mgmt. Sys. intro. § VIII. Both also identify certain adverse em ployment actions (actions taken because of unacceptable performance, suspensions or reductions in grade, etc.). 5 U.S.C. 4303, 7512; FAA Pers. Mgmt. Sys. ch. III § 3. The CSRA's broad definition of "grievance" (incorporated into the FAA Personnel Management System by 49 U.S.C. 40122(g)(2)(C)) encompasses both prohibited personnel practices and adverse employment actions. See 5 U.S.C. 7103(a)(9)(A) and (a)(9)(C)(ii). Thus, an FAA employee covered by a collective bargaining agreement (CBA) can contest prohibited personnel practices and adverse actions through the grievance procedures established by the CBA.

The CSRA provides administrative remedies, in addi tion to the negotiated grievance procedure, for prohibited personnel practices involving discrimination on the basis of race, sex, religion, age, disability, and other protected grounds, and for certain adverse employment actions. See 5 U.S.C. 2302(b)(1), 4303, 7512. Before 1994, if a grievance was covered by both the negotiated grievance procedure and by other procedures, an employee was required to elect which of those procedures he wished to pursue. 5 U.S.C. 7121(d) and (e)(1) (1988). But if the grievance did not in volve one of those specified prohibited personnel practices or adverse employment actions for which alternative reme dies were preserved, and if the matter was not excluded from the grievance procedures under the CBA, Section 7121(a)(1) provided that the negotiated grievance "proce dures shall be the exclusive procedures for resolving griev ances which fall within its coverage." 5 U.S.C. 7121(a)(1) (1988).

In 1994, Congress added a new subsection (g) to Section 7121, which expanded employees' available options by giv ing employees covered by a CBA a choice of alternative remedies for prohibited personnel practices not previously covered by subsection (d). Act of Oct. 29, 1994, Pub. L. No. 103-424, § 9(b), 108 Stat. 4365. Under the 1994 amendment adding Section 7121(g), employees may challenge a person nel action under the negotiated grievance procedure, or they may elect to pursue available administrative remedies through appeal to the Merit Systems Protection Board (MSPB), or by seeking corrective action from the Office of Special Counsel in the case of a prohibited personnel prac tice. 5 U.S.C. 7121(g). Thus, under current law, where a grievance is covered both by a collective bargaining agree ment's negotiated grievance procedures and by other pro cedures under Section 7121(d), (e) or (g), an employee has a choice of administrative remedies. 5 U.S.C. 7121(d), (e)(1), (g)(2) and (3).

To accommodate the addition of Section 7121(g), Con gress also made what it characterized as "Technical and Conforming Amendments" to Section 7121(a)(1), the provi sion that requires CBAs to have grievance procedures and in general renders those procedures exclusive. Act of Oct. 29, 1994, § 9(c), 108 Stat. 4366. The amendment made two revisions to the second sentence of Section 7121(a)(1): it added subsection (g) to its list of statutory exceptions to the provision making grievance procedures exclusive, and it added the word "administrative" between "exclusive" and "procedures." As amended, Section 7121(a)(1) provides:

Except as provided in paragraph (2) of this subsec tion, any collective bargaining agreement shall pro vide procedures for the settlement of grievances, including questions of arbitrability. Except as pro vided in subsections (d), (e), and (g) of this section, the procedures shall be the exclusive administrative procedures for resolving grievances which fall within its coverage.

5 U.S.C. 7121(a)(1). Section 7121(a)(2) provides that "[a]ny collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement."

3. Petitioner works for the FAA in Alaska as an Air Traffic Assistant. Pet. 2. As an FAA employee "whose duties include responsibility for safety-sensitive functions," petitioner is subject to random testing for illegal use of con trolled substances. 49 U.S.C. 45102(b).

In June 2001, acting pro se, petitioner filed an unfair labor practice charge with the FLRA, alleging that the FAA had subjected him to a disproportionate number of drug and alcohol tests, Pet. App. 13a, and claiming that the FAA's drug and alcohol testing program "does not guaran tee individual rights and the randomness of the selection process is suspect," id. at 3a. The FLRA denied peti tioner's unfair labor practice charge, explaining that it did not fall within the FLRA's jurisdiction because the claim did not allege discrimination based on protected union ac tivity. Ibid. The FLRA explained that, instead, peti tioner's "recourse is through the grievance procedures of the negotiated agreement" between petitioner's union and the FAA. Ibid. (internal quotation marks omitted).

4. Petitioner did not initiate the grievance procedures of the collective bargaining agreement. Pet. App. 3a. In stead, petitioner, again acting pro se, filed suit in federal district court against the Department of Transportation, the parent agency of the FAA. Ibid. Petitioner's complaint alleged that the Department of Transportation had re quired him to take a disproportionate number of drug tests and the agency had thereby "violated Title 49 U.S.C. 5331(d)(8) [and 49 U.S.C. 45104(8)], which state[] that the Secretary of Transportation shall develop requirements that shall 'ensure that employees are selected by nondis criminatory and impartial methods.'" C.A. Supp. E.R. 7-8.2 Petitioner alleged that "[b]y [his] own informal methods," id. at 9, he had determined that he had been subjected to a higher number of drug and alcohol tests than other employ ees. Ibid. Petitioner sought injunctive relief, requesting the district court to require the FAA to conduct "a survey of similarly-situated employees to establish an average number of selections for substance-testing," id. at 11, and an order requiring the FAA to "remedy the situation" if the survey established that petitioner had not been tested ran domly, by, for example, "enjoining the [FAA] from subject ing [petitioner] to any further substance-testing" until simi larly situated employees had been tested as often as he. Ibid.

Petitioner later sought to amend his complaint. In his pro se motion to amend his complaint, petitioner alleged that on September 25, 2002, while he was at work, he had been required to submit to a substance-abuse test to "make up" a test that had been scheduled for August 28, 2002, which petitioner had missed. C.A. Supp. E.R. 25. Peti tioner alleged that no provision of Title 49 of the United States Code authorized the FAA "to conduct a makeup test," id. at 28-29. Petitioner also alleged that "[t]he inci dent on September 25, 2002 violates my First Amendment right to privacy under the Constitution in that it is indistin guishable from having a government team show up at my door while I am off duty to order me to produce a urine sample." Id. at 31.

The district court dismissed petitioner's action for lack of subject matter jurisdiction. The court held that "federal courts have no power to review federal personnel decisions and procedures unless such review is expressly authorized by Congress in the CSRA or elsewhere." Pet. App. 3a (in ternal quotation marks omitted). The court concluded that petitioner's sole remedy was to submit his allegations pur suant to the CBA's procedures (which also provided for binding arbitration), and that his failure to do so precluded judicial review.

5. The court of appeals affirmed. Pet. App. 1a-11a. The court noted that the FAA Personnel Management System, like the CSRA, "is 'an integrated scheme of administrative and judicial review,'" Pet. App. 4a (quoting Fausto, 484 U.S. at 445). The court explained that, although the FAA system generally does not give employees the right to seek review of personnel matters in district court in the first instance, it, like the CSRA, expressly preserves employees' rights under various anti-discrimination laws to sue in dis trict court after exhaustion of administrative remedies. Id.. at 4a-5a. The court further observed that the FAA Person nel Management System incorporates the CSRA provisions governing employee grievances, that Section 7121(a)(1) requires collective bargaining agreements to contain proce dures for settling grievances, and that the collective bar gaining agreement covering petitioner "provides a compre hensive administrative process for redress of his grievance concerning his drug and alcohol testing." Id. at 5a-6a.

The court of appeals then held that the FAA Personnel Management System provided that the grievance proce dures created by the collective bargaining agreement were petitioner's sole remedy and precluded direct action in fed eral court. The court explained that the "well-established rule" is that, in light of the comprehensive remedial scheme provided in the CSRA, courts begin with the presumption that courts "have no power to review federal personnel de cisions and procedures unless such review is expressly au thorized by Congress in the CSRA or elsewhere." Pet. App. 7a (internal quotation marks and citation omitted). Because Section 7121(a)(1) "does not expressly provide for federal court jurisdiction" over employment-related claims that fall within collective bargaining agreements, ibid., the court of appeals concluded that federal courts lack author ity to entertain such claims. The court acknowledged that the Federal Circuit and the Eleventh Circuit had concluded that the 1994 amendments to Section 7121(a)(1) authorized courts to review federal employee grievances. Id. at 6a-7a (citing Asociacion De Empleados Del Area Canalera v. Panama Canal Comm'n, 329 F.3d 1235 (11th Cir. 2003); Mudge v. United States, 308 F.3d 1220 (Fed. Cir. 2002)). The court rejected that position, stating that those courts had concluded that the addition of the word "administra tive" in 1994 implicitly authorized federal court jurisdiction over such claims, but in light of the comprehensiveness of the CSRA remedial scheme, that was an insufficient basis to support federal judicial review of employee grievances. Id. at 9a-10a.

Finally, the court of appeals rejected petitioner's con tention that his grievance should be construed as a prohib ited personnel practice and that the federal courts can re view such claims. Assuming that his grievance could be construed in that way, the court of appeals held that peti tioner was required under the CSRA to seek corrective action from the Office of Special Counsel, and that that ex clusive administrative remedy "preclude[s] judicial review of [petitioner's] claimed 'prohibited personnel practice.'" Pet. App. 10a; see 49 U.S.C. 40122(g)(2)(H) (making CSRA provisions concerning Office of Special Counsel investiga tions of prohibited personnel practices applicable to the FAA).

DISCUSSION

Petitioner contends that this Court's review is war ranted with respect to two issues. First, petitioner con tends (Pet. 6-15) that review is warranted to resolve a con flict in the circuits about whether the 1994 amendment to Section 7121(a)(1) provides for judicial review of federal employees' grievances. Second, petitioner argues (Pet. 16- 25) that the circuits are divided about whether the CSRA precludes courts from granting equitable relief for constitu tional violations.

The court of appeals correctly held that the CSRA does not provide federal employees subject to the FAA Person nel Management System direct judicial review of work-re lated grievances. Nevertheless, we concur with petitioner that certiorari is warranted on the question whether the 1994 amendment to 5 U.S.C. 7121(a)(1) implicitly autho rized judicial review of federal employee grievances. The Court should limit its review to that statutory question, however, because petitioner did not invoke the available grievance procedures before seeking to raise his constitu tional claim, and because that constitutional claim is plainly insubstantial.

1. Petitioner contends (Pet. 12-15) that Section 7121(a)(1), as amended in 1994, should be construed to per mit federal court review of employee grievances because the provision "does not preclude a federal employee's direct recourse to the federal courts." Pet. 12. According to peti tioner, because a distinction is sometimes drawn "between the terms 'administrative' and 'judicial,'" Pet. 13, the 1994 amendment specifying that the grievance procedures pro vided by a CBA are the "exclusive administrative proce dures" for certain employee grievances implies that judi cial procedures are available to review employee griev ances. To hold otherwise, petitioner contends, would ren der the term "administrative" superfluous, contrary to the general rule "that [courts] must, if possible, construe a stat ute to give every word some operative effect." Ibid. (quot ing Cooper Indus., Inc. v. Aviall Servs., Inc., 125 S. Ct. 577, 584 (2004)). That argument lacks merit. The court of ap peals correctly concluded that the 1994 technical and con forming amendment to Section 7121(a)(1) did not authorize judicial review of employee grievances that previously had been foreclosed.

The CSRA "comprehensively overhauled the civil ser vice system," Lindahl v. OPM, 470 U.S. 768, 773 (1985), "prescrib[ing] in great detail the protections and remedies" available to federal employees, "including the availability of administrative and judicial review," United States v. Fausto, 484 U.S. 439, 443 (1988). On a number of occasions, this Court has considered whether federal employees may seek judicial review of work-related disputes where such review is not specifically provided by the CSRA. In each case, the Court has held that federal employees are limited to the remedies explicitly provided by statute. Thus, in Bush v. Lucas, 462 U.S. 367 (1983), the Court refused to recognize an implied cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), to enable a federal employee to sue an agency official for damages for alleged constitutional viola tions in employment. Despite the recognition in other con texts of a damages cause of action against federal officials for constitutional violations, the Court held that it would be "inappropriate" to supplement the "comprehensive proce dural and substantive provisions" regulating federal em ployment with a new judicial remedy. Bush, 462 U.S. at 368.3

Similarly, in Fausto, the Court held that the CSRA's "integrated scheme of administrative and judicial review" precluded federal employees from obtaining judicial review in a suit for back pay under the Tucker Act, 28 U.S.C. 1491, where the CSRA did not explicitly provide for that remedy. 484 U.S. at 445. Considering both the language and the structure of the CSRA, the Court held "that the absence of provision for these employees to obtain judicial review is not an uninformative consequence of the limited scope of the statute, but rather a manifestation of a considered con gressional judgment that they should not have statutory entitlement to review." Id. at 448-449. And in Karahalios v. National Federation of Federal Employees, 489 U.S. 527 (1989), the Court held that judicial enforcement of the duty of fair representation is barred, because the CSRA empow ers the Federal Labor Relations Authority to enforce a un ion's statutory duty of fair representation and because "[t]here is no express suggestion in [the CSRA] that Con gress intended to furnish a parallel remedy in a federal district court to enforce" the duty. Id. at 532.

As the court of appeals correctly concluded, Pet. App. 9a-10a, Congress's 1994 technical amendment to Section 7121(a)(1) did not sub silentio reverse longstanding law and create a new right to judicial review of federal employee grievances. Petitioner does not contend that the addition of the word "administrative" constitutes an express grant of a right of judicial review; rather he argues that the "add[ition] [of] the word 'administrative strongly suggests" that Congress intended to create a right of judicial review. Pet. 14 (emphasis added). But a "suggest[ion]" falls far short of what is required to create a right of judicial review to supplant the remedial system of the CSRA. This Court held twice prior to 1994 that "the CSRA's 'integrated scheme of administrative and judicial review' foreclose[s] an implied right to [district court] review." Karahalios, 489 U.S. at 536 (quoting Fausto, 484 U.S. at 445). By 1994, it was also firmly established in the court of appeals that, in addressing employment-related claims of federal employ ees, courts would not infer a right to judicial review where none was explicitly provided by the comprehensive scheme of the CSRA. As petitioner concedes (Pet. 14), based on that principle, the courts of appeals uniformly had held be fore the 1994 amendment that the CSRA precludes judicial review of various statutory and non-statutory claims unless the Act expressly provided for such review.4 There is thus no reason to believe that Congress would have thought in 1994 that the mere insertion of the word "administrative" in 5 U.S.C. 7121(a)(1) would suffice to create a new inde pendent right to judicial review of matters subject to griev ance procedures under a CBA.

Petitioner's reading of Section 7121(a)(1) is also con trary to the statutory scheme embodied in the CSRA. As discussed above, where an employee's position is covered by a CBA, the CSRA channels employee grievances through negotiated grievance procedures unless the subject matter of the grievance falls in an express statutory excep tion or has been specifically excluded from coverage by the CBA itself. If those procedures do not resolve the griev ance, either the union or the agency may invoke binding arbitration, 5 U.S.C. 7121(b)(1)(C)(iii), with subsequent review of the arbitrator's decision by the FLRA, 5 U.S.C. 7122(a). That structure reflects "the Congressionally un ambiguous and unmistakable preference for exclusivity of arbitration[, which] is a central part of the comprehensive overhaul of the civil service system provided by the CSRA." Muniz v. United States, 972 F.2d 1304, 1309 (Fed. Cir. 1992). "To hold that the district courts must entertain such cases in the first instance would seriously undermine what [the Court] deem[s] to be the congressional scheme." Karahalios, 489 U.S. at 536-537; accord Fausto, 484 U.S. at 449 (holding that judicial review outside the framework of the CSRA was incompatible with various "structural ele ments" of the CSRA, such as "the primacy of the MSPB for administrative resolution of disputes over adverse person nel action, and the primacy of the United States Court of Appeals for the Federal Circuit for judicial review").

That conclusion is reinforced by the fact that Congress expressly provided for a right of judicial review on the part of the employee in one specific situation in which a dispute has been submitted to grievance procedures under a CBA: if the matter involves an adverse employment action cov ered by 5 U.S.C. 4303 or 7512, the employee may seek judi cial review of the arbitrator's award under 5 U.S.C. 7703 in the same manner and under the same conditions as if it had been rendered by the Merit Systems Protection Board. Congress's provision of an express right of judicial review for such matters underscores that review of grievances is precluded in other circumstances. See Fausto, 484 U.S. at 447-450; United States v. Erika, Inc., 456 U.S. 201, 208 (1982).

Indeed, petitioner's construction of the amended Sec tion 7121(a) produces an anomalous result that Congress should not lightly be deemed to have intended. Federal agencies have established their own grievance procedures for employees who are not covered by CBAs and therefore are not subject to the grievance procedures contained in such agreements. See 5 C.F.R. 771.201 (1994) (requiring establishment of grievance procedures).5 The courts of appeals uniformly have held that the CSRA precludes em ployees subject to an agency's grievance procedures from bypassing those procedures and seeking judicial consider ation of their grievances. See, e.g., Pinar v. Dole, 774 F.2d 899, 905-907 (4th Cir. 1984), cert. denied, 471 U.S. 1016 (1985); Carducci v. Regan, 714 F.2d 171, 172-175 (D.C. Cir. 1983); Broadway v. Block, 694 F.2d 979, 982-983 (5th Cir. 1982); see also Bobula v. DOJ, 970 F.2d 854, 856, 858 (Fed. Cir. 1992) (refusing to enforce settlement agreement that resolved grievances asserted through agency's grievance procedures because CSRA does not authorize judicial en forcement of such settlement agreements). Under peti tioner's interpretation of Section 7121 and the 1994 amend ments, however, federal employees subject to a CBA may now avoid the grievance procedures established by the CBA and present their grievances directly to the courts without resort to any administrative procedures at all. But because Section 7121 applies only to grievance procedures established by CBAs, federal employees who are not sub ject to CBAs would remain limited to pursuing their agen cies' internal grievance procedures and would be precluded from obtaining judicial review. That preferential treatment of employees subject to CBAs makes little sense. Griev ance procedures established by CBAs are the product of an agreement between a federal agency and a union, the fed eral employee's bargaining representative. There is no reason to believe that Congress intended to grant federal employees a right to bypass grievance procedures that are the product of collective bargaining and go directly to court-even for minor disputes-while at the same time continuing to subject other federal employees to grievance procedures over which they had no say and continuing to foreclose judicial review for such employees except in cases of significant adverse employment actions covered by 5 U.S.C. 4303 or 7512 or cases involving alleged discrimination. /P>

Petitioner's construction also is contrary to this Court's admonition that courts should be cautious about interpret ing technical and conforming amendments to make sub stantive changes to the law where "there is no indication that Congress intended to change" the law. Director of Rev. v. CoBank ACB, 531 U.S. 316, 323 (2001). Conforming amendments are typically added for the sake of clarity and are not intended to change legal standards.6 See, e.g., INS v. Stevic, 467 U.S. 407, 428 (1984). Petitioner's reading "would mean that Congress made a radical-but entirely implicit-change" in the 1994 amendment. CoBank, 531 U.S. at 324. "[I]t would be surprising, indeed, if Congress" had done that "sub silentio." Id. at 323; see Mudge v. United States, 50 Fed. Cl. 500, 506 (2001) ("We find it in conceivable that Congress intended to alter this basic struc tural reform of the Civil Service Reform Act by a one-word change that was introduced as a technical amendment with out discussion, explanation, or debate."), rev'd, 308 F.3d 1220 (Fed. Cir. 2002).

Petitioner errs in contending that reading the 1994 amendment not to create a judicial remedy would deprive the amended language of meaning. The conforming amend ment that added "administrative" to Section 7121(a)(1) served to clarify the remedies available to federal employ ees for grievances. As explained above, the 1994 amend ments added a new subsection (g) to Section 7121, which gave federal employees a choice of administrative remedies for grievances concerning prohibited personnel practices other than discriminatory personnel actions. Similarly, under subsections (d) and (e), federal employees have a choice of administrative remedies for addressing grievances relating to discriminatory personnel practices and adverse actions. The conforming amendment clarified and con firmed that, except for those three circumstances, the nego tiated grievance procedures "shall be the exclusive adminis trative procedures" for federal employee grievances, 5 U.S.C. 7121(a)(1), and at the same time preserved judicial review of administrative decisions rendered under the other provisions that remain available to employees under subsections (d), (e) and (g). The reference to "exclusive administrative procedures" in Section 7121(a)(1) also con firms that under subsection (f), which provides that even where an employee has elected to pursue administrative grievance procedures, the employee retains a right of judi cial review if the subject matter of the grievance is an ad verse employment action covered by 5 U.S.C. 4303 or 7512.

2. As petitioner observes (Pet. 6-10), the courts of ap peals have reached conflicting conclusions about whether the 1994 amendment to 49 U.S.C. 7121(a)(1) authorizes judicial review of federal employee grievances. The Fed eral Circuit held that the amendment implicitly reversed established law and authorizes judicial review of federal employee grievances. Mudge v. United States, 308 F.3d 1220, 1228-1230 (2002). The court concluded that because amended Section 7121(a)(1) "no longer restricts a federal employee's right to pursue an employment grievance in court," judicial review is now available. Id. at 1232. The court reasoned that because "administrative" is sometimes used to "distinguish from such [functions and acts] as are judicial," id. at 1228 (quoting Black's Law Dictionary 45 (6th ed. 1990), the provision stating that Section 7121(a)(1) limited only "the administrative resolution of a federal em ployee's grievances" implicitly placed no limitation on "an employee's right to seek a judicial remedy for such griev ance." Id. at 1228. Although the Federal Circuit acknowl edged Congress's "unambiguous and unmistakable prefer ence f[or] exclusivity of arbitration," id. at 1231 (quoting Muniz, 972 F.2d at 1309), it held that the "plain language" of amended Section 7121(a)(1) overrode "these policy con cerns." Mudge, 308 F.3d at 1231-1232. In Asociacion De Empleados Del Area Canalera v. Panama Canal Comm'n, 329 F.3d 1235 (2003), the Eleventh Circuit explic itly "adopt[ed] th[e] reasoning" of Mudge "on all * * * points," id. at 1241, "hold[ing] that Congress's addition of the word 'administrative' to § 7121(a)(1) established a fed eral employee's right to seek a judicial remedy for employ ment grievances subject to the negotiated grievance proce dures contained in [the] collective bargaining agreement." Ibid.

The Ninth Circuit correctly rejected that construction. Pet. App. 8a-9a. It concluded that "[t]he Mudge/ASEDAC implicit-authorization approach is inconsistent * * * with principles the Supreme Court has approved"-specifically, that in light of the integrated and comprehensive nature of CSRA, courts should not infer judicial remedies. Id. at 9a (citations omitted). The Ninth Circuit held that, consistent with the principles established in Karahalios and Fausto, courts should recognize a right of judicial review under a comprehensive scheme such as that created by the FAA Personnel Management System or the CSRA only where it is "express[ly] grant[ed]." Id. at 10a. There is thus a clear multi-circuit conflict on the proper analysis of the 1994 amendment to Section 7121(a)(1). Because all three courts have denied rehearing en banc on this issue, see Pet. App. 16a; 2/7/03 Order at 1, Mudge v. United States, supra (No. 02-5024); 8/19/03 Order at 1, ASEDAC v. Panama Canal Comm'n, supra (No. 02-13789), the conflict likely will per sist absent this Court's intervention.

Moreover, this case implicates a recurring issue of con siderable practical importance both to the Nation's largest employer and its employees. The rule adopted by the Fed eral Circuit and Eleventh Circuit could require the federal government to litigate employee grievances in federal court in the first instance, involving considerable delay and addi tional expense compared to the traditional-and congres sionally preferred-remedy of addressing such claims through the negotiated grievance process, followed by the availability of binding arbitration. Because employment grievances of the sort governed by Section 7121(a)(1) are exceptionally common, the rule adopted by the Federal and Eleventh Circuits would create a significant litigation bur den on the federal government. That approach also under mines the government's ability to seek to resolve com plaints informally through the grievance process, under mines the role of the collective bargaining representative in resolving grievances, and undermines the advantages of arbitration in bringing about an expeditious and consistent resolution of disputes for the benefit of all employees in the workplace. The circuit conflict also creates an untenable lack of uniformity in federal employment law. Accordingly, this Court's review is warranted.

3. Petitioner contends (Pet. 21-25) that the CSRA should be construed to permit judicial review of a federal employee's grievances when the employee seeks equitable relief for an alleged constitutional violation. Petitioner con tends (Pet. 21) that, because the CSRA precludes federal employees' suits for money damages for violation of a con stitutional right, see Bush v. Lucas, 462 U.S. at 368, con struing the statute to preclude judicial review of a constitu tional claim for equitable relief would have "the effect of stripping all courts of jurisdiction to review" employment- related constitutional claims of federal employees. In peti tioner's view, the CSRA should be construed to avoid the "serious constitutional question" that would be presented if "a federal statute were construed to deny any judicial forum for a colorable constitutional claim." Pet. 25 (quoting Webster v. Doe, 486 U.S. 592, 603 (1988)).7 Petitioner also maintains (Pet. 16-21) that the courts of appeals are divided about whether the CSRA affords equitable remedies for constitutional violations. Review of this contention is not warranted at this time.

Petitioner is correct that the courts of appeals have reached different conclusions on the narrow question of the availability of equitable relief under the CSRA for employ ment-related injuries, including constitutional claims. The majority of the circuits that have addressed the question have held that the comprehensive nature of the CSRA pre cludes equitable remedies for employment-related injuries, just as it excludes other forms of judicial relief not ex pressly provided by the statute. See Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991); Lombardi v. SBA, 889 F.2d 959, 961-962 (10th Cir. 1989); Berrios v. Department of the Army, 884 F.2d 28, 31 (1st Cir. 1989); Hallock v. Mo ses, 731 F.2d 754, 757 (11th Cir. 1984); see also Pinar, 747 F.2d at 909-912 (holding that CSRA precludes equitable relief, at least where constitutional injury is not major). The Third Circuit, by contrast, has held that the CSRA does not prevent a federal employee from seeking equitable relief for a constitutional employment claim. Mitchum v. Hurt, 73 F.3d 30, 35-36 (1995). The District of Columbia Circuit has held that equitable relief is available for federal employees asserting constitutional claims, but it generally requires exhaustion of administrative remedies as a prereq uisite to bringing suit. See Steadman v. Governor, United States Soldiers' & Airmen's Home, 918 F.2d 963, 967 (1990) ("Only in the unusual case in which the constitutional claim raises issues totally unrelated to the CSRA procedures can a party come directly to district court.").

Nevertheless, review of this contention is not war ranted. Petitioner failed to make use of the comprehensive scheme of administrative relief afforded to him by the FAA and CSRA. The rule is well established that where "a con stitutional claim is intertwined with a statutory one," and "machinery" exists "for the resolution of the latter, a plain tiff must first pursue the administrative machinery." Steadman, 918 F.2d at 967. That principle applies even when the administrative process could not even resolve the constitutional claim, as long as the claim could be consid ered later upon judicial review. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994). The process of "[p]roceeding through the agency in this way provides the agency the opportunity to reconsider its policies, interpre tations, and regulations in light of those challenges." Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 24 (2000).8 It also affords responsible decision-mak ers an opportunity to address the matter in the first in stance and grant relief on non-constitutional grounds, per haps informed by principles of constitutional avoidance, thereby obviating any occasion for addressing a constitu tional claim in court.

As noted above, petitioner could have sought to resolve his claims through the grievance procedure negotiated by the FAA and petitioner's union. See National Agreement Between the Nat'l Ass'n of Gov't Employees and the FAA art. 13 (May 26, 1998).9 If that procedure did not resolve petitioner's various grievances, his union could have in voked binding arbitration. See id. art. 14; 5 U.S.C. 7121(b)(1)(C)(iii) (requiring CBAs to contain provisions for binding arbitration). And petitioner's union could have sought review of the arbitrator's decision from the FLRA. 5 U.S.C. 7122. To the extent that petitioner alleged a pro hibited personnel practice (Pet. 15 n.6; Pet. App. 10a), he had a choice of either seeking corrective action from the Office of Special Counsel (5 U.S.C. 1211-1218; 49 U.S.C. 40122(g)(2)(H)), or pursuing a grievance and seeking equi table relief, if necessary, from the arbitrator (5 U.S.C. 7121(b)(2)(A)(i) (authorizing arbitrator to stay personnel actions)).10 See 5 U.S.C. 7121(g) (requiring election of rem edies).

If at the conclusion of the administrative process peti tioner were dissatisfied with the result, and if he believed a constitutional issue remained, he could have brought a suit at that time arguing that the court should consider his constitutional claim. At that point, the court could have the benefit of a final decision on all of petitioner's claims after full administrative process, the asserted constitutional claim would be brought more sharply into focus, and argu ments concerning judicial review could address not only whether equitable relief is available at all, but also in what forum such relief might be sought, cf. American Fed'n of Gov't Employees v. Loy, 367 F.3d 932, 936-937 (D.C. Cir. 2004), what the conditions for obtaining any such relief might be, and the nature and scope of judicial review if it might be available in certain circumstances. This case, by contrast, comes to the Court presenting the issue of the availability of judicial review for constitutional claims in the abstract. Even if the issue otherwise might warrant certio rari at some point, the Court should await a case in which the applicable administrative procedures have been invoked and there is a final decision under those procedures.11

Review also is not warranted because the constitutional claim petitioner actually asserted in this case is insubstan tial. Even construing petitioner's pro se complaint and mo tion to amend his complaint liberally, see Hughes v. Rowe, 449 U.S. 5, 15 (1980) (per curiam), the only constitutional claim petitioner has raised is that the FAA violated a right to privacy he asserts under the First Amendment by sub jecting him to a make-up drug urinalysis test at work on September 25, 2002, which he claimed was the equivalent of an involuntary test performed at his home outside of work ing hours. C.A. Supp. E.R. 31 ("The incident on September 25, 2002 violates my First Amendment right to privacy un der the Constitution in that it is indistinguishable from hav ing a government team show up at my door while I am off duty to order me to produce a urine sample."). There is no basis for a First Amendment claim in those circumstances. The complaint does not contend that the alleged lack of randomness in testing or any other aspects of the testing program generally violated the Fourth Amendment or peti tioner's constitutional rights to equal protection or due pro cess of law.

Moreover, petitioner has presented no argument in any of his filings in the courts below, nor pointed to any facts in the record, to suggest how the make-up test could have violated his privacy rights. See Pet. C.A. Br. 19 (simply asserting that test violated his "First Amendment right to privacy"); id. at 22; see also Plaintiff's Opp. to Def. Mot. to Dismiss 7-8. This Court has made clear that "the expecta tions of privacy of * * * employees are diminished by rea son of their participation in an industry that is regulated pervasively to ensure safety," Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 626-627 (1989), and has held that breath, blood, and urine testing for drug use does not impermissibly interfere with railroad employees' Fourth Amendment privacy interests. Ibid. Petitioner does not contest that air travel, like railroad transportation, is heavily regulated to ensure safety, nor does he contest that, as an Air Traffic Assistant, petitioner is an employee "whose duties include responsibility for safety-sensitive functions." 49 U.S.C. 45102(b). In light of petitioner's di minished expectation of privacy, he has pointed to nothing to suggest that subjecting him to a make-up urinalysis test at work violated his privacy interests. Such an insubstan tial claim would not even implicate the concerns petitioner presents that a "'serious constitutional question' * * * would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.'" Pet. 25 (quoting Webster v. Doe, 486 U.S. at 603) (emphasis added).

For the foregoing reasons, this case does not present a suitable vehicle for considering whether judicial review might be available in some circumstances in some forum to obtain equitable relief for an alleged constitutional violation where judicial review is not otherwise provided under the comprehensive regime of the CSRA itself.

CONCLUSION

The petition for a writ of certiorari should be granted limited to the first question presented by the petition.

Respectfully submitted.

Paul D. Clement
Acting Solicitor General
Peter D. Keisler
Assistant Attorney General
William Kanter
Lewis S. Yelin
Attorneys

JUNE 2005

1 In addition, the statute excludes from the grievance process specific categories of disputes, including prohibited political activities, retirement, life or health insurance, a suspension or removal for national security purposes, classification of positions that do not result in a reduction of grade, and examination, certification, or appointment. 5 U.S.C. 7121(c). Those exceptions are not relevant here.

2 Section 5331(d)(8) of Title 49 provides that, in carrying out alcohol and drug testing programs, the Secretary of Transportation shall prescribe regulations to "ensure that employees are selected for tests by nondiscriminatory and impartial methods, so that no employee is harassed by being treated differently from employees in similar cir cumstances." A similar requirement is set forth in 49 U.S.C. 45104(8).

3 Although Bush was decided after the enactment of the CSRA, it concerned the federal personnel system the CSRA replaced. This Court has cited Bush for the principle that a comprehensive personnel system precludes judicial remedies not provided for by the system. See Karahalios v. National Fed'n of Fed. Employees, 489 U.S. 527, 536 (1989).

4 See, e.g., Berrios v. Department of the Army, 884 F.2d 28, 31-32 (1st Cir. 1989) (state law tort claim); O'Connell v. Hove, 22 F.3d 463, 470-471 (2d Cir. 1994) (Fair Labor Standards Act (FLSA) overtime claim); Pinar v. Dole, 747 F.2d 899, 910-911 (4th Cir. 1984) (prohibited personnel practice), cert. denied, 471 U.S. 1016 (1985); Morales v. Department of the Army, 947 F.2d 766, 768-769 (5th Cir. 1991) (Federal Tort Claims Act (FTCA) claim); Jones v. TVA, 948 F.2d 258, 265 (6th Cir. 1991) (claim under 42 U.S.C. 1985(1)); Schrachta v. Curtis, 752 F.2d 1257, 1259-1260 (7th Cir. 1985) (adverse personnel action); Pre machandra v. United States, 739 F.2d 392, 393-394 (8th Cir. 1984) (FTCA claim); Rivera v. United States, 924 F.2d 948, 951-952 (9th Cir. 1991) (FTCA claim); Petrini v. Howard, 918 F.2d 1482, 1484-1485 (10th Cir. 1990) (state law tort claim); Broughton v. Courtney, 861 F.2d 639, 644 (11th Cir. 1988) (state law tort claim); National Treasury Em ployees Union v. Egger, 783 F.2d 1114, 1117 (D.C. Cir. 1986) (pro hibited personnel practice); Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir.) (FLSA overtime claim), cert. denied, 498 U.S. 811 (1990), superseded by statute as stated in Mudge v. United States, 308 F.3d 1220, 1227, 1230 (Fed. Cir. 2002) (holding that Carter was overruled by 1994 amendment).

5 The Office of Personnel Management rescinded the regulations governing agency administrative grievance procedures to permit agencies greater flexibility in the establishment of grievance systems. OPM, Agency Administrative Grievance System, 60 Fed. Reg. 47,039 (1995). But each agency was required to maintain its previously estab lished grievance systems until the system was either modified or replaced. 5 C.F.R. 771.101.

6 Thus, the "presumption that statutes are usually enacted to change existing law," on which petitioner relies (Pet. 14) (quoting Wallace v. Jaffree, 472 U.S. 38, 59 n.48 (1985), is not generally applicable to tech nical and conforming amendments.

7 A related issue has been raised by another petition now pending before the Court. The petition filed in Dotson v. Griesa, No. 04-1276 (Mar. 22, 2005), presents two issues. The first is whether a Judicial Branch employee who is an "excepted employee" under the Civil Service Reform Act, Pub. L. No. 95-454, 92 Stat. 111, is precluded from seeking equitable relief in a lawsuit challenging the termination of his employment on constitutional grounds. The petition also presents the question whether a cause of action for damages should be inferred under Bivens v. Six Unknown Named Agents of Fed. Bureau of Nar cotics, 403 U.S. 388 (1971), against federal District Court judges and other judicial personnel in the employment context. The government's brief in opposition in that case takes the position that the petition for a writ of certiorari should be denied on both issues. To the extent that the Court is inclined to consider the availability of injunctive relief for constitutional claims otherwise subject to the CSRA's comprehensive remedial system, this case provides the better vehicle because it does not involve the special considerations implicated by the Article III setting of Dotson.

8 Accord Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 874 (D.C. Cir. 2002); Association of Civilian Technicians, Tony Kempenich Mem'l Chapter 21 v. FLRA, 269 F.3d 1119, 1122 (D.C. Cir. 2001).

9 The CBA that covered petitioner at all times relevant to this liti gation is available at http://www.faa.gov/ahr/policy/agree/agrees/term/ nage/nage.cfm.

10 Petitioner contends (Pet. 15 n.6) that the court of appeals erred in holding that petitioner could seek corrective action from the Office of Special Counsel for prohibited personnel practices. He notes that the prohibited personnel practices provisions of Title 5 do not generally apply to FAA employees and that OSC's web site indicates that it only has jurisdiction over complaints of FAA employees alleging retaliation for whistleblowing. Petitioner's contention is mistaken. 49 U.S.C. 40122(g)(2)(H) makes applicable to the FAA 5 U.S.C. 1214, which directs the Special Counsel to "receive any allegation of a prohibited personnel practice and [to] investigate the allegation." 5 U.S.C. 1214(a)(1)(A). Although the FAA is not subject to the prohibited per sonnel practices listed in the CSRA at 5 U.S.C. 2302(a), the FAA Per sonnel Management System has its own list of prohibited personnel practices, which are a subset of those contained in the CSRA, FAA Pers. Mgmt. Sys. intro. § VIII. 49 U.S.C. 40122(g)(2)(H) thus auth orizes the Special Counsel to investigate allegations by FAA employees of prohibited personnel practices.

11 To be sure, petitioner no more exhausted his statutory claims than his constitutional ones. Nonetheless, the failure to exhaust his consti tutional claims counsels against plenary review for two reasons, neither of which applies to the statutory claims. First, to the extent that petitioner suggests (for the first time in this Court) that constitutional avoidance principles require greater review of constitutional claims, similar considerations might have informed the nature of the bypassed administrative review or the extent of judicial review after administra tive remedies were exhausted. Neither of those issues-which could inform the availability of de novo judicial review in district court-has been explored in this case. Second, in light of the failure to exhaust, petitioner would not be entitled to relief even if the Court adopted the D.C. Circuit's variant of the rule petitioner seeks. See p. 23, supra (dis cussing Steadman). With respect to the statutory question, by con trast, it does not appear that the courts of appeals have focused on the need to exhaust.