Whitman v. Department of Transp.

• Decision Date: 30 August 2004
• Docket Number: No. 03-35303.,03-35303.
• Citation: 382 F.3d 938
• Parties: Terry L. WHITMAN, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION; Norman Y. Mineta, U.S. Secretary of Transportation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 938

382 F.3d 938

Terry L. WHITMAN, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION; Norman Y. Mineta, U.S. Secretary of Transportation, Defendants-Appellees.

No. 03-35303.

United States Court of Appeals, Ninth Circuit.

Submitted July 7, 2004.^*

Filed August 30, 2004.

Terry L. Whitman, Anchorage, AK, in pro per plaintiff-appellant.

Peter D. Keisler, Assistant Attorney General, Timothy M. Burgess, United States Attorney, William Kanter and Lewis S. Yelin, Attorneys, Appellate Staff, Civil Division, United States Department of Justice, for the defendant-appellee.

Appeal from the United States District Court for the District of Alaska; Ralph R. Beistline, District Judge, Presiding. D.C. No. CV-02-00112-A-RRB.

Before HALL, KLEINFELD, and WARDLAW, Circuit Judges.

WARDLAW, Circuit Judge:

Terry L. Whitman claims that his employer, the Federal Aviation Administration ("FAA"), an agency within the United States Department of Transportation ("DOT"), violated his rights under 49 U.S.C. § 45104(8) and the First Amendment by disproportionately testing him for substance abuse. Concluding that (i) the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 7101 et seq., governs Whitman's employment grievance against the FAA; (ii) the CSRA does not expressly confer federal court jurisdiction over such claims; and (iii) Whitman's sole remedy lies with the negotiated grievance procedures set forth in the collective bargaining agreement ("CBA") between the FAA and the National Association of Government Employees ("NAGE"), the district court dismissed Whitman's action. We affirm¹ because 5 U.S.C. § 7121(a)(1), as amended in 1994, does not expressly confer federal court jurisdiction over employment-related claims covered by the negotiated grievance procedures of federal employees' collective bargaining agreements. See Golt v. United States, 186 F.3d 1158, 1164 (9th Cir.1999).

I

Federal law mandates random substance-abuse tests for FAA employees "whose duties include responsibility for safety-sensitive functions." 49 U.S.C. § 45102(b)(1). Employee selection for such testing must be accomplished by "nondiscriminatory and impartial methods." Id. § 45104(8). Whitman is employed by the FAA as an air traffic assistant at the Anchorage Air Route Traffic Control Center. DOT regulations specifically require drug and alcohol testing of FAA air traffic assistants.² DOT and FAA regulations provide detailed requirements for the random selection of employees for such testing.³

Because Whitman believed that he had been selected for testing three times more often than similarly situated employees, he filed with the Federal Labor Relations Agency ("FLRA") a charge against the FAA, alleging that its drug and alcohol testing program "does not guarantee individual rights and the randomness of the selection process is suspect." The FLRA responded that Whitman's claim was not within its jurisdiction because he had not alleged that the disproportionate testing was "discrimination against him based on protected union activity." It further explained that the substance-abuse testing program was a condition of Whitman's employment, the terms of which were established by the CBA. The FLRA concluded "that [Whitman's] recourse is through the grievance procedures of the negotiated agreement." It denied Whitman's request for reconsideration. Although Whitman does not dispute CBA coverage, he has never initiated the grievance procedures of that agreement.

Instead, Whitman filed an amended complaint in the district court, alleging that his employer's misapplication of the DOT/FAA random substance-abuse testing procedures violated his rights under 49 U.S.C. § 5331(d)(8) (now codified at 49 U.S.C. § 45104(8)), as well as his "First Amendment right to privacy." He requested injunctive relief in the form of an order requiring a survey of other employees to determine how often they were tested and, if the survey were to establish that testing was not random, that the FAA "remedy the situation" by, for example, enjoining any further testing of him until similarly situated employees were tested as often as he.

Quoting Veit v. Heckler, 746 F.2d 508, 511 (9th Cir.1984), the district court dismissed Whitman's action for lack of subject matter jurisdiction because his claims fall within the scope of the CSRA, under which "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." Whitman's appropriate and sole remedy, as recognized in the CSRA, was to grieve his allegations pursuant to the CBA procedures, and his failure to do so precluded judicial review. Finally, the district court found the CSRA procedures also preempted Whitman's constitutional claim. See Russell v. United States Dep't of the Army, 191 F.3d 1016, 1020 (9th Cir.1999) ("[T]he CSRA preempts Bivens actions and other suits for constitutional violations arising from governmental personnel actions.").

II

A

Although the government argued, and the district court apparently agreed, that Whitman's employment rights are governed by the CSRA, the government now clarifies that it is actually the FAA Personnel Management System ("FAA System") that governs the employment rights of FAA employees.⁴ The FAA System incorporates certain relevant provisions of the CSRA through a series of laws enacted by Congress in 1996. See 49 U.S.C. § 40122(g)(2). Congress also made other CSRA provisions inapplicable to FAA employees and directed the FAA to develop a unique system of regulations to fill in the gaps, see id. § 40122(g)(1), thus establishing a "single unified personnel policy" for FAA employees. Saul v. United States, 928 F.2d 829, 833 (9th Cir.1991) (discussing the CSRA).

Like the CSRA, the FAA System is "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, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (describing the CSRA). While the FAA System generally does not give employees the right to seek review of personnel matters in district court, like the CSRA, it expressly preserves employees' rights under various anti-discrimination laws to sue in district court after exhaustion of administrative remedies. See FAA System, Introduction § VIII(b)(ii) (recognizing FAA employees' rights to sue under the Civil Rights Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Rehabilitation Act, among others).

The FAA System incorporates Chapter 71 of title 5, United States Code § 7101 et seq., which governs review of grievances by employees who are subject to a negotiated collective bargaining agreement. See 49 U.S.C. § 40122(g)(2)(C). Therefore, despite the direct reference to the CSRA, the district court actually applied the correct law in deciding the government's motion to dismiss for lack of subject matter jurisdiction. See, e.g., Mudge v. United States, 308 F.3d 1220 (Fed.Cir.2002) (analyzing whether federal courts have jurisdiction under the CSRA over an FAA employee's employment-related claims).

B

The CSRA broadly defines "grievance" to include an employee's complaint "concerning any matter relating to the employment of the employee" and "any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment." 5 U.S.C. § 7103(a)(9)(A); id. § 7103(a)(9)(C)(ii). So defined, the term encompasses Whitman's allegations that the FAA tested him for substance abuse disproportionately, in violation of his rights under 49 U.S.C. § 45104(8) and the First Amendment.

The CSRA requires that collective bargaining agreements provide negotiated procedures for the resolution of employee grievances. Section 7121(a)(1) states:

[A]ny collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d), (e), and (g) of this section, [none of which applies in this case] the procedures shall be the exclusive administrative procedures for resolving grievances which fall within its coverage.

In accordance with this requirement, and as the FLRA informed Whitman, CBA Article 13 provides a comprehensive administrative process for redress of his grievance concerning his drug and alcohol testing.⁵

The issue before us is whether Whitman may also pursue his employment-related claims in federal court.

III

A

Before the 1994 amendment, CSRA § 7121(a)(1) provided that the required grievance procedures in a collective bargaining agreement "shall be the exclusive procedures for resolving grievances which fall within its coverage." In 1994, without explanation, Congress amended the statute to read that the required grievance procedures "shall be the exclusive administrative procedures for resolving grievances which fall within its coverage." 5 U.S.C. § 7121(a) (emphasis added).

Interpreting this amendment, the Federal and Eleventh Circuits recently held that "Congress's addition of the word `administrative' to § 7121(a)(1) established a federal employee's right to seek a judicial remedy for employment grievances subject to the negotiated procedures contained in his or her CBA." Mudge, 308 F.3d at 1227; see also Asociacion De Empleados Del Area Canalera (ASEDAC) v. Panama Canal Comm'n, 329 F.3d 1235, 1241 (11th Cir.2003) (adopting Mudge's reasoning in full). The Federal Circuit interpreted the statute's text:

The plain language of § 7121(a)(1) as amended is ... clear: while § 7121(a)(1) limits the administrative resolution of a federal employee's grievances to the negotiated procedures set forth in his or her CBA, the text of the statute does not restrict an employee's right to seek a judicial remedy for such grievances.

....

... The plain language of amended § 7121(a)...