Wednesday, December 29, 2004

Circuit split regarding federal court jurisdiction over federal employees’ claims covered by negotiated grievance procedures

Disagreeing with the Federal and Eleventh Circuits, the Ninth Circuit recently held that federal courts lack subject matter jurisdiction over claims covered by the negotiated grievance procedures of federal employees’ collective bargaining agreements. Whitman v. Dep’t of Transportation, 382 F.3d 938 (9th Cir. 2004).

The Civil Service Reform Act provides that the grievance procedures contained in a collective bargaining agreement covering federal employees “shall be the exclusive administrative procedures for resolving grievances which fall within its coverage,” with certain very limited exceptions. 5 U.S.C. § 7121(a)(1) (emphasis added). Congress added the word “administrative” to § 7121(a)(1) in 1994. Before 1994, that section provided that the grievance procedures “shall be the exclusive procedures for resolving grievances which fall within its coverage.” The courts interpreted the old version of § 7121(a)(1) as stripping the federal courts of subject matter jurisdiction over grievable claims.

The Federal and Eleventh Circuits have held that § 7121(a)(1) no longer strips federal courts of subject matter jurisdiction. Those courts reasoned that, by adding the word “administrative,” Congress signaled an intent to no longer restrict judicial remedies. Associacion 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). Hence, absent some other bar to subject matter jurisdiction, federal employees may bring their grievable claim in federal court, according to these Circuits.

In contrast, the Ninth Circuit cited its general rule 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.” Applying this rule, the Ninth Circuit held that “5 U.S.C. § 7121(a)(1) preempts employment related claims which fall within collective bargaining agreements because the statute does not expressly provide for federal court jurisdiction over such claims.”

The plaintiff-appellant in the Ninth Circuit decision has petitioned for rehearing en banc. If rehearing is denied, expect a cert. petition.

UPDATE: The Ninth Circuit denied the petition for rehearing en banc.

UPDATE: The plaintiff-appellant filed a cert petition on February 22, 2005. He is represented by Thomas Golstein, Amy Howe, and Pamela Karlan, with the assistance of the Harvard Law School Supreme Court Litigation class.


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