Wedging Open the Courthouse Doors: Federal Employee Access to Judicial Review of Constitutional and Statutory Claims

Barbara A. Atkin, National Treasury Employees Union
Elaine Kaplan, NationalTreasury Employees Union
Gregory O'Duden, National Treasury Employees Union

Abstract

This article addresses, in a comprehensive fashion, jurisdictional barriers that federal employees face in obtaining judicial review of statutory and constitutional claims. Many statutory claims that employees had previously brought in federal court are now precluded entirely by the Civil Service Reform Act of 1978. Courts, however, retain jurisdiction where there are independent jurisdictional bases for review. They also traditionally have preserved their jurisdiction to grant equitable relief for constitutional violations. Determination of those types of government action for which Congress intended the CSRA remedies to be exclusive has been hotly litigated. In addition, even when the claims are not precluded by the CSRA, government defendants are increasingly arguing that administrative remedies, including the grievance-arbitration process, must be exhausted before claims may be brought in court. The Supreme Court appeared poised to address these issues in the October Term of 2005 but ultimately addressed only a narrow issue, remanding the broader issues of preclusion and exhaustion to the lower courts for further exploration. Whitman v. FAA, 126 S.Ct. 2014 (2006). We examine those issues with respect of the different types of statutory and constitutional claims and the various administrative routes available, in an attempt to shed light on the relevant considerations that should inform the courts’ decision.