Or to put things more lawyer-y, the 5th Circuit doesn't currently have jurisdiction over this case, and the plaintiff's claim isn't ripe yet, as they haven't actually received injury. Doesn't matter that the prospective harm is known and certain, it hasn't actually been completed yet. Until then, CSRA controls the processes the plaintiffs have to go through.
In response, Congress enacted the CSRA, which imposed “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.”
“Under the [CSRA], certain federal employees may obtain administrative and judicial review of specified adverse employment actions.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 5 (2012). “Subchapter II of Chapter 75 governs review of major adverse actions taken against employees ‘for such cause as will promote the efficiency of the service.’” Id. (quoting 5 U.S.C.
§§ 7503(a), 7513(a)). These provisions apply to employees in the competitive service and to certain excepted service employees.2 5 U.S.C. § 7511(a)(1). They provide procedural protections when eligible employees face major adverse actions, which includes removals, suspensions for more than fourteen days, pay or grade reductions, and furloughs lasting thirty days or less.
Possible impending harm vs. harm that has already come to pass -- the aggrieved employee has to experience harm, bitch to the Merit Systems Protection Board (“MSPB”) about it, listen to their response, and
then, if they're not satisfied, they can sue. No skipping the pain allowed.
The CSRA distinguishes between employees facing “proposed” adverse action and those who have already suffered adverse action. See 5 U.S.C. § 7513(b), (d). Employees facing “proposed” action are entitled to notice, an opportunity to respond, legal representation, and written reasons supporting the employing agency’s decision. Id. § 7513(b). Once an
employing agency finalizes an adverse action, however, the aggrieved employee may appeal to the Merit Systems Protection Board (“MSPB”). Id. § 7513(d). If the employee prevails on appeal, the MSPB can order the agency to comply with its decision and award “reinstatement, backpay, and attorney’s fees.” Elgin, 567 U.S. at 6 (citing 5 U.S.C. §§ 1204(a)(2), 7701(g)).
“An employee who is dissatisfied with the MSPB’s decision is entitled to judicial review in the United States Court of Appeals for the Federal Circuit” under § 7703. Id. at 6. The Federal Circuit’s jurisdiction over such appeals is “exclusive.” 28 U.S.C. § 1295(a)(9). If an employee appeals to the Federal Circuit, then that court must “review the record and hold unlawful and set aside any agency action, findings, or conclusions” that are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.”
This present case relies heavily on an earlier one,
Elgin, which I've seen turn up in the footnotes of several of the earlier mandate cases. Elgin was where a lot of the details in how CSRA actually works in practice were hashed out. Most importantly, it nailed down that the CSRA processes are unavoidable, and can't be skipped by going straight to court before actually getting fired/disciplined/etc.
Thus, the Court concluded that “the CSRA provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action by arguing that a federal statute is unconstitutional.” Id. at 5. This court has also recognized that the CSRA precludes district court adjudication of federal statutory and constitutional claims.
Paraphrasing the below quotes -- "A neat and tidy process is more important than preventing harm." (The "district court" referenced is the TX court that granted the injunction in January, btw.) Also, the harms being "actual and imminent" gets used against the plaintiffs by the 2-1 majority here. Someone call Mulder and Scully, we've got Vogons on the 5th Circuit.
The Government contends that, under Elgin, the district court erroneously held that the CSRA does not apply until the plaintiffs suffer an adverse employment action. It urges that adopting the district court’s logic would allow federal employees to circumvent the CSRA by filing suit before their employer disciplines or discharges them, thereby “gut[ting] the
statutory scheme.” This, it argues, would be inconsistent with Congress’s intent to limit judicial review through the CSRA. See id. at 11. The Government acknowledges that the Elgin plaintiffs, unlike the current plaintiffs, had already suffered an adverse employment action — termination—when they filed suit. But it disputes that Elgin “turned on that distinction.” Meanwhile, the plaintiffs, like the district court, attempt to distinguish Elgin and other cases applying the CSRA’s jurisdictional provisions by arguing that those cases concerned challenges to individual adverse employment actions
This construction is consonant with Congress’s purpose in enacting the CSRA, which was to establish “an integrated scheme of review.” Elgin, 567 U.S. at 14. As the facts of this case reveal, granting the plaintiffs extra-statutory review would “seriously undermine[]” that goal. See id. Allegedly, the plaintiffs who are not pursuing exception requests are “threatened with imminent discipline unless they give in and get vaccinated.” The district court concluded that those plaintiffs had ripe claims because they “face an inevitable firing.” Feds for Med. Freedom I, --- F. Supp. 3d at ----, 2022 WL 188329, at *3. It added that “[m]any of these plaintiffs already have received letters from their employer agencies suggesting that suspension or termination is imminent, have received letters of reprimand, or have faced other negative consequences.” Id . Accordingly, these plaintiffs’ terminations were “actual and imminent, not conjectural or hypothetical.” Id. (quoting Summers v. Earth Island Inst. , 555 U.S. 488, 493 (2009)). That finding, which the Government does not dispute, underscores that by filing this suit on the eve of receiving discipline, the plaintiffs seek to circumvent the CSRA’s exclusive review scheme. Permitting them to do so would “reintroduce the very potential for inconsistent decisionmaking and duplicative judicial review that the CSRA was designed to avoid.” Elgin, 567 U.S. at 14. We therefore decline their invitation.
Don't need an injunction because the harm (getting fired, etc) can be fixed later with Earth Moneys if they sue and win.
After being fired.
We agree with the Government. The plaintiffs assert that district court review is necessary because proceeding through the CSRA’s remedial scheme could foreclose all meaningful review. But the CSRA “merely directs that judicial review . . . shall occur in the Federal Circuit,” which is “fully capable of providing meaningful review.” Elgin, 567 U.S. at 10. In Elgin, the
Supreme Court held that “even if [the MSPB] was incapable of adjudicating a constitutional claim, meaningful judicial review was still available in the court of appeals.” Cochran, 20 F.4th at 208. That was because the plaintiffs “sought substantive relief”—reinstatement, backpay, and attorney’s fees— that “would have . . . fully redressed” the harm they suffered. Id. at 208–09. In contrast, where a plaintiff asserts a claim for “structural relief” from a remedial scheme, that scheme will be declared inadequate. Id. at 208 (citing Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 490 (2010)). The plaintiffs here seek to avoid discipline for failing to comply with Executive Order 14043. That is a claim for substantive, not structural, relief. Indeed, the MSPB can order reinstatement and backpay to any nonexempt plaintiffs who are disciplined for refusing to receive a COVID -19 vaccine. Elgin, 567 U.S. at 6 (citing 5 U.S.C. §§ 1204(a)(2), 7701(g) ). And “[r]emedies for discharge under the federal civil service laws are . . . an adequate remedy for individual wrongful discharge after the fact of
discharge.”
But most importantly, you must go through the process and be punished first, before we can say "whoops, our bad, let's kiss it and make it better." (That is the pithy Earth Proverb, yes?)
We also reject the plaintiffs’ argument that their claims are wholly collateral to the CSRA scheme. “[W]hether a claim is collateral to the relevant statutory -review scheme depends on whether that scheme is intended to provide the sort of relief sought by the plaintiff.” Cochran, 20 F.4th at 207. The plaintiffs emphasize that they are not challenging any individual employment actions or prior discipline, which they say is “water under the bridge.” Instead, the plaintiffs purportedly request only to have Executive Order 14043 declared void. But although the plaintiffs are not attempting to reverse any previous discipline, their challenge “ultimately [seeks] to avoid compliance with”—and discipline for violating—the Order.
Id. at 207. Put differently, this case is “the vehicle by which they seek to” avoid imminent “adverse employment action,” which “is precisely the type of personnel action regularly adjudicated by the MSPB and the Federal Circuit within the CSRA scheme.” Elgin, 567 U.S. at 22. At bottom, the relief the plaintiffs seek is, in effect, to avoid discharge for refusing to comply with Executive Order 14043. This sort of employment-related relief is “precisely the kind[] of relief that the CSRA empowers the MSPB and the Federal Circuit to provide.”
Oh, but there
was one way to avoid all this, if you'd just filled out these 27 forms in triplicate. But it's too late for that now, lol. (But your current claim is still not ripe.) (Interesting side note -- spot the reference to the Constitutional right to privacy in a medical context in the quote below.
Roe and its children cast a shadow broader than abortion.)
The plaintiffs also argue that the CSRA will deny meaningful review to any of them who comply with Executive Order 14043 because they will never suffer an adverse employment action. However, the plaintiffs could have challenged an agency’s proposed action against them before filing this suit and certainly before getting vaccinated. Specifically, they could have filed a complaint with the Office of Special Counsel (“OSC”) , an independent agency, see 5 U.S.C. § 1211 , asserting that Executive Order 14043 constitutes a “prohibited personnel practice” affecting a “significant change in duties, responsibilities, or working conditions.”
The CSRA prohibits agencies from taking any “personnel action” that treats employees “without . . . proper regard for their privacy and constitutional rights.” Id. §§ 2301(b)(2), 2302(b)(12). If OSC receives a complaint and determines that a “ prohibited personnel practice has occurred,” it is authorized to report that finding and to petition the MSPB for corrective action. Id. § 1214(b)(2)(B)–(C). An employee who is harmed by the MSPB’s disposition of the petition can appeal to the Federal Circuit. Id. §§ 1214(c), 7703(b)–(c). There is no dispute that the plaintiffs have not attempted to avail themselves of this potential CSRA remedy, which could provide meaningful review.
The conclusion of the majority opinion is nasty, they send this back down to the district court with instructions to toss the case.
Feds for Med. Freedom v. Biden, at least this incarnation, may have just hit the end of the road. The actual "Feds For Medical Freedom" org involved with this
has a website, probably worth keeping an eye on to see how they respond to this setback.
