U.S. Department of Justice, Civil Division, Appellate Staff — Case: 22-40043, Document: 300 (March 21, 2023)
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A Rule 28(j) letter dated March 21, 2023 in Feds for Medical Freedom v. Biden, No. 22-40043 (en banc), filed as Document 300 in the Fifth Circuit on 03/21/2023 by the Civil Division, Appellate Staff of the Department of Justice. The letter calls the court's attention to the District of Columbia Circuit's decision that day in Payne v. Biden, No. 22-5154, which it describes as on precisely the jurisdictional issue presented, whether the Civil Service Reform Act (CSRA) precludes district-court jurisdiction over a challenge to the COVID-19 vaccination requirement for federal employees. It states that the unanimous opinion concluded the CSRA required dismissal of the suit. The opinion in Payne, decided March 21, 2023, is attached, and the letter carries /s/ signature text.
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Case: 22-40043 Document: 300 Page: 1 Date Filed: 03/21/2023
U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Ave. NW
Washington, DC 20530
Tel: (202) 305-8849
March 21, 2023
Via CM/ECF
Lyle W. Cayce, Clerk of Court
U.S. Court of Appeals for the Fifth Circuit
600 South Maestri Place
New Orleans, LA 70130
RE: Feds for Medical Freedom v. Biden, No. 22-40043 (en banc) (argued
Sept. 13, 2022)
Dear Mr. Cayce:
I write under Rule 28(j) to call the Court’s attention to the D.C. Circuit’s decision
today in Payne v. Biden, No. 22-5154, on precisely the jurisdictional issue presented
here: whether the Civil Service Reform Act (CSRA) precludes district-court ju-
risdiction over a challenge to the COVID-19 vaccination requirement for federal
employees. In a unanimous opinion, applying the Supreme Court’s precedents
in Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), and Elgin v. Department of
the Treasury, 567 U.S. 1 (2012), the D.C. Circuit held that the CSRA required the
dismissal of the suit. Those precedents require the same result here.
Sincerely,
/s/ Charles W. Scarborough
Charles W. Scarborough
cc: All counsel (via CM/ECF)
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 2, 2022 Decided March 21, 2023
No. 22-5154
JASON PAYNE,
APPELLANT
v.
JOSEPH R. BIDEN, JR., PRESIDENT, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-03077)
Gene P. Hamilton argued the cause for appellant. On the
brief was Reed D. Rubinstein. Andrew Block entered an
appearance.
Daniel Winik, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Charles W. Scarborough and Casen Ross,
Attorneys.
Before: WILKINS and WALKER, Circuit Judges, and
ROGERS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: In 1978, Congress enacted the
Civil Service Reform Act (“CSRA”) to provide a subset of
federal employees with access to administrative and judicial
review to contest certain adverse employment actions. The
Supreme Court has confirmed, as recently as 2012, that
Congress intended this statutory scheme to preclude district
court jurisdiction over certain claims. Elgin v. Dep’t of
Treasury, 567 U.S. 1, 5 (2012). In practice, such preclusion
does not obstruct an employee’s access to judicial review, but
instead redirects the avenue through which the employee may
proceed.
In September 2021, President Biden issued Executive
Order No. 14,043, mandating that all executive branch
employees obtain the COVID-19 vaccination, subject to
medical or religious exception. Exec. Order No. 14,043, 86
Fed. Reg. 50,989 (Sept. 9, 2021). This Order also directs the
Safer Federal Workforce Task Force to provide guidance as to
how the vaccine mandate should be implemented. Id. at
50,989–90; see Exec. Order No. 13,991, 86 Fed. Reg. 7045,
7046 (Jan. 20, 2021) (establishing the Safer Federal Workforce
Task Force). In doing so, the Task Force outlined certain
disciplinary measures to which noncompliant federal
employees may be subject. Petitioner Jason Payne is a civilian
employee of the Department of the Navy who contests the
vaccine mandate and has declined to comply.
On November 22, 2021—the day federal employees
were required to be vaccinated—Mr. Payne filed suit in District
Court, challenging the mandate’s constitutionality.
Characterizing Mr. Payne’s suit as a “workplace dispute
involving a covered federal employee,” the District Court
found Mr. Payne’s claims were precluded under the CSRA and
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dismissed the suit for lack of subject matter jurisdiction. Payne
v. Biden, 602 F. Supp. 3d 147, 151 (D.D.C. 2022). On appeal,
Mr. Payne insists that he challenges the vaccine mandate’s
constitutionality, as opposed to contesting a workplace dispute
under the CSRA. According to his complaint, however, he
alleges that the vaccine mandate is unconstitutional—at least
in part—because it requires that he obtain the vaccine to avoid
adverse employment action. For the reasons discussed below,
Mr. Payne’s claims contesting such adverse employment
action necessarily fall under the CSRA’s statutory scheme.
Accordingly, we affirm the District Court.
I.
The sole issue before us is whether the District Court
correctly found it lacked subject matter jurisdiction to
adjudicate Mr. Payne’s claims. This jurisdictional
determination rises and falls with the CSRA’s construction.
A.
The CSRA is an “‘integrated scheme of administrative
and judicial review’ for aggrieved federal employees []
designed to replace an ‘outdated patchwork of statutes and
rules’ that afforded employees the right to challenge employing
agency actions in district courts across the country.” Elgin, 567
U.S. at 13–14 (quoting United States v. Fausto, 484 U.S. 439,
444–45 (1988)). The previous system gave rise to inconsistent
decisions concerning similar issues and “a double layer of
judicial review” that the Supreme Court has repeatedly
described as “wasteful and irrational.” Elgin, 567 U.S. at 14
(citing Fausto, 484 U.S. at 445). In response, the CSRA
“prescribe[d] in great detail the protections and remedies”
available to federal employees challenging adverse personnel
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actions and also outlined “the availability of administrative and
judicial review.” Fausto, 484 U.S. at 443.
The CSRA has three primary sections regulating
adverse personnel action, two of which are relevant here:
Chapter 23 and Chapter 75. See 5 U.S.C. §§ 4301 et seq;
Fausto, 803 U.S. at 445–47.
Chapter 23 outlines the “merit system principles”
agencies must uphold. 5 U.S.C. § 2301(b). Violations of these
principles constitute “prohibited personnel practices,” and
Chapter 23 establishes the process through which employees
may contest such practices. Id. § 2302(a). Under this process,
an employee alleging a personnel practice violation has the
option of first filing charges with the Office of Special Counsel
(“OSC”), and if the employee has “reasonable grounds to
believe that a prohibited personnel practice has occurred,
exists, or is to be taken which requires corrective action,”
Chapter 12, governing the investigation of prohibited
personnel practices, provides that the OSC “shall report the
determination together with any findings or recommendations”
to the Merits Systems Protection Board (“MSPB”).
Id. § 1214(b)(2)(B). Should the violation continue, the OSC
“may petition the Board,” id. § 1214(b)(2)(C), and the MSPB
may at that point issue corrective action. The OSC may also
“bring petitions for stays, and petitions for corrective action[.]”
Id. § 1212(a)(2)(A). Importantly, the CSRA grants the United
States Court of Appeals for the Federal Circuit jurisdiction to
review the MSPB’s final orders. See id. §§ 1214(c),
7703(b)(1)(A).
Chapter 75 addresses major adverse actions against
employees. The first subchapter governs suspensions of
fourteen days or less, see id. §§ 7501–04, and the second
subchapter governs more serious actions—involving removal,
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suspensions over fourteen days, grade reduction, pay reduction,
and furlough up to thirty days, see id. §§ 7511–15. Subchapter
II provides that a covered employee “against whom an action
is proposed is [generally] entitled to[:]” a minimum of “30
days’ advance written notice[;]” the opportunity to respond
orally and in writing; representation; and “a written decision
and the specific reasons therefor at the earliest practicable
date.” Id. § 7513(b). Decisions under Subchapter II are
appealable, first to the MSPB, id. § 7513(d), and then to the
Federal Circuit, id. § 7703(b). And if successful, relief under
either chapter may include reinstatement, back pay, and
attorneys’ fees. See id. §§ 1204(a)(2), (m), 5596(b); see also
Elgin, 567 U.S. at 6.
Thus, while both chapters require a covered employee
to first challenge certain action before an administrative body,
as opposed to a district court, both chapters also prescribe that
it is the Federal Circuit, not this Court, that must handle any
potential judicial review. With this understanding, we turn to
the facts and consider whether the claims at issue could be
adjudicated under either chapter.
B.
In September 2021, President Biden issued Executive
Order No. 14,043 as part of the Executive’s response to
COVID-19. Exec. Order No. 14,043, 86 Fed. Reg. 50,989
(Sept. 9, 2021). The Order requires that all federal employees
be vaccinated subject to “exceptions only as required by law.”
Id. at 50,990. President Biden also created a Safer Federal
Workforce Task Force to help guide the implementation
process. According to the Task Force, employees should have
received a “final vaccination dose by November 8, 2021,” so
they would be “fully vaccinated by November 22, 2021,” and
enforcement against noncompliant employees could begin on
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November 9, 2021. J.A. 49–51. “Progressive enforcement
actions” may include “[a] 5-day period of counseling and
education;” a short suspension of up to 14 days without pay;
and removal “for failing to follow a direct order.” J.A. 63–64.
As for legally required exemptions—provided “on the basis of
a medical condition or circumstance or a sincerely held
religious belief, practice or observance”—the Task Force
advises agencies to abstain from implementing disciplinary
measures against employees with pending exemption requests.
J.A. 64. And in the case of denial, the employee should be
provided two weeks to obtain vaccination if they so choose.
At the motion to dismiss stage, we must treat the
following well-pleaded allegations in the complaint as true.
See Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir.
2017). Mr. Payne is a civilian employee with the Department
of the Navy, serving as an engineer for the Office of Naval
Research. He claims to have gained “natural immunity”
against COVID-19 after having contracted and recovered from
the disease. Compl. ¶ 7. Accordingly, Mr. Payne informed his
supervisors of his decision to decline vaccination.
On November 22, 2021, the day that all non-exempt
federal employees were required to be fully vaccinated, Mr.
Payne sued President Biden and several other federal officials
and agencies. Seeking both declaratory and injunctive relief,
Mr. Payne claims the vaccine mandate violates the separation
of powers and his Fifth Amendment right to privacy, and places
an unconstitutional condition on his employment.
The government contested Mr. Payne’s suit on
jurisdictional grounds, arguing that Congress divested district
courts of subject matter jurisdiction over claims challenging an
Executive Order, such as these, when it enacted the CSRA.
The District Court agreed and granted the government’s
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Motion to Dismiss. In its view, the claims could be
characterized as a challenge to either “working conditions”
under Chapter 23 of the CSRA, or a termination decision under
Chapter 75 of the CSRA. Payne, 602 F. Supp. 3d at 157–59.
Because Mr. Payne could obtain administrative and
judicial review under either chapter, the District Court held that
the CSRA applies and dismissed the case for lack of
jurisdiction. This timely appeal followed.
II.
We review de novo a district court’s dismissal of a suit
for lack of subject matter jurisdiction. See RICU LLC v. HHS,
22 F.4th 1031, 1034 (D.C. Cir. 2022). In doing so, we construe
the complaint in the plaintiff’s favor and grant him the benefit
of all reasonable inferences. Am. Nat’l Ins. Co. v. FDIC, 642
F.3d 1137, 1139 (D.C. Cir. 2011). Applying these principles
here, we come to the same conclusion as the District Court.
As a general matter, the power of the federal courts
stems from constitutional and statutory authorization. See
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375,
377 (1994). Congress, thus, may determine certain
jurisdictional bounds. See Bowles v. Russell, 551 U.S. 205,
212–13 (2007). And when Congress establishes a specific
statutory review scheme, “it is ordinarily supposed that
Congress intended that procedure to be the exclusive means of
obtaining judicial review in those cases to which it applies.”
Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015) (citing City of
Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)). To
ensure that this is the case, however, reviewing courts employ
a two-part inquiry put forth in Thunder Basin Coal Co. v.
Reich, 510 U.S. 200 (1994). First, we determine whether
Congress’s intent to replace district court jurisdiction with an
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alternative process of review is “fairly discernible in the
statutory scheme.” Id. at 207. Second, we analyze whether the
“claims are of the type Congress intended to be reviewed
within this statutory structure.” Id. at 212.
A.
Proceeding to step one under Thunder Basin, we begin
by identifying Congress’s intent. “To determine whether it is
fairly discernible that Congress precluded district court
jurisdiction over [Mr. Payne’s] claims, we examine the
CSRA’s text, structure, and purpose.” Elgin, 567 U.S. at 10
(internal quotation marks omitted). The Supreme Court
acknowledges that it has examined the congressional intent
behind the CSRA multiple times. See Elgin, 567 U.S. at 10.
And as the Fourth Circuit recently noted when deciding a
similar case, such Supreme Court precedent resolves this first
step. See Rydie v. Biden, No. 21-2359, 2022 WL 1153249, at
*4 (4th Cir. Apr. 19, 2022) (“Thus, Elgin resolves step one. It’s
‘fairly discernible’ that Congress intended the CSRA to
foreclose judicial review in at least some circumstances.”)
(quoting Elgin, 567 U.S. at 23).
In Elgin, the Supreme Court considered whether the
CSRA precluded district court jurisdiction such that
petitioners—federal employees who were discharged for
failing to register for the Selective Service as required by
statute—had to challenge the statute pursuant to the CSRA.
Under this first step, the Elgin Court found that the CSRA’s
“elaborate framework” clearly “demonstrates Congress’ intent
to entirely foreclose judicial review to employees to whom the
CSRA denies statutory review.” 567 U.S. at 11 (internal
quotation marks and emphasis omitted). Thus, Elgin instructs
that given “the painstaking detail with which the CSRA sets
out the method for covered employees to obtain review of
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adverse employment actions, it is fairly discernible that
Congress intended to deny such employees an additional
avenue of review in district court.” Id. at 11–12. To further
clarify, the Elgin Court explained that the “only one situation”
in which an otherwise covered employee could proceed before
the district court, and thus outside the statutory scheme, occurs
when the employee alleges discrimination through a violation
of an enumerated federal employment law. Id. at 13.
Accordingly, the Elgin Court rejected the petitioners’
attempt to carve out an exception based on the type of
constitutional challenge raised, and ultimately held 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.
In reviewing the same statutory scheme here, we apply Elgin
and find it “fairly discernible” that Congress intended to
preclude judicial review over claims falling within the CSRA’s
purview.
B.
Continuing to the second step of the Thunder Basin
framework, we consider whether Mr. Payne’s constitutional
challenge is the type of claim Congress planned to be assessed
under the CSRA. A claim generally falls outside of the special
statutory scheme only when: “(1) a finding of preclusion might
foreclose all meaningful judicial review; (2) the claim is wholly
collateral to the statutory review provisions; and (3) the claim[]
[is] beyond the expertise of the agency.” Arch Coal, Inc. v.
Acosta, 888 F.3d 493, 500 (D.C. Cir. 2018); see AFGE, AFL-
CIO v. Trump, 929 F.3d 748, 755 (D.C. Cir. 2019) (same).
These three points function as “general guideposts,” as
opposed to a strict formula, and each one helps shape our
analysis. Jarkesy, 803 F.3d at 17. As applied here, all three
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factors direct us to find the CSRA precludes Mr. Payne’s
claims.
1.
Under the first factor, we consider whether Mr. Payne
has access to meaningful judicial review. It is important to
note that the availability of meaningful judicial review is not so
strictly defined as to require that every legal question related to
a litigant’s claim be decided in the first instance. Rather, a
statutory scheme, precluding district court jurisdiction in favor
of an administrative body that cannot adjudicate constitutional
questions pertaining to federal law, may still satisfy this factor
when such determinations are reviewable before a court of
appeals. See Elgin, 567 U.S. at 17.
Mr. Payne’s primary argument is that the CSRA
deprives him of meaningful judicial review because it does not
allow him to challenge the vaccine mandate through a pre-
enforcement claim. In practice, Mr. Payne contends that this
means he must continue declining vaccination until adverse
employment action is enforced against him. He argues that
such a requirement would unfairly obligate him to “bet the
farm” and “violate a rule before challenging the rule’s
validity.” Appellant Br. at 32 (citing Free Enter. Fund. v. Pub.
Co. Acct. Oversight Bd., 561 U.S. 477, 490–91 (2010)); see
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 134 (2007)
(finding that a plaintiff need not “bet the farm” by destroying a
building and risking 80 percent of business prior to seeking a
legal declaration of its rights). Mr. Payne takes issue with the
District Court’s characterization of his claims as contesting a
proposed adverse personnel action because, as he explains on
appeal, he is challenging an unconstitutional vaccine mandate.
See Appellant Br. at 33. But such re-framing is inconsistent
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with his overarching argument and does not alter the
jurisdictional outcome.
At the same time that Mr. Payne hinges his standing to
challenge the vaccine mandate on the promised termination
that will follow his continued noncompliance, he also
maintains that the CSRA cannot offer him meaningful review
because he is not challenging any proposed personnel action.
Again, the jurisdictional question before the Court is whether
Mr. Payne may challenge the vaccine mandate under the CSRA
in district court. Whether Mr. Payne characterizes his claims
as challenging the immediate injury he faces under the vaccine
mandate, or the vaccine mandate’s existence in general, we
find that either Chapter 23 or Chapter 75 provides him with a
path forward. Because Mr. Payne’s argument on appeal is
more focused on the threat of termination, we begin with
Chapter 75.
As previously explained, Chapter 75 entitles “an
employee against whom an action [including removal] is
proposed” to notice, reasonable time to answer and present
supporting evidence, representation, and a reasoned written
decision. 5 U.S.C. § 7513(b); see id. §§ 7511 (defining which
employees are covered under the subchapter), 7512 (outlining
the actions covered under the subchapter). If action is taken,
the employee “is entitled to appeal” to the MSPB where the
employee is entitled to a hearing and legal representation.
Id. § 7513(d); see id. § 7701(a). And once the MSPB issues its
decision, the employee may appeal this final order to the
Federal Circuit. Id. § 7703(b)(1)(A).
The CSRA therefore covers pre-enforcement removal
challenges like Mr. Payne’s because while he has not yet been
terminated, Chapter 75 provides meaningful review for
employees “against whom an action is proposed.”
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Id. § 7513(b) (emphasis added). And although the CSRA does
not define “proposed,” we agree with the Fourth Circuit that
the nature of these claims makes such a definition unnecessary
to deciding this jurisdictional issue. See Rydie, 2022
WL1153249, at *7. Mr. Payne argues that the government
“threaten[s]” disciplinary action, and under the alleged facts,
the government could not have threatened the action without
having proposed it. Appellant Br. at 30 n.3. The Complaint
reinforces such a finding because Mr. Payne alleges that
“[D]efendants have promised [Mr. Payne] will lose his job,”
the defendants are implementing the vaccine mandate, and
given that the vaccine mandate has been “declared a condition
of federal employment, Mr. Payne . . . will be disciplined,
suspended without pay, and removed from Federal service for
failing to follow a direct order.” Compl. ¶¶ 2, 58 (cleaned up).
The second way Mr. Payne may obtain judicial review
is by challenging a “prohibited personnel practice” under
Chapter 23. 5 U.S.C. § 2302. An example of “personnel
action,” as defined by statute, includes the “significant change
in duties, responsibilities, or working conditions[.]”
Id. § 2302(a)(2)(A)(xii). Chapter 23 prohibits supervisory
employees from participating in any act constituting a
“prohibited personnel practice.” Id. § 2302(a), (b). One of the
enumerated prohibited practices includes “tak[ing] or fail[ing]
to take any other personnel action if the taking of or failure to
take such action violates any law, rule, or regulation
implementing, or directly concerning, the merit system
principles contained in section 2301[.]” Id. § 2302(b)(12).
And one such merit system principle involves the failure to
accord “proper regard for [the covered employee’s] privacy
and constitutional rights.” Id. § 2301(b)(2).
While Mr. Payne does not dispute that he is a covered
employee, he maintains that his claims do not qualify as
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prohibited personnel practices because he challenges the
mandate as opposed to challenging the masking or testing
requirements. Furthermore, Mr. Payne’s counsel also
represented at oral argument that the mask requirement has
since been withdrawn. Oral Arg. Tr. 8:23–25. But even
without the mask requirement—or any of the other COVID-19
related requirements initially alleged and relied upon by the
District Court—Mr. Payne still has the option of filing a
complaint before the OSC, arguing that the vaccine mandate,
and the disciplinary action he faces for his continued
noncompliance, constitute personnel practices taken without
“proper regard for [his] . . . constitutional rights.”
Id. § 2301(b)(2); see id. § 2302(b)(12).
Thus, Mr. Payne may access meaningful review by
following the procedures described under either Chapter 75,
covering proposed removal, or Chapter 23, covering prohibited
personnel practices. In so finding, we note that to the extent
that Mr. Payne finds support in our pre-1994 precedent
identifying certain exceptions to a statutory scheme’s
preclusive effect, see Appellant Br. 23 (citing Nat’l Fed’n of
Fed. Emps. v. Weinberger, 818 F.2d 935, 938–40 (D.C. Cir.
1987); Harmon v. Thornburgh, 878 F.2d 484, 485–87 (D.C.
Cir. 1989); Spagnola v. Mathis, 859 F.2d 223, 229–30 (D.C.
Cir. 1988) (en banc) (per curiam)), such exceptions cannot
survive the Supreme Court’s subsequent decisions in Thunder
Basin and Elgin—clarifying that a statutory scheme may
exclusively preclude jurisdiction when Congress’s intent to do
so is “fairly discernible.” Thunder Basin, 510 U.S. at 207;
Elgin, 567 U.S. at 12; see also See Am. Fed’n of Gov’t Emps.,
AFL-CIO v. Trump, 929 F.3d 748, 758 (D.C. Cir. 2019) (“We
once suggested in a footnote [citing Weinberger, 818 F.2d at
940 n.7] that the Statute would not allow us to review
constitutional claims that the FLRA could not consider,” but
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such a “suggestion cannot survive the Supreme Court’s
decision in Thunder Basin”).
2.
We next consider whether the claims are “wholly
collateral to a statute’s review provisions.” Thunder Basin, 510
U.S. at 212 (internal quotation marks and citation omitted).
Claims are not wholly collateral if they serve as the “vehicle by
which [the plaintiff] seek[s] to reverse” the adverse
employment action. Jarkesy, 803 F.3d at 23 (citing Elgin, 567
U.S. at 22). As we have emphasized, “an exception to an
otherwise exclusive scheme for constitutional challenges in
general, or facial attacks on a statute in particular, or some other
as-yet-undefined category of constitutional claims, would
encourage respondents in administrative enforcement
proceedings to frame their challenges to the [agency’s] actions
in those terms and thereby earn access to another forum” for
review. Jarkesy, 803 F.3d at 25. Such gamesmanship would
be inconsistent with Congress’s intent to set the boundaries of
an exclusive avenue for review.
By arguing that his claims are wholly collateral, Mr.
Payne seeks an exception to the CSRA’s exclusivity. Indeed,
he attempts to circumvent the CSRA’s procedure and proceed
in district court because his challenge pertains to the
Constitution rather than CSRA-covered personnel action. But
while Mr. Payne certainly alleges that the vaccine mandate is
unconstitutional, he does so—at least in part—because of the
mandate’s “promis[e] to deprive [him] of public employment
unless” he complies. Compl. ¶ 86. Adopting Mr. Payne’s
theory would thus enable scores of litigants challenging an
employment requirement to skip over the CSRA’s process by
characterizing the requirement as unconstitutional. “Such suits
would reintroduce the very potential for inconsistent
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decisionmaking and duplicative judicial review that the CSRA
was designed to avoid.” Elgin, 567 U.S. at 14.
All attempts to characterize his argument as anything
but a challenge to adverse employment action fail for
jurisdictional purposes, because Mr. Payne himself admits that
his standing to challenge the vaccine mandate is rooted in the
looming disciplinary action he now faces as a result of his
continued noncompliance. In other words, Mr. Payne
challenges the vaccine mandate to maintain his employment
while continuing to defy the mandate that he views as
unlawful. And while his constitutional arguments are relevant
to the merits, they do not change the fact that one of Mr.
Payne’s interests in this suit is to avoid the impending adverse
employment action. Mr. Payne’s claims are not wholly
collateral because challenges to adverse employment actions
are the type of claims that the MSPB regularly adjudicates.
3.
Like the first two factors, the third factor—agency
expertise—is interpreted broadly. Courts may find this factor
satisfied by considering “the many threshold questions that
may accompany a constitutional claim and to which the MSPB
can apply its expertise.” Elgin, 567 U.S. at 22. Mr. Payne
argues that his claims fall outside the agency’s expertise
because, again, he frames his claims as constitutional
challenges unrelated to the CSRA’s procedures. We reject this
argument because the MSPB’s expertise remains applicable to
the various threshold questions attached to the claims and any
preliminary issues particular to the employment context. See
id. at 22–23 (noting preliminary issues such as those involving
a statute that MSPB often interprets; “statutory or
constitutional claims that the MSPB routinely considers[;]” or
“a constitutional challenge to a federal statute”). Also, it
Case: 22-40043 Document: 300 Page: 17 Date Filed: 03/21/2023
USCA Case #22-5154 Document #1991013 Filed: 03/21/2023 Page 16 of 16
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remains possible that the MSPB finds the promised disciplinary
action violates the statutory requirement that major adverse
employment action “promote the efficiency of the service.”
5 U.S.C. §§ 7503(a), 7513(a). If so, the MSPB could issue a
ruling in Mr. Payne’s favor, possibly rendering his
constitutional claims moot.
Based on the foregoing, all three factors weigh in the
government’s favor and Mr. Payne’s claims fall within the
CSRA’s framework. We thus conclude that Congress
precluded the District Court from reviewing Mr. Payne’s
claims.
III.
There is but one permissible conclusion given our well-
established precedent guiding jurisdictional preclusion issues
of this nature. By reframing the issue as “whether the CSRA
removes district court jurisdiction” as opposed to “whether it
permits it,” Mr. Payne attempts to introduce nuance where
none exists. Appellant Reply Br. at 4 (emphases in original).
The law is clear that where the CSRA provides judicial review,
it does so exclusively. Thus, in finding that Mr. Payne may
proceed through the CSRA’s scheme, we necessarily find that
should Mr. Payne choose to continue challenging the vaccine
mandate, he must do so through the CSRA’s scheme. Such is
the nature of an “exclusive avenue to judicial review.” Elgin,
567 U.S. at 5.
***
For the foregoing reasons, we affirm the District
Court’s judgment.
So ordered.
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