AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1; John Gavello, Plaintiffs-Appellants,
v.
David M. STONE; Transportation Security Administration; U.S. Department of Homeland Security; Kip Hawley, Administrator, Transportation Security Administration, Department of Homeland Security, Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
*1029 Mark D. Roth, Joe Goldberg, Gony Frieder, American Federation of Government Employees AFL-CIO, Washington, DC, for the appellants.
William G. Kanter, Mark W. Pennak, U.S. Department of Justice, Washington, DC, for the appellees.
Before: A. WALLACE TASHIMA and W. FLETCHER, Circuit Judges, and H. RUSSEL HOLLAND,[*] District Judge.
WILLIAM A. FLETCHER, Circuit Judge:
Plaintiffs-Appellants American Federation of Government Employees, Local 1 ("AFGE") and John Gavello appeal the district court's dismissal of their action against the Administrator of the Transportation Sеcurity Administration ("TSA") in his official capacity. The district court held that Plaintiffs-Appellants were not entitled to judicial review of their claims that the TSA violated their First Amendment rights by disciplining and then discharging Gavello, a TSA security screener, for engaging in union activities. The district court also held that AFGE lacked standing.
We reverse. If Congress wishes to deny federal employees the ability to redress alleged constitutional violations, it must state its intention clearly. We conclude that the statutory scheme governing TSA security screeners does not express a clear intention on the part of Congress to preclude judicial review of screeners' constitutional claims. The distriсt court *1030 therefore has subject matter jurisdiction over Plaintiffs-Appellants' action. We further conclude that AFGE has standing.
I. Background
For purposes of this decision, we accept all of the allegations in Plaintiffs-Appellants' complaint as true. The complaint alleges that John Gavello began working as a security screener at Oakland International Airport on March 30, 2003. In October 2003, Gavello spoke to a screening supervisor and a screening manager about his plans to distribute and post AFGE literature during break times. Gavello posted union materials in the employee break room and made union forms available to fellow employees thrоughout November 2003.
In response to Gavello's union activities, TSA management allegedly began "building a file against Mr. Gavello." On November 20, Gavello received what the complaint describes as a "written verbal warning" for conducting union activities on the job. The next day, November 21, Gavello was called to a manager's office and asked various questions about his union activities. He refused to respond and was subsequently placed on paid administrative leave while TSA management investigated whether he had engaged in union activities while on duty.
The TSA permitted Gavello to return to work on December 5, 2003. Shortly thereafter, he received a "Memorandum of Counseling" "for speaking on behalf of other employees, asking for written verification of policies, and posting union materials before receiving approval from TSA management." He also received a "Letter of Warning" related to his activities.
On February 20, 2004, Gavello mailed a "second step grievance" to Deputy Federal Security Director Calvin Yuen "request[ing] written procedures regarding baggage inspection swiping and sampling as they are not currently included in the [TSA's] standard operating procedures." The words "cc: AFGE Legal Counsel" appeared at the end of Gavello's grievance letter. The TSA terminated Gavello six days after he sent the letter. The TSA justified its action by stating that Gavello improperly disclosed sensitive security information to an unauthorized party, namely, AFGE's legal counsel.
At the time of his termination, Gavello had been employed by TSA for less than one year and was therefore considered a probationary screener. The parties in this case agree that "there is no administrative scheme that would afford probationary TSA screeners, such as John Gavello, with any administrative forum in which to seek relief for [their] discharge." When Congress established the TSA and federalized airport security screeners in late 2001, it set out specific hiring and training requirements for TSA security screeners. See, e.g., Aviation and Transportation Security Act ("ATSA"), Pub.L. No. 107-71, § 111(a), 115 Stat. 597, 616-20 (2001) (codified at 49 U.S.C. § 44935(e)-(j)). It then included a catchall provision giving the TSA Administrator significant discretion over the employment of security screeners: "Notwithstanding any other provision of law, the [TSA Administrator] may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the [Administrator] determines to be necessary to carry out . . . screening functions." ATSA § 111(d),
Pursuant to its catchall authority, the TSA Administrator issued a Human Resources Management Letter dated July 29, 2002, which declared that all screeners are subject to a one-year probationary period and "may be terminated at any time" during that period. HRM Letter 300-2, ¶ 5(g)(1) (July 29, 2002). Although the letter provides that the TSA will "state the reason for the termination" of probationary screeners, it also provides that such screeners have "no right of reply" and may not bring an administrative appeal. Id. ¶¶ 5(g)(4), 5(I); see also Conyers v. Merit Sys. Prot. Bd.,
Having no administrative recourse, Plaintiffs-Appellants filed suit in federal district court on April 1, 2004, claiming that the TSA violated their First Amendment speech and associational rights "by penalizing Mr. Gavello's еxercise of his legal right of advocacy of union membership." According to the complaint, approximately 50 Oakland security screeners had joined AFGE since Gavello began his organizing efforts, but his termination "has [had] a chilling effect on other screeners." Plaintiffs-Appellants requested the following relief: (1) a declaration that the TSA's discipline and dismissal of Gavello violates Plaintiffs-Appellants' First Amendment rights; (2) an order rescinding the Memorandum of Counseling, Letter of Warning, and Letter of Termination from Gavello's personnel records; (3) the restoration of Gavello's employment; (4) back pay with interest and the restoration of all benefits Gavello lost during his рeriod of termination; (5) an injunction preventing the TSA from retaliating against Gavello and other AFGE members; and (6) attorney's fees and costs.
Defendants-Appellees ("the government") responded by filing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The government argued that by excluding TSA screeners from the protections of the CSRA or the FAA personnel management system, and by granting the TSA Administrator unfettered discretion to determine screeners' employment terms and conditions, Congress intended to preclude judicial review of screeners' constitutional claims. The government also argued that AFGE lacked standing to sue either on its own behalf or on behalf of Gavello.
The district court accepted these arguments and issued an order on December 2, 2004, dismissing the complaint with prejudice. The court reasoned that the CSRA is a "comprehensive and exclusive scheme to govern federal personnel matters" and that Congress's decision not to extend the CSRA's protections to TSA screeners therefore indicated that Congress did not intend to permit screeners to obtain judicial review of personnel decisions. The court explained that AFGE lacked standing because the complaint did not allege that Gavello was actually a member of AFGE, and because Gavello's claims were unreviewable. Plaintiffs-Appellants timely appealed.
*1032 II. AFGE's Standing
The district court concluded that AFGE had no standing to sue either on its own behalf or on behalf of Gavello. The court rested its decision partly on the ground that Gavello was not entitled to review of his First Amendment claims and partly on the ground that the complaint did not specify that Gavello was an AFGE member. As we explain in the next section, Gavello's claims are reviewable. We now conclude that, even if Gavello is not an AFGE member, AFGE satisfies both the constitutional and prudential requirements for standing.
Plaintiffs-Appellants' complaint does not directly state that Gavello is an AFGE member. We are required, however, to "construe the complaint in a light most favorable to the non-moving party," Vasquez v. Los Angeles County,
But even if Gavello were not an AFGE member, our result would be the same. It is well established that an organization "may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." Warth v. Seldin,
(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
The allegations set out in the complaint are sufficient to satisfy each of the required showings. First, with respect to injury in fact, the complaint fairly alleges that the TSA's actions have interfered with AFGE's ability to solicit membership and communicate its message. The complaint states that Gavello's termination has had a "chilling effect on other screeners from joining AFGE Local 1." As the Supreme Court has held, actions that "perceptibly *1033 impair[]" an organization's ability to carry out its mission impose a "concrete and demonstrable" injury in fact. Havens Realty Corp. v. Coleman,
Indeed, the Supreme Court has squarely held that a union may have standing to challenge governmental interference with organizing activities. In Allee v. Medrano,
In this case the union has standing as a named plaintiff to raise any of the claims that a member of the union would have standing to raise . . . . [I]t has been implicitly recognized that protected First Amendment rights flow to unions as well as to their members and organizers. If, as alleged by the union in its complaint, its members were subject to unlawful arrests and intimidation for engaging in union organizational activity protected by the First Amendment, the union's capacity to communicate is unlawfully impeded, since the union can act only through its members. The union then has standing to complain of the arrests and intimidation and bring this action.
Id. at 819 n. 13,
The government nevertheless maintains that AFGE has not suffered a redressable injury because the complaint merely describes AFGE's efforts to win collective bargaining rights. In the government's view, because the TSA has banned collective bargaining for security screeners, "any interest that AFGE may have in representing TSA screeners is simply not legally cognizable." We disagree both with the government's characterization of the complaint and with its assertion that AFGE has not alleged a cognizable injury. First, the complaint does not even allude to "collective bargaining." Rather, the complaint alleges that the TSA unlawfully interfered with AFGE's efforts to recruit and communicate with members. It states that Gavello was involved in "organizing" and that he distributed "union membership" forms. It also contends that Gavello's termination chilled "other screeners from joining AFGE." Second, the fact that the TSA has banned collective bargaining does not mean that a union representing TSA employees has no useful function; nor does it mean that the TSA has free rein to retaliate against screeners who speak in favor of collective bargaining rights. See Garcetti v. Ceballos, ___ U.S. ___,
The government further contends that, even if AFGE satisfies the constitutional requirements for standing, it does not satisfy the prudential rule that parties must assert their own rights rather than the rights of third parties. See, e.g., Warth,
III. Jurisdiction to Review the Administrative Action
In the district court, the government argued successfully that Plaintiffs-Appellants' suit should be dismissed on jurisdictional grounds. The Supreme Court subsequently granted certiorari in Whitman v. Department of Transportation, ___ U.S. ___,
"[W]hether the CSRA precludes colorable constitutional claims sounding in equity where the plaintiff has no other remedy" is a question of first impression in this circuit. Stanley v. Gonzales,
The Supreme Court agreed with the government that the employee could not seek judicial review under the Administrative Procedure Act because "the language and structure of § 102(c) indicate that Congress meant to commit individual employee discharges to the Director's discretion." Webster,
Thus, as in Webster, our task here is to decide whether the statutory scheme that covers TSA screeners such as Gavello expresses a clear intention on the part of Congress to prohibit judicial review of employees' colorable constitutional claims. We conclude that it does not. Indeed, the language Congress used when it enacted ATSA is quite similar to the statutory language at issue in Webster, which the Supreme Court held was not sufficiently clear to bar review of constitutional claims. ATSA permits the TSA Administrator, "[n]otwithstanding any other provision of law," to terminate screeners "as the [Administrator] determines to be necessary to carry out . . . screening functions." ATSA § 111(d),
In deciding that it lacked subject matter jurisdiction, the district court did not discuss Webster. Instead, the court relied on United States v. Fausto,
Fausto and Webster thus address distinct issues. When Congress decides to exclude an employee from the protections of the CSRA or an analogous scheme, such as the FAA's personnel management system, Fausto precludes the employee from obtaining judicial review of statutory or regulatory claims. However, under Webster, the employee may still obtain judicial review of constitutional claims unless Congress, in addition to excluding the employee from the protections of the CSRA or an analogous scheme, has also expressly declared its intention to preclude review of constitutional claims. Because Plaintiffs-Appellants in this case raise constitutional claims, it is Webster, not Fausto, that controls.
The district court also relied on cases from this circuit holding that the CSRA precludes federal employees from bringing Bivens actions even when the employee has no alternative remedy. See, e.g., Russell v. U.S. Dep't of the Army,
We recognize that one of our cases, Saul v. United States, suggests that employees might be precluded from seeking equitable relief as well as damages for constitutional violations.
We conclude that Saul is distinguishable from this case because Saul could have availed himself of alternative mechanisms to pursue his constitutional claim. Specifically, Saul could have challenged his supervisors' actions under at least two CSRA appeal procedures rather than proceeding directly to federal court, and injunctive relief would have been available as a remedy. Id. at 833-35, 843. By contrast, the parties in this case agree that Gavello has no remedies available under the CSRA or ATSA and that judicial review is the only means by which he can attempt to vindicate his constitutional rights. Extending Saul to cases in which no alternative remedy is available seems particularly ill advised given that our opinion in Saul failed to make any mention of Webster, in which the Supreme Court declared that a "`serious constitutional question' . . . would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim." Webster,
We also recognize that three of our sister circuits have held since Webster that the CSRA precludes federal employees from pursuing constitutional claims for equitable relief as well as for damages. See Dotson v. Griesa,
We find more persuasive the reasoning of the Third Circuit and the D.C. Circuit. See Mitchum v. Hurt,
The power of the federal courts to grant equitable relief for constitutional violations has long been established. Thus,. . . there is a "presumed availability of federal equitable relief against threatened invasions of constitutiоnal interests." It is reasonable to assume that Congress legislates with the understanding that this form of judicial relief is generally available to protect constitutional rights. While Congress may restrict the availability of injunctive relief, we believe that we should be very hesitant before concluding that Congress has impliedly imposed such a restriction on the authority to award injunctive relief to vindicate constitutional rights.
Id. (citations and internal quotation marks omitted) (quoting Hubbard v. EPA,
Mitchum relied in part on the D.C. Circuit's en banc decision in Spagnola. At issue in Spagnola was whether two federal employees who claimed violations of their constitutional rights could pursue Bivens actions. The court held that they *1039 could not. Spagnola,
While we decline to extend Bivens remedies to [the plaintiffs], we do not suggest that the CSRA precludes the exercise of federal jurisdiction over the constitutional claims of federal employees and job applicants altogether. On the contrary, time and again this court has affirmed the right of civil servants to seek equitable relief against their supervisors, and the agency itself, in vindication of their constitutional rights.
Id. at 229-30 (citations omitted). The court cited with approval its earlier decision in Hubbard, which stated that, as a general matter, "federal courts have jurisdiction to grant equitable relief to remedy agency violations of constitutional rights." Hubbard,
Consistent with Mitchum and Spagnola, and with the position of both sides in this case, we conclude that the district court erred when it dismissed Plaintiffs-Appellants' suit for lack of subject matter jurisdiction. We hold that the statutory scheme governing Gavello's employment does not clearly state an intention on the part of Congress to preclude judicial review of constitutional claims. Plаintiffs-Appellants are therefore entitled to seek equitable relief based on the alleged violation of their First Amendment rights.
IV. Back Pay
Although the government concedes that the district court has jurisdiction over Plaintiffs-Appellants' claims for equitable relief, it argues that their claim for back pay should be dismissed on sovereign immunity grounds. According to the government, neither the Administrative Procedure Act's judicial review provision, 5 U.S.C. § 702, nor the Back Pay Act, 5 U.S.C. § 5596, authorizes a back-pay remedy in the district court in this case. The government readily admits that it did not raise this argument before the district court, and we decline to address it here. We leave it to the district court to decide the issue on remand once the parties have had a full opportunity to develop their arguments before that court.
V. Failure to State a Claim
As a fallback position, the government argues that we should dismiss Plaintiffs-Appellants' action pursuant to Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." The government did not file a Rule 12(b)(6) motion in district court; instead, it sought dismissal solely on subject matter jurisdiction and standing grounds. Although "[w]e may affirm the district court's dismissal on any ground supported by the record," Wolfe v. Strankman,
Conclusion
We reverse the district court's dismissal of Plaintiffs-Appellants' suit for lack of subject matter jurisdiction and standing. We remand to the district court for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
NOTES
Notes
[*] The Honorable H. Russel Holland, Senior United States District Judge for the District of Alaska, sitting by designation.