UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JASON PAYNE,
Plaintiff, v. Civil Action No. 21-3077 (JEB)
JOSEPH R. BIDEN, JR., et al.,
Defendants.
MEMORANDUM OPINION
A jab or a job? Plaintiff Jason Payne is a federal civilian employee who claims that the
Executive Order requiring COVID-19 vaccination for covered federal employees unlawfully puts
him to this choice. Last fall, President Joseph Biden issued Executive Order 14,043, which
mandates vaccinations for executive-branch employees, subject to a medical or religious
exception. Payne, who works for the Navy, refuses to be vaccinated and has not applied for an
exception. He instead filed this lawsuit against a number of federal agencies and officials,
alleging that the Executive Order and the associated agency actions are unconstitutional for
several reasons. After Plaintiff moved for summary judgment, the Government filed a Motion to
Dismiss. The Court will grant the Government’s Motion because the Civil Service Reform Act
deprives the Court of subject-matter jurisdiction over this workplace dispute involving a covered
federal employee.
1 I. Background
A. Legal Background
In September 2021, President Biden issued Executive Order 14,043, which announced a
COVID-19 vaccination requirement for many federal employees. See Exec. Order No. 14,043,
86 Fed. Reg. 50,989, 50,989 (Sept. 9, 2021). The Order, which was designed to “ensur[e] the
health and safety of the Federal workforce and the efficiency of the civil service,” directs the
Safer Federal Workforce Task Force to issue guidance on implementation of the vaccination
requirement. Id. at 50,989–90; see Exec. Order No. 13,991, 86 Fed. Reg. 7045, 7046 (Jan. 25,
2021) (establishing Task Force).
The Task Force guidance recognizes, consistent with the Executive Order, that federal
employees may be entitled to exceptions from the vaccination requirement based on disabilities,
including medical conditions, or religious objections. See Safer Federal Workforce,
Vaccinations, Limited Exceptions to Vaccination Requirement (last visited May 12, 2022),
https://bit.ly/37Ectq2. The guidance further states that federal employees who have not
requested an exception should be fully vaccinated by November 22, 2021. See Safer Federal
Workforce, Vaccinations, Vaccination Requirement for Federal Employees (last visited May 12,
2022), https://bit.ly/37Ectq2. If an employee refuses to get vaccinated and either has not
requested an exception or has had a request denied, then the guidance from the Task Force and
the Office of Personnel Management recommends a procedure of progressive discipline, ranging
from education and counseling to suspension and termination if the noncompliance persists. See
Safer Federal Workforce, Vaccinations, Enforcement of Vaccination Requirement for
Employees (last visited May 12, 2022), https://bit.ly/37Ectq2.
2 B. Factual and Procedural History
Taking the facts alleged in Payne’s Complaint as true, he is a federal civilian employee
who works as an engineer for the Office of Naval Research, a component of the Department of
the Navy. See ECF No. 1 (Compl.), ¶ 6. He has been a member of the civil service for over two
decades. Id., ¶ 2. Plaintiff alleges that, at some unspecified time in the past, he contracted
COVID-19 and recovered. Id., ¶ 7. In his view, he thereby “acquir[ed] natural immunity against
the disease.” Id. Payne now “refuses to accept the COVID-19 vaccination mandated by . . .
[D]efendants” pursuant to the Executive Order. Id., ¶ 76. He has not alleged that he applied for
or intends to apply for a medical or religious exception, nor that he so qualifies. Id.
On October 1, 2021, in keeping with the guidance described above, OPM issued a
memorandum directing agencies to require non-excepted employees to be fully vaccinated by
November 22, 2021. See ECF No. 1-5 (Guidance on Enforcement of Coronavirus Disease 2019
Vaccination Requirement for Federal Employees) at 1. The memorandum also advised that
covered employees’ “failure to comply will result in disciplinary action up to and including
removal or termination.” Id. That same day, the Defense Department issued a memorandum
requiring civilian employees to be “fully vaccinated” by November 22, 2021. See ECF No. 1-6
(Memorandum for Senior Pentagon Leadership) at 1. A month later, the Navy issued a
memorandum clarifying that “[e]vidence of COVID-19 anti-bodies as a result of previous
infection(s) does not satisfy this vaccination requirement; these individuals must also be fully
vaccinated.” ECF No. 1-9 (COVID-19 Mandatory Vaccination Plan for Civilian Employees) at
3. The memorandum reiterated that all civilian employees must be fully vaccinated by
November 22, and that they may be disciplined for failure to do so unless the employee has
applied for or received an exception. Id. at 10–11. By that date, Payne had neither submitted the
3 required form to his supervisors indicating his vaccination status nor applied for an exception,
and he had “advised his direct supervisors that he declines vaccination.” Compl., ¶¶ 53–54.
On November 22, 2021 — the day that Plaintiff was required to be fully vaccinated — he
filed this lawsuit against Defendants President Biden and a number of other federal officials and
agencies. The Complaint alleges that he has already suffered a number of consequences in his
job “for refusing vaccination,” such as “being forced to wear a mask when those who are
vaccinated did not have to wear one,” having his official travel subjected to additional scrutiny,
being subject to additional COVID-19 testing requirements, and more. Id., ¶ 56. He also alleges
that “[D]efendants have promised he will lose his job” for failing to comply with the vaccination
requirement. Id., ¶ 2.
Payne’s three-count Complaint contends that Executive Order 14,043 and the associated
Task Force and agency actions violate the separation of powers and his Fifth Amendment right
to privacy, as well as impose an unconstitutional condition on his employment. Id., ¶¶ 60–86.
He seeks declaratory and injunctive relief. Id. at 26.
Just two days after filing this lawsuit, Plaintiff filed a Motion for Summary Judgment on
each of his three claims. See ECF No. 4 (Pl. MSJ). After Defendants indicated that they planned
to file a Motion to Dismiss, the Court ordered them to file a combined Motion to Dismiss and
Opposition to Motion for Summary Judgment. See Minute Order of Jan. 3, 2022. The briefing
is now complete on these dueling Motions.
II. Legal Standard
As the Court need address only Defendants’ Motion, it sets out that standard alone. That
Motion discusses dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). When
a defendant seeks dismissal under Rule 12(b)(1), the plaintiff must demonstrate that the court has
4 subject-matter jurisdiction to hear his claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992); US Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). “Because
subject-matter jurisdiction focuses on the court’s power to hear the plaintiff’s claim,” the court
has “an affirmative obligation to ensure that it is acting within the scope of its jurisdictional
authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C.
2001). “Absent subject matter jurisdiction over a case, the court must dismiss it.” Bell v. U.S.
Dep’t of Health & Human Servs., 67 F. Supp. 3d 320, 322 (D.D.C. 2014).
In policing its jurisdictional borders, the court must scrutinize the complaint, granting the
plaintiff the benefit of all reasonable inferences that can be derived from the alleged facts. See
Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The court need not
rely “on the complaint standing alone,” however, but may also look to undisputed facts in the
record or resolve disputed ones. See Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.
Cir. 1992). Nor need the court accept inferences drawn by the plaintiff if those inferences are
unsupported by facts alleged in the complaint or merely amount to legal conclusions. See
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Under Federal Rule of Civil Procedure 12(b)(6), meanwhile, a court must dismiss a suit
when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a
motion to dismiss, the Court must “treat the complaint’s factual allegations as true and must
grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and internal quotation
marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not accept as
true, however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported
by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)
5 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although “detailed factual allegations”
are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to
state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation
omitted). A plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and
unlikely,” but the facts alleged in the complaint “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555–56 (quoting Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)).
III. Analysis
In his Complaint and Motion for Summary Judgment, Payne argues that Executive Order
14,043 and the agency actions implementing it are unconstitutional for several reasons. The
Government, for its part, contends that because the Court lacks subject-matter jurisdiction over
Plaintiff’s claims, it should not reach the merits. More specifically, Defendants’ lead position is
that the CSRA divests the Court of jurisdiction. See ECF No. 16-1 (MTD) at 12. Because
subject-matter jurisdiction must “be considered when fairly in doubt,” Iqbal, 556 U.S. at 671, the
Court begins by examining that issue. Agreeing with both the Fourth and Fifth Circuits — the
only two Courts of Appeals to weigh in on the issue — the Court concludes that it does indeed
lack subject-matter jurisdiction because the CSRA precludes challenges of this kind to the
Executive Order. See Rydie v. Biden, No. 21-2359, 2022 WL 1153249, at *1 (4th Cir. Apr. 19,
2022); Feds for Med. Freedom v. Biden, 30 F.4th 503, 511 (5th Cir. 2022). In the analysis that
follows, the Court first examines the relevant background of the CSRA and then explains why
the statute forecloses subject-matter jurisdiction here. Given that result, the Court need not take
up Plaintiff’s Motion for Summary Judgment.
6 A. Background on CSRA
“[T]he CSRA ‘comprehensively overhauled the civil service system.’” United States v.
Fausto, 484 U.S. 439, 443 (1988) (quoting Lindahl v. OPM, 470 U.S. 768, 773 (1985)).
Congress designed the statute “to replace the haphazard arrangements for administrative and
judicial review of personnel action, part of the outdated patchwork of statutes and rules built up
over almost a century that was the civil service system.” Id. at 444 (internal quotation marks and
citations omitted). The CSRA thus “established a comprehensive system for reviewing
personnel action taken against federal employees.” Id. at 455. Indeed, it created “an elaborate
new framework for evaluating adverse personnel actions against federal employees,” which sets
forth “in great detail the protections and remedies applicable to such action[s], including the
availability of administrative and judicial review.” Id. at 443 (cleaned up). Two main sections
of the CSRA are particularly relevant to this case. The Court will introduce those sections here
and then discuss them in more depth in its analysis of Plaintiff’s claims.
First, Chapter 23 governs less severe personnel practices against executive-branch
employees. See 5 U.S.C. § 2301 et seq. Under that section, covered employees who believe that
they have been subjected to a “prohibited personnel practice” can file an allegation with the
Office of Special Counsel. Id. §§ 1214(a), 2302. If the OSC finds “reasonable grounds to
believe” that a prohibited personnel practice occurred, the practice must be reported to the Merit
Systems Protection Board, the employing agency, and OPM. Id. § 1214(b)(2)(B). If the issue is
not remedied by the relevant agency, the OSC may petition to the MSPB, which can order
corrective action, including attorney fees, back pay, and other compensatory damages. Id.
§ 1214(b), (g). Judicial review of final orders of the MSPB is available in the U.S. Court of
Appeals for the Federal Circuit. Id. §§ 1214(c), 7703(b)(1)(A).
7 The other section of the CSRA of primary relevance here, Chapter 75, governs more
severe personnel actions against covered federal employees. Id. § 7501 et seq. This section
addresses the applicable procedures when an employee challenges a suspension, reduction in pay
or grade, or removal. Id. § 7512(1)–(5). Employees challenging a personnel action under this
section are afforded a number of procedural rights, including notice, representation by counsel,
the opportunity to respond, and a reasoned decision from the agency. Id. §§ 7503(b), 7513(b).
Under this Chapter, as under Chapter 23, appeal is generally available to the MSPB, and then
from the MSPB to the Federal Circuit. Id. §§ 7503(c), 7513(d), 7703(b)(1)(A).
The critical point is that the CSRA, while providing for review in the Federal Circuit
under many circumstances, does not allow review of such personnel actions in federal district
court.
B. Application
Against that backdrop, the Court turns to the core issue: does the CSRA divest the Court
of subject-matter jurisdiction over this lawsuit? “Within constitutional bounds, Congress decides
what cases the federal courts have jurisdiction to consider.” Bowles v. Russell, 551 U.S. 205,
212 (2007). While federal courts ordinarily have jurisdiction over “all civil actions arising under
the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, when “a special
statutory review scheme exists,” “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) (internal quotation marks and citation omitted).
Indeed, the Supreme Court has supplied “a framework for determining when a statutory scheme
of administrative and judicial review forecloses parallel district-court jurisdiction.” Id. at 12
(citing Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)). “Under Thunder Basin’s
8 framework, courts determine that Congress intended that a litigant proceed exclusively through a
statutory scheme of administrative and judicial review when (i) such intent is ‘fairly discernible
in the statutory scheme,’ and (ii) the litigant’s claims are ‘of the type Congress intended to be
reviewed within [the] statutory structure.’” Id. at 15 (quoting Thunder Basin, 510 U.S. at 207).
The Court addresses these two steps in turn, concluding that both “support the conclusion
that Congress intended the statutory scheme to be exclusive.” Id. at 16. As a result, Plaintiff
must follow the CSRA’s remedial scheme and cannot proceed here.
Step One
As the Fourth Circuit recognized in concluding that the district court lacked jurisdiction
over an essentially identical challenge to Executive Order 14,403, “The Supreme Court has
spoken on step one” of this inquiry, holding that it is fairly discernible that the CSRA is intended
to foreclose direct judicial review in at least some circumstances. Rydie, 2022 WL 1153249, at
*4. More specifically, in Elgin v. Department of the Treasury, 567 U.S. 1 (2012), the Court
addressed “whether 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. Relying on Thunder Basin, the Court answered in the affirmative,
concluding that it was “fairly discernible that the CSRA review scheme was intended to preclude
district court jurisdiction over petitioners’ claims.” Id. at 23. Looking first at the text and
structure of the CSRA, the Court explained that the “painstaking detail with which the CSRA
sets out the method for covered employees to obtain review of adverse employment actions”
established that “Congress intended to deny such employees an additional avenue of review in
district court.” Id. at 11–12. The Court went on to state that “[t]he purpose of the CSRA also
supports our conclusion that the statutory review scheme is exclusive, even for employees who
9 bring constitutional challenges to federal statutes.” Id. at 13. Here, Plaintiff does not contend,
nor does the Court see any basis for believing, that the rule stated in Thunder Basin should be
different just because a challenge is to an Executive Order, as opposed to a statute.
Elgin thus controls the first part of the jurisdictional inquiry. Rydie, 2022 WL 1153249,
at *4 (“Thus, Elgin resolves step one.”); see also Jarkesy, 803 F.3d at 16.
Step Two
The next question, therefore, is whether the circumstances here qualify. Or, to use the
language from Thunder Basin, are Plaintiff’s claims “of the type Congress intended to be
reviewed within this statutory structure”? See 510 U.S. at 212. At this step, “the Supreme Court
has provided three factors to consider: (i) whether a finding that jurisdiction is precluded would
‘foreclose all meaningful judicial review,’ (ii) whether the suit is ‘wholly collateral to a statute’s
review provisions,’ and (iii) whether the claims are ‘outside the agency’s expertise.’” Miriyeva
v. U.S. Citizenship & Immigr. Servs., 9 F.4th 935, 940 (D.C. Cir. 2021) (quoting Thunder Basin,
510 U.S. at 212–13). The D.C. Circuit has clarified that those considerations do not “form three
distinct inputs into a strict mathematical formula. Rather, the considerations are general
guideposts useful for channeling the inquiry into whether the particular claims at issue fall
outside an overarching congressional design.” Jarkesy, 803 F.3d at 17. While the issue is
certainly more involved than the first part of the Thunder Basin analysis, the Court similarly
concludes that the second part points toward a lack of subject-matter jurisdiction over this suit.
a. Availability of Meaningful Review
Payne initially contends that “preclusion [of district-court jurisdiction] could foreclose all
meaningful judicial review.” ECF No. 20 (Pl. Opp.) at 4. The Court disagrees. Plaintiff’s
10 challenge can reasonably be characterized in one of two ways, and under either classification, a
finding that this Court lacks jurisdiction would not foreclose all meaningful review.
First, to the extent that his challenge is to a change in his working conditions, the CSRA
plainly provides for meaningful judicial review. As referenced, 5 U.S.C. § 2302 defines a
“prohibited personnel practice” as any one of fourteen acts that supervisory employees may not
take against an employee in a “covered position.” Id. § 2302(a), (b). A “covered position”
includes “any position in the competitive service,” id. § 2302(a)(2)(B), and the competitive
service includes “all civil service positions in the executive branch,” subject to certain exceptions
not relevant here. Id. § 2102(a)(1). Payne works in the executive branch and is thus in a covered
position — a conclusion that he does not dispute. See Compl., ¶ 6; Pl. Opp. at 4–13. Nor does
he dispute that the vaccination requirement has been dictated by a supervisory employee, who
has the “authority to take, direct others to take, recommend, or approve any personnel action.” 5
U.S.C. § 2302(b). Of particular relevance here, one such enumerated “personnel action” is a
“significant change in duties, responsibilities, or working conditions.” Id. § 2302(a)(2)(A)(xii).
There is good reason to think that Plaintiff is bringing a challenge to his working
conditions. The Supreme Court has explained, in interpreting Title VII of the CSRA, that the
term “working conditions” refers “to the ‘circumstances’ or ‘state of affairs’ attendant to one’s
performance of a job.” Fort Stewart Sch. v. FLRA, 495 U.S. 641, 645 (1990). The Fifth Circuit
recently relied on this language from Fort Stewart to conclude that “Executive Order 14043
qualifies as a significant change to the circumstances attending the job performance of federal
employees.” Feds for Med. Freedom, 30 F.4th at 510 n.4. Here, Payne’s own allegations
indicate that he is challenging a covered change in his working conditions. In addition to
11 alleging that he “will be disciplined, suspended without pay, and removed from Federal service”
because of the Executive Order, see Compl., ¶ 58, Plaintiff further alleges:
[F]or refusing vaccination he has been improperly stigmatized by being forced to wear a mask when those who are vaccinated did not have to wear one; his official travel is subject to extra scrutiny and additional levels of approval; he is unable to have unrestricted access to his workplace and must produce a negative COVID-19 test for entry when vaccinated workers do not; he was forced to sign an acknowledgement that his failure to be fully vaccinated against COVID-19 by 22 November 2021, or to provide proof of vaccination, “negatively affects the agency’s ability to carry out its mission”; and he must personally bear the cost of COVID-19 testing.
Id., ¶ 56. Consistent with the Supreme Court and the Fifth Circuit’s understanding of the term in
the CSRA, Payne can thus be understood to challenge a “significant change in duties,
responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii).
As a result, the CSRA empowers him to attack such a personnel action by filing an
allegation with the OSC. Id. § 1214(a)(3). In such a proceeding, the OSC must provide
employees “fair and equitable treatment . . . with proper regard for their privacy and
constitutional rights.” Id. § 2301(b)(2). “The CSRA thus empowers the [OSC] to hear
constitutional claims.” Rydie, 2022 WL 1153249, at *5; accord Ferry v. Hayden, 954 F.2d 658,
661 (11th Cir. 1992). Then, as outlined, an employee’s claims may be presented to the MSPB
and eventually to the Federal Circuit. As the Supreme Court has recognized, “[T]he CSRA does
not foreclose all judicial review of . . . constitutional claims” when it “directs that judicial review
shall occur in the Federal Circuit.” Elgin, 567 U.S. at 10. On the contrary, “the Federal Circuit
is fully capable of providing meaningful review of [such] claims.” Id. In short, insofar as Payne
is challenging a change in working conditions, he could avail himself of meaningful judicial
review under the CSRA.
12 Before moving on from Chapter 23 of the Act, it is worth noting that another provision of
§ 2302 may well provide a separate avenue by which Plaintiff could obtain meaningful judicial
review. More specifically, an additional enumerated prohibited practice under that section is
“tak[ing] or fail[ing] to take any [] personnel action if the taking or failure to take such action
violates any law, rule, or regulation.” Id. § 2302(b)(12). As a result, to the extent that the
Executive Order requires supervisory employees to take action that violates the Constitution,
meaningful judicial review is also available under the procedures previously described. See
Rydie, 2022 WL 1153249, at *5 (“So even if Executive Order 14,043 required covered
employees to engage in a prohibited practice, § 2302(b)(12) provides for meaningful review.”);
cf. Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1432 (D.C. Cir. 1996) (interpreting § 2302 to
conclude that “it is a ‘prohibited personnel practice’ to take a personnel action that
unconstitutionally burdens an employee’s speech”) (citations omitted).
The second main way Plaintiff’s suit could be characterized is as a challenge to a
termination decision. Here, too, meaningful review is available, this time under Chapter 75 of
the CSRA. As discussed, that section — which applies to Payne for the same reasons that
Chapter 23 does, see 5 U.S.C. § 7511(a)(1)(A) — governs the procedures applicable to removals.
Id. §§ 7512, 7513. Under Chapter 75, “[a]n employee against whom an action [including
removal] is proposed is entitled to” notice, reasonable time to present evidence, legal
representation, and a written reasoned decision. Id. § 7513(b). Notice must be provided in
writing at least thirty days before the agency acts and must describe the charges against the
employee. Id. § 7513(b)(1); see Brook v. Corrado, 999 F.2d 523, 526 (Fed. Cir. 1993). Once the
adverse personnel action is taken, moreover, the employee “is entitled to appeal” to the MSPB.
Id. § 7513(d). In such an appeal, the employee has the right to a hearing and an attorney. Id.
13 § 7701(a). Next, as under Chapter 23, the MSPB’s final orders may be appealed to the Federal
Circuit. Id. § 7703(b)(1)(A).
There can thus be little doubt that, for the same reasons explained in reference to Chapter
23, Chapter 75 of the CSRA provides for meaningful judicial review when an employee is
challenging a removal that has already occurred. See Rydie, 2022 WL 1153249, at *6 (“Like
that for prohibited personnel practices, the process for challenging termination under § 7513
poses only the risks associated with traditional litigation.”). In fact, Payne admits, as he must,
that the MSPB “may handle a constitutional challenge to an employee-specific termination.” Pl.
Opp. at 4. He contends, however, that the CSRA nonetheless does not provide him an avenue
for meaningful judicial review because there has been no “predicate personnel action” in this
case, and “neither the CSRA nor the MSPB are designed to deal with pre-enforcement
constitutional challenges.” Id. at 4–5. He is mistaken.
As the Fourth Circuit concluded, Chapter 75 “provides an adequate vehicle to mount a
pre-enforcement challenge to termination.” Rydie, 2022 WL 1153249, at *6. That is because
the statute provides the rights and processes afforded to “[a]n employee against whom an action
is proposed.” 5 U.S.C. § 7513(b) (emphasis added). The Court concurs with that Circuit’s
conclusion that “[t]hese processes allow for meaningful review.” Rydie, 2022 WL 1153249, at
*6. In addition, while § 7513(b) does not define the scope of a “proposed” action, Payne never
argues that no such action looms. On the contrary, he alleges that “[D]efendants have promised
he will lose his job,” and that because the 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 (internal quotation marks
14 omitted). Those allegations suffice to establish that a covered action has been proposed, and he
can thus obtain meaningful review before a removal transpires.
Plaintiff’s additional attempts to circumvent the CSRA are unpersuasive. For example,
he contends that “[b]inding precedent holds that pre-enforcement challenges to government-wide
policies do not fall within the CSRA’s exclusive jurisdiction.” Pl. Opp. at 6. Here, he relies on
several decades-old D.C. Circuit cases, which reasoned that while “[it] is one thing to say that
when [the CSRA] provides a detailed scheme of administrative protection for defined
employment rights, less significant employment rights of the same sort are implicitly excluded,”
“[it] is quite different to suggest . . . that a detailed scheme of administrative adjudication
impliedly precludes preenforcement judicial review of rules.” Nat’l Treasury Emps. Union v.
Devine, 733 F.2d 114, 117 n.8 (D.C. Cir. 1984); see also Nat’l Treasury Emps. Union v. Horner,
854 F.2d 490, 497 (D.C. Cir. 1988); Nat’l Fed’n of Fed. Emps. v. Weinberger, 818 F.2d 935, 940
(D.C. Cir. 1987). These cases, however, predate both Thunder Basin and Elgin, which held that
a statutory scheme bars review when Congress’s intention to do so is “fairly discernible.” 567
U.S. at 8–10; see 510 U.S. at 207. Indeed, the D.C. Circuit has reasoned in the FLRA context
that a related suggestion put forth in Weinberger “cannot survive the Supreme Court’s decision
in Thunder Basin.” Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, 929 F.3d 748, 758 (D.C.
Cir. 2019); see Am. Fed’n of Gov’t Emps. v. Sec’y of Air Force, 716 F.3d 633, 639 (D.C. Cir.
2013) (indicating in post-Elgin case that CSRA applies to “systemwide challenge to an agency
policy interpreting a statute just as it does to the implementation of such a policy in a particular
case”) (internal quotation marks omitted).
In any event, regardless of the precise scope of the D.C. Circuit’s more recent
pronouncements about the continued validity of Devine and its progeny, it is well established
15 that “[c]ontrolling precedent may be ‘effectively overruled’ . . . if a later Supreme Court decision
‘eviscerates’ its reasoning.” Brookens v. Acosta, 297 F. Supp. 3d 40, 47 (D.D.C. 2018), aff’d
sub nom. Brookens v. Dep’t of Lab., No. 18-5129, 2018 WL 5118489 (D.C. Cir. Sept. 19, 2018)
(internal quotation marks and citation omitted). Such is the case here for the reasons previously
discussed. See Rydie, 2022 WL 1153249, at *6 (declining to apply Devine in light of Thunder
Basin and Elgin).
Payne next argues that denying jurisdiction here would run afoul of the Supreme Court’s
pronouncement that “[w]e normally do not require plaintiffs to bet the farm . . . by taking the
violative action before testing the validity of the law, and we do not consider this a meaningful
avenue of relief.” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 490–91
(2010) (internal quotation marks and citations omitted); see Pl. Opp. at 10–12. The CSRA
compels no such thing, however. First off, Payne’s ability to challenge a change in his working
conditions via the OSC allows him to raise his constitutional claims before termination is even
proposed. Relatedly, the procedures afforded to a covered employee facing a proposed
termination similarly insulate him from having to bet the farm, the ranch, or anything else in
order to obtain review. See Rydie, 2022 WL 1153249, at *6. In short, concluding that the Court
lacks subject-matter jurisdiction here would not contravene the principle set forth in Free
Enterprise. See Jarkesy, 803 F.3d at 20 (“The oddities that led the Supreme Court [in Free
Enterprise] to believe that Congress could not possibly have intended the accounting firm to
proceed through the administrative route are not present in this case.”).
Last, in positing that it would be illogical to have to raise a pre-enforcement challenge via
the CSRA’s review scheme, Payne gets things exactly backwards. Under his view, a plaintiff
who would indisputably have to proceed under the CSRA after suffering an adverse personnel
16 action could circumvent this process and obtain immediate federal-court review by filing suit
once the action is proposed but before it is executed. If this were the case, however, the
plaintiffs in Elgin could have avoided the CSRA entirely if they had just sued while their adverse
personnel actions were proposed or pending. The Court is highly skeptical that Congress
“exhaustively detail[ed] the system of review before the MSPB and the Federal Circuit” only to
leave such a conspicuous (and unexplained) loophole. See Elgin, 567 U.S. at 11. Indeed,
permitting such suits “would reintroduce the very potential for inconsistent decisionmaking and
duplicative judicial review that the CSRA was designed to avoid,” as well as “create the
possibility of parallel litigation regarding the same agency action before the MSPB and a district
court.” Id. at 14.
In sum, this Court agrees with the Fourth and Fifth Circuits that, under the circumstances
of these challenges, finding that jurisdiction is precluded does not foreclose all meaningful
judicial review. See Rydie, 2022 WL 1153249, at *7; Feds for Med. Freedom, 30 F.4th at 510.
b. Wholly Collateral
The second Thunder Basin factor looks at whether a challenge is “wholly collateral to a
statute’s review provisions.” 510 U.S. at 212 (internal quotation marks and citation omitted).
This consideration similarly militates against the Court’s subject-matter jurisdiction here. Payne
contends that his challenge is wholly collateral to the CSRA’s review provisions because he is
bringing a pre-enforcement “structural” constitutional challenge. See Pl. Opp. at 4. The Court
believes otherwise.
In Elgin, the Supreme Court concluded that the plaintiff-employees’ challenges were not
wholly collateral because their “constitutional claims are the vehicle by which they seek to
reverse the removal decisions, to return to federal employment, and to receive the compensation
17 they would have earned but for the adverse employment action.” Elgin, 567 U.S. at 22. The
Court also found it significant that “[a] challenge to removal is precisely the type of personnel
action regularly adjudicated by the MSPB and the Federal Circuit within the CSRA scheme.” Id.
Although Payne is not challenging a termination that has already occurred, he is in essence
“preemptively challeng[ing] [his] termination” or at least challenging a change in his working
conditions. Rydie, 2022 WL 1153249, at *7. In other words, “this case is ‘the vehicle by which
[he] seek[s] to’ avoid imminent ‘adverse employment action.’” Feds for Med. Freedom, 30 F.4th
at 511 (quoting Elgin, 567 U.S. at 22). Regardless of whether Plaintiff labels his challenge
“structural” in nature, at bottom he seeks to avoid being terminated or otherwise disciplined at
work for failing to comply with the Executive Order. “Far from a suit wholly collateral to the
CSRA scheme, the case before us is a challenge to CSRA-covered employment action brought
by [a] CSRA-covered employee[] requesting relief that the CSRA routinely affords.” Elgin, 567
U.S. at 22.
As the Fourth and Fifth Circuits similarly concluded, this type of challenge is thus not
wholly collateral to the CSRA’s review provisions. See Rydie, 2022 WL 1153249, at *7; Feds
for Med. Freedom, 30 F.4th at 510–11.
c. Agency Expertise
The third and final Thunder Basin consideration — agency expertise — points in the
same direction as the first two. On this score, Payne again relies on Free Enterprise and contends
that his constitutional claims do not present “the sort of agency fact-bound inquiries” that
implicate agency expertise. See Pl. Opp. at 5 (citing Free Enter., 561 U.S. at 491). This
argument fares no better than his other attempts to draw parallels with Free Enterprise.
18 Plaintiff is correct that Free Enterprise reasoned that the “[p]etitioners’ constitutional
claims are . . . outside the Commission’s competence and expertise” in part because the
“questions involved do not require technical considerations of [agency] policy.” 561 U.S. at 491
(internal quotation marks and citation omitted). That was not the final word on the topic,
however, as Elgin proves. See 567 U.S. at 22–23. Yet Payne neglects to grapple with Elgin’s
discussion of this factor, which cuts strongly against his position. Indeed, as the D.C. Circuit
expressly recognized in reconciling the discussions of agency expertise in Free Enterprise and
Elgin, “Elgin later clarified . . . that an agency’s relative level of insight into the merits of a
constitutional question is not determinative.” Jarkesy, 803 F.3d at 28.
In Elgin itself, the Supreme Court rejected the federal-employee plaintiffs’ argument that
their constitutional challenges fell outside of the Board’s expertise. See 567 U.S. at 22. The
Court explained that the employees’ expertise-based arguments “overlook[ed] the many
threshold questions that may accompany a constitutional claim and to which the MSPB can
apply its expertise.” Id. For instance, “preliminary questions unique to the employment context
may obviate the need to address the constitutional challenge.” Id. at 22–23. The Court observed,
moreover, that the “challenged statute may be one that the MSPB regularly construes,” or a case
may involve “statutory or constitutional claims that the MSPB routinely considers.” Id. at 23. In
sum, “because the MSPB’s expertise can otherwise be ‘brought to bear’ on employee appeals
that challenge the constitutionality of a statute,” the Court saw “no reason to conclude that
Congress intended to exempt such claims from exclusive review before the MSPB and the
Federal Circuit.” Id.
The same result obtains here. The relevant agencies likely have experience and expertise
relevant to at least some of Payne’s challenges. After all, employing agencies and the MSPB no
19 doubt have experience adjudicating employee challenges to a range of personnel actions. As the
Fourth Circuit observed in Rydie, it is also possible that the employing agency could moot some
of Plaintiff’s claims during its review. Relatedly, that agency could determine that taking “action
against [Plaintiff] wouldn’t ‘promote the efficiency of the service.’” Rydie, 2022 WL 1153249,
at *8 (quoting 5 U.S.C. § 7513(a)). And if an appeal reaches the MSPB, it could reach the same
conclusion, in which case it could order corrective action and obviate the need for federal court
intervention. See Feds for Med. Freedom, 30 F.4th at 511.
In light of Elgin’s clarification about how to assess whether agency expertise may be
brought to bear on a given case, consequently, this factor does not supply a reason to conclude
that Plaintiff’s claims should proceed outside of the CSRA’s review scheme. The Court thus
does not have subject-matter jurisdiction over this suit, which it will dismiss.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss. A
separate Order so stating will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: May 12, 2022