Whitman v. Department of Transportation

(Slip Opinion) Cite as: 547 U. S. ____ (2006) 1

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 04–1131
_________________

TERRY L. WHITMAN, PETITIONER v. DEPARTMENT
OF TRANSPORTATION ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 5, 2006]

PER CURIAM.
Terry Whitman, the petitioner, is an employee of the
Federal Aviation Administration (FAA) and is subject to
the agency’s drug and alcohol testing program. Without
first seeking to pursue grievance procedures under his
collective-bargaining agreement, he filed suit in the
United States District Court for the District of Alaska,
alleging the FAA tested him in a nonrandom manner, in
violation of his constitutional rights and 49 U. S. C.
§45104(8).
The FAA has its own procedural framework for the
resolution of claims by its employees; and for this purpose
it adopts certain sections of the Civil Service Reform Act of
1978 (CSRA), including Chapter 71 of Title 5, which sets
forth the rules for grievances. 49 U. S. C. §40122(g)(2)(C).
The District Court held that, under the provisions of the
CSRA, it was without jurisdiction to consider the peti
tioner’s claims. The Court of Appeals for the Ninth Circuit
affirmed, stating that because “5 U. S. C. §7121(a)(1), as
amended in 1994, does not expressly confer federal court
jurisdiction over employment-related claims covered by
2 WHITMAN v. DEPARTMENT OF TRANSPORTATION

Per Curiam

the negotiated grievance procedures of federal employees’
collective bargaining agreements,” his claims are pre
cluded. 382 F. 3d 938, 939 (2004). This Court granted
certiorari to review the judgment. 545 U. S. ___ (2005).
The Court of Appeals was correct to say that 5 U. S. C.
§7121(a)(1) does not confer jurisdiction. Another statute,
however—a very familiar one—grants jurisdiction to the
federal courts over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28
U. S. C. §1331. The question, then, is not whether 5
U. S. C. §7121 confers jurisdiction, but whether §7121 (or
the CSRA as a whole) removes the jurisdiction given to the
federal courts, see Verizon Md. Inc. v. Public Serv. Comm’n
of Md., 535 U. S. 635, 642 (2002) (holding that “even if [47
U. S. C.] §252(e)(6) does not confer jurisdiction, it at least
does not divest the district courts of their authority under 28
U. S. C. §1331 to review the Commission’s order for compli
ance with federal law”), or otherwise precludes employees
from pursuing remedies beyond those set out in the CSRA,
cf. United States v. Fausto, 484 U. S. 439, 443–444 (1988);
Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967)
(“The question is phrased in terms of ‘prohibition’ rather
than ‘authorization’ because . . . judicial review of a final
agency action by an aggrieved person will not be cut off
unless there is persuasive reason to believe that such was
the purpose of Congress”).
In deciding the question of jurisdiction and preclusion,
the Court would be required first to ascertain where Whit-
man’s claims fit within the statutory scheme, as the CSRA
provides different treatment for grievances depending on
the nature of the claim. It may be, for example, that the
FAA’s actions, as described by the petitioner, constitute a
“prohibited personnel practice.” See 5 U. S. C. §2302(b);
49 U. S. C. §40122(g)(2)(A). Both the petitioner and the
Government say they do not, but because the ultimate
question may be jurisdictional, this concession ought not
 Cite as: 547 U. S. ____ (2006) 3

Per Curiam

to be accepted out of hand. See Weinberger v. Bentex Phar
maceuticals, Inc., 412 U. S. 645, 652 (1973) (“Parties, of
course, cannot confer jurisdiction; only Congress can do so”).
The Court of Appeals did not decide whether the peti
tioner’s allegations state a “prohibited personnel practice.”
The proper course, then, is to remand for the Court of
Appeals to address the matter, see National Collegiate
Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999), as well as
the ultimate issue of preclusion. The various other issues
raised before this Court, but not decided below, may also
be addressed on remand, including: whether the petitioner
has challenged final agency action; whether the petitioner
has exhausted his administrative remedies; whether
exhaustion is required given this statutory scheme and
the Administrative Procedure Act, as interpreted in Darby
v. Cisneros, 509 U. S. 137 (1993); and whether the Govern
ment has forfeited its exhaustion-of-remedies argument.
It may be that a decision on these questions can obviate
the need to decide a more difficult question of preclusion.
The judgment of the Court of Appeals is vacated, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.

JUSTICE ALITO took no part in the consideration or
decision of this case.