Payne v. Biden

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.

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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.

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 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

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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

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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)

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(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.

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 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).

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 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

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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

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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

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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

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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.

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 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.

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§ 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

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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

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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.

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 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

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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

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