Case: 21-30219 Document: 00516357918 Page: 1 Date Filed: 06/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 15, 2022
No. 21-30219 Lyle W. Cayce
Clerk
Michael S. Zummer,
Plaintiff—Appellant,
versus
Jeffery S. Sallet, Special Agent in Charge, FBI, New Orleans Division,
in his individual capacity; Daniel Halphen Evans, Assistant Special
Agent in Charge, FBI, New Orleans Division, Criminal Branch, in his
individual capacity; Laura A. Bucheit, Assistant Director, FBI, Security
Division, in her individual capacity; Brigette Class, former-Deputy
Assistant Director, FBI, Security Division, in her individual capacity; Daniel
Powers, former-Section Chief, FBI, Security Division, in his individual
capacity; Michelle Anne Jupina, Assistant Director, FBI, Records
Management Division, in her individual capacity; David M. Hardy,
Chief, FBI, Records Management Division, Record/Information Dissemination
Section, in his individual capacity; Michael G. Seidel, Acting/Assistant
Section Chief, FBI, Records Management Division, Record/Information
Dissemination Section, in his individual capacity; Gregory A. Brower,
former Deputy General Counsel, FBI, currently Assistant Director, FBI, Office
of Congressional Affairs, in his individual capacity; Richard R. Brown,
Assistant General Counsel, FBI, in his individual capacity; Valerie
Parlave, Executive Assistant Director, FBI, Human Resources Branch, in
her individual and official capacities; Federal Bureau of
Investigation; David W. Schlendorf, Jr., Assistant Director,
Federal Bureau of Investigation, Human Resources Division, in his individual
capacity; Stephen P. Rees, Assistant Director, Federal Bureau of
Investigation, Records Management Division, in his individual capacity;
Gerald Roberts, Jr., Assistant Director, Federal Bureau of
Investigation, Security Division, in his individual and official capacities,
Defendants—Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:17-CV-7563
Before Smith, Elrod, and Oldham, Circuit Judges.*
Jerry E. Smith, Circuit Judge:
Former FBI special agent Michael Zummer asked a federal district
court to order the FBI to issue him a top secret clearance and reinstate his
employment. He also sought damages against FBI officials for revoking his
clearance and suspending him, for preventing him from taking other employ-
ment while suspended, and for delaying the release of letters that Zummer
says contain his protected speech.
The district court dismissed those claims. It concluded that Zummer
has no cause of action against the officers in their individual capacities. And
it reasoned that its subject matter jurisdiction does not include the power to
order the FBI to reinstate Zummer’s security clearance. We agree and affirm.
I.
A.
As a special agent, Zummer investigated public corruption in Louisi-
ana. He worked on a high-profile case in which a district attorney was
accused of pressuring over twenty women into giving him sexual favors in
return for lenient treatment for themselves or their family members. Zum-
mer felt strongly that the evidence that he helped unearth merited a severe
charge. But a U.S. Attorney initially declined to bring any charges. Years
later, the U.S. Attorney’s successor agreed, in a plea deal, to prosecute the
*
Judge Oldham concurs in the judgment and in all of the opinion except
part II.C.
2
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district attorney for only obstruction of justice—an offense with a three-year
maximum sentence.
Zummer was unsatisfied, believing that there was substantial evidence
of grave wrongdoing, which made the prosecutor’s decision “perplexing.”
Throughout the process, Zummer perceived self-interested resistance from
several government attorneys. He also regarded a high-level prosecutor’s
apparent personal relationship with a defense attorney as a conflict of inter-
est. So he concluded that the whole process was illegitimate.
Accordingly, Zummer refused to sign the government’s draft of the
factual basis for the plea. He considered it inaccurate in that it “substantially
minimized” the district attorney’s wrongdoing. He wished to persuade the
presiding court not to accept it.
Zummer’s solution was to write the court a letter detailing his con-
cerns. But he recognized that doing so might ruffle feathers at the U.S. Attor-
ney’s Office and strain its relationship with the FBI. So he asked his superiors
for permission before sending the letter, which emphasized that he was writ-
ing “as a private citizen” without authority to communicate the FBI’s official
position.
Zummer’s superiors directed him to get permission from the Depart-
ment of Justice before sending the letter. Nine days before the former district
attorney was due to be sentenced for obstructing justice, Zummer still hadn’t
heard back. So he changed course. He submitted the letter to the FBI’s pre-
publication review office and requested expedited appraisal. 1 He wanted
1
The FBI prepublication review office screens all FBI personnel’s requests to “dis-
clos[e] FBI information outside of their official duty requirements.” Federal Bureau of
Investigation Information Management Division, Prepublication Review Policy Guide 4
(2020), https://vault.fbi.gov/prepublication-review-policy-guide-1065pg/prepublication-
review-policy-guide-1065pg-part-01-of-01/view. That office reviews the “legality [and]
3
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approval to send the letter to the presiding court and to make it public.
An FBI prepublication reviewer first denied Zummer’s requests
entirely. Zummer says that that employee later partially relented and offered
to work with Zummer to allow the public release of a redacted version of the
letter. But the FBI would not clear Zummer to release the letter to the court
in any form.
That answer didn’t suit Zummer’s purpose in drafting the letter. So,
having failed to get permission, he took his chances with forgiveness. He sent
the letter to the court and told his superiors what he had done. 2
There was no forgiveness. Zummer says his superiors demanded that
he retract the letter and threatened him with discipline. Zummer refused.
Instead, he sent the court a second letter, explaining his view that the infor-
mation in the first letter wasn’t protected by privilege.
Zummer’s supervisors carried out their threats. They suspended him
“from investigative activity” and assigned him to sit alone in an unused
office. 3 Then the FBI suspended his security clearance. Though Zummer
propriety” of those requests. Id.
FBI employees’ obligation to get approval before publishing information they learn
through their official duties stems, at least in part, from their employment contracts. See
Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (per curiam). Zummer doesn’t chal-
lenge the constitutionality of the prepublication review process generally, but other courts
have rejected the contention that prepublication review is an unconstitutional prior restraint
of protected speech. See, e.g., Edgar v. Haines, 2 F.4th 298, 313–16 (4th Cir. 2021), cert.
denied, 2022 U.S. LEXIS 2544 (May 23, 2021) (No. 21-791); Wilson v. CIA, 586 F.3d 171,
184–85 (2d Cir. 2009); Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1439–43 (D.C. Cir. 1996).
2
“There you go. Givin’ a f[ig] when it ain’t your turn to give a f[ig].” The Wire:
The Target (HBO television broadcast June 2, 2002).
3
“[W]hen they ask you where you wanna go—and they are gonna ask you where
you wanna go—do yourself a favor: keep your mouth shut.” The Wire: Old Cases (HBO
television broadcast June 23, 2002).
4
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had not disclosed any classified information, FBI management said it could
not trust him to learn new classified information because of his “position that
information [he] personally gather[s] in the performance of [his] duties . . .
may be disclosed [in his capacity] as a private citizen.”
FBI special agents must have a “Top Secret Sensitive Compartmented
Information Clearance.” 4 So after Zummer’s clearance was suspended, his
employment was automatically suspended without pay. But since he was
technically still an FBI employee, he remained under its thumb. He asked for
permission to work another job while suspended. The FBI allowed him to
apply for other jobs but prevented him from accepting when one was offered.
Meanwhile, Zummer continued his efforts to publish the letters that
he had sent to the court. The FBI eventually consented to the release of a
heavily redacted version of the first letter. Unsatisfied, Zummer appealed the
redactions, but to no avail.
Finally, the FBI permanently revoked Zummer’s security clearance. It
explained that Zummer had violated the terms of his employment and was
guilty of “untrustworthy or unreliable behavior in the unauthorized release of
sensitive government protected information.”
B.
Zummer sued the FBI and everyone involved in managing his employ-
ment status or reviewing his requests to send and publish the letters. He
characterized their decisions as retaliation for sending his first letter to the
court. He claimed that was protected speech and that punishing him in
4
FBI Jobs, Special Agent Selection System: All You Need To
Know To Apply 2, 9 (2022), https://www.fbijobs.gov/sites/default/files/how-to-
apply.pdf.
5
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response violated the First Amendment.
Zummer requested five categories of relief. First, he sought an injunc-
tion ordering the FBI and some of its officers to allow him to publish the
unredacted letters. 5 Second, he asked the court to reinstate his security
clearance and to order him returned to duty. 6 Third, he requested compen-
satory and punitive damages for the delay in publishing his letter. 7 Fourth, he
solicited compensatory and punitive damages for the adverse employment
actions, including the suspension and revocation of his security clearance. 8
Fifth, he called for a declaratory judgment establishing that the events de-
scribed above amounted to unlawful retaliation.
The district court dismissed the claims in the second, third, and fourth
categories. It concluded that the Civil Service Reform Act (“CSRA”) divests
federal courts of subject matter jurisdiction to hear Zummer’s claims arising
from adverse employment actions. Alternatively, it reasoned that those
claims must be dismissed because courts cannot require the Executive Branch
to explain its security-clearance decisions. And the court dismissed Zum-
mer’s claims arising from his delayed speech, reasoning that those individual-
capacity claims arise in a new context, and special factors counsel hesitation
in recognizing a cause of action. 9
5
That category comprises claims against the FBI and defendants Hardy and Rees
in their official capacities.
6
That category comprises claims against the FBI and defendants Parlave and
Roberts in their official capacities.
7
That category comprises claims against Hardy, Jupina, Rees, and Seidel in their
individual capacities.
8
That category comprises claims against defendants Brower, Brown, Bucheit,
Class, Evans, Parlave, Powers, Roberts, Sallet, and Schlendorf in their individual capacities.
9
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
6
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The court declined to dismiss the claims seeking unredacted publica-
tion of Zummer’s letters. It observed that no evidence established that the
letters’ contents were “classified[ ] or otherwise privileged.” The parties
then settled those claims. The FBI agreed to allow Zummer to publish the
full, unredacted letters. The parties moved for final judgment, and the court
agreed.
Zummer appeals the dismissal of his official- and individual-capacity
claims arising from the suspension and revocation of his security clearance
and the delay in publishing his letters and sending them to the court. His
appeal presents two questions. First, does the district court have subject mat-
ter jurisdiction to hear his challenges to the FBI’s security-clearance deci-
sions? Second, for claims within the district court’s jurisdiction, does Zum-
mer have a cause of action against any of the individual-capacity defendants?
The answer to both questions is “no.” 10
II.
Zummer’s First Amendment challenge arises under federal law. Ordi-
narily, that would end our inquiry into subject matter jurisdiction. See
28 U.S.C. § 1331. But where federal employees contest personnel actions, we
must also ask whether the CSRA has abrogated the general grant of jurisdic-
tion to the federal courts. See Whitman v. Dep’t of Transp., 547 U.S. 512, 514
(2006) (per curiam).
The CSRA “comprehensively overhauled the civil service system.”
Lindahl v. Off. Pers. Mgmt., 470 U.S. 768, 773 (1985). As relevant here, it cre-
395–97 (1971); Hernandez v. Mesa, 140 S. Ct. 735, 743–44 (2020).
10
We review both questions de novo because they arise from dismissals under Fed-
eral Rule of Civil Procedure 12(b)(1) and (6), respectively. Ctr. for Biological Diversity v. BP
Am. Prod. Co., 704 F.3d 413, 421 (5th Cir. 2013).
7
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ated the Merit Systems Protection Board (“MSPB”), a quasi-judicial agency
with the power to adjudicate disputes arising from adverse personnel actions
taken against covered federal employees. Id. at 773–74. 11 The CSRA cen-
tralized adjudication of those disputes and replaced a “patchwork” system
that was “lengthy,” “complicated,” and heterogenous. United States v.
Fausto, 484 U.S. 439, 444–45 (1988) (quotations omitted).
The MSPB’s jurisdiction includes review of major adverse personnel
actions such as termination, suspensions longer than fourteen days, fur-
loughs, and pay and grade reductions. 5 U.S.C. §§ 7512, 7513(d). It may issue
orders “under any law, rule, or regulation.” Id. § 7701(a). It may order agen-
cies to reinstate employees and provide back pay and attorney’s fees. See id.
§§ 1204(a)(2), 7701(g).
The U.S. Court of Appeals for the Federal Circuit has near-exclusive
jurisdiction to review MSPB orders and decisions. 12 There are only two
exceptions.
The first exception applies to cases in which covered employees claim
that the challenged adverse action was motivated by discrimination prohib-
ited by enumerated civil rights laws. 13 In those discrimination cases, the
11
Zummer was a covered employee. Although FBI agents generally aren’t covered
by the CSRA subchapter governing review of adverse actions, 5 U.S.C. § 7511(b)(8), that is
not true for “preference eligible” FBI employees who have served in the same position for
at least a year, id. § 7511(a)(1)(B), (b)(8). “[P]reference eligible” employees include veter-
ans who served in enumerated campaigns, including Operation Iraqi Freedom. Id.
§ 2108(1)(D), (3)(B). Zummer is a veteran of the Iraq War and served as a special agent for
more than a year before his security clearance was suspended.
12
Id. § 7703(b)(1)(A). The Federal Circuit is directed to “set aside” MSPB orders
it finds unlawful or produced by unlawful procedures. See id. § 7703(c). It must also discard
MSPB factfindings “unsupported by substantial evidence.” Id.
13
Id. § 7703(b)(1)(B), (2). That exception applies to employment discrimination
based on race, color, sex, or national origin (covered by Title VII); discrimination based on
8
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employee may seek review in federal district court. 14
The second exception applies to whistleblower cases. Where a cov-
ered employee complains that a personnel action was retaliation for good-
faith whistleblowing, he may petition for review of an MSPB order in “any
court of appeals of competent jurisdiction,” including the Federal Circuit. 15
In all other covered cases, “a petition to review a final order or final
decision of the [MSPB] shall be filed in the . . . Federal Circuit.” 5 U.S.C.
§ 7703(b)(1)(A).
Zummer did not appeal to the MSPB or the FBI’s EEO office. 16 But
he doesn’t dispute that he was a covered employee. Nor does he claim that
one of the exceptions to the Federal Circuit’s exclusive appellate jurisdiction
applies. Instead, he says he didn’t appeal to the MSPB because it had no
means of providing him relief. Understanding why that’s so is critical to
understanding Zummer’s position.
A.
Though the MSPB generally can order an agency to reinstate a cov-
age (covered by the ADEA); and retaliation for complaints filed under the FLSA. Id.
§ 7703(b)(2). See also 42 U.S.C. §§ 2000e-2, 2000e-16(c); 29 U.S.C. §§ 623, 633a(c);
29 U.S.C. §§ 215(a)(3), 216(b).
14
5 U.S.C. § 7703(b)(2). An employee may have his claim in such a “mixed case”
heard in federal district court by one of three mutually exclusive paths: First, he can directly
challenge an MSPB decision in a district court; second, he can appeal an MSPB decision to
the EEOC and then challenge the EEOC’s decision in a district court; third, he can bypass
the MSPB and bring the claim to his employer’s EEO office, then to the EEOC, then to a
district court. Punch v. Bridenstine, 945 F.3d 322, 324–25 (5th Cir. 2019) (explaining that
dizzying procedural roadmap in helpful detail).
15 5 U.S.C. §§ 2302(b)(8)–(9), 7703(b)(1)(B); see also, e.g., Baca v. Dep’t of the Army,
983 F.3d 1131, 1137 (10th Cir. 2020).
16
Oral Argument at 34:57–35:23.
9
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ered employee, Zummer may not just ask it to do that here. The MSPB would
have to reinstate his security clearance first. That’s a problem for Zummer.
The MSPB lacks authority to “examine the merits of . . . security-
clearance denial[s].” Dep’t of the Navy v. Egan, 484 U.S. 518, 526 (1988). In
Egan, the Court concluded that the MSPB’s jurisdiction is limited to review-
ing “adverse actions” as defined by the CSRA. Id. at 530. And “[a] denial of
a security clearance is not such an ʻadverse action.’” Id. That’s because it is
not a “removal, a suspension for more than 14 days, a reduction in grade or
pay, [or] a furlough of 30 days or less.” Id. (quoting 5 U.S.C. § 7512).
For courts to disturb the judgment of the Executive Branch in this
area, Congress would have to state its intention clearly. The Constitution
textually commits to the President the “authority to classify and control
access to information bearing on national security and to determine whether
an individual is sufficiently trustworthy to . . . access . . . such information.”
Id. at 527 (citing U.S. Const. art. II, § 2). 17 Because that presidential power
exists “apart from any explicit congressional grant,” id., courts are “reluctant
to intrude” “unless Congress specifically has provided otherwise,” id.
at 530. 18 The Court thought it “obvious that no one has a ʻright’ to a security
clearance.” Id. at 528. Deciding whether to grant a clearance is instead a
“[p]redictive judgment [that] must be made by those with the necessary
expertise.” Id. at 529.
So in a case like Zummer’s, the MSPB’s review would be limited to
his suspension and termination. It would note that he lacked a security clear-
17
“The President shall be Commander in Chief of the Army and Navy of the
United States . . . .” U.S. Const. art. II, § 2.
18
Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) ( Jackson, J.,
concurring) (“When the President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb . . . .”).
10
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ance, a precondition of the job. That would end the matter.
Zummer says the MSPB’s impotence takes him outside the CSRA.
He claims the ability to seek immediate judicial review because the CSRA
gives him “no means of relief.” But Zummer is not the first to try that tack.
B.
1.
The Supreme Court has twice rejected federal employees’ attempts to
sidestep the CSRA’s remedial scheme. In Fausto, an employee not covered
by this facet of the CSRA attempted to appeal an adverse action to the MSPB
on statutory grounds. Fausto, 484 U.S. at 441–42. When his appeal was dis-
missed for want of MSPB jurisdiction, he sued in the Court of Federal Claims
under the Back Pay Act, id. at 442–43, saying that the MSPB’s inability to
give him relief left him “free to pursue other avenues of review,” id. at 449.
The Court disagreed. It described the CSRA’s procedural prolixity as
“elaborate.” Id. at 443. In the text and structure of the act, it identified Con-
gress’s intent to provide for “a unitary and consistent Executive Branch posi-
tion on matters involving personnel action” and the “primacy of the . . .
Federal Circuit for judicial review.” Id. at 449. Allowing any employee not
afforded a CSRA remedy to seek alternative relief “would seriously under-
mine” that purpose because it would revive the possibility of agencies’ being
subject to inconsistent decisionmaking. Id. The CSRA is “comprehensive”
and the exclusive “system for reviewing personnel action taken against
federal employees.” Id. at 455. Its remedial gaps are intentional and are not
for courts to fill. Id.
Then, in Elgin v. Department of the Treasury, 567 U.S. 1 (2012), the
Court considered whether the CSRA also precluded outside constitutional
attacks on federal personnel action. Former federal employees wished to
challenge a statutory bar to their employment. But the MSPB said it could
11
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not adjudicate facial constitutional challenges to federal laws, so the plaintiffs
sued in federal district court.
The Court found no reason to distinguish Fausto. It applied the
Thunder Basin factors to assess whether Congress had impliedly precluded
federal court jurisdiction. Id. at 16–23. 19 Those factors are “(1) whether a
finding of preclusion could foreclose all meaningful judicial review;
(2) whether the claims were wholly collateral to a statute’s review provisions;
and (3) whether the claims were outside the agency’s expertise.” 20
First, the Court rejected the plaintiffs’ contention that they lacked
meaningful agency review, despite the MSPB’s position that it couldn’t
assess their claims. Elgin, 567 U.S. at 16–21. The Court pointed out that
under its appellate jurisdiction, the Federal Circuit could still address those
claims “within the CSRA scheme.” Id. at 21. 21
Second, the Court concluded that a constitutional challenge to a com-
plete bar to employment was germane to the CSRA review scheme. It may
be true that the substance of constitutional attack on a statute has little to do
with the “day-to-day personnel actions adjudicated by the MSPB,” but that
challenge is really just “the vehicle by which [the plaintiffs] seek to reverse
the removal decisions, to return to federal employment, and to receive the
19
See also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212–16 (1994) (applying
the eponymous factors to hold that the Mine Act precluded a district court’s original review
of a mine operator’s statutory and constitutional claims).
20
Cochran v. SEC, 20 F.4th 194, 205 (5th Cir. 2021) (en banc) (quotations omitted),
cert. granted, 2022 U.S. LEXIS 2425 (U.S. May 16, 2022) (No. 21-1239).
21
That’s despite the procedural complexity required: A claimant would likely have
to bring his claim to the MSPB, where it would be dismissed for lack of jurisdiction, appeal
that dismissal to the Federal Circuit, have it remanded for further factfinding within estab-
lished parameters, then appeal again to the Federal Circuit—all for an initial review of the
constitutional claim. Elgin, 567 U.S. at 19–20; id. at 32–33 (Alito, J., dissenting).
12
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compensation they would have earned but for the adverse employment
action.” Id. at 22. And a “challenge to removal is precisely the type of per-
sonnel action regularly adjudicated by the MSPB and the Federal Circuit.”
Id. That’s “[f ]ar from . . . wholly collateral to the CSRA scheme.” Id.
Third, the Court reasoned that even if constitutional analysis is “out-
side the MSPB’s expertise,” it could still use its expertise to adjudicate “the
many threshold questions that may accompany a constitutional claim.” Id.
at 22. Some of those questions may “fully dispose of the case” and avoid the
need to address the constitutional issues. Id. at 23. Given that none of the
Thunder Basin factors was present, the Court saw “no reason to conclude that
Congress intended to exempt [covered constitutional] claims from exclusive
review before the MSPB and the Federal Circuit.” Id.
Separately, the Court stressed its conclusion that the CSRA was
meant to be comprehensive and exclusive. Id. at 10–15. 22 The law’s exemp-
tions from the exclusive jurisdiction of the MSPB and Federal Circuit show
“that Congress knew how to provide alternative forums for judicial review
based on the nature of an employee’s claim.” Id. at 13. Its declination to do
so in a particular case “indicates that Congress intended no such exception.”
Id. A contrary conclusion would “reintroduce the very potential for inconsis-
tent decisionmaking and duplicative judicial review that the CSRA was
designed to avoid.” Id. at 14.
Yet Zummer would have us reach that contrary conclusion. He
believes he has identified a gap between the holdings of Fausto and Elgin.
22
“Just as the CSRA’s ʻelaborate’ framework demonstrates Congress’ intent to
entirely foreclose judicial review to employees to whom the CSRA denies statutory review,
it similarly indicates that extrastatutory review is not available to those employees to whom
the CSRA grants administrative and judicial review.” Id. at 11 (quoting Fausto, 448 U.S.
at 443) (internal citation omitted).
13
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Fausto holds that a statutory claimant denied meaningful review by the CSRA
is nevertheless precluded from suit in the district courts. Elgin holds that a
constitutional claimant entitled to review under the CSRA is precluded from
suit in the district courts. What about a constitutional claimant denied review
under the CSRA?
2.
We have confronted that question once before. In Gonzalez v. Man-
jarrez, 558 F. App’x 350, 351–52 (5th Cir. 2014) (per curiam), a former Border
Patrol agent claimed to have been fired in retaliation for protected speech.
But because he was a probationary employee when he was fired, he was
“denied any judicial review under the CSRA.” Id. at 354. So he brought his
claim to district court. Id. at 351. We held that the CSRA still precluded
federal court jurisdiction despite not providing for review of that constitu-
tional claim. Id. at 354.
We reasoned that the Court meant what it said in Elgin when it
declared the CSRA’s remedial scheme “exclusive.” Id. “The Court knew
that some [employees] were denied any judicial review under the CSRA.” Id.
And “Congress did not neglect expressly to create a judicial remedy where it
wanted one to exist.” Id. (quoting Broadway v. Block, 694 F.2d 979, 984 (5th
Cir. 1982)). So any gaps in the CSRA’s remedial scheme are intentional; they
do nothing to upset its global exclusivity.
Gonzalez is not published, so it does not bind us. But we reaffirm it
because its reasoning is persuasive, its conclusion being most consistent with
Elgin and Fausto. 23
23
Zummer says we need not be consistent with Elgin and Fausto because doing so
would deny him a forum in which to adjudicate a colorable constitutional claim. We reject
that contention for the reasons we explain infra part II.C. What follows is our interpretation
14
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Only one aspect of Elgin is inapposite here: the first Thunder Basin
factor. The CSRA doesn’t provide for “meaningful review” of some of Zum-
mer’s claims. Elgin, 567 U.S. at 16. The Federal Circuit has interpreted Egan
to mean that it cannot “examine the merits of a security clearance” decision
any more than can the MSPB. Biggers v. Dep’t of the Navy, 745 F.3d 1360, 1362
(Fed. Cir. 2014). There’s no way for Zummer to be reinstated or awarded
back pay if he pursues his claim as the CSRA directs.
On the other hand, the Court’s analysis of the other two Thunder Basin
factors applies with full force. Zummer seeks reinstatement of his security
clearance merely as a “vehicle” to “reverse” the adverse employment deci-
sions and “return to federal employment.” Elgin, 567 U.S. at 22. 24 That
means his claims are not “wholly collateral to the CSRA scheme.” Id. The
MSPB’s expertise is just as relevant to adjudicating any “threshold ques-
tions” and related statutory claims here as it was in Elgin. Id. at 22–23.
Zummer’s position is also no answer to Fausto’s and Elgin’s under-
standing of the CSRA’s text and structure. If the CSRA’s review scheme is
“exclusive” and provides the sole forum for “reviewing personnel action
taken against federal employees,” id. at 5, and its remedial gaps are “delib-
erate” congressional policy choices that we are bound to respect, Fausto,
484 U.S. at 455, then how are we to use the want of a remedy for Zummer as
the sole basis for finding federal court jurisdiction? See, e.g., McAuliffe v. Rice,
966 F.2d 979, 980 (5th Cir. 1992). Remember: Egan was an interpretation of
the CSRA. See Egan, 484 U.S. at 530. So we are bound to conclude that
of the CSRA using Elgin’s methodology.
24
Indeed, Zummer seems perfectly content to have us order the FBI to reinstate
him without also requiring that he be granted a security clearance. He says, “an FBI agent
like [Zummer] investigating Louisiana public corruption investigations has no actual need
for a security clearance in performing his duties.”
15
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Congress did not provide for security-clearance decisions to be reviewed—
under the CSRA or otherwise.
After all, the core question under Thunder Basin is whether the intent
to withdraw federal court jurisdiction is “fairly discernible in the statutory
scheme.” Thunder Basin, 510 U.S. at 207 (quoting Block v. Cmty. Nutrition
Inst., 467 U.S. 340, 351 (1984)). Whether the statute provides for “meaning-
ful review” is merely probative of that question. See id. Here, the lack of
meaningful review is not enough to overcome the strength of the inference
produced by the other two Thunder Basin factors and the well-settled, binding
implications of the CSRA’s text and structure.
* * *
Zummer cannot squeeze through the gap between Fausto and Elgin.
Just as the CSRA precludes extrastatutory review of “adverse actions”
defined by Section 7712, it precludes extra-statutory review of ancillary con-
stitutional claims brought as a “vehicle by which [plaintiffs] seek to reverse”
those adverse actions. Elgin, 567 U.S. at 22.
C.
Zummer’s final riposte is that we can’t apply the foregoing statutory-
construction principles to his claim because the outcome would deny him
“any judicial forum for a colorable constitutional claim”—invoking the
Court’s enigmatic decision in Webster v. Doe, 486 U.S. 592, 603 (1988).
Instead, he maintains, we must demand a clearer statement from the CSRA.
In Doe, the CIA Director allegedly fired an employee because he was
gay. The Director explained that he had done so in the interest of national
security. The former employee sued in federal court on both constitutional
and statutory grounds. But Congress had empowered the Director “in his
discretion [to] terminate . . . [an] employee . . . whenever he shall deem such
16
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termination necessary or advisable in the interests of the United States”
“[n]otwithstanding . . . the provisions of any other law.” 25 The government
interpreted that provision to preclude judicial review of the Director’s
decision. Id. at 597.
The Court agreed—but only in part. It concluded that the former
employee’s claims under the Administrative Procedure Act were barred as
“committed to agency discretion by law.” Id. at 601; 5 U.S.C. § 701(a)(2).
But “where Congress intends to preclude judicial review of constitutional
claims its intent to do so must be clear.” Doe, 486 U.S. at 603. 26 That clear-
statement rule applied, it said, because of the “ʻserious constitutional ques-
tion’ that would arise if a federal statute were construed to deny any judicial
forum for a colorable constitutional claim.” Id. (quoting Bowen, 476 U.S.
at 681 n.12). And it found no sufficiently clear statement of intent to divest
jurisdiction over “colorable constitutional claims.” Id.
In Elgin, the Court declined to apply Doe’s clear-statement rule to the
CSRA, 567 U.S. at 9–10, because the CSRA did “not foreclose all judicial
review of petitioners’ constitutional claims”; it channeled them to the Fed-
eral Circuit. Id. at 10. 27 As Zummer points out, that’s not true here: Mean-
ingful review of his constitutional claims is entirely foreclosed.
But Doe still does not require us to import its clear-statement rule.
The Court applied a canon of construction—constitutional avoidance—to a
25
Doe, 486 U.S. at 615–16 (Scalia, J., dissenting) (quoting what was then codified
at 50 U.S.C. § 403(c)) (some emphasis deleted).
26
See also Johnson v. Robison, 415 U.S. 361, 373–74 (1974); Bowen v. Mich. Acad. of
Fam. Physicians, 476 U.S. 667, 681 n.12 (1986).
27
The Court evidently considered that review sufficient to satisfy Doe despite the
ping-ponging path required to bring a constitutional challenge. See supra note 21.
17
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statute not relevant here. 28 That canon “is an interpretive tool, counseling
that ambiguous statutory language be construed to avoid serious constitu-
tional doubts.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009).
As an “interpretive tool,” it needn’t be rigidly applied in all contexts. 29 In
particular, “the ʻconstitutional doubt’ doctrine does not apply mechanically
whenever there arises a significant constitutional question the answer to
which is not obvious.” Almendarez-Torres v. United States, 523 U.S. 224, 239
(1998). There’s no need for avoidance “where a constitutional question,
while lacking an obvious answer, does not lead [a court] gravely to doubt that
[a] statute is constitutional.” Id. Accordingly, the Court has declined to
extend Doe where there were overriding considerations. 30
28
Doe interpreted the National Security Act of 1947. 486 U.S. at 594.
29
See, e.g., Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 203–207 (1991) (dis-
tinguishing between a clear-statement rule mandated by the Eleventh Amendment and one
that is merely an “ordinary rule of statutory construction” and declining to apply one of the
latter type) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989)). Of course,
the sort of clear-statement rule applied in constitutional-avoidance cases cannot arise from
“rule[s] of constitutional law.” Id. at 206. The premise of the canon is that the applicable
rule of constitutional law is unknown.
30
See, e.g., Tenet v. Doe, 544 U.S. 1, 10 (2005). In Tenet, the plaintiffs allegedly were
former CIA spies who sued seeking further compensation for past espionage. Id. at 1–5.
Some of their claims were constitutional, so they asserted that Doe required federal district
courts to have original jurisdiction. See id. at 5, 10. The Court disagreed:
[Webster does not] support respondents’ claim. . . . [T]here is an obvi-
ous difference, for purposes of Totten[ v. United States, 92 U.S. 105 (1876)],
between a suit brought by an acknowledged (though covert) employee of
the CIA and one filed by an alleged former spy. Only in the latter scenario
is Totten’s core concern implicated: preventing the existence of the plain-
tiff’s relationship with the Government from being revealed. That is why
the CIA regularly entertains Title VII claims concerning the hiring and
promotion of its employees, as we noted in Webster, . . . yet Totten has long
barred suits such as respondents’.
Id. at 9. As in Tenet, the CSRA has long barred suits like Zummer’s from the original jur-
18
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There are two reasons not to extend Doe here. First, the foundations
of Doe’s constitutional doubt have been undermined since it was decided.
Second, concluding that the CSRA permits federal district courts to exercise
original jurisdiction over cases like Zummer’s would raise a significant consti-
tutional question of its own.
1.
The Constitution empowers Congress to create lower federal courts. 31
The Court has interpreted that provision as silent on the jurisdiction given to
those courts, leaving Congress free to define its boundaries. 32 And Congress
has never given the lower federal courts original jurisdiction as broad as the
Constitution allows. 33
isdiction of federal courts.
31
“The judicial power . . . shall be vested in one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and establish.” U.S. Const.
art. III, § 1.
32
Sheldon v. Sill, 49 U.S. (8 How.) 441, 448–49 (1850). In Sheldon, the Court con-
sidered the constitutionality of a portion of the First Judiciary Act that excluded federal
jurisdiction over cases where diversity of citizenship was created by collusion. Id. at 448.
The respondent said that statute conflicted with Article III’s vesting clause. Id. The Court
rejected that position:
It must be admitted, that if the Constitution had ordained and estab-
lished the inferior courts, and distributed to them their respective powers,
they could not be restricted or divested by Congress. But . . . it has made
no such distribution . . . . [So] Congress, having the power to establish the
courts, must define their respective jurisdictions. . . . Congress may with-
hold from any court of its creation jurisdiction of any of the enumerated
controversies. Courts created by statute can have no jurisdiction but such
as the statute confers.
Id. at 448–49.
33
See Gunn v. Minton, 568 U.S. 251, 256–57 (2013); Osborn v. Bank of the United
States, 22 U.S. (9 Wheat.) 738, 823 (1824) (explaining that the Constitution permits Con-
gress to confer jurisdiction on federal courts wherever a federal question “forms an ingredi-
19
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Still, Doe appears to have invoked constitutional avoidance from a con-
cern that Congress would intrude on the judicial power by precluding review
of “colorable constitutional claim[s].” 34 But the Court has since repudiated
that concern.
A decade after Doe, the Court explained that jurisdiction is always
antecedent to the exercise of judicial power. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94–95 (1998). So “Congress generally does not infringe
the judicial power when it strips jurisdiction.” 35 Here, Congress has with-
drawn jurisdiction over a broad class of claims in which federal employees
wish to challenge adverse employment actions and ancillary decisions.
Jurisdiction-stripping statutes can still violate specific constitutional
provisions. Patchak, 138 S. Ct. at 906 n.3. For instance, a statute violated the
Suspension Clause by stripping original jurisdiction to hear habeas corpus
applications from prisoners detained extraterritorially. Boumediene v. Bush,
553 U.S. 723, 732–33 (2008). A roughly analogous situation might have been
ent of the original cause”).
34
Doe, 486 U.S. at 603. To explain the canon’s relevance, the Court pointed to
Robison, 415 U.S. at 366–67, where it raised the same concern. There, the Court had not
specified the reason for its hesitation. See id. But after acknowledging Sheldon, it called
attention to conflicting opinions expressed by Justices Story and Brandeis. Id. at 366 n.8.
Justice Story said, “the whole judicial power of the United States should be, at all times,
vested either in an original or appellate form, in some courts created under its authority.”
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 331 (1816). Justice Brandeis said that a
“person asserting a right, whatever its source, should be entitled to the independent judg-
ment of a court on the ultimate question of constitutionality.” St. Joseph Stock Yards Co. v.
United States, 298 U.S. 38, 84 (1936) (concurring in the judgment). Presumably, the Court
thought those dicta clashed with Sheldon’s holding.
35
Patchak v. Zinke, 138 S. Ct. 897, 907 (2018) (plurality opinion); see also id. at 919
(Roberts, C.J., dissenting) (“[It] is undoubtedly correct . . . . [that] the greater power to cre-
ate inferior courts generally includes the power to strip those courts of jurisdiction” so long
as that power is exercised over “classes of cases” and not individual proceedings.) (quota-
tion omitted, emphasis deleted).
20
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presented here had Congress attempted to deny jurisdiction to hear First
Amendment retaliation cases only if the speaker expressed support for a par-
ticular cause. Then, the jurisdiction-stripping statute itself might be consid-
ered impermissible viewpoint discrimination. 36
But that’s not what Zummer contends. Nor does he advance any rea-
son that categorically stripping jurisdiction to hear cases including constitu-
tional claims would be unconstitutional. Instead, he insists that we must
apply Doe’s interpretive tool solely because of the established doubtful consti-
tutionality of a faithfully construed CSRA. We disagree. In light of the
Court’s subsequent discussion of the issue and its declination to extend Doe
in Tenet, we are not led “gravely to doubt” that the CSRA’s precluding juris-
diction to hear Zummer’s claims is constitutionally permissible. Almendarez-
Torres, 523 U.S. at 239.
2.
Even if we had such doubts, we would have countervailing doubts
about the constitutionality of the opposite conclusion: that a federal court
may decide Zummer’s claims arising from the security-clearance decisions.
Zummer asked the district court to hold that the suspension and revo-
cation of his security clearance were pretextual. That’s in some tension with
Egan, 484 U.S. at 526–30, which applied a constitutional-doubt canon of its
own to the question whether the MSPB could review security clearance
decisions. The district court, relying in part on Egan, held that deference to
the Executive Branch made Zummer’s claims unreviewable independently of
36
See Reed v. Town of Gilbert, 576 U.S. 155, 168 (2015) (explaining that governments
are almost never permitted to regulate speech “based on ʻthe specific motivating ideology
or the opinion or perspective of the speaker’”) (quoting Rosenberger v. Rectors & Visitors of
the Univ. of Va., 515 U.S. 819, 829 (1995)).
21
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the CSRA. These federal defendants now ask us to hold that the political
question doctrine calls for the same result.
The Constitution textually commits to the President the decision
whether to grant someone a security clearance. Egan, 484 U.S. at 527. That
decision “must be made by those with the necessary expertise in protecting
classified information.” Id. at 529. That reasoning seems to track the first
two Baker factors for deciding whether a case presents a nonjusticiable polit-
ical question. 37
But that doesn’t necessarily end the matter. It may be possible, as the
Third Circuit has held, to disentangle some claims arising from the security-
clearance process from the merits of a security-clearance decision.
El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d 176, 182–83 (3d Cir. 2010). If so,
some of those claims would likely fall squarely within the kinds of cases courts
regularly adjudicate.
We do not resolve that question because we read the CSRA to pre-
clude jurisdiction. We note only that there is a serious question about the
constitutionality of a district court’s deciding claims like Zummer’s. So even
if we had grave doubts about the constitutionality of precluding judicial
review of a class of constitutional claims, it still would not be appropriate to
adopt a consciously narrow reading of the CSRA under Doe, only to wander
right into another constitutional quandary.
Faced with, at most, competing constitutional difficulties, we decline
to apply Doe’s clear-statement rule. We read the CSRA neither narrowly nor
37
See Nixon v. United States, 506 U.S. 224, 228 (1993) (“A controversy is nonjus-
ticiable . . . where there is a ʻtextually demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack of judicially discoverable and manageable
standards for resolving it.’”) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
22
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broadly, but faithfully to its text and structure as interpreted by Fausto and
Elgin. As we explained in part II.B, supra, that reading compels the conclu-
sion that the CSRA precludes extra-statutory review of Zummer’s claims that
serve as a vehicle for reversing adverse employment decisions.
III.
Four of Zummer’s claims aren’t merely a vehicle for reversing his sus-
pension and termination. They seek damages against individual-capacity
defendants for delaying Zummer’s speech by refusing to permit him to send
or publish his letters. So as the district court correctly concluded, the CSRA
does not preclude its subject matter jurisdiction to hear those claims. But the
district court was also correct to dismiss those claims on their merits.
Because Zummer doesn’t have a statutory cause of action, our first
question must be, “Does the First Amendment give rise to an implied right
of action for damages against federal officers who violate that Amendment's
guarantees?” Wood v. Moss, 572 U.S. 744, 757 (2014).
The Court has recognized an implied constitutional cause of action for
damages against federal officers in only three contexts. 38 The decision
whether to recognize a new such action has two parts. Hernandez, 140 S. Ct.
at 743. First, courts must decide whether the claim arises “in a ʻnew context’
or involves a ʻnew category of defendants.’” Id. (quoting Corr. Serv. Corp. v.
Malesko, 534 U.S. 61, 68 (2001)). Second, if the context is new, courts must
ask whether there are any “special factors that counsel hesitation” in recog-
nizing the new cause of action. Id. (quoting Ziglar v. Abbasi, 137 S. Ct. 1843,
1857 (2017) (alterations adopted)).
Zummer forthrightly concedes that the context here is new. So the
38
See Bivens, 403 U.S. at 395–97; Davis v. Passman, 442 U.S. 228, 248–49 (1979);
Carlson v. Green, 446 U.S. 14, 19–23 (1980).
23
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only question is whether there is any “reason to pause” before hauling FBI
management into federal court to explain why they considered information
too sensitive to publish immediately. Oliva v. Nivar, 973 F.3d 438, 443 (5th
Cir. 2020) (quoting Hernandez, 140 S. Ct. at 743), cert. denied, 141 S. Ct. 2669
(2021).
At least two special factors are present here. First, forcing the FBI to
defend its preclearance decisions in additional federal litigation will impose
“significant [costs]—not only in monetary terms, but also in the time and
energy of managerial personnel who must defend their decisions.” Bush v.
Lucas, 462 U.S. 367, 388 (1983). That cost may inappropriately deter FBI
managers from making “decisions that they believe to be a correct response”
to the risks posed by the release of information. Id. at 389.
Second, despite enacting a sweeping remedial regime that covers
adverse actions against some FBI agents, Congress has not created a cause of
action. See supra note 11. “[W]e must consider what Congress has done and
what Congress has left undone.” Oliva, 973 F.3d at 444. Where creating a
cause of action would impact “the efficiency of the civil service,” Congress
is better suited to decide whether a cause of action is desirable. Bush,
462 U.S. at 389.
Our role is not to weigh those factors against the benefit of remedying
constitutional wrongs. Instead, it is to determine whether there are any com-
peting interests. Having found two such interests, we decline to recognize a
new cause of action under Bivens.
* * *
Zummer’s claims must be dismissed. His claims seeking to reverse his
suspension and termination fall outside the district court’s subject-matter
jurisdiction. And he has no cause of action to bring the remaining individual-
capacity claims. The judgment of dismissal is AFFIRMED.
24
Zummer v. Sallet
Combined Opinion