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Whitman v. Department of Transportation - more briefs
May 22, 2006 by Ross Runkel at LawMemo
Waiting for a decision in Whitman v. Department of Transportation? Keep waiting. The US Supreme Court heard arguments on December 5, then asked the parties to file supplemental briefs "addressing the applicability of Darby v. Cisneros, 509 U.S. 137 (1993)."
Here are the briefs, filed May 15, 2006:
Whitman's federal court suit claimed that the Federal Aviation Administration (his employer) tested him for substance abuse disproportionately, and thus violated the first amendment and the federal statute on mandatory drug testing. The 9th Circuit held that federal courts had no subject matter jurisdiction, and the US Supreme Court is reviewing that decision.
The 9th Circuit reasoned that the FAA Management System, including certain provisions of the Civil Service Reform Act (CSRA), governs FAA employees' employment rights and generally does not allow federal court suits. The CSRA requires collective bargaining agreements to include procedures for resolving "grievances," and defines "grievance" broadly to include Whitman's claims. Before 1994 CSRA provided that the collectively bargained procedures "shall be the exclusive procedures for resolving grievances."
The 1994 amendment provided that the collectively bargained procedures "shall be the exclusive administrative procedures for resolving grievances." [emphasis added.]
Although the Federal and 11th Circuits have held that the 1994 amendment established an employee's right to seek a judicial remedy, the 9th Circuit said those cases are wrong because the 1994 amendment "does not constitute an express grant of federal court jurisdiction."
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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