Ninth Circuit Notes Split Re Whether CSRA Precludes Colorable Constitutional Claims Sounding in Equity

Per Stanley v. Gonzales, --- F.3d ----, 2007 WL 92667 (9th Cir. Jan. 16, 2007):

Stanley's principal argument on appeal is that the CSRA [Civil Service Reform Act] does not preclude judicial review of colorable constitutional claims for equitable relief. Essentially, she argues that "where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear." Webster v. Doe, 486 U.S. 592, 603 (1988). In Webster, the Supreme Court held that a party must demonstrate a "heightened showing" that Congress intended to eliminate judicial review when a federal statute is construed to deny any judicial forum for a colorable constitutional claim. Id.

The CSRA, enacted in 1978, created an elaborate framework for evaluating adverse personnel decisions against federal employees. See United States v. Fausto, 484 U.S. 439, 443, 452 (1988) (holding that the CSRA precluded claims for statutory relief under the Back Pay Act, 5 U.S.C. § 5596, because Congress's intent to preclude judicial relief was "fairly discernable"). The Act prescribes in great detail the protections and remedies applicable to such actions, including the availability of administrative and judicial review. Id. at 443.

. . .

After Webster, we have not directly addressed the issue whether the CSRA demonstrates the kind of heightened showing required to preclude judicial review of colorable constitutional claims where the sole remedy sought is equitable relief. One post-Webster case, Saul v. United States, 928 F.2d 829, 840 (9th Cir.1991), suggests that where a plaintiff has a remedy under the CSRA itself, he may not seek equitable relief in the federal courts. . . .

Saul does not squarely address whether the CSRA precludes colorable constitutional claims sounding in equity where the plaintiff has no other remedy. Our sister circuits are split on this issue. [FN3] We defer deciding this question. Because Stanley has not presented colorable constitutional claims, Webster's requirement of a heightened showing is not implicated in her case.

FN3. Compare Dotson v. Griesa, 398 F.3d 156, 179 (2d Cir.2005) (holding that equitable claims are precluded by the CSRA even if the plaintiff has no other remedy), Lombardi v. Small Bus. Admin., 889 F.2d 959, 961-62 (10th Cir.1989) (same), and Pinar v. Dole, 747 F.2d 899, 910-12 (4th Cir.1984) (same), with Mitchum v. Hurt, 73 F.3d 30, 35- 36 (3d Cir.1995) (holding that regardless of plaintiff's availability to seek administrative remedies, the CSRA does not preclude equitable relief for constitutional claims), and Hubbard v. EPA, 809 F.2d 1, 11 (D.C.Cir.1986) (same).