American Federation of Government Employees v. Stone , 502 F.3d 1027 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN FEDERATION OF 
GOVERNMENT EMPLOYEES LOCAL 1;
JOHN GAVELLO,
Plaintiffs-Appellants,
v. No. 05-15206
DAVID M. STONE; TRANSPORTATION
SECURITY ADMINISTRATION; U.S.  D.C. No.
CV-04-01274-CW
DEPARTMENT OF HOMELAND
OPINION
SECURITY; KIP HAWLEY,
Administrator, Transportation
Security Administration,
Department of Homeland Security,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted
January 11, 2007—San Francisco, California
Filed September 5, 2007
Before: A. Wallace Tashima and William A. Fletcher,
Circuit Judges, and H. Russel Holland,* District Judge.
Opinion by Judge William A. Fletcher
*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
11711
AFGE v. STONE 11713
COUNSEL
Mark D. Roth, Joe Goldberg, Gony Frieder, American Feder-
ation of Government Employees AFL-CIO, Washington,
D.C., for the appellants.
11714 AFGE v. STONE
William G. Kanter, Mark W. Pennak, U.S. Department of Jus-
tice, Washington, D.C., for the appellees.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs-Appellants American Federation of Government
Employees, Local 1 (“AFGE”) and John Gavello appeal the
district court’s dismissal of their action against the Adminis-
trator of the Transportation Security Administration (“TSA”)
in his official capacity. The district court held that Plaintiffs-
Appellants were not entitled to judicial review of their claims
that the TSA violated their First Amendment rights by disci-
plining and then discharging Gavello, a TSA security
screener, for engaging in union activities. The district court
also held that AFGE lacked standing.
We reverse. If Congress wishes to deny federal employees
the ability to redress alleged constitutional violations, it must
state its intention clearly. We conclude that the statutory
scheme governing TSA security screeners does not express a
clear intention on the part of Congress to preclude judicial
review of screeners’ constitutional claims. The district court
therefore has subject matter jurisdiction over Plaintiffs-
Appellants’ action. We further conclude that AFGE has stand-
ing.
I. Background
For purposes of this decision, we accept all of the allega-
tions in Plaintiffs-Appellants’ complaint as true. The com-
plaint alleges that John Gavello began working as a security
screener at Oakland International Airport on March 30, 2003.
In October 2003, Gavello spoke to a screening supervisor and
a screening manager about his plans to distribute and post
AFGE v. STONE 11715
AFGE literature during break times. Gavello posted union
materials in the employee break room and made union forms
available to fellow employees throughout November 2003.
In response to Gavello’s union activities, TSA management
allegedly began “building a file against Mr. Gavello.” On
November 20, Gavello received what the complaint describes
as a “written verbal warning” for conducting union activities
on the job. The next day, November 21, Gavello was called
to a manager’s office and asked various questions about his
union activities. He refused to respond and was subsequently
placed on paid administrative leave while TSA management
investigated whether he had engaged in union activities while
on duty.
The TSA permitted Gavello to return to work on December
5, 2003. Shortly thereafter, he received a “Memorandum of
Counseling” “for speaking on behalf of other employees, ask-
ing for written verification of policies, and posting union
materials before receiving approval from TSA management.”
He also received a “Letter of Warning” related to his activi-
ties.
On February 20, 2004, Gavello mailed a “second step
grievance” to Deputy Federal Security Director Calvin Yuen
“request[ing] written procedures regarding baggage inspec-
tion swiping and sampling as they are not currently included
in the [TSA’s] standard operating procedures.” The words
“cc: AFGE Legal Counsel” appeared at the end of Gavello’s
grievance letter. The TSA terminated Gavello six days after
he sent the letter. The TSA justified its action by stating that
Gavello improperly disclosed sensitive security information to
an unauthorized party, namely, AFGE’s legal counsel.
At the time of his termination, Gavello had been employed
by TSA for less than one year and was therefore considered
a probationary screener. The parties in this case agree that
“there is no administrative scheme that would afford proba-
11716 AFGE v. STONE
tionary TSA screeners, such as John Gavello, with any admin-
istrative forum in which to seek relief for [their] discharge.”
When Congress established the TSA and federalized airport
security screeners in late 2001, it set out specific hiring and
training requirements for TSA security screeners. See, e.g.,
Aviation and Transportation Security Act (“ATSA”), Pub. L.
No. 107-71, § 111(a), 115 Stat. 597, 616-20 (2001) (codified
at 49 U.S.C. § 44935(e)-(j)). It then included a catchall provi-
sion giving the TSA Administrator significant discretion over
the employment of security screeners: “Notwithstanding any
other provision of law, the [TSA Administrator] may employ,
appoint, discipline, terminate, and fix the compensation,
terms, and conditions of employment of Federal service for
such a number of individuals as the [Administrator] deter-
mines to be necessary to carry out . . . screening functions.”
ATSA § 111(d), 115 Stat. at 620 (codified at 49 U.S.C.
§ 44935 (note)); see also H.R. Conf. Rep. No. 107-296, at 64
(2001), reprinted in 2002 U.S.C.C.A.N. 589, 600 (confirming
that Congress intended for the TSA Administrator to have
“wide latitude to determine the terms of employment of
screeners”); id. (“[P]articipants in this Federal security work-
force will not be able to strike or engage in work stoppages,
and can be fired at the discretion of the [Administrator] if they
are not able to adequately perform their duties.”).
Pursuant to its catchall authority, the TSA Administrator
issued a Human Resources Management Letter dated July 29,
2002, which declared that all screeners are subject to a one-
year probationary period and “may be terminated at any time”
during that period. HRM Letter 300-2, ¶ 5(g)(1) (July 29,
2002). Although the letter provides that the TSA will “state
the reason for the termination” of probationary screeners, it
also provides that such screeners have “no right of reply” and
may not bring an administrative appeal. Id. ¶¶ 5(g)(4), 5(I);
see also Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1382
(Fed. Cir. 2004). By contrast, non-screener TSA employees
are covered by the “personnel management system” of the
Federal Aviation Administration (“FAA”). See ATSA
AFGE v. STONE 11717
§ 101(a), 115 Stat. at 601 (codified at 49 U.S.C. § 114(n)).
The FAA’s personnel management system, which operates
parallel to the Civil Service Reform Act of 1978 (“CSRA”),
allows employees, including employees with less than one
year of service, to appeal personnel actions to the Merit Sys-
tems Protection Board (“MSPB”) and to seek judicial review
of MSPB decisions. See 49 U.S.C. § 40122(g).
Having no administrative recourse, Plaintiffs-Appellants
filed suit in federal district court on April 1, 2004, claiming
that the TSA violated their First Amendment speech and asso-
ciational rights “by penalizing Mr. Gavello’s exercise of his
legal right of advocacy of union membership.” According to
the complaint, approximately 50 Oakland security screeners
had joined AFGE since Gavello began his organizing efforts,
but his termination “has [had] a chilling effect on other
screeners.” Plaintiffs-Appellants requested the following
relief: (1) a declaration that the TSA’s discipline and dis-
missal of Gavello violates Plaintiffs-Appellants’ First Amend-
ment rights; (2) an order rescinding the Memorandum of
Counseling, Letter of Warning, and Letter of Termination
from Gavello’s personnel records; (3) the restoration of
Gavello’s employment; (4) back pay with interest and the res-
toration of all benefits Gavello lost during his period of termi-
nation; (5) an injunction preventing the TSA from retaliating
against Gavello and other AFGE members; and (6) attorney’s
fees and costs.
Defendants-Appellees (“the government”) responded by
filing a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction. The
government argued that by excluding TSA screeners from the
protections of the CSRA or the FAA personnel management
system, and by granting the TSA Administrator unfettered
discretion to determine screeners’ employment terms and con-
ditions, Congress intended to preclude judicial review of
screeners’ constitutional claims. The government also argued
11718 AFGE v. STONE
that AFGE lacked standing to sue either on its own behalf or
on behalf of Gavello.
The district court accepted these arguments and issued an
order on December 2, 2004, dismissing the complaint with
prejudice. The court reasoned that the CSRA is a “compre-
hensive and exclusive scheme to govern federal personnel
matters” and that Congress’s decision not to extend the
CSRA’s protections to TSA screeners therefore indicated that
Congress did not intend to permit screeners to obtain judicial
review of personnel decisions. The court explained that
AFGE lacked standing because the complaint did not allege
that Gavello was actually a member of AFGE, and because
Gavello’s claims were unreviewable. Plaintiffs-Appellants
timely appealed.
II. AFGE’s Standing
The district court concluded that AFGE had no standing to
sue either on its own behalf or on behalf of Gavello. The court
rested its decision partly on the ground that Gavello was not
entitled to review of his First Amendment claims and partly
on the ground that the complaint did not specify that Gavello
was an AFGE member. As we explain in the next section,
Gavello’s claims are reviewable. We now conclude that, even
if Gavello is not an AFGE member, AFGE satisfies both the
constitutional and prudential requirements for standing.
[1] Plaintiffs-Appellants’ complaint does not directly state
that Gavello is an AFGE member. We are required, however,
to “construe the complaint in a light most favorable to the
non-moving party,” Vasquez v. Los Angeles County, 487 F.3d
1246, 1249 (9th Cir. 2007), and to “draw[ ] all reasonable
inferences from the complaint in [that party’s] favor,” Doe v.
United States, 419 F.3d 1058, 1062 (9th Cir. 2005). Given
Gavello’s efforts to recruit other TSA screeners to join AFGE,
it is reasonable to infer that Gavello himself was a member.
Moreover, the section of the complaint stating Plaintiffs-
AFGE v. STONE 11719
Appellants’ “Prayer for Relief” requests that the court
“[e]njoin[ ] Defendant and his agents from retaliating against
Plaintiff Gavello and/or other members of Plaintiff AFGE
Local 1.” (Emphasis added.) The use of the phrase “other
members” strongly suggests that Gavello himself is a mem-
ber.
[2] But even if Gavello were not an AFGE member, our
result would be the same. It is well established that an organi-
zation “may have standing in its own right to seek judicial
relief from injury to itself and to vindicate whatever rights and
immunities the association itself may enjoy.” Warth v. Seldin,
422 U.S. 490, 511 (1975). The question is simply whether the
organization satisfies the usual requirements for standing. As
a constitutional matter, a plaintiff must make the following
showings:
(1) it has suffered an “injury in fact” that is (a) con-
crete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defen-
dant; and (3) it is likely, as opposed to merely specu-
lative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180-81 (2000). The Supreme Court has
explained that each of these elements “must be supported in
the same way as any other matter on which the plaintiff bears
the burden of proof, i.e., with the manner and degree of evi-
dence required at the successive stages of the litigation.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Thus, “[a]t the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may suffice, for
on a motion to dismiss we ‘presum[e] that general allegations
embrace those specific facts that are necessary to support the
claim.’ ” Id. (second alteration in original) (quoting Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)).
11720 AFGE v. STONE
[3] The allegations set out in the complaint are sufficient to
satisfy each of the required showings. First, with respect to
injury in fact, the complaint fairly alleges that the TSA’s
actions have interfered with AFGE’s ability to solicit mem-
bership and communicate its message. The complaint states
that Gavello’s termination has had a “chilling effect on other
screeners from joining AFGE Local 1.” As the Supreme Court
has held, actions that “perceptibly impair[ ]” an organization’s
ability to carry out its mission impose a “concrete and demon-
strable” injury in fact. Havens Realty Corp. v. Coleman, 455
U.S. 363, 379 (1982). In this case, an increased difficulty in
recruiting union members qualifies as a “concrete and demon-
strable” injury. Second, AFGE’s asserted injury is fairly trace-
able to the TSA’s decision to discipline and discharge
Gavello, which deprived AFGE of an employee-organizer and
conveyed to other screeners that union activity would not be
tolerated. Third, AFGE’s asserted injury would likely be
redressed if it were to prevail on the merits, particularly if, as
AFGE has requested, the district court enjoins the TSA “from
retaliating against Plaintiff Gavello and/or other members of
Plaintiff AFGE Local 1.”
Indeed, the Supreme Court has squarely held that a union
may have standing to challenge governmental interference
with organizing activities. In Allee v. Medrano, 416 U.S. 802(1974), the United Farm Workers brought suit against state
officials in Texas alleging that they had conspired to deprive
the union and others of their First Amendment rights. Id. at
804-05. The Court explained that the union was entitled to
pursue its action:
In this case the union has standing as a named
plaintiff to raise any of the claims that a member of
the union would have standing to raise . . . . [I]t has
been implicitly recognized that protected First
Amendment rights flow to unions as well as to their
members and organizers. If, as alleged by the union
in its complaint, its members were subject to unlaw-
AFGE v. STONE 11721
ful arrests and intimidation for engaging in union
organizational activity protected by the First Amend-
ment, the union’s capacity to communicate is unlaw-
fully impeded, since the union can act only through
its members. The union then has standing to com-
plain of the arrests and intimidation and bring this
action.
Id. at 819 n.13 (citations omitted); see also id. at 829 (Burger,
C.J., concurring in part and dissenting in part) (“I agree with
the Court that unions, as entities, in addition to union mem-
bers and organizers, are entitled to the benefit of those guar-
antees and that a union may sue . . . to enforce its First
Amendment rights.”).
The government nevertheless maintains that AFGE has not
suffered a redressable injury because the complaint merely
describes AFGE’s efforts to win collective bargaining rights.
In the government’s view, because the TSA has banned col-
lective bargaining for security screeners, “any interest that
AFGE may have in representing TSA screeners is simply not
legally cognizable.” We disagree both with the government’s
characterization of the complaint and with its assertion that
AFGE has not alleged a cognizable injury. First, the com-
plaint does not even allude to “collective bargaining.” Rather,
the complaint alleges that the TSA unlawfully interfered with
AFGE’s efforts to recruit and communicate with members. It
states that Gavello was involved in “organizing” and that he
distributed “union membership” forms. It also contends that
Gavello’s termination chilled “other screeners from joining
AFGE.” Second, the fact that the TSA has banned collective
bargaining does not mean that a union representing TSA
employees has no useful function; nor does it mean that the
TSA has free rein to retaliate against screeners who speak in
favor of collective bargaining rights. See Garcetti v. Ceballos,
126 S. Ct. 1951, 1957 (2006) (“The Court has made clear that
public employees do not surrender all their First Amendment
rights by reason of their employment. Rather, the First
11722 AFGE v. STONE
Amendment protects a public employee’s right, in certain cir-
cumstances, to speak as a citizen addressing matters of public
concern.”); see also Am. Fed’n of Gov’t Employees v. Loy,
281 F. Supp. 2d 59, 65 (D.D.C. 2003), aff’d, 367 F.3d 932(D.C. Cir. 2004) (noting that the TSA’s ban on collective bar-
gaining “does not prevent airport screeners from engaging in
organizing activities or joining [AFGE]”).
[4] The government further contends that, even if AFGE
satisfies the constitutional requirements for standing, it does
not satisfy the prudential rule that parties must assert their
own rights rather than the rights of third parties. See, e.g.,
Warth, 422 U.S. at 499. The government’s argument fails for
the simple reason that AFGE is, in fact, asserting its own
rights. The complaint plainly states that the TSA’s conduct
“abrogates Plaintiffs’ right of free speech [and free associa-
tion] under the First Amendment.” (Emphasis added.) As the
Supreme Court has noted, “First Amendment rights flow to
unions as well as to their members and organizers.” Allee, 416
U.S. at 819 n.13. Moreover, given that Gavello is a plaintiff,
there is little risk of AFGE attempting to vindicate rights that
Gavello himself would not wish to vindicate and little risk
that Gavello will be denied effective advocacy. See Singleton
v. Wulff, 428 U.S. 106, 113 (1976) (plurality opinion) (noting
that courts should be reluctant to “resolv[e] a controversy . . .
on the basis of the rights of third persons not parties to the lit-
igation” (emphasis added)). We therefore conclude that
AFGE has standing to raise its First Amendment claims.
III. Jurisdiction to Review the Administrative Action
In the district court, the government argued successfully
that Plaintiffs-Appellants’ suit should be dismissed on juris-
dictional grounds. The Supreme Court subsequently granted
certiorari in Whitman v. Department of Transportation, 126
S. Ct. 2014 (2006) (per curiam), another case involving the
right of a federal employee to obtain judicial review of consti-
tutional claims. In its briefing in Whitman, the government
AFGE v. STONE 11723
adopted a position that was contrary to the position it had
taken before the district court in the present case. Specifically,
the government accepted that the language of the CSRA did
not provide the clarity necessary to foreclose judicial review
of an employee’s constitutional claims. Brief for the Respon-
dents at 45-49, Whitman, 126 S. Ct. 2014 (No. 04-1131). The
Supreme Court in Whitman did not decide the reviewability
question. However, consistent with its arguments in Whitman,
the government now “concede[s] that total preclusion of [an
employee’s] equitable constitutional claims could not be sus-
tained” and agrees with Plaintiffs-Appellants that dismissal
for lack of jurisdiction was inappropriate. Despite the govern-
ment’s turnaround, we have an independent duty to determine
our jurisdiction. See, e.g., Latman v. Burdette, 366 F.3d 774,
781 n.5 (9th Cir. 2004). “We review the question of subject
matter jurisdiction de novo.” Marceau v. Blackfeet Hous.
Auth., 455 F.3d 974, 978 (9th Cir. 2006).
[5] “[W]hether the CSRA precludes colorable constitu-
tional claims sounding in equity where the plaintiff has no
other remedy” is a question of first impression in this circuit.
Stanley v. Gonzales, 476 F.3d 653, 657 (9th Cir. 2007) (leav-
ing the question unresolved because the plaintiff had failed to
raise “colorable constitutional claims”). We agree with the
parties that Webster v. Doe, 486 U.S. 592 (1988), provides the
relevant legal framework. At issue in Webster was whether
the CIA Director’s decision to terminate an employee, alleg-
edly because of the employee’s sexual orientation, was sub-
ject to judicial review on statutory and constitutional grounds.
Id. at 595-99. The government maintained that the Director’s
decision was unreviewable because it was made pursuant to
§ 102(c) of the National Security Act of 1947, which stated
that, “[n]otwithstanding . . . the provisions of any other law,
the Director of Central Intelligence may, in his discretion, ter-
minate the employment of any officer or employee of the
Agency whenever he shall deem such termination necessary
or advisable in the interests of the United States.” National
11724 AFGE v. STONE
Security Act of 1947 (“NSA”), ch. 343, § 102(c), 61 Stat.
495, 498; see Webster, 486 U.S. at 597.
The Supreme Court agreed with the government that the
employee could not seek judicial review under the Adminis-
trative Procedure Act because “the language and structure of
§ 102(c) indicate that Congress meant to commit individual
employee discharges to the Director’s discretion.” Webster,
486 U.S. at 601. However, the Court concluded that § 102(c)
did not prevent the plaintiff from pursuing his constitutional
claims. The Court explained that “where Congress intends to
preclude judicial review of constitutional claims its intent to
do so must be clear . . . . We require this heightened showing
in part to avoid the ‘serious constitutional question’ that
would arise if a federal statute were construed to deny any
judicial forum for a colorable constitutional claim.” Id. at 603
(citations omitted); see also Stanley, 476 F.3d at 656 (“In
Webster, the Supreme Court held that a party must demon-
strate a ‘heightened showing’ that Congress intended to elimi-
nate judicial review when a federal statute is construed to
deny any judicial forum for a colorable constitutional
claim.”); cf. McNary v. Haitian Refugee Ctr., Inc., 498 U.S.
479, 496 (1991) (applying the “well-settled presumption
favoring interpretations of statutes that allow judicial review
of administrative action”); Davis v. Passman, 442 U.S. 228,
242 (1979) (“[L]itigants who allege that their own constitu-
tional rights have been violated, and who at the same time
have no effective means other than the judiciary to enforce
these rights, must be able to invoke the existing jurisdiction
of the courts for the protection of their justiciable constitu-
tional rights.”); Johnson v. Robison, 415 U.S. 361, 373-74
(1974) (holding that a statute restricting review of decisions
made by the Administrator of Veterans’ Affairs did not “pro-
vide[ ] the ‘clear and convincing’ evidence of congressional
intent required by this Court before a statute will be construed
to restrict access to judicial review” of constitutional claims).
[6] Thus, as in Webster, our task here is to decide whether
the statutory scheme that covers TSA screeners such as
AFGE v. STONE 11725
Gavello expresses a clear intention on the part of Congress to
prohibit judicial review of employees’ colorable constitutional
claims. We conclude that it does not. Indeed, the language
Congress used when it enacted ATSA is quite similar to the
statutory language at issue in Webster, which the Supreme
Court held was not sufficiently clear to bar review of constitu-
tional claims. ATSA permits the TSA Administrator,
“[n]otwithstanding any other provision of law,” to terminate
screeners “as the [Administrator] determines to be necessary
to carry out . . . screening functions.” ATSA § 111(d), 115
Stat. at 620 (codified at 49 U.S.C. § 44935 (note)). Mean-
while, the provision at issue in Webster permitted the Director
of CIA, “[n]otwithstanding . . . the provisions of any other
law,” to terminate employees “whenever he shall deem such
termination necessary or advisable in the interests of the
United States.” NSA § 102(c), 61 Stat. at 498. Although both
provisions authorize officials to exercise substantial discretion
when making termination decisions, neither provision
expressly precludes employees from challenging their termi-
nation on constitutional grounds. Indeed, the government
states in its briefing that “the United States has concluded that
Section 111(d) of the ATSA cannot be reasonably read as sat-
isfying the ‘heightened showing’ of congressional intent nec-
essary to construe a federal statute completely ‘to preclude
judicial review of constitutional claims.’ ” (quoting Webster,
486 U.S. at 603).
In deciding that it lacked subject matter jurisdiction, the
district court did not discuss Webster. Instead, the court relied
on United States v. Fausto, 484 U.S. 439 (1988), which the
Supreme Court decided just a few months before it decided
Webster. Unlike Webster, Fausto did not involve any consti-
tutional claims. The question in Fausto was whether an Inte-
rior Department employee who alleged that he had been
suspended from his job in violation of departmental regula-
tions could bring suit in the United States Claims Court for
back pay. Id. at 440-41. Because the employee was classified
as a “nonpreference eligible [employee] in the excepted ser-
11726 AFGE v. STONE
vice,” the CSRA did not permit him to pursue an administra-
tive appeal before the MSPB. Id. at 442. The Court explained
in Fausto that Congress intended the CSRA to provide “an
integrated scheme of administrative and judicial review” of
personnel actions taken against civil servants. Id. at 445. The
Court held that permitting the employee to bring suit in the
Claims Court asserting a violation of departmental regulations
would improperly circumvent the CSRA: “[The CSRA’s]
deliberate exclusion of employees in respondent’s service cat-
egory from the provisions establishing administrative and
judicial review for personnel action of the sort at issue here
prevents respondent from seeking review in the Claims Court
under the Back Pay Act.” Id. at 455.
Fausto and Webster thus address distinct issues. When
Congress decides to exclude an employee from the protec-
tions of the CSRA or an analogous scheme, such as the
FAA’s personnel management system, Fausto precludes the
employee from obtaining judicial review of statutory or regu-
latory claims. However, under Webster, the employee may
still obtain judicial review of constitutional claims unless
Congress, in addition to excluding the employee from the pro-
tections of the CSRA or an analogous scheme, has also
expressly declared its intention to preclude review of constitu-
tional claims. Because Plaintiffs-Appellants in this case raise
constitutional claims, it is Webster, not Fausto, that controls.
The district court also relied on cases from this circuit hold-
ing that the CSRA precludes federal employees from bringing
Bivens actions even when the employee has no alternative
remedy. See, e.g., Russell v. U.S. Dep’t of the Army, 191 F.3d
1016, 1020 (9th Cir. 1999); Blankenship v. McDonald, 176
F.3d 1192, 1195 (9th Cir. 1999); Saul v. United States, 928
F.2d 829, 840 (9th Cir. 1991). However, the rationale for
these decisions does not extend to cases, such as this one, in
which an employee seeks equitable relief. Instead, these deci-
sions merely reflect the courts’ general reluctance to allow
damages as a judicially created remedy for constitutional
AFGE v. STONE 11727
torts. As the Supreme Court recently reiterated, “any free-
standing damages remedy for a claimed constitutional viola-
tion has to represent a judgment about the best way to
implement a constitutional guarantee; it is not an automatic
entitlement no matter what other means there may be to vindi-
cate a protected interest, and in most instances we have found
a Bivens remedy unjustified.” Wilkie v. Robbins, 127 S. Ct.
2588, 2597 (2007); see also Schweiker v. Chilicky, 487 U.S.
412, 421 (1988) (stating that the Court has “responded cau-
tiously to suggestions that Bivens remedies be extended into
new contexts” and that “[t]he absence of statutory relief for a
constitutional violation . . . does not by any means necessarily
imply that courts should award money damages”); Bush v.
Lucas, 462 U.S. 367, 388, 390 (1983) (holding that the “com-
prehensive nature of the remedies currently available” under
the CSRA precluded a federal employee from pursuing a
Bivens action to remedy a claimed First Amendment viola-
tion).
We recognize that one of our cases, Saul v. United States,
suggests that employees might be precluded from seeking
equitable relief as well as damages for constitutional viola-
tions. 928 F.2d at 843. Saul brought a Bivens action against
his supervisors at the Social Security Administration, alleging
that they had violated his First Amendment rights by seizing
and opening his personal mail. Id. at 831. After concluding
that Saul could not maintain his Bivens action, see id. at 838-
39, we briefly addressed Saul’s request to amend his com-
plaint to request injunctive relief. We wrote that amendment
“would be futile” because “[t]he CSRA’s elaborate remedies
show that judicial interference in federal employment is disfa-
vored, whether the employee requests damages or injunctive
relief.” Id. at 843. Thus, “[t]he CSRA precludes Saul from
seeking injunctive relief for his asserted constitutional injury
just as it precludes him from bringing a Bivens action for
damages.” Id.
We conclude that Saul is distinguishable from this case
because Saul could have availed himself of alternative mecha-
11728 AFGE v. STONE
nisms to pursue his constitutional claim. Specifically, Saul
could have challenged his supervisors’ actions under at least
two CSRA appeal procedures rather than proceeding directly
to federal court, and injunctive relief would have been avail-
able as a remedy. Id. at 833-35, 843. By contrast, the parties
in this case agree that Gavello has no remedies available
under the CSRA or ATSA and that judicial review is the only
means by which he can attempt to vindicate his constitutional
rights. Extending Saul to cases in which no alternative remedy
is available seems particularly ill advised given that our opin-
ion in Saul failed to make any mention of Webster, in which
the Supreme Court declared that a “ ‘serious constitutional
question’ . . . would arise if a federal statute were construed
to deny any judicial forum for a colorable constitutional
claim.” Webster, 486 U.S. at 603. Indeed, we recently
observed that none of our precedents, including Saul, “di-
rectly addresse[s] the issue whether the CSRA demonstrates
the kind of heightened showing required [under Webster] to
preclude judicial review of colorable constitutional claims
where the sole remedy sought is equitable relief.” Stanley,
476 F.3d at 657.
We also recognize that three of our sister circuits have held
since Webster that the CSRA precludes federal employees
from pursuing constitutional claims for equitable relief as well
as for damages. See Dotson v. Griesa, 398 F.3d 156, 181 (2d
Cir. 2005) (“The integration of equitable relief, including
reinstatement, into the CSRA’s comprehensive statutory
scheme evinces Congress’s intent to determine for itself the
scope of that relief and to preclude its applicability to federal
employment disputes except where provided by statute.”);
Lombardi v. Small Bus. Admin., 889 F.2d 959, 962 (10th Cir.
1989) (“[J]udicial intervention [in federal personnel matters]
is disfavored whether it is accomplished by the creation of a
damages remedy or injunctive relief.”); Berrios v. Dep’t of
Army, 884 F.2d 28, 31 (1st Cir. 1989) (“Given that plaintiff’s
constitutional claims amount to a federal law challenge to an
adverse personnel action, they are preempted by the CSRA
AFGE v. STONE 11729
consistent with the reasoning of Bush and Fausto.”). But cf.
Hardison v. Cohen, 375 F.3d 1262, 1266 (11th Cir. 2004)
(stating that “whether the unavailability of a Bivens action for
damages for a federal employee means that he is also barred
from obtaining equitable relief for an alleged violation of the
Constitution” remains an open question in the Eleventh Cir-
cuit). Two of these cases, Dotson and Berrios, are distinguish-
able because, as in Saul, the employee had other remedial
mechanisms available. See Dotson, 398 F.3d at 181 (noting
that the court’s interpretation of the statute “did not leave
judicial branch employees without any relief for employment
grievances”); Berrios, 884 F.2d at 33 (noting that plaintiff
could still obtain review of his claim in the Federal Circuit).
The third case, Lombardi, provided little support for its con-
clusion and, in our view, gave short shift both to Webster’s
clear statement rule and to the differences between Bivens
actions and our traditional power to fashion equitable reme-
dies.
We find more persuasive the reasoning of the Third Circuit
and the D.C. Circuit. See Mitchum v. Hurt, 73 F.3d 30 (3d
Cir. 1995) (Alito, J.); Spagnola v. Mathis, 859 F.2d 223 (D.C.
Cir. 1988) (en banc) (per curiam). As in this case, the plain-
tiffs in Mitchum alleged that they were disciplined by their
superiors in retaliation for exercising their First Amendment
rights. They sought declaratory and injunctive relief.
Mitchum, 73 F.3d at 31. Unlike the plaintiffs in this case, the
plaintiffs in Mitchum had alternative statutory remedies. See
id. at 31-32. Writing for the court, then-Judge Alito discussed
the Supreme Court’s decisions in Bush and Chilicky, which
restricted the ability of federal employees to bring Bivens
actions. He stated that, “[b]ased on these decisions[,] . . . a
good argument can be made that a federal employee who has
meaningful administrative remedies and a right to judicial
review under the CSRA or another comparable statutory
scheme should not be permitted to bypass that scheme by
bringing an action under 28 U.S.C. § 1331 and seeking
injunctive or declaratory relief.” Id. at 34. He then observed,
11730 AFGE v. STONE
however, that “the Supreme Court has developed a special
jurisprudence for Bivens claims, and we are hesitant to extend
this jurisprudence into other spheres.” Id. at 35. He explained:
The power of the federal courts to grant equitable
relief for constitutional violations has long been
established. Thus, . . . there is a “presumed availabil-
ity of federal equitable relief against threatened inva-
sions of constitutional interests.” It is reasonable to
assume that Congress legislates with the understand-
ing that this form of judicial relief is generally avail-
able to protect constitutional rights. While Congress
may restrict the availability of injunctive relief, we
believe that we should be very hesitant before con-
cluding that Congress has impliedly imposed such a
restriction on the authority to award injunctive relief
to vindicate constitutional rights.
Id. (citations and internal quotation marks omitted) (quoting
Hubbard v. EPA, 809 F.2d 1, 11 (D.C. Cir. 1986)).
Mitchum relied in part on the D.C. Circuit’s en banc deci-
sion in Spagnola. At issue in Spagnola was whether two fed-
eral employees who claimed violations of their constitutional
rights could pursue Bivens actions. The court held that they
could not. Spagnola, 859 F.2d at 229. Citing Bush and Chil-
icky, the court declared that “courts must withhold their power
to fashion damages remedies when Congress has put in place
a comprehensive system to administer public rights, has ‘not
inadvertently’ omitted damages remedies for certain claim-
ants, and has not plainly expressed an intention that the courts
preserve Bivens remedies.” Id. at 228. The court found “noth-
ing in the legislative history suggesting that Congress’ omis-
sion of a damages remedy in the CSRA was anything but
advertent, nor . . . any clear expression of congressional intent
that the courts preserve Bivens remedies.” Id. at 229. How-
ever, the court continued:
AFGE v. STONE 11731
While we decline to extend Bivens remedies to
[the plaintiffs], we do not suggest that the CSRA
precludes the exercise of federal jurisdiction over the
constitutional claims of federal employees and job
applicants altogether. On the contrary, time and
again this court has affirmed the right of civil ser-
vants to seek equitable relief against their supervi-
sors, and the agency itself, in vindication of their
constitutional rights.
Id. at 229-30 (citations omitted). The court cited with
approval its earlier decision in Hubbard, which stated that, as
a general matter, “federal courts have jurisdiction to grant
equitable relief to remedy agency violations of constitutional
rights.” Hubbard, 809 F.2d at 11.
[7] Consistent with Mitchum and Spagnola, and with the
position of both sides in this case, we conclude that the dis-
trict court erred when it dismissed Plaintiffs-Appellants’ suit
for lack of subject matter jurisdiction. We hold that the statu-
tory scheme governing Gavello’s employment does not
clearly state an intention on the part of Congress to preclude
judicial review of constitutional claims. Plaintiffs-Appellants
are therefore entitled to seek equitable relief based on the
alleged violation of their First Amendment rights.
IV. Back Pay
Although the government concedes that the district court
has jurisdiction over Plaintiffs-Appellants’ claims for equita-
ble relief, it argues that their claim for back pay should be dis-
missed on sovereign immunity grounds. According to the
government, neither the Administrative Procedure Act’s judi-
cial review provision, 5 U.S.C. § 702, nor the Back Pay Act,
5 U.S.C. § 5596, authorizes a back-pay remedy in the district
court in this case. The government readily admits that it did
not raise this argument before the district court, and we
decline to address it here. We leave it to the district court to
11732 AFGE v. STONE
decide the issue on remand once the parties have had a full
opportunity to develop their arguments before that court.
V. Failure to State a Claim
As a fallback position, the government argues that we
should dismiss Plaintiffs-Appellants’ action pursuant to Fed-
eral Rule of Civil Procedure 12(b)(6) for “failure to state a
claim upon which relief can be granted.” The government did
not file a Rule 12(b)(6) motion in district court; instead, it
sought dismissal solely on subject matter jurisdiction and
standing grounds. Although “[w]e may affirm the district
court’s dismissal on any ground supported by the record,”
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004), we
decline to consider the government’s argument in the first
instance. Indeed, to hold otherwise might encourage defen-
dants to circumvent the district court by filing a motion to dis-
miss in district court exclusively on jurisdictional grounds and
then appealing the district court’s denial of the motion and
asking this court to decide whether plaintiffs had stated a
claim for relief. Such a result would be inconsistent with our
general rule that defendants are not entitled to interlocutory
appellate review of a district court’s denial of a Rule 12(b)(6)
motion. See Figueroa v. United States, 7 F.3d 1405, 1408 (9th
Cir. 1993) (“Ordinarily, the denial of a 12(b)(6) motion is not
a reviewable final order; it is only when a question of immu-
nity is involved that we use the collateral order doctrine to
exercise jurisdiction.”).
Conclusion
We reverse the district court’s dismissal of Plaintiffs-
Appellants’ suit for lack of subject matter jurisdiction and
standing. We remand to the district court for further proceed-
ings not inconsistent with this opinion.
REVERSED and REMANDED.