American Federation of Government Employees Local 1 v. Stone

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.