[00:00:01] Speaker 02: Phase number 22-5154, Jason Payne, the balance versus Joseph R. Biden Jr. [00:00:08] Speaker 02: President, Mr. Hamilton for the balance, Mr. Winnick for the FLEs. [00:00:15] Speaker 04: Morning, Mr. Hamilton, we'll hear from you. [00:00:23] Speaker 06: Morning, may it please the court, Dean Hamilton on behalf of Jason Payne, [00:00:32] Speaker 06: Did Congress, by federal courts, jurisdiction over all civil actions arising under the Constitution of the United States in 20 U.S.C. [00:00:43] Speaker 06: 1331? [00:00:45] Speaker 06: Does the judiciary have a strong interest in preserving the separation of powers that's been established in our Constitution? [00:00:54] Speaker 06: And should a federal court determine, without any textual basis whatsoever, that a statutory scheme [00:01:02] Speaker 06: includes federal court jurisdiction over a pre-enforcement separation of powers constitutional claim. [00:01:13] Speaker 06: This court can reverse the decision and remand this case to the district court in adjudication on the merits because the Civil Service Reform Act does not preclude district jurisdiction over the type of claim brought by Mr. Payne, which in this case was a pre-enforcement [00:01:31] Speaker 06: constitutional separation of powers. [00:01:34] Speaker 03: Under your theory, what gives you a cause of action? [00:01:39] Speaker 06: What is the cause of action? [00:01:42] Speaker 06: The cause of action for Mr. Payne, he had three complaints. [00:01:45] Speaker 06: One was a violation of separation of powers. [00:01:48] Speaker 06: Second was an unconstitutional condition placed on his employment. [00:01:55] Speaker 06: And third was a [00:02:01] Speaker 06: violation of his constitute of his liberty rights. [00:02:05] Speaker 04: And so under what statute do those arrive? [00:02:11] Speaker 04: What's the statutory basis for causes of action? [00:02:19] Speaker 06: It is his claims arise under the under the constitution of the United States itself. [00:02:26] Speaker 06: His claims do not arrive under some dispute under the civil service reform. [00:02:30] Speaker 04: Well, my question is, even if someone said, you know, something unconstitutional was done me that violates equal protection or the First Amendment or something, then they're filing. [00:02:45] Speaker 04: Are they filing under 1983? [00:02:46] Speaker 04: Are they filing under 1981? [00:02:49] Speaker 04: Are they filing under what? [00:02:51] Speaker 04: What does he what does he filing under? [00:02:59] Speaker 06: would at the very least be a challenge that would be viable in 1983. [00:03:06] Speaker 06: But I'll just report I don't have that. [00:03:12] Speaker 03: I think 1983 doesn't apply to the federal government. [00:03:16] Speaker 03: I'm sorry. [00:03:21] Speaker 06: So fundamental liberty rights are the same rights that he's alleging arise under Glovesburg, progeny, [00:03:29] Speaker 06: about the fundamental liberty right that belongs to every United States citizen from being an interest in privacy and in bodily integrity. [00:03:41] Speaker 06: So that's not necessarily based on some specific statute. [00:03:45] Speaker 06: It's based on that right in and of itself. [00:03:50] Speaker 06: The cause of action for his claim against the President of the United States [00:03:58] Speaker 06: and against the task force and the other defendants in the case arise under the Constitution itself. [00:04:13] Speaker 03: Let me shift a little bit. [00:04:17] Speaker 03: There's something in your brief. [00:04:18] Speaker 03: I don't have a page in front of me. [00:04:20] Speaker 03: But you say in order for something to be a proposed adverse action under this little search [00:04:26] Speaker 03: It requires a specific this, a specific that, a specific this, a specific that. [00:04:31] Speaker 03: And it's got to be in writing. [00:04:33] Speaker 03: And in particular, it's got to be addressed to a specific person like me. [00:04:38] Speaker 03: What's the authority for that? [00:04:39] Speaker 03: Where do I go to find out if you're right about that? [00:04:43] Speaker 03: The Civil Service Reform Act. [00:04:45] Speaker 03: Well, where do I go to? [00:04:47] Speaker 03: Yeah, basically, yes. [00:04:49] Speaker 03: But I mean, I would even let you go beyond that. [00:04:53] Speaker 03: You seem, I guess, yes, under the civil service format, it refers to a proposed, quote, proposed adverse action. [00:05:00] Speaker 03: You say, well, that's not what's going on here, because there wasn't specific written notice to aim specifically regarding a specific suspension or tire. [00:05:12] Speaker 03: And that actually seems like it might be right. [00:05:16] Speaker 03: I mean, I'm open to that, that proposed adverse action requires that kind of specificity. [00:05:24] Speaker 03: But I can't just take your word for it. [00:05:27] Speaker 03: I need to know what authority stands for that. [00:05:31] Speaker 06: Thank you, Judge. [00:05:32] Speaker 06: I believe that the Civil Service Reform Act is implementing regulations in the practices of the federal agencies themselves. [00:05:41] Speaker 06: At the very least, if not directly state as much, indicate as much from their practice. [00:05:47] Speaker 06: There are no personnel actions are not proposed. [00:05:51] Speaker 06: on a widespread basis that are subject to the CSRA without some kind of individualized determination. [00:05:59] Speaker 06: It just does not happen. [00:06:01] Speaker 06: There is a specific individual warning provided or a writing is provided to an individual employee about a specific action that's going to be proposed to be taken, especially issued by the agency in question. [00:06:17] Speaker 06: to the employee then they're able to respond, they're able to consult with counsel, they're able to say that all of this arises in the context of specific adverse actions being taken against a specific employee. [00:06:32] Speaker 03: I'm going to shift again to that. [00:06:35] Speaker 03: question of whether this is a workplace condition, you argue very strongly in the brief that in light of NFIB, the OSHA, that vaccine mandate cannot be considered a workplace condition. [00:06:50] Speaker 03: He's been required to wear a mask. [00:06:53] Speaker 03: He's had restricted travel, a few other things as a result of defying the vaccine mandate. [00:07:03] Speaker 03: And I think there would be agreement among the parties that being required to wear a mask at work is a workplace condition. [00:07:12] Speaker 03: You say, well, you're not challenging the mask requirement at work. [00:07:16] Speaker 03: But it seems like a pretty easy way to resolve this case is to say, certainly a mask requirement at work is a workplace condition. [00:07:30] Speaker 03: And in this case, the mask requirement is [00:07:33] Speaker 03: bound up in the vaccine mandate. [00:07:39] Speaker 03: The mask requirement is part and parcel of the vaccine mandate. [00:07:43] Speaker 03: And so he can challenge the mask requirement, which is imposed as part of the vaccine mandate as a workplace condition. [00:07:55] Speaker 03: He can challenge the mask requirement as a workplace condition. [00:07:58] Speaker 03: that will allow him to adjudicate not just administratively with the Merit Protection Board, but also eventually with the federal circuit, whether the imposition of the mask mandate as part of a vaccine mandate is legal or not, in which case you get into federal court that way. [00:08:21] Speaker 03: Am I right about all that? [00:08:23] Speaker 06: I don't know that it's specifically the case that Congress intended setting aside whether this a mask mandate constitutes a workplace condition. [00:08:36] Speaker 03: Don't set it, I will let you finish, but is a mask, is a requirement to wear a mask at work, a workplace condition? [00:08:46] Speaker 06: Under certain circumstances. [00:08:48] Speaker 06: Under this circumstance? [00:08:49] Speaker 06: Under this circumstance, [00:08:52] Speaker 06: I don't think that we're alleging that it is. [00:08:55] Speaker 06: I'm asking you if it is. [00:08:59] Speaker 06: It could be, but the point right now, Mr. Payne, his agency, his employing agency, has subsequently withdrawn any requirements to wear masks among the workforce. [00:09:11] Speaker 06: There's no longer existent any restrictions on its travel, no restrictions on its entry to the office building, everything now [00:09:19] Speaker 06: comes back to the same place that it was when it began, which is the imposition of this vaccine requirement. [00:09:24] Speaker 06: The mask mandate was subsidiary two. [00:09:27] Speaker 06: But I would say about the requirement, the potential eventual availability challenge, hypothetically, an employee could challenge a mask mandate as a workplace condition, hypothetically, down the line. [00:09:40] Speaker 06: How is he injured right now? [00:09:43] Speaker 06: Three, right now. [00:09:45] Speaker 06: His injury remains in this requirement to be vaccinated. [00:09:49] Speaker 06: under threat of potential removal from federal service. [00:09:54] Speaker 04: Well, I could, you know, say that there's going to be a 10-minute time limit on your argument today. [00:10:00] Speaker 04: But if I don't enforce it, then you're not injured by it, right? [00:10:05] Speaker 06: Well, I don't know. [00:10:06] Speaker 06: I think that the injury here comes from not only the potential of enforcement in and of itself, but it's the interior of effects. [00:10:16] Speaker 06: And the effects that could have come to Mr. Payne [00:10:19] Speaker 06: Who has? [00:10:21] Speaker 04: Why isn't the injury ripe when there is a proposed employment action against your client? [00:10:29] Speaker 04: So then there's an injury, then there's a cause of action, then there's standing, and then you have a remedy. [00:10:35] Speaker 04: Why are we talking about this now? [00:10:37] Speaker 04: May I respond, Judge? [00:10:40] Speaker 04: Yeah, I don't want to injure you, so you can respond. [00:10:45] Speaker 06: Sounds good, Judge. [00:10:47] Speaker 06: There is a set of circumstances under the fact pattern here, where if the agency had proposed an adverse action, if the agency had taken action against Mr. Payne, where potentially he could, down the line, bring his challenges there. [00:11:04] Speaker 06: But there is no evidence in the text, the Civil Service Reform Act, or applying Thunder Basin, or Elgin, which was limited to an adverse personnel action that was taken, that evinces [00:11:16] Speaker 06: a preclusion of the general jurisdiction of federal courts in the 1331 to entertain these types of systemic challenges to unconstitutional conditions in place on federal employees. [00:11:27] Speaker 01: So what about, and the district court emphasizes, of course, the provision for going to the special counsel and using that procedure and then following through as Judge Walker [00:11:45] Speaker 01: summarized. [00:11:48] Speaker 06: Well, you certainly could, although depending on the nature. [00:11:52] Speaker 01: You certainly could. [00:11:53] Speaker 01: Isn't that the end of your argument then that the statutory scheme eliminates any ability by your client to challenge, much less obtain, judicial relief [00:12:14] Speaker 01: that he seeks. [00:12:19] Speaker 05: I don't believe so. [00:12:19] Speaker 06: I don't believe so. [00:12:21] Speaker 00: Why not? [00:12:23] Speaker 06: If we were to take that hypothetical and we were applying the, we were applying Thunder Basin. [00:12:34] Speaker 01: No, what I'm saying is taking the allegations in your complaint, [00:12:42] Speaker 01: even assuming the change of circumstances. [00:12:47] Speaker 01: If we can get over all the hurdles, you can't cite any statutory basis, you'd have any injury right now. [00:12:53] Speaker 01: There may be one in the future, but right now, and so this is shifting, I realize, but your whole point [00:13:08] Speaker 01: starts with the premise that the statutory scheme, A, is not comprehensive and B, even if it is, it doesn't give your client any avenue to relief. [00:13:26] Speaker 05: It's not that there is no avenue for relief at some point in time. [00:13:31] Speaker 01: I'm talking about right now. [00:13:34] Speaker 06: Right now. [00:13:35] Speaker 06: As it stands right now, there has been no proposed individual action taken against this claim. [00:13:42] Speaker 06: There has been no adverse action employed. [00:13:45] Speaker 06: There has been nothing taken that would put it within the parameters of the CSRA provisions. [00:13:49] Speaker 01: Your complaint, however, contradicts that. [00:13:56] Speaker 01: And I think that's some of the troubling part of this case. [00:13:59] Speaker 01: Some of your argument is very persuasive, but you can't overlook what your client has alleged. [00:14:07] Speaker 01: He's talking about humiliation. [00:14:09] Speaker 01: He's talking about all kinds of other things that has affected his ability to carry out his job, et cetera. [00:14:19] Speaker 00: Those are the allegations. [00:14:24] Speaker 06: I agree that those are allegations that help illustrate his standing to get into court. [00:14:31] Speaker 06: to illustrate the harm that has come to him from the imposition of this vaccine requirement. [00:14:37] Speaker 06: But I disagree with the notion that that puts him within the realm of the CSRA. [00:14:42] Speaker 06: The reasons outlined in our brief. [00:14:44] Speaker 01: No, no, no, no. [00:14:45] Speaker 01: I know what you said in your brief, and you basically lied this whole process. [00:14:55] Speaker 00: Even though the district court opinion [00:15:02] Speaker 01: emphasized it in responding to some of your arguments. [00:15:05] Speaker 01: That's what I'm not clear about. [00:15:08] Speaker 01: Judge Walker has raised a fundamental question. [00:15:12] Speaker 01: Judge Wilkins has raised this fundamental question. [00:15:14] Speaker 01: It seems to me I'm raising a fundamental question. [00:15:23] Speaker 04: Mr. Hamilton, do you have a response? [00:15:28] Speaker 06: Judge, I... [00:15:29] Speaker 06: I apologize if I misheard Judge Rogers. [00:15:31] Speaker 06: I just wanted, did she say that our complaint, did it lie? [00:15:38] Speaker 05: Did I understand that correctly or? [00:15:43] Speaker 01: No, I said, here are the allegations in your complaint. [00:15:49] Speaker 00: We are to take them as true at this point. [00:16:01] Speaker 01: I made no accusation or implication that what was alleged in the complaint was not true or that your client lied. [00:16:13] Speaker 01: So erase that from any assumption of any question or response. [00:16:24] Speaker 05: All right. [00:16:25] Speaker 04: Do you have any further response to judge Rogers or anyone else? [00:16:30] Speaker 06: Judge, I would just ask that this court reverse the judgment below because CSRA does not explicitly preclude Mr Payne's claim for the reasons we stated. [00:16:40] Speaker 04: All right. [00:16:40] Speaker 04: Any other questions, Judge Walker, Judge Rogers? [00:16:43] Speaker 01: No, thank you. [00:16:45] Speaker 04: All right. [00:16:46] Speaker 04: We'll give you a couple of minutes on rebuttal. [00:16:48] Speaker 04: We'll hear from Mr Winnick on behalf of that bully. [00:17:01] Speaker 02: Good morning, Your Honor. [00:17:01] Speaker 02: May I please support any winning for the government? [00:17:04] Speaker 02: The plaintiff brought this suit as a preemptive challenge to Adverse Employment Act. [00:17:09] Speaker 02: The CSRA allows him to seek judicial review of any such action only once it is, quote, taken. [00:17:15] Speaker 02: That's in section 7513D. [00:17:16] Speaker 02: If an action is merely proposed, not yet taken, the CSRA is clear that an employee is entitled to administrative process. [00:17:25] Speaker 03: No, let me ask has it been proposed? [00:17:28] Speaker 03: Is there a proposed adverse action? [00:17:30] Speaker 03: I know that he might not. [00:17:31] Speaker 03: I know that he can't get into federal court with a mere proposed adverse action, but he can get to the Office of Special Counsel or something like that. [00:17:40] Speaker 03: So has there been a proposed adverse action? [00:17:42] Speaker 02: We haven't taken the view that an action here has been proposed. [00:17:45] Speaker 02: I also don't think that's relevant even to the question whether you can get to OSC. [00:17:49] Speaker 02: Whether you can get to OSC to get there is to bring a complaint that there's been a prohibited personnel practice. [00:17:56] Speaker 02: But our principal argument here is not that this suit is precluded because he has a pre-enforced review. [00:18:02] Speaker 02: It's that the suit is precluded because the CSRA gives him a means [00:18:06] Speaker 02: a post enforcement judicial review and he's trying to end run that process by seeking. [00:18:10] Speaker 03: I get that and I have some questions about that in a minute, but I'm just trying to figure out. [00:18:15] Speaker 03: He says this is a workplace condition and he says this is a proposed adverse action and I'm wondering if he's right about both of those. [00:18:30] Speaker 03: One of those were neither. [00:18:34] Speaker 02: We have not taken a position on those issues. [00:18:36] Speaker 02: We have not suggested that he's wrong about those. [00:18:39] Speaker 02: I don't think the court needs to say he's wrong about those in order to affirm the dismissal of this suit. [00:18:43] Speaker 02: The reason this suit is precluded is that he's trying preemptively to challenge. [00:18:47] Speaker 03: It sounds like you are saying we shouldn't care, and maybe we shouldn't care if he's right or not, but assume I care. [00:18:55] Speaker 03: it would be good to have some help from you on whether he's right that this is a proposed action and whether he's right that this is a workplace. [00:19:05] Speaker 02: Yeah, so I'm not trying to be coy. [00:19:07] Speaker 02: The reason I'm not taking a firm position as to whether it's a proposed adverse action, it's for the Office of Special Counsel to resolve if someone brings a complaint. [00:19:16] Speaker 02: I frankly don't know what view they would take of that, and I don't have authority to sort of get ahead of them on that. [00:19:21] Speaker 03: But I guess we should say, and I think this is fair to you, but to him as well, that it's possible this is not a workplace condition, and it's possible this is not a proposed adverse action. [00:19:36] Speaker 03: I think that's correct. [00:19:38] Speaker 03: Okay, let me ask out a more general question of on law fed courts. [00:19:48] Speaker 03: True or false. [00:19:49] Speaker 03: It's possible that a federal employer and plan to violate the constitutional rights of a federal employee and the federal employee will have no access to the Article three court [00:20:05] Speaker 03: before enforcement. [00:20:08] Speaker 02: So I think, as we pointed out in our briefs, there are various ways in which an employee can sometimes seek reinforcement. [00:20:16] Speaker 02: The most basic of which is to go to the Office of Special Counsel. [00:20:20] Speaker 02: It is a prohibited personnel practice to violate the constitutional rights of an employee. [00:20:26] Speaker 02: If the OSC finds a violation, they can seek corrective action from the MSPB. [00:20:30] Speaker 02: And if the MSPB denies it, the employee can then go to the Federal Circuit. [00:20:33] Speaker 02: That's one means of reinforcement review [00:20:35] Speaker 02: Another, in I think the hypothetical realm, is mandamus from the federal circuit. [00:20:40] Speaker 03: But you said it's possible he's not going to be able to avail himself of that MSPB federal circuit route, because it's possible this is not a workplace condition, right? [00:20:52] Speaker 02: That's right. [00:20:52] Speaker 02: A workplace condition is not the only type of personnel action that can be the basis for finding a prohibited personnel practice. [00:21:00] Speaker 02: So there's various other kinds of personnel actions, including taking disciplinary action. [00:21:05] Speaker 02: So you don't have to think it's a workplace, either in your hypothetical or in this case, you don't have to think it's a workplace. [00:21:10] Speaker 03: So is this that I'm not talking about the president's vaccine mandate federal employees. [00:21:16] Speaker 03: Is that a personnel action? [00:21:19] Speaker 02: The mere requirement [00:21:21] Speaker 02: is not a personnel action unless you think it's a change in workplace conditions. [00:21:25] Speaker 02: I'm just saying that in your hypothetical, there are various ways an employee, there are various paths by which an employee would seek a pre-enforcement review. [00:21:32] Speaker 03: It's not so much a hypothetical as I am. [00:21:33] Speaker 03: I'm asking for a case, you know, precedent or some kind of other authority that would, that would stand for this proposition. [00:21:43] Speaker 03: There will be some instance when a federal employer planned [00:21:50] Speaker 03: to violate the constitutional rights of a federal employee and yet that employee cannot get to an article three court pre-enforcement. [00:22:06] Speaker 02: So the best case I have Your Honor is AFG versus Trump which is a case from the recent case from this court applying thunder basin analogy. [00:22:14] Speaker 02: where various unions sought to challenge executive orders governing federal labor management relations, including on constitutional grounds. [00:22:22] Speaker 02: And the court said, the Supreme Court made very clear in Thunder Basin that you do not have a right to pre-enforcement judicial review. [00:22:29] Speaker 02: Congress can and it has permissively channeled the review of those claims into post-enforcement proceedings. [00:22:35] Speaker 02: The court noted that that was very clear from the Supreme Court's decision in Thunder Basin. [00:22:39] Speaker 02: And that's the reason the dismissal of this decision. [00:22:42] Speaker 02: And the name rings a bell, but it [00:22:44] Speaker 03: If I go reread that case, it's going to say, at least in that case, possible constitutional violation of federal employees' rights, no access to Article III courts, pre-enforcement of the planned constitutional violation. [00:23:05] Speaker 02: Yes, Your Honor. [00:23:05] Speaker 02: So in that case, unions sought to bring a pre-enforcement challenge to executive orders affecting federal employees, including unconstitutional [00:23:13] Speaker 02: They argued that they had the right to do that because, and this is from the court's opinion, the CSRA's team, quote, does not provide for meaningful judicial review because they are unable to obtain pre-implementation review with the executive powers. [00:23:25] Speaker 02: And this court found that argument, quote, foreclosed by Thunder Basin, as well as this court's prior decision in AFGE versus Secretary of the Air Force. [00:23:33] Speaker 02: And it explained, quote, Thunder Basin instructs that the unions are not necessarily entitled to raise a pre-implementation challenge in the district court [00:23:42] Speaker 02: and that Congress may require them to litigate their claims solely through the statutory scheme, at least so long as they can eventually obtain review and relief. [00:23:51] Speaker 02: And it noted this work said the same in error. [00:23:54] Speaker 02: And that was the CSRA. [00:23:55] Speaker 02: So long as they can eventually obtain relief post-enforcement. [00:23:59] Speaker 02: Post-enforcement, yes, as is the case here. [00:24:02] Speaker 02: If any adverse action is eventually taken, and of course, there's no women in prospect of that because the whole enforcement of this whole requirement has been enjoined by the district court to taxes, [00:24:12] Speaker 02: you know, on on appeal in the circuit. [00:24:14] Speaker 02: So there's no imminent effect. [00:24:15] Speaker 02: But if he is eventually subject to any major adverse employment action, he can feel bad to the MSPB. [00:24:22] Speaker 02: He can seek review of any adverse MSPB determination in the federal circuit. [00:24:27] Speaker 02: And the federal circuit is completely capable of reaching and resolving all of that's sufficient basis on which to refer. [00:24:34] Speaker 03: Let me give you a hypothetical. [00:24:35] Speaker 03: I think I know the answer to it. [00:24:36] Speaker 03: Let me just double check. [00:24:38] Speaker 03: Imagine a federal employer says to its employees, female employees have to work an hour later every day without. [00:24:54] Speaker 03: And if you don't, there will be, we maintain the option of filing. [00:25:06] Speaker 03: And female employee, [00:25:08] Speaker 03: wants to challenge that before she has been fired. [00:25:14] Speaker 03: And you're saying it's possible under our constitutional and statutory scheme that that female employee would not be able to adjudicate that question in federal court until she waits for the fire. [00:25:31] Speaker 02: So that specific hypothetical, Your Honor, sounds a lot like a prohibited personnel practice. [00:25:35] Speaker 02: I mean, one of the prohibited [00:25:37] Speaker 02: Personnel actions is a change in duties, and it's a prohibited practice to do it on a basis that violates constitutional rights. [00:25:45] Speaker 02: So she can bring a claim to the OSC, which can both seek a say of it and seek to see corrective action in the MSDB. [00:25:55] Speaker 02: So I think in that particular hypothetical, she probably can get reinforcement review. [00:25:59] Speaker 02: But to the extent that she can't, [00:26:02] Speaker 02: this court has made clear that it does not render judicial review meaningless for it to happen post enforcement. [00:26:10] Speaker 02: And that's partly because under the CSRA, what along the forms of relief the employee can get if he or she ultimately prevails on a claim is back pay, reinstatement, attorneys fees. [00:26:20] Speaker 02: So it really is a meaningful form of judicial review, even if it comes post enforcement. [00:26:28] Speaker 04: Any other questions? [00:26:29] Speaker 04: Judge Rogers, Judge Walker? [00:26:32] Speaker 01: No, thank you. [00:26:35] Speaker 04: Thank you, Council. [00:26:37] Speaker 04: Mr. Hamilton, we'll give you two minutes for a rebuttal. [00:26:46] Speaker 04: We'll waive our rebuttal. [00:26:48] Speaker 04: All right, thank you. [00:26:49] Speaker 04: We'll take the case under advisement.