Recent Supreme Court Rulings Potentially Impacting Federal Employees

Since last week, the U.S. Supreme Court has handed down two rulings, one of which has a direct impact on public employees. On May 30, 2006, the Supreme Court handed down a potentially far reaching decision regarding First Amendment protection as a public employee.  In Garcetti, et al., v. Ceballos, the Court held that a “government entity has broader discretion to restrict (employee) speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations.”  In this context, “the First Amendment does not prohibit managerial discipline based on an employee’s expression made pursuant to official responsibilities.”  In Ceballos, the employee, a supervising deputy district attorney, in reviewing case law cited by defense counsel related to the affidavit police used to obtain a critical search warrant, concluded that the affidavit made “serious misrepresentations” and related his findings to superiors.  Although his superiors proceeded with prosecution, the defense called Mr. Ceballos as a witness to testify about his findings.  Mr. Ceballos claimed that as a result of these actions, he was subjected to a series of retaliatory actions, transferred, and denied a promotion, to which Mr. Ceballos claimed a violation of his freedom of speech rights.  The Supreme Court found that the employee was not speaking as a public citizen on a matter of public concern, and since his speech was made pursuant to his official duties as a prosecuting attorney, his supervisors were not prohibited from evaluating his performance.  The Court distinguished the lack of First Amendment protection from whistle-blower protection for exposing governmental inefficiency and misconduct, which it maintains continues for public employees.  How this distinction will impact federal employees remains to be seen.

In Whitman v. Department of Transportation, in which NFFE submitted an amicus brief to the high court, the Court side stepped an opportunity to address a split in the circuits regarding whether a federal employee covered by a collective bargaining agreement has direct access to the courts.  Prior to the 1994 amendment of the Federal Service Labor-Management Relations Statute (FSLMRS), courts have held that federal employees only have access to the grievance procedure in resolve employment issues covered by the collective bargaining agreement. Following the 1994 amendment, Congress provided that the negotiated grievance procedure “shall be the exclusive administrative procedure” for employee claims that are covered by a collective bargaining agreement (but exempts prohibited personnel practices and certain serious adverse actions from the exclusive purview of the grievance procedure).  The circuit courts are divided by whether the term “administrative” allows employees to bypass the grievance procedure in favor of the federal courts.  Whitman remanded the question back to the appellate court to determine whether the Civil Service Reform Act preclude Whitman’s claim from being heard by the courts at all.  It could be years before this matter reaches the high court again for resolution.