WHITMAN v. DEPARTMENT OF TRANSPORTATION et al.

547US2 Unit: $U61 [03-16-09 15:37:58] PAGES PGT: OPIN
512 OCTOBER TERM, 2005
Syllabus
WHITMAN v. DEPARTMENT OF TRANSPORTATION
et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 04–1131. Argued December 5, 2005—Decided June 5, 2006
Without first pursuing his collective-bargaining agreement’s grievance
procedures, petitioner filed suit alleging that his constitutional rights
and 49 U. S. C. § 45104(8) were violated when his employer, the Federal
Aviation Administration (FAA), tested him for drugs and alcohol in a
nonrandom manner. The District Court held that it had no jurisdiction
to consider petitioner’s claims under the Civil Service Reform Act of
1978 (CSRA), whose grievance rules the FAA has adopted. In affirm
ing, the Ninth Circuit stated that petitioner’s claims were precluded
because 5 U. S. C. § 7121(a)(1) did not confer federal-court jurisdiction.
Held: This case is remanded for the Ninth Circuit to address whether the
FAA’s actions constituted a “prohibited personnel practice,” see 5
U. S. C. § 2302(b); 49 U. S. C. § 40122(g)(2)(A), as well as to address the
ultimate preclusion issue. The question is not whether 5 U. S. C. § 7121
confers jurisdiction, but whether it removes the jurisdiction given to
the federal courts or otherwise precludes employees from pursuing rem
edies beyond those set out in the CSRA. Deciding the jurisdiction and
preclusion questions requires ascertaining where petitioner’s claims fit
within the statutory scheme, as the CSRA provides different treatment
for grievances depending on the nature of the claim. The Ninth Circuit
did not decide whether petitioners’ allegations state a “prohibited per
sonnel practice.” Other issues raised in this Court, but not decided
below—e. g., whether petitioner has challenged final agency action—
may also be addressed on remand, for a decision on those issues can
obviate the need to decide the more difficult preclusion question.
382 F. 3d 938, vacated and remanded.
Pamela S. Karlan argued the cause for petitioner. With
her on the briefs were Thomas C. Goldstein, Amy Howe, and
Kevin K. Russell.
Malcolm L. Stewart argued the cause for respondents.
With him on the brief were Solicitor General Clement, As
sistant Attorney General Keisler, Deputy Solicitor General
Kneedler, John P. Elwood, William Kanter, Jeffrey A.

547US2 Unit: $U61 [03-16-09 15:37:58] PAGES PGT: OPIN
Cite as: 547 U. S. 512 (2006) 513
Per Curiam
Rosen, Paul M. Geier, Jerome M. Mellody, Mark A. Robbins,
Steven E. Abow, and Robin M. Richardson.*
Per Curiam.
Terry Whitman, the petitioner, is an employee of the Fed
eral Aviation Administration (FAA) and is subject to the
agency’s drug and alcohol testing program. Without first
seeking to pursue grievance procedures under his collective
bargaining agreement, he filed suit in the United States Dis
trict Court for the District of Alaska, alleging the FAA
tested him in a nonrandom manner, in violation of his consti
tutional rights and 49 U. S. C. § 45104(8).
The FAA has its own procedural framework for the reso
lution of claims by its employees; and for this purpose it
adopts certain sections of the Civil Service Reform Act of
1978 (CSRA), including Chapter 71 of Title 5, which sets
forth the rules for grievances. 49 U. S. C. § 40122(g)(2)(C).
The District Court held that, under the provisions of the
CSRA, it was without jurisdiction to consider the petition
er’s claims. The Court of Appeals for the Ninth Circuit
affirmed, stating that because “5 U. S. C. § 7121(a)(1), as
amended in 1994, does not expressly confer federal court ju
risdiction over employment-related claims covered by the ne
gotiated grievance procedures of federal employees’ collec
tive bargaining agreements,” his claims are precluded. 382
F. 3d 938, 939 (2004). This Court granted certiorari to re
view the judgment. 545 U. S. 1138 (2005).
The Court of Appeals was correct to say that 5 U. S. C.
§ 7121(a)(1) does not confer jurisdiction. Another statute,
however—a very familiar one—grants jurisdiction to the
*Briefs of amici curiae urging reversal were filed for the American
Federation of Government Employees et al. by Thomas S. Williamson,
Jr., Sarah L. Wilson, Mark D. Roth, and Gony Frieder; for the National
Treasury Employees Union by Gregory O’Duden, Elaine D. Kaplan, and
Barbara A. Atkin; and for Allen Dotson by Amanda Frost and Brian
Wolfman.

547US2 Unit: $U61 [03-16-09 15:37:58] PAGES PGT: OPIN
514 WHITMAN v. DEPARTMENT OF TRANSPORTATION
Per Curiam
federal courts over “all civil actions arising under the Consti
tution, laws, or treaties of the United States.” 28 U. S. C.
§ 1331. The question, then, is not whether 5 U. S. C. § 7121
confers jurisdiction, but whether § 7121 (or the CSRA as a
whole) removes the jurisdiction given to the federal courts,
see Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535
U. S. 635, 642 (2002) (holding that “even if [47 U. S. C.]
§ 252(e)(6) does not confer jurisdiction, it at least does not
divest the district courts of their authority under 28 U. S. C.
§ 1331 to review the Commission’s order for compliance with
federal law”), or otherwise precludes employees from pursu
ing remedies beyond those set out in the CSRA, cf. United
States v. Fausto, 484 U. S. 439, 443–444 (1988); Abbott Labo
ratories v. Gardner, 387 U. S. 136, 140 (1967) (“The question
is phrased in terms of ‘prohibition’ rather than ‘authori
zation’ because . . . judicial review of a final agency action
by an aggrieved person will not be cut off unless there is
persuasive reason to believe that such was the purpose of
Congress”).
In deciding the question of jurisdiction and preclusion, the
Court would be required first to ascertain where Whitman’s
claims fit within the statutory scheme, as the CSRA provides
different treatment for grievances depending on the nature
of the claim. It may be, for example, that the FAA’s actions,
as described by the petitioner, constitute a “prohibited
personnel practice.” See 5 U. S. C. § 2302(b); 49 U. S. C.
§ 40122(g)(2)(A). Both the petitioner and the Government
say they do not, but because the ultimate question may be
jurisdictional, this concession ought not to be accepted out
of hand. See Weinberger v. Bentex Pharmaceuticals, Inc.,
412 U. S. 645, 652 (1973) (“Parties, of course, cannot confer
jurisdiction; only Congress can do so”). The Court of Ap
peals did not decide whether the petitioner’s allegations
state a “prohibited personnel practice.” The proper course,
then, is to remand for the Court of Appeals to address the
matter, see National Collegiate Athletic Assn. v. Smith, 525

547US2 Unit: $U61 [03-16-09 15:37:58] PAGES PGT: OPIN
515 Cite as: 547 U. S. 512 (2006)
Per Curiam
U. S. 459, 470 (1999), as well as the ultimate issue of preclu
sion. The various other issues raised before this Court, but
not decided below, may also be addressed on remand, includ
ing: whether the petitioner has challenged final agency ac
tion; whether the petitioner has exhausted his administrative
remedies; whether exhaustion is required given this stat
utory scheme and the Administrative Procedure Act, as in
terpreted in Darby v. Cisneros, 509 U. S. 137 (1993); and
whether the Government has forfeited its exhaustion-of
remedies argument. It may be that a decision on these
questions can obviate the need to decide a more difficult
question of preclusion.
The judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Alito took no part in the consideration or deci
sion of this case.