Whither the Pickering Rights of Federal Employees?
39 Pages Posted: 5 Sep 2007 Last revised: 6 Nov 2008
Date Written: August 27, 2007
As a result of the Supreme Court's 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Bd. of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978 (CSRA of 1978). This places federal employees in a less favorable predicament than their state and local employee counterparts who are able to directly proceed to court on their First Amendment retaliation claims under Section 1983.
The issue examined in this paper for the first time is whether an alternative remedy of bringing a First Amendment Pickering claim to an administrative judge designated by the Merit Systems Protection Board (Board), and then potentially to the Board itself, and finally to the Federal Circuit Court of Appeals, provides meaningful redress for federal employees with First Amendment Pickering claims.
An empirical analysis of all First Amendment Pickering cases decided by the MSPB and the Federal Circuit leads to a startling finding: there has not been one successful employee claim of this type under the administrative scheme. My conclusion is that because there is not meaningful redress, Bush v. Lucas should be revisited and overturned, and a Bivens claim implied to vindicate the First Amendment interests of federal employees.
Keywords: Pickering, federal employees, free speech, First Amendment, Bivens, Section 1983, CSRA, MSPB
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