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“The importance of Government employees’ being assured of their right to freely comment on the conduct of Government, to inform the public of abuses of power and of the misconduct of their superiors, must be self-evident in these times.”

What was true when Justice Thurgood Marshall wrote that line some 33 years ago in Arnett v. Kennedy (1974) is certainly true today in our politicized times. Yet federal employees currently lack meaningful workplace protections for their First Amendment right to comment freely upon matters of public concern. In reviewing nearly 100 cases since 1983 in which federal employees brought an appellate-level claim alleging workplace retaliation for protected speech, I discovered that not a single federal employee has ever won such a suit on the merits. On paper, federal employees have First Amendment rights that are protected. In practice, they apparently don’t, and this can prevent them from informing the public about governmental abuses. Ironically, federal law does protect state and local employees, who can bring constitutional claims against state and local officials under 42 U.S.C. �1983. Yet no equivalent protection exists for federal employees. Although direct constitutional claims against federal officials have been recognized by the Supreme Court since Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the Court decided in Bush v. Lucas (1983) that such Bivens claims do not exist for federal employees. Thus, they have no constitutional recourse in federal trial courts against supervisors and managers who punish them with unfavorable treatment, demotions, or terminations because of constitutionally protected speech on matters of public concern. Instead, the Court found that federal employees have an effective statutory alternative in the Civil Service Reform Act of 1978. The act, born from more than a hundred years of trying to keep inappropriate partisan influences out of the federal bureaucracy, provides an administrative framework with procedural and substantive protections. Federal employees must bring their free-speech constitutional claims through this scheme. That means that after federal employees suffer a violation of their constitutional rights in the workplace, they must first have their case heard by an administrative judge designated by the Merit Systems Protection Board. Thereafter, they may file a petition for review with the board itself. Finally, regardless of whether the petition is granted, the employee may appeal to the U.S. Court of Appeals for the Federal Circuit. The appellate court’s review is severely circumscribed, however, and the Merit Systems Protection Board’s decision may be overturned only if deemed something akin to arbitrary and capricious. Historically, the board has been affirmed 93 percent to 96 percent of the time. This is astronomical. Judicial affirmance rates of other federal agency decisions, reviewed under similar standards, lie in the range of 75 percent to 83 percent. STARTLING DATA Given this convoluted process, perhaps it is not surprising that the administrative scheme is not vindicating the First Amendment rights of federal employees. But the extent of the problem is truly extraordinary. My research reviewed, for the first time, every free speech case decided on the merits by either the Merit Systems Protection Board or the Federal Circuit under the applicable legal framework (derived from the Supreme Court decisions in Connick v. Myers (1983) and Pickering v. Board of Education (1968)). The results were startling: Not a single federal employee has succeeded in front of the Merit Systems Protection Board or the Federal Circuit on a First Amendment claim since Connick. Perhaps as a result, the number of First Amendment appeals being brought at all is notably low. The message that federal employees are apparently receiving is that their First Amendment claims will not be treated seriously. Employees are instead left to bring largely ineffective statutory whistle-blowing claims (more on that below) or swallow hard. The result is that federal employees cannot speak freely and bring needed transparency and accountability to the federal government. These employees are our eyes and ears. Without them, how are we supposed to keep track of the multitude of programs that our federal government provides? Federal employees are not going to speak out about wrongdoing or inefficiency if all that awaits them is an unemployment check. Some may argue: Well, even if federal employees do not have adequate First Amendment protections in the workplace, don’t they still have the necessary protection under federal whistle-blower laws? This is in fact one of the arguments advanced for limiting First Amendment rights by Garcetti v. Ceballos (2006), in which the Supreme Court held that public employees have no First Amendment rights when speaking pursuant to their official duties. But the results under the federal whistle-blowing statute, the Whistleblower Protection Act of 1989, are hardly comforting. As Terry Dworkin of Indiana University wrote in the Michigan Law Review, only one of the 120 appeals brought by whistle-blowers to the Federal Circuit since 1984 has succeeded. Additionally, from 1999 to 2005, only two out of 30 whistle-blower claims, which go through a similar administrative process as free-speech claims, prevailed even before the Merit Systems Protection Board. These data indicate that federal whistle-blowers are almost as unsuccessful with whistle-blower claims as with First Amendment claims. Things have become so dire that Congress is considering providing more protection to federal whistle-blowers. The Whistleblower Protection Enhancement Act, H.R. 985, was approved this March by a vote of 331-94. The bill is currently pending in the Senate. The act would expand the scope of disclosures protected under current law and provide an escape hatch from the current procedures altogether if the Merit Systems Protection Board does not act on a case within 180 days. A BIVENS SOLUTION Congress may or may not act on whistle-blower claims, but adjudicating these First Amendment claims has its own constitutional value. Action must be taken to protect the federal employees who serve as the vanguard for all citizens against government abuse. It is time to revisit the Supreme Court’s conclusion in Bush v. Lucas that the Civil Service Reform Act provides meaningful redress for federal employees’ First Amendment claims. When the success rate under the act’s procedures is zero for employees, the entire rationale underlying Bush v. Lucas is fundamentally undermined. Based on this new evidence about the ineffectiveness of civil service procedures, the Supreme Court should resurrect a Bivens remedy so that federal employees, like their state and local employee counterparts, can bring their constitutional claims directly to federal court. Some might object that Congress should legislate instead. Congress could certainly do that, but it seems highly unlikely in these polarized times, and the First Amendment rights of U.S. citizens should not be a matter of legislative grace. Others might contend that recognizing a Bivens action will lead to a flood of litigation. Yet similar claims were made in the 1980s about Section 1983 claims in the state and local context, and many were predicting the impending doom of our federal courts. This apocalypse has not materialized. This is probably because it remains incredibly difficult for any public employee to bring a free-speech claim after Connick and now Garcetti. One case from the D.C. area, Chambers v. Department of Interior (2006), indicates what the future could hold if judicial reforms are not adopted. The employee, the chief of the U.S. Park Police, warned about insufficient staff and declining safety in the parks and parkways. Her supervisor then fired her. The Merit Systems Protection Board found that her interview with The Washington Post was not protected First Amendment speech, based in part on the rationale in Garcetti. The result is that federal employees can lose First Amendment cases because they are doing what they are supposed to: reporting fraud, abuse, and corruption in government in accordance with their job duties. The time has thus come to recognize what should be a noncontroversial principle: Federal employees deserve the ability, like that of any other citizen, to have an effective remedy when their First Amendment rights are trampled underfoot by their government employer. This is not a novel principle. Almost 30 years ago, the Supreme Court stated in Davis v. Passman (1979) what should be the jumping-off point for any discussion about the free-speech rights of federal employees: “[U]nless [constitutional] rights are to become merely precatory, litigants who allege that their own constitutional 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 .�.�. protection.” For almost 25 years, federal employees have almost uniformly lost on their First Amendment Pickering claims before the Merit Systems Protection Board and the Federal Circuit. The concept of the “inexorable zero” in disparate impact law under Title VII of the Civil Rights Act of 1964 comes to mind. In Teamsters v. United States (1977), Justice Potter Stewart wrote that when no minorities had been hired at all by an employer, “fine tuning of the statistics” do not obscure the glaring absence of minority employees. The company’s inability to rebut the inference of discrimination, Stewart argued, came not from an misuse of statistics but from “the inexorable zero.” In the context of federal employees’ First Amendment rights, the time has now come to similarly explode the “inexorable zero.”

Paul M. Secunda is a law professor at the University of Mississippi and an editor of the Workplace Prof Blog.

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