An interesting aspect of yesterday’s Supreme Court decision on RIFs is that it doesn’t mention the so-called “channeling doctrine.” This doctrine provides that federal employees often cannot go directly to court to raise legal claims related to their employment. Instead, those claims must be raised in other forums such as the Merit Systems Protection Board.
There are two reasons why the Supreme Court could have been expected to address channeling. First, it was the Government’s lead argument in seeking a stay of the lower court’s preliminary injunction. From page 15 of the Government’s stay application: “As a threshold matter, respondents brought their claims in the wrong forum challenging the wrong actions. The district court lacked jurisdiction over this dispute related to federal personnel actions.”
Second, as reflected in the quote above, channeling is generally considered an issue of the court’s jurisdiction—meaning its power to hear the case at all. Typically, courts address jurisdictional issues before they address the parties’ other arguments. Courts follow this sequence because, if don’t have jurisdiction, they lack the power to address the merits of the case.
Here, though, the Supreme Court ignored channeling completely. The Court said it was lifting the preliminary injunction “[b]ecause the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful—and because the other factors bearing on whether to grant a stay are satisfied.” (The “other factors” mentioned by the Court are the balance of the equities, irreparable harm, and the public interest, none of which would likely involve channeling.)
In other words, the Court relied on its assessment of the merits of the parties’ arguments, without accepting the Government’s lead argument that the Court lacked power to hear the case. And this now appears to be a pattern: in a prior order allowing agencies to terminate probationary employees, the Court did not mention channeling either. Instead, the court found that the plaintiffs lacked standing.
We should be wary of reading too much into yesterday’s very brief order, but the absence of channeling seems significant. It might signal that a majority of the Court disagrees with the strong form of channeling proposed by the Government in this case, or at least that some pivotal justices haven’t made up their mind on the issue. For example, five justices might be inclined to hold that claims from nonprofit orgainzations and localities (who were among the plaintiffs in the RIF case) cannot be channeled because those plaintiffs cannot bring their claims to administrative forums like the MSPB. If a majority of the Court ultimately rejects the Government’s position on channeling, that would be a consequential development, because the Government is using the same defense against numerous other pending lawsuits involving federal employees.
Notably, Justice Alito dissented from the Supreme Court’s most recent channeling decision in Elgin v. Department of Treasury, where the Court ruled against employees seeking to challenge their terminations in court. Justice Alito’s dissent was joined by Justices Ginsburg and Kagan. Those justices objected to the Court’s use of the doctrine to preclude judicial review of constitutional claims by federal employees.
Thus, only three current justices joined the majority in Elgin—Chief Justice Roberts, Justice Thomas, and Justice Sotomayor. Further, it seems possible that one of those three, Justice Sotomayor, has changed her view in light of recent events such as President’s Trump’s firing of an MSPB Board member, in line with a Fourth Circuit decision from last month. If so, the key question may be whether all three of President Trump’s appointees (Justices Gorsuch, Kavanaugh, and Barrett) would join the Chief Justice and Justice Thomas to form a five-justice majority supporting a strong form of channeling. This assumes that Justice Alito would maintain his skepticism of channeling.
Another possibility is that a majority of the Court is prepared to side with the Government on channeling, but that one or two justices (likely including Justice Kagan) negotiated with their colleagues to remove any mention of channeling from yesterday’s opinion, in exchange for not filing or joining a separate opinion. This would suggest that the Court will eventually adopt the Government’s channeling argument. But for now, the opinion preserves hope for litigants seeking to obtain judicial review of the Trump administration’s attack on the federal workforce.
-Danny Rosenthal, attorney at James & Hoffman.