Whither the Pickering Rights of Federal Employees?
Paul M. Secunda
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. Board 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. 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 42 U.S.C. § 1983.
The issue examined in this paper for the first time is whether the alternative remedy of bringing a First Amendment Pickering claim to an administrative judge designated by the Merit Systems Protection 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 anal-ysis of all First Amendment Pickering cases decided by the Merit Systems Protection Board and the Federal Circuit leads to a startling finding: an online search has not located one successful federal employee Pickering claim under the administrative scheme since the Bush decision in 1983. My conclusion is that because there is a lack of meaningful redress, Bush v. Lucas should be revisited and overturned, and a Bivens claim should be implied to vindicate the First Amendment interests of federal employees.