699 F.2d 1315 (Fed. Cir. 1983), 32-82, Rosano v. Department of the Navy

Docket Nº:Appeal No. 32-82.
Citation:699 F.2d 1315
Party Name:Lawrence R. ROSANO, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent.
Case Date:February 14, 1983
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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699 F.2d 1315 (Fed. Cir. 1983)

Lawrence R. ROSANO, Petitioner,

v.

DEPARTMENT OF THE NAVY, Respondent.

Appeal No. 32-82.

United States Court of Appeals, Federal Circuit

February 14, 1983

Edward F. Hayes, III, New York City, argued for petitioner. With him on the brief was A. Lawrence Washburn, Jr., New York City.

Carmen Shepard, Washington, D.C., argued for respondent. With her on the brief were Asst. Atty. Gen. J. Paul McGrath, David M. Cohen, Donnie Hoover and Naomi Miske, Dept. of the Navy, Washington, D.C.

Before FRIEDMAN, BALDWIN and SMITH, Circuit Judges.

EDWARD S. SMITH, Circuit Judge.

Petitioner in this case seeks review of the final decision of the Merit Systems Protection Board (board) in which the board held that it was without jurisdiction to grant relief based on petitioner's religious objections to certain coverage of the Federal Employees Health Benefits (FEHB) program. We affirm.

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I.

In 1979 petitioner sought and received a career conditional appointment as a civilian employee of the United States Navy. Like most federal employees, upon appointment he planned to choose a group health insurance plan from among those selected by the Office of Personnel Management (OPM) for the FEHB program, for which the Government contributes slightly more than half the cost. However, due to religious convictions petitioner desired a plan that did not provide coverage for abortions or contraception. No such plan was then available, so he requested the reduction of his premiums by that portion which could be allocated to abortions and contraception. He was informed, however, that FEHB simply had no provision for such a reduction. He finally chose a plan and paid the full employee contribution under protest.

In appealing to the board the refusals to reduce his premiums or to provide a plan acceptable to him, petitioner claimed that he was being forced, in violation of his rights under the first amendment to the Constitution, financially to support medical procedures to which he was religiously opposed. Petitioner was terminated after less than 7 months of service (during his probationary period) for performance-based reasons. He also appealed the termination.

The board, consolidating the first amendment claim and the termination claim, upheld the termination without addressing the constitutional issue. 1 Petitioner appealed that decision to the United States Court of Claims which upheld the termination decision but remanded for consideration of the constitutional issue. 2 On remand, the board held that it was without jurisdiction of petitioner's constitutional claim because no statute or regulation provided for board review of the discretionary authority of OPM to contract with qualified carriers for group health insurance plans. 3 Petitioner then took this appeal to us, 4 urging reversal of the board on the jurisdictional issue and a decision in his favor on the merits.

II.

In briefing the jurisdictional issue which is the center of this case, the Government contends that this court does not have jurisdiction over the petitioner's appeal. Since petitioner's appeal does not come within the subject matter which the board is permitted to review, respondent argues, the court as reviewer of the board does not have subject matter jurisdiction over petitioner's appeal from the board.

The effect of the Government's position is to create an additional question--the court's jurisdiction--to be resolved in all appeals from the Merit Systems Protection Board, 5 and that question must be resolved by reference to the statutory and case law governing the Federal Circuit. We consider respondent's approach an unhelpful and confusing way to present the jurisdiction question in appeals from the board, because it is not the court's jurisdiction to review a decision of the board, but the board's jurisdiction to consider the question raised by petitioner, that is at issue.

A.

Cases which are brought to the board pursuant to its general jurisdiction to review

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agency employment actions are procedurally governed by the Civil Service Reform Act of 1978, 6 as amended by the Federal Courts Improvement Act of 1982, 7 the relevant parts of which are codified at 5 U.S.C. Secs. 7701, 7703. Section 7701 specifies (albeit by referring to other parts of the Civil Service Reform Act and by authorizing regulations) those actions over which the board has subject matter jurisdiction. 8 Section 7703 specifies no subject matter but simply provides that the Federal Circuit has exclusive jurisdiction of all appeals from the board of cases, like this one, brought to the board under section 7701. 9

For the Government to place this court's jurisdiction in issue on appeal, therefore, it must refer to section 7703 which governs jurisdiction of the Federal Circuit. Section 7703, however, offers no clue to the actual subject matters of the cases within the court's jurisdiction, but rather specifies only the source of the cases. In directing attention to the court's jurisdiction, the Government refers us to a provision which is of no help in determining subject matter jurisdiction. 10

B.

Directing attention to the court's jurisdiction is also analytically wrong. The court's jurisdiction to review section 7701 board decisions is plenary; we find no exceptions which might be raised in the proposed additional jurisdictional inquiry.

The Government's insistence on questioning this court's jurisdiction may be a holdover from its practice before the Court of Claims, one of our predecessor courts. Prior to the Federal Courts Improvement Act, the Court of Claims had held in Dunn v. United States Department of Agriculture that it was limited by the Tucker Act 11 to review of cases "where, if the petitioner prevails, he would be entitled to back pay or some other form of monetary relief." 12 The non-monetary cases were to be heard in the courts of appeals which at that time had concurrent jurisdiction with the Court of Claims over board appeals.

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In making its argument, the Government relies heavily upon Dunn and the pre-Federal Courts Improvement Act version of section 7703. 13 However, the Federal Courts Improvement Act removed from section 7703 the reference to the Tucker Act, which was the basis of the Dunn holding. 14 The legislative history confirms the obvious implication that Congress intended to remove the Dunn limitation. The House report states explicitly: 15

[T]he court has jurisdiction * * * over all appeals from the Merit Systems Protection Board (including cases over which the Court of Claims did not have jurisdiction 5). * * *

In other words, the Federal Courts Improvement Act constitutes a net gain in the...

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