714 F.2d 171 (D.C. Cir. 1983), 82-1148, Carducci v. Regan

Docket Nº:82-1148.
Citation:714 F.2d 171
Party Name:Louis A. CARDUCCI, Appellant, v. Donald T. REGAN, Secretary, U.S. Treasury Department, et al.
Case Date:August 12, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 171

714 F.2d 171 (D.C. Cir. 1983)

Louis A. CARDUCCI, Appellant,

v.

Donald T. REGAN, Secretary, U.S. Treasury Department, et al.

No. 82-1148.

United States Court of Appeals, District of Columbia Circuit

August 12, 1983

Argued Nov. 1, 1982.

Page 172

[230 U.S.App.D.C. 81] Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-01097).

Peter B. Broida, Washington, D.C., with whom Richard Price, Washington, D.C., was on the brief, for appellant.

John W. Polk, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before MIKVA and SCALIA, Circuit Judges, and MACKINNON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

In this appeal we address the following major question concerning the effect of the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C. (Supp. V 1981)): whether agency personnel action which is not an alleged violation of constitutional rights, but which was directly reviewable by district courts under the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. (1976), before enactment of the CSRA, continues to be so reviewable after enactment of the CSRA. We answer that question in the negative. Because it was not adequately briefed or argued on appeal, we decline to resolve the further issue, whether the procedural protections of the Due Process Clause of the Fifth Amendment to the Constitution apply to federal agency action affecting the status or tenure of its employees which is not required by the CSRA to be taken only for cause.

I

Appellant Louis A. Carducci, an employee of the United States Customs Service, was informed in April 1980 by memorandum from Frank H. Tuohy, an Area Director for the Service, of his reassignment from the position of Lead Auditor to that of Auditor, purportedly because of "poor performance." The former position was authorized to be held by an employee at grade level GS-12 or GS-13; the latter only by an employee at grade level GS-12. Mr. Carducci's own grade level was GS-12, and was unaffected by the reassignment. He challenged the reassignment through an informal grievance filed with his supervisor. Lacking the authority to reinstate appellant to his former position, the supervisor referred the grievance to Mr. Tuohy, his superior. Appellant also filed a formal grievance with Mr. Tuohy. When informed that the grievance would not be acted upon favorably, appellant requested under agency rule appointment of a hearing examiner. An independent examiner was appointed and, after a full investigation, recommended that appellant be reinstated to the Lead Auditor position.

Mr. Tuohy rejected the examiner's recommendation, and, pursuant to agency grievance procedures, forwarded to Mr. Charles C. Hackett, Jr., Assistant Commissioner in the Office of Management Integrity, appellant's grievance and an explanation of his reasons for rejecting the examiner's recommendation. In the final agency decision on March 23, 1981, Mr. Hackett rejected the examiner's recommendation. Appellant filed a petition with the Office of Special Counsel, asking that an investigation be undertaken and that the matter be presented to the Merit Systems Protection Board. The Special Counsel found "insufficient information evidencing the occurrence or possible occurrence of any prohibited personnel practice" to warrant consideration by the Board. Appellant's App. at 25.

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[230 U.S.App.D.C. 82] Appellant then sought judicial review of his reassignment in the district court, urging that the court had jurisdiction to review his claims under, inter alia, the APA. His complaint, as amended, charged that the reassignment itself was arbitrary and capricious, and that, through several procedural irregularities, his rights under the Due Process Clause of the Fifth Amendment were violated. Appellant's App. at 36. In addition, appellant claimed that Mr. Tuohy's participation in adjudicating the grievance, given his responsibility for the original reassignment, violated 5 C.F.R. § 771.302(b) (1983). Appellant sought an order directing the Customs Service to reassign him to the Lead Auditor position (which had since been reclassified to the GS-13 level) and to amend its regulations to prohibit participation in the disposition of a grievance proceeding by one whose conduct is at issue in the proceeding. By memorandum opinion on January 12, 1982, the district court granted appellee's motion to dismiss on the ground that appellant had failed to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6). We affirm.

II

  1. Nonconstitutional Claims

    Those aspects of this case not involving alleged violations of constitutional rights are governed by our decisions in Borrell v. United States International Communications Agency, 682 F.2d 981 (D.C.Cir.1982), and Cutts v. Fowler, 692 F.2d 138 (D.C.Cir.1982). Both of those cases, like this one, involved personnel action that did not rise to the level of "adverse action" for which the CSRA provides formal proceedings before the agency, an appeal to the Merit Systems Protection Board, see 5 U.S.C. §§ 7501-7701 (Supp. V 1981), and judicial review in the Court of Appeals for the Federal Circuit, 5 U.S.C. § 7703(b)(1) (West Supp.1983). Borrell held that a probationary employee could not challenge in district court her dismissal on alleged grounds of "whistleblowing" (a prohibited personnel practice under the CSRA, 5 U.S.C. § 2302(b)(8)(A) (Supp. V 1981)), since the CSRA established investigation and corrective action by the Office of Special Counsel as the exclusive avenue of relief. Cutts involved precisely the type of employee action at issue in the present case--a reassignment without reduction in grade or pay--and again held that the alleged wrongful motivation (discrimination on the basis of marital status) was for consideration by the Office of Special Counsel and not the courts.

    Borrell and Cutts could conceivably be distinguished on the ground that in both the issue was whether the CSRA created an implied private right of action, whereas here the issue assertedly is whether the CSRA implicitly eliminated a right of action that previously existed. The distinction between creating a new right of action and failing to eliminate a preexisting one was used in Borrell itself, but only in the context of remedies for constitutional violations.

    The district court apparently assumed--and we agree--that Borrell's allegation that she was dismissed because she voiced concerns over agency practices presented a claim of deprivation of a first amendment liberty without due process of law.... Thus the question of whether the CSRA meant to wipe out such a preexisting cause of action comes immediately to the fore. This is an altogether different question from that discussed previously, i.e., whether the CSRA created a new statutorily-based cause of action for whistleblowing retaliation. It is thus not governed by Cort v. Ash [422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26] principles. Instead, the issue is whether Congress meant to take away from probationary employees preexisting rights of action to pursue constitutional rights in district court actions.

    We think not. Where newly enacted statutory remedies are unavailable to a particular segment of employees, the Supreme Court appears to have imposed a kind of "clear statement" requirement on Congress, requiring it to indicate explicitly

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    [230 U.S.App.D.C. 83] its intent to displace judicially-created remedies for constitutional deprivations.... Nevertheless, the government argues that the district court's decision must be sustained because the CSRA preempts all alternative remedies for all employees, even those preexisting judicial remedies based upon the Constitution which have not been replaced by administrative appeals or judicial review of any kind.

    682 F.2d at 989 (citations omitted, some emphases added). It should be apparent from the foregoing excerpt that the constitutional nature of the preexisting right was essential to the imposition of a "clear statement" requirement. Indeed, if that were not the case the court's discussion of the nonconstitutional claim in both Borrell and Cutts would have had to eliminate the possibility that, in the circumstances there presented, the requested judicial relief would have been available (on nonconstitutional grounds) even before enactment of the CSRA. 1 Therefore, although both Borrell and (to a lesser degree) Cutts speak in terms of declining to find an implied right of action, as opposed to finding an implied preclusion of a preexisting right of action, neither opinion attached any consequences to that distinction except insofar as constitutional claims are concerned. The point of both cases is that the exhaustive remedial scheme of the CSRA would be impermissibly frustrated by permitting, for lesser personnel actions not involving constitutional claims, an access to the courts more immediate and direct than the statute provides with regard to major adverse actions. That principle governs here.

    Appellant seeks to distinguish Borrell (and would presumably seek to distinguish Cutts, which came down only three days before argument) on the ground that here, unlike in those cases, no prohibited personnel practice is alleged. 2 Appellant's Brief at 16. Since, the argument goes, resort to the Office of Special Counsel is only available with regard to...

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