U.S. v. Connolly

• Decision Date: 06 September 1983
• Docket Number: No. 83-651,83-651
• Citation: 716 F.2d 882
• Parties: The UNITED STATES, Appellant, v. Patrick J. CONNOLLY, Appellee. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 882

716 F.2d 882

The UNITED STATES, Appellant, v. Patrick J. CONNOLLY, Appellee.

Appeal No. 83-651.

United States Court of Appeals, Federal Circuit.

Sept. 6, 1983.

Sara V. Greenberg, Washington, D.C., argued, for appellant. With her on brief were J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director and Sandra P. Spooner, Washington, D.C.

Alan E. Wolin, Mineola, N.Y., argued, for appellee.

Before MARKEY, Chief Judge, and FRIEDMAN, RICH, DAVIS, NICHOLS, BALDWIN, KASHIWA, BENNETT, MILLER, SMITH and NIES, Circuit Judges.

DAVIS, Circuit Judge.

This case comes to us on interlocutory appeal from a decision of the United States Claims Court pursuant to Sec. 125(b) of the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25, 36-37 (1982) (codified at 28 U.S.C. Sec. 1292(d)(2)). ¹ The trial judge granted the government's motion to dismiss appellee's wrongful removal action in part, but denied the government's full motion for judgment. The court held that it possessed jurisdiction "over that portion of [appellee's] claim ... based upon allegations that the dismissal was taken in retaliation for the exercise of first amendment rights." Connolly v. United States, 1 Cl.Ct. 312, 323, 554 F.Supp. 1250, 1262 (1982). Finding the first amendment claim "ripe for consideration" by this court, the Claims Court certified the question of its jurisdiction over the first amendment claim to us. This court has granted interlocutory review. Because we now conclude that the Claims Court is without jurisdiction to entertain wrongful removal actions by probationary employees of the Postal Service--whether or not such claims involve first amendment allegations--we affirm in part and reverse in part.

I

Appellee Connolly commenced employment as a probationary employee of the United States Postal Service (USPS) on April 4, 1981, at the Flagstaff, Arizona, post office. Serving as a postal clerk, his tasks included, among other things, mail sorting and the lifting of heavy cages containing parcel post packages. One month after Connolly began his service at USPS, he received an initial performance evaluation from his supervisor. That evaluation assessed appellee's productivity as "unsatisfactory," and it characterized him as an individual who did not accept criticism gracefully. The supervisor noted, however, that appellee's attitude toward criticism had improved somewhat since his hiring.

In the meantime, Connolly began to experience severe pain in his forearms and a numbness in his fingers. He consulted a neurologist, who diagnosed his malady as bilateral carpal tunnel syndrome, a condition which the doctor attributed to appellee's duties. Connolly, at the specialist's recommendation, began to wear braces on his arms. He also filed a compensation claim with the Department of Labor. The next day--May 13, 1981--Connolly received a second performance evaluation; it characterized his attitude as unsatisfactory with respect to "productivity and work habits," "safety," and "acceptance of criticism."

On the following day, Connolly submitted a letter to the postmaster at the Flagstaff office, explaining the nature of his injury and recommending safety procedures for lifting and carrying mail. The postmaster returned the letter to him without comment. Later that day, Connolly received a removal notice, separating him for unsatisfactory performance.

Connolly filed a wrongful removal suit in the Court of Claims, seeking reinstatement, back pay, damages, and various other forms of relief. He alleged that his poor performance evaluations and resulting dismissal were motivated by his injury, his compensation claim, and his grievances about the lack of proper safety procedures. The government filed a motion for summary judgment, contending that the Civil Service Reform Act of 1978 precluded probationary employees such as appellee from filing wrongful removal actions in the then Court of Claims. ² Treating the government's motion as a motion to dismiss the complaint, the trial court dismissed that part of plaintiff's complaint based upon statutory and regulatory provisions. The court held that it had no jurisdiction over appellee's claims because alleged violations of Postal Service regulations "cannot form the basis for jurisdiction in [the Claims Court]," and because the Civil Service Reform Act of 1978 effectively bars judicial review of an agency's dismissal of a probationary employee. Connolly v. United States, supra, 1 Cl.Ct. at 314-21, 554 F.Supp. at 1254-60.

However, the trial judge denied the government's motion insofar as it suggested that the first amendment ³ did not provide the court with jurisdiction over appellee's claim. In reviewing Court of Claims precedent on the question of whether the first amendment may serve as a basis for jurisdiction, the court discerned an "irreconcilable tension" between Featheringill v. United States, 217 Ct.Cl. 24 (1978) and Jackson v. United States, 192 Ct.Cl. 765, 428 F.2d 844 (1970). The court concluded that it possessed "jurisdiction over that portion of [appellee's] claim which is based upon the first amendment," Connolly, supra, 1 Cl.Ct. at 323, 554 F.Supp. at 1261, and certified that issue to this court for review.

II

At the outset we note that our action on this appeal is not circumscribed by the terms of the trial court's certification. Section 1292(d)(2), like its counterpart Sec. 1292(b), see supra note 1, permits interlocutory appeals from trial court orders involving, to some extent, a controlling question of law which is the subject of certification. See, e.g., Nuclear Engineering Co. v. Scott, 660 F.2d 241, 246 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982); Consolidated Express, Inc. v. New York Shipping Association, 602 F.2d 494, 502 (3d Cir.1979), vacated on other grounds, 448 U.S. 902, 100 S.Ct. 3040, 65 L.Ed.2d 1131 (1980); Dyke v. Gulf Oil Corp., 601 F.2d 557, 559 n. 3 (Em.App.1979); Johnson v. Alldredge, 488 F.2d 820, 822-23 (3d Cir.1973), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974). Both sections require the courts of appeals to decide appeals from trial court orders, not merely the particular question certified. Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 994 (2d Cir.1975), cert. denied, 423 U.S. 1018, 96 S.Ct. 453, 46 L.Ed.2d 389 (1976); Johnson, supra, 488 F.2d at 823.

The legislative history underlying Sec. 1292(b) makes it especially clear that a full consideration of all issues material to an interlocutory order is necessary on appeal when--as here--the question arises in the procedural posture of a motion to dismiss the case for lack of jurisdiction. If, upon trial court certification, the court of appeals determines that jurisdiction is lacking (whether or not on the certified ground), interlocutory review saves considerable time and expense on behalf of both courts and litigants. S.Rep. No. 2434, 85th Cong., 2d Sess. 2, reprinted in 1958 U.S.Code Cong. & Ad.News 5255, 5256. Because the language of Sec. 1292(d)(2) so closely tracks that of Sec. 1292(b), see supra note 1, the latter's legislative history is persuasive with respect to Sec. 1292(d)(2).

We hold, then, that the nature and scope of our review are not limited to the certified question but that we are free to consider all questions material to the trial court's order sustaining its jurisdiction. Nuclear Engineering, supra, 660 F.2d at 246; In re Oil Spill by the Amoco Cadiz, 659 F.2d 789, 793 n. 5 (7th Cir.1981); Consolidated Express, supra, 602 F.2d at 502, Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). We therefore proceed to consider whether the Claims Court may entertain appellee's wrongful removal action on any jurisdictional basis.

III

The trial court correctly held that it was without jurisdiction to review appellee's dismissal based upon allegations of regulatory or statutory violations. It is now settled that the Tucker Act does not itself confer a substantive right of recovery; rather, the prospective claimant must invoke substantive rights grounded expressly or by implication in a contract, an act of Congress or a regulation of an executive department. See United States v. Mitchell, --- U.S. ----, ---- & n. 16, 103 S.Ct. 2961, 2968 & n. 16, 77 L.Ed.2d 580 (1983); Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605, 607, 372 F.2d 1002, 1007, 1009 (1967).

Appellee, as a probationary employee of the Postal Service, cannot rely on alleged violations of Postal Service regulations and the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (1978), as the substantive bases for his suit. Even if we assume arguendo that the Postal Service failed to comply with its own regulations in ordering appellee's dismissal, that would not support jurisdiction in the Claims Court. Since the enactment of the Postal Reorganization Act of 1970, Pub.L. No. 91-375, 84 Stat. 719 (1970), the Postal Service has not been considered one of the "executive departments" within the meaning of 5 U.S.C. Sec. 101 (1982). See Pub.L. No. 91-375, Sec. 6(c), 84 Stat. 719, 775 (1970), reprinted in 1970 U.S.Code Cong. & Ad.News 842, 911 (repealing that portion of 5 U.S.C. Sec. 101 which designated the Post Office as an executive department). ⁴ Only the regulations of an "executive department" can form the basis for a regulatory claim cognizable under Tucker Act jurisdiction. See 28 U.S.C. Sec. 1491 (Supp. V 1981).

We also agree with the trial judge's conclusion that Connolly, as a probationary employee, has no right under the Civil Service Reform Act to seek review of his dismissal in the Claims Court. The Reform Act established a comprehensive scheme for judicial review of adverse actions but at the same time deliberately precluded such review under that Act for probationary employees. See INS v. FLRA, 709 F.2d 724 at 728-729 (D.C.Cir.1...