Bobula v. U.S. Dept. of Justice, 91-1426

• Decision Date: 14 July 1992
• Docket Number: No. 91-1426,91-1426
• Citation: 970 F.2d 854
• Parties: Marilyn A. BOBULA, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 854

970 F.2d 854

Marilyn A. BOBULA, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.

No. 91-1426.

United States Court of Appeals Federal Circuit.

July 14, 1992.

Barbara Kaye Besser, Elfvin & Besser, Cleveland, Ohio, argued, for plaintiff-appellant. With her on the brief was Bruce B. Elfvin.

Susan K. Rudy, Atty., Dept. of Justice, Washington, D.C., argued, for defendant-appellee. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen. and Barbara C. Biddle, Atty.

Before NEWMAN, Circuit Judge, COWEN, Senior Circuit Judge, and MICHEL, Circuit Judge.

MICHEL, Circuit Judge.

Marilyn A. Bobula appeals the June 10, 1991 order of the United States District Court for the Northern District of Ohio, dismissing her complaint for lack of subject matter jurisdiction. Bobula v. United States Dep't of Justice, Case No. 1:91 CV 0724, 1991 WL 353882 (N.D.Ohio June 10, 1991). In her complaint, Bobula alleged that the United States Department of Justice (DOJ) breached the settlement agreement resolving her personnel grievances. In the settlement agreement, the DOJ promised to transfer Bobula from her position with the Antitrust Division's Cleveland, Ohio, office of the DOJ to the United States Attorney's Office in Cleveland, Ohio. Nearly five years after this reassignment was effectuated, the DOJ transferred Bobula from the United States Attorney's Office for the Northern District of Ohio in Cleveland to its satellite office in Akron, Ohio, pursuant to 28 U.S.C. § 545 (1988). The later transfer forms the basis of the alleged breach. On appeal, Bobula seeks, inter alia, compensation for the added expense of commuting to Akron.

Because Bobula's claim did not seek money damages in the district court, but only injunctive and declaratory relief, and because Bobula did not establish that she had a contract enforceable under the Little Tucker Act, the district court did not have subject matter jurisdiction under 28 U.S.C. § 1346(a)(2) (1988). Additionally, because the requirements for mandamus jurisdiction are not satisfied, the district court did not have subject matter jurisdiction under the mandamus statute, 28 U.S.C. § 1361 (1988). As no other independent basis of subject matter jurisdiction was asserted, ¹ Bobula has failed to carry her burden to prove jurisdiction. Therefore, we affirm.

BACKGROUND

Bobula began working in the Antitrust Division in Cleveland, Ohio, in 1979. The district court found that during the course of her employment Bobula filed several grievances in the DOJ's internal administrative grievance system. ² Bobula, slip op. at 3. Substantially all of those grievances were resolved in a settlement agreement between Bobula and the DOJ on August 30, 1986. The settlement agreement provides:

The Department will transfer Ms. Bobula and a "slot" to the United States Attorney's Office, in Cleveland, Ohio, on October 1, 1986, without loss of any rights, privileges, or interests to which she presently is entitled....

Pursuant to the settlement agreement, Bobula was transferred to the Criminal Division of the United States Attorney's office in Cleveland, Ohio, effective October 1, 1986. Bobula remained in Cleveland until her reassignment, pursuant to 28 U.S.C. § 545 (1988), ³ to the Criminal Division of the United States Attorney's office in Akron, Ohio, on May 5, 1991. On April 19 1991, ⁴ Bobula filed this action in the United States District Court for the Northern District of Ohio. The complaint sought injunctive and declaratory relief for breach of contract, and costs and attorney fees. Bobula asserted that the district court had jurisdiction under 28 U.S.C. §§ 1331 (federal question), 1346(a)(2) (Little Tucker Act), and 1361 (mandamus) (1988). The district court, relying on the Civil Service Reform Act (CSRA) and United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), dismissed Bobula's complaint for lack of subject matter jurisdiction on the ground that Bobula's claim is in essence a personnel claim.

DISCUSSION

The CSRA was intended to be a comprehensive and exclusive legislative scheme to govern federal personnel matters. Fausto, 484 U.S. at 443, 108 S.Ct. at 671; Lindahl v. OPM, 470 U.S. 768, 773, 105 S.Ct. 1620, 1624, 84 L.Ed.2d 674 (1985). As such, the only avenues for relief in personnel matters covered by the CSRA are those provided for in the CSRA. Fausto, 484 U.S. at 454, 108 S.Ct. at 677 ("[U]nder the comprehensive and integrated review scheme of the CSRA, the Claims Court (and any other court relying on Tucker Act jurisdiction) is not an 'appropriate authority' to review an agency's personnel determination."). The CSRA, however, cannot be read to repeal other statutes unless it does so explicitly. See id. at 453, 108 S.Ct. at 676. Therefore, if another statute independently and specifically provides an avenue of relief in a case that would otherwise be governed exclusively by the CSRA, that statute must be given effect if the CSRA did not explicitly repeal it.

Because of the comprehensive nature of the CSRA, however, that rule does not extend to statutes which have been merely judicially interpreted as providing another avenue of relief or which by mere implication provide another avenue of relief. Id. at 453, 108 S.Ct. at 676 (stating that an implication of a preexisting statute may be repealed by the implication of a subsequent statute). Therefore, the CSRA can repeal by implication judicial interpretations or implications of preexisting statutes. See id. (finding no independent Tucker Act jurisdiction because the CSRA repealed by implication only the implication or judicial interpretation of the Back Pay Act, which could have otherwise served as a basis of Tucker Act jurisdiction).

Although the settlement agreement that serves as the basis of Bobula's claims arose from personnel grievances that are within the ambit of the CSRA, Bobula alleges that both the Little Tucker Act and the mandamus statute specifically and explicitly provide other avenues of relief not provided for in the CSRA. Additionally, our review of the CSRA and its legislative history does not reveal an explicit repeal of the text of either the Little Tucker Act or the mandamus statute in whole or in part. However, on the facts of this case, neither the Little Tucker Act nor the mandamus statute provides an avenue of relief.

Neither the Little Tucker Act nor the mandamus statute explicitly provides for review of an underlying personnel action. To the extent that the courts prior to the CSRA have interpreted the Little Tucker Act (or the Tucker Act) or the mandamus statute as providing for review of an underlying federal personnel action, such judicial interpretations must give way to the congressional intent "to replace the haphazard arrangements for administrative and judicial review of personnel action" with the CSRA. Therefore, to the extent that Bobula seeks review of the underlying personnel action, her position is entirely without merit.

Bobula, in essence, seeks review of her reassignment from Cleveland to Akron. She wants to have this personnel action declared invalid under a theory that her settlement agreement removed the U.S. Attorney's statutory power to reassign her within the Northern District of Ohio. She wants either the district court or this court to order the U.S. Attorney for the Northern District of Ohio to return her to Cleveland.

However, Bobula may not obtain relief under the Little Tucker Act because any relief would require review of the underlying personnel action (reassignment to Akron). Whether or not the settlement agreement by its terms prevents the U.S. Attorney from reassigning Bobula, the fact remains that the act of reassigning Bobula is a personnel action. For Bobula to obtain relief, we must review the underlying personnel action. However, neither this court nor the district court has jurisdiction under the Little Tucker Act to review the underlying personnel action. See Fausto, 484 U.S. at 453, 108 S.Ct. at 676 ("All that we find to have been 'repealed' by the CSRA is the judicial interpretation of the Back Pay Act--or, if you will, the Back Pay Act's implication--allowing review in the Court of Claims of the underlying personnel decision giving rise to the claim for backpay." (emphasis added)). Additionally, as set out below, Bobula failed to show the elements required for Little Tucker Act jurisdiction.

Bobula bore the burden of establishing district court jurisdiction. Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991) ("A party seeking the exercise of jurisdiction in its favor has the burden of establishing that such jurisdiction exists."). With respect to jurisdiction under both §§ 1346(a)(2) and 1361, Bobula failed to bear that burden.

I. Jurisdiction Under 28 U.S.C. § 1346(a)(2) (Little Tucker Act)

To establish jurisdiction under the Little Tucker Act, ⁵ Bobula had to show that she had a contract with the United States enforceable under the statute and that she had a money claim arising therefrom. 28 U.S.C. § 1346(a)(2); Lee v. Thornton, 420 U.S. 139, 140, 95 S.Ct. 853, 854, 43 L.Ed.2d 85 (1975). Bobula has failed to do both.

A. A Contract

The settlement agreement, which Bobula claims satisfies the contractual element for establishing Little Tucker Act jurisdiction, settles personnel matters arising out of the DOJ's internal grievance procedure. The grievance procedure was mandated by regulations promulgated by OPM as a part of the CSRA's "integrated scheme of administrative and judicial review." Fausto, 484 U.S. at 445, 108 S.Ct. at 672. See S.Rep. No. 969, 95th Cong., 2d Sess. 24 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2746 (indicating that "the Office [of Personnel Management] will retain overall responsibility for management of the civil service system"); 5 C.F.R. pt. 771 (setting forth regulations within which covered agencies shall establish an administrative grievance system). Since...