Broadway v. Block

• Decision Date: 15 December 1982
• Docket Number: No. 81-3788,81-3788
• Citation: 694 F.2d 979
• Parties: Linda H. BROADWAY, Plaintiff-Appellant, v. John R. BLOCK, Secretary of Agriculture, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 979

694 F.2d 979

Linda H. BROADWAY, Plaintiff-Appellant, v. John R. BLOCK, Secretary of Agriculture, et al., Defendants-Appellees.

No. 81-3788.

United States Court of Appeals, Fifth Circuit.

Dec. 15, 1982.

Hunter & Scott, Louis G. Scott, Monroe, La., for plaintiff-appellant.

Claude W. Bookter, Jr., D.H. Perkins, Jr., Asst. U.S. Attys., Shreveport, La., Freddi Lipstein, Dept. of Justice, Civil Division, Appellate Staff, William Kanter, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before GARZA, REAVLEY and GARWOOD, Circuit Judges.

REAVLEY, Circuit Judge:

Linda Broadway was hired by the Farmer's Home Administration ("FmHA") in 1976. In October of 1980 she received a letter from the Administrative Officer for the FmHA stating that she was being reassigned from her position as County Office Assistant to the position of County Office Clerk. The reassignment did not involve a change in grade or pay, for Ms. Broadway at all times retained her classification as a GS-4 clerk typist.

Without exhausting any administrative remedies, she brought suit in federal district court against the FmHA, the Department of Agriculture and various federal officials, requesting reinstatement of her former position and damages of $15,000. ¹ She claimed that her new position had fewer supervisory functions and benefits than her old one, and that the reassignment cast a stigma of incompetency upon her and caused her embarrassment and mental anguish. The complaint alleges that she was not informed of any rights to a grievance procedure or appeal, that she was not given a hearing before the action was taken, and that she was deprived of an opportunity to apply for her old position because the FmHA failed to post the availability of the position when an opening arose. She asserted a right of relief under 42 U.S.C. Sec. 1983, under the due process and equal protection clauses of the Constitution, and under provisions of the Administrative Procedure Act and the Civil Service Reform Act.

The defendants filed a motion to dismiss the case on several grounds, including failure to state a claim upon which relief can be granted. In November of 1981, the district judge signed a "Ruling on Motion to Dismiss and/or for Summary Judgment," dismissing the case with prejudice. On August 12, 1981, the court gave notice that it would decide the motion to dismiss on the basis of the record. On October 20, 1981 the court held a hearing on the motion. We therefore treat the court's ruling as a ruling on a motion for summary judgment. See Fed.R.Civ.P. 12(b), 56(c). We affirm.

We have examined each possible basis for judicial relief raised by the pleadings and record, the briefs, and our own research, and find that under no set of facts has the plaintiff asserted claims cognizable in federal district court. The reassignment complained of here is not a matter for judicial oversight.

I. 42 U.S.C. Sec. 1983

The complaint states that "jurisdiction" is conferred "by 42 U.S.C. Section 1983 relating to deprivation of rights under color of law." In fact, as expansive as that statute is, it only covers deprivations of rights under color of state law. Ellis v. Blum, 643 F.2d 68, 83 (2d Cir.1981). Broadway is a federal employee who was reassigned by her supervisors in the civil service system. The individual defendants in this suit are federal officials, acting under color of federal law rather than state law, and are not subject to suit under Sec. 1983. Seibert v. Baptist, 594 F.2d 423, 429 (5th Cir.1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980); Mack v. Alexander, 575 F.2d 488, 489 (5th Cir.1978).

II. The Civil Service Reform Act

The Civil Service Reform Act of 1978 ("CSRA") is the principal statute governing federal civil service practices. We reluctantly explore its baroque provisions, scattered through Title V of the United States Code, in search of a cause of action.

The CSRA expressly provides for judicial review of certain personnel decisions. 5 U.S.C. Sec. 7703 states that "[a]ny employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision." Broadway has no right to judicial review under this section, which provides for review by a circuit court or the Court of Claims of decisions by the Merit Systems Protection Board ("MSPB"), an administrative tribunal empowered to hear certain complaints by federal employees. In our case there was no appeal through the MSPB to the circuit court or Court of Claims; instead suit was brought in federal district court. Moreover, the reassignment of which the plaintiff complains is not subject to review by the MSPB in the first instance. Only certain "adverse actions" ² can be taken to the MSPB. These actions include removals, suspensions for more than 14 days, reductions in pay or grade, and furloughs of 30 days or less. 5 U.S.C. Secs. 7512, 7513(d), 4303(e). Reassignments with grade and pay retention are not included as adverse actions subject to review by the MSPB, ³ and on appeal by the federal judiciary.

The CSRA does not ignore reassignments, however. 5 U.S.C. Sec. 2302 prohibits the federal government as an employer from taking "personnel action" which constitutes a "prohibited personnel practice." Personnel action under this provision includes appointments, promotions, transfers, reassignments and other expressly enumerated actions. Id. Sec. 2302(a)(2)(A). The Special Counsel of the MSPB is authorized and required to investigate any allegation of prohibited personnel practices, and may request the MSPB to consider and order corrective action on the matter. 5 U.S.C. Sec. 1206(a)-(c). He is also required to investigate any allegation concerning "activities prohibited by any civil service law, rule, or regulation ...." Id. Sec. 1206(e)(1)(D). However, there are no statutory provisions for judicial oversight of the Special Counsel's efforts, ⁴ and Ms. Broadway chose not to pursue this administrative remedy.

The CSRA also authorizes the Office of Personnel Management ("OPM") to prescribe regulations for the administration of the competitive civil service. 5 U.S.C. Sec. 1302. Pursuant to this and other authority, the OPM requires each agency to establish a grievance system that meets certain specified requirements. 5 C.F.R. Sec. 771. The Department of Agriculture has published its grievance procedures in its Employee Handbook. Counsel for Ms. Broadway asserted in his brief and at oral argument that the grievance procedure has broken down or exists only on paper, an argument that is difficult to accept given that no evidence exists in the record that Broadway ever attempted to pursue this administrative remedy. The CSRA does not expressly authorize judicial oversight of these agency grievance systems. Furthermore, the regulation mandating the establishment of the systems states:

The Office of Personnel Management shall review from time to time each agency administrative grievance system developed under this part to determine whether the administrative grievance system meets the requirements of this part. The Office shall require corrective action to bring a system which fails to meet the requirements into conformity. The Office does not act on a request by an employee to review the processing of, or the decision on, an individual grievance.

5 C.F.R. Sec. 771.304. Given that the agency mandating the grievance system does not even contemplate administrative review of individual complaints about the processing of grievances, judicial review seems wholly inappropriate.

The only source of federal district court review for a federal employee under the CSRA is 5 U.S.C. Sec. 7703(b)(2), which provides that cases of discrimination subject to the provisions of 5 U.S.C. Sec. 7702 shall be filed under the judicial review provisions of Title VII, the Age Discrimination in Employment Act or the Equal Pay Act, as applicable. Sections 7702 and 7703(b)(2) are designed to allocate review of discrimination claims among the MSPB, the Equal Employment Opportunity Commission and the federal courts. Without attempting to unravel the mysteries of these provisions, we are certain that they do not apply to this case. Nowhere in the pleadings or other documents presented to the district court is there an allegation of discrimination on the basis of age, sex, or race, ⁵ and at oral argument counsel for Broadway insisted that the suit was not based on any claim of discrimination. ⁶

Given that no express statutory provisions under the CSRA grant the reassigned federal employee a district court cause of action absent a claim of discrimination, the question remains whether an implied cause of action exists under the Act. To answer this question our primary task is to determine whether Congress intended to create any such remedy. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, --- U.S. ----, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982); Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).

Fortunately, we are not required to write on a clean slate in examining what Congress intended when it restructured the civil service system. Recently, the District of Columbia Circuit addressed whether an implied cause of action existed under the CSRA for prohibited personnel practices. The plaintiff sued in district court, charging that she was discharged by the International Communications Agency in reprisal for her "whistleblowing" on official violations of law, waste and abuse of authority. Her claim was based on 5 U.S.C. Sec. 2302(b)(8)(A), which lists as a prohibited personnel practice the taking of personnel action in reprisal for whistleblowing. The court concluded that Congress did not intend to create a judicial cause of action, and instead chose to limit protection against prohibited personnel...