Diaz v. U.S. Postal Service, 87-1879

• Decision Date: 27 July 1988
• Docket Number: No. 87-1879,87-1879
• Citation: 853 F.2d 5
• Parties: Roberto DIAZ, Plaintiff, Appellant, v. UNITED STATES POSTAL SERVICE, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 5

853 F.2d 5

Roberto DIAZ, Plaintiff, Appellant, v. UNITED STATES POSTAL SERVICE, et al., Defendants, Appellees.

No. 87-1879.

United States Court of Appeals, First Circuit.

Submitted June 10, 1988.

Decided July 27, 1988.

Harry Anduze Montano, Santurce, P.R., on brief, for appellant.

Lori Joan Dym, Office of Labor Law, Washington, D.C., Daniel F. Lopez-Romo, U.S. Atty., Isabel Munzo, Asst. U.S. Atty., Hato Rey, P.R., and Jesse L. Butler, Asst. Gen. Counsel, Washington, D.C., on brief for appellees.

Before BOWNES and BREYER, Circuit Judges, and CAFFREY, ^* Senior District Judge.

CAFFREY, Senior District Judge.

The plaintiff-appellant, Roberto Diaz, brought this suit in Federal District Court challenging his removal from his position as Postmaster of the United States Postal Service on a number of grounds. The District Court found that the decision of the Postal Service was supported by substantial evidence and granted summary judgment for the appellee. The plaintiff now appeals this decision. For the reasons set out below, we now affirm the District Court's decision.

I. Background

At the time of the events involved in this case, the plaintiff was employed by the United States Postal Service as Postmaster of the Toa Baja Post Office in Puerto Rico. In March, 1984, the Postal Inspection Service began investigating the suspected theft of mail from the Toa Baja office by preparing a test parcel containing a wireless telephone. A radio transmitter hidden in the parcel enabled the inspectors to monitor the location of the parcel. The inspectors then attached to the parcel a meter strip and an address label made out to a person who had previously moved out of the Toa Baja district. The package was then sent to Toa Baja.

Shortly thereafter, the test parcel arrived at the Toa Baja station. The parcel was brought to the attention of the appellant because the addressee had moved. After the post office had closed the next day, postal inspectors observed the appellant leaving the post office. Because of the hidden transmitter, the inspectors were able to determine that the test parcel was in the appellant's car. Accordingly, the inspectors followed the appellant to his home. At the appellant's home, the postal inspectors confronted him about the test parcel. The appellant denied having any parcel even when he was told about the radio transmitter. After refusing to allow inspectors to search his car, the appellant was placed under arrest. The inspectors obtained a search warrant and searched the appellant's car, in which they found the test parcel.

The appellant was charged with obstruction of correspondence and theft of mail in violation of 18 U.S.C. Secs. 1702, 1709. He was eventually acquitted by a jury. Unfortunately for the appellant, this did not end the matter. On March 27, 1984, the appellant received a Notice of Proposed Indefinite Suspension from the District Director, Carlos Falu. As grounds for the proposed suspension, Mr. Falu cited the criminal charges noted above, plus violations of the employee's code of conduct. On April 7, 1984, the appellant was placed on non-duty, non-pay status. By letter dated May 4, 1984, Caribbean Postal District Manager suspended the appellant as of May 11, 1984 until the criminal charges had been resolved.

Following his acquittal on the criminal charges, the appellant was returned to pay status on June 11, 1984, but was told not to report to work. Shortly thereafter, the appellant received a Notice of Proposed Adverse Action. This notice of pending removal charged the appellant with removal of mail from the mail stream and delay of mail, in violation of postal regulations, and with engaging in conduct prejudicial to the postal system, in violation of the Employee/Labor Relations Manual.

Despite the appellant's denial of these violations, the appellant was discharged from the Postal Service on October 9, 1984. The appellant exercised his right of appeal, and a hearing was held before a Postal Service hearing officer. After hearing testimony the officer prepared a summary of facts. After reviewing these findings, the Postal Service Regional Director of Employee and Labor Relations determined that the bases for appellant's removal were supported by a preponderance of the evidence. Exercising his Step II appeal rights, the appellant appealed this Step I decision to the Regional Postmaster General, John Mulligan. On June 11, 1985, the Assistant Postmaster General affirmed the Step I decision.

The plaintiff then filed this action in Federal District Court, challenging his removal. In the district court, the appellant argued that the decision to remove him was arbitrary and capricious, and that the Code of Ethical Conduct, violation of which the appellant was charged, was unconstitutional. The District Court reviewed the administrative record and determined that the agency's decision was supported by substantial evidence and was not arbitrary and capricious, 668 F.Supp. 88 (1987). Since the court found that the removal of mail charge and the delay of mail charge were proper, the court declined to reach the issue of the Ethics Code's constitutionality.

II. Analysis

The appellant makes a number of arguments concerning the propriety of the District Court's decision. The appellant is faced at the outset, however, with an insurmountable hurdle. The appellee argues that under the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 et seq., (the CSRA), the Federal Courts do not have jurisdiction to review the merits of this personnel decision. ¹ We agree.

We begin by noting that the appellant fails to state the basis for his cause of action challenging the merits of the Postal Service's decision. The only possible basis of which we are aware for the plaintiff's cause of action are the laws governing personnel decisions of the Postal Service. We therefore turn to those statutes.

In order to understand the procedural rights of the appellant, we must first examine the somewhat convoluted statutory scheme governing personnel decisions of the Postal Service. As an initial matter, Congress provided, with certain exceptions, that no federal law dealing with employees shall apply to the exercise of the powers of the Postal Service. 39 U.S.C. Sec. 410(a) (1980). Thus, unless specifically provided, the Postal Service is not bound by the federal employment laws governing other government agencies. The statute goes on, however, to provide a number of exceptions. The applicable exception for our purposes is that Chapter 75 of Title 5 shall apply to employees of the Postal Service. 39 U.S.C. Sec. 1005(a) (1980).

Chapter 75, as codified at 5 U.S.C. Sec. 7501 et. seq. was enacted as part of Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 et seq. (codified, as amended, in various sections of 5 U.S.C. (1982 ed. and Supp. IV)). The CSRA completely revamped the traditional civil service system, and created an elaborate system for reviewing personnel actions taken by agencies. Lindahl v. Office of Personnel Management, 470 U.S. 768, 773, 105 S.Ct. 1620, 1624, 84 L.Ed.2d 674 (1985). As part of this system, Chapter 75 sets out procedural safeguards for "employees" suffering certain adverse personnel actions. Removal from office is an adverse action covered by this subchapter. 5 U.S.C. Sec. 7512 (1980). When an agency removes an employee from office, the employee is entitled to appeal his removal to the Merit Systems Protection Board (the MSPB). 5 U.S.C. Sec. 7513(d). Any employee adversely affected by a decision of the MSPB may then obtain judicial review of that decision in the Court of Appeals for the Federal Circuit. 5 U.S.C. Sec. 7703. A court shall set aside the agency decision if it is found to be arbitrary or capricious, an abuse of discretion, obtained without procedures required by law, or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c). Thus, an employee who is removed from office may appeal his removal to the MSPB and subsequently to the Court of Appeals for the Federal Circuit.

These rights of appeal, however, are not provided to everyone employed by a government agency. Only "employees" are protected by the safeguards of Chapter 75. For the purposes of this chapter, an employee is defined as:

(a) an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less; and

(b) a preference eligible in an Executive agency in the excepted service, and a preference eligible in the United States Postal Service or the Postal Rate Commission, who has completed 1 year of current continuous service in the same or similar positions.

5 U.S.C. Sec. 7511(a). ² Since the appellant is not a preference eligible employee in the Postal Service, ³ he does not have the right under this chapter to appeal his removal to the MSPB and, subsequently, to federal court. The issue, then, is whether a nonpreference eligible employee of the Postal Service may seek judicial review of the merits of an adverse personnel action. We hold that he may not.

The United States Supreme Court recently dealt with a very similar question in Fausto v. United States, --- U.S. ----, 108 S.Ct. 668, 98 L.Ed.2d 830 reh'g denied, --- U.S. ----, 108 S.Ct. 1250, 99 L.Ed.2d 448 (1988). In that case, a nonpreference eligible member of the Fish and Wildlife Service, an excepted service, was suspended without pay for thirty days. After his suspension was upheld by the Department of the Interior, the employee challenged his suspension in the Claims Court in an action for back pay under the Back Pay Act, 5 U.S.C. Sec. 5596, and the Tucker Act, 28 U.S.C. Sec. 1491. Id. 108 S.Ct. at 671. Despite the fact that the employee had no right of appeal to the MSPB under the CSRA, the Claims Court held that the CSRA...