Dugan v. Ramsay

• Decision Date: 29 March 1983
• Docket Number: Civ. A. No. 82-0282 S.
• Citation: 560 F. Supp. 1230
• Parties: Joseph DUGAN, Plaintiff, v. Arch RAMSAY, Director of the Office of Personnel Management, Defendant.
• Court: U.S. District Court — District of Rhode Island

560 F. Supp. 1230

Joseph DUGAN, Plaintiff, v. Arch RAMSAY, Director of the Office of Personnel Management, Defendant.

Civ. A. No. 82-0282 S.

United States District Court, D. Rhode Island.

March 29, 1983.

Joseph Dugan, pro se.

Lincoln C. Almond, U.S. Atty. by Everett Sammartino, Ass't U.S. Atty., Providence, R.I., for defendant.

OPINION AND ORDER

SELYA, District Judge.

This is an action raising intricate questions of administrative law, and is before the Court on cross-motions for summary judgment.

The plaintiff, Joseph Dugan, a seasoned member of the District of Columbia and Rhode Island bars, sought to become a federal administrative law judge ("ALJ"). On November 7, 1980, he filed an application with the Office of Administrative Law Judges ("OALJ") of the Office of Personnel Management ("OPM") for placement onto a register from which government agencies fill vacant ALJ positions. After reviewing the plaintiff's application, OALJ notified him on January 27, 1981 that he was ineligible for listing on the register because of his apparent failure to satisfy certain OALJ threshold standards, including those dictating the extent of trial practice which a lawyer in private practice must have as a prerequisite to ALJ eligibility.¹ Subsequent to this initial denial, the plaintiff sought review from OPM's Administrative Law Judge Rating Appeals Panel ("Panel"). By letter dated March 23, 1982, the Panel affirmed OALJ's decision, holding that plaintiff did not qualify for eligibility as an ALJ. With the count no balls and two strikes, the plaintiff took a round-house swing at OALJ by filing this suit on April 23, 1982.

The gravamen of the action is a challenge to the validity of the criteria used in determining eligibility for the ALJ registration list. For a non-government lawyer, the OALJ requires that the attorney accumulate, within seven years prior to the date of application, four hundred days of preparation of cases and their presentation before trial courts of unlimited and original jurisdiction (or in lieu thereof, equivalent administrative law experience). The plaintiff attacks this requirement as not being rationally related to determining whether or not one would serve competently as an ALJ. He further avers that the criterion discriminates against private practitioners.

The defendant answered and moved for summary judgment. The defendant's motion asserts that the action of OALJ was neither arbitrary nor capricious; that the requirement in question is rationally related to ALJ selection; and that it does not deny the plaintiff's rights to due process and to equal protection of the law. Plaintiff thereupon cross-moved for brevis disposition.

After receipt of the motion papers, briefs, affidavits and administrative record, the Court requested the parties to address the jurisdiction of this Court to hear an appeal from the Panel decision. The plaintiff asserted that the decision is reviewable under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and that in any event, this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361. The defendant contended that the decision is not reviewable. The Court, having found the briefs somewhat less than illuminating, then invited further memoranda addressed to the perceived jurisdictional issue. The plaintiff did little more than reassert his previously-formulated position; the government did not deign to submit further authorities. Having received only meagre assistance from the parties, it falls to the Court to attempt virtually unaided to piece together this jurisdictional tangram. To do so in an orderly fashion, the Court must first set forth a brief summary of the convoluted structure of the Civil Service Reform Act ("CSRA"), P.L. 95-454, codified at 5 U.S.C. § 1101 et seq. (Supp. III 1979).

I. THE CIVIL SERVICE REFORM ACT

The Civil Service Reform Act was the first significant change in the federal civil service system since its inception in 1883. S.Rep. No. 95-969, 95th Cong., 2d Sess. 1 (hereinafter "S. Rep."), reprinted in 1978 U.S. Code Cong. & Ad.News 2723, 2723. Congress, in enacting the CSRA, recognized that the Civil Service Commission ("Commission") was unable to perform its dual role of both managing the civil service system and protecting the numinousness of the merit system. S.Rep. at 3-5, 1978 U.S.Code Cong. & Ad.News at 2725-27. CSRA thus disbanded the Commission and replaced it with two new entities: OPM and the Merit System Protection Board ("MSPB").

OPM was assigned the managerial functions of the Commission. 5 U.S.C. § 1103; S.Rep. at 5, 1978 U.S. Code Cong. & Ad. News at 2727. Among these functions was the responsibility for conducting competitive examinations and determining eligibility for government positions (including the position of ALJ). See 5 U.S.C. § 1104(a)(2).

Before passage of CSRA, the task of preserving the merit principles in government service was lodged in the Commission's Board of Appeals and Review. See, e.g., Etelson v. Office of Personnel Management, 684 F.2d 918, 920 (D.C.Cir.1982); American Federation of Government Employees v. Hoffman, 543 F.2d 930, 948 (D.C.Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1977); see also Hall v. United States Civil Service Commission, 533 F.2d 695, 698 (D.C.Cir.1976). CSRA transferred these responsibilities to MSPB. 5 U.S.C. §§ 1205, 2301. To assist MSPB in this noble endeavor, CSRA created the Office of Special Counsel within the MSPB. Id. at § 1204.

The initiative lies in the first instance with the employee or applicant for employment. If the individual believes a merit principle has been violated, the employee or applicant must seek administrative redress either by lodging a complaint with the Special Counsel or by appealing directly to the MSPB. See infra.

Only after these administrative remedies have been exhausted, may an individual seek redress in court.

CSRA provides:

Any 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.

5 U.S.C. § 7703(a)(1).

The pre-CSRA law provided that an appeal from final orders of the now-extinct Board of Appeals and Review was to be taken to the appropriate United States District Court. See Etelson v. Office of Personnel Management, 684 F.2d at 920; Glenn v. Merit Systems Protection Board, 616 F.2d 270, 271 (6th Cir.1980); In Re Christian, 606 F.2d 822, 822 (8th Cir.1979). CSRA has altered the review format, however, and provides, with certain exceptions not relevant to the instant action,² that appeals from the MSPB are to be heard and determined by the United States Court of Claims or by an appropriate circuit court of appeals. 5 U.S.C. § 7703(b)(1). With this background firmly in mind, the Court must address whether or not the decision complained of in the case at bar is appealable to the MSPB. If so, then this Court must not usurp MSPB's primary jurisdiction. Cf. Etelson v. Office of Personnel Management, 684 F.2d at 923-25.

II. JURISDICTION OF MSPB

The MSPB, as delineated above, has jurisdiction over allegations of prohibited personnel practices either (i) brought before it by direct appeal pursuant to 5 U.S.C. § 7701, or (ii) brought before it by the Special Counsel in accordance with 5 U.S.C. § 1206(c)(1)(B). Direct appeal will lie only "from an action which is appealable to the Board under any law, rule or regulation." 5 U.S.C. § 7701(a). No such law, rule or regulation is apparent to the Court which would render an eligibility-status dispute of the genre here at issue directly appealable to MSPB as of right.³ The availability or unavailability of MSPB review via the Special Counsel route is not, however, as clear-cut.

The authority and responsibilities of the Special Counsel are staked out by the provisions of 5 U.S.C. § 1206. The Special Counsel is directed to "receive any allegation of a prohibited personnel practice", id. at § 1206(a)(1), and thereupon to "investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred." Id.⁴ If such a determination is affirmatively made by the Special Counsel, and if he further determines that "corrective action" is required, id. at § 1206(c)(1)(A), the Special Counsel's duty is then to report the determination "together with any findings or recommendations" to, inter alia, MSPB and OPM. Id. If remedial action is not then implemented "after a reasonable period", the Special Counsel may petition MSPB to consider the matter. Id. at § 1206(c)(1)(B).

Upon close perscrutation of the pleadings in the case at bar, the plaintiff at bottom asserts that OALJ acted unfairly in failing properly to evaluate all of the trial experience which he had detailed in his application. He claims abridgement of equal opportunity for access into the selection process for a position within the competitive service, alleging that "certain practices and procedures and interpretations of policies relating to the OALJ experience requirement and the rating thereof ... are irrational, arbitrary and capricious." Plaintiff's Additional Memorandum at 1. If these allegations describe a "prohibited personnel practice", then a complaint to the Special Counsel would plainly lie under 5 U.S.C. § 1206.

The term "prohibited personnel practice" is the subject of express statutory definition. See 5 U.S.C. § 2302. 5 U.S.C. § 2302(a)(1) simply declares that any activity described in 5 U.S.C. § 2302(b) shall be deserving of the label. While the proscriptions of this last-mentioned statute are farflung, 5 U.S.C. § 2302(b)(11) is of particular interest as regards the case at bar. This proviso outlaws any personnel action "if the taking of or failure to take such action violates any law, rule or regulation implementing, or directly concerning, the merit system...