Dugan v. Ramsay, 83-1427

• Decision Date: 09 February 1984
• Docket Number: No. 83-1427,83-1427
• Citation: 727 F.2d 192
• Parties: Joseph F. DUGAN, Plaintiff, Appellant, v. Arch RAMSAY, Director of the Office of Personnel Management, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 192

727 F.2d 192

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

No. 83-1427.

United States Court of Appeals First Circuit.

Argued Nov. 9, 1983.

Decided Feb. 9, 1984.

Joseph F. Dugan, Providence, R.I., pro se.

Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, ROSENN, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

BREYER, Circuit Judge.

On November 7, 1980, Joseph Dugan, the appellant, applied to become a federal administrative law judge. His previous experience in the practice of administrative law was limited. But, he believed he could qualify by showing sufficient trial experience. The Office of Personnel Management, in its statement of requirements for the ALJ position, says applicants may count towards the seven necessary years of qualifying experience their "experience in preparation of cases for and their presentation at trial in courts of record of unlimited and original jurisdiction." It adds that the applicant must show that he spent at least two years "in the actual preparation and trial of cases"; and, to do so, he should list "in chronological order ... court cases which he has prepared and tried ... to demonstrate 2 full years (400 workdays) within the 7-year period immediately preceding the date of the application." Office of Personnel Management, Administrative Law Judge, Announcement No. 318, October 1979, pp. 4, 5, 11 (emphasis in original). Dugan had practiced as a trial lawyer with Neighborhood Legal Services in Washington, D.C. from 1965 to 1969; he had served as Deputy Director and Director of Rhode Island Legal Services from 1970 to 1977; he practiced privately as a trial lawyer from 1977 to 1980. He estimates that he devoted to the preparation of cases for trial and their trial about 95 percent of his time in the first period, about 60 percent in the second period, and 100 percent in the third period. He had other relevant experience as well. Thus he sent to OPM a lengthy application detailing this experience, as required, with case titles, citations, descriptions, dates, names and addresses of courts, judges, counsel, and the number of workdays spent on each case.

In early December Dugan received a printed form from OPM stating that OPM would not process this application further because, among other things, he had shown only 188 days, not 400 days, of acceptable case work. After considerable effort to find out which cases OPM did not count and why, Dugan concluded (and parties here agree) that OPM based its rejection, in relevant part, on its practice of counting towards the necessary two years of trial experience only those trial preparation days belonging to cases actually tried. It will not count a trial preparation day belonging to a case that settles, even if it settles on the eve of trial.

Dugan attacked this practice as arbitrary, (and also unconstitutional). The ALJ Rating Appeals Panel, within OPM, rejected his argument. The federal district court also seems to have rejected it, although it dismissed Dugan's action for failure to exhaust his administrative remedies--a point that the court raised sua sponte. Dugan now appeals, claiming that the district court, 560 F.Supp. 1230, erred in believing it lacked jurisdiction and that OPM's practice must be set aside as "arbitrary, capricious, an abuse of discretion," under the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A). We agree with Dugan on both counts.

I.

The district court's dismissal of this case for failure to "exhaust remedies" rests upon its view that the Civil Service Reform Act of 1978 provides Dugan with an administrative remedy that he failed to invoke, namely, the right to petition OPM's Special Counsel for redress. The statute says the Special Counsel can look into allegations of a "prohibited personnel practice," report his findings or recommendations, and, if necessary, petition the Merit System Protection Board to consider the matter. 5 U.S.C. Sec. 1206. Dugan did not bring his problem to the attention of the Special Counsel. The district court, however, was wrong in believing that "exhaustion law" required him to do so.

For one thing, exhaustion of remedies requirements are normally waivable. Mathews v. Diaz, 426 U.S. 67, 76-77, 96 S.Ct. 1883, 1889-1890, 48 L.Ed.2d 478 (1976); Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976). And the government here "waives" (to the extent permitted by statute), for it specifically says that Dugan need not petition the Special Counsel. For another thing, the Court of Appeals for the District of Columbia Circuit has held that the Special Counsel provisions do not provide employees (or applicants) with an exhaustable avenue for further agency review. Frazier v. Merit Systems Protection Board, 672 F.2d 150, 162-63 (D.C.Cir.1982). Rather, the Special Counsel is a type of agency ombudsman. "Corrective action petitions" sent to the Special Counsel are not like individual appeals. Rather, they are "comparable to criminal prosecutions designed to vindicate the public interest." Id. The government, responding to our request at oral argument that it tell us whether it thinks the district court was right or wrong on the "exhaustion" point, has filed a supplementary brief agreeing with Frazier (and with Dugan) and disagreeing with the district court's opinion that "appeal to the [Special Counsel] ... is mandatory in these circumstances." In its view, the "corrective action authority of the Special Counsel does not have 'anything to do' with [the] appeal right of individual employees for grievances ...." Given the government's concession, we see no reason not to follow Frazier here.

The district court's discussion suggests, however, that, in referring to "exhaustion," it may have had a deeper problem in mind. The Administrative Procedure Act makes clear that "final agency action for which there is no other adequate remedy in a court [is] ... subject to judicial review." 5 U.S.C. Sec. 704. But, there are two exceptions. A court cannot review an agency action under the APA "to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. Sec. 701. The district court seems to have felt that one or the other of these exceptions may apply here. And, the government's supplementary brief appears to make a similar argument.

We are not aware, however, of any statute that precludes review of the "final" agency action here at issue. The government's suggestion to the contrary seems to depend upon implying a congressional intent to deny review from the Civil Service Reform Act itself. That Act provides for review of most personnel actions (but not this one) by the Merit Systems Protection Board. It goes on to create two channels for court review of MSPB decisions--one (for most cases) leading to the Court of Appeals for the Federal Circuit, 5 U.S.C. Sec. 7703(b)(1), and the other (for special cases involving, for example, claims of discrimination) leading to federal district court, 5 U.S.C. Sec. 7703(b)(2). The government would imply, from the fact that Congress wished to unify much court review of MSPB decisions in the Federal Circuit, a congressional prohibition against court review of final personnel decisions that do not find their way to the MSPB. This conclusion, however, does not follow logically from the premise. It runs counter to the strong presumption in the law that favors reviewability and almost never implies statutory preclusion of review from congressional silence. See Johnson v. Robinson, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1168-69, 39 L.Ed.2d 389 (1974) ("clear and convincing" evidence of congressional intent is required to preclude review); Barlow v. Collins, 397 U.S. 159, 167, 90 S.Ct. 832, 838, 25 L.Ed.2d 192 (1970) (same); San Juan Legal Services, Inc. v. Legal Services Corp., 655 F.2d 434, 438 (1st Cir.1981) (similar); Virginia ex rel. Commissioner v. Marshall, 599 F.2d 588, 592 (4th Cir.1979) (same). It runs counter to a history of court review (as presented here by the government) both before and after the enactment of the CSRA. Friedman v. Devine, No. 81-756 (D.D.C. Feb. 25, 1982) (review by district court of decision of ALJ Rating Appeals Panel); Bromberg v. Civil Service Commission, No. 73 C 537 (N.D.Ill. March 25, 1977) (review by district court of decision of Civil Service Commission), aff'd, No. 75-1485 (7th Cir. Dec. 19, 1975). And, it strikes us as implausible to believe that Congress wished to withdraw court review of even egregious agency behavior in the area--even if, for example, an agency were to discard applications as a result of bribery or the roll of the dice. We therefore reject it.

The district court also suggested that the second exception, "agency action committed to agency discretion," might bar review. But, that suggestion also seems wrong. Of course, when agencies hire personnel, their discretion is broad and courts must be reluctant to interfere. American Federation of Government Employees v. Hoffman, 543 F.2d 930, 938 (D.C.Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1977); Bielec v. United States, 456 F.2d 690, 695, 197 Ct.Cl. 550 (1972); cf. Borsari v. Federal Aviation Administration, 699 F.2d 106, 109 (2d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 115, 78 L.Ed.2d 115 (1983) ("[A] smooth functioning government requires that public officials be afforded broad discretion to make employment decisions based on their view of the agency's best interest."). But, the fact that an agency enjoys broad discretionary powers does not mean judicial review is forbidden; it simply means that the reviewing court is unlikely to find against the agency, for the agency is unlikely to have acted...