Falkowski v. E.E.O.C.

• Decision Date: 21 June 1985
• Docket Number: No. 82-1446,82-1446
• Parties: 38 Fair Empl.Prac.Cas. 358, 38 Empl. Prac. Dec. P 35,541, 246 U.S.App.D.C. 274 Evelyn FALKOWSKI, Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 907

764 F.2d 907

38 Fair Empl.Prac.Cas. 358,

38 Empl. Prac. Dec. P 35,541, 246 U.S.App.D.C. 274

Evelyn FALKOWSKI, Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.

No. 82-1446.

United States Court of Appeals, District of Columbia Circuit.

June 21, 1985.

Before ROBINSON, Chief Judge, McGOWAN and WILKEY, ^* Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

In Falkowski v. Equal Employment Opportunity Commission, 719 F.2d 470 (D.C.Cir.1983), this court reversed part of the District Court's grant of summary judgment to the government on claims concerning the representation vel non provided to plaintiff-appellant by the government in lawsuits stemming from her employment with the Equal Employment Opportunity Commission (EEOC). The Supreme Court has vacated our judgment in Falkowski and remanded the case to us, --- U.S. ----, 105 S.Ct. 1860, 85 L.Ed.2d 155 for further consideration in light of Heckler v. Chaney, --- U.S. ----, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). After discussing the facts and holding of Chaney, we hold that only one of the three causes of action brought before the District Court by the plaintiff remains viable.

I

Heckler v. Chaney involves the reviewability of a decision by the Food and Drug Administration (FDA) not to enforce the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. Sec. 301 et seq. (1982), against states using lethal injections as capital punishment. The prisoner-plaintiffs claimed that the drugs had not been tested for the purposes they were to be used, and that allowing untrained personnel to administer the drugs was likely to result in excessive suffering. The plaintiffs requested that the FDA take the appropriate enforcement action. 105 S.Ct. at 1652.

The Supreme Court ruled that the FDA's decision was unreviewable under the APA because decisions by an agency not to prosecute are historically within its absolute discretion and because there was "no law to apply" limiting this discretion.

The Court listed a number of factors that go into an agency's decision not to enforce a statute, and stated that an "agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities." 105 S.Ct. at 1656. The Court also noted that the decision not to enforce is similar to the decision not to prosecute, a decision "long ... regarded as the special province of the Executive Branch." Id. These factors are justification for a presumption of unreviewability of decisions not to take enforcement action.

That presumption of unreviewability may, however, "be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Id. (footnote omitted). The Chaney Court gave Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), as an example of a case where the presumption was overcome by the statute's substantive guidelines. 105 S.Ct. at 1657. In Dunlop, the relevant statute directed that, upon filing of a complaint by a union member that a union election was tainted, "[t]he Secretary [of Labor] shall investigate such complaint and, if he finds probable cause to believe that a violation ... has occurred ... he shall bring a civil action" against the alleged violator. 29 U.S.C. Sec. 482(b) (1982).

In Chaney itself, in contrast, the language at issue was the general provision on enforcement of all parts of the relevant statute, which stated simply that "[t]he Secretary [of Health and Human Services] is authorized to conduct examination and investigations," 21 U.S.C. Sec. 372(a) (1982), and a handful of provisions setting forth specific remedies but no specific standard as to when their use is proper. 105 S.Ct. at 1658. The Court dismissed a "policy statement" of the FDA, upon which the Court of Appeals had relied heavily, as of questionable authority and in conflict with an agency rule. Id.

Taking all these factors into consideration, the Chaney Court held that the FDA's decision not to enforce the statute was unreviewable:

The FDA's decision not to take the enforcement actions requested by respondents is therefore not subject to judicial review under the APA. The general exception to reviewability provided by [5 U.S.C.] Sec. 701(a)(2) for action "committed to agency discretion" remains a narrow one, see Overton Park, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 ... (1971), but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise. In so holding, we essentially leave to Congress, and not to the courts, the decision as to whether an agency's refusal to institute proceedings should be judicially reviewable. No colorable claim is made in this case that the agency's refusal to institute proceedings violated any constitutional rights of respondents, and we do not address the issue that would be raised in such a case.

105 S.Ct. at 1659.

II

The EEOC can recommend to the Department of Justice (DoJ) that one of its employees be represented by the government in a lawsuit involving the employee. The Department of Justice then makes the final decision as to whether or not to provide representation. See 28 U.S.C. Sec. 516 (1982).

Ms. Falkowski brought three causes of action before the District Court that accused the government of illegal action in connection with its decisions regarding the representation of Ms. Falkowski, who became embroiled in a wide-ranging series of lawsuits as a result of internecine disputes with her fellow employees. See generally Falkowski, 719 F.2d at 472-76 (discussing facts and procedural history of case).

The first cause of action involved the lawsuit styled Perry v. Golub. We affirmed the District Court's dismissal of this cause of action. Id. at 478-79. The second cause of action was against the EEOC for its role in the suit styled Perry v. Falkowski. We reversed the District Court's grant of summary judgment with respect to this cause of action. Id. at 479-80. The third cause of action was against DoJ for its role in Perry v. Falkowski. We reversed the District Court's grant of summary judgment with respect to this cause as well. Id. at 480-83.

Chaney does not affect our decision with respect to the first or second causes of action. On these issues, we therefore allow our earlier rulings to stand. With respect to the third cause of action, Chaney requires us to change our earlier course and affirm the District Court's dismissal.

A. Plaintiff's First Cause of Action

In her first cause of action, Ms. Falkowski accused the EEOC of discriminatory and retaliatory denial of adequate government legal representation in Perry v. Golub, one of the suits generated by events occurring while Ms. Falkowski was employed by the EEOC. 719 F.2d at 477. We held that this cause of action was collaterally estopped. Chaney obviously does not speak to this issue. We reiterate our affirmance of the District Court's dismissal of this cause of action, for the reasons set forth in our earlier opinion. 719 F.2d at 478-79.

B. Plaintiff's Second Cause of Action

Ms. Falkowski's second cause of action involved the EEOC's actions with respect to representation for Ms. Falkowski in the suit of Perry v. Falkowski, another of the suits arising from events occurring at the time of Ms. Falkowski's employment with the EEOC. The EEOC in fact recommended that DoJ represent Ms. Falkowski, but not until its delay in doing so had forced Ms. Falkowski to retain private counsel to respond to the complaint against her before the deadline for filing an answer had passed. 719 F.2d at 476.

Ms....