Harrison v. Bowen, No. 86-5168

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore STARR and DOUGLAS GINSBURG, Circuit Judges, and McGOWAN; DOUGLAS GINSBURG
Citation259 U.S. App. D.C. 304,815 F.2d 1505
Decision Date03 April 1987
Docket NumberNo. 86-5168
PartiesMarcia R. HARRISON, Appellant, v. Otis R. BOWEN, Secretary, H.H.S.

Page 1505

815 F.2d 1505
259 U.S.App.D.C. 304
Marcia R. HARRISON, Appellant,
v.
Otis R. BOWEN, Secretary, H.H.S.
No. 86-5168.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 9, 1986.
Decided April 3, 1987.

Page 1507

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-03776).

David H. Shapiro, with whom Irving Kator and Amy E. Wind, Washington, D.C., were on the brief, for appellant.

Stuart H. Newberger, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before STARR and DOUGLAS GINSBURG, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

DOUGLAS GINSBURG, Circuit Judge:

In April 1983, Marcia Harrison was removed from her position as attorney-advisor in the Office of General Counsel of the Department of Health and Human Services (HHS). In December 1983, she filed a complaint against HHS in district court that, as later amended, alleged that, in removing her, HHS violated agency regulations, deprived her of her job without due process, and discriminated against her on the basis of age (which was 65 years at the time) in violation of the Age Discrimination in Employment Act (ADEA). 1 She later claimed that her removal also violated the Civil Service Reform Act of 1978 (CSRA). 2

In January 1986, the district court granted HHS' motion for partial summary judgment, dismissing Harrison's claims based on the agency regulations and the Due Process clause of the Constitution. Soon thereafter, Harrison voluntarily stipulated to a dismissal with prejudice of her ADEA claim, so that she could immediately appeal the summary judgment order.

We hold that the district court lacked jurisdiction to review Harrison's claims based on the CSRA and the agency regulations implementing it, and that she was not denied due process. We accordingly affirm the judgment below.

I. FACTUAL BACKGROUND

In 1981, HHS instituted a system for the formal annual performance appraisal of each of its lawyers, in accordance with Sec. 203(a) of the CSRA, 5 U.S.C. Sec. 4302 (1982), and Office of Personnel Management (OPM) regulations (now found in 5 C.F.R. Part 430 (1986)). Each lawyer received one of five ratings 3 for each of a series of "critical" and "non-critical" job elements. 4 These job element ratings were then combined to obtain an overall performance appraisal for that lawyer. 5

When this appraisal system was instituted, Harrison was a GS-14 attorney-advisor at HHS, having worked there (and at its predecessor, the Department of Health, Education, and Welfare) as a lawyer since 1968. At a performance appraisal progress review meeting in September 1982, Assistant General Counsel Darrel Grinstead informed Harrison that her "legal writing"

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and "legal advice" (both critical job elements for Harrison) had been unsatisfactory and that, if they did not improve during the next three months while she worked under a new supervisor, he would take appropriate action. Early in 1983, when the three months had run, Harrison received her performance appraisal for the period between October 1, 1981, and December 31, 1982. 6 She was rated as having only "partially met" the two critical job elements in question and she received an overall appraisal of "minimally satisfactory."

On March 18, 1983, Grinstead further notified Harrison in writing that her new supervisor's "conclusions [concerning her performance] were essentially the same as mine in that she rated you less than fully satisfactory in" legal writing and analysis. Grinstead then stated that he considered her work in 1983 to be "for the most part unsatisfactory," describing several specific assignments to illustrate the point. Grinstead therefore informed Harrison that she would be removed from her position "not sooner than April 17, 1983," i.e., no less than thirty days from the time of the notice, based on his evaluation of her performance from March 18, 1982, to March 18, 1983. The letter also apprised her of her rights to procedural review within HHS, which included the "right to be represented in this matter by an attorney or other representative ... an opportunity to respond orally and in writing to this proposal ... not later than April 1, 1983 [and the right to receive] a final written decision which must be concurred in by ... Samuel Turner, Deputy General Counsel for Program Review."

On April 4, 1983, Harrison responded to Grinstead in writing, through her attorney. In her letter, she (1) objected to his reliance on the one year period ending in March 1983, rather than the fifteen month performance rating period ending December 31, 1982; (2) disputed the accuracy of his description of her post-December 31, 1982 projects; (3) asserted that she was constitutionally entitled to "an opportunity for a hearing at which [she] could defend against [his] charges"; and (4) stated that she believed she was the victim of age discrimination. 7

Grinstead replied in writing on April 8, 1983. In response to her charge that he had used the wrong time period for evaluating her work, Grinstead stated that "the statute makes absolutely clear that I must base my decision only on instances of unacceptable performance during the one year period immediately prior to the date of my notice of the proposed action. 5 U.S.C. Section 4303(c)(2)(A)." He again described examples of her work during 1983 that "indicate unacceptable performance in critical elements 1 (written work) and 2 (legal analysis)." Citing authority, he rejected her contention that she was "entitled to any procedural rights beyond those which [she had] already been granted." Grinstead also denied that his decision was based in any part on her age, but he explained to her the departmental grievance procedure for instituting an age discrimination claim. Finally, he stated that she "will have the opportunity to make an oral reply to Mr. Samuel Turner, Deputy General Counsel, who must concur in my decision before it becomes effective."

Harrison and her attorney met with Turner on April 13, 1983, and he later concurred in Grinstead's decision. Harrison was terminated effective April 17, 1983.

II. NON-CONSTITUTIONAL CLAIMS

A. Civil Service Reform Act

Harrison contends that her removal violated the procedural and substantive protections provided in Chapter 43 of the Civil Service Reform Act, 5 U.S.C. Sec. 4303, and in implementing regulations issued by OPM

Page 1509

and HHS. As an initial matter, we must determine whether the district court had jurisdiction over these claims. We look first to the statutory claims. 8 Since the CSRA does not expressly provide for review of these claims in the district court, Harrison argues that jurisdiction may be based upon either an implied right of action under the CSRA or upon the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. Secs. 701-706.

i. The Statutory Scheme

Harrison's jurisdictional arguments, and the reason they must fail, cannot be understood without an overview of the entire CSRA. Title I of the CSRA establishes several broad "merit system principles" for federal personnel management generally. These include, for example, norms against various types of invidious discrimination and against taking reprisals against whistleblowers, and in favor of fair and equitable treatment of employees. One principle is that "[e]mployees should be retained on the basis of the adequacy of their performance ... and employees should be separated who cannot or will not improve their performance to meet required standards." 5 U.S.C. Sec. 2301(b)(6).

The CSRA also establishes specific standards and procedures for implementing these broad principles. Chapter 75 outlines the standards and procedures governing removals, demotions, suspensions, and other job actions initiated in order to "promote the efficiency of the service." This chapter enables the government to deal with employee misconduct. Chapter 43, under which Harrison was removed, provides that agencies are to use a performance appraisal system, like the HHS system outlined above, by which they are annually to evaluate their employees' performance. Chapter 43 also provides the standard and the procedures under which the government may remove or demote employees for unacceptable performance. In addition to providing the government with specific authority, in chapters 43 and 75, to take actions necessary to ensure adequate employee performance and conduct, the CSRA provides employees with specific substantive rights with respect to these actions, as well as protection against various types of unfair treatment (termed "prohibited personnel practices").

The CSRA also establishes the procedural framework through which employees may vindicate these rights. In creating these procedures, the CSRA dramatically altered the pre-existing institutional arrangement:

Title II of the CSRA abolishes the Civil Service Commission and replaces it with two new agencies, the MSPB [Merit Systems Protection Board] and the Office of Personnel Management (OPM). The OPM, headed by a single director responsible to the President, supervises the administration of the civil service. The MSPB, an independent agency consisting of three members, is charged with protecting the merit system principles and adjudicating conflicts between federal workers and their employing agencies. The Act also establishes within the Board an independent [Office of] Special Counsel responsible for investigating and prosecuting prohibited personnel practices, employment discrimination, unlawful political activities, arbitrary withholding of information requested under the Freedom of Information Act, and any other

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violations of law within the federal civil service.

Frazier v. Merit Systems Protection...

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67 practice notes
  • Wilkinson v. Legal Services Corp., No. Civ.A. 91-0889 (JHG).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 19, 1998
    ...imposes procedural rules on itself. E.g. Webster, 486 U.S. at 610, 108 S.Ct. 2047 (Scalia, J., dissenting); cf. Harrison v. Bowen, 815 F.2d 1505, 1516-18 (D.C.Cir.1987) (judicial review of Accardi claims precluded by detailed scheme of administrative review). In Fried v. Hinson, 78 F.3d 688......
  • Garcia v. Williams, Civ. No. 87-6163-MFM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 1, 1988
    ...service;" (2) those who are "preference eligible;" (3) those in the "excepted" service; and (4) "probationers." See Harrison v. Bowen, 815 F.2d 1505, 1510 (D.C.Cir.1987); 5 U.S.C. §§ 2102(a)(2) and 2103. The substantive rights and procedural protections provided a federal employee depend up......
  • Lacson v. U.S. Dep't of Homeland Sec., No. 11–1447.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 30, 2013
    ...governing federal employer-employee relations by suing under the more general APA,’ ” Fornaro, 416 F.3d at 67 (quoting Harrison v. Bowen, 815 F.2d 1505, 1516 n. 25 (D.C.Cir.1987)) (emphasis added), or “under the general grant of federal-question jurisdiction in 28 U.S.C. § 1331,” Elgin, 132......
  • Butler v. West, No. 97-5348
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 8, 1999
    ...reviewable action, district court lacks jurisdiction to hear case filed thirty-one days after receipt of notice); Harrison v. Bowen, 815 F.2d 1505, 1515 (D.C.Cir.1987) ("reading between the lines [of the CSRA] to interpolate remedies Congress did not provide can only lead the Court into err......
  • Request a trial to view additional results
67 cases
  • Wilkinson v. Legal Services Corp., No. Civ.A. 91-0889 (JHG).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 19, 1998
    ...imposes procedural rules on itself. E.g. Webster, 486 U.S. at 610, 108 S.Ct. 2047 (Scalia, J., dissenting); cf. Harrison v. Bowen, 815 F.2d 1505, 1516-18 (D.C.Cir.1987) (judicial review of Accardi claims precluded by detailed scheme of administrative review). In Fried v. Hinson, 78 F.3d 688......
  • Garcia v. Williams, Civ. No. 87-6163-MFM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 1, 1988
    ..."preference eligible;" (3) those in the "excepted" service; and (4) "probationers." See Harrison v. Bowen, 815 F.2d 1505, 1510 (D.C.Cir.1987); 5 U.S.C. §§ 2102(a)(2) and 2103. The substantive rights and procedural protections provided a federal employee depend ......
  • Lacson v. U.S. Dep't of Homeland Sec., No. 11–1447.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 30, 2013
    ...governing federal employer-employee relations by suing under the more general APA,’ ” Fornaro, 416 F.3d at 67 (quoting Harrison v. Bowen, 815 F.2d 1505, 1516 n. 25 (D.C.Cir.1987)) (emphasis added), or “under the general grant of federal-question jurisdiction in 28 U.S.C. § 1331,” Elgin, 132......
  • Butler v. West, No. 97-5348
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 8, 1999
    ...reviewable action, district court lacks jurisdiction to hear case filed thirty-one days after receipt of notice); Harrison v. Bowen, 815 F.2d 1505, 1515 (D.C.Cir.1987) ("reading between the lines [of the CSRA] to interpolate remedies Congress did not provide can only lead the Court int......
  • Request a trial to view additional results

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