Karamanos v. Egger

• Decision Date: 16 August 1989
• Docket Number: No. 87-3629,87-3629
• Parties: Andrew B. KARAMANOS, Plaintiff-Appellant, v. Roscoe L. EGGER, Jr., Commissioner of Internal Revenue; David Blackorby; Richard Welcome; Internal Revenue Service; T. Blair Evans; Joseph Lippi; Jack Sweet; Carolyn Leonard, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 447

882 F.2d 447

Andrew B. KARAMANOS, Plaintiff-Appellant, v. Roscoe L. EGGER, Jr., Commissioner of Internal Revenue;

David Blackorby; Richard Welcome; Internal Revenue

Service; T. Blair Evans; Joseph Lippi; Jack Sweet;

Carolyn Leonard, Defendants-Appellees.

No. 87-3629.

United States Court of Appeals, Ninth Circuit.

Argued June 7, 1988.

Submitted June 5, 1989.

Decided Aug. 16, 1989.

James S. Coon, Imperati, Barnett, Sherwood, and Coon, Portland, Or., for plaintiff-appellant.

Judith D. Kobbervig, Asst. U.S. Atty., Portland, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before HUG, FLETCHER and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Mr. Karamanos is an IRS agent classified at a GS-12 level. He spent much of his time on GS-13 work over several years. Finding this situation unfair, he applied for reclassification. In response, defendant Welcome transferred all GS-13 work away from Karamanos. Karamanos' request for reclassification was not acted upon.

He therefore appealed to the Office of Personnel Management (OPM), which ruled that reclassification was inappropriate based on only a single GS-13 case, even though that case occupied most of Karamanos's time. OPM refused to reconsider this decision.

Having failed to change his job classification, Karamanos applied for a recently created job opening at the GS-13 level. Although he was among the final group considered, he did not get the job. Believing he was denied the position because of a bias against agnostics and in retaliation for an Equal Employment Opportunities Commission (EEOC) complaint that he had once filed, Karamanos complained to the EEOC that his job application had been rejected improperly. He also filed a Freedom of Information Act (FOIA) request for notes taken about his application. These notes were provided. He later submitted a second FOIA request for similar notes taken about other job applicants, so that he could prove his discrimination claims before the EEOC. This request was denied because the notes had been destroyed. Eventually, the EEOC ruled against Karamanos. He did not appeal because, he says, without the interview notes on the other applicants, he cannot prove his claim.

Soon after learning that the interview notes were destroyed, Karamanos filed the complaint in this case alleging three claims for relief: (1) the decision not to reclassify him was arbitrary and capricious in violation of the Administrative Procedures Act; (2) the decision not to reclassify him violated a duty owed by the government that is redressable by mandamus; and (3) the destruction of documents by the government was intended to interfere with and to deter Karamanos' EEOC suit in violation of his first amendment right to seek redress from the government, and of his fifth amendment right to due process. Karamanos does not challenge the EEOC decision that he was not discriminated against in hiring.

After Karamanos filed the complaint in this case, he was subjected to a series of adverse actions that he believes were retaliations for pursuing his remedies before the EEOC and in federal court. He discovered a letter from the Chief of the Criminal Investigations Division, defendant Blackorby, to the IRS Regional Counsel stating that Blackorby and the Portland District Director, defendant Evans, wanted to deter Karamanos from any further "unjustified grievances." Soon after this letter was sent, Evans initiated an investigation about whether Karamanos disclosed to his attorney any confidential IRS documents in connection with this suit. After completing the investigation, Evans decided to fire Karamanos for having disclosed confidential information, and for having denied making these disclosures. However, before he could fire Karamanos, Evans retired. Evans was replaced by defendant Leonard, who reduced the penalty to a three-day suspension.

Karamanos filed an EEOC complaint about this suspension and also moved to amend his complaint in this case to add a fourth claim. This claim alleged that the suspension was a retaliatory discipline violating his first amendment right to seek redress of grievances.

Defendants then moved for summary judgment. They claimed that no constitutional violation occurred. They disputed Karamanos' third claim for relief by explaining that the notes had been destroyed under a policy of not saving such notes. According to the defendants, the EEOC investigator who considered Karamanos' complaint about not being hired for the GS-13 job had access to all of the interview notes. Because Karamanos had requested notes from his own interview, these were given to him after the EEOC investigator was finished examining them. The other notes were returned to Blackorby, who was told by the personnel director that such notes were routinely discarded. Blackorby then destroyed the notes before Karamanos made his second FOIA request.

The government disputed Karamanos' fourth claim for relief by explaining that the three day suspension was not retaliatory, but was fully justified. Apparently, Karamanos attempted to sanitize all documents before giving them to his attorney Karamanos argued that both explanations were pretexts. He contended that Blackorby knew Karamanos needed the notes, and destroyed them to impede the investigation and to deter further appeals. He also stated that any infraction of rules was merely technical, and that he would not have received a suspension for such a technical violation but for the pursuit of his constitutional and statutory rights.

by eliminating taxpayers' names from the documents. However, on one document, Karamanos allegedly failed to delete a name. Not knowing of this error, he falsely stated that he had disclosed no names. Leonard found that this unintentional disclosure merited a three-day suspension because Karamanos should have consulted a disclosure officer before disclosing documents, even if he believed them to be sanitized, and because Karamanos should have investigated when asked whether any names had been disclosed mistakenly.

As an alternative justification for summary judgment, the government argued that even if a constitutional violation could be alleged, Karamanos' sole avenue of relief was provided by the Civil Service Reform Act (CSRA), and that a constitutional suit for damages was disallowed by the Supreme Court's holding in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Therefore, the third and fourth claims for relief were properly dismissed. The first two claims were also properly dismissed, the government contended, because plaintiff could not seek review of his classification decision without naming the Office of Personnel Management as a party.

The court granted Karamanos' motion to amend the complaint, and then granted the motion for summary judgment, stating only that summary judgment was appropriate based on Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), and Otto v. Heckler, 781 F.2d 754 (9th Cir.1986). When Karamanos sought clarification of this ruling, the district court added that OPM was a necessary defendant, that mandamus jurisdiction was inappropriate because Karamanos had not appealed the adverse EEOC decision, that Karamanos had not demonstrated that the interview notes were crucial evidence to such an appeal, and that Karamanos had not raised a genuine issue of fact concerning the three day suspension. The district court refused to reconsider this decision. Karamanos timely appeals.

STANDARD OF REVIEW

We review grants of summary judgment de novo, upholding them only if, viewing the evidence in the light most favorable to the appellant, no issue of material fact exists. See David v. United States, 820 F.2d 1038, 1039-40 (9th Cir.1987).

I. Reviewability of the Reclassification Decision

The district court refused to consider Karamanos' first and second causes of action for review of the decision not to reclassify his position. It found that because the Office of Personnel Management, not the IRS, refused to reclassify his position, OPM was a necessary party. Because Karamanos failed to name OPM in this suit, the district court dismissed. Karamanos does not challenge this decision. However, he states that he will simply amend his complaint to include OPM if the court of appeals finds that review is not otherwise precluded. Therefore, we must consider whether review would be appropriate once OPM is a party.

Appellees argue that review is inappropriate on the ground that Karamanos failed to exhaust administrative remedies available to him. They contend that Karamanos could have appealed his case to the Office of Special Counsel (OSC), which would then have investigated his claim to decide whether he was improperly classified. According to appellees, OSC could then have instituted proceedings before the Merit Systems Protection Board (MSPB). Under the CSRA, these procedures are available only to redress adverse actions and prohibited personnel practices. Whether in fact Karamanos could have sought relief from OSC, and then perhaps from MSPB presents a question of first impression in this circuit. However, several prior cases affect our analysis.

In Burroughs v. Office of Personnel Management, 764 F.2d 1300 (9th Cir.1985), this circuit considered whether mandamus review was available to a federal employee who sought to have his classification changed from GS-12 to GS-13. The plaintiff had petitioned OPM for reclassification, which it initially granted. The reclassification was then denied by the Classifications Appeals Office. Plaintiff sought mandamus review, and the government objected that the district court lacked jurisdiction. It argued that the comprehensive nature of the CSRA precludes federal court review of decisions for which the CSRA does not provide remedies. The government relied on cases finding that disciplinary actions and adverse...