Mahoney v. Donovan

• Decision Date: 30 August 2013
• Docket Number: No. 12–5016.,12–5016.
• Parties: J. Jeremiah MAHONEY, an Administrative Law Judge at the United States Department of Housing and Urban Development, Appellant v. Shaun DONOVAN, Secretary of the United States Department of Housing and Urban Development and John Berry, Director of the United States Office of Personnel Management, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

721 F.3d 633

J. Jeremiah MAHONEY, an Administrative Law Judge at the United States Department of Housing and Urban Development, Appellant

v.Shaun DONOVAN, Secretary of the United States Department of Housing and Urban Development and John Berry, Director of the United States Office of Personnel Management, Appellees.

No. 12–5016.

United States Court of Appeals, District of Columbia Circuit.

Argued May 10, 2013.

Decided June 28, 2013.

Rehearing En Banc Denied Aug. 30, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–01703).

Michael F. Williams argued the cause for appellant. With him on the briefs was Steven A. Myers. John F. Karl Jr. entered an appearance.

Ryan C. Morris, Francis A. Vasquez Jr., and Leah E. Witters were on the brief for amici curiae Federal Administrative Law Judges Conference, et al. in support of appellant.

Addy R. Schmitt, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: ROGERS and KAVANAUGH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge RANDOLPH.

RANDOLPH, Senior Circuit Judge:

This is an appeal from the judgment of the district court dismissing, for lack of standing, J. Jeremiah Mahoney's complaint. We affirm, but on different grounds.

Mahoney is an administrative law judge—an ALJ—at the U.S. Department of Housing and Urban Development. He brought this action alleging that the agency had interfered with his decisional independence and thereby violated the Administrative Procedure Act. His complaint alleged that his supervisor, David Anderson, had “failed to consistently assign cases to him in a rotating manner” and had instead “selectively assigned cases to judges based upon political considerations [or] the Secretary's perceived interests”; that Anderson had engaged in ex parte communications with a party in a case pending before him without his knowledge or consent; that the agency had a practice of sending notices of election in Fair Housing Act cases to the Justice Department before the administrative law judges officially released the notices to other parties, thereby providing the Justice Department with advance notice of cases soon to be filed in district court; that Anderson had prevented the docket clerk from providing docket numbers for certain cases assigned to him and other administrative law judges; and that the agency had “denied legal research resources” to the administrative law judges for more than a month. ALJ Mahoney further alleged that the Office of Personnel Management had failed to protect his decisional independence.¹

We need not decide whether the district court correctly dismissed ALJ Mahoney's claims for lack of standing. In our view, the Civil Service Reform Act of 1978, Pub.L. No. 95–454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), deprived the district court of subject-matter jurisdiction over the complaint. See Graham v. Ashcroft, 358 F.3d 931, 935–36 (D.C.Cir.2004).

The Civil Service Reform Act governs federal employment. “It prescribes in great detail the protections and remedies applicable to [personnel actions], including the availability of administrative and judicial review.” United States v. Fausto, 484 U.S. 439, 443, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). A number of provisions, originally enacted in § 11 of the Administrative Procedure Act, see Ramspeck v. Fed. Trial Exam'rs Conference, 345 U.S. 128, 131–33, 73 S.Ct. 570, 97 L.Ed. 872 (1953), and reaffirmed (implicitly or explicitly) in the Civil Service Reform Act, are designed to safeguard the decisional independence of administrative law judges. For example, administrative law judges are to be assigned cases in rotation “so far as practicable.” 5 U.S.C. § 3105. Although administrative law judges are agency employees, the Office of Personnel Management determines their compensation. See id. § 5372. And administrative law judges are exempt from agency performance-appraisal systems. See id. §§ 4301(2)(D), 4302. An agency may remove, or take certain other specified “adverse actions” against, an administrative law judge only if the Merit Systems Protection Board first determines, after an opportunity for a hearing, that there is good cause for such action. See id. § 7521.² The Board's decision may be appealed to the Court of Appeals for the Federal Circuit. See id. § 7703(a), (b)(1). Other personnel actions that are alleged to violate the merit-systems principles of the Civil Service Reform Act, see id. § 2301, or otherwise to be improperly motivated—what the Act calls “prohibited personnel practices,” id. § 2302—are to be investigated by the Office of Special Counsel. See id. § 1214; Gray v. Office of Pers. Mgmt., 771 F.2d 1504 (D.C.Cir.1985). ³

The Act establishes the “exclusive ... remedial regime for federal employment and personnel complaints,” Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C.Cir.2009), and we have repeatedly held that federal employees—including administrative law judges—“may not circumvent the Act's requirements and limitations by resorting to the catchall [Administrative Procedure Act] to challenge agency employment actions.” Grosdidier v. Chairman, Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C.Cir.2009); see also Filebark v. U.S. Dep't of Transp., 555 F.3d 1009 (D.C.Cir.2009); Fornaro v. James, 416 F.3d 63 (D.C.Cir.2005); Graham, 358 F.3d 931;Gray, 771 F.2d 1504;Carducci v. Regan, 714 F.2d 171 (D.C.Cir.1983).⁴ The Act precludes suit under the Administrative Procedure Act even when the claim concerns “a type of personnel action” the Act does not cover—that is, even when the Act provides no relief for the complained-of employment action. Filebark, 555 F.3d at 1013 (internal quotation marks omitted).

ALJ Mahoney recognizes as much, but asserts that the Act does not preclude claims that do not concern “personnel actions.” Pointing to the Supreme Court's statement that “certain actions by supervisors against federal employees, such as wiretapping, warrantless searches, or uncompensated takings, would not be defined as ‘personnel actions' within the statutory scheme,” Bush v. Lucas, 462 U.S. 367, 385 n. 28, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); see also Stewart v. Evans, 275 F.3d 1126, 1130 (D.C.Cir.2002), he asserts that not all workplace claims challenge “personnel actions” within the meaning of the Act. He contends that his claims “are so far afield from the types of claims that are cognizable under the [Act] that the [Act] does not preempt them.” Appellant's Reply Br. 22. His claims, he argues, do “not concern his employment status, compensation, job responsibilities, or even his working conditions.” Id. at 24 (quoting Mahoney, 824 F.Supp.2d at 65). We disagree.

The Act defines “personnel action” to include any “significant change in duties, responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). ALJ Mahoney challenges four sets of actions: (1) the selective assignment of cases on the basis of political considerations or the Secretary's perceived interests; (2) the failure to provide docket numbers necessary for the administrative law judges to manage their cases, as well as to provide access to legal-research resources; (3) unauthorized ex parte communications between his supervisor and a litigant appearing before him; and (4) the practice of providing the Justice Department with advance warning of notices of election in certain cases. We think these actions affect “working conditions” and thus fall within the scope of a “personnel action” under the Act.

The selective assignment of cases affects the number or type of cases an administrative law judge will receive. That strikes us as a working condition. Moreover, the requirement that administrative law judges “be assigned to cases in rotation so far as practicable” appears in 5 U.S.C. § 3105, the provision governing the appointment of administrative law judges and providing that they “may not perform duties inconsistent with their duties and responsibilities as administrative law judges.” The appointment of an administrative law judge is a “personnel action,” id. § 2302(a)(2)(A)(i), as is a significant change in “duties” or “responsibilities,” id. § 2302(a)(2)(A)(xii). This strongly suggests that the assignment of cases is also a personnel action under the Act.

Similarly, the failure to provide docket numbers and the failure to provide access to legal-research resources affect the ability of administrative law judges to do their jobs efficiently and effectively. In that respect, these actions affect working conditions.

It is perhaps less clear that the ex parte communications and the advance warning of notices of election concern working conditions. But ALJ Mahoney alleges that these actions interfered with his decisional independence. We believe “working conditions” can and should be read broadly enough to include such actions. The degree of independence of an administrative law judge—the extent to which an administrative law judge may “exercise[ ] his independent judgment on the evidence before him, free from pressures by ... officials within the agency,” Butz v. Economou, 438 U.S. 478, 513, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) —certainly sounds like a working condition. Accordingly, to the extent the complained-of actions are alleged to interfere with ALJ Mahoney's decisional independence, they may be said to affect his working conditions.

At one time, the Merit Systems Protection Board took the position that an administrative law judge could be “constructively removed” under 5 U.S.C. § 7521 by agency actions that have “ ‘a pernicious effect’ ” on the administrative law judge's “ ‘qualified independence.’ ” Sannier v. Merit Sys. Prot. Bd., 931 F.2d 856, 858 (Fed.Cir.1991) (quoting Doyle, 29 M.S.P.R. 170, 175 (1985)); ...