Mescalero Apache Tribe v. Rhoades, Civ. No. 89-0401 JP.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtPARKER
Citation804 F. Supp. 251
Docket NumberCiv. No. 89-0401 JP.
Decision Date22 September 1992
PartiesMESCALERO APACHE TRIBE, on its own behalf and on behalf of the Individual Members of the Mescalero Apache Tribe, and Lewis Lapaz, Plaintiffs, v. Everett RHOADES, Director Indian Health Services, Josephine T. Waconda, Area Director of Albuquerque Indian Health Services, Department of Health and Human Services, and the United States of America, Defendants.

804 F. Supp. 251

MESCALERO APACHE TRIBE, on its own behalf and on behalf of the Individual Members of the Mescalero Apache Tribe, and Lewis Lapaz, Plaintiffs,
Everett RHOADES, Director Indian Health Services, Josephine T. Waconda, Area Director of Albuquerque Indian Health Services, Department of Health and Human Services, and the United States of America, Defendants.

Civ. No. 89-0401 JP.

United States District Court, D. New Mexico.

September 22, 1992.

804 F. Supp. 252
804 F. Supp. 253
George E. Fettinger and Norman D. Bloom, Jr., Fettinger & Bloom, Leslie L. Seckler, Alamogordo, N.M., for plaintiffs

Marilyn S. Johnson, U.S. Attys. Office, D. N.M., Albuquerque, N.M., Timothy M. White, for defendants.


PARKER, District Judge.

The subjects of this memorandum opinion and order are plaintiffs' motion for summary judgment, filed April 12, 1991, and defendants' cross-motion for summary judgment, filed April 26, 1991. At request of the court, both parties submitted supplemental briefs, filed March 11, 1992, in support of their respective motions. The parties are in agreement as to all material facts, leaving this court with the task of deciding the remaining legal dispute. Having thoroughly considered the pleadings, facts and law, and being otherwise fully advised in the matter, I conclude that plaintiffs' motion should be granted and defendants' motion should be denied.


Plaintiff Lewis LaPaz ("LaPaz") is a member of the Mescalero Apache Tribe ("Tribe") and a resident of its reservation located in Otero County, New Mexico. For more than thirty years LaPaz has served in continuous employment with the U.S. government, since 1979 holding employment with Indian Health Services ("IHS") as a van driver at the agency's Mescalero Service Unit Hospital. The dispute in this case arises out of LaPaz's entry into tribal politics and government, creating an alleged conflict of interest with his federal employment. After LaPaz successfully sought election to the Mescalero Tribal Council, a position which he continues to hold, the Director of IHS, defendant Everett Rhoades ("Rhoades"), determined that LaPaz's elected position is incompatible with Department of Health and Human Services ("HHS") standards of conduct. 45 C.F.R. § 73.735-701(a) & (b). Consequently, the Director of the Albuquerque Area IHS, defendant Josephine T. Waconda ("Waconda"), ordered LaPaz either to resign from the Tribal Council or to submit his resignation from federal employment. LaPaz's subsequent administrative appeals of this order failed; Rhoades denied LaPaz's final appeal on February 1, 1989.1 By this suit, plaintiffs charge that the government's action contravened both the Indian Reorganization Act, 25 U.S.C. § 461 et seq., and the Indian Self-Determination Act, 25 U.S.C. § 450 et seq., by applying general conflict of interest regulations to LaPaz's political activities, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06.


Before I proceed to examine the substance of the parties' cross-motions for summary judgment, a short discussion is in order of this court's jurisdiction over the claims of plaintiff LaPaz. By prior opinion in this case, Mescalero Apache Tribe v. Rhoades, 755 F.Supp. 1484 (D.N.M.1990), I denied defendants' motion to dismiss for lack of standing and jurisdiction. Nonetheless, because, in the course of the briefing of the cross-motions for summary judgment, defendants have raised two new issues bearing on jurisdiction, I turn again to the jurisdictional question.

Defendants' argument goes to my concern that absent judicial review by this court, plaintiffs might be left with inadequate means of redress. See Mescalero

804 F. Supp. 254
Apache Tribe v. Rhoades, 755 F.Supp. at 1489-90. Defendants point to the passage, since the filing of this action, of two laws that purportedly preclude this court's jurisdiction over plaintiffs' claims and make appeal to the Merit Systems Protection Board ("MSPB") the appropriate avenue of review, in accordance with the Civil Service Reform Act of 1978 ("CSRA"), Pub.L. 95-454, 92 Stat. 111 et seq. (1978) (codified in scattered sections throughout Title 5 of the United States Code). With specified exceptions,2 CSRA denies district court jurisdiction to federal employees appealing disputed personnel actions

The first statute cited by defendants is the Whistleblower Protection Act of 1989, Pub.L. 101-12, § 3(a)(13), 103 Stat. 29 (1989), 5 U.S.C. § 1221. It is defendants' position that this Act, because it allows for appeal to the MSPB, provides plaintiff LaPaz with adequate appellate review. Defendants are incorrect. The "prohibited personnel practice" against which the Act seeks to protect is, as its title suggests, reprisal for disclosure of official misconduct. 5 U.S.C. § 1221(a) (referencing 5 U.S.C. § 2302(b)(8)). In discussing the legislative history of the Act, the Federal Circuit recently stated:

The Whistleblower Protection Act of 1989 ... was created to improve protection from reprisal for federal employees who disclose, or "blow the whistle" on, government mismanagement, wrongdoing, or fraud. S.Rep. No. 413, 100th Cong., 2d Sess. 1 (1988); 5 U.S.C. § 1201 note (Supp.1990). Congress thought such improved protection desirable because whistleblowers serve the public interest by assisting in the elimination of fraud, waste, abuse, corruption, and unnecessary government expenditures. 5 U.S.C. § 1201 note (Supp.1990).

Knollenberg v. Merit Systems Protection Board, 953 F.2d 623, 625 (Fed.Cir.1992). See Rivera v. United States, 924 F.2d 948, 952-54 (9th Cir.1991). A characterization of the facts in the instant action as retaliation for whistleblowing is simply erroneous. Furthermore, as defendants themselves recognize, Congress enacted the Whistleblower Protection Act after defendants had presented LaPaz with the employment ultimatum at issue in this case. The Act does not provide for an individual right of action under § 1221 for personnel actions taken prior to the effective date of the Act on July 9, 1989. See Knollenberg, 953 F.2d at 625. Defendant Waconda, by memorandum of March 21, 1988, disqualified LaPaz from both serving on the Tribal Council and retaining his federal employment; Rhoades denied LaPaz's final appeal on February 1, 1989. Although defendants have not carried out the ultimatum, the mere proposal or threat of personnel action would be sufficient to constitute an actionable occurrence for purposes of the Whistleblower Protection Act. See 5 U.S.C. § 2302(b)(8); Knollenberg, 953 F.2d at 625. Accordingly, the Whistleblower Protection Act has no bearing on this litigation.

Second and more helpful is defendants' reliance on the Civil Service Due Process Amendments, Pub.L. 101-376, §§ 2(a), 2(b) & 3(2), 104 Stat. 461 & 462 (1990), 5 U.S.C. §§ 4303(e), 7511(a)(1)(C) & 7701(j). Effective August 17, 1990, the legislation amended CSRA "to allow non-probationary, non-preference eligible excepted service employees to appeal adverse personnel actions to the MSPB ... and to the Federal Circuit...." Pension Ben. Guaranty Corp. v. Federal Labor Relations Authority, 967 F.2d 658, 666 n. 11 (D.C.Cir. 1992). The purpose of the Amendments was to extend to non-preference eligible employees in the excepted service the same administrative and appellate procedures already available to both competitive service employees and preference eligible excepted service employees. H.R.Rep. No. 328, 101st Cong., 1st Sess. (1989), U.S.Code Cong. & Admin.News 1990, p. 695. In view of the passage of the Civil Service Due Process Amendments and assuming the applicability

804 F. Supp. 255
of the Amendments to this suit, defendants are correct that the provisions of the Amendments resolve one of my doubts concerning the availability of review under the CSRA framework, specifically that LaPaz's employment status could serve to obstruct review by the MSPB

Nonetheless, the amendments do not assure that the MSPB would have jurisdiction over LaPaz's claims, leaving me still unwilling to relinquish jurisdiction. As I discussed previously, Mescalero Apache Tribe v. Rhoades, 755 F.Supp. at 1490, even if LaPaz were to have available to him the full extent of CSRA's administrative and appellate procedures, the MSPB may still lack jurisdiction to hear his claim, for aggrieved employees have a right of direct appeal to the MSPB only where relatively serious sanctions are invoked.3 Chapter 43 entitles an employee "who has been reduced in grade or removed under this section ... to appeal the action to the Merit Systems Protection Board under section 7701 of this title." 5 U.S.C. § 4303(e). Likewise, Chapter 75 permits such an appeal where the grievance is a major adverse "action," which includes "removal; suspension for more than 14 days; reduction in grade; reduction in pay; and a furlough of 30 days or less." 5 U.S.C. §§ 7512(1)-(5) & 7513(d). See United States v. Fausto, 484 U.S. 439, 444-47, 108 S.Ct. 668, 672-73, 98 L.Ed.2d 830 (1988); Ryon v. O'Neill, 894 F.2d 199, 203 (6th Cir.1990). See also Johnson v. Orr, 747 F.2d 1352, 1355-56 (10th Cir.1984) (holding MSPB did not have jurisdiction over an enforced leave claim, as employment action did not fall under appealable actions enumerated under § 7512). Moreover, the Civil Service Due Process Amendments' revision of CSRA's appeals provisions, Chapter 77, speaks only in terms of "removal from the service," Pub.L. 101-376, § 3(2), 104 Stat. 462, 5 U.S.C. § 7701(j). See Jesko v. Department of Veterans Affairs, 52 M.S.P.R. 517, 520 (1992) (commenting that § 7701(j) applies only to a "removal"). I remain unconvinced that the disqualification ultimatum presented to LaPaz constitutes an adverse action appealable to the MSPB, with the right of subsequent judicial review by the Federal Circuit.

Moreover, as with the passage of the Whistleblower Protection...

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