Ryon v. O'Neill

• Citation: 894 F.2d 199
• Decision Date: 24 January 1990
• Docket Number: No. 89-5461,89-5461
• Parties: 51 Fair Empl.Prac.Cas. 1748, 52 Empl. Prac. Dec. P 39,615 Charles R. RYON, Sr., Plaintiff-Appellant, v. Colonel Peter J. O'NEILL, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 199

894 F.2d 199

51 Fair Empl.Prac.Cas. 1748,

52 Empl. Prac. Dec. P 39,615

Charles R. RYON, Sr., Plaintiff-Appellant, v. Colonel Peter J. O'NEILL, et al., Defendants-Appellees.

No. 89-5461.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 1, 1989.

Decided Jan. 24, 1990.

Scott D. Spiegel (argued), Lynch, Cox, Gilman & Mahan, Louisville, Ky., for plaintiff-appellant.

Joseph M. Whittle, U.S. Atty., James H. Barr, Asst. U.S. Atty., Office of the U.S. Atty., Louisville, Ky., William Kanter, Dept. of Justice Appellate Staff--Civ. Div., Gail D. Reinhart, Asst. Gen. Counsel, Defense Mapping Agency, and Deborah Ruth Kant (argued), U.S. Dept. of Justice, Civ. Div. Appellate Staff, Washington, D.C., for defendants-appellees.

Before MILBURN and GUY, Circuit Judges, and LIVELY, Senior Circuit Judge.

RALPH B. GUY, Jr., Circuit Judge.

The plaintiff, Charles R. Ryon, appeals the district court's dismissal for lack of jurisdiction of his marital status discrimination claim against the Defense Mapping Agency. Plaintiff contends that jurisdiction was properly asserted on the basis of an implied right of action under the Civil Service Reform Act (CSRA or Act), 5 U.S.C. Sec. 2302(b) (1978), and accompanying regulations, 5 C.F.R. Sec. 720.901(a) (1979), under the Administrative Procedure Act (APA), 5 U.S.C. Sec. 701, et seq. (1966), and under the Mandamus Act, 28 U.S.C. Sec. 1361 (1962). Because we find that the CSRA not only contains no implied right of action, but also evinces Congress' intention to preclude direct appeal to the federal courts under each of the statutes suggested by the plaintiff, we agree that the district court was without jurisdiction to hear plaintiff's claim.

I.

In August 1985, Charles Ryon began a two-year tour of duty in Seoul, Korea, as a senior technical representative for the Defense Mapping Agency (DMA), an arm of the Department of Defense. Ryon's family accompanied him to Seoul but returned to the United States before his tour expired. In February of 1987, the DMA offered to extend Ryon's position in Korea one full year, to which Ryon responded by requesting a three-year extension. The DMA subsequently revoked its one-year offer and assigned the plaintiff to a position in the United States. In a letter dated August 22, 1987, the DMA's chief of staff explained to Ryon that, because he was no longer accompanied by his family, he was limited to a one-year extension of his tour, and that the offer of a one-year extension had been revoked due to Ryon's ineligibility for home leave and the need to stagger tours in order to provide an overlap of experienced personnel in Seoul. Ryon appealed the DMA's decision to the Merit System Protection Board (MSPB) alleging that the reassignment constituted discrimination on the basis of marital status, a "prohibited personnel practice" under the CSRA, 5 U.S.C. Sec. 2302(b)(1)(E). The MSPB subsequently dismissed the plaintiff's appeal asserting that it lacked jurisdiction to hear complaints of prohibited personnel practices brought by an aggrieved employee except upon referral by the Office of the Special Counsel (OSC). Plaintiff's complaint was forwarded to the OSC which apparently elected neither to pursue Ryon's claim with the DMA nor to recommend any further action by the MSPB.

On July 16, 1987, plaintiff brought suit in the United States District Court for the Western District of Kentucky alleging that the DMA's assignment decision constituted discrimination on the basis of marital status in contravention of 5 U.S.C. Sec. 2302(b)(1)(E) and 5 C.F.R. Sec. 720.901(a), and requested the court to issue an injunction reinstating him to his position in Korea. On April 8, 1989, the district court entered an order dismissing Ryon's claim for lack of jurisdiction.

II.

We begin our analysis of plaintiff's appeal by noting that his arguments for jurisdiction under the CSRA and the APA were explicitly rejected by the District of Columbia Circuit in two cases whose facts bear a striking resemblance to those now before us. In Cutts v. Fowler, 692 F.2d 138 (D.C.Cir.1982), the plaintiff brought an action in federal district court alleging, inter alia, that a Federal Communications Commission decision to transfer her to another office without reduction in pay or grade constituted discrimination on the basis of marital status, a prohibited personnel practice under 5 U.S.C. Sec. 2302(b)(1)(E). The court held that, in enacting the CSRA, "Congress had not intended to create a private statutory right of action" in the federal courts to enforce the restrictions on agency action contained in section 2302(b). 692 F.2d at 140. The next year, the District of Columbia Circuit was once again presented with a claim against a federal agency for unlawful reassignment. In Carducci v. Regan, 714 F.2d 171 (D.C.Cir.1983), the plaintiff claimed, inter alia, that his reassignment by the Customs Service was "arbitrary and capricious," and therefore reviewable under the APA. The court held to the contrary, explaining that the remedial scheme of the CSRA would be "impermissibly frustrated" by permitting judicial review of an agency's reassignment decision outside the detailed framework of the CSRA. The court wrote that Congress' failure to provide for judicial review of the reassignment in question reflected a "congressional intent that no judicial relief be available--that the matter be deemed 'committed to agency discretion by law....' " 714 F.2d at 174 (citation omitted).

The Fifth Circuit has also held that reassignment decisions are not reviewable in the federal courts under either the CSRA or the APA, noting that Congress, "[i]n balancing conflicting needs for efficiency and employee protection, ... [chose to leave] 'personnel actions,' including reassignments, to administrative discretion." Broadway v. Block, 694 F.2d 979, 984 (5th Cir.1982). Other circuits have defined the scope of judicial review of CSRA personnel actions such as the reassignment at issue here in a similarly restrictive manner. ¹

This circuit has addressed the extent to which the CSRA forecloses judicial review of personnel actions in two cases: Braun v. United States, 707 F.2d 922 (6th Cir.1983), and Gilley v. United States, 649 F.2d 449 (6th Cir.1981). In Braun, we held that the CSRA provisions for the protection of "whistleblowers" against minor personnel actions, which were identical to the CSRA provisions protecting against marital status discrimination, were intended to be comprehensive, and to "preclude independent lawsuits by individual claimants." 707 F.2d at 925. The reasoning in that case focused specifically on the intent of Congress regarding whistleblowers, and did not address Congress' general intent with regard to judicial review of personnel actions. The plaintiff contends that the more expansive language of our decision in Gilley compels the opposite result where a reassignment on the basis of marital status discrimination is alleged. The plaintiff calls our attention to dicta in Gilley to the effect that passage of the CSRA did not eclipse the authority of a district court to exercise its "traditional equitable powers" by enjoining a prohibited personnel practice. 649 F.2d at 453. That conclusion was supported by reference to the admonition of the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), that "only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." We wrote in Gilley that the CSRA did not constitute clear and convincing Congressional intent to restrict the power of the federal courts to issue equitable relief under the "federal question" grant of jurisdiction, 28 U.S.C. Sec. 1331 (1976), particularly in view of the general doctrine disfavoring statutory repeal by implication. See TVA v. Hill, 437 U.S. 153, 190, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978); Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974).

Whether or not Braun and Gilley can be reconciled, and how their principles would control disposition of this case are questions that have been rendered largely academic by the recent decision of the Supreme Court in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). In Fausto, the plaintiff, a "nonpreference eligible" employee in the "excepted service" of the Department of the Interior sought to obtain back pay accumulated during an allegedly unwarranted suspension. After exhausting all administrative remedies available under the CSRA, the plaintiff brought suit in the Claims Court, alleging a violation of the Back Pay Act, 5 U.S.C. Sec. 5596, and basing jurisdiction on the Tucker Act, 28 U.S.C. Sec. 1491. The Court held that the CSRA, which afforded nonpreference eligibles in the excepted service no administrative or judicial review of the challenged adverse personnel action, deprived the courts of jurisdiction to hear the complaint under the Back Pay Act. The Court determined that Congress intended the CSRA to foreclose all review of the particular administrative action taken by the Department of the Interior. This understanding of Congressional intent was reached by closely examining the general purposes the CSRA was intended to serve, the text of that portion of the Act relevant to plaintiff's legal claim, and the overall structure of judicial review established by the CSRA. Fausto, 484 U.S. at 443-44, 108 S.Ct. at 671-72. Following the Court's lead, we dispose of Ryon's jurisdictional arguments by addressing each of these three considerations below.

A. The Language and Structure of the CSRA Regarding Judicial Review of Personnel Actions

The CSRA establishes two separate procedures for review of agency actions taken against preference eligible employees such as Ryon. Which of the two procedures is followed depends upon whether the action taken is relatively...