Stephens v. Department of Health and Human Services, Nos. 89-8550

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before KRAVITCH; ALDISERT
• Citation: 901 F.2d 1571
• Parties: James N. STEPHENS, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Secretary, Defendant-Appellee. James N. STEPHENS, Plaintiff-Appellant, v. Terry S. COLEMAN, Isabel P. Dunst, Defendants-Appellees.
• Docket Number: 89-8551,Nos. 89-8550
• Decision Date: 23 May 1990

Page 1571

901 F.2d 1571 James N. STEPHENS, Plaintiff-Appellant,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Secretary,
Defendant-Appellee.
James N. STEPHENS, Plaintiff-Appellant,
v.
Terry S. COLEMAN, Isabel P. Dunst, Defendants-Appellees. Nos. 89-8550, 89-8551. United States Court of Appeals,
Eleventh Circuit. May 23, 1990.

Page 1572

Beverly B. Bates, Bates, Baum and Landey, Atlanta, Ga., plaintiff-appellant.

Marleigh D. Dover, William Kanter, U.S. Dept. of Justice, Civil Div., Washington, D.C., for Department of Health and Human Services.

Robert L. Barr, U.S. Atty., Sandra R. Ganus, Nina Loree Hunt, Atlanta, Ga., John S. Koppel, Marleigh D. Dover, Barbara L. Herwig, Robert D. Kamenshine, Dept. of Justice, Civil Div., Washington, D.C., for Terry Coleman and Isabel P. Dunst.

Appeals from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, Circuit Judge, and RONEY ^* and ALDISERT ^**, Senior Circuit Judges.

ALDISERT, Senior Circuit Judge:

The major question presented in these appeals by James N. Stephens, Deputy Regional Attorney of the Department of Health and Human Services (HHS), who was an unsuccessful candidate for the office of Regional Attorney, is whether the district court properly concluded that the grievance procedure set forth in the Civil Service Reform Act of 1978 (CSRA), codified and amended in various sections of 5 U.S.C., precludes federal court review of an alleged "prohibited personnel practice," where the Office of Special Counsel declines to petition the Merit Systems Protection Board for consideration of the complaint. Appellant also alleges the district court erred by: 1) refusing to compel the HHS to turn over records pursuant to a Freedom of Information Act request

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(FOIA); 2) erroneously approving HHS' failure to grant appellant a veterans' preference; and 3) failing to exercise personal jurisdiction over two government employees. Because we hold that the administrative procedure set forth in the CSRA and approved in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) precludes judicial review in this case, and that the collateral claims asserted have no merit, we affirm the judgment of the district court.

Jurisdiction was proper in the trial court based on 28 U.S.C. Sec. 1331. We have jurisdiction on appeal pursuant to 28 U.S.C. Sec. 1291. The appeal was timely filed under Rule 4(a), F.R.A.P.

Stephens' substantive claims based on his non-selection and all allegations of injustice stemming from the grievance procedure were dismissed for failure to state a claim. The standard of review for a motion to dismiss is the same for the appellate court as it was for the trial court. On a motion to dismiss, the facts stated in appellant's complaint and all reasonable inferences therefrom are taken as true. Delong Equipment Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir.1988).

The district court granted summary judgment as to the FOIA request. When this court reviews the grant of a motion for summary judgment, all the facts and inferences therefrom are viewed in the light most favorable to the appellant. Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983).

Whether the district court correctly determined that Stephens was not subject to a veterans' preference is a mixed question of law and fact. As to the fact portion of the mix, we apply the clearly erroneous rule. As to the legal component we will apply the plenary review standard. See United States v. Wilson, 894 F.2d 1245 (11th Cir.1990).

I.

In May of 1985, the HHS Office of General Counsel (OGC) announced a vacancy for the position of Regional Attorney (now called Chief Counsel), Region IV, Atlanta, Georgia. Stephens, who had been acting Regional Attorney for seven months, applied for the position. He asserts he was extremely qualified for the position, having been ranked number three in his class at Wake Forest Law School, a Deputy Regional Attorney for 11 years and having been assigned numerous important projects during his 21 years at HHS. Mr. Stephens was notified on August 14, 1985, that Mr. Granger had been appointed to the position.

A.

In September of 1985, appellant filed a grievance with the OGC, alleging that the selecting officials had not followed HHS or federal regulations in selecting the Regional Attorney. While his grievance was pending, appellant sought various documents relating to the appointment of Granger as Regional Attorney through a Freedom of Information Act (FOIA) request.

Appellant filed a second grievance with OGC on October 25, 1985, alleging additional errors in the selection process. This grievance was rejected on November 19, 1985. Appellant's subsequent request for an investigation and hearing by another hearing officer was rejected on January 30, 1986. While these grievances were pending, appellant filed a discrimination complaint with HHS. The discrimination complaint was based on the same facts as the two prior grievances. Appellant failed to notify the grievance official of the pending HHS grievance. HHS, accordingly, refused to reconsider dismissal of the grievance.

Stephens subsequently filed a grievance with the Office of Special Counsel (OSC) of the Merit System Protection Board (MSPB), a special independent ombudsman-type official. 5 U.S.C. Sec. 1205. The OSC concluded that the regulations claimed to have been violated by HHS did not apply to Stephens because he was an exempt employee. Additionally, the OSC refused to address the discrimination issues alleged because it was office policy to leave those issues to determination by the Equal Employment

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Opportunity Commission. The OSC, therefore, declined to petition the Merit Systems Protection Board for consideration of Stephens' complaint. By operation of the statute describing the Office of Special Counsel, all review ended when that office declined to petition the Board for consideration of the grievance. 5 U.S.C. Sec. 1214.

B.

On August 26, 1986, appellant filed an action in district court challenging HHS' decision not to promote him, the rejection of his grievance, and the failure of HHS to release all documents requested in his FOIA request (complaint I). He alleged that: 1) HHS had violated the Administrative Procedure Act (APA) by not complying with various statutes and regulations during the selection process and the grievance procedure; 2) he was denied due process by HHS' failure to grant him a veterans' preference; 3) HHS violated his due process and equal protection rights; and 4) HHS improperly withheld information requested pursuant to the FOIA. The complaint was amended to allege that appellant had been penalized in promotion because he refused to provide derogatory information about his former supervisor. He also added a claim for damages to his reputation by non-selection for the position of Regional Attorney.

In August 1987, he filed a companion case against the individual defendants, Coleman and Dunst (complaint II), seeking essentially the same relief only to the extent relief is determined to be unavailable against defendant in complaint I. The complaint of August 1987 required the court to exercise personal jurisdiction over Mr. Coleman and Ms. Dunst based on their participation in appellant's non-selection. Appellant asserted a Bivens claim against the two defendants in their individual capacity for their alleged deprivation of his constitutional entitlement to a veterans' preference. He again argued that he was entitled to a veterans' preference.

On April 5, 1989, the district court dismissed the promotion and grievance counts and granted appellee's motion for summary judgment on the FOIA claim in complaint I. The court held that the Civil Service Reform Act provided the exclusive remedy for the personnel actions alleged. The court did review the claim as to the veterans' preference but concluded that the preference was only available for initial appointment or retention of job. Because the position of Regional Attorney would have been a promotion for Stephens, a veterans' preference was not available. Stephens v. Secretary, Dep't of Health and Human Servs., No. 1:86-CV-1875-HTW, at 13, (April 5, 1989) [hereinafter Stephens I ]. As to the FOIA claims, the court held that appellant had been provided with the information most relevant to his non-selection and that the additional material was properly withheld pursuant to 5 U.S.C. Secs. 552(b)(5) and (6). Stephens I.

The district court dismissed complaint II for lack of personal jurisdiction and failure to state a claim. The...