Taydus v. Cisneros, Civ. A. No. 94-10326-RCL.

Citation902 F. Supp. 288
Decision Date25 August 1995
Docket NumberCiv. A. No. 94-10326-RCL.
PartiesThomas S. TAYDUS, Plaintiff, v. Henry CISNEROS, Secretary of the United States Department of Housing and Urban Development, Defendant.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

COPYRIGHT MATERIAL OMITTED

Norma Roth, Jackman & Roth, Boston, MA, for Plaintiff.

Susan M. Poswistilo, United States Attorney's Office, Boston, MA, for Defendant.

LINDSAY, District Judge.

Report and Recommendation accepted.

ORDER RE: PLAINTIFF'S MOTION FOR SANCTIONS FOR WITHHOLDING DOCUMENTS IN DISCOVERY (DOCKET ENTRY # 50)

REPORT AND RECOMMENDATION RE: DEFENDANT'S AMENDED MOTION TO DISMISS (DOCKET ENTRY ## 7 & 41)

August 25, 1995

BOWLER, United States Magistrate Judge.

Plaintiff Thomas S. Taydus ("plaintiff") moves for sanctions against defendant Henry Cisneros ("defendant"), Secretary of the United States Department of Housing and Urban Development, for withholding various documents during discovery. (Docket Entry # 50). After conducting a hearing on August 2, 1995, this court took the motion for sanctions (Docket Entry # 50) under advisement. (Docket Entry # 62).

Also pending before this court is defendant's amended motion to dismiss (Docket Entry ## 7 & 41) which plaintiff opposes (Docket Entry # 61). This opinion initially addresses the amended motion to dismiss, including the procedural posture of the case, before turning to the motion for sanctions.

I. DEFENDANT'S AMENDED MOTION TO DISMISS (DOCKET ENTRY ## 7 & 41)

On May 9, 1995, this court issued a Report and Recommendation with respect to defendant's motion to dismiss (Docket Entry # 7). (Docket Entry # 39). The Report and Recommendation recommended dismissal of: (1) The Veterans Readjustment Act ("VRA"), 38 U.S.C. § 4214, claim in Count I; (2) The Veterans Preference Act ("VPA"), 5 U.S.C. § 2108, claim in Count II; and (3) the public policy claim in Count VII. This court further permitted plaintiff to bring the claims in Count I and II which are based on section 791 of the Rehabilitation Act ("the Rehabilitation Act"), 29 U.S.C. §§ 701 et seq., in Count IV, a count which pertains to The Rehabilitation Act. (Docket Entry # 39, n. 4 & p. 20). Accordingly, this court recommended dismissal of counts I, II and IV.

This court reasoned that plaintiff had a cause of action under The Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. ("APA"), albeit subject to the limited relief afforded under the statute. (Docket Entry # 39, pp. 10-12). In light of the APA cause of action brought in Count III, this court declined to imply a private right under the VPA, the VRA or public policy. (Docket Entry # 39, pp. 12-14). Hence, this court found it unnecessary to address defendant's argument that the comprehensive nature of the Civil Service Reform Act ("CSRA"), codified in various sections of Title 5 of the United States Code, precluded judicial review of the VPA, the VRA and the public policy claims in counts I, II and IV (Docket Entry # 7, pp. 6-9). In so finding, this court construed defendant's motion to dismiss and supporting papers as not seeking to dismiss the APA count on the basis that the CSRA precluded judicial review of the APA claim. (Docket Entry # 39, n. 6 & 11).

The district judge accepted the recommendation over defendant's objections.1 Defendant objected to this court's recommendation, in part, on the basis of this court's conclusion that defendant's motion to dismiss did not seek to dismiss the APA claim in Count III due to the CSRA's preclusive effect. In addition to filing objections to the Report and Recommendation, defendant filed a motion to amend the motion to dismiss to raise the argument that the CSRA precludes judicial review of the APA claim for reasons stated in the objections to the Report and Recommendation. (Docket Entry # 41). The district judge allowed the motion to amend the motion to dismiss and referred the amended motion to dismiss to this court for a recommendation.

The issue of the preclusive effect of the CSRA, particularly as it applies to plaintiff's APA claim, is therefore ripe for review. This court's previous summary of the facts in the verified complaint applies to the amended motion to dismiss and therefore need not be repeated at length.

Plaintiff, a 40% service connected, disabled Vietnam veteran, applied for one of 11 advertised temporary positions for management information specialists in a regional office of the United States Department of Housing and Urban Development ("HUD").

HUD rejected plaintiff's application, in part, because he had not taken the Administrative Careers with America Examination ("the ACWA exam"). Regulations promulgated under 5 U.S.C. § 3112, however, allow HUD officials to waive the ACWA exam for preference eligible veterans with a service connected disability or veterans of the Vietnam era such as plaintiff. 5 C.F.R. § 316.402(b)(4) & (5). Plaintiff advised a HUD official about the relevant regulations allowing for the noncompetitive appointment of preference eligible disabled veterans such as plaintiff. Notwithstanding this advice, the HUD official continued to insist that plaintiff take the ACWA exam.

Plaintiff therefore complied with HUD's mandate and took the ACWA exam. After passing the exam, plaintiff applied for another position at HUD. Again, despite his qualifications and veterans status, defendant awarded the position to another candidate.

Plaintiff's APA claim revolves around HUD's requirement that plaintiff take the ACWA exam. Plaintiff contends that defendant improperly required plaintiff to take the ACWA exam despite regulations allowing a waiver for preference eligible, service connected, disabled veterans and Vietnam era veterans. Moreover, after being advised of the pertinent regulations, defendant purportedly failed to correct its misapplication of the regulations at issue. As previously determined, an agency's failure to consider applicable regulations and its failure to consider plaintiff's eligibility for a waiver of the ACWA exam in light of his status as a disabled or Vietnam era veteran is reviewable under the APA.

DISCUSSION

"The CSRA was meant to provide a comprehensive framework for personnel policies governing federal employees." Roth v. United States, 952 F.2d 611, 614 (1st Cir.1991); accord Montplaisir v. Leighton, 875 F.2d 1, 2 (1st Cir.1989) (noting that CSRA formed part of "legislation which `comprehensively overhauled' the federal civil service"). Prior to the 1978 enactment of the CSRA, the civil service system consisted of an "`outdated patchwork of statutes and rules built up over almost a century.'" United States v. Fausto, 484 U.S. 439, 444, 108 S.Ct. 668, 672, 98 L.Ed.2d 830 (1988). A leading purpose of the CSRA was to replace this patchwork system "with an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration." United States v. Fausto, 484 U.S. at 445, 108 S.Ct. at 672. The resulting statute consists of "`an elaborate remedial scheme ... constructed step by step, with careful attention to conflicting policy decisions.'" Montplaisir v. Leighton, 875 F.2d at 2 (quoting Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 2417, 76 L.Ed.2d 648 (1983)). It is also worth recognizing that the management of federal personnel is "an area peculiarly within the ken and concern of Congress." Harrison v. Bowen, 815 F.2d 1505, 1515 (D.C.Cir. 1987) (also stating that interpolating remedies Congress did not provide only leads to error).

The Supreme Court therefore jealously guards the CSRA from "inconcinnous judicial incursions" into the statute's carefully constructed remedial scheme. Montplaisir v. Leighton, 875 F.2d at 3 (citing Fausto and Bush). Numerous circuit courts follow this guidance and find that the CSRA bars a wide array of claims and, indeed, even precludes Bivens-type constitutional claims in certain circumstances.2 See, e.g., Robbins v. Bentsen, 41 F.3d 1195, 1202-1203 (7th Cir.1994) (CSRA, which provides claimant opportunity to file complaint with Office of Special Counsel, precludes Bivens action); Steele v. United States, 19 F.3d 531, 532-533 (10th Cir. 1994) (CSRA prohibits former federal employee's claims for wrongful termination, breach of covenant of good faith and fair dealing, and intentional and reckless infliction of emotional distress); Jones v. Tennessee Valley Authority, 948 F.2d 258, 264 (6th Cir.1991) (CSRA precludes Bivens action for preference eligible veteran); Volk v. Hobson, 866 F.2d 1398, 1401 (Fed.Cir.), cert. denied, 490 U.S. 1092, 109 S.Ct. 2435, 104 L.Ed.2d 991 (1989) (CSRA bars implied private right of action for nonpreference eligible, excepted service employee); Spagnola v. Mathis, 859 F.2d 223, 228-230 (D.C.Cir.1988) (CSRA precludes federal employment applicant from bringing Bivens action for conduct alleging prohibited personnel practice); Schrachta v. Curtis, 752 F.2d 1257, 1260 (7th Cir.1985) (exhaustive and complex remedial scheme of CSRA prevents implying private right of action); Bolivar v. Director of the FBI, 846 F.Supp. 163, 168-169 (D.P.R.1994), aff'd, 45 F.3d 423 (1st Cir.1995) (CSRA precludes Bivens and state law claims challenging federal personnel actions); see also Morales v. Ramirez, 906 F.2d 784, 786 (1st Cir.1990) (recognizing comprehensive and integrated nature of CSRA but declining to address whether statutory scheme bars Bivens suit).

Claims under the APA, which expressly excludes judicial review where provided for under another statute, 5 U.S.C. § 701(a)(1), fare no better under the CSRA. See, e.g., McAuliffe v. Rice, 966 F.2d 979, 980-981 (5th Cir.1992) (CSRA precludes APA claim despite greater remedies afforded under APA); Stephens v. Department of Health and Human Services, 901 F.2d 1571, 1575-1576 (11th Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990) (CSRA...

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