Weaver v. U.S. Information Agency

• Decision Date: 09 July 1996
• Docket Number: No. 94-5406,94-5406
• Citation: 87 F.3d 1429
• Parties: , 65 USLW 2056, 11 IER Cases 1581 Carolyn WEAVER, Appellant, v. UNITED STATES INFORMATION AGENCY, Joseph Duffey, Director, USIA, The Voice of America, Richard Carlson, Director, VOA, United States Department of State, Warren Christopher, Secretary of State, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1429

87 F.3d 1429

318 U.S.App.D.C. 420, 65 USLW 2056,

11 IER Cases 1581

Carolyn WEAVER, Appellant, v. UNITED STATES INFORMATION AGENCY, Joseph Duffey, Director USIA, The Voice of America, Richard Carlson, Director, VOA United States Department of State, Warren Christopher Secretary of State, Appellees.

No. 94-5406.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 31, 1995.

Decided July 9, 1996.

Stephen M. Kohn, Washington, DC, argued the cause and filed the briefs, for appellant.

Elaine D. Kaplan, Washington, DC, argued the cause, for amicus curiae National Treasury Employees Union. With her on the brief were Gregory O'Duden and Barbara A. Atkin, Washington, DC.

R. Craig Lawrence, Assistant United States Attorney, argued the cause, for appellees. With him on the brief were Eric H. Holder, Jr., United States Attorney, and Carol B. Epstein, Assistant General Counsel, United States Information Agency.

Before: WALD, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Dissenting opinion filed by Circuit Judge WALD.

STEPHEN F. WILLIAMS, Circuit Judge:

Employees of the State Department, the United States Information Agency ("USIA"), and the Agency for International Development ("AID") are required to submit all speaking, writing, and teaching material on matters of "official concern" to their employers for review prior to publication. 3 Foreign Affairs Manual ("FAM") § 628.2. Material of "official concern" is broadly defined to include any material related to the employee's agency or U.S. foreign policy, as well as any material that "reasonably may be expected to affect the foreign relations of the United States." Id. Appellant Carolyn Weaver, a part-time employee of the Voice of America ("VOA"), a unit of USIA, published an article in the Columbia Journalism Review in 1988 without submitting it for prepublication review. The article, "When the Voice of America ignores its charter--An insider reports on a pattern of abuses," attacked VOA over a range of issues, from allegations that it communicated "coded signals" to Solidarity activists (by playing a song from a Rod Stewart album) to more conventional assertions of politicization. She and USIA agree that the article contained material of "official concern." An agency official read her an oral admonishment for her failure to honor the prepublication review requirement.

Even before receiving the admonishment, Weaver filed suit challenging the review procedure on First Amendment grounds and seeking declaratory and injunctive relief. That claim remains as Count I of her amended (post-admonishment) complaint. Count II attacks the oral admonishment. Count III in part repeats Count II's demand for relief from the oral admonishment, and, together with Count IV, seeks documents and fee waivers under the Freedom of Information Act. Weaver evidently secured at least some of her FOIA objectives and does not here pursue any unfulfilled ones. The district court granted the government's motion for summary judgment on Weaver's remaining claims, finding that the review requirement did not impermissibly infringe her free speech rights. Weaver v. Wick, No. 88-1790 (D.D.C. Nov. 18, 1994).

The threshold issue on appeal is whether Weaver's failure to exhaust her administrative remedies for the oral admonishment deprives the court of jurisdiction. We find that it does as to Counts II and III of the complaint, and thus we affirm the dismissal of those counts without reaching their merits. Count I, however, stands independently of the oral admonishment as a general First Amendment challenge to the prepublication review scheme, and therefore it raises no exhaustion problem. On the merits of Count I, we find that the review requirement, which we interpret narrowly to avoid constitutional difficulties, does not violate the First Amendment.

I. Exhaustion Requirement

A. Availability of Administrative Remedies.

Non-judicial remedies for adverse personnel decisions by government employers stem from two sources: the Civil Service Reform Act ("CSRA") of 1978, Pub.L. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), and provisions of collective bargaining agreements affording grievance rights to covered employees (the latter strongly bolstered by the CSRA itself). See Suzal v. Director, USIA, 32 F.3d 574, 578-82 (D.C.Cir.1994). In this case only the CSRA's direct remedies are relevant; the collective bargaining agreement covering Weaver and other members of the bargaining unit of Local 1812 of the American Federation of Government Employees expressly exempts "admonishments" from the category of personnel actions giving rise to grievance rights. Negotiated Labor-Management Agreement Between United States Information Agency and American Federation of Government Employees, Local 1812, Art. XXIII, § 2(b).

The CSRA provides remedies for any "prohibited personnel practice." Such practices include "tak[ing] or fail[ing] to take any ... personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 [of title 5]." 5 U.S.C. §§ 2302(a)(1) & (b)(11). Among the merit system principles in § 2301 is the requirement that all employees be treated "with proper regard for their privacy and constitutional rights." Id. § 2301(b)(2). So it is a "prohibited personnel practice" to take a personnel action that unconstitutionally burdens an employee's speech. Suzal, 32 F.3d at 580; Spagnola v. Mathis, 859 F.2d 223, 225 & n. 3 (D.C.Cir.1988).

It also appears that an admonishment is a "personnel action" (and thus the sort of act that can qualify as a "prohibited personnel practice") as the term has been interpreted by the Merit Systems Protection Board ("MSPB"), the administrative body charged with implementing the CSRA. The statute defines "personnel action" to include "an action under chapter 75 of this title [governing dismissals, suspensions, grade or pay reductions, and furloughs] or other disciplinary or corrective action." 5 U.S.C. § 2302(a)(2)(iii) (emphasis added). The MSPB at one time applied the principle of ejusdem generis to read "other disciplinary or corrective action" as limited to acts "in the nature of a Chapter 75 action," i.e., acts of a similar type and seriousness. Caddell v. Dep't of Justice, 52 M.S.P.R. 529, 532-33 (1992). Now, however, it views admonishments as "personnel actions" and apparently does not distinguish between oral and written ones. Cochran v. Dep't of Veterans, 67 M.S.P.R. 167, 174 (1995) (letter of admonishment); Gonzales v. Dep't of Hous. & Urban Dev., 64 M.S.P.R. 314, 319 (1994) ("an official reprimand"). The MSPB's interpretation is entitled to deference. Lovshin v. Dep't of the Navy, 767 F.2d 826, 840 (Fed.Cir.1985). Thus, if the review requirement giving rise to Weaver's oral admonishment is unconstitutional, as she says, then the admonishment is a "prohibited personnel practice."

Because the oral admonishment is not one of the relatively drastic personnel actions that entitle the affected employee to appeal to the MSPB, compare 5 U.S.C. §§ 4303(e), 7513(d) (permitting appeal in the case of dismissal and other serious actions), Weaver's remedy under the CSRA consists of the right to file a complaint with the Office of Special Counsel ("OSC"). Id. § 1214(a)(1)(A). If the OSC finds "reasonable grounds" to believe that a prohibited personnel practice has occurred, it must report its determination to the agency involved and the MSPB. Id. § 1214(b)(2)(B). If the agency fails to correct the practice within a reasonable period of time, then OSC may--but need not--seek corrective action by the MSPB. Id. § 1214(b)(2)(C). The OSC is required to act on allegations of prohibited personnel practices within 240 days, with an exception for situations in which the person making the allegation agrees to an extension of time. Id. § 1214(b)(2)(A).

Although the CSRA gives the OSC discretion whether to seek corrective action, our circuit's law affords employees in Weaver's position a right to federal court review of their constitutional claims at the end of the line. See, e.g., Spagnola, 859 F.2d at 229-30; Griffith v. FLRA, 842 F.2d 487, 494-95 (D.C.Cir.1988); cf. Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632 (1988) (general presumption of reviewability for constitutional challenges). But cf. Saul v. United States, 928 F.2d 829, 843 & n. 27 (9th Cir.1991) (holding unreviewable a constitutional claim intertwined with a CSRA claim, and noting the departure of this circuit from other circuits' rulings on the issue); Pinar v. Dole, 747 F.2d 899, 909-12 (4th Cir.1984) (similar). But first the plaintiff must exhaust available administrative remedies. Steadman v. Governor, United States Soldiers' & Airmen's Home, 918 F.2d 963, 967 (D.C.Cir.1990). Weaver, in declining to challenge her oral admonishment with the OSC, indisputably failed to satisfy this requirement. The question is the effect of that failure as to each of the counts in her complaint.

B. Failure To Exhaust.

Under the CSRA, exhaustion of administrative remedies is a jurisdictional prerequisite to suit. Id. at 966-68; cf. United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (holding that the CSRA, in failing to provide explicitly for administrative or judicial remedies for certain decisions affecting nonpreference excepted service employees, implicitly bars judicial remedies). The exhaustion requirement clearly applies to Weaver's claim for relief from the oral admonishment (which as we have seen is remediable under the CSRA), and thus Counts II and III of her complaint must be dismissed for want of jurisdiction. The exhaustion requirement generally applies as well to claims arising directly under the Constitution (such as Weaver's...