Wilder v. Prokop, 84-2540

Citation846 F.2d 613
Decision Date10 May 1988
Docket NumberNo. 84-2540,84-2540
PartiesJohn J. WILDER, Plaintiff-Appellant, v. Ruth T. PROKOP, Chairwoman of Merit Systems Protection Board of the United States of America; The Merit Systems Protection Board of the United States of America; Samuel R. Pierce, Jr., Secretary of the U.S. Department of Housing and Urban Development; Gerald J. Hannon, Deputy Regional Administrator and Acting Regional Administrator of the U.S. Department of Housing and Urban Development, individually, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

James L. Treece, Treece & Bahr, Littleton, Colo., for plaintiff-appellant.

Nancy E. Rice, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., was also on the brief), for defendants-appellees.

Before HOLLOWAY, Chief Judge, TACHA, Circuit Judge, and BROWN, District Judge *.

HOLLOWAY, Chief Judge.

The plaintiff-appellant, John J. Wilder, appeals from the district court's memorandum order and opinion which granted the defendants-appellees' motion for summary judgment, denied the plaintiff's motion for summary judgment, and dismissed with prejudice the complaint. The named appellees are Ruth T. Prokop, Chairwoman of the Merit Systems Protection Board of the United States; the Merit Systems Protection Board (MSPB); the United States Department of Housing and Urban Development (HUD) and Samuel R. Pierce, in his official capacity as the Secretary of HUD (collectively the "Government"). The appellant ("Wilder") filed a timely appeal. We affirm.

A. The Factual Background

In 1978, Wilder was employed by the Denver Branch of HUD. On April 7, 1978 he received notice of a Reduction-in-Force (RIF) caused by a reorganization announced by the Secretary. The plaintiff's position was abolished and Wilder was offered reassignment to a position at his GS-15 grade in Washington, D.C. II R.91-93. Wilder refused the assignment offered and also refused to "consider" a voluntary downgrade which would allow HUD to determine if Wilder could be assigned to lower grade positions in the Denver area. Id. at 89. Subsequently Wilder was separated from employment with HUD as the declination of the reassignment offer was final and the employing department was under no obligation to make another offer of placement.

The RIF notice stated that "You may appeal this action to the Civil Service Commission if you believe your rights have not been protected or that the instructions governing reduction-in force in FPM Chapter 351 have been incorrectly applied." Id. at 92, p 9. Wilder was informed that such appeal should be filed not later than 15 calendar days after the effective date of the RIF action, June 17, 1978. Wilder did not file an appeal, as described in the RIF notice, with the Civil Service Commission. This commission was replaced as the body to adjudicate appeals with the Merit Systems Protection Board (MSPB), pursuant to the Civil Service Reform Act of 1978. In this opinion we refer to this appeals body by its new form and name, the MSPB (or the "Board").

After his separation, Wilder obtained information which led him to believe that his removal from his position was the result of unlawful discrimination based on his political affiliation. On such information, Wilder filed an appeal with the MSPB on March 20, 1980. On July 8, the MSPB dismissed his appeal. Id. at 36-37. The MSPB Chief Appeals Officer found that "appellant did not submit an appeal within the 15-day limit, nor was he prevented by circumstances beyond his control from filing a timely appeal. Therefore, it is concluded that the appeal is not within the jurisdiction of the Merit Systems Protection Board." Id. at 37. The plaintiff then filed this complaint in the district court.

B. Procedural History

This case has a confused and protracted history. The original complaint was filed in 1980 and thereafter there occurred a period of inactivity on the part of the parties. Upon reactivation of the case, by the apparent agreement of the parties, the district court proceeded with Wilder's second amended complaint.

Wilder's complaint asserted three claims for relief. First, he charged that the MSPB acted erroneously, arbitrarily, and capriciously in refusing to hear his appeal and asked that the district court provide mandamus relief ordering the MSPB to hear his appeal on the merits. Second, Wilder asserted that HUD violated his constitutional and statutory rights in removing him from his position. Finally, he charged an individual HUD employee also violated Wilder's rights guaranteed under the federal constitution and laws. The district court dismissed the third claim after a hearing, and it is not an issue in this appeal.

In accordance with the district court's order, the parties filed cross-motions for summary judgment. At the conclusion of a hearing on the motions, the district court granted the Government's motion for summary judgment as to all claims; denied Wilder's motion; and ordered that the complaint be dismissed with prejudice. I R. 34. As to the first claim, the court said that there was no basis for finding that the decision of the MSPB was arbitrary and capricious in rejecting Wilder's appeal as untimely. IV R. 65-67. The court further rejected the second claim, pointing out that there was no judicial remedy in view of the comprehensive scheme created by Congress protecting federal employees and citing Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Id. at 64.

Because of complaints by Wilder that the second claim had not been briefed and argued, Wilder was given ten days to file a motion to reconsider and a brief. This motion was subsequently denied. Id. at 44. Wilder then took this appeal.

Wilder contends that the district court erred in dismissing the plaintiff's entire complaint on the defendants' motion for summary judgment; in dismissing plaintiff's complaint on the ground that the district court did not have jurisdiction to order mandamus relief; and in refusing to hear the merits of the plaintiff's second claim for relief, since HUD violated rights provided under the federal constitution and laws. The Government argues that the decision was proper with regard to all of plaintiff's claims.

We first consider the district court's jurisdiction and then discuss the other issues in turn.

A. Jurisdiction

The district court was concerned whether it could exercise jurisdiction over an appeal from an MSPB decision since the Civil Service Reform Act of 1978 (Reform Act) reserved such appeals for the Court of Claims or a United States Court of Appeals. 5 U.S.C. p 7703(b)(1). 1 The Reform Act was further amended in 1982 to reserve jurisdiction only to the United States Court of Appeals for the Federal Circuit. The district court held that it lacked jurisdiction in this action and, in case it could exercise jurisdiction, found on the merits that the Government should be granted summary judgment. See IV R. 38-44, 68-69. In the September 1984 hearing, the Government again argued that the district court lacked jurisdiction. Id. at 40-41.

Our review of the Act leads us to conclude that the district court had jurisdiction. The exclusive jurisdiction mandated by the Act, codified at 5 U.S.C. Sec. 7703(b)(1), became effective on January 11, 1979. The effect of this provision was considered by this court in Phillips v. Merit Systems Protection Board, 620 F.2d 217 (10th Cir.1980). In Phillips/MSPB, we held that the savings clause in the Reform Act made it inapplicable to cases instituted or administrative proceedings pending at the time of the effective date. Id. at 219; Pub.L. No. 95-454, Sec. 902(b), 92 Stat. 1111, 1224 (1978). According to the regulation promulgated to implement the clause, "An agency proceeding is considered to exist once the employee has received notice of the proposed action " (emphasis supplied). Phillips/MSPB, 620 F.2d at 219 (quoting 5 C.F.R. Sec. 120.191(b) (1979)). Wilder received notice of the HUD action--the RIF which would abolish his position--on April 7, 1978. Consequently, Wilder's case is subject to appeal and review under prior law, as we held in Phillips/MSPB.

Under prior law, jurisdiction lies with the appropriate district court or the Court of claims. Bush v. Lucas, 462 U.S. at 387 & n. 35, 103 S.Ct. at 2416 & n. 35; Phillips/MSPB, 620 F.2d at 219. The district court is an appropriate forum with jurisdiction where the agency action being challenged by the employee occurred prior to effective date of the Reform Act. Denton v. Merit Systems Protection Board, 768 F.2d 422, 424 (D.C.Cir.1985); Department of the Air Force v. Federal Labor Relations Authority, 775 F.2d 727, 733-34 (6th Cir.1985); Ellis v. Merit Systems Protection Board, 613 F.2d 49, 50 (3rd Cir.1980); Beals v. Merit Systems Protection Board, 636 F.2d 169, 171 (7th Cir.1980); Motley v. Secretary of the United States Army, 608 F.2d 122, 123 (5th Cir.1979); Kyle v. Interstate Commerce Commission, 609 F.2d 540, 542 n. 2 (D.C.Cir.1979); In re Christian, 606 F.2d 822, 823 (8th Cir.1979); see also S.Rep. No. 95-969, 95th Cong., 2d Sess. 63, reprinted in 1978 U.S.Code Cong. & Admin.News, 2723, 2785 (legislative history for Reform Act states merit employee cases currently lie in federal district courts).

The Supreme Court has clearly determined that subject-matter jurisdiction in these circumstances arises from 28 U.S.C. 1331 rather than from the APA which determines the scope of the review. The amendment of Sec. 1331(a) in 1976 removed the requirement of a specified amount in controversy and carried forward the jurisdictional grant as to "any action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity." Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977). Section 1331, "subject only to preclusion-of-review statutes created or retained by Congress, ... confer[s] jurisdiction...

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