J. Mahoney v. Shaun Donovan , 721 F.3d 633 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 10, 2013 Decided June 28, 2013
No. 12-5016
J. JEREMIAH MAHONEY, AN ADMINISTRATIVE LAW JUDGE AT
THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
APPELLANT
v.
SHAUN DONOVAN, SECRETARY OF THE UNITED STATES
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND
JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01703)
Michael F. Williams argued the cause for appellant. With
him on the briefs was Steven A. Myers. John F. Karl Jr. entered
an appearance.
Ryan C. Morris, Francis A. Vasquez Jr., and Leah E.
Witters were on the brief for amici curiae Federal
Administrative Law Judges Conference, et al. in support of
appellant.
2
Addy R. Schmitt, Assistant U.S. Attorney, argued the cause
for appellees. With her on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: This is an appeal from
the judgment of the district court dismissing, for lack of
standing, J. Jeremiah Mahoney’s complaint. We affirm, but on
different grounds.
Mahoney is an administrative law judge—an ALJ—at the
U.S. Department of Housing and Urban Development. He
brought this action alleging that the agency had interfered with
his decisional independence and thereby violated the
Administrative Procedure Act. His complaint alleged that his
supervisor, David Anderson, had “failed to consistently assign
cases to him in a rotating manner” and had instead “selectively
assigned cases to judges based upon political considerations [or]
the Secretary’s perceived interests”; that Anderson had engaged
in ex parte communications with a party in a case pending
before him without his knowledge or consent; that the agency
had a practice of sending notices of election in Fair Housing Act
cases to the Justice Department before the administrative law
judges officially released the notices to other parties, thereby
providing the Justice Department with advance notice of cases
soon to be filed in district court; that Anderson had prevented
the docket clerk from providing docket numbers for certain
cases assigned to him and other administrative law judges; and
that the agency had “denied legal research resources” to the
administrative law judges for more than a month. ALJ Mahoney
3
further alleged that the Office of Personnel Management had
failed to protect his decisional independence.1
We need not decide whether the district court correctly
dismissed ALJ Mahoney’s claims for lack of standing. In our
view, the Civil Service Reform Act of 1978, Pub. L. No. 95-454,
92 Stat. 1111 (codified as amended in scattered sections of 5
U.S.C.), deprived the district court of subject-matter jurisdiction
over the complaint. See Graham v. Ashcroft, 358 F.3d 931,
935–36 (D.C. Cir. 2004).
The Civil Service Reform Act governs federal employment.
“It prescribes in great detail the protections and remedies
applicable to [personnel actions], including the availability of
administrative and judicial review.” United States v. Fausto, 484
U.S. 439, 443 (1988). A number of provisions, originally
enacted in § 11 of the Administrative Procedure Act, see
Ramspeck v. Fed. Trial Exam’rs Conference, 345 U.S. 128,
131–33 (1953), and reaffirmed (implicitly or explicitly) in the
Civil Service Reform Act, are designed to safeguard the
decisional independence of administrative law judges. For
example, administrative law judges are to be assigned cases in
1
ALJ Mahoney also asserted claims of retaliation and a hostile
work environment under the Rehabilitation Act, the Americans with
Disabilities Act, and Title VII of the Civil Rights Act of 1964. The
district court granted summary judgment for the defendants on two of
ALJ Mahoney’s retaliation claims for failure to exhaust administrative
remedies, and dismissed the remaining retaliation and hostile-
work-environment claims for failure to state a claim. See Mahoney v.
Donovan, 824 F. Supp. 2d 49, 57–63 (D.D.C. 2011). A panel of this
court summarily affirmed the district court’s judgment with respect
to those claims. See Mahoney v. Donovan, No. 12-5016, 2012 WL
3243983 (D.C. Cir. Aug. 7, 2012) (unpublished order). Only ALJ
Mahoney’s claims of interference with his decisional independence are
at issue here.
4
rotation “so far as practicable.” 5 U.S.C. § 3105. Although
administrative law judges are agency employees, the Office of
Personnel Management determines their compensation. See id.§ 5372. And administrative law judges are exempt from agency
performance-appraisal systems. See id. §§ 4301(2)(D), 4302. An
agency may remove, or take certain other specified “adverse
actions” against, an administrative law judge only if the Merit
Systems Protection Board first determines, after an opportunity
for a hearing, that there is good cause for such action. See id.
§ 7521.2 The Board’s decision may be appealed to the Court of
Appeals for the Federal Circuit. See id. § 7703(a), (b)(1). Other
personnel actions that are alleged to violate the merit-systems
principles of the Civil Service Reform Act, see id. § 2301, or
otherwise to be improperly motivated—what the Act calls
“prohibited personnel practices,” id. § 2302—are to be
investigated by the Office of Special Counsel. See id. § 1214;
Gray v. Office of Pers. Mgmt., 771 F.2d 1504 (D.C. Cir. 1985).3
2
The term “adverse actions” does not appear in the text of § 7521
but in the heading for chapter 75, in which § 7521 is found. The
actions covered under § 7521 are removal, suspension, reduction in
grade or pay, and a furlough of 30 days or less. See 5 U.S.C.
§ 7521(b).
3
A “personnel action” means an appointment; a promotion; a
disciplinary or corrective action; a transfer or reassignment; a
reinstatement; a restoration; a reemployment; a performance
evaluation; a decision concerning pay, benefits, or awards, or under
certain circumstances, concerning education or training; a decision to
order psychiatric testing or examination; the implementation or
enforcement of a nondisclosure policy; and “any other significant
change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302(a)(2)(A).
The Act sets forth “prohibited personnel practices”—an agency
official may not discriminate against an employee; consider a
recommendation regarding a personnel action that is based on
5
The Act establishes the “exclusive . . . remedial regime for
federal employment and personnel complaints,” Nyunt v.
Chairman, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C.
Cir. 2009), and we have repeatedly held that federal
employees—including administrative law judges—“may not
circumvent the Act’s requirements and limitations by resorting
to the catchall [Administrative Procedure Act] to challenge
agency employment actions.” Grosdidier v. Chairman, Broad.
Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009); see also
Filebark v. U.S. Dep’t of Transp., 555 F.3d 1009 (D.C. Cir.
2009); Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005);
Graham, 358 F.3d 931; Gray, 771 F.2d 1504; Carducci v.
Regan, 714 F.2d 171 (D.C. Cir. 1983).4 The Act precludes suit
under the Administrative Procedure Act even when the claim
concerns “a type of personnel action” the Act does not
cover—that is, even when the Act provides no relief for the
complained-of employment action. Filebark, 555 F.3d at 1013(internal quotation marks omitted).
improper factors; coerce political activity or retaliate against an
employee for refusing to engage in political activity; obstruct anyone
from competing for employment or encourage a candidate to withdraw
from competition; grant a preference or advantage not authorized by
law; engage in nepotism; retaliate against an employee for
whistleblowing or for exercising a grievance or appeal right;
knowingly violate the preference rights of a veteran; implement or
enforce a nondisclosure policy that does not contain certain specified
language; or take any other personnel action that violates laws, rules,
or regulations implementing the merit-system principles. See id.§ 2302(b).
4
The Act preserves the rights of employees to bring suit under
Title VII and other federal anti-discrimination laws, see 5 U.S.C.
§ 2302(d); Nyunt, 589 F.3d at 448, and therefore did not preclude ALJ
Mahoney’s retaliation and hostile-work-environment claims.
6
ALJ Mahoney recognizes as much, but asserts that the Act
does not preclude claims that do not concern “personnel
actions.” Pointing to the Supreme Court’s statement that “certain
actions by supervisors against federal employees, such as
wiretapping, warrantless searches, or uncompensated takings,
would not be defined as ‘personnel actions’ within the statutory
scheme,” Bush v. Lucas, 462 U.S. 367, 385 n.28 (1983); see also
Stewart v. Evans, 275 F.3d 1126, 1130 (D.C. Cir. 2002), he
asserts that not all workplace claims challenge “personnel
actions” within the meaning of the Act. He contends that his
claims “are so far afield from the types of claims that are
cognizable under the [Act] that the [Act] does not preempt
them.” Appellant’s Reply Br. 22. His claims, he argues, do
“‘not concern his employment status, compensation, job
responsibilities, or even his working conditions.’” Id. at 24
(quoting Mahoney, 824 F. Supp. 2d at 65). We disagree.
The Act defines “personnel action” to include any
“significant change in duties, responsibilities, or working
conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). ALJ Mahoney
challenges four sets of actions: (1) the selective assignment of
cases on the basis of political considerations or the Secretary’s
perceived interests; (2) the failure to provide docket numbers
necessary for the administrative law judges to manage their
cases, as well as to provide access to legal-research resources;
(3) unauthorized ex parte communications between his
supervisor and a litigant appearing before him; and (4) the
practice of providing the Justice Department with advance
warning of notices of election in certain cases. We think these
actions affect “working conditions” and thus fall within the
scope of a “personnel action” under the Act.
The selective assignment of cases affects the number or
type of cases an administrative law judge will receive. That
strikes us as a working condition. Moreover, the requirement
7
that administrative law judges “be assigned to cases in rotation
so far as practicable” appears in 5 U.S.C. § 3105, the provision
governing the appointment of administrative law judges and
providing that they “may not perform duties inconsistent with
their duties and responsibilities as administrative law judges.”
The appointment of an administrative law judge is a “personnel
action,” id. § 2302(a)(2)(A)(i), as is a significant change in
“duties” or “responsibilities,” id. § 2302(a)(2)(A)(xii). This
strongly suggests that the assignment of cases is also a personnel
action under the Act.
Similarly, the failure to provide docket numbers and the
failure to provide access to legal-research resources affect the
ability of administrative law judges to do their jobs efficiently
and effectively. In that respect, these actions affect working
conditions.
It is perhaps less clear that the ex parte communications and
the advance warning of notices of election concern working
conditions. But ALJ Mahoney alleges that these actions
interfered with his decisional independence. We believe
“working conditions” can and should be read broadly enough to
include such actions. The degree of independence of an
administrative law judge—the extent to which an administrative
law judge may “exercise[] his independent judgment on the
evidence before him, free from pressures by . . . officials within
the agency,” Butz v. Economou, 438 U.S. 478, 513
(1978)—certainly sounds like a working condition. Accordingly,
to the extent the complained-of actions are alleged to interfere
with ALJ Mahoney’s decisional independence, they may be said
to affect his working conditions.
At one time, the Merit Systems Protection Board took the
position that an administrative law judge could be
“constructively removed” under 5 U.S.C. § 7521 by agency
8
actions that have “‘a pernicious effect’” on the administrative
law judge’s “‘qualified independence.’” Sannier v. Merit Sys.
Prot. Bd., 931 F.2d 856, 858 (Fed. Cir. 1991) (quoting Doyle, 29
M.S.P.R. 170, 175 (1985)); see also 62 Fed. Reg. 48,449, 48,455
(Sept. 16, 1997) (interim rule) (codifying the Doyle rule in 5
C.F.R. § 1201.142).5 The Board later decided that § 7521 could
reasonably be read to apply “only to cases of actual separation
from employment” as an administrative law judge, and revised
the regulation “to repeal the Doyle rule.” 70 Fed. Reg. 48,081,
48,081 (Aug. 16, 2005). The Board asserted that under the Doyle
rule, “an agency would have to first seek the Board’s
permission, with the opportunity for a full evidentiary hearing,
every time it wants to take actions . . . which involve such things
as case processing matters and training requirements.” Tunik v.
Soc. Sec. Admin., 93 M.S.P.R. 482, 492 (2003), vacated on other
grounds, 407 F.3d 1326 (Fed. Cir. 2005).6 “We cannot believe,”
the Board wrote, “that this sort of micromanagement, and the
likely slowdown in the agency’s work that it would cause, is
what Congress intended when it used the word ‘removal’ in 5
U.S.C. § 7521.” Id.7
5
The Board adopted as final the interim rule. See 63 Fed. Reg.
42,685, 42,686 (Aug. 11, 1998).
6
Tunik, an administrative law judge with the Social Security
Administration, alleged that the acting regional chief administrative
law judge had interfered with his decisional independence by
instructing that one of his decisions, remanding a disability claim to
the state agency, be prevented from issuing and by directing that the
case be transferred. (The decision ultimately was issued with a minor
change.) After ALJ Tunik remanded another case to the state agency
on the same grounds, he was informed that the case would be
reassigned unless he vacated his order. See Tunik v. Merit Sys. Prot.
Bd., 407 F.3d 1326, 1329 (Fed. Cir. 2005).
7
As ALJ Mahoney points out, in a footnote the Board suggested
that “[t]he appellant may have a remedy in federal court for the
9
Construing the term “working conditions” in 5 U.S.C.
§ 2302 to include actions alleged to interfere with an
administrative law judge’s decisional independence, as we do
here, on the other hand, raises no such concerns. Rather, it is
entirely consistent with the language and structure of the Act to
treat an action alleged to interfere with an administrative law
judge’s decisional independence as a personnel action subject to
investigation by the Office of Special Counsel. To do otherwise
would “impermissibly frustrat[e]” the “exhaustive remedial
scheme” of the Act by permitting, for such actions, “an access
to the courts more immediate and direct than the statute provides
with regard to major adverse actions,” such as removal,
suspension, and reduction in pay or grade, Carducci, 714 F.2d
at 174—more serious actions that are subject to pre-approval by
the Merit Systems Protection Board because of their potential to
compromise the independence of an administrative law judge.
agency’s alleged interference with his qualified judicial
independence.” Tunik, 93 M.S.P.R. at 492 n.*. The Board pointed to
a district court case, Chocallo v. Bureau of Hearings & Appeals, 548
F. Supp. 1349 (E.D. Pa. 1982), aff’d, 716 F.2d 889 (3d Cir. 1983)
(table), in which an administrative law judge asserted that various
agency practices had interfered with her judicial independence in
violation of the Administrative Procedure Act. We find no
significance in the Board’s comment, and it does not alter our
conclusion here. The Chocallo court did not address whether the Civil
Service Reform Act precluded the plaintiff’s claims. Indeed, the court
did not even mention the Act—perhaps because the plaintiff brought
suit in 1977, before the Act was enacted. Nor did the Board consider
whether the actions at issue in Tunik were “personnel actions” within
the meaning of 5 U.S.C. § 2302 or whether the claims would be
precluded by the Act. Beyond pointing to a single district court
case—to which we owe no deference—the Board offered no reason
why judicial review would be available.
10
We thus conclude that the Civil Service Reform Act
precludes ALJ Mahoney’s claims of interference with his
decisional independence. As a result, the district court lacked
jurisdiction over his claims.
Affirmed.