Abrams v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Marlene Abrams, )

)

Plaintiff, )

)

)

v. ) No. 19 CV 7934

)

Andrew M. Saul, in his )

Official Capacity as the )

Commissioner of the Social )

Security Administration )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Petitioner Marlene Abrams has been an Administrative Law

Judge (“ALJ”) for the Social Security Administration (the

“Agency”) since June of 2009. Since April 12, 2016, she has been

in “paid, non-duty status,” Pet. at ¶ 11, meaning that she has not

performed any work as an ALJ but has continued to receive her

normal salary. The reason she was relieved of her duties is that

after the Agency filed a complaint before the Merit Systems

Protection Board (the “MSPB” or the “Board”), a Board-appointed

ALJ held a thirteen-day hearing and issued an Initial Decision

finding good cause to remove her from the ALJ position due to her

“medical inability to perform her duties” and other performance

issues. Abrams appealed the ALJ’s Initial Decision by filing a

Petition for Review by the Board on July 18, 2016. But that

petition has languished in the MSPB for over four years because

the Board is unable to act in the absence of a quorum—which it

apparently has not had since that time.

In November of 2019, Abrams received a “Notice of Proposed

Indefinite Suspension” from the Agency’s Deputy Chief ALJ. Pet.,

Exh. 1. The Notice summarized Abrams’s performance issues and the

proceedings culminating in the ALJ’s Initial Decision. The Notice

observed, “American taxpayers have paid you $609,841.60 for a job

that Judge Metry, on behalf of the Board, determined you could not

perform” and proposed moving Abrams to unpaid status pending the

MSPB’s final decision on her Petition for Review. Id. at 2-3. The

Notice informed Abrams of her right to respond and set forth the

manner and time for response.

Based on the foregoing facts, Abrams filed a petition for

injunctive relief on December 3, 2019, seeking to restrain the

Agency from suspending her and moving her to unpaid status. On

December 30, 2019, Abrams filed a temporary restraining order,

noticed for hearing in mid-February, essentially reiterating the

facts in her petition. On March 4, 2020, the Agency moved to

dismiss the action for want of subject matter jurisdiction. The

Agency argued further that even if subject matter jurisdiction

existed, the injunctive relief Abrams seeks is unwarranted.

Because I conclude that the Agency’s jurisdictional argument has

merit, I grant its motion to dismiss.

I.

Although plaintiff’s petition nominally invokes the

Administrative Procedure Act, she concedes that her dispute with

the Agency is governed by the Civil Service Reform Act of 1978

(“CSRA”), 5 U.S.C. § 7521, which “established a comprehensive

system for reviewing personnel action taken against federal

employees.” United States v. Fausto, 484 U.S. 439, 455 (1988). In

crafting this system, “Congress gave exclusive jurisdiction over

civil service personnel disputes to the Merit Systems Protection

Board (MSPB).” Paige v. Cisneros, 91 F.3d 40, 42 (7th Cir. 1996).

Further, “any judicial review of a final decision by the MSPB lies

with the United States Court of Appeals for the Federal Circuit,

and not with the district courts” or the Seventh Circuit. Richards

v. Kiernan, 461 F.3d 880, 886 (7th Cir. 2006); 5 U.S.C. § 7701.

Indeed, Congress affirmatively divested district courts of the

jurisdiction they previously had over disputes of the kind at issue

here. Paige, 91 F.3d at 43 (“by creating a comprehensive review

system the CSRA implicitly repealed the jurisdiction of federal

district courts over personnel actions of a type appealable to the

MSPB”). Accordingly, for a district court to exercise subject

matter jurisdiction over such cases based on the APA would

frustrate Congress’s intent. See Ass’n of Admin. Law Judges v.

Colvin, No. 13-CV-2925, 2014 WL 789074, at *2 (N.D. Ill. Feb. 26,

2014) (“[f]ederal employees are not to circumvent the CSRA’s

requirements by resorting to the catchall APA when challenging

agency employment actions.”) (citing Grosdidier v. Chairman,

Broadcasting Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009)),

aff’d, 777 F.3d 402 (7th Cir. 2015).

All agree that under the CSRA, Abrams is entitled to have the

Board review the ALJ’s Initial Decision and render a final decision

prior to being removed from her position. 5 U.S.C. § 7521; 5 C.F.R.

§ 1201.113. The parties further agree that she may then seek

judicial review of the Board’s decision by the Federal Circuit. 5

U.S.C. § 7701. What she decidedly may not do is bypass

administrative proceedings entirely and challenge the Agency’s

proposed action in this court. Paige, 91 F.3d at 43 (“[m]any

plaintiffs would prefer to begin their campaigns against federal

agencies in district court rather than trudge their way through

administrative proceedings—many of which are controlled by the

agency being sued. The CSRA accordingly forbids this jump for all

classes of federal employees....”). Yet that is the essence of her

petition for injunctive relief.

None of the arguments Abrams raises in her opposition confront

this fundamental jurisdictional defect. To the contrary, her cited

authorities reinforce it. For example, Abrams relies on DeKeyser

v. Zimmermann, No. 16-CV-422-WMC, 2017 WL 3484963 (W.D. Wis. Aug.

14, 2017), but that case highlighted “the primacy of both the Merit

Systems Protection Board (MSPB) and the Federal Circuit in

interpretive matters under the CSRA.” Id. at *4. Indeed, DeKeyser

features this lengthy quote from the Seventh Circuit’s decision in

Ayrault v. Pena, 60 F.3d 346, 348 (7th Cir. 1995):

Allowing resort to alternative remedies for complaints

about matters within the statute’s scope would undermine

the CSRA because the statute “prescribes in great detail

the protections and remedies applicable to such action,

including the availability of administrative and

judicial review.” United States v. Fausto, 484 U.S. 439,

443 (1988). Lower courts, following Fausto, have

recognized that the CSRA essentially preempted the field

by “supersed[ing] preexisting remedies for all federal

employees.” LeBlanc v. United States, 50 F.3d 1025, 1030

(Fed. Cir. 1995).... As the Supreme Court stated in

Fausto, Congress recognized the primacy of both the

Merit Systems Protection Board (MSPB) and the Federal

Circuit in interpretive matters under the CSRA.

Delegating the task of interpreting the CSRA solely to

these two bodies fosters the development “of a unitary

and consistent Executive Branch position on matters

involving personnel action, avoids an unnecessary layer

of judicial review in lower federal courts, and

encourages more consistent judicial decisions.” 484 U.S.

at 449 (citations omitted).

DeKeyser, 2017 WL 3484963, at *4 (W.D. Wis. Aug. 14, 2017) (quoting

Ayrault, 60 F.3d at 348) (alterations and ellipses in original).

As it happens, Ayrault itself is particularly on point. In

that case, as in this one, a federal employee “claim[ing] a right

to the CSRA’s comprehensive scheme of protections” filed an action

in federal court complaining of an adverse personnel action by the

Federal Aviation Administration. Ayrault, 60 F.3d at 348. The

district court granted summary judgment in the FAA’s favor and

dismissed the complaint on the ground that the plaintiff was not

an “employee” within the meaning of that term as defined by the

CSRA. The plaintiff appealed, and the Seventh Circuit remanded

with instructions to dismiss the complaint instead for lack of

jurisdiction. After examining the scheme established by the CSRA,

the court concluded, “it is not our place to pass on” matters

within the statute’s scope. Id. at 349. So, too, must I refrain

from passing on the merits of Abrams’s claim that the personnel

action the Agency announced in the November 2019 Notice runs afoul

of the CSRA, as the authority to evaluate that claim rests

exclusively with the MSPB and the Federal Circuit.

That Abrams seeks injunctive relief simply “to maintain the

status quo” does not change the analysis. Pl.’s Reply at 7. In

this connection, Abrams invokes my “incidental equitable

jurisdiction” on the putative authority of Wagner v. Taylor, 836

F.2d 566 (D.C. Cir. 1987). But the framework governing Wagner—a

case brought pursuant to Title VII of the Civil Rights Act of 1964,

42 U.S.C.A. § 2000e et seq.—is distinct from the one here, with

the most salient difference being that Title VII affirmatively

grants “[e]ach United States district court and each United States

court of a place subject to the jurisdiction of the United

States...jurisdiction [over ] actions brought under this

subchapter.” 42 U.S.C. § 2000e-5(f£)(3). In the Title VII context

then, it makes sense to allow district courts “to impose a

temporary restraint in order to preserve the status quo pending

ripening of the claim for judicial review.” Wagner, 836 F.2d at

571. Here, by contrast, Abrams’s complaint will never “ripen” into

a claim reviewable by this court because the CSRA strips federal

district courts of the jurisdiction to review her action at any

juncture.

Il.

For the foregoing reasons, defendant’s motion to dismiss is

granted.?!

ENTER ORDER:

Elaine E. Bucklo

United States District Judge

Dated: July 23, 2020

1 Although it is doubtful that the amicus brief proposed by the

Association of Administrative Law Judges, Judicial Council No. 1

IFPTE, AFL-CIO & CLC satisfies the Seventh Circuit’s standards for

the filing of such briefs, see Nat’l Org. for Women, Inc. v.

Scheidier, 223 F.3d 615, 617 (7th Cir. 2000), “[w]hether to permit

a nonparty to submit a brief, as amicus curiae, is, with immaterial

exceptions, a matter of judicial grace.” Id. at 616. Because I

did, in fact, consider the arguments raised by the putative amici,

their motion to file is granted. But nothing in their brief

persuades me that I have jurisdiction over Abrams’s action.