# Abrams v. Saul

> District Court, N.D. Illinois · July 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10143042

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** July 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10143042. Public record. Not legal advice.