holding that federal employees “may not circumvent the [CSRA’s] requirements and limitations by resorting to the catchall APA to challenge agency employment actions”
How later courts described this case
- holding that federal employees “may not circumvent the [CSRA’s] requirements and limitations by resorting to the catchall APA to challenge agency employment actions”
- “Federal employees may not circumvent the Act’s requirements and limitations by resorting to the catchall APA to challenge agency employment actions.”
- “Congress designed the CSRA’s remedial scheme with care, ‘intentionally providing—and intentionally not providing—particular forums and procedures for particular kinds of claims.’” (citation omitted)
- “[T]he CSRA is the exclusive avenue for suit even if the plaintiff cannot prevail in a claim under the CSRA.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2009 Decided April 3, 2009
No. 08-5181
CAMILLE GROSDIDIER, PERSONALLY AND AS CLASS
REPRESENTATIVE, ET AL.,
APPELLANTS
v.
CHAIRMAN, BROADCASTING BOARD OF GOVERNORS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01551-ESH)
Leslie D. Alderman III argued the cause and filed the
briefs for appellants.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: SENTELLE, Chief Judge, and GINSBURG and
KAVANAUGH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: When the Broadcasting
Board of Governors denied promotions to three employees,
they sued the Board under the Administrative Procedure Act.
But except where Congress specifies otherwise, the Civil
Service Reform Act is the proper statutory vehicle for covered
federal employees to challenge personnel actions by their
employers. The District Court therefore dismissed this case.
We affirm.
I
The Broadcasting Board of Governors is a federal agency
responsible for the U.S. Government’s international
broadcasting. It manages a network of individual
broadcasting services, including the Voice of America, which
is known as the VOA. The VOA transmits news, educational,
and cultural programming around the world in more than 40
different languages to an estimated global audience of more
than 100 million people.
Plaintiffs Camille Grosdidier, Jorge Bustamante, and
Carlos Martinez have worked for the VOA as international
broadcasters. They are American citizens. In recent years,
they have all applied for open positions within the VOA. In
each case, however, the VOA instead chose to hire non-
citizens for the posts. In doing so, the VOA relied upon 22
U.S.C. § 1474(1), which authorizes the Federal Government
to “employ, without regard to the civil service and
classification laws, aliens within the United States and abroad
for service in the United States relating to the . . . preparation
and production of foreign language programs when suitably
3
qualified United States citizens are not available when job
vacancies occur.”1
Plaintiffs sued the Board under the Administrative
Procedure Act. They argued that they were “suitably
qualified” under § 1474 and that the Board thus acted
arbitrarily and capriciously in hiring non-citizens in their
places. They brought their lawsuit on behalf of themselves
and a purported class of similarly situated citizens who were
passed over in favor of non-citizen applicants.
The District Court dismissed plaintiffs’ case. It held that
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.), not the APA, was the statute under which plaintiffs
must challenge these personnel actions. On appeal, our
review of this legal question is de novo.
1
In full, 22 U.S.C. § 1474(1) provides as follows: “In carrying
out the provisions of this chapter [relating to U.S. information and
educational exchange programs], the Secretary, or any Government
agency authorized to administer such provisions, may – (1) employ,
without regard to the civil service and classification laws, aliens
within the United States and abroad for service in the United States
relating to the translation or narration of colloquial speech in
foreign languages or the preparation and production of foreign
language programs when suitably qualified United States citizens
are not available when job vacancies occur, and aliens so employed
abroad may be admitted to the United States, if otherwise qualified,
as nonimmigrants under section 1101(a)(15) of title 8 for such time
and under such conditions and procedures as may be established by
the Director of the United States Information Agency and the
Attorney General.”
4
II
Plaintiffs argue that the Civil Service Reform Act is not
the exclusive avenue for covered federal employees to bring
suits challenging personnel actions and that they may pursue
their claim under the Administrative Procedure Act. We
disagree.
A
In 1978, Congress passed and President Carter signed the
CSRA. The Act brought about “the most systematic
governmental review and revision of the federal civil service
system since the enactment of the Pendleton Act in 1883.”
William V. Luneburg, The Federal Personnel Complaint,
Appeal, and Grievance Systems: A Structural Overview and
Proposed Revisions, 78 KY. L.J. 1, 4 (1989). The CSRA
replaced “the haphazard arrangements for administrative and
judicial review of personnel action.” United States v. Fausto,
484 U.S. 439, 444 (1988). To reform the “outdated
patchwork of statutes and rules built up over almost a
century,” Congress created “an integrated scheme of
administrative and judicial review, designed to balance the
legitimate interests of the various categories of federal
employees with the needs of sound and efficient
administration.” Id. at 444, 445 (internal quotation marks
omitted).
The CSRA protects covered federal employees against a
broad range of personnel practices, and it supplies a variety of
causes of action and remedies to employees when their rights
under the statute are violated. As our Court has emphasized,
the CSRA is comprehensive and exclusive. Federal
employees may not circumvent the Act’s requirements and
limitations by resorting to the catchall APA to challenge
5
agency employment actions. Filebark v. Dep’t of Transp.,
555 F.3d 1009, 1010 (D.C. Cir. 2009); Fornaro v. James, 416
F.3d 63, 66-67 (D.C. Cir. 2005); Graham v. Ashcroft, 358
F.3d 931, 933-36 (D.C. Cir. 2004); Carducci v. Regan, 714
F.2d 171, 172 (D.C. Cir. 1983). We have emphasized,
moreover, that the CSRA is the exclusive avenue for suit even
if the plaintiff cannot prevail in a claim under the CSRA. As
we have explained, Congress designed the CSRA’s remedial
scheme with care, “intentionally providing – and intentionally
not providing – particular forums and procedures for
particular kinds of claims.” Filebark, 555 F.3d at 1010.
Allowing employees to end-run the CSRA would undermine
Congress’s efforts to foster a “unitary and consistent
Executive Branch position on matters involving personnel
action.” Fausto, 484 U.S. at 449; see also Graham, 358 F.3d
at 934. Therefore, we have told federal employees, “what you
get under the CSRA is what you get.” Fornaro, 416 F.3d at
67.2
B
In the face of our extensive body of CSRA precedents
casting doubt on their submission, plaintiffs cite the Federal
Circuit’s decision in Worthington v. United States, 168 F.3d
24 (Fed. Cir. 1999). There, the Federal Circuit allowed an
employee to bring claims pursuant to the Tucker Act
concerning a personnel action (in that case, the government’s
alleged failure to provide an employee with back pay after
inappropriately placing him on a compressed work schedule).
2
Of course, Congress is always free to make explicit
exceptions to the exclusivity of the CSRA. For example, the
CSRA’s express terms make clear that the Act does not extinguish
any right or remedy available to federal employees under federal
anti-discrimination laws. 5 U.S.C. § 2302(d); see also 42 U.S.C. §
2000e-16(c).
6
Id. at 26, 27. Worthington does not apply here because this
case involves the APA, not the Tucker Act. And in any event,
we have some doubts about Worthington, which appears to be
in significant tension with this Court’s precedents in Filebark,
Fornaro, Graham, and Carducci.
Plaintiffs also point to the text of 22 U.S.C. § 1474(1) –
in particular the provision allowing the VOA to employ non-
citizens “without regard to the civil service and classification
laws.” Appellants’ Br. 23-24. But § 1474 has nothing to do
with the question before us. Section 1474 contemplates the
hiring of non-citizens notwithstanding the usual prohibitions
on such hiring, and without regard to any limitations the civil
service laws might place on that hiring. The statute does
nothing to affect the exclusivity of the CSRA for suits
targeting personnel decisions.
***
In affirming the District Court’s dismissal of this case,
we need not decide whether the violation of § 1474 alleged by
plaintiffs is, in fact, prohibited under the CSRA. Regardless
of the answer to the question, plaintiffs cannot bring this suit
under the APA. We affirm the District Court’s judgment
dismissing this case.
So ordered.