J. Mahoney v. Shaun Donovan

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.