Petition — Connolly v. United States
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83-948
Office - Supreme Court, U.S
FILED
DEC 5 1983
ALEXANDER-L. STEVAS.
CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
<>
PATRICK J. CONNOLLY,
Petitioner,
¥.
THE UNITED STATES,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
PETITION FOR CERTIORARI
WOLIN & WOLIN, EsQs.
Attorneys for Petitioner
1527 Franklin Avenue
Mineola, New York 11501
ALAN E. WOLIN
Of Counsel
v (516) 248-7774
QUESTIONS PRESENTED
1. Did the Court of Appeals err in holding that the Claims
Court is without jurisdiction to entertain wrongful removal ac-
tions by probationary employees of the United States Postal
Service—whether or not such claims involve first amendment
allegations?
2. Did the Court of Appeals err in holding that a probationary
employee has no right under the Civil Service Reform Act to
seek review of his dismissal in the Claims Court, even if his
dismissal is founded upon first amendment violation?
3. Did the Court of Appeals err in holding that the Civil
Service Reform Act has foreclosed judicial review of wrongful
removal actions by probationary employees of the United States
Postal Service?
TABLE OF CONTENTS
PAGE
ES l
ore oe cevescrescereecees 1
STATUTES, FEDERAL RULES, AND
REGULATIONS INVOLVED...................0040. 1
STATEMENT OF THE CASE........0..c000ccccccee0e. 3
EXISTENCE OF JURISDICTION BELOW.......... 8
eo ool ocencenccecsecccececeeeses. 9
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ee A-l
COPY OF JUDGMENT SOUGHT TO BE
sc cesccoscccececcecese’s
TABLE OF AUTHORITIES
CASES:
Bowman v. United States, 227 Ct. Cl. (1981)..........
Butz Engineering Corp. v. United States, 204 Ct. Cl.
a chh teas teecaacus baskeuctvetarera? kekeantbes
Cole v. United States, 231 Ct. Cl. 689 F. 2d 1040
Dargo v. United States, 176 Ct. Cl. 119 (1966)........
Daub v. United States, 154 Ct. Cl. 434 (1961).........
Featheringill v. United States, 217 Ct. Cl. 2d (1978)..
Greenway v. United States, 175 Ct. Cl. 350 (1966) ...
Grimaldi v. United States, 651 F. 2d 151] (2d. Ar.
Horne v. United States, 1-0 Ct. Cl. 145 (1969).........
Jackson v. United States, 192 Ct. Cl. 765, 428 F. 2d
Es. ou eiaannanahses sachtssiikwanacdusigoees seks
Knotts v. United States, 128 Ct. Cl. 489 (1954)........
Lee v. Blount, 345 F. Supp. 585 (N. D. Cal. 1972) ...
Perlongo v. United States, 215 Ct. Cl. 982 (1977).....
Perry v. Sindermann, 408 U.S. 593 (1972).............
Pickering v. Board of Ed., 391 U.S. 563 (1968)........
Powers v. United States, 169 Ct. Cl. 626 (1965) .......
Starzee v. United States, 145 Ct. Cl. 215 (1959).......
Swaaley v. United States, 180 Ct. Cl. 1,................
Watson v. United States, 142 Ct. Cl. 749 (1958).......
White v. Bloomberg, 345 F. Supp. 133 (D. Md.
PAGE
6,8,9
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No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
PATRICK J. CONNOLLY,
Petitioner,
V.
THE UNITED STATES,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
PETITION FOR CERTIORARI
OPINIONS BELOW
The opinion of the United States Claims Court is reported at
1 Cl. Ct. 312, 554 F. Supp. 1250 (1982). The opinion of the
Court of Appeals for the Federal Circuit is reported at 716 F.
2d 882 (F. Cir. 1983).
JURISDICTION
The order of the Court of Appeals for the Federal Circuit was
made on September 6, 1983 and entered on September 28,
1983. A copy thereof is appended to this petition in the Appen-
2
dix. The jurisdictior of this Court is invoked under 28 U.S.C.
Section 1254(1).
STATUTES, FEDERAL RUDES and
REGULATIONS INVOLVED
The following are those constitutional provisions and statutes
which are relied upon by the petitioner.
The First Amendment to the Constitution of the United States:
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assem-
ble, and to petition the Government for a redress of
grievances.
5 U.S.C. Section 5596 provides as follows in relevant part:
(b)(1) An employee of an agency who, on the basis of
a timely appeal or an administrative determination
. . . is found by appropriate authority under applica-
ble law, rule, regulation, or collective bargaining
agreement, to have been affected by an unjustified or
unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay,
allowances, or differentials of the employee-
(a) is entitled, on correction of the personnel action,
to receive for the period for which the personnel
action was in effect-
(1) an amount equal to all or any part of the pay,
allowances, or differentials, as applicable which the
employee normally would have earned or received
during the period if the personnel action had not
occurred... .
28 U.S.C. Section 1491 provides in applicable part:
The United States Claims Court shall have jurisdic-
tion to render judgment upon any claim against the
7
3
United States founded either upon the Constitution,
or any act of Congress, or any regulation of an execu-
tive department, or upon any expressed or implied
contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.
39 U.S.C. Section 1005(f) provided in relevant part:
Compensation, benefits, and other terms and condi-
tions of employment in effect immediately prior to
the effective date of this section, whether provided
by statute or by rules and regulations of the former
Post Office Department or the executive branch of
the Government of the United States, shall continue
to apply to officers and employees of the Postal Ser-
vice, until changed by the Postal Service in accord-
ance with this chapter and chapter 12 of this title.
STATEMENT OF THE CASE
The original action, herein, was commenced in the United
States Court of Claims, the predecessor to the United States
Claims Court (No. 406-81C) on the 26th day of June, 1981.
Petitioner alleged that the termination of his probationary em-
ployment with the United States Postal Service was improper,
in part, because the agency action was not the result of an honest
dissatisfaction with petitioner's conduct and performance. In
addition, petitioner contended that respondent did not give him
a fair trial on the job and was, instead, motivated by malice and
bad faith. Petitioner also contended that his dismissal was in
reprisal for a job-related injury, compensation claim and com-
plaints about the absence of safety procedures. Petitioner also
contended that respondent's actions were not in accordance
with applicable law, regulation and procedure.
The facts upon which this action was based are as follows.
Petitioner commenced employment at the Flagstaff, Arizona
Post Office on April 4, 1981. His general duties included the
casing and sorting of mail and the tilting, lifting and pushing of
heavy cages of parcel post packages into trucks.
4
On or about April 18, 1981, petitioner began suffering numb-
ness in his left and right fingers and hands, and throbbing pain
in his left and right forearm. The pain was severe during work-
ing hours. Petitioner had not previously suffered from such a
condition. After petitioner's condition arose, his supervisors
were aware of the condition and its affect on his ability to
perform his strenous job duties.
On May 12, 1981, petitioner sought the medical advice of
Michael G. Hummer, M.D. a neurologist. Dr. Hummer stated
that petitioner's condition was caused by his employment. The
doctor prescribed that petitioner wear braces to work on May
13, 1981. On the previous day, May 12, 1981, petitioner com-
menced filing procedures to claim compensation with the United
States Department of Labor arising out of this uncontraverted
occupational injury.
Meanwhile, on May 4, 1981, petitioner had received his
thirty day evaluation. His performance was rated unsatisfactory
in the areas of “productivity and work habits”, “safety”, and
“acceptance of criticism”. However, he was recommended for
continued employment. Thereupon, approximately nine days
later, on May 13, 1981, petitioner received yet another evalua-
tion. This evaluation was completed after petitioner had submit-
ted his Labor Department Compensation Claim. This evaluation
recommended petitioner's dismissal.
Soon after petitioner received his second evaluation on May
14, 1981, he received a letter signed by A. W. Baker, Postmas-
ter, United States Postal Service in Flagstaff, Arizona, notifying
him that he was being separated from the U.S. Postal Service
“effective immediately”. This separation notice informed peti-
tioner that he was being discharged because of “unsatisfactory
rating on your initial probationary period evaluation report, and
lack of improvement in those areas as noted in the second
report”. In addition, petitioner's “attitude toward supervision”
was documented as unsatisfactory on the second evaluation.
During this entire period, it must be noted that petitioner had
complained to his supervisors about the lack of adequate safety
and training procedures.
Petitioner requested reinstatement into his former position,
with all rights, privileges and emoluments thereof including but
aa Si% 4
5
not limited to all back pay and other allowances otherwise due
him. Additionally, petitioner sought an order directing respond-
ent to correct his personnel records as well as compensatory and
punitive damages and attorney’s fees.
Respondent, thereafter moved for summary judgment alleg-
ing that the Court lacked jurisdiction to review the dismissal of
a probationary employee. In response thereto, petitioner cross-
moved for summary judgment alleging, among other things,
that his dismissal was unlawful.
After oral argument and discovery, the Claims Court, by
Chief Justice Kozinski denied petitioner's cross-motion and
granted respondent's motion except to conclude that “it had
jurisdiction over that portion of [petitioner's] claim which is
based upon allegations that the dismissal was taken in retaliation
for the exercise of first amendment rights.” In so doing the court
noted the “irreconciable tension” between Featheringill v. ''nited
States, 217 Ct. Cl. 24 (1978) and Jackson v. United States 428
F. 2d 844, 192 Ct. Cl. 765 (1970) but that the “Court of Claims
treated both lines of cases as good law to the end.”
In its order, the Claims Court certified the first amendment
issue for interlocutory appeal to the United States Court of
Appeals for the Federal Circuit. The Federal Circuit then granted
respondent permission to appeal. Its appeal soon followed.
The court sitting in banc, rendered its decision on September
6, 1983. In its decision, the court affirmed the trial court's
determination that it lacked jurisdiction over petitioner's claim
on other than first amendment rights. However, it reversed the
trial court's ruling that it possessed jurisdiction over petitioner's
first amendment claim. The court remanded the case to the
Claims Court with instructions to grant judgment in favor of
respondent by dismissing petitioner's petition. The Claims Court
then did so in an order dated October 13, 1983.
In so determining the Federal Circuit ruled that its action on
appeal “is not circumscribed by the terms of the trial court's
certification.” It then held “that the nature and scope of our
review are not limited to the certified question but that we are
free to consider all questions material to the trial court’s order
6
sustaining its jurisdiction.” The court then ventured into a wide
ranging discussion of whether the Claims Court could ever
entertain a probationary employee's wrong removal action “on
any jurisdictional basis.” The court held, that with one possible
exception, not relevant herein, that it could not.
In reaching this conclusion, the Federal Circuit held that the
Civil Service Reform Act precluded such review. This, the
Court held, includes any private right of action in the Claims
Court. Nor, said the Court, can petitioner find solace in the first
amendment, because that amendment standing alone, cannot
be interpreted to command a payment of money. The court
distinguished petitioner's situation from those of the plaintiff's
in Jackson v. United States, 428 F. 2d 844, 192 Ct. Cl. 765
(1970) and Swaaley v. United States, 376 F. 2d 857, 180 Ct. Cl.
1 (1967). In those cases, the court held that the plaintiffs relied
upon pay statutes, including 5 U.S.C. 5596, in conjunction with
the first amendment. Petitioner, as a Postal Service employee,
said the court, cannot rely upon a similar pay statute.
Petitioner, disagreeing with this determination, now seeks
review in this Court.
EXISTENCE OF JURISDICTION BELOW
The Claims Court held that it had jurisdiction pursuant to 28
U.S.C. Section 1491 and the first amendment. The Federal
Circuit held that no such jurisdiction existed.
ARGUMENT
The decision should be reviewed because it presents ques-
tions which heretofore have not been considered by this court.
In addition, the decision of the Federal Circuit represents a
substantial departure from previously established decisional law.
1) As already noted, the Federal Circuit held that the Claims
Court could not entertain petitioner's action on any jurisdic-
tional basis including the first amendment or federal pay stat-
7
utes. In addition, the Federal Circuit ruled that the Civil Service
Reform Act has precluded any private right of action which
petitioner may have otherwise enjoyed. Petitioner contends that
the Federal Circuit's determination, the Civil Service Reform
Act notwithstanding, presents a significant departure from prior
decisional law and is of such far reachiiz importance so as to
merit review by this Court.
The Claims Court and its predecessor, the Court of Claims,
had always recognized that dismissed probationary employees
were not without a private right of action. The Federal Court,
by relying on the Civil Service Reform Act, has apparently
closed the door on such a private right.
One of the standards of review, always recognized by the
Court of Claims, was whether the agency officials who dis-
charged the employee during his probationary period acted
upon “their honest judgment” in effectuating the removal. Per-
longo v. United States, 215 Ct. Cl. 982(1977). The Perlongo
Court more fully elaborated upon this standard of review.
Substantively, the only limitation on an agency's power
to dismiss a probationary employee is that the agency
must honestly be dissatisfied with the probationer’s
conduct or performance after giving him a fair trial at
the job. (Emphasis added). Perlongo v. United States,
supra., Horne v. United States, 190 Ct. Cl. 145 (1969);
Dargo v. United States 176 Ct. Cl. 1193 (1966).
The Court of Claims had also held that a discharge not brought
about under these circumstances was “so lacking in rational
support that it must be characterized as arbitrary and capri-
cious.” Horne v. United States, supra; Greenway v. United
States, 175 Ct. Cl. 350 (1966); Knotts v. United States, 128 Ct.
Cl. 489 (1954). The Court of Claims had further held in Powers
v. United States, 169 Ct. Cl. 626 (1965) that “when the issue of
arbitrary, capricious or malicious action on the part of the Gov-
ernment is properly raised, judicial inquiry is proper” in a
probationer’s dismissal.
Other decisions of the Court of Claims which reviewed a
probationer’s termination are also enlightening. The Court in
Greenway v. United States. supra held:
8
Where an agency promulgates duly authorized regu-
lations concerning probational employees which spec-
ify the manner in which their employment is to be
terminated, a severence effected without substantial
compliance is invalid. Watson v. United States, 142
Ct. Cl. 749 (1958); Daub v. United States, 154 Ct. Cl.
434 (1961). This is merely another application of the
basic principle that separations made in a manner that
do not conform with the requirements of a valid de-
partmental regulation are not lawful. Service v. Dulles,
354 U.S. 363 (1957); Starzee v. United States, 145 Ct.
Cl. 25 (1959).
The Court in Greenway further held that review is proper
(W)here an employee, probationary or otherwise, is
by regulation or statute protected in that he is entitled
to honest consideration based on the merits, but it is
charged that the action of the responsible personnel
official or officials was instead arbitrary, capricious, or
maliciously motivated.
The Federal Circuit's determination that the Civil Service Re-
form Act precludes such review in the future is a most important
one which should be reviewed by this Court. Upon such review,
it will be seen that the Civil Service Reform Act did nothing to
alter the prior state of law.
2) The Federal Circuit also incorrectly held that a probation-
ary employee may not bring an action under 28 U.S.C. Section
1491 based on a claim that his removal was motivated by retal-
iation for the exercise of first amendment rights.
A view of firmly established precedent set by the Court of
Claims and adopted by the Claims Court indicate that where a
first amendment issue is involved, the Court of Claims has on
many occasions granted Tucker Act jurisdication.
In Swaaley v. United States 180 Ct. Cl. 1 (1967), the Court of
Claims considered the general question of whether it had Tucker
Act jurisdiction over a claim alleging that an employee dismissal
was motivated by retaliation for the exercise of First Amend-
ment rights. The plaintiff was a wage board employee at the
9
former New York Naval Shipyard. He brought an action to
recover back pay lost as the result of his allegedly illegal dis-
missal. The plaintiff in Swaaley averred that he was dismissed
because he made unfounded charges against officials of the Navy
Department. These charges detailed alleged favoritism and
wrongdoing by officials at the said Shipyard. The issue as framed
by the Court was whether the plaintiff's discharge deprived him
of his right to “petition the Government for a redress of griev-
ances” under the First Amendment. Id. at 3.
The Court considered plaintiff's First Amendment claim and
held that the First Amendment guarantee of the right to petition
the Government for redress of grievances protected him from
dismissal. In fact, the Court expressly held that, “a petition by a
federal employee to one above him in the executive hierarchy is
covered by the First Amendment.” Jd. at 12. The Court thus
ruled the plaintiff's dismissal invalid.
After having established that the Court has Tucker Act juris-
diction to review First Amendment infringement claims, the
Court of Claims considered whether the same scope of review
extends to probationary employees. The issue was answered |
affirmatively by the Court of Claims in Jackson v. United States,
192 Ct. Cl. 765 (1979). There, the plaintiff, a probationary
employee, alleged that he was wrongfully discharged from his
position as a teacher, GS-9 at the Job Corps Conservation Cen-
ter in New Mexico. Since plaintiff was a probationary employee,
the normal review process of the Civil Service was unavailable
to him. Id. at 768. Plaintiff, therein, nevertheless filed suit in
the Court of Claims alleging that his removal was in retaliation
for his exercising his First Amendment right to petition the
Government for a redress of grievances.
The alleged constitutional violation was the sole ground upon
which the Court considered the action. The Court clearly rec-
ognized that it possessed Tucker Act jurisdiction. It noted:
This is a claim ‘founded upon the Constitution’ of
which we have jurisdiction by virtue of 28 U.S.C.
1491(1), a jurisdiction we have exercised in a recent
backpay suit similar to this one. Swaaley v. United
States, 180 Ct. Cl. 1, 376 F. 2d 857 (1967). Pickering
10
v. Board of Education, 391 U.S. 563 (1968) reasons
along somewhat parallel lines and contributes to our
belief that Swaaley was correctly decided. Id. at 768.
Thus, the Court specifically held that under 28 U.S.C. Section
1491, the Court of Claims has jurisdiction of a claim founded
upon the Constitution, such as a claim for backpay alleging
wrongful dismissal from Government service as a reprisal for
the exercise of First Amendment rights.
The Court then considered the applicability of this holding to
probationary employees. The Court rejected the defendant's
contention that a probationary employee could not invoke the
constitutional protection and held:
The constitutional protection of employees against re-
moval because of petitioning for redress of grievances
does not depend on the particular employee's status
or tenure. Id. at 772.
The Court therefore concluded that a genuine issue of material
fact existed arising from the alleged constitutional deprivation.
The applicability of the Jackson case to the case at bar is clear.
The Court of ‘ us again addressed those issues in Feather-
ingill v. United Siates, 217 Ct. Cl. 24 (1978). Although the Court
distinguished Jackson and Swaaley on grounds not applicable
herein, it still recognized the validity of the Jackson and Swaaley
holdings which remain valid. Id. at 32.
In Featheringill, the plaintiff was hired to teach at an Air
Force base in Japan for the school year 1974-75. His appoint-
ment expired by its terms on June 6, 1975,and he was not
rehired. Plaintiff therein contended that he was entitled to be
rehired because his nonappointment resulted from the exercise
of First Amendment rights.
The Court rejected these claims and held that since plaintiff
was seeking a postion other than the one to which he was
appointed and because plaintiff never had any entitlement to
the job he sought, nor was he owed any money, he could not
assert any claim under the Tucker Act. In other words, the
plaintiff in Featheringill asserted no claim for back pay. The
Court thus held:
1]
Since plaintiff never held and was never entitled to
the position he seeks, and is owed no money, this is
not a back pay case and the First Amendment issue
raised in this context is beyond the jurisdiction of this
court.
The Featheringill court then considered whether it had juris-
diction to award relief, in the absence of a back pay claim. It
ruled that it did not. In doing so, the Court distinguished
Jackson and Swaaley; but nevertheless found them fully valid:
In those instances where this court has discussed back
pay claims in the context of the First Amendment,
the claimants had been dismissed from their jobs and
the suits were maintained on the factual basis of im-
proper removal. Id. at 32.
Obviously, the facts in the case before this Court are more
closely akin to Jackson and Swaaley than to Featheringill. For
we are dealing with a claimant who was dismissed and is main-
taining an action in which he seeks back pay on the factual basis
of improper removal.
The United States Court of Claims has had the opportunity to
reconcile Featheringill with Jackson in recent cases. Cole v.
United States, 231 Ct. Cl. ___,, 689 F. 2d 1040 (1982); Bowman
v. United States, 227 Ct. Cl. __— (1981). On both occasions,
the Court steadfastly adhered to Jackson and Swaaley.
In Cole, a former commissioned officer in the Regular Army
brought an action seeking reinstatement and back pay. The
plaintiff was a “whistleblower” who regularly reported alleged
derelictions of others, for which he was not always appreciated
by his superiors. He contended that the defendant refused to
accept a withdrawal of his tender of resignation as retaliation for
his exercise of First Amendment rights. The Court denied the
defendant's motion for summary judgment and held:
The first amendment law since Perry v. Sinderman,
408 U.S. 593, 92 S. Ct. 2694, 33 B. Ed. 570 (1972)
has been that even one who holds his job on an at-will
tenure is protected against discharge in retaliation for
past exercises of first amendment rights, or to prevent
12
such exercise in the future. In Jackson v. United
States, (citation omitted), we said:
. (T)he constitutional protection of employees
against removal because of petitioning for redress of
grievance does not depend on the particular employ-
ee's status or tenure. .
Thus, the Court held that even an army officer could maintain
an action in the Court founded on the First Amendment. Surely,
petitioner, as a probationer and an employee of the United
States Postal Service should have the same right.
The Court of Claims in Bowman reviewed the termination of
former probationary forester-trainees who were terminated from
the Forest Service, at the end of their probationary period.
Relying directly on Jackson, the Court denied the defendant's
motion for summary judgment “(b)ecause there existed material
issues of fact concerning plaintiffs’ invocation of the first amend-
ment”.
3) The Federal Circuit's attempt to reconcile petitioner's case
by contending, that as a Postal Service employee, he cannot
rely on pay statutes is incorrect.
The Back Pay Act, 5 U.S.C. Section 5596 is that section of
the law which permits federal employees to receive back pay
arising from unwarranted personnel actions. The question as to
whether Postal Service employees are encompassed within the
provisions of the Back Pay Act must be answered in the affirm-
ative. The Postal Reorganization Act did not change this fact.
Firstly, it should be undisputed that the Back Pay Act was
applicable to the Post Office Department until June 30, 1971,
when the operation of the Post Office Department was assumed
by the Postal Service. See e.g. White v. Bloomberg, 345 F.
Supp. 133 (D. Md. 1972). All compensation, benefits and other
terms and conditions of employment in effect immediately prior
to the reorganization, were saved pursuant to 39 U.S.C. Section
1005 (f). This savings clause must surely include the provisions
of the Back Pay Act. 39 U.S.C. Section 410 is not to the contrary
since it is clearly subject to exceptions otherwise provided, of
which 39 U.S.C. Section 1005(f) is one. In fact, the Court of
13
Claims, in Butz Engineering Corp. v. United States, 204 Ct. Cl
561 (1974) noted that the Court of Claims could still obtain
jurisdiction in pay suits instituted by Postal Service employees.
Other courts holding that Postal Service employees are still
covered by the provisions of 5 U.S.C. Section 5596 include
Grimaldi v. United States, 651 F. 2d 151 (2d Cir. 1981) and Lee
v. Blount, 345 F. Supp. 585 (N.D. Cal. 1972).
Thus, insofar as petitioner's constitutional claim is dependent
upon the interface with the Back Pay Act, petitioner should
have prevailed.
4) The questions presented by this case are of great and
recurring significance in the realm of the federal employment
system. To accept the Federal Circuit's determination would
effectively reverse a continuous line of precedent. No case has
gone so far to defeat a probationer’s right of action. The Federal
Circuit's reliance on the Civil Service Reform Act renders re-
view that much more necessary. A definite opinion by this
Court, as to rights remaining to probationer’s in the wake of the
Civil Service Reform Act is a necessary and appropriate issue
for the exercise of this Court's discretionary jurisdiction.
CONCLUSION
For the reasons set forth above, it is respectfully submitted
that this petition for a Writ of Certiorari should be granted.
WOLIN & WOLIN, EsgQs.
Attorneys for Petitioner
1527 Franklin Avenue
Mineola, New York 11501
(516) 248-7774
ALAN E. WoLIn, Esq.
Of Counsei
A-l
UNITED STATES CLAIMS COURT
No. 406-81C
FILED
DEC 15, 1982
U.S. CLAIMS COURT
PATRICK J]. CONNOLLY,
Plaintiff,
£
THE UNITED STATES,
Defendant.
Civilian pay; dismissal; probationary employee; juris-
diction; sovereign immunity; Tucker Act; regulation
of executive department, post office; interpretation of
legislation as mandating compensation; Civil Service
Reform Act; Constitution; First Amendment.
Alan E. Wolin, Mineola, New York, for plaintiff; Wolin &
Wolin, of counsel.
Sara V. Greenberg, Washington, D.C., with whom was As-
sistant Attorney General, ]. Paul McGrath, for defendant.
OPINION
KozinskI, Chief Judge.
Prior to the effective date of the Federal Courts Improvement
Act of 1982, Pub. L. No. 97-164, 96 Stat. 25, the parties filed
cross motions for summary judgment. Because defendant's mo-
tion, in part, challenges the court's jurisdiction to grant the
relief requested by plaintiff, the court treats it as a motion to
dismiss pursuant to Rule 12(b).
A-2
FACTS'
Plaintiff is a former probationary employee of the United
States Postal Service. He was hired on April 4, 1981, as a postal
distribution clerk at the main post office in Flagstaff, Arizona.
His daties involved sorting and casing mail, and various activi-
ties requiring physical exertion such as lifting and pushing of
heavy objects. Complaint § 5. After about two weeks, plaintiff
developed numbness in his fingers and a throbbing pain in his
forearms. The condition was diagnosed on May 12, 1981, as a
bilateral Carpal Tunnel Syndrome and the examining physician
concluded that the condition was caused by plaintiffs employ-
ment. Complaint *€ 6, 12, 13.
Prior to this diagnosis, on May 4, 1981, plaintiff was given a
30-day performance evaluation. The evaluation rated plaintiff as
unsatisfactory in “productivity and work habits” and in “safety.”
The evaluation also noted that plaintiff had initially experienced
difficulty in accepting criticism but had since improved. On May
13, 1981, plaintiff received a second evaluation which repeated
the unsatisfactory ratings in “productivity and work habits” and
“safety.” In addition, it rated him unsatisfactory in “attitude
towards work—co-workers—supervisors” and “acceptance of
criticism,” stating that “improvement noted in lst eval[uation]
has stopped.” The following day, plaintiff was separated from
the Postal Service. The removal letter, signed by A. W. Baker,
MSC Manager/Postmaster, listed as reasons for the separation
that plaintiff had been rated unsatisfactory in several areas of
performance and had shown lack of improvement.
Plaintiff brought suit seeking reinstatement with back pay,
correction of his personnel records, $2 million in damages ($1
million compensatory and $1 million punitive), costs and attor-
neys fees. Plaintiff argues that the adverse evaluations were
“motivated solely by malice and bad faith and were intended in
part to be in reprisal for plaintiff's job-related injury, compen-
' The facts recited in the complaint and attachments thereto are deemed
established for the purpose of this motion only. See Prairie v. United States,
224 Ct. Cl. 735, 735 (1980); Featheringill v. United States, 217 Ct. Cl. 24, 26
(1978).
A-3
sation claim and complaints about the absence of safety proce-
dure.” Complaint © 34.
Defendant has moved for dismissal, claiming inter alia that
the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92
Stat. 1111, establishes a comprehensive scheme for dealing with
federal employees who complain that they have suffered im-
proper treatment at the hands of their supervisors. It argues
that this scheme does not entitle probationary employees to
seek relief in this court.
DISCUSSION
In determining a plaintiffs entitlement to relief, one must
start with the proposition that this is a court of very limited
jurisdiction. Because al! claims brought are against the United
States and therefore involve a waiver of sovereign immunity,
Porter v. United States, 204 Ct. Cl. 355, 359 (1974); National
State Bank of Newark v. United States, 174 Ct. Cl. 872, 876
(1966), the court must exercise not only the traditional reluct-
ance of federal courts to act absent specific statutory authoriza-
tion, Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845); Ex parte
Bollman, 8 U.S. (4 Cranch) 75, 93 (1807), but an additional
measure of restraint growing from the principle that waivers of
sovereign immunity must be narrowly construed. See United
States v. King, 395 U.S. 1, 4 (1969); United States v. Sherwood,
312 U.S. 584, 590 (1941); Kabua Kabua vy. United States, 212
Ct. Cl. 160, 167 (1976), cert. denied, 434 U.S. 821 (1977).
Plaintiff brought this action under the Tucker Act, 28 U.S.C.
§ 1491, which provides that we may “render judgment upon
any claim against the United States founded ... upon the
Constitution, or any Act of Congress, or any regulation of an
executive department, or upon any express or implied contract
with the United States. . . .” As the Supreme Court has noted,
“(t]he Tucker Act .. . is itself only a jurisdictional statute; it
does not create any substantive right enforceable against the
United States for money damages. The Court of Claims has
recognized that the Act merely confers jurisdiction upon it
whenever the substantive right exists.” United States v. Testan,
A-4
424 U.S. 392, 398 (1976), citing Eastport Steamship Corp. v.
United States, 178 Ct. Cl. 599, 605-07 (1967). See also Griffin
v. United States, 215 Ct. Cl. 710, 713 (1978).
Plaintiff's claim is not under a contract with the United States
since it is well established that the federal employment relation-
ship is a statutory rather than contractual one. See Kania v.
United States, 227 Ct. Cl. __., , 650 F.2d 264, 268, cert.
denied, 454 U.S. 895 (1981); Shaw v. United States, 226 Ct. Cl.
___., —__., 640 F.2d 1254, 1260 (1981). Plaintiff's claim must
therefore arise, if at all, under the Constitution, an Act of
Congress or a regulation of an executive department. These
possibilities are considered in reverse order.
I. A Regulation of an Executive Department
Plaintiff argues that in dismissing him, USPS failed to comply
with provisions of its Employee & Labor Relations Manual. At
oral argument, defendant conceded that the Manual is properly
considered a regulation of USPS. But see McGrath v. United
States, 2 USCCR No. 11, at 6 (December 1, 1982) (SETo, J.)
(Federal Personnel Manual held not to be a regulation). See
generally Fiorentino v. United States, 221 Ct. Cl. 545, 551-54
(1979) (discussion of when government “manuals, handbooks,
and in-house publications” have binding effect).
Even assuming the manual to be a regulation, it does not
necessarily form the basis for an action in the Claims Court
because the Tucker Act expressly limits jurisdiction to claims
based on regulations of an executive department. The term
“executive department” is not defined within Title 28, but sec-
tion 451 defines “department” by reference to the definition in
Title 5 of the Code, “unless the context shows that such term
was intended to describe the executive, legislative, or judicial
branches of the government.”
Nothing in section 149] suggests that the term “executive
department” as there used refers to the executive branch as a
whole. The term quite clearly denotes a subdivision of the
executive branch because the section refers to an executive
A-5
department, suggesting the existence of several. While it makes
perfect sense—and comports with established usage, see, e.g.,
United States v. Germaine, 99 U.S. 508, 510-11 (1878)—to refer
to several executive departments, it would be totally nonsensical
to read the section as referring to several executive branches.
Thus, in determining whether a regulation can form the basis
for suit under the Tucker Act, the court must, pursuant to 28
U.S.C. § 451, refer to Chapter 1 of Title 5.
Section 101 of Title 5 defines the term “executive depart-
ment” to include the cabinet level departments. The United
States Post Office is not among them. In fact, the Postal Reor-
ganization Act of 1970 explicitly struck the Post Office from this
list. Pub. L. No. 91-375, §6 (c)(1), 84 Stat. 719, 775. The status
of the Post Office is now defined in 39 U.S.C. § 201 (1980) as
“an independent establishment of the executive branch of the
Government of the United States. . . .” It follows that the Post
Office is not an executive department and that its regulations
cannot form the basis for plaintiff's claim under the Tucker Act.?
This does not, of course, mean that the Post Office may ignore
its regulations. It is well established that a department or agency
is bound by the regulations it promulgates. See, e.g., Service v.
Dulles, 354 U.S. 363 (1957); Cruz-Casado v. United States, 213
Ct. Cl. 498, 502-03 (1977). However, an alleged violation of
USPS regulations cannot form. the basis for jurisdiction in this
court. Of course, if jurisdiction is established on some other
basis, plaintiff may rely on any regulation applicable to him in
seeking relief.
Il. An Act of Congress
In 1978 Congress enacted the Civil Service Reform Act (the
Act or CSRA) as a comprehensive revision of the laws pertaining
* Ii is not clear whether plaintiff is also making a claim under regulations
issued by the Office of Personnel Management pertaining to probationary
employees. Defendant correctly points out, however, that postal service em-
ployees are specifically excluded from coverage by those regulations. 39 U.S.C.
§ 410. In any case, by virtue of the analysis in the text, OPM regulations
would not appear to form an appropriate basis for assertion of jurisdiction
under the Tucker Act. See 5 U.S.C. $§ 101, 104, 1101. See generally 26 Op.
Att'y Gen. 209, 210-11 (1907).
A-6
to the civil service. This case presents the issue left open by the
Court of Claims in Montalvo v. United States, No. 675-81C,
order at 6-7 (Ct. Cl. Sept. 10, 1982) (order granting summary
judgment), whether, after passage of the Civil Service Reform
Act, a probationary employee may bring an action in this court
seeking review of an agency's decision to dismiss him.°
The Civil Service Reform Act does not, on its face, allow
probationary employees to bring a claim under the Tucker Act.
The CSRA merely provides that before receiving a permanent
appointment, employees will serve a probationary period, sub-
ject to the President's broad power to regulate the terms and
conditions of probationary employment. 5 U.S.C. § 3321(a).*
The absence of an express statutory provision does not, how-
ever, automatically foreclose jurisdiction under the Tucker Act.
Decisions of the Court of Claims have left open the possibility
that jurisdiction may be based upon legislation which “can fairly
be interpreted as mandating compensation by the Federal Gov-
ernment. Eastport Steamship Corp. v. United States, 178 Ct.
Cl. 599, 607 (1967).
Although the Eastport Steamship standard has been fre-
quently cited by the Court of Claims, e.g., Barber v. United
States, 230 Ct. Cl. ___., ____,, 676 F.2d 651, 654 (1982); Dun-
can v. United States, 299 Ct. Cl. _.., —_., 667 F.2d 36, 47
(1981); Adair v. United States, 227 Ct. Cl. ___, ___., 648 F.2d
1318, 1322 (1981), the cases provide little guidance as to what
methodology to follow in determining whether a statute may
fairly be interpreted as creating a right to proceed under the
Tucker Act. Fortunately, the applicable principles have been
? In Montalvo the issue was considered by an in-chambers panel during the
last month of the Court of Claims’ existence. The court wisely felt that
resolution of such an important question should be reserved for a determina-
tion based upon full oral argument before the new Federal Circuit which
would have appellate jurisdiction over all matters under the CSRA. Order at
6-7. This court does not read this ruling as precluding consideration of the
issue but, rather, as an invitation to treat the matter with the care and
deliberation it deserves.
* This absence of an express statutory entitlement stands in sharp contrast
to other provisions pertaining to the civil service, e.g., 5 U.S.C. §§ 8715,
8912, which clearly evince a congressional intent that this court have jurisdic-
tion.
A-7
comprehensively set forth by the Supreme Court in a line of
cases starting with Cort v. Ash, 422 U.S. 66 (1975).
Cort v. Ash and its progeny deal with the question of when
statutes implicitly create private rights of action. The cases deal
with situations where Congress has created certain rights or
benefits, but has failed to expressly authorize the federal courts
to entertain actions by the beneficiaries to enforce those rights.°
Cort establishes a four-part test to determine whether a right
of action may be inferred:
First, is the plaintiff “one of the class for whose espe-
cial benefit the statute was enacted,” Texas & Pacific
R. Co. v. Rigsby, 241 U.S. 33, 39 (1916) (emphasis
supplied)—that is, does the statute create a federal
right in favor of the plaintiff? Second, is there any
indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one? See,
e.g., National Railroad Passenger Corp. v. National
Assn. of Railroad Passengers, 414 U.S. 453, 458, 460
(1974) (Amtrak). Third, is it consistent with the un-
derlying purposes of the legislative scheme to imply
such a remedy for the plaintiff? See, e.g., Amtrak,
supra; Securities Investor Protection Corp. v. Bar-
bour, 421 U.S. 412, 423 (1975); Calhoon v. Harvey,
379 U.S. 134 (1964). And finally, is the cause of action
one traditionally relegated to state law, in an area
basically the concern of the States, so that it would he
inappropriate to infer a cause of action solely on fed-
eral law?
* The Cort v. Ash line of cases points out the subtle but important distinction
between congressional intent to create a substantive entitlement and the
intent to create a right to enforce that entitlement by suit in federa) court.
Congress frequently creates entitlements which it entrusts wholly to the
administrative process. See p. 12 & n. 8 infra. In determining whether suit
may be brought under 28 U.S.C. § 1491, the court must therefore be careful
to determine not only whether Congress intended that the plaintiff be the
beneficiary of an entitlement, but also whether it intended that he be able to
enforce such entitlement by suit for money damages in this court. See United
States v. Testan, 424 U.S. at 400-02.
A-8
422 U.S. at 78. Naturally, in a case such as this, involving the
federal employment relationship which is created wholly by
federal statute, only the first three of the Cort factors have
relevance.
Over the vears, the Court has clarified the Cort v. Ash test.
Thus, in Touche Ross ¢ Co. v. Redington, 442 U.S. 560. 575-76
(1979), the Court noted that the factors are not all entitled to
equal weight:
The central inquiry remains whether Congress in-
tended to create, either expressly or by implication, a
private cause of action. Indeed, the first three factors
discussed in Cort—the language and focus of the stat-
ute, its legislative history, and its purpose, see 422
U.S., at 78—are ones traditionally relied upon in
determining legislative intent.
The Cort test has, moreover, proved to be a stringent one and
the Court has not lightly inferred congressional intent to create
a private right of action. See, e.g., Jackson Transit Authority v.
Local 1285, Amalgamated Transit Union, ___. U.S. —___., 50
U.S.L.W. 4603 (June 8, 1982); Middlesex County Sewerage
Authority v. National Sea Clammers Ass'n, 453 U.S. 1 (1981);
California v. Sierra Club, 451 U.S. 287 (1981); Chrysler Corp.
v. Brown, 411 U.S. 281 (1979); Santa Clara Pueblo v. Martinez,
436 U.S. 49 (1978); Piper v. Chris-Craft Industries, 430 U.S. 1
(1977;
The CSRA is the first major revamping of the federal service
since its creation by the Pendelton Act of 1883, almost a century
earlier. The Act was passed in response to persistent criticisms
of the civil service. While it addressed a multitude of problems,
two goals were viewed as paramount: (1) to define precisely and
comprehensively the rights of federal employees and the prin-
ciples under which the federal merit system would operate; and
(2) to facilitate and expedite the process of dealing with unsatis-
A-9
factory employees by broadening the authority of federal man-
agers and by streamlining the administrative and judicial review
process. To achieve these goals, the multitude of laws governing
the civil service, haphazardly enacted over the years, were
carefully reviewed and amended by the Act.
The move for reform began in June 1977 when President
Carter established the Personnel Management Project under
the direction of Dwight Ink. The project took five months to
complete and involved 110 employees who staffed nine different
task forces. Seventeen public hearings were held throughout
the United States and approximately 7,000 individuals and 800
organizations participated in the consultation process. See S.
Rep. No. 969, 95th Cong., 2d Sess. 13 (1978). When the project
was completed, Mr. Ink could justly claim that this was “the
most comprehensive review of the Federal civil service system
ever undertaken.” Letter from Dwight Ink to Allan K. Camp-
bell, Chairman of the Civil Service Commission (Dec. 20, 1977),
reprinted in 1 The President's Reorganization Project, Final
Staff Report, before Table of Contents (December 1977) (the
“Ink Report”).
The project report, which comprises three volumes and al-
most a thousand pages, made numerous recommendations for
reform. While the recommendations covered many areas, they
were all designed to “help restore an appropriate balance be-
tween [the] sometimes competing needs for flexibility and effi-
ciency on the one hand, and adequate safeguards on the other,
in order to foster effective, fair management in the Federal
Government.” | Ink Report vii.
On the basis of the Ink Report, the President developed a
legislative proposal which was submitted to Congress in March
* See, e.g., Civil Service (Pendleton) Act of 1883, ch. 27, 22 Stat. 403;
Tenure of Office Act, ch. 154, 14 Stat. 430 (1867); Lloyd-LaFollette Act, ch.
389, § 6, 37 Stat. 555 (1912); Civil Service Retirement Act of 1930, ch. 349, 46
Stat. 468; Hatch Political Activity Act, ch. 410, 53 Stat. 387; Government
Employees’ Incentive Awards Act, ch. 1208, §§ 301-307, 68 Stat. 1105, 1112-
14 (1954); Government Employees’ Training Act, Pub. L. No. 85-507, 72 Stat.
327 (1958); Dual Compensation Act, Pub. L. No. 88-448, 78 Stat. 484 (1964):
Back Pay Act of 1966, Pub. L. No. 89-380, 80 Stat. 94; Federal Pay Compara-
bility Act of 1970, Pub. L. No. 91-656, 84 Stat. 1946 (1971).
A-10
of 1978 as S. 2640. In his transmittal letter, the President
stressed that the proposal, which was to be “the centerpiece of
government reorganization during (his! term in office,” was
designed to correct the “bureaucratic maze which neglects merit,
tolerates poor performance, permits abuse of legitimate em-
plovee rights, and mires every personnel action in red tape,
delay and confusion.” President's Message to Congress trans-
mitting draft legislation, Mar. 2, 1978, reprinted in H.R. Doc.
No. 299, 95th Cong., 2d Sess. 622 (1978).
While giving due consideration to the Ink Report and the
President's recommendations, both Houses of Congress under-
took independent and detailed examinations of the civil service
system and the need for reform. The Senate Committee on
Governmental Affairs held 12 days of public hearings, receiving
testimony from 86 witnesses representing 55 organizations. See
S. Rep. No. 969, supra, at 1-2. Senator Percy held four addi-
tional days of informal field hearings. Hearings on S. 2640, S.
2707 and S. 2839 Before the Committee on Governmental Af-
fairs, 95th Cong., 2d Sess. (1978) (Appendix). Written responses
were also received from 69 individuals and organizations. Id.
The House held 13 days of hearings (six of those on location at
various departments and agencies) and received the testimony
of over 140 witnesses. In addition, written statements were
received from 36 individuals and organizations. Hearings on
H.R. 11280 Before the Committee on Post Office and Civil
Service, 95th Cong., 2d Sess. (1978).
Subsequent to these hearings, the bills underwent five sepa-
rate markup sessions in the Senate and ten in the House.
Committee on Governmental Affairs, United States Senate,
Markup Session on S. 2640, Civil Service Reform Act of 1978
(unpublished transcript of May 22, June 7, 8, 12, 14, 1978);
Committee on Post Office and Civil Service, U.S. House of
Representatives, 95th Cong., 2d Sess., Markup Meetings on
H.R. 11280, A Bill to Reform the Civil Service Laws (1978). The
Committees produced lengthy reports which contained numer-
ous separate and dissenting views. See S. Rep. Nos. 969, 1049,
95th Cong., 2d Sess. (1978); H.R. Rep. Nos. 920, 1396, 1403,
95th Cong., 2d Sess. (1978). The legislation was debated for six
A-ll
days on the House floor and for two days on the Senate floor.
The combined legislative history (excluding the Ink Report)
takes up almost 6,000 pages.
A careful review of this background to the Civil Service Re-
form Act leads to the inescapable conclusion that all participants
considered the Act to be a comprehensive reorganization of the
civil service system. See, e.g., President's Message to Congress,
Mar. 2, 1978, supra, at 623; President's Message to Congress
transmitting Reorganization Plan No. 2, May 23, 1978, re-
printed in H.R. Doc. No. 341, 95th Cong., 2d Sess. 630, 631
(1978); 124 Cong. Rec. $14282 (daily ed. Aug. 24, 1978) (state-
ment of Sen. Javits); 124 Cong. Rec. $17082-83 (daily ed. Oct.
4, 1978) (statement of Sen. Ribicoff); 124 Cong. Rec. H8462
(daily ed. Aug. 11, 1978) (statement of Rep. Udall); Hearings on
S. 2640. S. 2707 and S. 2830, supra, at 59 (statement of James
T. McIntyre, Jr., Director of OMB) (April 6, 1978).
When finally written into law, the CSRA introduced a num-
ber of concepts and procedures which were radically different
from prior law. E.g., 5 U.S.C. §§ 2301-05 (enumeration of merit
system principles and prohibited personnel practices); 5 U.S.C.
§§ 3131-3597 (establishment of the Senior Executive Service).
In other respects, the law was changed only slightly or was left
totally unchanged. E.g., 5 U.S.C. §§ 7321-27 (restrictions on
employees’ right to engage in political activities). However, it is
clear that the Act as finally passed constituted a delicate balance
between a multitude of competing interests and a carefully
drawn compromise between sharply divergent views as to what
rights ought to be afforded federal employees and how much
leeway should be given supervisors in implementing personnel
management policies.
In light of this history, the court must be exceedingly careful
in interpreting the Act so as not to import into its painstakingly
crafted scheme, procedures and remedies unintended by the
Act’s drafters and inconsistent with the balance it establishes.
Cf. Brown v. GSA, 425 U.S. 820 (1976) (interpreting Title VII
of Civil Rights Act as comprehensive scheme to redress federal °
employment discrimination).
A-12
C.
1. The court is persuaded that plaintiff is within the class of
individuals for whose especial benefit the CSRA was enacted.
Cort, 422 U.S. at 78. While the Act was designed to meet
several competing goals, see pp. 5-10 supra, there can be little
doubt that the rights and status of federal employees were
seriously considered by the Congress and that substantial thought
was given to securing those rights through mechanisms in the
CSRA. While probationers constitute a subclass of the larger
class of federal employees, they are not unintended or incidental
beneficiaries of the Act. It therefore follows that the first test of
Cort is met.
2. Plaintiff's claim fares considerably less well under the
second test of Cort. 422 U.S. at 78. The statute and its legisla-
tive history reveal no congressional intent to grant probationers
the right to a judicial remedy for dismissal. Indeed, there is
much to suggest the contrary.
While treating probationary employees like other employees
for most purposes, see, e.g., 5 U.S.C. § 4301(2), the Act draws
a sharp distinction in the treatment of these employees when
they become the subject of an adverse action—a suspension,
removal or reduction in grade. While tenured employees are
afforded a panoply of-rights for the more serious of these actions,
including the right to 30 days’ notice, to answer charges, to be
represented by an attorney, to a written decision and ultimately
to an appeal to the Merit Systems Protection Board, 5 U.S.C. §
7513, probationary employees are pointedly excluded. Id. §
751 1(a\(1\A). See Hernandez vy. Department of the Treasury,
No. 3-81, slip op. at 3 (Ct. Cl. Feb. 26, 1982); Budnick v.
MSPB, 643 F.2d 278, 279 (5th Cir. 1981). Probationary employ-
ees are denied even the more limited rights afforded tenured
employees who suffer suspensions for 14 days or less. 5 U.S.C.
§ 7501 (1980).
This limitation on the rights of probationary employees was
not an oversight; it was a conscious decision by Cougress to
afford federal managers great latitude in removing probationary
employees before they become vested with the rights afforded
A-13
tenured employees. See H.R. Rep. No. 1403, 95th Cong., 2d
Sess. 21 (1978); Borrell v. ICA, 682 F.2d 981, 987-88 (D.C. Cir.
1982). Indeed, Congress viewed the probationary period as “an
extension of the examining process to determine an employee's
ability to actually perform the duties of the position.” S. Rep.
No. 969, supra, at 45. Thus, under the Act as elucidated by its
legislative history, probationary employees appear, to have rights
no greater than those of applicants for federal employment;
these rights cannot form a basis for suit in this court under 28
U.S.C. § 1491.
3. The third Cort test is whether it is consistent with the
legislative purpose to infer a right of probationary employees to
bring an action in this court. 422 U.S. at 78. It clearly appears
not.
To hold that probationary employees may obtain direct judi-
cial review of agency actions would stand the carefully drawn
statutory scheme on its head and undermine one of the principal
purpose of the CSRA—to enable federal managers to exclude
unsuitable employees from the federal workforce. In establish-
ing the Merit Systems Protection Board, Congress created a
system whereby personnel actions which are to be reviewed
outside the employing agency are first considered within the
executive branch and reach the federal courts at the appellate
level on the basis of the administrative record. 5 U.S.C. § 7503.
These protections are afforded to tenured employees. It would
be totally anomalous for Congress to have afforded probationary
employees greater rights by entitling them to a judicial trial
while affording tenured employees only a hearing before an
MSPB presiding official.
To be sure, Congress did expect that, in deciding whether to
terminate a prcbationary employee, agency managers exercise a
good faith judgment. This does not, however, tra slate into a
right to judicial review of that decision.’ As with the great
’ The Supreme Court in Testan specifically rajacted the argument that
jurisdiction must be inferred whenever a violation is alleged because a party
might otherwise have a right without a remedy enforceable in this court. 424
U.S. at 401-02. See also United States v. Erika, Inc., 50 U.S.L.W. 4399 (U.S.
Apr. 20, 1982) (no rightt to judicial review of the amount of Medicare Part B
benefits).
A-14
majority of decisions made by officers of the federal govern-
ment, the principal guarantee of propriety and lawfulness lies in
the acting official's good faith and honesty which are, of course,
presumed.* See INS v. Miranda, 51 U.S.L.W. 3358, 3359 (U.S.
Nov. 9, 1982) (per curiam); Staskus v. United States, 2 USCCR
No. 27, at 4, 8 (Dec. 10, 1982) (LYDON, J.). See generally,
Sanders v. United States, 219 Ct. Cl. 285, 302 (1979) & cases
cited therein. Doubtless, errors or abuses may still occur.’ But
the judicial review process can introduce abuses of its own.
Exposing the personnel decision-making process to judicial
scrutiny—and the panoply of procedures and delays associated
therewith—undermines its integrity by increasing the likeli-
hood that managers will refrain from terminating employees
during probation even when they think it appropriate to do so.
This burden on managerial decision making would be far from
insignificant. Tens of thousands of employees are given proba-
tionary appointments each year, and a significant number of
them are terminated during the probationary period. See gen-
erally Office of Personnel Management, Personnel Agency
Counts (PAC) Reports (FY 1981). The prospect of litigation in
this court as to even a portion of those terminations could
undermine the function of the probationary period as an integral
part of the examining process, when supervisors are meant to
exercise broad discretion in determining the applicant's suitabil-
ity for the position. See p. 11 supra.'®
* Indeed, the CSRA itself provides numerous procedures which quite clearly
are relegated to an agency's unreviewable discretion. See, e.g., 5 U.S.C. §§
7501-03 (suspensions for 14 days or less); id. § 3592 (removals from the Senior
Executive Service). See also Borrell v. ICA, 682 F.2d at 988 (decision of
Special Counsel of the Merit Systems Protection Board whether to bring
corrective action is not judicially reviewable).
* Judicial review does not, in any case, guarantee that all errors will be
corrected. Even criminal proceedings, heavily weighted to resolve all doubts
in favor of the accused, occasionally result in incorrect guilty verdicts. See,
e.g., Pardon Based on Innocence, Washington Post, October 28, 1981, at A3,
col. e. See also 28 U.S.C. § 1495 (authority of this court to entertain action by
individuals unjustly convicted and confined).
This case is illustrative. Even though still in its early stages, three depo-
sitions have been taken, covering over 230 pages of transcript. Plaintiff's
immediate supervisor, Ms. Pervarnik, testified for 4 hours; Mr. Baker the
postmaster, testified for 2 hours and 45 minutes over a period of two days. It
A-15
The Act's drafters were acutely aware that the fear of pro-
tracted litigation can be a strong deterrent to federal managers
wanting to impose needed discipline, and one of the major
purposes of the CSRA was to eliminate or minimize this deter-
rent. See, e.g., Ink Report, supra, at 5, 40, 52; S. Rep. No. 969,
supra, at 9, 24, 40; President's Message to Congress, Mar. 2,
1978, supra, at 625-26; 124 Cong. Rec. $14312 (daily ed. Aug.
24, 1978) (statements of Senators Bellmon and Ribicoff); Hear-
ings on H.R. 111280, supra, at 55-56 (statement of Hon. Joseph
Califano, Secretary of HEW); Markup Meetings on H.R. 11280,
supra, at 97 (statement of Rep. Udall).
Only Congress can determine the appropriate balance be-
tween the rights of employees and the prerogatives of managers.
The federal courts in general, and this court in particular, see p.
2 supra, must be exceedingly careful not to substitute their
judgment by presuming that judicial review must have been
intended. See United States v. Testan, 424 U.S. at 399-400.
Here Congress appears to have made a clear choice: it created
no rights under the CSRA which could form the basis for an
action by probationers under 28 U.S.C. § 1491. Moreover, one
house of Congress expressly admonished that “[iJt is inappro-
priate to restrict an agency's authority to separate an employee
who does not perform acceptably during [the probationary]
period.” S.Rep No. 969, supra, at 45. This is a clear statement
that an agency's discretion is not to be made subject to admin-
isi ative or judicial review.
D.
Plaintiff, however, points to a line of Court of Claims cases
which holds that the court has authority to review probationary
employee dismissals under either an “arbitrary and capricious”
standard, e.g., Greenway v. United States, 163 Ct. Cl. 72 (1963),
or to determine whether agency officials exercised an “honest
judgment,” e.g., Perlongo v. United States, 215 Ct. Cl. 982
is not unlikely that, remembering the delay, inconvenience and inherently
intimidating atmosphere of these depositions, these supervisors may become
more reluctant to dismiss probationary employees in the future.
A-16
(1977)."! These cases were decided, however, before the effec-
tive date of the Civil Service Reform Act. As demonstrated, the
Act constitutes a complete overhaul of the civil service system
and of the rights of federal en:plovees. Since the cited cases
were decided under prior law, they constitute merely persua-
sive authority. See Piskadlo v. Veterans’ Administration, 668
F.2d 82, 84 (1st Cir. 1982) (Davis, J., by designation) (explicitly
recognizing that the Greenway-Perlongo line of cases must be
reappraised in light of the CSRA).
The Court of Claims decided these cases in the context of the
pre-CSRA situation which was described as “an outdated patch-
work of statutes and rules,” S. hep. No. 969, supra, at 3, and a
“welter of inflexible strictures that have developed over the
years [and] threaten to asphyxiate the merit principle itself.” Id.
While good reason may then have existed for inferring a
congressional grant of jurisdiction to review dismissals of pro-
bationary employees, no such basis exists after Congress has
carefully and comprehensively reviewed and catalogued em-
ployee rights in the CSRA."” In any case, the Court of Claims
itself expressly left the issue open in Montalvo v. United States,
No. 675-81C, supra.
" Defendant suggests that these cases were wrongly decided and, appar-
ently, invites the court to overrule them. While the United States Claims
Court is not of necessity bound by the precedents set by the United States
Court of Claims, the judges of this court have determined that prudential
considerations make it appropriate to give Court of Claims precedents full
force and effect. General Order No. 1, ___ F. Supp. —_. (1982). See South
Louisiana Grain Services, Inc. v. United States, 1 USCCR No. 17, at 11 (Nov.
2, 1982) (LYDON, J.). Thus, this court is not authorized to overrule prece-
dents of the Court of Claims.
“In the extensive legislative history of the CSRA there is no hint that
Congress was aware of the handful of cases holding that Court of Claims
review of probationary employee dismissals was appropriate. Therefore, it
cannot be inferred that Congress acquiesced in the practice. See Helvering v.
Hallock, 309 U.S. 106, 119-21 (1940); of. United States v. Rutherford, 442
U.S. 544, 554 n.10 (1979).
A-17
Ill. The Constitution
A.
At oral argument, counsel for plaintiff asserted the first
amendment as a basis for jurisdiction.’ He suggested that plain-
tiff was fired in retaliation for complaints he had made about the
absence of safety procedures. See p. 2 supra; Complaint § 34.
Because neither party had addressed this question, the court
requested supplemental briefs to assist it in resolving what
appears to be a troublesome issue. Order of November 3, 1982.
The Court of Claims has generally taken a very restrictive
view as to when a constitutional provision can form the basis for
suit under the Tucker Act. The rule has been that to form the
basis for jurisdiction, “the constitutional provision [must] in
itself obligate the Federal Government to pay money damages.”
Walton v. United States, 213 Ct. Cl. 755, 757 (1977). Tradition-
ally, the only constitutional provision construed as mandating
compensation has been the taking clause of the fifth amend-
ment, Clark v. United States, No. 658-80C, order at 8 (Ct. Cl.
Nov. 6, 1981), the court having consistently rejected such other
provisions as the due process and equal protection clauses. See,
e.g., Inupiat Community of the Arctic Slope v. United States,
231 Ct. C]. __, ___.. 680 F.2d 122, 132 (1982); Walton v.
United States, 213 Ct. Cl. at 757 (1977); Muehlen v. United
States, 209 Ct. Cl. 690 (1976).
The Court of Claims’ treatment of the first amendment as a
basis for jurisdiction has been less consistent. On the one hand,
in Featheringill v. United States, 217 Ct. Cl. 24, 33 (1978), the
court held that “the First Amendment .. . no more mandates
the payment of money than does the due process clause and,
thus, may not serve as a jurisdictional basis for plaintiff's law
suit.” Accord Clark, No. 658-80C, supra. On the other hand, in
Jackson v. United States, 192 Ct. Cl. 765, 768 (1970), the court
held that a probationary employee's claim that he was dis-
charged in retaliation for the exercise of first amendment rights
was “ ‘founded upon the constitution’ of which we have jurisdic-
® Plaintiff also suggested that jurisdiction might be based on the fifth
amendment but has since withdrawn that claim.
A-18
tion by virtue of 29 U.S.C. 1491(1)... .” Accord Bowman v.
United States, No. 577-79C, order at 2 (Ct. Cl. Mar. 6, 1981).
Featheringill, decided some eight years after Jackson, recog-
nized the tension with that earlier decision and sought to distin-
guish it. The plaintiff in Featheringill had received a temporary
appointment which expired, by its own terms, after one year.
Plaintiff argued that the government's failure to reappoint him
was motivated by retaliation for the exercise of his rights under
the first amendment. 217 Ct. Cl. at 26-27. After rejecting plain-
tiff’s argument that jurisdiction was based upon the Back Pay
Act, 5 U.S.C. § 5596, 217 Ct. Cl. at 27-32, the court turned to
the first amendment. It assumed, for purposes of the decision,
that plaintiff had stated a valid claim of retaliation under the first
amendment. a claim which could form the basis for relief if
jurisdiction were established. The court nevertheless concluded
that “even where a substantive right may exist, such a right does
not of necessity mean that money damages are available [in the
Court of Claims} to redress its possible violation.” Id. at 32. As
noted earlier, the court held that the amendment could not
form a basis for jurisdiction under the Tucker Act and therefore
dismissed the action.
The Featheringill court distinguished Jackson in a single par-
agraph, noting that Jackson had involved a dismissal while the
case before it involved a failure to reappoint. The court reasoned
that in the non-reappointment situation the employee had no
entitlement to the job whereas, presumably, the probationary
employee in Jackson had some expectation of continued em-
ployment. The distinction now appears unpersuasive on at least
two grounds.
First, an employee's expectations of continued employment
under the civil service laws would seem to have no bearing on
whether the first amendment is a money mandating provision
which can form the basis for jurisdiction under the Tucker Act.
Once it is concluded that the first amendment does not mandate
the payment of money, it is difficult to see how that conclusion
can be altered by any expectations the plaintiff may have arising
from statutes or regulations governing the terms of his employ-
ment.
A-19
Second, the notion that probationary employees have rights
greater than those of limited term employees has been seriously
undermined by the Civil Service Reform Act. As discussed
earlier, under the CSRA probationary employees were intended
to have rights no greater than those of applicants for employ-
ment since the probationary period is considered to be merely
an extension of the employment examination process. Se’ p. 11
supra. Thus, whatever basis may have existed for distinguishing
Jackson at the time of Featheringill has now been eroded by
enactment of the CSRA.
Despite the apparently irreconcilable tension between Feath-
eringill and Jackson, the Court of Claims treated both lines of
cases as good law to the end. Compare Clark v. United States,
No. 658-80C, supra, at 8, and Mullins v. United States, No.
240-81C, order at 3 (Ct. Cl. Oct. 30, 1981) (cases relying on
Featheringill); with Cole v. United States, 231 Ct. Cl. —_.,
___., 689 F.2d 1040, 1041 (1982) and Bowman vy. United States,
No. 577-79C, supra, at 2 (cases relying on Jackson).
While it appears difficult to reconcile these two lines of case,
this court is without authority to choose between them. Under
our General Order No. 1, see n.11 supra, the court is bound to
respect and follow precedents established by the Court of Claims
“unless and until modified by decisions of the United States
Court of Appeals for the Federal Circuit or the United States
Supreme Court.” See also Federal Deposit Ins. Corp. v. Fagan,
459 F. Supp. 933, 935 (D.S.C. 1978); Lakeside Community
Hospital v. Tahoe Regional Planning Agency, 461 F. Supp.
1150, 1153 (D. Nev. 1978). While it may, of course, reexamine
those decisions which have lost vitality because of changes in
the statutes they were interpreting, see p. 14 supra, the court is
bound to respect Featheringill’s decision to leave Jackson un-
impaired, albeit confined to its facts. Because this case involves
the dismissal of a probationary employee, as in Jackson, the
court concludes that it has jurisdiction over that portion of
plaintiff's claim which is based upon the first amendment. “*
“ The position taken by defendant in its brief on the issue is somewhat
unclear. In one portion of its brief, it appears to concede the court's jurisdic-
tion, in general, to entertain first amendment claims of probationary employ-
ees, subject to certain prudential limitations. See Def. Supp. Mem.
A-20
B.
While the court considers its conclusion inevitable under the
law as left by the Court of Claims, it believes the issue to be
ripe for consideration by the Court of Appeals for the Federal
Circuit. As of October 1, 1982, that court has jurisdiction over
all appeals from the Merit Systems Protection Board and will
consider the lion's share of post-CSRA federal employment cases.
The Federal Circuit thus has the authority, as well as the exper-
tise and breadth of vision, to decide whether Featheringill and
Jackson can continue to coexist after the passage of the CSRA,
and, if not, which case shall survive. Guidance on this issue
would be welcomed by this court.
Because the court is of the view that this issue of jurisdiction
over plaintiff's first amendment claim involves a controlling
question of law with respect to which there is substantial ground
for difference of opinion, and that resolution of this question
would materially advance the ultimate termination of the litiga-
tion, the court certifies the issue pursuant to 28 U.S.C. §
1292(d)(2), should defendant seek an interlocutory appeal under
that section.
CONCLUSION
The court grants defendant's motion in part, finding a lack of
jurisdiction over plaintiff's claim insofar as it is based upon an
Act of Congress or a regulation of an executive department. The
court denies plaintiff's motion for summary judgment. The court
concludes that it has jurisdiction over that portion of plaintiff's
Juris. 10-12. In other portions of the same brief, defendant appears to argue
that jurisdiction could not, after all, be based upon the first amendment, but
that the first amendment could only be considered once jurisdiction had been
otherwise established. Jd. at 12-14.
In light of the somewhat contradictory state of the law, this lack of consist-
ency is perhaps understandable. Nevertheless, even if one were to view
defendant's argument as conceding jurisdiction, it would not be binding on
the court since the parties may not, by argument or estoppel, confer upon the
court jurisdiction not granted by Congress. Indian Wells Valley Metal Trades
Council v. United States, 2 USCCR No. 9, at 6 (Nov. 24, 1982) (WIESE, J.).
A-21
claim which is based upon allegations that the dismissal was
taken in retaliation for the exercise of first amendment rights,
but certifies this issue for possible interlocutory appeal.
Within 20 days, defendant shall file with the court an answer
to those portions of plaintiff's complaint not rendered moot by
this opinion or, in the alternative, a motion for stay of proceed-
ings pursuant to 28 U.S.C. § 1292(d)(3) based upon counsel's
representation that application for an interlocutory appeal has
been filed in a timely fashion with the court of appeals.
IT IS SO ORDERED.
December 15, 1982.
A-22
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
THE UNITED STATES,
Appellant,
Vv.
PATRICK J]. CONNOLLY,
Appellee.
Appeal No. 83-651
DECIDED): September 6, 1983
Before MARKEY, Chief Judge, FRIEDMAN, RicH, Davis, NI-
CHOLS, BALDWIN, KASHIWA, BENNETT, MILLER, SMITH and
Nes, Circuit Judges.
Davis, Circuit Judge.
This case comes to us on interlocutory appeal from a decision
of the United States Claims Court pursuant to § 125(b) of the
Federal Courts Improvement Act of 1982, Pub. L. No. 97-164,
96 Stat. 25, 36-37 (1982) (codified at 28 U.S.C. § 1292(d)(2)).’
' The relevant portion of 28 U.S.C. § 1292 provides:
(d\2) When any judge of the United States Claims Court, in issuing an
interlocutory order, includes in the order a statement that a controlling
question of law is involved with respect to which there is a substantial
ground for difference of opinion and that an immediate appeal from that
order may materially advance the ultimate termination of the litigation,
the United States Court of Appeals for the Federal Circuit may, in its
discretion, permit an appeal to be taken from such order, if application is
made to that Court within ten days after the entry of such order.
The language of § 1292(d\(2) is virtually identical to 28 U.S.C. § 1292(b)
(1976), which governs interlocutory review by other courts of appeals. That
subsection provides, in pertinent part:
(b) When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that such
order involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate from the
order may materially advance the ultimate termination yes gee
he shall so state in writing in such order. The Court of
thereupon, in its discretion, south an Gaieel 4a toh Gare eal
— if application is made to it within ten days after the entry of the
oS
A-23
The trial judge granted the government's motion to dismiss
appellee's wrongful removal action in part, but denied the gov-
ernment’s full motion for judgment. The court held that it
possessed jurisdiction “over that portion of [appellee's] claim
... based upon allegations that the dismissal was taken in
retaliation for the exercise of first amendment rights.” Connolly
v. United States, 1 Cl. Ct. 312, 323, F. Supp. 1250, 1262 (1982).
Finding the first amendment claim “ripe for consideration” by
this court, the Claims Court certified the question of its jurisdic-
tion over the first amendment claim to us. This court has granted
interlocutory review. Because we now conclude that the Claims
Court is without jurisdiction to entertain wrongful removal ac-
tions by probationary employees of the Postal Service—whether
or not such claims involved first amendment allegations—we
affirm in part and reverse in part.
Appellee Connolly commenced employment as a probation-
ary employee of the United States Postal Service (USPS) on
April 4, 1981, at the Flagstaff, Arizona, post office. Serving as a
postal clerk, his tasks included, among other things, mail sorting
and the lifting of heavy cages containing parcel post packages.
One month after Connolly began his service at USPS, he re-
ceived an initial performance evaluation from his supervisor.
That evaluation assessed appellee's productivity as “unsatisfac-
tory,” and it characterized him as an individual who did not
accept criticism gracefully. The supervisor noted, however, that
appellee's attitude toward criticism had improved somewhat
since his hiring.
In the meantime, Connolly began to experience severe pain
in his forearms and a numbness in his fingers. He consulted a
neurologist, who diagnosed his malady as bilateral carpal tunnel
syndrome, a condition which the doctor attributed to appellee's
duties. Connolly, at the specialist's recommendation, began to
wear braces on his arms. He also filed a compensation claim
with the Department of Labor. The next day— May 13, 1981—
Connolly received a second performance evaluation; it charac-
A-24
terized his attitude as unsatisfactory with respect to “productiv-
ity and work habits,” “safety,” and “acceptance of criticism.”
On the following day, Connolly submitted a letter to the
postmaster at the Flagstaff office, explaining the nature of his
injury and recommending safety procedures for lifting and car-
rying mail. The postmaster returned the letter to him without
comment. Later that day, Connolly received a removal notice,
separating him for unsatisfactory performance.
Connolly filed a wrongful removal suit in the Court of Claims,
seeking reinstatement, back pay, damages, and various other
forms of relief. He alleged that his poor performance evaluations
and resulting dismissal were motivated by his injury, his com-
pensation claim, and his grievances about the lack of proper
safety procedures. The government filed a motion for summary
judgment, contending that the Civil Service Reform Act of 1978
precluded probationary employees such as appellee from filing
wrongful removal actions in the then Court of Claims.’ Treating
the government's motion as a motion to dismiss the complaint,
the trial court dismissed that part of plaintiff's complaint based
upon statutory and regulatory provisions. The court held that it
had no jurisdiction over appellee's claims because alleged viola-
tions of Postal Service regulations “cannot form the basis for
jurisdiction in {the Claims Court]},” and because the Civil Ser-
vice Reform Act of 1978 effectively bars judicial review of an
agency's dismissal of a probationary employee. Connolly v.
United States, supra, 1 Cl. Ct. at 314-21, 554 F. Supp. at 1254-
60.
However, the trial judge denied the government's motion
insofar as it suggested that the first amendment? did not provide
the court with jurisdiction over the appellee's claim. In review-
* Both parties filed cross-motions for summary judgment in the Court of
Claims prior to October 1, 1982, the effective date of the Federal Courts
Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 25. The case was
transferred to the United States Claims Court on that date.
> U.S. Const. amend. I provides:
Congress shal] make no law respecting an establishment of religion, or
prohibiting the free exercise thereof, or abridging the freedom of speech,
or of the press; or the right of the people peacea! ly to assemble, and to
petition the Government for a redress of grievances.
A-25
ing Court of Claims precedent on the question of whether the
first amendment may serve as a basis for jurisdiction, the court
discerned an “irreconcilable tension” between Featheringill v.
United States, 217 Ct. Cl. 24 (1978) and Jackson v. United
States, 192 Ct. Cl. 765, 428 F.2d 844 (1970). The court con-
cluded that it possessed “jurisdiction over that portion of [appel-
lee’s} claim which is based upon the first amendment,” Connolly,
supra, 1 Cl. Ct. at 323, 554 F. Supp. at 1261, and certified that
issue to this court for review.
Il
At the outset we note that our action on this appeal is not
circumscribed by the terms of the: trial court's certification.
Section 1292(d)(2), like its counterpart § 1292(b), see supra note
1, permits interlocutory appeals from trial court orders involv-
ing, to some extent, a controlling question of law which is the
subject of certification. See, e.g., Nuclear Engineering Co. v.
Scott, 660 F.2d 241, 276 (7th Cir. 1981), cert. denied, 455 U.S.
993 (1982); Consolidated Express, Inc. v. New York Shipping
Association, 602 F.2d 494, 502 (3d Cir. 1979), vacated on other
grounds, 448 U.S. 902 (1980); Dyke v. Gulf Oil Corp., 601 F.2d
557, 559 n.3 (Temp. Emer. Ct. App. 1979); Johnson v. All-
dredge, 488 F.2d 820, 822-23 (3d Cir. 1973), cert. denied, 419
U.S. 882 (1974). Both sections require the courts of appeals to
decide appeals from trial court orders, not merely the particular
question certified. Bersch v. Drexel Firestone, Inc. 519 F.2d
974, 994 (2d Cir. 1975), cert. denied, 423 U.S. 1018 (1976);
Johnson, supra, 488 F.2d at 823.
The legislative history underlying § 1292(b) makes it espe-
cially clear that a full consideration of all issues material to an
interlocutory order is necessary on appeal when—as here—the
question arises in the procedural posture of a motion to dismiss
the case for lack of jurisdiction. If, upon trial court certification,
the court of appeais determines that jurisdiction is. lacking
(whether or not on the certified ground), interlocutory review
saves considerable time and expense on behalf of both courts
and litigants. §. Rep. No. 2434, 85th Cong., 2d Sess. 2, re-
A-26
printed in 1958 U.S. Code Cong. & Ad. News 5255, 5256.
Because the language of § 1292(d)(2) so closely tracks that of
§ 1292(b), see supra note 1, the latter's legislative history is
persuasive with respect to § 1292(d)(2).
We hold, then, that the nature and scope of our review are
not limited to the certified question but that we are free to
consider all questions material to the tria! court's order sustain-
ing its jurisdiction. Nuclear Engineering, supra, 660 F.2d at
246; In re Oil Spill by the Amoco Cadiz, 659 F.2d 789, 793, n.5
(7th Cir. 1981); Consolidated Express, supra, 602 F.2d at 502,
Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.) (en
banc), cert. denied, 419 U.S. 885 (1974). We therefore proceed
to consider whether the Claims Court may entertain appellee's
wrongful removal action on any jurisdictional basis.
Il
The trial court correctly held that it was without jurisdiction
to review appellee's dismissal based upon allegations of regula-
tory or statutory violations. It is now settled that the Tucker Act
does not itself confer a substantive right of recovery; rather, the
prospective claimant must invoke substantive rights grounded
expressly or by implication in a contract, an act of Congress or a
regulation of an executive department. See United States v.
Mitchell, 51 U.S.L.W. 4999, 5002 & n.16 (U.S. June 17, 1983);
Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599,
605, 607, 372 F.2d 1002, 1007, 1009 (1967).
Appellee, as a probationary employee of the Postal Service,
cannot rely on alleged violations of Postal Service regulations
and the Civil Service Reform Act of 1978, Pub. L. No. 95-454,
92 Stat. 1111 (1978), as the substantive bases for his suit. Even
if we assume arguendo that the Postal Service failed to comply
with its own regulations in ordering appellee's dismissal, that
would not support jurisdiction in the Claims Court. Since the
enactment of the Postal Reorganization Act of 1970, Pub. L. No.
91-375, 84 Stat. 719 (1970), the Postal Service has not been
considered one of the “executive departments” within the mean-
ing of 5 U.S.C. § 101 (1982). See Pub. L. No. 91-375, § 6(c), 84
A-27
Stat. 719, 775 (1970), reprinted in 1970 U.S. Code Cong. & Ad.
News 842, 911 (repealing that portion of 5 U.S.C. § 101 which
designated the Post Office as an executive department).* Only
the regulations of an “executive department” can form the basis
for a regulatory claim cognizable under Tucker Act jurisdiction.
See 28 U.S.C. § 1491 (Supp. V 1981).
We also agree with the trial judge's conclusion that Connolly,
as a probationary employee, has no right under the Civil Service
Reform Act to seek review of his dismissal in the Claims Court.
The Reform Act established a comprehensive scheme for judi-
cial review of adverse actions but at the same time deliberately
precluded such review under that Act for probationary employ-
ees. See INS v. FLRA, No. 82-1622, slip op. at 9-11 (D.C. Cir.
June 10, 1983); Piskadlo vy. Veterans’ Administration, 668 F.2d
82, 83 & n. 1 (Ist Cir. 1982). Civil service employees, as defined
by the Act, do not include those serving “probationary or trial”
terms of employment. 5 U.S.C. § 7511(a)(1)(A) (1982). The sta-
tutory definition of “employee” denotes the only class of civil
service workers entitled to procedural and appeal rights pro-
vided by the Act. See 5 U.S.C. § 7513(b), (d), (e) (1982). On the
basis of this explicit legislative exclusion of probationary work-
ers, courts have concluded that probationary employees may
not appeal adverse actions under the Act. See Bush v. Lucas, 51
U.S.L.W. 4752, 4758 n.28 (U.S. June 13, 1983); INS v. FLRA,
supra, 709 F.2d at 728; Piskadlo, supra, 668 F.2d at 83-84
(probationary employees have no statutory right to appeal to
Merit Systems Protection Board).°
* Congress made it clear in the Postal Reorganization Act of 1970 that the
Postal Service was essentially to be separate from the government. See H.R.
Rep. No. 1104, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. &
Ad. News. 3649, 3657, 3661. Indeed, the Act provides that the Postal Service
is empowered to sue and be sued in its own name, 39 U.S.C. § 401(1) (1976),
and that the district courts have original jurisdiction over virtually all such
actions, 39 U.S.C. § 409(a) (1976).
* We know of only one possible exception to the rule that probationers have
no appeal rights and it does not apply to probationary postal workers. 5 C.F.R.
§ 315.806(b) accords a limited right of review by the MSPB for civil service
probationers alleging improper termination due to partisan political reasons or
marital status. Mastriano v. Federal Aviation Administration, App. No. 83-
735 (Fed. Cir. Aug. 23, 1983).
A-28
We think that the legislative history of the Reform Act en-
tirely forecloses the possibility that probationary employees have
some sort of unspecified private right of action in the Claims
Court under the Act to seek judicial review of their removals.
The policy of denying probationary employees the right to chal-
lenge such terminations was explicitly outlined in the Senate
Report accompanying the Act:
The probationary or trial period . . . is an extension
of the examining process to determine an employee's
ability to actually perform the duties of the position.
It is inappropriate to restrict an agency's authority to
separate an employee who does not perform accept-
ably during this period.
S. Rep. No. 969, 95th Cong., 2d Sess. 45 (1978), reprinted in
1978 U.S. Code Cong. & Ad. News 2723, 2767. See also id. at
48, 1978 U.S. Code Cong. & Ad. News at 2770 (procedural
protections and appeal rights do not apply to probationary em-
ployees )
Because Congress could have permitted probationers to chal-
lenge removals, but expressly declined to do so, we find it
incongruous to suppose tuiat appellee has an implied private
right of action under the Civil Service Reform Act to seek
judicial review of his dismissal. See INS v. FLRA, supra, 709
F.2d at 728. It is the province of other branches, and not the
courts, to determine whether probationary employees should
be granted the right to judicial review of adverse actions against
them. See Bush, supra, 51 U.S.L.W. at 4758-59. Congress has
decided against judicial review in the Reform Act, and we are
not free to disturb that judgment.
IV
The trial court wrongly concluded, however, that it possessed
jurisdiction over that portion of Connolly's claim which was
predicated upon the first amendment. Although we recognize
that if “a claim falls within the terms of the Tucker Act, the
United States has presumptively consented to suit,” see United
A-29
States v. Mitchell, 51 U.S.L.W. 4999, 5002 (U.S. June 27,
1983), the basic issue is whether the first amendment “can fairly
be interpreted as mandating compensation for the damages
sustained.” See id.; United States v. Testan, 424 U.S. 392, 400
(1976); Featheringill v. United States, 217 Ct. Cl. 24, 32 (1978);
Eastport Steamship Co. v. United States, 178 Ct. Cl. 599, 607,
372 F.2d 1002, 1009 (1967).
We agree with the Court of Claims that the first amendment
standing alone, cannot be so interpreted to command the pay-
ment of money. Featheringill, supra, 217 Ct. Cl. at 32-33; see
Clark v. United States, No. 658-80C, slip op. at 7-8 (Ct. Cl.
Nov. 6, 1981); Mullins v. United States, No. 240-81C, slip op.
at 3 (Ct. Cl. Oct. 30, 1981). Like the due process clause of the
fifth amendment, the literal terms of the first amendment nei-
ther explicitly nor implicitly obligate the federal government to
pay damages. See supra note 3; Walton v. United States, 213
gress from enacting certain types of laws; it does not provide
persons aggrieved by governmental action with an action for
damages in the absence of some other jurisdictional basis. In
construing the contours of Tucker Act jurisdiction, it would be,
of course, impertinent for us to consider whether appellee may
make such a first amendment claim within the non-monetary
jurisdiction of a district court, or in a district court suit against
the Postal Service. Featheringill, supra, 217 Ct. Cl. at 32;
Clark, supra, slip. op. at 8.
In his effort to expand Claims Court jurisdiction to encompass
claims founded solely upon the first amendment, appellee cites
Jackson v. United States, 192 Ct. Cl. 765, 428, F.2d 844 (1970)
and Swaaley v. United States, 180 Ct. Cl. 1, 376 F.2d 857
(1967). Those cases are quite distinguishable from the one be-
fore us. Both Jackson and Swaaley primarily involved claims for
back pay, and the plaintiffs in those cases sought such compen-
sation in accordance with federal pay statutes. Jackson served as
a probationary employee of the Department of Agriculture with
a GS-9 rating; Swaaley was a WB-11 naval mechanic. Both of
those plaintiffs could rely upon pay statutes which provided
them with rates of pay, and they had causes of action for back
pay under the Tucker Act if such compensation was wrongly
A-30
withheld. See, e.g., 5. U.S.C. § 5332(a) (1970) (setting pay
schedule for GS employees). Those plaintiffs sought back pay
for their alleredly improper removal from positions which they
held, and not money damages per se. Accord Cole v. United
States, 689 F.2d 1040 (Ct. Cl. 1982). In this light, the Tucker
Act jurisdiction of the Court of Claims followed from the pay
legislation pertaining to those employees and the latters’ invo-
cation of the first amendment formed part of their claims that
they had been illegally deprived of their pay. Cf. Ah Sam v.
United States, 682 F.2d 925, 934-35 (Ct. Cl. 1982), cert. denied,
103 S.Ct. 786 (1983).
Connolly, in contrast, cannot rely upon a pay statute which
mandates the payment of money to him. He was employed by
the Postal Service, and the Postal Reorganization Act of 1970,
Pub. L. No. 91-375, 84 Stat. 719 (1970), reprinted in 1970 U.S.
Code Cong. & Ad. News 842, abrogated the applicability of
federal pay statutes to Postal Service employees. See id. § 6(c),
84 Stat. 719, 775, 1970 U.S. Code Cong. & Ad. News at 911;
see also 5 U.S.C. §§ 101, 105, 5102 (1982); cf. White v. Bloom-
berg, 501 F.2d 1379, 1381 n.2 (4th Cir. 1974). No comparable
money-mandating pay statute exists for Postal Service employ-
ees.
Nor can we accept Connolly's contention that the Back Pay
Act, 5 U.S.C. § 5596 (1982), provides jurisdiction to hear his
first amendment claim. Even assuming that the Back Pay Act is
applicable to Postal Service employees*—an issue which we do
not decide—Connolly has failed to show that his separation from
the Postal Service violated any relevant statute or regulation
covered by the Tucker Act. See supra Part III. The Back Pay
Act is merely derivative in application; it is not itself a jurisdic-
tional statute. Montalvo v. United States, No. 675-81C, slip op.
at 3-4 (Ct. Cl. Sept. 10, 1982). We must conclude that, on any
* The Fourth Circuit has determined that the Back Pay Act no longer applies
to the Postal Service. White v. Bloomberg, 501 F.2d 1379, 1381 n.2 (4th Cir.
1974). See 5 U.S.C. §$§ 101, 104, 105 (1982).
A-31
theory, the Claims Court lacks jurisdiction over appellee's first
amendment claim.”
V
For these reasons, we affirm the trial court's determination
that it lacks jurisdiction over appellee's claim to the extent that
it is based upon statutes and regulations. We reverse the trial
court's ruling that it possessed jurisdiction over appellee's first
amendment claim. The case is remanded to the Claims Court
with instructions to grant judgment in favor of the government
by dismissing appellee's petition for lack of jurisdiction.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
*“(O}rdinary dismissals from government service which violate no fixed
tenure or applicable statute or regulation are not subject to judicial review
even if the reasons for the dismissal are alleged to be mistaken or unreasona-
ble.” Connick v. Myers, 51 U.S.L.W. 4436, 4438 (U.S. Sup. Ct., Apr. 20,
1983).
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