Opposition Brief — Stephens v. Secretary

Supreme Court, U.3, ’

Ae nov Gb ES

| OEP NOL, JR.

CLERK

In the Supreme Court of the Untted Statea

OCTOBER TERM, 1990

JAMES N. STEPHENS

Vv.

SECRETARY, DEPARTMENT OF HEALTH

AND HUMAN SERVICES

JAMES N. STEPHENS

Vv.

Terry S. COLEMAN AND ISABEL P. DUNST

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FORTHE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

WILLIAM KANTER

ROBERT D. KAMENSHINE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

"BEST AVAILABLE COPY

ee A RO sR ee EE Re ant NR ee

QUESTIONS PRESENTED

1. Whether petitioner, in applying for the position

of Regional Attorney in the Department of Health

and Human Services, was entitled to a preference un-

der the Veterans Preference Act, 5 U.S.C. 2108 and

3318(b) (3), and whether such a claim of entitlement

is subject to judicial review in the circumstances of

this case.

2. Whether Exemptions 5 and 6 of the Freedom

of Information Act exempted from disclosure certain

personnel records of applicants for the position of

Regional Attorney that petitioner sought.

3. Whether the district court lacked personal ju-

risdiction over the individual federal respondents.

4. Whether, despite the Civil Service Reform Act

of 1978, petitioner may pursue a Bivens action based

on the responsible federal officials’ employment deci-

sion.

TABLE OF CONTENTS

Page

TN ogo ce nesacsuniaadonsunanecnoue V2 AE eT 1

a ssc huea acu neanbabnnesaesinacn aaciesho 2

I sid ipaecedtucainnastararceuanawene 2

a sui ps cudlaauaausaiininnolcngnnaiinne nen soot 9

EN RG EE SRS ee A SOLO ROC RSE 13

TABLE OF AUTHORITIES

Cases: -

Bivens v. Six Unknown Federal Narcotics Agents,

MU We I issn eens pecan 4, 5, 8,10, 11

Braun v. United States, 707 F.2d 922 (6th Cir.),

cert. denied, 464 U.S. 991 (1983) .............0000000.... 12

Broadway V. Block, 694 F.2d 979 (5th Cir. 1982)... 12

Brothers v. Custis, 886 F.2d 1282 (10th Cir.

ee siamsiebmnianae 11

Bush v. Lucas, 462 U.S. 367 (1988) .................. 4,7, 13,8

Connick v. Myers, 461 U.S. 1388 (1983) .................. 8

Crowley v. United States, 527 F.2d 1176 (Ct. Cl.

Dias ahish heampencnbiataneie 9

Delong Equipment Co. v. Washington Mills Abra-

sive Co., 840 F.2d 843 (11th Cir. 1988) _............ 11

Department of State v. Washington Post Co., 456

oa ri swanpumsdnaemadandasinn 9

Department of the Air Force Vv. Rose, 425 U.S. 352

OE Suse DUT UES le 9

Feit v. Ward, 886 F.2d 848 (7th Cir. 1989) _.......... 11

Hill v. Department of the Air Force, 884 F.2d 1318

I I an ee nckcecnncnsabiabinnncasganenchnnnnaein 11

Kotarski v. Cooper, 866 F.2d 311 (9th Cir. 1989) .. 11

Lombardi v. Small Business Administration, 889

rR MERE SEE, BOD accretive didsaraccainoncsencease 11

McIntosh v. Turner, 861 F.2d 524 (8th Cir. 1988) .. 11

Miller v. Bell, 661 F.2d 623 (7th Cir. 1981), cert.

denied, 466 U.S. 960 (1982) .................................. 10

Mobil Oil Corp. v. EPA, 879 F.2d 698 (9th Cir.

et tdastal cc dctadh ath non lacasieu da dass denies avepsonexcehidacdongs sce 10

IV

Cases—Continued: Page

National Wildlife Federation v. United States

Forest Service, 861 F.2d 1114 (9th Cir. 1988) .. 10

Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., 108

fis. Mee Me CE Pe asset sec esta ana seenttenas 11

Pinar Vv. Dole, 747 F.2d 899 (4th Cir. 1984), cert.

GE, TE UE RN CED wectenesiccicnestnseceepcnccconess 11

Qualls v. United States, 678 F.2d 190 (Ct. Cl.

| RPO ae x ME Ns BGs Po pa AA Kens bse eT 9

Schweiker v. Chilicky, 487 U.S. 412 (1988) ...... 7, & 2h, ie

Spagnola Vv. Mathis, 859 F.2d 223 (D.C. Cir. 1988)... 11, 12

Stafford v. Briggs, 444 U.S. 527 (1980) ~............... 11

Towers V. Horner, 791 F.2d 1244 (5th Cir. 1986) .. 7

United States Dep’t of Justice v. Reporters Comm.

for Freedom of the Press, 109 S. Ct. 1468

Si a Taran Rup Sri AOE (nN pec NR te eR 9

United States v. Fausto, 484 U.S. 439 (1988) ..4, 7, 11, 12

Volk v. Hobson, 866 F.2d 1398 (Fed. Cir.), cert.

denied, 109 S. Ct. 2655 (iGes) ..................:......... 11

Webster v. Doe, 486 U.S. 592 (1988) .........200.00....... 8

Wolfe v. Department of Health & Human Serv-

we ee ea 10

Wolfe v. Department of Health & Human Serv-

ices, 815 F.2d 1527 (D.C. Cir. 1987) .................. 10

Constitution, statutes, and rule:

U.S. Const. :

aed ee a 4,8

ee es 4

Civil Service Reform Act of 1978 (CSRA), Pub.

ee GU bo enemy CEE 4

Freedom of Information Act, 5 U.S.C. 552:

Oe I ooo icnnccnccnnnannsdcssssoneeneenadnndos 3, 10

ee ocx shade nicancentocouacn 3

Veterans Preference Act:

Rina a STS ete cog RRR NCEE 5, 9

I a es cacacutacanneasinsocnimsiikees 5,9

I es chins cicdidgasiaesous 7

fi IEE IRE LODO P Ere ee a a 11

Ga. Code Ann. §§ 9-10-91 (1982 & Supp. 1990)... 6

Ga. Code Ann. §§ 9-10-94 (1982 & Supp. 1990)... 6

ge Re |S, | ae eae eee eae cea 6

Ju the Supreme Cut of the United States

OCTOBER TERM, 1990

No. 90-334

JAMES N. STEPHENS

Us

SECRETARY, DEPARTMENT OF HEALTH

AND HUMAN SERVICES

No. 90-340

JAMES N. STEPHENS

Us

TERRY S. COLEMAN AND ISABEL P. DUNST

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

12a) is reported at 901 F.2d 1571.’ The opinion of

the district court in No. 90-334 (Pet. App. 13a-26a)

is unreported. The opinion of the district court in No.

1“Pet. App.” refers to the appendix to the petition in No.

90-334.

(1)

2

90-340 (90-340 Pet. App. 13a-32a) is reported at 712

F. Supp. 1571.

JURISDICTION

The judgment of the court of appeals was entered

on May 23, 1990. The petitions for a writ of cer-

tiorari were each filed on August 20, 1990. The ju-

risdiction of this Court in invoked under 28 U.S.C.

1254(1).

STATEMENT

1. In 1985, petitioner, a Department of Health and

Human Services Deputy Regional Attorney who was

then serving as the Acting liegional Attorney in the

Atlanta office (Region IV), applied for the perma-

nent position. ftespondent Dunst, an HHS Deputy

Counsel, came to Atlanta to interview petitioner and

two other applicants. According to petitioner, Dunst

rated him as not qualified because of his refusal to

criticize his supervisor. In mid-August 1985, respond-

ent Coleman, HHS’s principal Deputy Counsel in

Washington, D.C., telephoned petitioner in Atlanta

and told him that he had not been selected for the

promotion. Pet. App. 3a; 90-340 Pet. App. 18a; Pet.

5, 7-8."

In September 1985, petitioner filed a grievance with

the HHS Office of General Counsel (OGC), alleging

that the selection of the Region IV Regional Attorney

violated applicable agency and federal regulations.

Pet. App. 3a. Petitioner also filed a separate request

with HHS under the Freedom of Information Act for

various documents related to the selection of the Re-

gional Attorney, including

applications, notes of interviews, evaluations and

memos on all candidates for the position * * *, in

2 “Pet.” refers to the petition in No. 90-334.

9

2

addition to records on rating, ranking and group-

ing of candidates, scoring matrices and _ back-

ground checks and reference checks on candi-

dates from Regional Directors and other persons

shown as references.

Id. at 23a.

On September 27, 1985, HHS advised petitioner

that under Exemptions 5 and 6 of the Freedom of

Information Act, 5 U.S.C. 552(b) (5) and (6),* it was

withholding—or deleting information from—a num-

ber of documents. HHS released, among other docu-

ments, the applications and scoring matrices of peti-

tioner and the candidate selected for the Regional At-

torney position. Pet. App. 23a-25a.

In early October 1985, OGC rejected petitioner’s

erievance, concluding that “[n]onselection for promo-

tion from a group of properly ranked and certified

candidates is excluded from the grievance coverage.”

Pet. 5 (internal quotation marks omitted). Petitioner

then filed a second grievance alleging additional er-

rors in the selection process, including an improper

ranking of candidates. OGC rejected that grievance

in November 1985. In January 1986, HHS denied

petitioner’s request for an investigation and hearing

before another grievance examiner. /¢. at 6.

2. On August 26, 1986, petitioner filed a federal

eourt action against HHS, challenging on constitu-

tional and statutory grounds the agency’s decision

’ These provisions exempt from disclosure under FOIA

“inter-agency or intra-agency memorandums or letters which

would not be available by law toa party other than an agency

in litigation with the agency,” 5 U.S.C. 552(b) (5), and “per-

sonnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of

personal privacy,” 5 U.S.C. 552(b) (6).

4

not to promote him, its rejection of his grievances,

and its failure to release documents under FOIA.

Pet. App. 13a-14a. The next day, petitioner filed a

federal court action under Bivens v. Six Unknown

Federal Narcotics Agents, 403 U.S. 388 (1971),

against respondents Coleman and Dunst. Petitioner

sought monetary and injunctive relief, alleging that

respondents’ decision not to promote him violated the

first and Fifth Amendments. 90-340 Pet. App. 13a.

a. In April 1989, the district court issued an or-

der dismissing petitioner’s promotion and grievance

claims against HHS,* and granting the agency’s mo-

tion for summary judgment on petitioner’s FOIA

claim. Pet. App. 13a-26a. The court determined that

the actions about which petitioner complained fell

within the category of “prohibited personnel prac-

tices” under the Civil Service Reform Act of 1978

(CSRA), Pub. L. No. 95-454, 92 Stat. 1111. Pet.

App. 17a-18a. Following decisions such as United

States v. Fausto, 484 U.S. 439 (1988), and Bush v.

Lucas, 462 U.S. 367 (1983), the court therefore con-

cluded that the provisions of the CSRA, i.e., review

by the agency’s OSC, were the exclusive means for

‘While petitioner’s action was pending before the district

court, petitioner filed a complaint with the HHS Office of

Special Counsel (OSC), alleging that the agency had im-

properly denied him a promotion. After a review, OSC

rejected the complaint “on the ground that non-selection for

promotion from a group of properly ranked certified candi-

dates is excluded from grievance coverage.” Pet. App. 15a.

(To the ertent petitioner’s complaint raised allegations of

discrimination and retaliation, OSC adhered to its policy of

having such matters resolved through the “equal employment

opportunity process,” with recourse to the EEOC.) In these

circumstances, OSC declined to refer petitioner’s complaint

to the Merit Systems Protection Board. Ibid.

5)

review of petitioner’s personnel claims. Pet. App. 18a-

22a.”

Turning to petitioner’s claim under FOIA, the

court determined that since the applications ‘were

very detailed and the information contained therein

would be highly personal,” and since petitioner had

not “shown that there is a strong public interest in

the disclosure of this personal information,” such ap-

plications “may properly be withheld pursuant to 5

U.S.C. § 552(b)(6).” Pet. App. 24a. The scoring

matrices, the court further determined, “represent[ ]

subjective opinions and recommendations which were

submitted as a part of the deliberations of the selec-

tion process.” Jd. at 25a. The court therefore con-

cluded that such documents “may properly be with-

held under the deliberative process privilege or pur-

suant to 5 U.S.C. § 552(b) (5) or (6).” Pet. App. 25a.

b. The district court issued a separate order dis-

missing petitioner’s Bivens action against the indi-

5In that regard, the court noted that the “record * * *

indicates that the OSC made sufficient inquiry into [peti-

tioner’s] claims * * * [and had] found that there was insuffi-

cient evidence of any prohibited personnel practices or other

violations of law, rule, or regulation within [its] investiga-

tive jurisdiction.” Pet. App. 18a (internal quotation marks

omitted).

The court also concluded that, “even absent the compre-

hensive scheme of the CSRA, [petitioner’s] claim for a vet-

erans’ preference [under 5 U.S.C. 2108 and 3318(b) (3) ]

must fail.” Pet. App. 22a. The court pointed out that a

veteran

is entitled to preference over non-veterans only in con-

nection with an initial appointment to the federal service

or in connection with a reduction-in-force among person-

nel in the same competitive level.

Ibid. Here, petitioner “was not an initial appointment and

there was no reduction-in-force at issue.” Jbid.

6

vidual respondents. 90-340 Pet. App. 13a-32a. Re-

garding the exercise of personal jurisdiction over re-

spendents, the court found that, as alleged by peti-

tioner,

Dunst visited Georgia to interview him and * * *

Coleman made a telephone call to notify him that

he did not receive the position for which he had

applied.

Id. at 16a-17a. In these circumstances, the court con-

cluded, petitioner had “not presented a prima facie

case that [respondents’| activities permit the asser-

tion of jurisdiction under the Georgia long arm stat-

ute or that service of process was proper.” /d. at 17a;

see Ga. Code Ann. §§ 9-10-91, 9-10-94 (1982 & Supp.

1990). The court also held that, on the record pre-

sented, petitioner “has failed to establish the neces-

sary minimum contacts with the State of Georgia,

with respect to the allegations of the complaint, to

give [the] court jurisdiction over [respondents].”

90-340 Pet. App. 21a. Accordingly, the court dis-

missed petitioner’s action under Fed. R. Civ. P.

12(b)(2) for lack of personal jurisdiction over

respondents.”

* For reasons similar to those articulated in the order dis-

missing petitioner’s action against HHS, the district court

alternatively held that petitioner

may not obtain Bivens relief against federal officials in

their individual capacities in this case as Congress has

provided comprehensive procedural and substantive pro-

visions which give meaningful remedies against the

United States by way of the CSRA.

90-3140 Pet. App. 29a. The court also rejected petitioner's

claim for a veterans’ preference for the reasons given in the

HHS case. Jd. at 30a-31a.

The district court also denied petitioner’s motion for leave

to amend his complaint in order to seek mandamus relief

7

3. The court of appeals affirmed. Pet. App. 1la-

12a." With respect to petitioner’s personnel claims

against HHS, the court of appeals held that, under

this Court’s decision in United States vy. Fausto, 484

U.S. 489 (1988), the CSRA—not recourse to federal

court—was petitioner’s “exclusive remedy.” Pet. App.

7a; see, e.g., Towers v. Horner, 791 F.2d 1244, 1246

(5th Cir. 1986). The court rejected petitioner’s ar-

gument that review was otherwise available under

the Administrative Procedure Act or by writ of man-

damus, concluding that the “comprehensive nature of

the .. . CSRA indicates a clear congressional intent

to permit federal court review as provided in the

CSRA, or not at all,” Pet. App. 8a (internal quota-

tion marks and citation omitted), and that “[n]o

right to mandamus exists where other adequate reme-

dies are available,” ibid.*

against respondents under 28 U.S.C. 1361 “and to seek in-

junctive relief under the court’s common law equitable juris-

diction.” 90-340 Pet. App. 3la. The court determined that

“an amendment * * * would effect an undue delay in this

case,”’ and that since petitioner is not entitled to relief under

decisions such as Bush v. Lucas, 462 U.S. 367 (1983), an

amendment “would be futile.” 90-340 Pet. App. 31a.

*The court of appeals consolidated petitioner’s appeals

from the district court’s orders dismissing his actions against

HHS and the individual respondents.

‘The court further concluded that petitioner’s “argument

based on alleged deprivations of constitutional rights also

cannot carry the day.” Pet. App. 8a. The court pointed out

that in Schweiker v. Chilicky, 487 U.S. 412 (1988), this

Court

has recently explained that it will not permit additional

remedies for alleged constitutional violations where

“Congress has provided what it considers adequate reme-

8

Turning to petitioner’s Bivens action against the

individual respondents, the court held that “the com-

prehensive statutory scheme established by Congress

relating to federal employment (CSRA) precludes

the maintenance of job-related Bivens actions by fed-

eral employees.” Pet. App. 10a-lla (citing Chilicky,

487 U.S. at 424). The court rejected petitioner’s re-

liance on the First Amendment, concluding that peti-

tioner’s “contentions are limited to a matter of acute

personal interest—a job; his contentions do not im-

plicate the type of public concern discussed in [Con-

nick v. Myers, 461 U.S. 138 (1983)].” Pet. App.

lla. And the court determined that petitioner’s re-

liance on Webster v. Doe, 486 U.S. 592 (1988), was

mistaken since “Webster has nothing to do with

Bivens actions.” Pet. App. 1la.°

dial mechanisms for constitutional violations that may

occur in the course of its administration.”

Pet. App. 8a (quoting Chilicky, 487 U.S. at 423). The court

therefore reiterated that the “CSRA provides adequate reme-

dial mechanisms.” Pet. App. 8a.

The court of appeals also briefly addressed and rejected

petitioner’s FOIA claim against HHS, holding that

[t]he information requested by [petitioner] and not

disclosed by HHS is privileged as inter-agency or intra-

agency memorandums or letters which would not be

available to a party other than an agency in litigation

with the agency, * * * or as an unwarranted invasion of

privacy.

Pet. App. lla (internal quotation marks and citations

omitted).

*The court of appeals also agreed with the district court

that petitioner was not entitled to a veterans’ preference

Pet. App. 12a. Lastly, the court “agree[d] with the district

court’s refusal to exercise personal jurisdiction over [the

individual respondents],” but “elected not to discuss this

issue fin light of its holding on the merits of petitioner's

claims].” Jbid.

9

ARGUMENT

1. Petitioner contends (Pet. 14-16; 90-340 Pet. 6-

15) that, in applying for the position of Regional

Attorney in the Department of Health and Human

Services, he was entitled to a preference under the

Veterans Preference Act, 5 U.S.C. 2108 and

3318(b)(3). That contention is wide of the mark.

As federal courts have long recognized, “[a] veteran

is entitled to preference over non-veterans only in

connection with an initial appointment to the federal

service or in connection with a reduction-in-force

among personnel in the same competitive level.”

Qualls vy. United States, 678 F.2d 190, 196-197 (Ct.

Cl. 1982); see, e.g., Crowley v. United States, 527

F.2d 1176, 1183 (Ct. Cl. 1975). Neither circum-

stance obtained in this case, since petitioner sought

a promotion to the post of Regional Attorney.”

2. Petitioner also claims (Pet. 16-29) that HHS

improperly withheld documents under Exemptions 5

and 6 of the Freedom of Information Act. That fact-

specific claim is insubstantial. As this Court has

made plain, the privacy interests implicated by

Exemption 6 are sufficiently broad to cover personnel

files, particularly where, as here, disclosure would

“reveal[] little or nothing about [the] agency’s own

conduct.” United States Dep’t of Justice v. Report-

ers Comm. for Freedom of the Press, 109 S. Ct.

1468, 1481 (1989): see, e.g., Department of State v.

Washington Post Co., 456 U.S. 595, 600 (1982):

Department of the Air Force v. Rose, 425 U.S. 352,

372 (1976). And petitioner’s asserted right to be able

'* Moreover, as both the district court and the court of

appeals held, petitioner’s exclusive remedy lies under the

CSRA and does not include recourse to judicial review in

these circumstances. See Pet. App. 7a, 18a-22a.

10

to monitor the agency’s activities does not outweigh

the privacy interests at stake. See, e.g., Miller v.

Bell, 661 F.2d 623, 630 (7th Cir. 1981), cert. denied,

456 U.S. 960 (1982).

Moreover, the documents sought, including HHS

ranking and scoring matrices of the unsuccessful ap-

plicants, fall well within Exemption 5 covering pre-

decisional intra-agency documents. See 5 U.S.C.

552(b)(5). Petitioner is mistaken in suggesting

that this exemption applies only to- documents that

involve agency policy, see, e.g., National Wildlife

Federation v. United States Forest Service, 861 F.2d

1114, 1118 (9th Cir. 1988),"' and the fact that HHS

released documents relating to one candidate—the

successful applicant—did not waive the agency’s

ability to claim the exemption concerning other can-

didates’ documents, see, e.g., Mobil Oil Corp. v. EPA,

879 F.2d 698 (9th Cir. 1989).

3. Petitioner further contends (90-340 Pet. 23-27)

that the district court erred in dismissing his Bivens

action against the individual respondents for lack of

personal jurisdiction. On the basis of petitioner’s

submissions, the record here shows that respondent

Coleman’s connection with the Northern District of

Georgia consisted of one telephone call from Wash-

ington, D.C., to petitioner im Atlanta, and that re-

spondent Dunst’s pertinent nexus amounted to her

interviews of petitioner and two other applicants

11 Petitioner errs in relying (Pet. 26) on Wolfe v. De-

partment of Health & Human Services, 815 F.2d 1527 (D.C.

Cir. 1987), for the proposition that Exemption 5 does not

protect the factual details of the agency’s decision-makins:

process. The D.C. Circuit, sitting en banc, later vacated and

reversed the panel’s construction of Exemption 5. Wolfe vy.

Department of Health & Human Services, 839 F.2d 768, 773

(1988).

11

conducted over the course of one day. In these cir-

cumstances, the district court’s dismissal for lack of

personal jurisdiction, upheld by the court of appeals,

is unexceptionable. See Omni Capital Int'l Ltd. v.

Rudolf Wolff & Co., 108 S. Ct. 404 (1987); Delong

Equipment Co. v. Washington Mills Abrasive Co.,

840 F.2d 843, 847 (11th Cir. 1988)."°

4. Finally, petitioner contends (90-340 Pet. 11-

23) that, despite the CSRA, he may pursue a Bivens

action based on the responsible federal officials’ em-

ployment decision. In light of the district court’s

lack of personal jurisdiction over the individual re-

spondents, this case does not even present that issue

for this Court’s review. In any event, that conten-

tion is meritless. In light of this Court’s trilogy of

recent decisions—Schweiker v. Chilicky, 487 U.S.

412 (1988), United States v. Fausto, 484 U.S. 439

(1988), and Bush v. Lucas, 462 U.S. 367 (1983)—

the courts of appeals have uniformly held that a gov-

ernment employee may not pursue a Bivens claim for

adverse personnel actions in light of the comprehen-

sive scheme set forth in the CSRA.™

12 Petitio er’s invocation (90-340 Pet. 24, 27) of the fed-

eral official venue statute, 28 U.S.C. 1591 (e), is off the mark

because that statute has no application to Bivens actions.

Stafford v. Briggs, 444 U.S. 527 (1980).

13 See, e.g., Brothers v. Custis, 886 F.2d 1282, 1284-1285

(10th Cir. 1989); Feit v. Ward, 886 F.2d 848, 855-856 (7th

Cir. 1989); Hill v. Department of the Air Force, 884 F.2d

1318, 1521 (10th Cir. 1989) (per curiam); Volk v. Hobson,

866 F.2d 1398, 1402-1404 (Fed. Cir.), cert. denied, 109 S. Ct.

2435 (1989) ; Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir.

1989) ; MeIntosh v. Turner, 861 F.2d 524, 525-527 (8th Cir.

1988) ; Spagnola v. Mathis, 859 F.2d 223, 228-229 (D.C. Cir.

1988) (per curiam) (en banc); Pinar v. Dole, 747 F.2d 899,

909 (4th Cir. 1984), cert. denied, 471 U.S. 1016 (1985);

12

To the extent petitioner contends (Pet. 8-14) that

decisions such as Chilicky, Fausto, and Lucas do not

bar his constitutional claims for equitable relief

against HHS, this case is not a suitable vehicle for

addressing that issue. First, as both the district

court (Pet. App. 14a-22a) and the court of appeals

(id. at 5a-lla) correctly determined, petitioner’s

constitutional claims, like his statutory claims, are

makeweight. Accordingly, even if equitable relief

were available, petitioner would not have been en-

titled to it. Second, the courts of appeals have gen-

erally agreed that, in light of this Court’s decisions

and the comprehensive remedial scheme of the

CSRA, equitable relief is unavailable against the

government employer. See, e.g., Lombardi v. Small

Business Administration, 889 F.2d 959, 961-962

(10th Cir. 1989); Braun v. United States, 707 F.2d

922, 926-927 (6th Cir.), cert. denied, 464 U.S. 991

(1983); but see Spagnola v. Mathis, 859 F.2d 223,

229-230 (D.C. Cir. 1988) (per curiam) (en banc)

(stating in dicta that equitable constitutional claims

are not “altogether” precluded by the CSRA). In

the absence of any square conflict among the lower

courts regarding the availability of equitable relief,

and in view of the insubstantial nature of petition-

er’s claims against HHS here, further review of that

issue is unwarranted.

Braun v. United States, 707 F.2d 922, 926 (6th Cir. 1983) ;

Broadway v. Block, 694 F.2d 979, 985 (5th Cir. 1982).

13

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

WILLIAM KANTER

ROBERT D. KAMENSHINE

Attorneys

NOVEMBER 1990

w &. 4 GOVERNMENT PRINTING OFFICE; 1990