Appendix — Andersen v. United States

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

APPENDIX A

OPINION OF DISTRICT COURT

RONALD M. ANDERSEN

Vv.

UNITED STATES OF AMERICA, et al.

DC CV-89-00273-RCB

United States Court of Appeals

for the Ninth Circuit

June 9, 1993

MEMORANDUM AND ORDER

Before: FLETCHER, POOLE, and THOMP-

SON, CIRCUIT JUDGES

Ronald Andersen, former senior trial

attorney with the Equal Employment Opportu-

nity Commission ("EEOC"), appeals the

district court's dismissal for lack of

jurisdiction of his action seeking rein-

statement. The district court held that

the Civil Service Reform Act ("CSRA" or

"“Act"), 5 U.S.C. § 2302, precludes judicial

review. Andersen contends that the Admin-

istrative Procedure Act ("APA"), 5 U.S.C. §

701 et seg., confers jurisdiction on the

district court or, alternatively, that it

has inherent power to provide him a remedy.

He argues that actions involving the pro-

tection of professional ethics may not be

relegated to a "personnel forum."

Appellant's Opening Brief at 36. Such

actions, he suggests, fall within a narrow

exception to Congress' intent to limit

federal employees' remedies to a single

comprehensive administrative remedial

structure for the resolution of employment

grievances.

Andersen sought to invoke jurisdiction

under 28 U.S.C. § 1331 and 28 U.S.C. §

1361. The district court dismissed his

action for lack of subject matter jurisdic-

tion finding none “under either the APA [5

U.S.C. § 702], or the Constitution.” Our

jurisdiction rests on 28 U.S.C. § 1291.

District court dismissals "based on preclu-

sion by an existing statutory scheme" are

reviewed de novo. e Y. er, 925

F.2d 311, 313 (9th Cir. 1991); see also

Rivera v. United States, 924 F.2d 948, 950

(9th Cir. 1991) citing Kruso v. Interna-

tional Tel. & Tel. Corp., 872 F.2d 1416,

1421 (9th Cir. 1989), cert. denied, 496

U.S. 937 (1990)) (de novo review of the

existence of subject matter jurisdiction).

Because Congress chose to provide very

limited remedies to government employees in

Andersen's civil service category, we

cannot provide an independent remedy, by

implication or otherwise.' We affirm the

‘On August 17, 1990, Congress amended

the CSRA to expand the relief available to

excepted service employees with two years

continuous service. Pub. L. No. 101-376, §

2(a), 104 Stat. 461; 5 U.8.C. §

7511(a) (1) (C) (ii). The amendments were

given prospective effect only. Section

2(c) of Pub. L. 101-376 provides that the

amendments "shall apply with respect to any

personnel action taking effect on or after

LP CCEAED = a EET i gk OT RS EE

dismissal.

Ronald Andersen was an attorney in the

Phoenix District Office of the EEOC for

nine years. Hired as a "Schedule A" em-

ployee, he is an “excepted service” employ-

ee under the terms of the CSRA. From late

1987 until early 1988, Andersen was the

senior trial attorney assigned to a sexual

harassment case to be tried in federal

district court in New Mexico. In January

1988, while preparing for trial, Andersen

uncovered a scheme to secure through bribes

the false testimony of government witnesses

to be presented at trial. He and his

supervisors, Trujillo and Green, disagreed

on the appropriate response to these reve-

lations. Relying on the advice of the

chair of ethics committee of the Arizona

the effective date of this Act [Aug. 17,

1990)." See 5 U.S.C. §§ 4303, 7511.

State Bar Association whom he retained as

an attorney, Andersen believed that he was

under professional ethical Obligations to

take action to prevent misconduct and fraud

on the court, specifically withdrawing and

advising the court of his reasons. His

supervisors expressly forbade him to do so

and threatened to treat a failure to follow

Orders as insubordination. Unable to

comply both with the professional ethical

advice he had received and his supervisor's

orders, Andersen resigned. His attorney

explains, "Andersen was placed in the

impossible situation of being [(profession-

ally) unethical as a lawyer or being insub-

ordinate as an employee. His only alterna-

tive was to leave his employment and cor-

rect the ethical problem." Aff. of William

Bransford, dated Nov. 29, 1990, at q 4.

After traveling at his own expense to the

court in New Mexico to inform it of the

potential fraud and misconduct,” Andersen

completed the formal employment termination

process characterizing his resignation as a

constructive discharge.

Shortly after his separation from

employment, Andersen sought reinstatement

through a number of procedural avenues. he

wrote to the Administrative Officer of the

Phoenix District Office of the EEOC seeking

information on how to initiate an adminis-

trative grievance process. He wrote to the

General Counsel and Chairman of the EEOC

requesting reinstatement. He contacted his

union for its assistance.* He complained

“Andersen intended to file a motion to

withdraw against the orders of his supervi-

sors. Upon his disclosure to the district

court, it vacated the trial date. The case

never went to trial. Without discussing

what measures it took, the government

states that the case was settled.

*The collective bargaining agreement

("CBA") between the EEOC and the National

Council of EEOC Locals No. 216, American

Federation of Government Employees, AFL-CIO

eee oe ee

to the Office of Special Counsel ("OSC")

alleging reprisals for whistleblowing under

5 U.S.C. §§ 2301(b) (9), 2302(b).

On all fronts Andersen was rebuffed.

The OSC "found insufficient evidence of any

prohibited personnel practice." Letter

from Leonard H. Dribinsky, Asst. Special

Counsel for Prosecution, to William

Bransford, dated November 20, 1988. The

General Counsel indicated that an

administrative grievance procedure was

barred by Andersen's membership in a

collective bargaining unit and that a

negotiated grievance procedure was not

available because, by his letter to the

Administrative Officer, he had specifically

requires that employees choose between

administrative and union-sponsored griev-

ance procedures. CBA § 47.05(a), (b).

Union-sponsored grievances may be initiated

by the union or the employee. CBA §

47.02(a)(1)-(2). Andersen notes that the

union declined to initiate a grievance on

his behalf.

elected not to pursue this avenue.‘

In February 1989, Andersen filed a

complaint in district court claiming: (1)

a constitutionally-protected property

interest in his job; (2) wrongful termina-

tion (a pendent state claim); (3) a denial

of due process under the APA; (4) a denial

of his First Amendment rights. Ruling on a

motion to dismiss for lack of jurisdiction,

Judge Hardy dismissed Andersen's Bivens

Claims for damages against all parties and

later dismissed the pendent state clain.

He allowed the action, to the extent

Andersen sought equitable relief, to pro-

ceed against the United States, the EEOC,

and Thomas. However, upon a renewed motion

to dismiss, Judge Broomfield, to whom the

‘The Office of the General Counsel

concluded that Andersen's letter to the

Phoenix District Office initiating an

“other than...Union Grievance" could not be

considered notice of an intention to pro-

ceed with a negotiated or union grievance.

case had been transferred, held that the

district court lacked jurisdiction because

the CSRA precluded judicial review.

id.

The CSRA, enacted in 1978, provides

federal employees with statutory remedies

for "prohibited personnel practices" and

“adverse actions." Until that time, ag-

grieved employees asserted a "hodgepodge"

of claims founded on a variety of jurisdic-

tional grounds. McAuliffe v. Rice, 966

F.2d 979, 980 (5th Cir. 1992). Congress

substituted a unified eystem for the

"patchwork" one that had developed. United

states v. Fausto, 484 U.S. 439, 444-45

(1988); Saul _ v. United States, 928 F.2d

829, 833 (9th Cir. 1991); Rivera, 924 F.24

at 951. Nevertheless, the scheme Was not

all encompassing. The Supreme Court early

recognized that the "comprehensive' scheme

had lacunae. Bush v. Lucas, 462 U.S. 367,

wee ee

10a

385 & n.28 (1983) ("[n]ot all personnel

actions are covered by this system"). The

CSRA accords varying levels of relief and

review for different kinds of injuries

suffered by distinct categories of employ-

ees. The Act in effect at the time

Andersen resigned did not provide signifi-

cant measures of administrative and judi-

cial relief to “excepted service" employ-

ees, relief that was afforded to "competi-

tive service" employees.

The CSRA recognizes at least two kinds

of injuries. Chapter 23 sets forth "pro-

hibited personnel practices," the adminis-

trative remedies for which are to be ob-

tained through the Office of Special Coun-

sel (OSC). 5 U.S.C. §§ 2301, 2303, 1206,

1208 (1988). The Special Counsel has been

ee eee

lla

compared to a prosecutor.°* The OSC, in its

discretion, brings charges to the Merit

Systems Protection Board ("MSPB" or

"Board") based on an employee's complaints

and no appeal may be taken by the employee,

§ 1206. See also Saul, 928 F.2d at 833-34

(describing Chapter 23 actions); Rive a,

924 F.2d at 950 (describing osc relief).

Chapter 75 governs "adverse actions." 5

U.S.C. §§ 7501-7504, §§ 7511-7514.° Chap-

*See Peter B. Broida, A Guide to Merit

Systems Protection Board Law & Practice 29

(8th ed. 1991); Ellen Bussey, ed. Federal

Civil Service Law & Procedures 53 (2d ed.

1990).

* Section 7511 sets out which catego-

ries of employees may bring charges on

account of major adverse action taken

against them including removal, suspension

for more than 14 days or furlough for more

than 30 days, and reductions in grade or

pay. Section 7513 details the procedural

protections to be accorded by the agency

involved. Appeal is provided to the Merit

Systems Protection Board, § 7701, and

judicial review, by the Federal Circuit, §

7703. Prior to the 1990 amendments, only

"preference eligibles" of the "excepted

service" (those who had served in the armed

12a

ter 75 remedies that include access to the

Board and ultimately a federal court’ are

not available to a "Schedule A" "excepted

service" appointee,® such as, Andersen.

Despite his nine years of service to the

EEOC, the CSRA then in effect afforded him

only Chapter 23 protection.’

forces) were covered, § 7511(a)(1)(B). See

5 U.S.C. §2108(3); Broida, supra note 5 at

39. Other "excepted service" employees had

no recourse to Chapter 75 protections even

if they suffered major adverse actions.

See Fausto, 484 U.S. at 446-47.

’See Broida, supra note 5 at 34-34, 39-

41; see also supra note 6.

®*The civil service is composed of a

competitive and excepted service. 5 U.S.C.

§§ 2201(1), 2102, 2108; 5 C.F.R. §§ 1.2-4,

6.1-2, 212.101, 212,301, 213.101-03,

213.3101-02, 213.3201, 213.3301. See

Broida, supra note 5 at 37-38. Under the

regulations attorneys have been designated

as "Schedule A" employees. 5 C.F.R. §

213.3102(d).

*°Were Andersen an employee within the

terms of then Section 7511 his alleged

constructive discharge would be treated as

a major adverse action warranting a hearing

before the MSPB. See Bussey, supra note 5

at 97-98 (coerced resignation or retirement

NS a a

13a

Andersen sought relief in district

court when the OSC elected not to bring a

charge to the MSPB on Andersen's behalf.

Andersen argued to the district court that

since his claims are not cognizable under

the CSRA, its provisions precluding judi-

cial review are equally inapplicable. The

district court's dismissal was grounded in

the preemptive nature of the comprehensive

personnel statute that by its own terms

provides limited remedies to excepted

service employees. On appeal, Andersen

takes two tacks. First he argues that the

CSRA is inapplicable to his particular

circumstances. Second he attacks the

viewed as adverse action and subject to a

hearing); Broida, id. at 666-70 (discussing

jurisdiction under Chapter 75 for construc-

tive adverse actions) ; Dumas v. Merit Sys.

, 789 F.2d 892, 893, 895

(Fed. Cir. 1986) (affording right to an

evidentiary hearing on the existence of

jurisdiction where voluntary nature of

removal in question.

14a

preclusive sweep accorded it by the dis-

trict court.

If Andersen's “constructive discharge"

is a "prohibited personnel practice" within

the meaning of the CSRA, 5 U.S.C. § 2302,

any relief Andersen may have is limited to

CSRA remedies. The language of this provi-

sion is broad. It encompasses "whistle

blowing," § 2302(b)(8), and a "catchall"’°®

section referring to any violations of the

"merit system principles," § 2302(b)(11l).

These principles include the maintenance of

"high standards of integrity, conduct, and

concern for the public interest," §

2301(b) (4), and protection from reprisals

against "whistleblowers," §2301(b)(9), the

basis upon which Andersen originally filed

a complaint with the OSC. The district

See Bussey, supra note 5 at 131.

15a

court noted at least two of these provi-

sions as "cognizant of plaintiff''s claims

in this case." District court opinion at

22.

Andersen argues that a "narrow excep-

tion" for actions based on ethics viola-

tions is contemplated by Congress so as not

to "allow a federal agency hiding within

personnel laws to cover up the unethical

acts of its Supervisory attorneys."

Appellant's Opening Brief at a2, 38.

However, congress' recent amendments to

open greater administrative and judicial

avenues to "whistleblowers" of all kinds,

including those bound by professional

ethics, belies Andersen's argument. See

Whistleblower Protection Act of 1989, Pub.

L. No. 101-12, 103 Stat. 16 (1989), as

codified at 5 U.S.c. §§ 1221 (affording

recourse to MSPB and the Federal Circuit

for actions alleging "prohibited personnel

16a

practice," § 2302(b)(8)); see also Pub. L.

No. 101-376-104 Stat. 46 (1990), adding §

7511(a) (1) (C) (expanding categories of

employees covered under Chapter 75).

Instead of exempting such employees and

such grievances from the CSRA regime,

Congress has progressively expanded the

remedies available for whistleblowers and

those whose jobs are jeopardized by main-

taining "high standards of integrity,

conduct, and concern for the public inter-

est." 5 U.S.C. § 2301(b) (4). We conclude

the CSRA and limited to its remedies.

Andersen's second argument that the

CSRA's preclusive sweep is not so broad as

to deny jurisdiction in his case is not

persuasive. The Supreme Court consistently

has held that Bivens actions and actions

under the Tucker or Back Pay Act, 28 U.S.C.

§ 1491, are precluded by the CSRA. Bush,

_——_- <=

17a

462 U.S. at 368, 388-90; Fausto, 484 U.S.

at 447-55. In Bush, the Supreme Court

acknowledged that the remedy available for

the violation of a federal employee's First

Amendment rights under the CSRA "was not as

completely effective as a Bivens-type

action based directly on the Constitution,"

but nonetheless declined to find jurisdic-

tion. Bush, 462 U.S. at 377. It reasoned

that Congress was better positioned to

determine what level of relief to afford

government employees, id. at 390, and that

"it would be inappropriate for (the Court]

to supplement that regulatory scheme with a

new judicial remedy," id. at 368.1! After

“Although Schweiker v. Chilicky, 487

U.S. 412 (1988) dismissed a Bivens claim in

the context of the Social Security Act, its

analysis has been widely applied in csRa

cases. The Court vacated and remanded for

reconsideration in light of Chilicky pend-

ing cases that had allowed Bivens actions.

See e.g., Kotarski v. Cooper {hereinafter

Kotarski I], 799 F.2d 1342 (9th Cir. 1986),

vacated, 487 U.S. 1212 (1988), rev'd on

18a

analyzing the remedies provided by the

CSRA, and noting that for some employees

these remedies are sharply circumscribed,

the Court in Fausto held that federal

employees could not seek judicial review

under the Tucker Act. In its view:

the absence of provision for

these employees to obtain judi-

reconsid., Kotarski v. Cooper, (hereinafter

Kotarski II), 866 F.2d 311 (9th Cir. 1989);

see also McInt v. W berger, 810 F.2d

1411 (8th Cir. 1987), vacated sub _ non.

Turner _v. McIntosh, 487 U.S. 1212 (1988),

rev'd on reconsid., McIntosh v. Turner, 861

F.2d 524 (8th Cir. 1988). The Chilicky

decision relies on the Court's opinion in

Bush and extends its reasoning. Noting

that [[{wjhen the design of a Government

program suggests that Congress has provided

what it considers adequate remedial mecha-

nisms for constitutional violations that

may occur in the course of its administra-

tion, we have not created additional Bivens

remedies," the Court emphasized the point

that "Congress is the body charged with

making the inevitable compromises required

in the design of a massive and complex

welfare benefits program .. . and we see

no legal basis that would allow us to

revise its decision." cChilicky, 487 U.S.

at 423, 429. See Pereira v. United States

Postal Serv., 964 F.2d 873, 875 (9th Cir.

1992) (noting extension of reasoning).

19a

cial review is not an uninforma-

tive consequence of the limited

scope of the statute, but rather

manifestation of a considered

congressional judgment that they

should not have statutory enti-

tlement to review for adverse

action of the type governed by

Chapter 75 [of the CSRA, 5 U.S.C.

§§ 7511, 7701, 7703).

Fausto, 484 U.S. at 448-49. The Congres-

sional intent not to allow Tucker Act

remedies for certain categories of employ-

ees was found in part from the fact that

these employees' were deliberately excluded

from certain CSRA protections, including

judicial review. id. at 455. Because of

"the comprehensive and integrated [nature

of the) review scheme of the CSRA," the

Court held that no supplementary Tucker Act

jurisdiction existed. Id. at 454; see also

Broida, supra note 5 at 1993-94 (emphasiz-

ing the "significant repercussions" of

Fausto for the availability of judicial

review outside the CSRA).

20a

Accepting the CSRA as "the bedrock of

our analysis," Saul, 928 F.2d 829 at 832,

our court has denied judicial review out-

side the relief provided by the CSRA.”

See Saul, 928 F.2d at 840; Berry, 925 F.2d

at 315-16; Rivera, 924 F.2d at 951;

Kotarski v. Cooper [hereinafter Kotarski

II), 866 F.2d 311, 312 (9th Cir. 1989);

Karamanos v. Eqger, 882 F.2d 447, 451-53

(9th Cir. 1989) (precluding Bivens claims) ;

924 F.2d at 951-52 (precluding Federal Tort

Claims Act claims); Veit v. Heckler, 746

F.2d 508, 511 (9th Cir. 1984) (precluding

APA claims). The absence of any kind of

judicial review or remedy under the CSRA

But see Broida, Supra note 5 at 1997;

Burroughs v. Office of Personnel Manage-

ment, 764 F.2d 1300 (9th Cir. 1985) (pre-

Fausto, APA-based review of classification

decisions issued by Office of Personnel

Management; see also Karamanos vy. Egger,

882 F.2d 447, 451, n.1l (9th Cir. 1989)

(questioning validity of Burroughs in light

of Fausto).

21a

for certain classes of employees or catego-

ries of claims does not alter our jurisdic-

tional analysis. Fausto, 484 U.S. at 448;

Saul, 928 F.2d at 840 (CSRA "precludes even

those Bivens claims for which the act

prescribes no alternative remedy"). In

some cases we have relied on this reasoning

to preclude all other possible grounds for

judicial review where the CSRA applies.

Lehman, 779 F.2d at 528 (holding CSRA

"provides [employee's] sole recourse") ;

Veit, 746 F.2d at 511 (declaring trial

court “correct in holding that neither the

CSRA, the APA nor any other authority gave

it the power to review [employee's claim)"

and noting "a clear congressional intent to

permit federal court review as provided in

the CSRA or not at all"); see also Saul,

928 F.2d at 839, 841 (describing Veit

court's statement as dictum but citing with

approval Lehman holding). As the Rivera

22a

court put it:

(T]he clear thrust of [this pre-

cedent] is that Congress's pur-

pose in enacting the CSRA was to

channel grievances and disputes

arising out of government employ-

ment into a single system of

administrative procedures and

remedies, subject to judicial

review {as therein provided]. To

permit [additional claims] to

supplant to CSRA's remedial

scheme certainly would defeat

that purpose.

Rivera, 924 F.2d at 951.” But see

Spagnola v. Mathis, 859 F.2d 223, 230 (D.C.

Cir. 1988) (en banc) (reserving "the right

“Prior to the Chilicky decision, we

relied upon the analysis in Bush suggesting

that "meaningful" judicial review must be

available for certain claims. See Kotarski

I, 799 F. 2d at 1346-59; see also supra

note ll. However, in the wake of the

Supreme Court's extension of Bush, this is

Clearly not the appropriate inquire. See

Saul, 928 F.2d at 837 ("we shifted our

inquiry from evaluating whether the CSRA

provided . . . meaningful and adequate

remedies to deciding if the CSRA's omission

of a ° remedy ° ° ° was

‘inadvertent'"). Cf. Broida, supra note 5

at 30 ("({t)he Board lacks authority to

broaden its statutory authority, no matter

how compelling the injustice presented by

an employee").

Se me ee ee + Se tt a oe

23a

of civil servants to seek equitable relief

against their Supervisors, and the agency

itself, in vindication of their constitu-

tional rights") .%

“Judge Hardy cited Spagnola, but

relied solely on Kotarski I to retain

jurisdiction. He characterized Kotarski I

as viable, for Spagnola-like Claims, i.e.

constitutional claims for which equitable

relief is sought. Andersen presses

Spagnola as authority for exercising jur_s-

diction over his constitutional claims

(property interest in civil service employ-

ment, and first amendment rights). He

seeks equitable injunctive relief (rein-

statement). See Gilliam v. Miller, 973

F.2d 760, 761 (9th Cir. 1992) reinstatement

considered injunctive relief); Smith v.

Barton, 914 F.2d 1330, 1337 (9th Cir.

1990), cert. denied, 111 S. Ct. 2825 (1991)

(same). We here assume, as the Bush court

did, that Andersen's constitutional rights

have been violated, 462 U.S. at 372. We

nevertheless cannot rely on Spagnola to

provide him a remedy. our court previously

has held that "(t)he CSRA precludes Ja

federal employee] from seeking injunctive

relief for his asserted constitutional

injury just as it precludes him from bring

a Bivens action for damages." Saul, 928

F.2d at 843 & n.7 (noting that under

Spagnola the "D.c. Circuit differs from

other circuits by permitting federal en-

ployees to vindicate their constitutional

rights through suits against their supervi-

sors and employing agencies for injunctive

aNnES tersperperscwer coms

24a

Andersen argues that permitting his

APA claim would not supplant the CSRA

mechanism because "{b]oth the CSRA and APA

have their place in the federal scheme" and

the “operative facts" of his case counsel

reconciling the competing federal statutes.

Appellant's Brief at 35. To the extent

that this argument is not a reprise of the

earlier contention that the CSRA simply

does not apply to employment disputes

involving compliance with ethical obliga-

tions,’? it has no support in the caselaw

relief, but not for damages"). Nor may we

rely on Kotarski I, see supra notes ll &

13.

In his reply brief, Andersen charac-

terizes the APA as "distinct and coexistent

with the CSRA." Grey Brief at 4 (emphasis

added). At oral argument, Andersen sup-

plied this court with supplemental authori-

ty stating that Veterans Administration

physicians may obtain judicial review under

the APA. Be Vv. Ollander, 925 F.2d

1230, 1239-40 (10th Cir. 1986); Heaney v.

United States Veterans Admin., 756 F.2d

1215, 1219 (5th Cir. 1985)). However,

Veterans Administration physicians are not

25a

identifying the CSRA as the comprehensive,

integrated statutory mechanism affording

federal employees whatever relief Congress

has seen fit to accord. Congress' failure

to provide judicial review to some catego-

ries of employees Simply "reflects a con-

gressional intent that no judicial relief

be available," Veit, 746 F.2d at 511 (cit-

ing Carducci v, Regan, 714 F.2d 171, 174

(D.C. Cir. 1983) (internal quotations

omitted)). That APA actions in particular

may be precluded has already been estab-

lished in this circuit, Veit, 746 F.2d at

Sll, and others. See e.g., Stephens v.

Department of Health & Human Serv., 901

F.2d 1571, 1575-77 (llth Cir.), cert,

denied, 498 U.S. 998 (1990); Ryon vy.

covered by the CSRA. Heaney, 756 F.2d at

1218; see also Franks, 796 F.2d at 1239.

Because we have determined that the CSRA

applies, this line of precedent is irrele-

vant.

26a

O'Neill, 894 F.2d 199, 201-02 (6th Cir.

1990); Carducci, 714 F.2d at 174-75; Broad-

way v. Block, 694 F.2d 979, 984 (5th Cir.

1982); see also Broida, supra note 5 at

1996-97.°°

Andersen attempts to escape the force

of this precedent by focussing on the

legislative history of the APA indicating

“Before the Supreme Court "emphatical-

ly and conclusively established the preemp-

tive nature of the cCSRA," Stephens v.

Department of Health & Human Serv., 901

F.2G 1571, 1575-76 (llth Cir.), cert.

denied, 498 U.S. 998 (1990), a distinction

was drawn between constitutional and naon-

constitutional APA claims. See e.g.,

a Cc Vv » a8 F.8G 27h, AVa?77

(D.C. Cir. 1983). In asserting APA juris-

diction, Andersen contends that his due

process rights have been violated under the

APA. That his APA claim is constitutional

in nature does not overcome the reasoning

of the Supreme Court and circuit precedent

which confers no special status on consti-

tutional violations in arriving at juris-

dictional determinations. Chilicky, 487

U.S. at 413 ("Congress has provided what it

considers adequate remedial mechanisms for

constitutional violations that may occur in

the course of its administration"); see

also Stephens, 901 F.2d at 1575-76 (citing

Veit, 746 F.2d at 511).

27a

that this statute may afford equitable

relief for actions arising out of "“govern-

ment employment," H.R. Rep. No. 94-1656,

94th Cong., 2d Sess. 8, reprinted in 1976

U.S.C.C.A.N. 6121, 6128-29; Bowen v. Massa-

Chusetts, 487 U.S. 879, 899-900 (1988), and

on Supreme Court precedent holding that the

National Security Act ("NSA"), 50 U.S.C. §¢

403(c), does not preclude APA-based review

of "“colorable constitutional Claims."

Webster v. Doe, 486 U.S. 592, 603 (1988) .?’

‘In Webster, the Court concluded that

the NSA did not preclude APA review. It

described the APA as the "comprehensive"

statute. Webster, 486 U.S. at 599. Con-

fronted with an argument similar to the one

Andersen advances, the Eleventh Circuit has

held Webster irrelevant[]." See Stephens,

901 F.2d at 1577 (plaintire characterized

Webster as representing the "court's

reaffirmance of the district court's role

in reviewing federal personnel decisions

under the APA"), In our view Webster is

readily distinguishable. It involved a

different statute (the NSA), one not her-

alded as a comprehensive and integrated

remedial system where Congressional intent

to exclude additional relief could be

discerned. Moreover, the agency involved

28a

The district court points out that while

the "APA may apply to ‘government

employment,'" the APA, itself, provides

that it does not apply to the extent other

statutes preclude judicial review, 5 U.S.C.

7O1(A) (1). District court opinion at 19

(internal citations omitted).

Iit.

The statutory regime that we must

apply has been substantially amended since

Andersen's grievance arose. if applied

retroactively, the amendments would afford

in that case, the CIA is specifically

excluded from the CSRA framework. 5 U.S.C.

§ 7511(b) (7)? see also Broida, supra note 5

at 2004-05; Bussey, id. at 121.

“The district court does not discuss

the other jurisdictional bases upon which

Andersen relies in his complaint. The

analysis with respect to Section 1331 and

Section 1361 jurisdiction is, in any event,

the same as that for APA jurisdiction. See

Bush, 462 U.S. at 374, 390 (no jurisdiction

under 28 U.S.C. § 1331); McAuliffe, 966

F.2d at 979 (same); Stephens, 901 F.2d at

1576 (no jurisdiction under 28 U.S.C. §

1361); Ryon, 894 F.2d at 205 (same).

29a

him both greater administrative recourse

and judicial review. As much as we are

struck by the injustice of denying access

to redress to a career attorney with nine

years of service, we cannot cure the defi-

cits in the statute applicable to

Andersen's case. We must affirn.

AFFIRMED.

30a

APPENDIZ B

OPINION OF DISTRICT COURT

RONALD M. ANDERSEN

UNITED STATES OF AMERICA, et al.

CIV. No. 89-0273 PHX RCB

United states District Court,

District of Arizona

July 19, 1991.

ORDER

BROOMFIELD, District Judge.

This matter comes before the court on

defendants' renewed motion to dismiss

and/or cross-motion for summary judgment,

and plaintiff's motion for partial summary

judgment on count IV of the first amended

complaint. Defendants' motion requires the

court to consider initially the fundamental

issues of subject matter jurisdiction and

the effect of another judge's prior order

in this case determining that such juris-

31a

diction exists. See Order dated August 17,

1988 (Doc. No. 18).

This action arises from plaintiff's

termination on February 9, 1988 from his

employment as a senior trial attorney by

the Equal Employment Opportunity Commission

("EEOC") at its Phoenix District Office.

Plaintiff alleged that he was constructive-

ly terminated in violation of several of

his constitutional rights. Plaintiff now

seeks summary judgment on the basis of his

first Amendment claim only, but defendants'

renewed motion to dismiss or cross-motion

for summary judgment relates to all remain-

ing claims.

I. FACTS

The EEOC assigned plaintiff a sexual

harassment case entitled FEoOc Vv. Suite

Simpatica, which was set for trial in late

February 1988 in the United States District

Court for the District of New Mexico. In

32a

January 1988, plaintiff, his co-counsel

Niels Loechell, and an EEOC para’egal

travelled to New Mexico to interview trial

witnesses. During those interviews, plain-

tiff learned that one of the witnesses, who

was also a “charging party" (complainant),

had offered another witness money to testi-

fy as she directed, and another witness had

offered to sell his testimony to all three

of the charging parties.

The facts concerning these charges are

very involved and are detailed here only in

abbreviated form. One of the charging

parties, Phyllis Mangum, told plaintiff

that a Bob Manley had witnessed one of the

complained-of incidents of sexual harass-

ment by her boss. Manly later denied

witnessing the event and further claimed

that Mangum had offered him $2,000 to

testify that he had. When the EEOC lawyers

confronted Mangum with Manley's allegation,

33a

Mangum claimed that it was Manley who had

demanded the money from her before he would

testify.

Plaintiff also discovered a conflict

between mangum's testimony and that of

another charging party, Darlene Coday, as

to how many times Coday had been sexually

harassed and whether Mangum had witnessed

one of the incidents. Ina third incident,

Coday and another charging party told

plaintiff that Mangum had arranged for Stan

Freeman, a relative of Mangum's, to testify

to whatever they wanted if they would pay

him $10,000 out of their recovery. In one

version of the story he demanded $10,000

total, to be paid jointly by the charging

parties, and in another version he demanded

they each pay him $10,000.

While still in Farmington, plaintiff

and Loechell reported these incidents by

phone to their supervisor, defendant Rich-

wa i

34a

ard Green, supervisory trial attorney for

the Phoenix District Office. They dis-

cussed whether the EEOC should continue to

represent Mangum, and whether to notify the

charging parties' individual attorney, Gene

Vance of Albuquerque, about these events.

Plaintiff claims that Green rejected

plaintiff's and Loechell's recommendation

that Vance be told about these events.

Plaintiff claims that Green rejected

plaintiff's and Loechell's recommendation

that Vance be told about these events

immediately. Green states that he told

plaintiff and Loechell to tell Vance about

the discrepancies and that the EEOC may

refuse to represent Mangum, but that they

did not need to decide immediately whether

to tell Vance about the possibly criminal

acts, advise the U.S. attorney or sever

Mangum's case. R. 33, at 2.

35a

After returning to Phoenix, plaintiff

memorialized these events in several memo-

randa to his superiors. He also recommend-

ed in a memo to Green dated January 25 that

Vance be immediately informed of these

events, that the EEOC withdraw from repre-

senting Mangum, and that the U.S. Attorney

be notified of the bribery charges but

requested to refrain from investigating

until the civil case was concluded. In

addition, plaintiff received advice from

attorney Gary Stuart, chairman of the

Ethics Committee of the State Bar of Arizo-

na, that it would be unethical to proceed

with trial in these circumstances and that

he had a duty to notify the court of the

possibility that bribery and perjury had

been or were about to be committed.

On February 3, on Green's instruc-

tions, plaintiff notified Vance of the

factual events "without characterization."

ees

ee eee

36a

Green then attended a settlement conference

before the magistrate; he did not tell the

magistrate about the problems he had en-

countered. Plaintiff complains that, other

than instructing plaintiff to tell Vance

about these events and collecting memos

from those involved, plaintiff's supervi-

sors did nothing to resolve the potential

ethical problems during the period between

the events of January 11-14 and the Febru-

ary 9 meetings described below. Pl.'s

Statement of Facts 4 5(C)(1). Vance, the

charging parties' private counsel, wrote to

the EEOC on February 5, expressing his

concern that the "gridlock" in the agency's

decision-making regarding the ethical

problems that had arisen would prejudice

his clients.

The conflict between plaintiff and his

superior came to a head on Tuesday, Febru-

ary 9, during a series of meetings that

——ee ae

——

37a

included plaintiff, Loechell, Green and

defendant Richard Trujillo, who was region-

al supervisor of the Phoenix District

Office. Green and Trujillo have summarized

these discussions in several memoranda. R.

27. The first meeting that day was between

plaintiff and Green. Plaintiff related

Stuart's ethics opinion and indicated he

would need to withdraw from the Suite

Simpatica case, and that he thought the

whole EEOC office must do so. Green dis-

agreed. Green next met with both plaintiff

and Loechell and discussed Stuart's ethics

opinion, including whether the problem

would be resolved by severing Mangum and

not putting her on if convinced she would

commit perjury, or going to the magistrate

or judge with the problen.

The critical meeting occurred the same

afternoon and included Green, Trujillo,

plaintiff and Loechell. During this meet-

—

———a

—<<~ — ee

38a

ing, it was decided that Green and Loechell

would go to Albuquerque and possibly

Farmington to talk to Vance, the U.S.

Attorney and possibly some witnesses.

Trujillo said that a decision would be made

by Friday as to whether the problem should

be taken to the magistrate or judge, and

that Green and Loechell may be asked to do

so Friday while they were in Albuquerque.

Plaintiff stated that he intended to

file a motion to withdraw and that he would

do nothing further on the case except

prepare to turn it over to another attor-

ney. Trujillo told him that he was to

continue preparing the case for trial, and

that his failure to do so would be consid-

ered insubordination. Plaintiff then

brought in John Treadwell, a union steward,

and the parties made various representa-

tions to him of what had just occurred.

39a

Green and plaintiff met alone after

that meeting. Green told plaintiff that a

decision would be made by Friday about

whether the matter should be taken to the

magistrate, and he rejected plaintiff's

suggestion that the magistrate by informed

immediately. He also told plaintiff that

he should continue working on the trial,

that he needed to do the same work anyway

in order to prepare it for another attor-

ney. Plaintiff state, however, that Stuart

had advised him by telephone that if a new

lawyer would need time to prepare for the

impending trial, plaintiff should withdraw

immediately.

At 10:00 p.m. the same day, plaintiff

called Green at home and tendered his

resignation. The next day plaintiff flew

to Albuquerque where he reported the situa-

tion to a magistrate. The magistrate

concluded that the case was "tainted" and

40a

ordered plaintiff to turn the matter over

to the U.S. Attorney, which he did. The

U.S. Attorney initiated an investigation of

the matter but took no further action.

Defendant's Statement of Facts, 4 39 n.9.

The magistrate also spoke to the trial

judge who vacated the trial date.

On February 16, 1991, plaintiff began

to seek reinstatement through administra-

tive channels of the EEOC. At that time,

he specifically directed the EEOC to con-

sider his application for relief as apply-

ing to all potential sources of administra-

tive relief except that provided by union

grievance procedures. Eventually that

proved to be his undoing because his claim

was not presented to the union until after

plaintiff failed to obtain relief from

other administrative sources, which held

that he had voluntarily resigned. By that

time, the deadline for filing a union

kee Paks >

4la

grievance had passed. Plaintiff appealed

the union's decision that his claim was

untimely to the Federal Labor Relations

Authority, but his appeal was denied.

R.65-70.

II. PROCEDURAL HISTORY

Plaintiff initiated this action on

February 7, 1989.* On June 2, 1989, defen-

dants filed a motion to dismiss on the

grounds that; (1) the constitutional tort

Claims against the government were barred

by sovereign immunity: (2) the Bivens

claims against the individual defendar ::

were barred by the comprehensive relief

scheme of the Civil Service Reform Act of

1978 (CSRA); (3) the court thus had no

‘Plaintiff pursued several other ave-

nues of relief prior to bringing this

action. The history of his administrative

proceedings is recounted below in connec-

tion with defendant's claim that plaintiff

failed to exhaust his administrative reme-

dies.

42a

jurisdiction over the pendent state claims

for wrongful termination; and (4) because

the Administrative Procedures Act ("APA")

was preempted by CSRA, the court had no

jurisdiction to review the federal person-

nel actions at issue in this case. Defen-

dants conceded in their reply, however,

that the APA did provide the court with

jurisdiction to review constitutional

claims.

On August 17, 1989, Judge Hardy en-

tered an order dismissing the Bivens claims

against the individual defendants and all

claims against the government for money

damages. The order denied the motion as it

pertained to claims for equitable relief,

however, on the basis that the court had

jurisdiction under either the APA or the

Constitution to hear such claims. The

court allowed plaintiff to proceed with his

Fifth Amendment due process and his First

43a

Amendment claims. By order dated February

22, 1990, the court also dismissed the

pendant state law claims stated in count II

of the complaint.

II. JURISDICTION

A. Effect of prior order

Plaintiff contends that this court is

bound by Judge Hardy's order dated August

17, 1989 denying the motion to dismiss as

it pertained to equitable claims against

the United States, the FEOC and its chair-

man on the basis that Congress waived

sovereign immunity as to claims for equita-

ble relief in the Administrative Procedures

act, 5 0.8.¢. § 7062. Further, the parties

agree that at least part of the basis for

that ruling was defendants' concession in

their reply in support of the motion to

dismiss that the court had jurisdiction

under the APA to hear such clains. See

Defendants' Reply in Support of Motion to

44a

Dismiss, at 4. Plaintiff argues that

defendants now are either judicially es-

topped from denying a matter conceded in

prior pleadings or estopped on the basis of

plaintiff's reliance upon the concession

and the resulting court order.

Law of the case principles guide the

court's discretion but do not limit the

court's power to depart from a prior hold-

ing in the same case. Arizona v. Califor-

nia, 460 U.S. 605, 618, 103 S. Cit. 1382,

1391, 75 L.Ed.2d 318 (1973). Under guide-

lines established by the Ninth Circuit, a

court may properly decide not to follow a

prior decision when:

there is substantially different

evidence at a subsequent trial,

new controlling authority, or the

prior decision was clearly erro-

neous and would result in injus-

tice.

Handi nvestment Co. v. ob fe) Corp.,

653 F.2d 391, 892 (9th Cir. 1981). Defen-

45a

dants present no new authority not

addressed in their original motion to

dismiss. Rather, they seek to revise their

interpretation of that authority and con-

tend, based upon their revised interpreta-

tion, that the prior ruling was clearly

erroneous and would result in injustice.

The court is compelled to revisit

Judge Hardy's prior ruling, because the

matter at issue concerns the fundamental

question of whether this court has subject

matter jurisdiction. See United States v.

Houser, 894 F.2d 565, 568 (9th Cir. 1986).

A court must always satisfy itself that it

has subject matter jurisdiction and must

dismiss if it finds itself to be without

it, regardless of whether a prior order

reached a different conclusion and despite

any questions of judicial or equitable

estoppel. The law governing the issue of

the CSRA's preemption of judicial review

46a

under the APA or directly under the Consti-

tution has been snbstantially clarified by

recent decisions of both the Supreme Court

and the courts of appeal in other circuits

that apparently did not enter into Judge

Hardy's analysis.

B. Sovereign immunity

Two sections of the August 17, 1989

order addressed the issue of subject matter

jurisdiction. In section I, the court

denied defendants' motion to dismiss on the

issue of sovereign immunity. The court

determined that it had jurisdiction to hear

plaintiff's constitutional claims for

equitable relief under section 10(a) of the

APA, 5 U.S.C. § 702, in which Congress

waived sovereign immunity as to injunctive

relief for the effects of agency action.

Order to August 17, 1989, at 6 (quoting

McCartin v. Norton, 674 F.2d 1317, 1321-22

(9th Cir. 1982). (The waiver was held not

47a

to extend to the Bivens claims against the

governmental entities, however.)

Defendants apparently now argue that

the government's sovereign immunity has not

been waived because: (1) the waiver of

sovereign immunity embodied in § 702 of the

APA does not extend to any action that is

not, or cannot be, brought under the APA;

and (2) this action cannot be brought under

the APA, because that act has been preempt-

ed by the CSRA. The court disagrees with

defendants' conclusion. The government's

waiver of sovereign immunity in § 72 of the

APA is not limited to actions "brought

under" the APA but extends as well to other

suits for non-monetary relief brought under

28 U.8.CG. 8 1331. Assiniboine and Sioux

Tribes v. Board of Oil and Gas, 632 F.2d

788, 797 (9th Cir. 1980). Thus, whether

the comprehensive scheme of the CSRA pre-

cludes the court from exercising jurisdic-

48a

tion over plaintiff's claims, under either

the APA or directly under the Constitution,

is a separate question from the issue of

sovereign immunity. Section 702 of the APA

constitutes a waiver of the government's

sovereign immunity as to equitable claims,

whether or not this case may be brought

under the APA.

. CSRA preemption of the APA

In section I of the August 19, 1989

Order, the court decided that §792 of the

APA constituted a waiver of the

government's sovereign immunity, but went

on to state that "(t]he statute specifical-

ly provides...that it does not affect other

limitations on judicial review, such as

failure to exhaust administrative remedies

Or exclusive alternative remedies." Order

of August 17, 1989, at 7. The court turned

in section IV of the order to this second

jurisdictional question: whether the court

49a

had the power to hear plaintiff's claims

brought under the APA, given the pervasive

regulatory scheme of the CSRA. The court

ruled that it did have jurisdiction under

the APA to hear plaintiff's constitutional

Claims. The court relied in part upon the

Ninth Circuit decision, Kotarski v. Cooper,

and defendants' concession in their reply

that under Kotarski plaintiff could bring

his constitutional claims under the APA.

Id. at 12 (citing Kotarski v. Cooper, 799

F.2d 1342, 1350 & N.6 (9th Cir. 1986)

("Kotarski I"), vacated on other grounds,

108 S. Ct. 2861 (1988)).

The court apparently did not find it

necessary to address the possibility of

jurisdiction directly under the Constitu-

tion, because the court found jurisdiction

over plaintiff's constitutional claims

50a

under the APA.* Order of August 17, 1989,

at 12. In ruling that the pervasive scheme

of the CSRA deprived the courts of the

power to provide a judicial Bivens remedy

against the individual defendants, however,

the court cited the Spagnola case and

indicated parenthetically that the court

there determined the CSRA did not deprive

the court of jurisdiction to hear claims

for equitable relief. Order dated August

17, 1989, at 11 (citing Spagnola v. Mathis,

859 F.2d 223, 229-30 (D.C. Cir. 1988)).

Determining whether the court has

jurisdiction over plaintiff's claims for

“Jurisdiction over cases brought under

the APA also must be grounded in 29 U.S.C.

§ 1331, because the APA does not serve as

an independent jurisdictional grant.

Califano v. Sanders, 430 U.S. 99, 105, 97

S. Ct. 980, 984, 51 L.Ed.2d 192 (1977).

The APA does relieve a party properly

bringing an action under the APA, however,

from establishing a private right of action

under any other statute. Glacier Park

Foundation v. Watt, 663 F.2d 882, 885 (9th

Cif. 21981).

5la

equitable relief directly under the Consti-

tution requires a similar analysis to

determining whether such jurisdiction may

be found under the APA. Section 1331

grants federal courts the power to fashion

judicial remedies for violations of consti-

tutional rights by state or federal offi-

cials. Bush v. Lucas, 462 U.S. 367, 374,

103 S. Ct. 2404, 2409, 76 L.Ed.2d 648

(1983). The courts will not exercise that

power where Congress has provided an alter-

native statutory remedy and has indicated

by the statutes's intent, language, legis-

lative history or the statutory remedy

itself that courts should not provide an

additional judicial remedy. id. at 378,

103 S. Ct. at 2411. Thus, the court must

determine whether the pervasiveness of the

CSRA remedial scheme indicates a Congres-

sional intent that the courts not exercise

their power to provide judicial remedies in

52a

additional to remedies provided in the

CSRA.

Defendants now contend that its con-

cession that the court could hear

plaintiff's constitutional claims under the

APA was based upon an incorrect interpreta-

tion of Kotarski. Defendants argue that

the CSRA preempts application of the APA,

because the pervasive scheme of the CSRA

indicates a Congressional intent that the

statute provide an exclusive remedy.

Defendants also contend that, even if the

remedies the CSRA provides are not as

extensive as those plaintiff may have under

an action brought directly under the Con-

stitution, the comprehensiveness of the

CSRA remedial scheme indicates a Congres-

sional intent that the courts not provide

an additional judicial remedy. Defendants

argue that the nature of the remedy afford-

ed, whether money damages or equitable

53a

relief, should not be determinative of

whether the CSRA preempts actions brought

under the APA or the Constitution.

Plaintiff argues that the authorities

defendants cite pertain only to preclusion

by the CSRA of judicially-creaced remedies

and not to the statutorily-created remedies

found in the APA.’ Plaintiff also contends

that, even if the CSRA did preempt actions

brought under the APA, the statutory scheme

of the CSRA covers only federal personnel

actions, which do not include actions

pertaining to an employee's violation of

ethical rules. Finally, plaintiff main-

*Plaintiff also interprets defendants’

argument concerning jurisdiction under the

APA to be based upon a contention that

plaintiff's claim for back pay is a claim

for money damages, rather than an equitable

clain. The court does not understand

defendants to have raised that issue,

however nor does the court need to address

it in light of its ruling that both legal

and equitable claims may be brought only

under the CSRA.

54a

tains that the court's prior order should

be followed, because no subsequent cases

have revised the Ninth Circuit's Kotarski

holding on which the court relied.

The court is persuaded that plaintiff

is limited to the relief provided by the

CSRA. Plaintiff offers no good reason why

the reasoning of recent Supreme Court and

circuit court decisions concerning the

exclusivity of the remedies provided by the

CSRA should not apply to claims for equita-

ble relief as well as to claims for money

damages. The court's prior order deciding

that the court had jurisdiction under the

APA to hear plaintiff's equitable claims

relied upon a Ninth Circuit decision,

Kotars v. Coo , 799 F.2d 1342, 1352 &

n.6 (9th Cir. 1986) ("Kotarski I"). In the

light of more recent authority, including

the Ninth Circuit's revisitation of

55a |

Kotarski I, the court must vacate the order

of August 17, 1989 on this issue.

In Kotarski I, the court allowed the

plaintiff to pursue a Bivens action on the

basis that, as a probationary employee, the

plaintiff had no adequate remedy under the

CSRA for violations of his constitutional

rights. The court previously had decided

in Veit v. Heckler that a plaintiff whose

Claim fell within the purview of the CSRA

was limited to his remedies under that

statute. Veit v. Heckler, 746 F.2d 508,

511 (9th Cir. 1984). In Kotarski I, howev-

er, the court limited the holding of Veit

to non-constitutional claims. On that

basis, this court held that the APA was not

preempted by the CSRA as to plaintiff's

constitutional claims, although the court

also held that the APA only waived sover-

eign immunity as to claims for equitable

relief.

56a

The Supreme Court vacated Kotarski I

and remanded the matter to the Ninth Cir-

cuit for reconsideration in light of the

Court's holding in Schweiker v. Chilicky,

487 U.S. 412, 108 S. Cit. 2460, 101 L.Ed.2d

370 (1988). (ele) Vv fe) ao

___, 108 8S. Ct. 2861, 101 L.Ed.2d 897

(1988). In Chilicky, the Court had held

that the comprehensive scheme of the Social

Security Act precluded a plaintiff from

bringing a Bivens action, even though the

relief provided by the act was not as

complete as that afforded by an action

brought directly under the Constitution.

ag. Gt... :, GO - 8. Bbw OU 5

On remand of Kotarski I, the Ninth

Circuit held that the rationale of Chilicky

precluded plaintiff's Bivens action, be-

cause the CSRA "provided some mechanism for

appealing adverse personnel actions, it

cannot be said that the failure to provided

57a

damages, or complete relief, was

"'tinadvertent.'" Vv fofe) , 866

F.2d 311, 312 (9th Cir. 1989) ("Kotarski

II"). The court has since reaffirmed that

holding in Saul v. United States, No. 89-

35693, slip op. at 2567, 2585, 928 F.2d

829, 837 (9th Cir. 1991). The court here

held that in drafting the CSRA Congress had

not inadvertently omitted a damages remedy

for plaintiff because the statute provided

him with remedies of either requesting the

OSC to investigate the complained-of prac-

tice as a prohibited personnel policy or

pursuing a grievance under his collective

bargaining agreement, Id. at 2587, 928 F.2d

at 838-39, the very remedies that were

available to plaintiff in this case.

In recounting the applicable rule of

Chilicky, the court in Kotarski II Stated,

"So long as Congress' failure to provide

money damages, or other significant relief,

“> or Se

58a

has not been inadvertent, courts should

defer to its judgment...." Kotarski II,

866 F.2d at 312. (emphasis added). The

Ninth Circuit has not yet addressed the

question of whether the rationale of

Chilicky would apply to claims for equita-

ble relief. The preceding language indi-

cates, however, that this circuit would not

limit the application of Chilicky only to

suits for money damages.

The Supreme Court emphasized in Bush

v. Lucas that the question in determining

whether the court should hesitate to pro-

vide a judicial remedy for constitutional

violations in addition to remedies provided

by Congress was "not the merits of the

particular remedy...sought...[{but

rjather...who should decide whether such a

remedy should be provided." Bush, 462 U.S.

at 380, 103 S. Ct. at 2412, quoted in

Kotarski I, 799 F.2d at 1353 (Hall, J.,

59a

dissenting). Recent decisions in other

circuits also support this conclusion. In

Lon,

for example, the Tenth Circuit held that

the CSRA preempts actions for injunctive

relief as well as Bivens actions.

Lombardi, 889 F.2d 959, 961-62 (10th Cir.

1989). The court reasoned that Chilicky

and related cases "virtually prohibit

intrusion by the Courts into the statutory

scheme established by Congress...whether it

is accomplished by the creation of a damag-

es remedy or injunctive relief." Id. See

also Hallock v. Moses, 731 F.2d 752, 757

(llth Cir. 1984) (rejecting employee's

claim for injunctive relief based on al-

leged retaliation for exercise of her first

amendment rights and relegating her to

remedies provided by CSRA).

Plaintiff relies upon a D.c. Circuit

case, one of several decisions from that

60a

circuit holding that the CSRA does not

preclude claims for equitable relief for

violations of an employee's constitutional

rights. Spagnola v. Mathis, 895 F.2d 223,

229-30 (D.C. Cir. 1988). The Spagnola

opinion is entirely unsupported by legal

analysis, and relies entirely on four prior

decisions of that circuit. Id. Two of

those four decisions preceded the Supreme

Court's ruling in Bush v. Lucas, and were

based on the lack of a "clear signal” from

Congress that the CSRA was meant to replace

pre-existing judicially-created remedies

for constitutional violations. Cutts v.

Fowler, 692 F.2d 138, 140-41 (D.C. Cir.

1982); Borrell _v. United States Interna~-

tional Communications Agency, 682 F.2d 981,

989-90 (D.C. Cir. 1982). Of the more

recent decisions, one distinguished Bush on

the basis that the CSRA there provided at

least a "meaningful" remedy, which it did

6la

not in that case, as well as relying upon

one of the pre-Bush decisions. Williams v.

I.R.S., 745 F.2d 702, 704 (D.C. Cir. 1984).

The other merely states summarily that Bush

applies only to damage claims against

individuals. Hubbard v. U.S. E.P.A. Admin-

istration, 809 F.2d 1, 11 (D.C. Cir. 1986).

The court does not find the reasoning the

decisions persuasive and declines to follow

then.

The court also does not accept

plaintiff's argument that this case can be

distinguished from most other cases ad-

dressing this issue on the basis that

plaintiff here seeks relief under the APA,

rather than directly under the Constitu-

tion. The court does not disagree with

plaintiff that the APA may apply to

""'government employment.'" Plaintiff's

Response, at 22. The APA itself, however,

provides that it does not apply "to the

62a

extent that (1) statutes preclude judicial

review; or (2) agency action is committed ~~

to agency discretion by law." 5 U.8.C.

70l(a). In addition, in waiving sovereign

immunity as to suits against government

agencies, the statute provides that nothing

in that provision “affects other limita-

tions on judicial review or the power or

duty of the court to dismiss any action or

deny relief on any other appropriate legal

or equitable ground." Congress has indi-

cated by the comprehensiveness of the CSRA

that that statute should preclude judicial

review under the APA. As the Fifth Circuit

explained, the rationale that prevents

recovery directly under the Constitution

applies as well to actions brought under

the APA:

The CSRA creates an extensive

scheme regulating civil service

personnel decisions. Some agency

actions are reviewable by circuit

courts, some by district courts,

and some by no court at all. We

decline to allow an employee to

circumvent this detailed scheme

governing federal employer-en-

ployee relations by suing under

the more general APA. The rea-

soning of Bush in denying a con-

stitutional right of action is

applicable here, for allowing

suit under the APA would likewise

“encourage aggrieved employees to

bypass the statutory and adminis-

trative remedies in order to seek

direct judicial relief and there-

by deprive the Government o the

opportunity to work out its per-

sonnel problems within the frame-

work it has so painstakingly

established."

Broadw Vv , 694 F.2d 979, 986 (5th

Cir. 1982) (citing Bush v. Lucas, 647 F.2d

573, 577 (5th Cir. 1981). See also Pinar

v. Dole, 747 F.2d 899, 912-13 (4th Cir.

1984).

The Eleventh Circuit also rejected a

plaintiff's argument that the APA provides

an additional remedy to those provided

under the CSRA. Stephens v. Dept. of

Health and Human Services, 901 F.2d 1571,

1575 (llth Cir. 1990). The court there

64a

relied on the Supreme Court's holding in

United states v. Fausto in concluding that

"the CSRA [is] now the exclusive remedy of

the federal employee." Id. (citing United

States v. Fausto, 484 U.S. 439, 108 S. Ct.

668, 98 L.Ed.2d 830 (1988)). The court

also notes that section 701l(a)(1) of the

APA excepts review where the statute pre-

cludes it, and the comprehensive scheme of

CSRA indicates a clear intent to provide an

exclusive remedy. Id. at 1576.

Plaintiff also argues that his claims

are not cognizable within the CSRA and he

therefore must be allowed to bring them in

this court. Plaintiff contends that the

CSRA precludes only actions brought outside

its provisions that pertain to "(mjinor

personnel actions' or matters pertaining to

employment regulations and procedures and

not to “matters external to federal laws

and regulations or constitutional in na-

65a

ture." Plaintiff's argument clearly is

wrong as it pertains to constitutional

Claims.

Constitutional challenges to

agency action, such as the First

Amendment claims raised by peti-

tioner, are fully cognizable

within this system...[(T]he

Government's comprehensive

scheme...provides meaningful

remedies for employees who may

have been unfairly disciplined

for making critical comments

about their agencies.

Bush v. Lucas, 462 U.S. at 386, 103 S. Ct.

at 2415; Saul_v. United States, No. 89-

35698, slip op. at 2577, 928 F.2d at 834.

Further, although plaintiff's superi-

ors seemed almost cavalier in their reac-

tion to plaintiff's clearly legitimate

ethical concern, the court disagrees with

plaintiff that the CSRA d’d not provide a

mechanism for appeal of the agency action

at issue in this case. As plaintiff ac-

knowledges, the statute provides a Merit

System principle that employees be protect-

66a

ed from reprisals for "lawful disclosure of

information which the employees reasonably

believe evidences...a violation of any law,

rule, or regulations...." 5S vU.8s.Cc.

2301(b) (9). Plaintiff's inability to

locate any reported cases construing this

provision to apply to judicial rules or

professional ethics does not serve as

authority for the proposition that it does

not. On the contrary, if asked to decide

this question as a matter of first impres-

sion, this court would interpret that

provision as intended to protect employees

from reprisals for such disclosures.

Moreover, in listing the prohibited person-

nel practices identified by the statue,

plaintiff mischaracterizes the practice

identified in section 2302(b)(8)(A) as

"“whistle-blowing while undertaking a per-

sonnel action." That section actually

67a

provides that any covered employee in a

position of authority

shall not, with respect to such

authority-- (8) take or fail to

take, or threaten to take or fail

to take, a personnel action with

respect to any employee...because

of--

(A) any disclosure of

information by an en-

ployee or applicant

which the employee or

applicant reasonably

believes evidences--

(i) a violation of any

law, rule, or regula-

CLOMe wee

5 U.S.C. 2301(b) (8) (A). Again, the court

interprets that provision as cognizant of

plaintiff's claims in this case.

Because the CSRA has provided a mecha-

nism for appeal of the agency action at

issue in this case, and because the compre-

hensive scheme of the CSRA precludes the

court from exercising jurisdiction over

plaintiff's claims under either the APA or

the Constitution, the court will grant

68a

defendants' motion to dismiss this matter.

Plaintiff's motion for partial summary

judgment, defendants' cross-motion and the

motion to strike defendants' augmented

statement of facts thus will be denied as

moot.

IT IS ORDERED granting defendants'

motion to dismiss (Doc. No. 97) and denying

as moot defendants' cross-motion for summa-

ry judgment.

IT IS FURTHER ORDERED denying as moot

plaintiff's motion for partial summary

judgment (Doc. No. 78).

IT IS FURTHER ORDERED denying as moot

plaintiff's motion to strike augmented

statement for facts (Doc. No. 104).

DATED this day of July, 1991.

Robert C. Broomfield

United States District Court

Copies to all parties of record

14.

69a

APPENDIX C

NOTIFICATION OF PERSONNEL ACTION

Name (Last, First, Middle)

ANDERSEN, RONALD M. MR.

SSN

288-38-6389

Date of Birth

11-26-43

Veteran of Preference: 1-None 2-5 Pt.

Pt. Disab. etc. sees

Serv. Comp. Date (Leave)

07-29-79

Tenure

Retirement: 1-CS 2-FICA 3-FS etc....

FEGLI

FLSA: E-Exempt N-Nonexempt

Sex

Citizenship: 1-US 2-Other

Effective Date

07-29-82

70a

15. Annuitant indicator: 1-Reempt Ann-CS

2-RETO 3-RETM .. . 9=-Not Applicable

16. Work Schedule: F-Full-time etc....

18.A NOAC

880

18.B Nature of Action

Chg in Tenure Group

18.C Auth Code

PKM

18.D Authority

Reg 351.502

27. To: Position Title and Number

Trial Attorney (General) F-0136

28. Name and Location of Employing Office

Equal Employment Opportunity

Commission

Office of the Executive Director

Office of Field Services

Phoenix District Office

29. Pay Plan & Occupational Code

GS-00905

30. Grade or Level

31. Step or Rate

32. Salary

$36,946

33.

34.

35.

71a

Pay Basis

Duty Station

Phoenix, Maricopa, Arizona

Position Occupied: 1-Competitive 2-

Excepted etc....

36. Appropriation Code (Optional)

9669851900000111

37. Remarks

Service counting toward career tenure

from: 07-29-79 to 07-29-82

A. Title of Approving Official

District Director

C. PRD

E. Functional Class

C. Signature/Authentication of Approving

Official

Hermilo R. Gloria

I. Agency Code

EE OO

J. Location Code

040 37 0013

K. SON

3201

Employing Department or Agency

Equal Employment Oportunity Commission

72a

APPENDIX D

JENNINGS, STROUSS & SALMON

ATTORNEYS AT LAW

ONE RENAISSANCE SQUARE

TWO NORTH CENTRAL

PHOENIX, ARIZONA 85004-2393

TELEPHONE (602) 262-5911

TELECOPY (602) 253-3255

WRITER’S DIRECT LINE

262-5843

February 9, 1988

Ronald M. Andersen

4202 North 63rd Avenue

Phoenix, Arizona 85033

Re: oc v. Suite mpatica Ltd.

Dear Mr. Andersen:

This letter will confirm that you

contacted me by telephone one February 8,

1988 and asked me to advise you regarding

your ethical obligations arising out of

your recent involvement in a civil lawsuit

pending in the United States District Court

for the District of New Mexico styled:

EEOC v. Suite Simpatica Ltd.

73a

I have reviewed your letter to me of

February 8, 1988 together with the chronol-

ogy of events and the seven exhibits at-

tached thereto. Following review of those

materials I discussed them with my partner,

Rita Meiser. Ms. Meiser is generally

knowledgeable about EEOC matters and has

been involved in questions of professional

conduct for many years.

In your letter of February 8, 1988,

you ask for my opinion regarding six spe-

cific questions. I have not had sufficient

time to analyze or research four of those

sex questions, but I will try to give you

my tentative impressions regarding your

first two questions. These deal with

whether or not you are ethically obligated

to withdraw as counsel for the EEOC in EEOC

v. Suite Simpatica Ltd. and, if so, when

that withdrawal must be made.

74a

While I am prepared to give you tenta-

tive impressions at this time, I must

caution you that I have not reviewed this

matter in depth, nor have I had sufficient

time to carefully research the issues.

Accordingly, the statements in this letter

should be reviewed by you as preliminary

advice rather than reasoned opinions on my

part.

I am assuming that all of the informa-

tion contained in your letter and its

enclosures to be accurate and that both New

Mexico and Arizona have adopted the ABA's

"Model Rules of Professional Conduct."

Most importantly, I am assuming that

you believe and have good reason to believe

that one of the charging parties in the

lawsuit (Ms. Mangum) has in fact offered a

$2,000 bribe to a witness (Mr. Manley) in

the case and has attempted to solicit from

that witness perjured testimony to be given

75a

at the forthcoming trial on February 24,

1988.

Based on the foregoing assumption, it

is my tentative impression that the ethical

prescriptions contained in the Rules of

Professional Conduct require your withdraw-

al as counsel in the case.

You have informed me that neither the

EEOC nor its trial counsel have an attor-

ney-client relationship with the charging

parties. In this particular case all five

of the charging parties are represented by

private counsel (Mr. Vance) in New Mexico.

As I understand it, the EEOC and its trial

lawyers represent only the United States

government and your role is limited to

"vindicating" Title VII of the Civil Rights

Act of 1964 (as amended) 42 USC 2000(e).

For this reason I have not reviewed those

sections of the Rules of Professional

76a

Conduct which deal with acts of a similar

nature by "clients."

In this analysis I am assuming that

Ms. Mangum is a witness in the case and

that your role as counsel would include a

joint effort with private counsel (Mr.

Vance) in establishing Ms. Mangum's claims

under Title VII.

ule : prohibits lawyers

from knowingly making false statements of

material fact to the court. That Rule also

prohibits you from failing to disclose

material facts to the court when disclosure

is necessary to avoid assisting a criminal

or fraudulent act "by the client." The

Rule also prohibits you from offering

evidence that you know to be false and

requires you to take reasonable remedial

measures if false evidence has been of-

fered. Ethical Rule 3.4 prohibits lawyers

from counseling or assisting witnesses to

77a

testify falsely or to offer an inducement

to a witness that is prohibited by law.

Ethical Rule 1.16 requires a lawyer to

withdraw from the representation of a

client if the representation will result in

violation of the rules of Professional

Conduct or any other law. This Rule per-

mits withdrawal for a variety of reason

including those situations where the client

persists in a course of action that the

lawyer reasonably believes is criminal or

fraudulent.

I cannot and do not opine on whether

or not Ms. Mangum's alleged conduct in

attempting to bribe a witness did in fact

take place. What is important to me is

that you believe those allegations. Given

that belief, I do not think that you can

meet your ethical responsibilities to the

court if your remain in the case.

78a

The related question of “when” with-

drawal as counsel should take place is, in

part, covered by Ethical Rule 1.16. That

Rule states that a lawyer shall continue

representation notwithstanding good cause

for terminating the representation "when

order to do so by a tribunal." The Rule

also provides that when you do terminate

the representation, you must take steps to

the extent reasonably practical to protect

a client's interests. you have to give

reasonable notice to the client, allow time

for employment of other counsel, and sur-

render the papers and property to which the

client is entitled.

Whether or not a lawyer for an organi-

zation such as the EEOC may have a legal

obligation to that organization after

withdrawing is beyond the scope of the

Rules of Professional Conduct. Likewise, I

79a

cannot opine or give you any impression on

this issue.

Please let me know if I can be of any

further assistance to you.

Very truly yours,

JENNINGS, STROUSS & SALMON

/8/

Gary L. Stuart

GLS/dc

80a

APPENDIX E

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Washington, D.C. 20507

March 1l, 1988

MEMORANDUM

To: Charles A. Shanor

General Counsel

From: Richard D. Komer

Legal Counsel

Subject: Ethical Duties of Attorneys Who

Learn of Charging Party Miscon-

duct

You have asked us to address in a general

manner the ethical duties of attorneys who

learn in the course of preparing for liti-

gation that a charging party may have

engaged in criminal or fraudulent behavior

or attempted criminal or fraudulent behav-

ior. As a basis for our analysis, we note

that charging parties, while not actual

clients of Commission attorneys in Commis-

sion litigation, are treated like clients

with respect to confidences, privileges and

8la

other ethical obligations. We address

below the questions of when a Commission

attorney is required to withdraw from a

case and when he or she is required to

inform a tribunal from a case and when he

or she is required to inform a tribunal of

fraudulent or criminal or attempted fraudu-

lent or criminal conduct. We also address

the various responsibilities of supervisory

attorneys and subordinate attorneys under

the ethical supervisory attorneys and

subordinate attorneys under the ethical

standards.

The ABA Model Rules of Professional

Conduct contain two provisions governing

withdrawing from representation of a cli-

ent, one mandatory, and one permissive:

Rule 1.16 Declining or Terminating

Representation

(a) Except as stated in paragraph (c),

a lawyer shall not represent a client

or, where representation has

82a

commenced, shall withdraw from the

representation of a client if:

(1) the representation will re-

sult in violation of the Rules of

Professional Conduct or other law;....

(b) Except as stated in paragraph (c),

a lawyer may withdraw from represent-

ing a client if withdrawal can be

accomplished without material adverse

effect on the interests of the client,

or if:

(1) the client persists in a

course of action involving the

lawyer's services that the lawyer

reasonably believes is criminal

or fraudulent;....

nal, a lawyer shall continue represen-

tation notwithstanding good cause for

terminating the representation.

In sum, lawyers are required to with-

draw from representing a client only if the

representation will result in a violation

of the Rules or of law. Lawyers may with-

draw if the client engages in conduct the

lawyer reasonably believes is criminal or

fraudulent. A Commission attorney's rea-

sonable belief that a charging party may

83a

have engaged in criminal or fraudulent

conduct might allow permissive withdrawal

from a case but would not require mandatory

withdrawal from the case.

The Model Rule governing candor toward

a tribunal states:

Rule 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of

material fact or law to a tribunal;

(2) fail to disclose a material

fact to a tribunal when disclosure is

necessary to avoid assisting a crimi-

nal or fraudulent act by the client;

(4) offer evidence that the law-

yer knows to be false. If a lawyer

has offered material evidence and

comes to know of its falsity, the

lawyer shall take reasonable remedial

measures.

This rule requires that lawyers dis-

close material facts to a tribunal when the

disclosure is necessary to prevent a client

from committing a fraudulent or criminal

84a

act. The rule apparently does not require

disclosure of mere allegations of an at-

tempted criminal or fraudulent act, when

the attempt was not successful.’ The rule

also forbids a lawyer from offering evi-

dence known to be false. Again, it does

‘This rule maybe open to different

interpretation. The Committee of Rules of

Professional Conduct, State Bar of Arizona

issued an opinion in 1980 that addressed a

plaintiff's lawyer's learning of the

defendant's offer of a bribe to a witness.

While the Committee doubted that the mere

offer of a bribe constituted a fraud on the

court, it stated that, "The spirit of the

Disciplinary Rule is nevertheless apparent

and relevant-~that lawyers have a duty to

protect the integrity of the courts and

other adjudicatory bodies against fraudu-

lent practices perpetrated in the course of

proceedings before them by reporting infor-

mation they may receive pertaining to any

such frauds on the part of non-clients to

those tribunals. The opinion was written

under the Model Code of Professional Con-

duct, which provided that under the Model

Code of Professional Conduct, which provid-

ed that "A lawyer who receives information

Clearly establishing that...{a] person

other than his client has perpetrated a

fraud upon a tribunal shall promptly reveal

the fraud to the tribunal." DR 7-

102(B) (2).

85a

not appear to apply to situations where

allegations of wrongdoing arise, without

proof that false evidence or testimony will —

be given.

Two of the model rules address the

responsibilities of supervisory lawyers and

of subordinate lawyers:

Rule 5.1 Responsibilities of a Partner

or Supervisory Lawyer

* * *

(b) A lawyer having direct supervisory

authority over another lawyer shall

make reasonable efforts to ensure that

the other lawyer conforms to the Rules

of Professional Conduct.

another lawyer's violation of the

Rules of Professional Conduct if:

(1) the lawyer orders, or with

knowledge of the specific conduct

ratifies the conduct involved; or

(2) the lawyer...has direct su-

pervisory authority over the other

lawyer and knows of the conduct at a

time when its consequences can be

avoided or mitigated but fails to take

reasonable remedial action.

86a

Rule 5.2 Responsibilities of a Subor-

dinate Lawyer

(a) A lawyer is bound by the Rules of

Professional Conduct notwithstanding

that the lawyer acted at the direction

of another person.

(b) A subordinate lawyer does not

violate the rules of Professional

Conduct if that lawyer acts in accor-

dance with a supervisory lawyer's

reasonable resolution of an arguable

question of professional responsibili-

ty.

The first rule governing supervisory

lawyers addresses a supervisor's responsi-

bility when a subordinate lawyer violates

the Rules of Professional Conduct with the

knowledge of the supervisor, and perhaps at

the supervisor's order. For instance, a

Commission supervisory attorney would be

responsible for a staff attorney's viola-

tion of the Rules if the supervisor orders

the staff attorney to take testimony from a

charging party at trial when the staff

attorney knows the charging party intends

to commit perjury or if the supervisor

87a

knows the staff attorney plans to put that

charging party on the stand.

The second rule indemnifies a subordi-

nate attorney from a violation of the Rules

if the subordinate follows a supervisor's

reasonable resolution of an arguable ethi-

cal question. The ABA's comments on the

rule indicate that when lawyers in a super-

visor-subordinate relationship encounter an

ethical question, the supervisor may assume

responsibility for making the judgment.

When a question is reasonably argu-

able, the supervisor's investigation, if

necessary, consideration and reasonable

resolution of the ethical question may

guide a subordinate attorney with no ethi-

cal consequences should the supervisor's

resolution be subsequently challenged.

Another ethical concern that might

arise if a Commission attorney learns of

criminal or fraudulent or attempted crimi-

88a

nal or fraudulent behavior by a charging

party is whether the attorney might be

called as a witness in the Commission's

case or in a subsequent criminal proceed-

ing. The Model Rules provide as follows:

Rule 3.7 Lawyer As Witness

(a) A lawyer shall not act as advocate

at trial in which the lawyer is likely

to be a necessary witness....

A witness is required to testify on

the basis of personal knowledge. There-

fore, a lawyer could only be likely to be a

necessary witness if he or she has personal

knowledge of a matter that is in issue ina

trial. A Commission attorney's learning of

allegations of wrongdoing on the part of a

charging party does not constitute personal

knowledge, nor does the information neces-

sarily make the lawyer likely to be a

necessary witness. Any ethical concerns a

lawyer might have about being called as a

witness in a subsequent criminal trial are

89a

groundless because the rule applies only to

a lawyer's being called as a witness in the

same trial in which he or she is an advo-

cate.

OLC: KORAM: 3/9/88

SMR: Ethics

OPINION NO. 80 - 28

December 12, 1980

FACTS:

"An attorney representing the plain-

tiff in a civil action for the collection

of a debt reduced to judgment learns that

the defendant has offered to bribe a wit-

ness to testify to certain facts which

might permit the judgment to be attached.

The witness contacts the attorney and

expresses his willingness to cooperate with

the appropriate law enforcement agency."

The inquiring attorney has further

advised, upon our request for a clarifica-

tion of the facts, that:

90a

1. The action is one to reduce to

judgment against the defendant in Arizona a

judgment secured against him in another

state;

2. The defendant's conduct to date

has been limited to the offer to the wit-

ness, no actual bribery having as yet

occurred;

3. The facts to which the defendant

desires the witness to testify are untrue,

such that the witness would commit perjury

were such testimony to be given under oath;

and

4. As yet, the witness has no con-

sented to testify to the untrue facts and

has not testified in any manner in the

litigation.

QUESTIONS:

1. Does the attorney have an ethical

obligation to report the information he has

received concerning the defendant's offer

9la

to bribe the witness to the appropriate law

enforcement agency?

y Does the attorney, instead, have

an ethical obligation to withhold this

information from the appropriate authority

because of the potential benefit his client

may derive in the civil action if the

defendant attempts to challenge the validi-

ty of the foreign judgment?

CODE PROVISIONS INVOLVED:

EC 7-26. The law and Disciplinary

Rules prohibit the use of fraudulent,

false, or perjured testimony or evidence.

A lawyer who knowingly participates in

introduction of such testimony or evidence

is subject to discipline. ***

EC 7-27. Because it interferes with

the proper eiatatétvetion of justice, a

lawyer should not suppress evidence that he

or his client has a legal obligation to

reveal or produce. ***

(A)

(B)

(A)

DR 7-102. sent with-

in the Bounds of the Law.

In his representation of a cli-

ent, a lawyer shall not:

kkk

(3) Conceal or knowingly fail to

disclose that which he is

required by law to reveal.

kkk

A lawyer who receives information

clearly establishing that:

kkhkkhk

(2) A person other than his cli-

ent has perpetrated a fraud

upon a tribunal shall

promptly reveal the fraud to

the tribunal.

DR 7-105. Threatening Criminal Prose-

cution

A lawyer shall not present, par-

ticipate in presenting, or

threaten to present criminal

charges solely to obtain an ad-

vantage in a civil action.

DR 7-109. Contact with Witnesses.

A lawyer shall not suppress any

evidence that he or his client

has a legal obligation to reveal

or produce.

kkk

93a

EC 8-5. Fraudulent, deceptive or

otherwise illegal conduct by a participant

in a proceeding before a tribunal...is

inconsistent with fair administration of

justice, and it should never be participat-

ed in or condoned by lawyers. Unless

constrained by his obligation to preserve

the confidences and secrets of his client,

a lawyer should reveal to appropriate

authorities any knowledge he may have of

such improper conduct.

OPINION:

As to Question 1:

As worded, this question inquires

whether there is an ethical duty imposed on

the lawyer, without delay, to report the

defendant's offer to bribe the witness to

the proper authorities. The Code provi-

sions which appear to be most nearly in

point are DR 7-102(B)(2) and EC 8-5. The

former requires a lawyer "promptly" to

94a

reveal to a tribunal fraud which a person

other than his client "has perpetrated"

upon it, after the lawyer's receipt of

information clearly establishing the perpe-

tration of such fraud. While we have no

doubt that the defendant's completed brib-

ery of the witness resulting in the

witness's committing perjury in giving

testimony would constitute the perpetration

of a fraud upon the court, the facts pre-

sented to us indicate merely that the

defendant "has offered to bribe" the wit-

ness. Since there has been no actual

bribery of the witness, and since the

witness has not yet committed perjury in

any sworn testimony, we doubt whether there

has as yet been the perpetration of a fraud

upon the court and accordingly question

whether the precise language of DR 7-

102(B)(2) (which is worded in the past

tense) has been satisfied. The spirit of

95a

the Disciplinary Rule is nevertheless

apparent and relevant -- that lawyers have

a duty to protect the integrity of the

courts and other adjudicatory bodies

against fraudulent practices perpetrated in

the course of proceedings before them by

reporting information they may receive

pertaining to any such frauds on the party

of non-clients to those tribunals.

The applicability of EC 8-5 to the

facts submitted appears less doubtful. The

defendant's offer to bribe a witness,

without more, can be Characterized as

fraudulent and, perhaps, illegal conduct by

a participant in a proceedings before a

court. (As to possible illegality, see

A.R.S. §§ 13-2902(A) (1) and 13-2804(A) (2).)

There being no client confidences problem

here, the Ethical Consideration (which is,

of course, merely aspirational in character

rather than mandatory) states that the

96a

lawyer "should reveal to appropriate au-

thorities" such knowledge as he has of the

reported improper conduct of the defendant.

Additional Code provisions having

possible (although rather uncertain) rele-

vance to the first question are EC 7-27, DR

7-102(A) (3) and DR 7=-109(A) to the effect

that a lawyer should not conceal, suppress

or knowingly fail to disclose "evidence"

which he or his client has a "legal obliga-

tion" (or is "required by law") to reveal

or produce. It is not clear here that the

information which the inquiring attorney

has received concerning the attempted

bribery of the witness constitutes "evi-

dence", within the meaning of the cited

Code provisions. And, in any event, since

this Committee does not rule on questions

ot law, we express no opinion on the ques-

tion as to whether the inquiring attorney

is “legally" obligated to disclose this

97a

information to the court or other authori-

ties.

We do not regard DR 7-105(A) as con-

flicting with the inquiring attorney's

apparent duty of disclosure under the Code

Provisions discussed above so long, at

least, as he does not use the threat of

criminal proceedings based upon the at-

tempted bribery as a sword in extra-judi-

cial dealing with the defendant looking

toward some advantage to the plaintiff in

the collection of the judgment debt.

Based on our interpretation of the

Code provisions appearing to bear on the

issue, we answer the first question in the

affirmative.

As_ to Question 2:

This question raises the issue as to

whether the lawyer owes a countervailing

and controlling obligation to his client to

withhold disclosure of the incriminating

98a

information he has received from the wit-

ness because of the potential benefit his

client may derive from its use in the

further prosecution of the actions should

the defendant attempt to challenge the

validity of the foreign judgment. (The

ethical duty which we found to exist by our

affirmative answer to the first question is

one owed to the courts and the legal system

generally, rather than to the client.)

Having answered Question 1 in the

affirmative, we have necessarily ruled

that, on the facts presented here, the

attorney's duty to the courts and the legal

system generally controls over his duty to

his client, hence we must answer Question 2

in the negative.

Although neither holding is very

closely in point, we have ruled in two of

our earlier opinions that a lawyer might

not ethically defer until a later stage of

99a

legal proceedings use of information known

to him for the felt purpose of advancing

the interests of his client more strategi-

cally:

ae In Opinion No. 220 (March 15,

1967), an attorney representing a criminal

defendant in federal district court had

waived the filing of indictment and con-

sented to the filing of an information, as

requested by the prosecutor, in the belief

that the case was non-capital. He later

determined that the offense was a capital

one and that it was jurisdictional that the

prosecution be initiated by indictment

rather than information, indicating to us

that he doubted that the prosecutor was

aware of the jurisdictional defect. The

inquiring attorney suggested:

"I would like to not make any

pre-trial motions, sit back, and

allow the Government to try its

case. Should the defendant be

convicted, I will thereafter

100a

raise the questions and secure a

reversal (or new trial). of

course, this thought is entirely

on behalf of my client."

In response to questions submitted which,

as here, raised the issue of whether the

attorney's greater obligation or duty was

owed to the court or to the accused client,

we held that former Canon 22, “Candor and

Fairness", covered the problem and ruled

that:

"To pursue the proposed course

would amount to a deception,

would impose the additional bur-

den on the Court of again trying

the case, would be a needless

waste of time, and would be cal-

culated to mislead the Court into

error. Such course is not part

of the duty and obligation one

owes a client. That obligation

does not require nor countenance

deception. *** It is the opinion

of the Committee that the juris-

dictional defect, of necessity,

should be properly presented to

the Court."

2. In Opinion No. 74-15 (June 4,

1974), the question submitted was:

ie. iii i

10la

"Must an attorney representing a

defendant in a criminal case

raise a matter of jurisdiction at

the omnibus hearing, or can he

wait until his client is placed

in jeopardy and then move to

dismiss the action for lack of

jurisdiction?"

After citing Rule 16.1 of the Rules of

Criminal Procedure and quoting from the

Omnibus Hearing Form, we wrote that:

"In a situation where the attor-

ney knows at or before the time

of the omnibus hearing that there

is a question regarding the ju-

risdiction of the court, he is

under an ethical duty to raise

that issue at the time of the

omnibus hearing. To conceal this

information at the time of the

omnibus hearing would be both a

failure to disclose that which

the attorney is required by law

to reveal and, through his cer-

tification on the omnibus hearing

form, the attorney would be mak-

ing a false statement of fact.

To withhold this information is

Clearly a violation of DR 7-

102(A) (3) and (5), ..."

Although both of these Opinions are

rather obviously distinguishable from the

present case - the element of duty to the

102a

court being considerable stronger in a case

of a jurisdictional defect than in the

situation presented here - they have some

significance as indicating that a lawyer's

duty to the courts and the legal system

generally is at times superior to that

owing to his client to secure a successful

outcome in his case.

103a

APPENDIX F

REQUEST FOR PERSONNEL ACTION

Part I - Requesting office

ae For Additional Information Call

BEC. ose

Betty Combs, 261-4380

H - Approved by etc....

Hermilo R. Gloria, District Director

Part II

hi Name (Last, First, Middle

ANDERSEN, RONALD M.

a SSN

288-38-6389

3 Position Sensitivity (Occ)

4. Date of Birth

11-26-43

S. Veteran Preference

6. Serv Comp Date (Leave)

07-29-79

Za Tenure

8. Retirement

9. FEGLI

104a

10. FLSA

Ll. Sex

12. Citizenship

14. Effective Date

02-10-88

15. Annuitant indicator

16. Work Schedule

18-A. NOAC

sat

18-B. Nature of Action

Resignation

18-c. Auth Code

Reg 715.202

20. FROM: Position Title and Number

Trial Attorney (Civil Rights) F-0566

21. Name and Location of Employing Office

EEOC, OFF OF CHAIRMAN, OFF OF PROG OPR

FLD MGMT PROG (WEST) PHOENIX DIST

OFFICE OF THE DIRECTOR

LEGAL DIVISION

22. Pay Plan & Occupational Code

GS-00905

23. Grade or Level

105a

24 Step or Rate

25. Salary

$46,086

26. Pay Basis

34. Duty Station

Phoenix, Maricopa, Arizona

35. Position Occupied: 1-Competitive 2-

Excepted 3-SES General etc....

36. Appropriation Code (Optional)

9669851900000111

37. Remarks

R19 - Reason for resignation: See

Block IV Part a

M67 - Forwarding address: P.O. Box

2238, Phoenix, AZ 85002

N27 - Lump-sum payment to be made

for any unused annual leave.

B47 - Health benefits coverage is

extended for 31 days during

which you are eligible to

convert to an individual

policy (nongroup contract) .

SF-8 issued to employee.

SF-2815 completed and provided to

employee.

38. Approval

(signature - T. Florez) 2-11-88

39. FPMIS Data

A. Supv or etc....

Part

106a

VEV Ind

PRD

Barg Unit Status

0020

Functional Class

Educational Level

Year Degree Attained

Academic

1401

Agency Code

EEOC

Location Code

040370013

SON

3201

9878

III - Clearances

Initials/Signature Date

(Initials - TF) 2/11/88

IV - Employee Resignation/Retirement

ara

Reason for Resignation/Retirement

I was constructively and wrongfully

discharged by my superiors Richard L,.

Green, Supervisory Trial Attorney and

Richard R. Trujillo, Regional

Attorney, who ordered me to do that

which the Rules of Professional

Conduct prohibit. The full

circumstances of these facts will be

conveyed by separate cover to the

office of General Counsel of the EEOC

and to the Chairman of the EEoc.

Effective Date of Resignation

2/9/88

Employee's Signature

(signature Ronald M. Andersen)

Date Signed

2/11/88

Forwarding Address etc....

4202 N. 163 rd Avenue

Phoenix, Arizona 85033

108a

APPENDIX G

5 U.S.C. §701

(a) This chapter [5 U.S.C. §§701 et seq. ]

applies, according to the provisions

thereof, except to the extent that --

(1) statutes preclude judicial

review; or

(2) agency action is committed to

agency discretion by law.

(b) For the purpose of this chapter [5

U.S.C. §§701 et seq.] --

(1) “agency" means each authority of

the Government of the United States,

whether or not it is within or subject

to review by another agency, but does

not include --

(A) the Congress;

(B) the courts of the United

States;

(Cc) the governments of the

territories or possessions of the

United States;

(D) the government of the

District of Columbia;

(E) agencies composed of

representatives of the parties or

of representatives of

organizations of the parties to

the disputes determined by them;

(F) courts martial and military

commissions;

(G) military authority exercised

in the field in time of war or in

occupied territory; or

(H) functions conferred by

sections 1738, 1739, 1743, and

1744 of title 12; chapter 2 of

(2)

109a

title 41 (41 U.S.C. §§101 et

seq.]; or sections 1622, 1884,

1891-1902, and former. section

1641(b) (2), of title 50,

appendix, and

"person," "rule," "order,"

"license," "sanction," "relief," and

“agency action" have the meanings

given them by section 551 of this

title.

110a

APPENDIX H

5 U.S.C. §702

A person suffering legal wrong because of

agency action, or adversely affected or

aggrieved by agency action within the

meaning of a relevant statute, is entitled

to judicial review thereof. An action ina

court of the United States seeking relief

other than money damages and stating a

claim that an agency or an officer or

employee thereof acted or failed to act in

an official capacity or under color of

legal authority shall not be dismissed nor

relief therein be denied on the ground that

it is against the United States or that the

United States is an indispensable party.

The United States may be named as a

defendant in any such action, and a

judgment or decree may be entered against

the United States: Provided, That any

mandatory or injunctive decree shall

specify the Federal officer or officers (by

name or by title), and their successors in

office, personally responsible for

compliance. Nothing herein (1) affects

other limitations on judicial review or the

power or duty of the court to dismiss any

action or deny relief on any other

appropriate legal or equitable ground; or

(2) confers authority to grant relief if

any other statute that grants consent to

suit expressly or impliedly forbids the

relief which is sought.

lila

APPENDIX I

5 U.S.C. §704

Agency action made reviewable by statute

and final agency action for which there is

no other adequate remedy in a court are

subject to judicial review. A preliminary,

procedural, or intermediate agency action

or ruling not directly reviewable is

subject to review on the review of the

final agency action. Except as otherwise

expressly required by statute, agency

action otherwise final is final for the

purposes of this section whether or not

there has been presented or determined an

application for a declaratory order, for

any form of reconsideration, or, unless the

agency otherwise requires by rule and

provides that the action meanwhile is

inoperative, for an appeal to superior

agency authority.

112a

APPENDIX J

5 U.8.C. §705

To the extent necessary to decision and

when presented, the reviewing court shall

decide all relevant questions of law,

interpret constitutional and statutory

provisions, and determine the meaning or

applicability of the terms of an agency

action. The reviewing court shall --

(1) compel agency action unlawfully

withheld or unreasonably delayed and

(2) hold unlawful and set aside

agency action, findings, and

conclusions found to be --

(A) arbitrary, capricious, an

abuse of discretion, or otherwise

not in accordance with law;

(B) contrary to constitutional

right, power, privilege, or

immunity;

jurisdiction, authority, or

limitations, or short of

statutory right;

(D) without observance of

procedure required by law;

(E) unsupported by substantial

evidence in a case subject to

sections 556 and 557 of this

title or otherwise reviewed on

the record of an agency hearing

provided by statute; or

(F) unwarranted by the facts to

the extent that the facts are

subject to trial de novo by the

113a

review court.

In making the foregoing determinations, the

court shall review the whole record or

those parts of it cited by a party, and due

account shall be taken of the rule of

prejudicial error.

114a

APPENDIX K

5 U.8.C. §1206

(a) (1) The Special Counsel shall receive

any allegation of a prohibited personnel

practice and shall investigate the

allegation to the extent necessary to

determine whether there are reasonable

grounds to believe that ae prohibited

personnel practice has occurred, exists, or

is to be taken.

(2) If the Special Counsel terminates any

investigation under paragraph (1) of this

subsection, the Special Counsel shall

prepare and transmit to any person on whose

allegation the investigation was initiated

a written statement notifying the person of

the termination of the investigation and

the reasons therefor.

ee ee

115a

APPENDIX L

5 U.8.C. §2301

(a) This section shall apply to --

(1) an Executive agency;

(b) Federal personnel management should be

implemented consistent with the following

merit system principles:

(4) All employees should maintain

high standards of integrity, conduct,

and concern for the public interest.

(8) Employees should be --

(A) protected against arbitrary

action, personal favoritism, or

coercion for partisan political

purposes, and

(9) Employees should be protected

against reprisal for the lawful

disclosure of information which the

employees reasonably believe evidences

(A) a violation of any law,

rule, or regulation, or

116a

APPENDIX M

5 U.8.C. §2302

(a) (1) For the purpose of this title [5

U.S.C. §§1 et seq.j], “prohibited

personnel practice" means any action

described in subsection (b) of this

section.

(2) For the purpose of this section -

(A) “personnel action" means --

(iii) an action under

chapter 75 of this title [5

U.S.C. §§7501 et seq.] or

other disciplinary or

corrective action;

(B) “covered position" means any

position in the competitive

service, a career appointee

position in the Senior Executive

Service, or a position in the

excepted service, but does not

include--

(b) Any employee who has authority to

take, direct others to take, recommend, or

approve any personnel action, shall not,

with respect to such authority--

(11) take or fail to take any other

personnel action if the taking of or

failure to take such action violates

any law, rule, or regulation

implementing, or directly concerning,

the merit system principles contained

in section 2301 of this title [5

U.S.C. §2301].

Se eT ne

117a

APPENDIX N

5 U.8.C. § 7511

(a) For the purpose of this subchapter [5

USC §§ 7511 et seq. ]--

(1) “employee” means--

(A) an individual in the

competitive service who is not

serving a probationary or trial

period under an initial

appointment or who has completed

1 year of current continuous

employment under other than a

temporary appointment limited to

1 year or less; and

(B) a preference eligible in an

Executive agency in the excepted

service, and a preference

eligible in the United States

Postal Service or the Postal Rate

Commission, who has completed 1

year of current continuous

service in the same or Similar

positions;

118a

APPENDIX O

5 U.8.C § 7512

This subchapter [5 USC §§ 7511 et

seq.] applies to--

(a) a removal;

(2) a suspension for more than 14

(3) a reduction in grade;

(4) a reduction in pay; and

(5) a furlough of 30 days or less;

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.