# Appendix — Andersen v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1209%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1097

## Text

la
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-

2a
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.

3a
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

4a

dismissal.
I.

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.

5a
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

6a
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

7a
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.

8a
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.

9a
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.

A.

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.

B.

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,

a
_——_- <=

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-

5

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).

SS

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
Ve
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

ee

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-

ll

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
1

Serv. Comp. Date (Leave)
07-29-79

Tenure
1

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

FEGLI
B

FLSA: E-Exempt N-Nonexempt

Sex
M

Citizenship: 1-US 2-Other
1

Effective Date
07-29-82

i
i
i
|

70a

15. Annuitant indicator: 1-Reempt Ann-CS
2-RETO 3-RETM .. . 9=-Not Applicable
9
16. Work Schedule: F-Full-time etc....
F
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
13
31. Step or Rate
04
32. Salary

$36,946

33.

34.

35.

71a

Pay Basis
pa

Duty Station
Phoenix, Maricopa, Arizona

Position Occupied: 1-Competitive 2-

Excepted etc....

2
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
0
E. Functional Class
00
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/

By
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;....

(c) When ordered to do so by a tribu-

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.

(c) A lawyer shall be responsible for
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)

(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)
NS

4. Date of Birth
11-26-43

S. Veteran Preference
1

6. Serv Comp Date (Leave)
07-29-79

Za Tenure
1

8. Retirement
1

9. FEGLI

B

104a

10. FLSA
E
Ll. Sex
M
12. Citizenship
1
14. Effective Date
02-10-88
15. Annuitant indicator
9
16. Work Schedule
F
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
13

105a
24 Step or Rate
06
25. Salary
$46,086
26. Pay Basis
pa

34. Duty Station
Phoenix, Maricopa, Arizona

35. Position Occupied: 1-Competitive 2-
Excepted 3-SES General etc....

2
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....
8

Part

106a

VEV Ind
N

PRD
0

Barg Unit Status
0020

Functional Class
00

Educational Level
15

Year Degree Attained
71

Academic
1401

Agency Code
EEOC

Location Code
040370013

SON
3201

we
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;

(C) in excess of statutory
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;

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1209%3A2. Public record. Not legal advice.