Filed: Oct. 21, 2005
Latest Update: Feb. 21, 2020
Summary: filed suit in federal district court in Puerto Rico. See Andrade v. Lauer, 729 F.2d 1475, 1484 (D.C. Cir.United States Env.4, Several courts, which may permit an employee in Irizarry's, position to sue in federal court, require administrative, exhaustion. Agency, 87 F.3d, 1429, 1433-34 (D.C. Cir.
United States Court of Appeals
For the First Circuit
No. 05-1205
IVAN E. IRIZARRY,
Plaintiff, Appellant,
v.
UNITED STATES; U.S. SMALL BUSINESS ADMINISTRATION;
HECTOR V. BARRETO, Administrator, U.S. Small Business
Administration; MONIKA EDWARDS HARRISON, Chief Human Capital
Officer, U.S. Small Business Administration; MARY ANNE GLADDEN,
Deputy Chief Human Capital Officer, U.S. Small Business
Administration; JOHN D. WHITMORE, Counselor to the Administrator,
U.S. Small Business Administration; MICHAEL J. PAPPAS,
Regional Administrator, Region II and Associate Administrator for
Field Operations, U.S. Small Business Administration;
JOHN DOES 1-5; JANE DOES 1-5
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lipez, Howard, Circuit Judges,
and Restani,* Judge.
Celina Romany, with whom Rafael M. Arrillaga Romany and
Celina Romany Law Offices, were on brief, for appellant.
*
Chief Judge of the United States Court of International
Trade, sitting by designation.
Gary Fox, Assistant General Counsel, United States Small
Business Administration, with whom H.S. García, United States
Attorney, Miguel A. Fernández, Assistant United States Attorney
and Isabel Munoz-Acosta, Assistant United States Attorney, were
on brief, for appellee.
October 21, 2005
HOWARD, Circuit Judge. Ivan E. Irizarry, an employee of
the United States Small Business Administration (SBA), sued his
employer and several SBA employees (collectively, the government)
to challenge his transfer from Puerto Rico to Illinois as being
unconstitutionally motivated by his political affiliation with the
Democratic Party. The district dismissed the complaint and
Irizarry appeals. We affirm.
We review the dismissal order de novo. See Roth v.
United States, 952 F.2d 611, 613 (1st Cir. 1991). In so doing, we
accept the well-pleaded facts as true and draw all inferences in
favor of Irizarry. See In re Colonial Mortg. Bankers Corp.,
324
F.3d 12, 15 (1st Cir. 2003). We will affirm the dismissal of the
complaint only if the well-pleaded facts fail to establish the
government's liability under some actionable legal theory. See
Rodi v. S. New England Sch. of Law,
389 F.3d 5, 13 (1st Cir. 2004).
Prior to the 2000 presidential election, Irizarry worked
as the Director of the SBA for Puerto Rico and the United States
Virgin Islands. In this position, Irizarry was covered by the
Civil Service Reform Act of 1978 (CRSA), Pub. L. 95-454 (codified
in various provisions of Title 5 of the United States Code).
After the 2000 election, prominent members of the
Republican Party in Puerto Rico began to pressure senior officials
in the new administration to install Republicans as the heads of
the local offices of federal agencies. As a result of this
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pressure, the SBA reassigned Irizarry to the post of Deputy
District Director for the District of Illinois. This transfer did
not change Irizarry's grade or pay.
Believing that the transfer violated his constitutional
rights to free speech, free association, and due process, Irizarry
filed suit in federal district court in Puerto Rico. He sought
review of the action under the Administrative Procedures Act, 5
U.S.C. §§ 701-706, damages, see Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971), and equitable relief in the
form of reinstatement to his prior position. Before filing suit,
Irizarry did not file an administrative complaint before the Office
of Special Counsel (OSC) of the Merit System Protection Board
(MSPB).
The government moved to dismiss the complaint on
alternate grounds: (1) Irizarry failed to file the administrative
complaint that Congress intended as the exclusive means by which
unconstitutionally transferred civil servants can obtain relief;
(2) even if filing an administrative complaint is not the only way
to obtain relief, it is a prerequisite to suing in federal court.
The district court accepted the government's first argument, ruling
that the CSRA precluded Irizarry from initiating a court action
because he was limited to the remedies provided by the CSRA. We
do not reach this issue because we agree with the government's
alternate argument: that Irizarry was required, but failed, to
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exhaust his administrative remedies. See, e.g., Crellin
Technologies v. Equipmentlease Corp., 18 F.3d 1, 13 (1st Cir. 1994)
(appeals court may affirm the dismissal of a complaint on any
independently sufficient ground).
Congress passed the CSRA to "replace the haphazard
arrangements for administrative and judicial review of personnel
action" for civil service employees "with an integrated scheme of
administrative and judicial review, designed to balance the
legitimate interests of various categories of federal employees
with the needs of sound and efficient administration." United
States v. Fausto, 484 U.S. 439, 444-45 (1988). The CSRA provides
remedies for prohibited personnel actions by federal agencies, 5
U.S.C. § 2302(a)(1), which include employment actions that
contravene an employee's constitutional rights, see
id. §
2301(b)(2). Under the facts alleged by Irizarry, his transfer
could qualify. See Rutan v. Republican Party of Ill.,
497 U.S. 62,
73-74 (1990) (holding that a transfer of a public employee on
account of political affiliation can violate the First Amendment).
The CSRA provides different remedial schemes depending on
the severity of the personnel action at issue. For the most
drastic actions, such as discharge, an employee is entitled to
appeal the agency's decision directly to the MSPB. 5 U.S.C. §
7513(d). If the employee does not prevail before the MSPB, she may
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seek judicial review in the United States Court of Appeals for the
Federal Circuit. Id. § 7703.
An employee may not challenge a transfer by means of a
direct appeal to the MSPB. Instead, she must file an
administrative complaint with the OSC. See 5 U.S.C. §§ 1212(a)(2),
1214(a)(1)(A), 2302(a)(2)(A)(iv). The OSC must "investigate . . .
to the extent necessary to determine whether there are reasonable
grounds to believe that a prohibited personnel action has occurred,
exists, or is to be taken." Id. § 1214(a)(1)(A). If the OSC
determines that such grounds exist, it may request that the agency
rescind the action and, if the agency declines, petition the MSPB
to take appropriate remedial steps. See
id. §§ 1214(b)(2)(B),(C).
The OSC is generally required to act on an administrative complaint
within 240 days. See
id. § 1214(b)(2)(A). If the OSC terminates
the investigation because it does not find reasonable grounds to
conclude that a prohibited personnel action has or will occur, the
OSC must tell the complaining employee the reason for its action.
See
id. § 1214(a)(2)(A).
The CSRA does not provide for review by the MSPB or an
Article III court of an OSC decision to terminate an investigation
into an employee's complaint.1 The government argues that this
2
The CSRA contains an exception, not applicable here, which
allows an employee to appeal to the MSPB (and eventually to the
Federal Circuit) from the OSC's decision to terminate an
investigation into a whistleblower claim. See 5 U.S.C. §§
1214(a)(3), 2302(b)(8).
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congressional silence indicates that the OSC procedure is the
exclusive avenue to relief. Irizarry counters that, because the
OSC's decision to intervene is discretionary, the CSRA does not
provide an adequate remedy to vindicate constitutional rights.
Therefore, Irizarry contends he may sue in federal court to
vindicate his constitutional claim. We assume arguendo that some
form of Article III review is available to Irizarry, even though it
is not expressly provided for by the CSRA. Cf. Dugan v. Ramsay,
727 F.2d 192, 194-95 (1st Cir. 1984) (federal civil servant
applicant held entitled to obtain review of a personnel decision in
federal court because, under the CSRA, the claim could not find its
way to the MSPB).2 Nevertheless, as we will explain, Irizarry's
2
Because we affirm on other grounds, we do not address the
government's contention that Dugan is so out-of-step with recent
Supreme Court precedent that it is no longer good law. We do note,
however, that Dugan was decided several years before the Court
recognized the preclusive effect of the CSRA in Fausto, 484 U.S. at
455. We note also that several (although not all) of our sister
circuits have concluded that the CSRA precludes federal lawsuits
filed after the OSC has declined to act on an employee's claim.
Compare Saul v. United States,
928 F.2d 829, 835-843 (9th Cir.
1991) (barring action); Lombardi v. Small Business Admin.,
889 F.2d
959, 961(10th Cir. 1989)(same); Pinar v. Dole,
747 F.2d 899, 910-
911 (4th Cir. 1984) (same) with Mitchum v. Hurt,
73 F.3d 30, 35 (3d
Cir. 1995) (allowing federal court action by federal employee to
obtain injunctive relief); Spagnola v. Mathis,
859 F.2d 223, 229
(D.C. Cir. 1988) (en banc) (per curiam) (same).
While we do not decide whether Dugan remains good law, we do
reject the government's assertion that we effectively overruled
Dugan in Berrios v. Dep't of the Army, 884 F.2d 28 (1st Cir. 1989).
In Berrios, we held that the plaintiff could not sue over his
discharge because the CSRA provided his exclusive remedy and did
not include a direct action in federal district court.
Id. at 31.
Berrios is distinguishable because, unlike here, the CSRA provided
that the plaintiff could obtain review of his discharge at the
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complaint was properly dismissed because he did not exhaust his
remedies by first filing a complaint with the OSC.3
Requiring exhaustion of administrative remedies serves
important purposes. See McCarthy v. Madigan, 503 U.S. 140, 144
(1992). It protects administrative agency authority and promotes
judicial efficiency. See id.; see also Portela-Gonzalez v. Sec'y
of the Navy,
109 F.3d 74, 77 (1st Cir. 1997). It also prevents
litigants from bypassing Congress' carefully crafted remedial
scheme. See Andrade v. Lauer,
729 F.2d 1475, 1484 (D.C. Cir.
1984).
These policy goals, and the lack of countervailing
interests, favor requiring a federal employee to file a claim with
the OSC before repairing to federal court. "The CSRA established
a comprehensive system for reviewing personnel actions taken
against federal employees." Fausto, 484 U.S. at 455. Permitting
an employee to bypass the OSC entirely would permit the employee to
avoid the remedial scheme that Congress enacted, even though
Federal Circuit. See
id.
3
We reject Irizarry's contention that we took a contrary
position in
Dugan, 727 F.2d at 194. In Dugan, the plaintiff filed
suit in federal district court without first filing a claim with
the OSC.
Id. The district court, sua sponte, dismissed the
complaint on the ground that the plaintiff had failed to exhaust
administrative remedies.
Id. We reversed. Id. In so doing, we
relied on the government's concession that the plaintiff did not
have to file a claim with the OSC as a prerequisite to filing a
suit in federal court.
Id. In light of this concession, we
concluded that the government had waived its entitlement to raise
the administrative exhaustion bar.
Id. Not so here.
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nothing in the CSRA suggests that Congress intended resort to the
OCS to be optional. Cf. Velazquez-Rivera v. Danzig, 234 F.3d 790,
794 (1st Cir. 2000) (ruling that plaintiff forfeited any federal
court review of his termination by not following the procedures set
forth in the CSRA). By contrast, requiring exhaustion permits the
federal agency to correct the violation or to explain its decision.
This promotes agency authority and accountability. See Martin v.
United States Env. Protection Agency,
271 F. Supp. 2d 38, 45
(D.D.C. 2000). Moreover, the OSC remedy provides a method for
resolving many employment disputes without turning them into
federal cases. This reduces the caseload of the federal courts and
relieves the courts from serving as "super personnel boards."
DiPrio v. Taft,
584 F.2d 1, 3 (1st Cir. 1978).4
Irizarry argues that he should have been excused from
complaining to the OSC because the OSC has discretion whether to
act on his administrative complaint and need not address the
merits. The D.C. Circuit rejected this same argument:
4
Several courts, which may permit an employee in Irizarry's
position to sue in federal court, require administrative
exhaustion. See Weaver v. United States Info. Agency, 87 F.3d
1429, 1433-34 (D.C. Cir. 1996) (dismissing the plaintiff's claim
that an oral admonishment violated his right to free speech because
the plaintiff did not first file the claim with the OSC); see also
Martin, 271 F. Supp. 2d at 45 (dismissing suit for failure to
exhaust OSC remedy); United States v. Perdeaux,
33 F. Supp. 2d 187,
190 (E.D.N.Y. 1999) (similar). But see
Mitchum, 73 F.3d at 35
(permitting federal employee to pursue claim for injunctive relief
without exhausting administrative remedies).
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Although the OSC discretion adds an
element of uncertainty that is distinct
from the ordinary vicissitudes of agency
proceedings, Congress evidently thought
it adequate in view of the relatively
minor character of the wrongs whose
redress is left to OSC discretion,
perhaps fearing that a universal right of
appeal to the MSPB would cause trivial
claims to delay and crowd out more
serious ones.
Weaver v. United States Info. Agency, 87 F.3d 1429, 1433-34 (D.C.
Cir. 1996). This reasoning comports with the Supreme Court's and
this court's decisions mandating that federal employees comply
with the CSRA's remedial procedures. See
Fausto, 484 U.S. at 455;
Velazquez-Rivera, 234 F.3d at 794;
Berrios, 884 F.2d at 884.
A discriminatory transfer of the sort Irizarry allegedly
suffered is not a trivial slight. But we think it clear that
Congress intended that complaints about such transfers be directed
to the OSC. If federal court review is available to Irizarry at
all, it is only available following the exhaustion of
administrative remedies.
Affirmed.
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