Title Graham v. Ashcroft
Argued January 13, 2004 Decided February 24, 2004
Subject Employment Law; Federal Agencies
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2004 Decided February 24, 2004
No. 03-5025
GILBERT M. GRAHAM,
APPELLANT
v.
JOHN D. ASHCROFT, IN HIS OFFICIAL CAPACITY AS
U.S. ATTORNEY GENERAL, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01231)
Gilbert M. Graham, appearing pro se, argued the cause
and filed the briefs for appellant.
Sherri Evans Harris, Assistant U.S. Attorney, argued the
cause for appellees. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS and ROBERTS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Appellant Gilbert Graham, at the
time a Special Agent with the Federal Bureau of Investiga-
tion, alleges that the Bureau violated its own regulations in
the course of censuring him for alleged irregularities in a
surveillance operation. We hold that the Civil Service Re-
form Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111
(codified as amended in scattered sections of 5 U.S.C.), pre-
cludes judicial review of Graham's claim, and accordingly
affirm the district court's dismissal of his action.
I. Background
Graham was a Special Agent in the FBI's Washington
Field Office who had responsibility for managing a surveil-
lance operation. In April 1999, another Special Agent report-
ed a potential Intelligence Oversight Board (IOB) violation
involving Graham and others to the Inspection Management
Unit. The IOB, a standing committee of the President's
Foreign Intelligence Advisory Board, investigates and reports
on intelligence activities that may be unlawful or contrary to
executive order. Exec. Order No. 12,863, 58 Fed. Reg.
48,441, 48,442 (Sept. 13, 1993). The report of a possible IOB
violation triggered an inquiry by the FBI's Office of Profes-
sional Responsibility (OPR) to determine whether Graham
was guilty of investigative dereliction. In the course of that
inquiry, Graham was notified of the allegation against him
and afforded an opportunity to submit a sworn statement.
OPR eventually concluded that Graham had violated IOB
requirements, and suspended him without pay for three days.
Graham appealed to the Inspection Division, which noted that
Graham was ``a 24-year veteran of the Bureau with a good
service record and no prior disciplinary sanctions'' who imme-
diately notified his superiors of the IOB violation, allowing
corrective action to be taken to rectify the situation and avoid
any detrimental effects. Letter from Thomas Locke, Inspec-
tion Division, to Graham (May 22, 2002) at 2. The Inspection
3
Division reduced Graham's suspension to a letter of censure,
with no loss of pay or benefits.
Graham, however, remained unsatisfied. He sued the At-
torney General and the Director of the FBI in their official
capacities (collectively the FBI), challenging the FBI's actions
during the investigation of the IOB violation and the ensuing
disciplinary process. He alleged that the FBI violated the
Administrative Procedure Act, failed to abide by its own
internal procedures and regulations, denied him procedural
due process, and violated his equal protection rights by
discriminating against him on grounds of race.
The FBI moved to dismiss the claims for lack of subject
matter jurisdiction and for failure to state a claim. In his
memorandum opposing the motion, Graham asserted, inter
alia, that the FBI ``must adhere to voluntarily adopted,
binding polic i es that limit its discretion,'' citing Vitarelli v.
Seaton, 359 U.S. 535, 539 (1959). Pl. Mem. Opp. Mot. Dis-
miss at 5. In Vitarelli, the Supreme Court held that even
agencies with broad discretion must adhere to internally
promulgated regulations limiting the exercise of that discre-
tion. 359 U.S. at 53940; see Padula v. Webster, 822 F.2d 97,
100 (D.C. Cir. 1987) (``It is well settled that an agency, even
one that enjoys broad discretion, must adhere to voluntarily
adopted, binding policies that limit its discretion.''). Gra-
ham's contention was that the FBI had violated its own
internal regulations and procedures governing how to handle
alleged IOB transgressions and any resulting disciplinary
process. Although Graham was afforded notice and an op-
portunity to submit a statement prior to being disciplined, he
contends that the FBI's internal rules promised him earlier
notice and an opportunity to respond, and that, had he been
given the procedural protections allegedly required, he would
have been able to forestall even the letter of censure.
The district court disposed of the entire action. That court
found that it lacked subject matter jurisdiction over Graham's
APA claims, because the CSRA precludes review under the
APA of employment-related decisions. Next, the district
court dismissed the due process claims, holding that Graham
4
failed to demonstrate the deprivation of a constitutionally
protected interest, and that he received in any event all the
process due under the Fifth Amendment. The court also
dismissed Graham's equal protection claim, explaining that
Title VII is the exclusive remedy for a federal employee
claiming racial discrimination.
Graham appealed to this court. We summarily affirmed
the district court's dismissal of his constitutional and APA
claims. Graham v. Ashcroft, No. 03-5025, slip op. at 1, 2003
WL 21939757, at *1 (D.C. Cir. Aug. 5, 2003). This court
declined, however, to summarily affirm the dismissal of what
was identified as Graham's separate Vitarelli claim -- the
contention that, quite apart from the Constitution or the
APA, the Bureau was required to follow its own internal
regulations voluntarily adopted to circumscribe its discretion,
but had failed to do so. Id. Only that claim is now at issue.
II. Analysis
The FBI contends that the CSRA ``provides the exclusive
remedy for a federal employee to challenge an agency's
disciplinary decision'' -- thereby precluding any judicial re-
view of alleged procedural violations under Vitarelli. Appel-
lees' Br. at 9. The CSRA provides a comprehensive scheme
to administer adverse personnel actions against federal em-
ployees. See Lindahl v. OPM, 470 U.S. 768, 77374 (1985).
``It prescribes in great detail the protections and remedies
applicable to such action s , including the availability of judi-
cial review.'' United States v. Fausto, 484 U.S. 439, 443
(1988). Chapter 75 of the CSRA governs adverse personnel
actions based on misconduct: Subchapter I, 5 U.S.C.
§§ 75017504, governs minor adverse personnel actions and
Subchapter II, 5 U.S.C. §§ 75117514, governs major adverse
personnel actions. Subchapter I defines a minor personnel
action as suspension for 14 days or less, § 7502, and applies
only to employees in the ``competitive service,'' § 7501. Al-
though Section 7503 provides some procedural protections in
such cases, there is no right to judicial review for covered
employees under Subchapter I.
5
Subchapter II governs major adverse personnel actions,
defined as removal, suspension for more than 14 days, reduc-
tion in grade or pay, or furlough for 30 days or less. § 7512.
Employees covered by Subchapter II are entitled to adminis-
trative review by the Merit Systems Protection Board
(MSPB), and subsequent judicial review in the Court of
Appeals for the Federal Circuit. §§ 7513(d), 7701, 7703.
Although FBI employees are generally excluded from CSRA
provisions, see §§ 2302(a)(2)(C)(ii), 7511(b)(8), Subchapter II
does apply to ``preference eligible'' FBI employees.
§ 7511(a)(1)(B). Such ``preference eligible'' employees are
entitled to specified protections under the CSRA because of
prior military service. See § 2108(3).
The foregoing statutory scheme does not provide Graham a
right to judicial review in the present circumstances. Al-
though Graham may claim the protections of Subchapter II
because of his status as a ``preference eligible'' employee,1 the
adverse personnel action in this case -- a letter of censure --
fails to qualify as a major adverse personnel action under
Section 7512. (Indeed, it does not even qualify as a minor
adverse personnel action under Subchapter I.) Graham ac-
cordingly is not entitled to administrative and judicial review
of this action under the CSRA. See §§ 7512, 7513(d),
7703(a)(1).
The consequences of the lack of availability of relief under
the CSRA for government employees seeking to challenge
employment actions through other avenues were spelled out
by the Supreme Court in Fausto. In that case, a government
employee -- whose status gave him no right to administrative
or judicial review under the CSRA -- sought judicial review
of his removal from government service under the Back Pay
Act, contending that his dismissal had violated regulations
1 Although Graham failed to allege that he is ``preference
eligible'' in his complaint, he did claim that status in his memoran-
dum opposing the FBI's motion to dismiss. The FBI did not
dispute that Graham was ``preference eligible'' for purposes of the
motion to dismiss. Def. Reply to Pl. Opp. Mot. Dismiss at 3 n.3.
6
issued by his employing agency. See 484 U.S. at 44143 &
n.2. The Supreme Court held that the comprehensive frame-
work of the CSRA precluded judicial review under the Back
Pay Act:
The CSRA established a comprehensive system for
reviewing personnel action taken against federal employ-
ees. Its deliberate exclusion of employees in respon-
dent's service category from the provisions establishing
administrative and judicial review for personnel action of
the sort at issue here prevents respondent from seeking
review TTT under the Back Pay Act.
Id. at 455.
The Court explained that allowing direct judicial review of
employment claims for employees with no rights under the
CSRA would provide them a more substantial right to review
than was available to personnel granted a right to judicial
review under the CSRA; such personnel had to first seek
administrative review by the MSPB before gaining judicial
review in the Federal Circuit. See id. at 44850. Direct
judicial review would also undermine ``the development,
through the MSPB, of a unitary and consistent Executive
Branch position on matters involving personnel action,'' and
would frustrate congressional intent in the CSRA to ``avoid
an unnecessary layer of judicial review in lower federal
courts.'' Id. at 449 (internal quotation marks omitted).
Fausto is not directly on point. It involved a ``type of
personnel action covered by the CSRA ,'' id. at 448 --
removal -- as to which some employees were given judicial
review rights and some (like Fausto) were not. The Court
reasoned that in not granting review to some employees
under the CSRA for actions covered by the CSRA, Congress
meant to preclude those employees from securing review
under other avenues. The present case involves an employee
granted certain judicial review rights under the CSRA, but
whose rights do not extend to the personnel action at issue --
a letter of censure. The question is whether in granting
review with respect to some personnel actions under the
CSRA, Congress meant to preclude review of others.
7
The logic of Fausto, if not its holding, provides the answer.
The Court rejected Fausto's claim because granting it would
have given him greater rights than were available under the
CSRA to employees who enjoyed rights under that statute --
primarily those in the competitive service. Id. at 44950. As
the Court expressly noted, this reasoning ``assumes, of course,
that competitive service employees, who are given review
rights by Chapter 75, cannot expand those rights by resort to
pre-CSRA remedies. TTT Even respondent has not ques-
tioned this assumption.'' Id. at 450 n.3.
The Court's explicit assumption in Fausto that employees
with judicial review rights under the CSRA may not obtain
judicial review of personnel actions outside the bounds of the
CSRA covered precisely the situation at issue here -- a
personnel action as to which the CSRA grants no right of
review, even for employees who are otherwise granted such
rights under the CSRA in other circumstances. The hypo-
thetical in the text of Fausto to which the quoted footnote 3
was appended concerned an employee like Fausto obtaining
judicial review for a 10day suspension, while a competitive
service employee favored with rights under the CSRA would
not, because judicial review under the CSRA is available only
for suspensions of more than 14 days. Id. at 44950. The
Court's assumption that the CSRA-favored employee would
have no right to review of a suspension below the CSRA
minimum -- necessary to its analysis -- strongly indicates
that the CSRA-favored Graham has no right to review of a
letter of censure, similarly below the CSRA minima for both
major and minor adverse personnel actions.
In addition, Justice Scalia in footnote 3 of Fausto cited his
opinion for our court in Carducci v. Regan, 714 F.2d 171, 173
75 (D.C. Cir. 1983). That case held that judicial review was
not available under the APA with respect to employment
claims as to which the CSRA provided no relief to anyone,
because the alleged adverse actions were too minor. Allow-
ing judicial review in such a case, our court explained, pre-
sented ``an even more aggravated form of the problem'' posed
by allowing employees with claims for which the CSRA
provided some relief (but not judicial review) to obtain direct
8
judicial review, when such direct review was not even avail-
able under the CSRA for the most serious claims. Id. at 174.
The Fausto Court's citation of Carducci strongly suggests
that Graham's situation -- involving an adverse personnel
action as to which not even CSRA-favored employees have
any rights of review -- presents an even stronger case for
CSRA preclusion than Fausto.
In light of the foregoing, it is clear that judicial review of
Graham's personnel claims under Vitarelli is precluded by
the CSRA. Granting Graham a right of direct judicial review
for a letter of censure would give him greater rights than the
CSRA affords for major adverse actions, for what does not
even rise to the level of a minor adverse action under the
CSRA. Graham tries to distinguish Fausto by noting that
he, unlike Fausto, is a preference eligible employee under the
CSRA, see Pl. Mem. Opp. Mot. Dismiss at 8, but that only
gives Graham rights with respect to major adverse actions
(and even there, lesser rights than Graham claims). For the
sort of action at issue here, Graham is in the same boat as
Fausto -- the CSRA provides no relief and precludes other
avenues of relief. Fausto and Carducci together establish
that the fact that the CSRA provides no relief for lesser
personnel actions cannot be dismissed as an ``uninformative
consequence of the limited scope of the statute.'' Fausto, 484
U.S. at 448. As we explained in Spagnola v. Mathis, 859
F.2d 223, 227 (D.C. Cir. 1988) (en banc), ``it is the comprehen-
siveness of the statutory scheme involved, not the `adequacy'
of specific remedies thereunder, that counsels judicial absten-
tion.''
It is no answer to invoke the principle that agencies must
follow their own regulations. That was, after all, the asser-
tion in Fausto, and the Court held that it was trumped by the
proposition that agencies cannot purport to confer rights
undermining a comprehensive congressional scheme. The
conclusion that the CSRA precludes employee Vitarelli claims
in light of Fausto should come as no surprise; the dissent in
Fausto expressly noted that `` i n important respects Faus-
to's case is similar to Vitarelli.'' 484 U.S. at 456 (Stevens, J.,
dissenting). The majority rejected the dissent's contention
9
that allowing Fausto's claims to proceed would not be disrup-
tive of the comprehensive CSRA scheme, because such claims
``will be `limited to those instances when the agency violates
its own regulations,' '' id. at 451 n.5 (quoting dissent, id. at
466) -- i.e., claims under Vitarelli. Even those claims were
precluded.
We hold that the CSRA precludes judicial review of Gra-
ham's claim that the FBI violated its own regulations in
taking personnel action against him. The district court
therefore had no subject matter jurisdiction over his Vitarelli
claim. See National Treasury Employees Union v. Egger,
783 F.2d 1114, 1117 (D.C. Cir. 1986) (affirming district court's
dismissal for lack of subject matter jurisdiction because the
CSRA precluded judicial review of minor personnel actions).
* * *
We affirm the district court's dismissal of Graham's com-
plaint.
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