Opinion
Civil Action No: 01-3314
December 13, 2001
Before the court is the Government's "Motion to Dismiss" for lack of subject matter jurisdiction. Plaintiff, Elving L. Torres, pro se, filed a memorandum in opposition. The motion is before the court on briefs, without oral argument. Now, having reviewed the memoranda of the parties and the applicable law, the court finds that the Government's Motion to Dismiss should be granted because Plaintiff's exclusive remedy is through the Civil Service Reform Act of 1978 (CSRA) and the parties' Collective Bargaining Agreement.
In this matter, Plaintiff Torres, an Administrative Law Judge in the New Orleans hearing office, complains about the actions or inactions of the United States Social Security Administration regarding his repeated and unsuccessful requests (since 1999) for reassignment or transfer to either the Tampa hearing office or Orlando hearing office. However, the court finds that Plaintiff's claims about Defendant's failure to reassign or transfer him are preempted by the CSRA, which is codified in various sections of 5 U.S.C.
As the Fifth Circuit instructs,
5 U.S.C. § 2302 prohibits the federal government as an employer from taking "personnel action" which constitutes a "prohibited personnel practice." Personnel action under this provision includes appointments, promotions, transfers, reassignments and other expressly enumerated actions. Id. § 2302(a) (2)(A).Broadway v. Block, 694 F.2d 979, 982 (5th Cir. 1982).
Under the specific language of CSRA § 2302(c),
The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter . . .5 U.S.C. § 2302 (c).
There are no express statutory provisions for judicial oversight of the agency's efforts regarding personnel action such as reassignments or transfers. Broadway, 694 F.2d at 982, 983.
The only source of federal district court review for a federal employee under the CSRA is for certain cases of discrimination, not applicable here. Broadway, 694 F.2d at 983 ( citing 5 U.S.C. § 7703 (b)(2) and 7702).
Further, while CSRA § 7703(b)(1) provides that "a petition to review a final order or final decision of the [Ment Systems Protection Board] shall be filed with the United States Court of Appeals for the Federal Circuit," "reassignment" decisions of which Plaintiff Torres complains are not subject to review by the MSPB in the first instance, and hence cannot be appealed to the Federal Circuit Court of Appeals. Broadway, 694 F.2d at 981-82.
Moreover, under the CSRA, a collective bargaining agreement negotiated between a union and an employer provides the "procedures for the settlement of grievances, including questions of arbitrability." 5 U.S.C. § 7121 (a)(1). These negotiated procedures constitute "the exclusive administrative procedures for resolving grievances which fall within its coverage." Id.
Here, Defendant and the Plaintiff's representative, the Association of Administrative Law Judges, entered into a Collective Bargaining Agreement (CBA), effective August 30, 2001. (See CBA, attached as the Government's Exhibit A). This CHA includes a specific provision relating to "reassignments" (Article 20) and sets forth the steps for filing a grievance (Article 10). Failing a favorable outcome through the grievance procedure, the aggrieved party may refer the matter to arbitration (Article 11).
Plaintiff filed this suit on November 1, 2001. Thus, the CBA (which was effective on August 30, 2001) is applicable here.
Here, Plaintiff Torres has not pursued his grievance through the process negotiated in the CBA. However, under the CSRA, even if he had exhausted administrative remedies, he would not be entitled to judicial review. Morales v. Dept. of the Army, 947 F.2d 766, 768 (5th Cir. 1991); Montgomery v. United States Army Corps. off Engineers, 128 F. Supp.2d 433, 436 (S.D. Tx. 2001).
The CBA (Article 10, § 5) sets forth the time limits in which answers must be filed at the various steps in the grievance procedure. The court concludes that even if the turnaround time (through the grievance process and arbitration) is ultimately a lengthy one and compliance with the administrative procedures would be futile, judicial review is nevertheless foreclosed by the CSRA.
As the Broadway court succinctly stated:
we are satisfied that Congress did not neglect expressly to create a judicial remedy where it wanted one to exist. In balancing conflicting needs for efficiency and employee protection, it chose to make certain severe personnel actions, namely "adverse actions," subject to judicial review, while leaving other "personnel actions," including reassignments, to administrative discretion.Broadway, 694 F.2d at 984 (emphasis added).
Finally, the court concludes that the court does not have subject matter jurisdiction under the Administrative Procedure Act, which provides a general source of judicial power to review final agency decisions.
"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review thereof. 5 U.S.C. § 702. However, the APA does not apply where agency action is committed to agency discretion by law." 5 U.S.C. § 701 (a)(2).Broadway, 694 F.2d at 985 (emphasis added).
Here, Plaintiff Torres' denial of reassignment or transfer was committed to agency discretion for several reasons. First, the Fifth Circuit has refused to allow an employee to circumvent the detailed CSRA scheme, which regulates civil service personnel decisions, by suing under the more general APA. Broadway, 694 F.2d at 986. Second, even absent its concern about neutralizing the CSRA, the Fifth Circuit is "loath to allow judicial review of personnel decisions of this sort." Id. Simply stated,
it is not feasible for courts to assess the geographic manpower needs of an agency, and the [agency] must have flexibility in making transfer decisions in order to operate efficiently. The court [finds] itself ill equipped to review transfer decisions which are "based upon complex considerations of agency requirements as well as the ability and personal characteristics of the employee."Id., citing and quoting Bullard v. Webster, 623 F.2d 1042, 1047 (5th Cir. 1980). Accordingly;
Contrast, Hassenfeld-Rutberg v. United States of America, 112 F. Supp.2d 77 (D. Mass. 1998), wherein the district court in Massachusetts found that it had subject matter jurisdiction under the APA to review the claim of a former Administrative Law Judge who sued the Director of Office of Personal Management (OPM) for alleged violation of 5 C.F.R. § 930.215 (Reduction in Force) requiring the OPM to grant her relocation priority. The court found that the CSRA did not prevent Plaintiff from bringing her APA claims against the OPM, because the Plaintiff had no employment relationship with OPM and was suing OPM for violating an administrative regulation.
Here, Plaintiff Torres argues that the Defendant Agency has violated its long-standing policy of giving priority to hardship transfers and priority to incumbent judges with regard to those offices they have applied for reassignment. (Complaint, ¶ 6, and Petitioner's Opp. Memo., p. 1). However, unlike the ALJ plaintiff in Hassenfeld-Rutberg who alleged a violation of the C.F.R. dealing with "reduction in force", Plaintiff Torres does not allege a violation of the applicable CFR's dealing with "reassignment" ( 5 C.F.R. § 930.205), or "transfer" ( 5 C.F.R. § 930.206). Neither of these CFR's set forth any "priority" policy, and neither contain any mandatory policy. Finally, this court is bound by Fifth Circuit precedent, namely the Broadway decision, denying review of reassignment decisions under the APA.
IT IS ORDERED that the Government's "Motion to Dismiss" for lack of subject matter jurisdiction be and is hereby GRANTED.