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July 22, 1987

Edward J. Lynch, Jr., Plaintiff,
William J. Bennett, et al., Defendants

The opinion of the court was delivered by: JACKSON


 Plaintiff Edward J. Lynch, Jr., an attorney formerly employed by the Department of Education, brings this action against defendants William J. Bennett, Secretary of the Department of Education ("Secretary"), the Merit Systems Protection Board ("MSPB" or "Board"), Equal Employment Opportunity Commission ("EEOC"), and a "Special Panel," *fn1" under the Rehabilitation Act, Civil Service Reform Act ("CSRA") and the Administrative Procedure Act ("APA") for reinstatement, back pay, failure to accommodate for his handicap (epilepsy), and failure to follow proper administrative procedures in dismissing him from the Department in 1982. *fn2" The case is before the Court on plaintiff's motion for partial judgment on the pleadings, or, in the alternative, partial summary judgment, and the motion to dismiss of defendants MSPB, EEOC, and the Special Panel.

 Plaintiff appealed his removal to the MSPB, where a presiding official, in a decision dated August 2, 1982 ("MSPB I"), sustained the removal. The official found that the agency had proven that plaintiff was AWOL for two hours on one occasion and had exhibited as a pattern of failure to submit work on time, but that the agency had not met its burden of proving plaintiff's work to be unsatisfactory. The presiding official also ruled that plaintiff was not a "qualified handicapped employee" under the Act and its implementing regulations because he could not perform his duties without accommodation, *fn3" and that the agency should have given Mr. Lynch additional training, but that the failure to do so was harmless in light of her finding that plaintiff's work was satisfactory. On September 6, 1982, this "initial" decision by the presiding official became the final decision of the MSPB. *fn4"

 On January 16, 1986, the full MSPB ("MSPB II"), on referral from the EEOC, accepted the EEOC's interpretation of the Rehabilitation Act and, with one member dissenting, reopened MSPB I (over three years after it had become final) and reversed the presiding official's determination that plaintiff's work was satisfactory 31 M.S.P.R. 627. The MSPB also ruled that plaintiff was not a qualified handicapped employee because he could not perform the essential functions of his job even with reasonable accommodations. MSPB II thus sustained the agency's decision to dismiss the plaintiff. Believing that its latest decision conflicted with the EEOC ruling, the MSPB then certified the case to the Special Panel, which, with the EEOC member dissenting, affirmed MSPB II. *fn5"

 Plaintiff then filed the instant action in September, 1986. In Count I, the subject of his motion for partial summary judgment, plaintiff seeks a declaratory judgment that the EEOC, MSPB, and Special Panel decisions were all ultra vires and erroneous as a matter of law. Plaintiff argues that the EEOC had no authority to remand to the MSPB issues of employment discrimination, and that the second MSPB decision was ultra vires because the MSPB had no authority to reconsider the presiding official's findings in MSPB I. Finally, plaintiff argues that the Special Panel had no jurisdiction to address the merits of his claim because there were no conflicting findings between the EEOC and MSPB on an issue of civil service law.


 All defendants except the Secretary ("defendants") move to dismiss on the grounds that plaintiff's exclusive remedy lies in civil service and discrimination statutes, and that only the Secretary is a proper defendant in such an action. Defendants rely on Title VII, 42 U.S.C. ยง 2000e-16(c), which provides that only the Secretary can be named as a defendant in a discrimination action. *fn6" In Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 F.2d 108 (D.C. Cir. 1975), for example, in which an employee of the Veterans Administration sued the agency for race discrimination, the court noted that the employee had joined his immediate supervisors and members of the Civil Service Commission as defendants, and commented, in dicta, that the only proper defendant in a Title VII action is the head of the department, agency, or unit sued. Id. at 115 n.17. And in McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984), the court held that Title VII does not allow for a cause of action against the EEOC to challenge its initial processing of a discrimination claim. Id. at 351.

 Plaintiff responds that Count I is not brought under the Rehabilitation Act, but rather is a claim under the APA challenging administrative procedures, and that the requirement that only the head of an agency be named as a defendant does not apply to a claim under the APA. This argument finds support in McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783 (D.C. Cir. 1984), in which a probationary employee of the Defense Intelligence Agency brought a sex discrimination suit against the agency as well as an APA claim alleging that the agency did not follow its own procedures in dismissing her. The court held that Title VII does not preclude such a suit under the APA, but rather precludes suits brought under other federal discrimination statutes:

 Id. at 791.

 In response, defendants cite Carducci v. Regan, 230 U.S. App. D.C. 80, 714 F.2d 171 (D.C. Cir. 1983), in which the court of appeals held that after the passage of CSRA, agency personnel action is no longer reviewable under the APA. Carducci, however, involved a CSRA claim for wrongful reduction of pay, not a separate claim for failure to follow procedural regulations. This distinction between discrimination claims and civil service law claims, on the one hand, and APA challenges to agency procedure, on the other, was made explicitly in McKenna, which held that the latter are not preempted by Title VII.

 Defendants respond further that McKenna was overruled sub silentio in Harrison v. Bowen, 259 U.S. App. D.C. 304, 815 F.2d 1505 (D.C. Cir. 1987), in which the court of appeals held that an excepted civil service employee who had alleged that her removal violated agency regulations had no right to APA review even though she was not entitled to direct review by the MSPB. As did the plaintiff in McKenna, Harrison had argued that the agency employing her had violated its own regulations in dismissing her. The Harrison court noted that CSRA "creates an extensive scheme regulating civil service personnel systems," so that a court should not "allow an employee to circumvent this detailed scheme governing federal employer-employee relations by suing under the more general APA." Id. at 1516 n.25 (quoting Broadway v. Block, 694 F.2d 979, 986 (5th Cir. 1982)). Mr. Lynch, however, unlike Ms. Harrison, did anything but attempt to circumvent the administrative process. On the contrary, he patiently exhausted his administrative remedies before seeking relief under the APA in this Court. Based on this important distinction, and the ...

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