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ARAKAWA v. REAGAN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


July 28, 1987

Morris Arakawa, et al., Plaintiffs,
v.
Ronald Reagan, President of the United States, et al., Defendants

The opinion of the court was delivered by: HARRIS

MEMORANDUM OPINION

 Stanley S. Harris, United States District Judge

 This case involves the claims of 38 former air traffic controllers, all of whom were discharged by the Federal Aviation Administration (FAA) in 1981 because of their alleged involvement in an illegal strike against the Government of the United States. The matter is now before the Court on defendants' motion to dismiss, the plaintiffs' later-filed motion to join additional plaintiffs. Upon consideration of the defendants' motion, plaintiffs' opposition thereto, defendants' reply, and the entire record, the Court concludes that defendants' motion should be granted in part and denied in part. The Court also concludes that plaintiffs' motion should be denied.

 Background

 On August 3, 1981, after several months of unsuccessful efforts to reach agreement with the FAA on a collective bargaining agreement, the Professional Air Traffic Controllers Organization (PATCO) called on its members to strike. Over 70 percent of the nation's air traffic controllers answered the call, causing a significant disruption to private and commercial aviation in the United States. Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, 222 U.S. App. D.C. 97, 685 F.2d 547, 551 (D.C. Cir. 1982).

  As federal employees, air traffic controllers are statutorily prohibited from striking. See 5 U.S.C. § 7311(2) (person who "participates in a strike" against the United States may not accept or hold a federal position); 18 U.S.C. § 1918(3) (person who participates in strike against the United States subject to $1,000 fine and imprisonment). On the first day of the strike, President Reagan issued an ultimatum to the striking air traffic controllers to return to work within 48 hours or forfeit their jobs. See 17 Weekly Comp. Pres. Doc. 845 (Aug. 3, 1981). Plaintiffs were among those discharged, pursuant to the procedures required by 5 U.S.C. §§ 7512-14, for failing to return to work.

 Of the 38 plaintiffs, 37 appealed their dismissals to the Merit Systems Protection Board (MSPB), as authorized by 5 U.S.C. § 7513(d). Each of the dismissals was upheld. *fn1" Of those who appealed to the MSPB, 31 petitioned for review in the United States Court of Appeals for the Federal Circuit. *fn2" On February 24, 1983, the Federal Circuit, faced with more than 225 petitions for review by former air traffic controllers and aware of more than 1,500 other cases still pending before the MSPB, issued an order staying review in all but seven cases then before the court. See In re Air Traffic Controllers Litigation, slip op. at 3 (Fed. Cir. Feb. 24, 1983). In doing so, the Federal Circuit sought to "determine the common controlling legal issues as soon as possible and thus avoid repetitious and unnecessary decision of the same issues in many cases." Id. at 2.

 On December 10, 1984, the Clerk of the Federal Circuit notified all those whose petitions had been stayed that disposition of the "lead cases," including Supreme Court review, was complete, and directed those who still wished to seek review to file a renewed petition before January 10, 1985. *fn3" The Clerk's notice reminded the petitioners of "the impropriety of frivolous appeals" and specified that "any renewed petition must include a statement of the issues relied on and not decided in any of the 'Lead Cases'." Of the 31 plaintiffs in this case who had filed petitions for review, ten submitted renewed petitions. *fn4" Those petitions apparently are pending before the Federal Circuit.

 In addition to seeking reinstatement through reversal of their discharges, at least six plaintiffs have sought re-employment with the FAA. However, in reliance on a Presidential Directive, see 17 Weekly Comp. Pres. Doc. 1364 (Dec. 9, 1981), the Office of Personnel Management (OPM) has determined that no air traffic controller discharged for illegal strike participation will be eligible for re-employment with the FAA. *fn5"

 On November 1, 1985, plaintiffs filed a 13-count complaint, naming President Reagan, the FAA, the OPM, the MSPB, and the Federal Circuit as defendants. *fn6" The counts include constitutional claims under the First and Fifth Amendments to the United States Constitution (counts one and two), common law tort claims, presumably under the Federal Tort Claims Act, ch. 753, title I, 60 Stat. 812, 842-47 (1946) (codified, as amended, as scattered sections of Title 28 of the United States Code) (counts three, four, five, nine, ten, eleven, and thirteen), unfair labor practice claims (counts six, seven, and eight), and a claim that defendants conspired to deprive plaintiffs of their civil rights (count twelve). Plaintiffs seek reinstatement with backpay, benefits, and necessary retraining, $1 million each in compensatory damages, and $1 million each in punitive damages. Defendants move to dismiss.

 Discussion

 I. Jurisdictional Issues

 A. Jurisdiction To Review Decisions of the MSPB and the Federal Circuit

 Plaintiffs allege that the MSPB and the Federal Circuit have denied them due process by wrongfully consolidating their individual cases with those of other former air traffic controllers, by limiting their opportunities for adversarial hearings, and by failing to "recognize" issues that the plaintiffs believe are dispositive. Without addressing the merits of plaintiffs' objections, the Court concludes that the complaint must be dismissed with respect to the MSPB and the Federal Circuit because this Court lacks jurisdiction to engage in the sort of judicial review requested.

 Under 28 U.S.C. § 1295(a)(9), the Federal Circuit has "exclusive jurisdiction" over appeals from "a final order or final decision" of the MSPB. Similarly, under 28 U.S.C. § 1254, the Supreme Court of the United States has jurisdiction to review - by writ of certiorari, by appeal, or by certification by a court of appeals - any decision of a United States Court of Appeals. Plaintiffs' desire to challenge the substantive and procedural decisions made by the MSPB and the Federal Circuit in handling their cases should proceed along the heretofore universally accepted route of judicial review, not through a collateral attack raised in the district court. (None of the named plaintiffs fully exhausted their normal opportunities for judicial review.) Accordingly, the complaint is dismissed with respect to the MSPB and the Federal Circuit.

 B. Jurisdiction To Review Employment-Related Claims of Federal Employees

 In the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (codified as scattered sections of Title 5 of the United States Code), Congress created a detailed administrative and judicial process for resolving the employment-related complaints of federal employees. Administrative review of plaintiffs' discharges (termed "removals" for the purpose of the CSRA) is governed by 5 U.S.C. §§ 7511-14, and judicial review is governed by 5 U.S.C. §§ 7701-03. All but one of the plaintiffs have, to varying degrees, availed themselves of the review procedures provided under the CSRA.

 With plaintiffs now attempting to litigate constitutional and statutory claims relating to their discharges in an action independent of the CSRA scheme, it becomes necessary for the Court to determine the extent to which the CSRA provides an exclusive remedy for employment-related claims. The courts have addressed this issue in the context of two broad distinctions: constitutional versus nonconstitutional claims, and claims for monetary relief versus claims for injunctive relief.

 As this circuit's Court of Appeals recently announced, it is well established "that the CSRA is the exclusive remedy for aggrieved federal employees advancing nonconstitutional claims." Spagnola v. Mathis, 257 U.S. App. D.C. 320, 809 F.2d 16, 30 (D.C. Cir.), reh'g en banc granted on other grounds, 809 F.2d 40 (D.C. Cir. 1987). This rule originated in Carducci v. Regan, 230 U.S. App. D.C. 80, 714 F.2d 171 (D.C. Cir. 1983), in which the court concluded "that the exhaustive remedial scheme of the CSRA would be impermissibly frustrated by permitting, for lesser personnel actions not involving constitutional claims, an access to the courts more immediate and direct than the statute provides with regard to major adverse actions." Id. at 174; see also Gray v. OPM, 248 U.S. App. D.C. 364, 771 F.2d 1504, 1512 (D.C. Cir. 1985), cert. denied, 475 U.S. 1089, 106 S. Ct. 1478, 89 L. Ed. 2d 732 (1986); Barnhart v. Devine, 248 U.S. App. D.C. 375, 771 F.2d 1515, 1526-27 (D.C. Cir. 1985). Accordingly, those counts of the complaint raising nonconstitutional claims must be dismissed. *fn7"

 Although Carducci held that nonconstitutional claims were preempted by the CSRA, the court expressly declined to consider the effect of the CSRA on the federal courts' jurisdiction to entertain constitutional claims. See Carducci, 714 F.2d at 176, 177; but see Williams v. IRS, 240 U.S. App. D.C. 326, 745 F.2d 702, 704 (D.C. Cir. 1984) (per curiam) (" Carducci makes plain" that the "CSRA does not supplant the authority of courts to safeguard constitutional rights"). However, later decisions have held that the CSRA does not affect the district courts' jurisdiction over most, if not all, constitutional claims. See, e.g., National Federation of Federal Employees v. Weinberger, 260 U.S. App. D.C. 286, 818 F.2d 935, 940 (D.C. Cir. 1987) ("federal employees may seek to enjoin government actions that violate their constitutional rights"); Hubbard v. EPA, 257 U.S. App. D.C. 305, 809 F.2d 1, 11 n.15 (D.C. Cir. 1986), reh'g en banc granted on other grounds, 809 F.2d 15 (D.C. Cir. 1987) ("CSRA does not preclude federal employees from seeking equitable relief against agencies for allegedly unconstitutional personnel actions"). Therefore, plaintiffs' claims under the First and Fifth Amendments are not preempted by the CSRA.

  As suggested by the above citations, however, this Court's jurisdiction over constitutional claims is limited by the second distinction of monetary relief versus injunctive relief. In Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983), the Supreme Court considered a federal employee's attempt to recover damages through a civil action for a supervisor's alleged violation of his First Amendment rights, while simultaneously pursuing a claim under the CSRA. The Supreme Court held that even though remedies under the CSRA may not be as fully compensatory as those available under the judicially-created Bivens-type of action, the CSRA provided the exclusive remedy. See id. at 388-90. The courts of this circuit, strictly limiting the case's applicability to its holding, have held that Bush precludes direct judicial review of constitutional claims for monetary relief, but not review of constitutional claims seeking injunctive relief. See, e.g., National Federation of Federal Employees, 818 F.2d at 940; Williams, 745 F.2d at 705; Bartel v. FAA, 223 U.S. App. D.C. 297, 725 F.2d 1403, 1415 (1984). *fn8" Accordingly, plaintiffs' claims for monetary relief are dismissed. *fn9"

 An issue not expressly addressed in the case law is whether the district court's jurisdiction with respect to the seeking of injunctive relief based upon constitutional claims is concurrent with the MSPB's and the Federal Circuit's, or exclusive. However, review of the relevant authority leads to the conclusion that it is concurrent. First, the CSRA expressly authorizes the MSPB to reverse any termination "not in accordance with law." 5 U.S.C. § 7701(c)(2)(C). Accordingly, constitutional arguments may be advanced and resolved in CSRA proceedings. See Bush, 462 U.S. at 386; Krodel, 748 F.2d at 712. Second, in discussing the exclusivity of CSRA remedies, the courts have assumed that constitutional claims could be brought under the CSRA and have focused instead on whether those remedies "displace," Cutts, 692 F.2d at 140, or "preclude," Hubbard, 809 F.2d at 11 n.15, judicially-created remedies. Thus, the Court finds that its jurisdiction to hear constitutional claims seeking injunctive relief is concurrent with the jurisdiction of the MSPB to hear such claims.

 C. Summary

 The Court lacks subject matter jurisdiction over plaintiffs' claims against the MSPB and the Federal Circuit, and over plaintiffs' nonconstitutional claims against defendants Reagan, FAA, and OPM. With respect to the remaining constitutional claims (counts one and two of the complaint), plaintiffs may seek only injunctive relief in the form of reinstatement, but no monetary relief.

 II. Sufficiency of Plaintiffs' Claims

 Having defined the scope of its jurisdiction, the Court proceeds to review the sufficiency of the remaining claims. It must be noted that although plaintiffs complain that the MSPB and the Federal Circuit improperly consolidated the cases of air traffic controllers whose circumstances varied widely, they commit that very sin in their complaint. The extent to which plaintiffs have pursued available administrative relief varies across the entire spectrum, from one plaintiff, Ken Geisert, who did not challenge his discharge with the MSPB, to several plaintiffs who have appealed all the way to the Federal Circuit (but who have not sought Supreme Court review). Likewise, a number of plaintiffs have sought re-employment with the FAA, but most have not. *fn10" Most importantly, plaintiffs allege a host of actions taken by defendants which are labeled due process or First Amendment violations without specifying which, if any, of the plaintiffs were actually injured by each particular action or policy.

  While the inadequacies of the complaint severely limit the Court's ability to assess the claims on an individualized basis, as the plaintiffs purport to desire, the principle of res judicata, or claim preclusion, allows the Court to dispose of most of the claims. Under res judicata, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980). This preclusive effect attaches to administrative proceedings when, as with proceedings before the MSPB, the administrative tribunal "is acting in a judicial capacity and resolves issues of fact properly before it which the parties have had an adequate opportunity to litigate," United States v. Utah Constr. Co., 384 U.S. 394, 422, 16 L. Ed. 2d 642, 86 S. Ct. 1545 (1965), and there is an opportunity for judicial review of adverse decisions. Id.; Kremer v. Chemical Constr. Corp., 456 U.S. 461, 484, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982). Failure to appeal an adverse decision does not alter the preclusive effect of the initial decision. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 400-01, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981); United States v. American Telephone and Telegraph Co., 230 U.S. App. D.C. 87, 714 F.2d 178, 181 (D.C. Cir. 1983).

 Applying these well-established principles to the case at hand, the Court holds that those plaintiffs who opted to challenge their discharges through appeals to the MSPB are now barred by res judicata from relitigating those challenges in this Court. The extent to which plaintiffs sought to raise their constitutional claims before the MSPB is unclear. *fn11" However, a precise determination is unnecessary, because res judicata bars both claims that were actually litigated and those that could have been litigated. Constitutional challenges could have been raised before the MSPB and the Federal Circuit. See supra note 8. *fn12" Similarly, whether a particular plaintiff availed himself of all the appeals provided by the CSRA - review of regional MSPB decisions by the full MSPB, review of MSPB decisions in the Federal Circuit, and seeking review of Federal Circuit decisions in the United States Supreme Court - is irrelevant because, as noted above, failure to pursue an appeal does not alter the preclusive effect of the initial judgment. Accordingly, counts one and two of the complaint, to the extent they challenge the constitutionality of a discharge, are dismissed with respect to all plaintiffs except Ken Geisert. *fn13"

 A similar analysis applies to review of the OPM's suitability determinations. Plaintiffs Arakawa, Gonzales, Hall, McKee, Matsumoto, and Yap sought re-employment with the FAA and were found unsuitable by the OPM for re-employment. Hall, McKee, Matsumoto, and Yap have unsuccessfully challenged the OPM's decision before the MSPB, and consequently are barred by res judicata from relitigating their constitutional claims in this Court. To the extent that counts one and two of the complaint challenge the constitutionality of the OPM's suitability determinations, they are dismissed with respect to those four plaintiffs. *fn14"

 III. Conclusion

 Defendants' motion to dismiss is granted in part and denied in part. Counts three through thirteen of the complaint are dismissed in their entirety. Counts one and two are dismissed in their entirety with respect to the MSPB and the Federal Circuit, and dismissed in part with respect to defendants FAA, OPM, and Reagan. To the extent counts one and two allege constitutional defects in the process through which air traffic controllers were discharged, they are dismissed with respect to all plaintiffs except plaintiff Geisert, and to the extent those counts allege constitutional defects in the process through which air traffic controllers have been found unsuitable for re-employment with the FAA, they are dismissed with respect to plaintiffs Hall, McKee, Matsumoto, and Yap.

 Plaintiffs' motion to join additional plaintiffs is denied. Without more than plaintiffs' meager assertion that "each of the proposed plaintiffs were fired in August of 1981," the Court cannot determine whether the individuals who seek to join this suit have claims that may properly be addressed to this Court as part of this action. See Fed. R. Civ. P. 20(a).

 An appropriate Order accompanies this Memorandum Opinion.

 ORDER

 This matter is before the Court on defendants' motion to dismiss the complaint and plaintiffs' motion to join additional plaintiffs. For the reasons explained in the accompanying Memorandum Opinion, upon consideration of the motions, the opposition to the defendants' motion, defendants' reply pleading, and the entire record, the Court concludes that defendants' motion should be granted in part and denied in part, and that plaintiffs' motion should be denied. Accordingly, it hereby is

 ORDERED, that the complaint is dismissed in its entirety with respect to defendants Merit System Protection Board and the United States Court of Appeals for the Federal Circuit. It hereby further is

  ORDERED, that counts three, four, five, six, seven, eight, nine, ten, eleven, twelve, and thirteen of the complaint are dismissed with respect to all defendants. It hereby further is

 ORDERED, that counts one and two of the complaint, to the extent they raise challenges to the legality of plaintiffs' removals from federal employment, are dismissed with respect to all plaintiffs except plaintiff Ken Geisert. It hereby further is

 ORDERED, that counts one and two of the complaint, to the extent they raise challenges to the legality of defendant Office of Personnel Management's policy on re-employment of air traffic controllers removed for illegal strike activity, are dismissed with respect to plaintiffs Thomas W. Hall, Charles K. McKee, Jr., Harold Matsumoto, and Albert Yap. It hereby further is

 ORDERED, that plaintiffs' demands for monetary relief are stricken. It hereby further is

 ORDERED, that plaintiffs' demand for trial by jury is stricken. It hereby further is

 ORDERED, that plaintiffs' motion to join additional plaintiffs is denied. It hereby further is

 ORDERED, that the remaining defendants shall file their answer, or otherwise respond, to the remaining claims under counts one and two of the complaint, within 14 days of the date of this Order.

 SO ORDERED.


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