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.
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).
Accordingly, plaintiffs' claims for monetary relief are dismissed.
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.
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.
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.
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.
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.
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.
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.
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.