United States Court of Appeals,
Fifth Circuit.
No. 91–5735
Summary Calendar.
Patricia A. McAULIFFE, Plaintiff–Appellant,
v.
Donald B. RICE, Secretary, Department of the Air Force, Defendant–Appellee.
July 21, 1992.
Appeal from the United States District Court for the Western District of Texas.
Before JONES, DUHÉ, and WIENER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Patricia McAuliffe, a former civilian employee of a non-appropriated fund
instrumentality (NAFI) run by the Air Force, filed this lawsuit pursuant to the Administrative
Procedure Act (APA), 5 U.S.C. § 701 et seq., seeking review of the decision to terminate her
employment. Jurisdiction was predicated on the APA, §§ 702 and 703, and under 28 U.S.C. § 1331.
The magistrate judge dismissed McAuliffe's case, holding alternatively that it lacked federal question
jurisdiction and that the Civil Service Reform Act (CSRA), Pub.L. No. 94–454, 92 Stat. 1111 et seq.
(1978), provides the exclusive remedial scheme for claims arising from federal personnel actions, thus
preventing APA review. Agreeing with the magistrate judge's latter conclusion, we affirm the
dismissal.
The scope of remedies open to federal employees for adverse employment actions was
streamlined and simplified, first, by enactment of the CSRA in 1978 and second, by the Supreme
Court's decision in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988).
As a NAFI employee, Ms. McAuliffe was statutorily excluded from the personnel scheme newly
created by the CSRA. 5 U.S.C. § 2105(c). Prior to enactment of the CSRA, the discharge of NAFI
employees was held to be actionable under the APA. See, e.g., Young v. United States, 498 F.2d 1211 (5th Cir.1974), cited with approval in Castillo v. Army & Air Force Exchange Service, 849 F.2d
199 (5th Cir.1988). The question before us is whether the exclusivity of the procedures set out in
the CSRA, as emphatically confirmed in Fausto, precludes McAuliffe's resort to APA relief here.1
We believe they do.
First, it was never the intent of Congress that NAFI employees be entitled to the same levels
of employment protection as are other federal employees. NAFI employees have been compensated
from non-appropriated funds of such organizations as the Army & Air Force Exchange Service,
which were set up by the armed forces to provide for the "comfort, pleasure, contentment, and mental
and physical improvement of personnel of the armed forces ..." Act of June 19, 1952, Ch. 444, § 1,
Public L. No. 82–397, 66 Stat. 138. Pursuant to this law, Congress determined that NAFI employees
"shall not be held and considered as employees of the United States for the purpose of any laws
administered by the Civil Service Commission." Id. Congress reflected in this legislation the
concerns of the Defense Department that civilian employment in such programs must be as flexible
as possible and could not be accommodated within then-existing civil service-type protections. The
1952 Act was eventually recodified at 5 U.S.C. § 2105(c), and as such was incorporated within the
CSRA of 1978.
Second, the NAFI that employed Ms. McAuliffe operated under the Air Force Morale,
Welfare and Recreation (MWR) Board, which promulgated its own elaborate personnel management
regulations. See Air Force Regulation 40–7, "Civilian Personnel—Non–Appropriated Funds
Personnel Management and Administration". McAuliffe's termination proceeded according to AFR
40–7, and over a course of ten months, she was provided an evaluation of her performance identifying
criteria that she must attain to become a satisfactory employee; was provided notice of removal,
listing examples of her unsatisfactory performance; received an opportunity to reply; appealed and
was given a hearing by an examiner who recommended that the employment decision be reversed;
1 The APA excludes judicial review where so provided by statute. 5 U.S.C. § 701(a)(1). and received two additional separate reviews by a colonel and then the commander of the Air Force
Military Personnel Center, both of whom decided to sustain her removal. Apart from the potential
availability of federal judicial review, McAuliffe did not lack procedural safeguards.
Third, in Fausto, the Supreme Court reviewed the history of the CSRA and concluded that
Congress intended to supplant the hodgepodge of judicial remedies that had previously existed for
various types of federal employees with the uniform gradation of review channels, culminating in
some cases with appeal to the Federal Circuit. As a result, judicial review became foreclosed in
certain areas where it had previously been deemed available, because Congress had determined to
establish a comprehensive framework designed to "balance the legitimate interest of the various
categories of federal employees with the needs of sound and efficient administration." 484 U.S. 439,
443, 445, 108 S.Ct. 668, 671, 672, 98 L.Ed.2d 830, 837, 838–39 (1988). Accordingly, in Fausto
the Co urt rejected the argument that Congress's silence indicated its assent to plaintiffs' pursuit of
remedies outside the CSRA. The Court held that the CSRA precluded an employee who otherwise
did not qualify for "administrative and judicial review" under the CSRA from bringing a claim under
the Back Pay Act, 5 U.S.C. § 5596. To allow such claims would undermine the goals of unitary
decisionmaking and consistency intended by the CSRA.
In the wake of Fausto, the federal courts have considered the exclusivity of CSRA remedies
to preclude claims by other types of employees raised under other statutes. See, e.g., Ryon v. O'Neill,
894 F.2d 199, 200 (6th Cir.1990) (CSRA precludes direct appeal by preference eligible employee to
federal courts under APA); Stephens v. Department of Health and Human Services, 901 F.2d 1571,
1576 (11th Cir.), cert. denied, ––– U.S. ––––, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990) (CSRA
provides exclusive remedy for preference-eligible, as well as nonpreference-eligible, federal employees
who challenge allegedly prohibited personnel practices).
Against the seeming breadth of Fausto and its interpretation by lower federal courts, appellant makes two principal contentions. First, she asserts that because NAFI employees are specifically
excluded from the panoply of procedures under CSRA, Fausto can have no application and cannot
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United States Court of Appeals,
Fifth Circuit.
No. 91–5735
Summary Calendar.
Patricia A. McAULIFFE, Plaintiff–Appellant,
v.
Donald B. RICE, Secretary, Department of the Air Force, Defendant–Appellee.
July 21, 1992.
Appeal from the United States District Court for the Western District of Texas.
Before JONES, DUHÉ, and WIENER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Patricia McAuliffe, a former civilian employee of a non-appropriated fund
instrumentality (NAFI) run by the Air Force, filed this lawsuit pursuant to the Administrative
Procedure Act (APA), 5 U.S.C. § 701 et seq., seeking review of the decision to terminate her
employment. Jurisdiction was predicated on the APA, §§ 702 and 703, and under 28 U.S.C. § 1331.
The magistrate judge dismissed McAuliffe's case, holding alternatively that it lacked federal question
jurisdiction and that the Civil Service Reform Act (CSRA), Pub.L. No. 94–454, 92 Stat. 1111 et seq.
(1978), provides the exclusive remedial scheme for claims arising from federal personnel actions, thus
preventing APA review. Agreeing with the magistrate judge's latter conclusion, we affirm the
dismissal.
The scope of remedies open to federal employees for adverse employment actions was
streamlined and simplified, first, by enactment of the CSRA in 1978 and second, by the Supreme
Court's decision in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988).
As a NAFI employee, Ms. McAuliffe was statutorily excluded from the personnel scheme newly
created by the CSRA. 5 U.S.C. § 2105(c). Prior to enactment of the CSRA, the discharge of NAFI
employees was held to be actionable under the APA. See, e.g., Young v. United States, 498 F.2d 1211 (5th Cir.1974), cited with approval in Castillo v. Army & Air Force Exchange Service, 849 F.2d
199 (5th Cir.1988). The question before us is whether the exclusivity of the procedures set out in
the CSRA, as emphatically confirmed in Fausto, precludes McAuliffe's resort to APA relief here.1
We believe they do.
First, it was never the intent of Congress that NAFI employees be entitled to the same levels
of employment protection as are other federal employees. NAFI employees have been compensated
from non-appropriated funds of such organizations as the Army & Air Force Exchange Service,
which were set up by the armed forces to provide for the "comfort, pleasure, contentment, and mental
and physical improvement of personnel of the armed forces ..." Act of June 19, 1952, Ch. 444, § 1,
Public L. No. 82–397, 66 Stat. 138. Pursuant to this law, Congress determined that NAFI employees
"shall not be held and considered as employees of the United States for the purpose of any laws
administered by the Civil Service Commission." Id. Congress reflected in this legislation the
concerns of the Defense Department that civilian employment in such programs must be as flexible
as possible and could not be accommodated within then-existing civil service-type protections. The
1952 Act was eventually recodified at 5 U.S.C. § 2105(c), and as such was incorporated within the
CSRA of 1978.
Second, the NAFI that employed Ms. McAuliffe operated under the Air Force Morale,
Welfare and Recreation (MWR) Board, which promulgated its own elaborate personnel management
regulations. See Air Force Regulation 40–7, "Civilian Personnel—Non–Appropriated Funds
Personnel Management and Administration". McAuliffe's termination proceeded according to AFR
40–7, and over a course of ten months, she was provided an evaluation of her performance identifying
criteria that she must attain to become a satisfactory employee; was provided notice of removal,
listing examples of her unsatisfactory performance; received an opportunity to reply; appealed and
was given a hearing by an examiner who recommended that the employment decision be reversed;
1 The APA excludes judicial review where so provided by statute. 5 U.S.C. § 701(a)(1). and received two additional separate reviews by a colonel and then the commander of the Air Force
Military Personnel Center, both of whom decided to sustain her removal. Apart from the potential
availability of federal judicial review, McAuliffe did not lack procedural safeguards.
Third, in Fausto, the Supreme Court reviewed the history of the CSRA and concluded that
Congress intended to supplant the hodgepodge of judicial remedies that had previously existed for
various types of federal employees with the uniform gradation of review channels, culminating in
some cases with appeal to the Federal Circuit. As a result, judicial review became foreclosed in
certain areas where it had previously been deemed available, because Congress had determined to
establish a comprehensive framework designed to "balance the legitimate interest of the various
categories of federal employees with the needs of sound and efficient administration." 484 U.S. 439,
443, 445, 108 S.Ct. 668, 671, 672, 98 L.Ed.2d 830, 837, 838–39 (1988). Accordingly, in Fausto
the Co urt rejected the argument that Congress's silence indicated its assent to plaintiffs' pursuit of
remedies outside the CSRA. The Court held that the CSRA precluded an employee who otherwise
did not qualify for "administrative and judicial review" under the CSRA from bringing a claim under
the Back Pay Act, 5 U.S.C. § 5596. To allow such claims would undermine the goals of unitary
decisionmaking and consistency intended by the CSRA.
In the wake of Fausto, the federal courts have considered the exclusivity of CSRA remedies
to preclude claims by other types of employees raised under other statutes. See, e.g., Ryon v. O'Neill,
894 F.2d 199, 200 (6th Cir.1990) (CSRA precludes direct appeal by preference eligible employee to
federal courts under APA); Stephens v. Department of Health and Human Services, 901 F.2d 1571,
1576 (11th Cir.), cert. denied, ––– U.S. ––––, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990) (CSRA
provides exclusive remedy for preference-eligible, as well as nonpreference-eligible, federal employees
who challenge allegedly prohibited personnel practices).
Against the seeming breadth of Fausto and its interpretation by lower federal courts, appellant makes two principal contentions. First, she asserts that because NAFI employees are specifically
excluded from the panoply of procedures under CSRA, Fausto can have no application and cannot
bar her from APA review of adverse personnel action. The argument that because NAFI employees
are excluded from CSRA they are not bound by its exclusive remedial framework has some appeal
until one considers the statutory reason for their exclusion. Congress deliberately exempted NAFI
employees from federal civil service rules to enable the armed services to carry out the missions of
non-appro priated fund organizations with the maximum possible personnel flexibility. Requiring
judicial review of adverse employment decisions in addition to the elaborate procedural protections
already mandated by AFR 40–7 substantially thwarts the goal of maintaining flexibility. Further, as
the magistrate judge perceptively noted, to permit judicial review of NAFI personnel decisions under
the APA would perversely allow them more safeguards than Congress granted more-protected classes
of ordinary federal civil servants under the CSRA. We therefore interpret Fausto to include NAFI
employees within the scope of its holding that the CSRA furnishes the exclusive set of remedies
available to federal employees of all types.
McAuliffe's second principal contention is that in Castillo, issued shortly after Fausto, this
court reviewed the termination of a NAFI employee under the APA. Castillo v. Army & Air Force
Exchange Service, 849 F.2d 199 (5th Cir.1988). Castillo, in turn, rested on the analysis of Young
v. United States, 498 F.2d 1211 (5th Cir.1974). Castillo was obviously decided without reference
to Fausto, hence its analysis does not control this case. Further, Castillo 's source of authority for
judicial review, Young, rests on the type of arguments rejected by Fausto. Young essentially held that
because the then-modern trend in APA jurisprudence was toward broadening the availability of
judicial review of federal employment decisions, a NAFI employee should also profit from the trend.
Young equates the rights of NAFI and other federal civil service employees, but it reaches a result that
we believe is at odds with Fausto. Castillo and Young are also at odds with our cases that have held
the CSRA to provide the exclusive pattern for federal employee remedies. Morales v. Department
of the Army, 947 F.2d 766, 768 (5th Cir.1991); Rollins v. Marsh, 937 F.2d 134, 138–39 (5th Cir.1991). See also, Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (holding
CSRA was the exclusive remedy for a federal civil service employee who alleged that a demotion was
retaliatory).
In holding that the exclusivity of the CSRA precludes application of APA judicial review of
McAuliffe's termination, we note that she was not without remedy. AFR 40–7 afforded her
pre-termination notice, a hearing and several levels of administrative review, all of which McAuliffe
utilized. For the reasons stated above, however, the magistrate judge properly dismissed her petition
for judicial review.
AFFIRMED.