Rehling v. United States

11 Cl. Ct. 334, 1986 U.S. Claims LEXIS 755
United States Court of Claims·Decided December 15, 1986·No. No. 205-85C·Published·Cited by 3 cases

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

Plaintiff, a probationary employee of the United States Forest Service, filed a Complaint on April 3, 1985 alleging that he had been improperly terminated from his position and that he should be reinstated and [335]*335given back pay. On October 23, 1986 the court granted Defendant’s Motion to Dismiss for lack of subject matter jurisdiction. On November 6, 1986 plaintiff filed a Motion for Reconsideration of the October 23, 1986 Opinion, alleging therein that “the Court has erred both in failing to consider factual matters present in pleadings or facts which [would] be discovered pending the allowance of discovery and errors of law that are pertinent to the jurisdictional status of this case.” The facts of the case are set forth in the October 23, 1986 Opinion, 11 Cl.Ct. 85, and will not be repeated here except as necessary.

In its October 23, 1986 Opinion the court held that as a probationary employee, plaintiff had no protected rights under the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (1978), which could be enforced in this court and that a claim brought under the Back Pay Act, 5 U.S.C. § 5596 (1982), standing alone could likewise not grant jurisdiction to this court. The court also considered and rejected plaintiff’s argument that the alleged failure of the Forest Service to follow the termination of probationary employees procedure, as set forth in the Forest Service Manual, gave this court jurisdiction to not only hear the case but to rule in favor of plaintiff. The court rejected plaintiff’s arguments because he failed to cite or argue any provision of law, the Constitution, or regulation of an executive department that gives rise to a claim for money damages, which is the necessary predicate for jurisdiction of this court.

Plaintiff, in his Motion for Reconsideration, repeated his arguments that he made in response to Defendant’s Motion to Dismiss. Plaintiff admitted that he has no rights under the CSRA in view of 5 U.S.C. § 7511 (1982), which specifically excluded probationary employees from coverage. Instead, plaintiff argued that jurisdiction is vested in this court under the “long recognized Back Pay/Tucker Act” theory. Plaintiff stated that “[n]owhere under the CSRA either by statute or by legislative history does Congress specifically withdraw the application of the Back Pay/Tucker Act jurisdiction to [sic] Claims Court, nor is there any evidence that Congress by silence barred employees affected as is plaintiff from seeking relief under these provisions.” Plaintiff’s argument is difficult to follow because it rambles so. The court, however, can glean from Plaintiff’s Motion for Reconsideration that (1) plaintiff admits he has no standing to sue under the CSRA, (2) the Back Pay Act, in conjunction with the Tucker Act, provides subject matter jurisdiction in this court and (3) the Forest Service improperly failed to follow the personnel management sections of the Forest Service Manual, thereby giving this court jurisdiction to hear the case and to order his reinstatement, with back pay.

The court is of the opinion that a former probationary employee who is removed or who leaves after learning of his impending dismissal, and who later seeks money judgment upon the ground that his discharge from government employment was not warranted, fails to state a claim within the jurisdiction of this court.1 No statute, reg[336]*336ulation, or constitutional provision entitles such an employee to judicial vindication of his or her discharge. A review of CSRA and cases decided thereunder leads unalterably to the conclusion that Congress’ sweeping reform of the Civil Service laws does not provide for review in this court of personnel actions of the nature taken in this case against probationers. The United States Claims Court has recognized that the CSRA was such “a complete overhaul of the civil service system and of the rights of federal employees” that cases decided under prior law constitute merely persuasive authority. Connolly v. United States, 1 Cl.Ct. 312, 321, 554 F.Supp. 1250 (1982), rev’d in part on other grounds, 716 F.2d 882 (Fed.Cir.1983), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984).

Connolly addressed the termination of a probationary Postal Service employee who, prior to enactment of the CSRA, could have challenged his termination in the United States Court of Claims upon the ground that it was arbitrary or capricious, or that he had been denied the benefit of an honest judgment by responsible agency officials. Id.; see also Perlongo v. United States, 215 Ct.Cl. 982, 983, 566 F.2d 1192 (1977); Greenway v. United States, 163 Ct.Cl. 72, 82 (1963). In enacting the CSRA, however, Congress specifically excluded probationers from the Act’s remedial scheme. In discussing the effect of that exclusion upon the continued viability of Perlongo and Greenway, the United States Claims Court held:

The Court of Claims decided these cases in the context of the pre-CSRA situation which was described as “an outdated patchwork of statutes and rules,” S.Rep. No. 969 [95th Cong., 2d Sess. 3, reprinted in 1978 U.S. Code Cong. & Ad. News 1978, 2725], and a “welter of inflexible strictures that have developed over the years [and] threaten to asphyxiate the merit principle itself.” Id. While good reason may then have existed for inferring a congressional grant of jurisdiction to review dismissals of probationary employees, no such basis exists after Congress has carefully and comprehensively reviewed and catalogued employee rights in the CSRA.

Connolly v. United States, 1 Cl.Ct. at 321, 554 F.Supp. 1250 (footnote omitted). In affirming the Claims Court’s analysis in Connolly, the United States Court of Appeals for the Federal Circuit stated:

Because Congress could have permitted probationers to challenge removals but expressly declined to do so, we find it incongruous to suppose that appellee has an implied right of action under the Civil Service Reform Act to seek judicial review of his dismissal. It is the province of other branches, to determine whether probationary employees should be granted the right to judicial review of adverse actions against them. Congress has decided against judicial review in the Reform Act, and we are not free to disturb the judgment.

716 F.2d at 886 (citations omitted).

In Oglesby v. United States, No. 3-84C, slip op. (Cl.Ct. June 7, 1985), the court held that it had no jurisdiction over the claim of a probationary employee who was removed during his probationary period for performance that did not satisfy his immediate supervisor. Id. The plaintiff in Oglesby alleged that he was denied due process and equal protection of law, and further alleged, as does plaintiff here, that administrative regulations relevant to his probationary period were violated by agency management. The court flatly rejected both arguments and held that Oglesby’s complaint failed to state claims within the jurisdiction of the court. Id. at 5.

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