Enis Pinar, a Federal Aviation Administration (FAA) police officer in the Public Safety Division at the Washington National Airport (WNA), appeals the district court’s order granting the defendants’ “motion to dismiss, or in the alternative, for summary judgment.”
I
Pinar has been a police officer with the FAA police force at WNA since December of 1978 and is currently a GS-5. Pinar’s performance evaluation from his superiors covering the time period at issue in this case appraised his performance as “outstanding.” On February 11, 1981, Pinar issued parking tickets to two illegally parked cars licensed to members of Congress. On February 12, 1981, Pinar ticketed the same cars for being illegally parked in excess of 24 hours. On February 13, 1981, defendant Morse, Pinar’s immediate supervisor, ordered Pinar to void the tickets. Pinar declined to comply with this order. According to the allegations of Pinar’s complaint, Morse told Pinar he was lobbying with a Congressman for passage
More than three months later, on May 27, 1981, defendant Morse disciplined Pinar for being late to roll call.
On June 10, 1981 Elkins informed Pinar that his temporary promotion to Special Functions Officer, GS-6, was being terminated as of June 14, 1981 because Pinar was unresponsive to authority. Pinar had been promoted on February 17, 1981, for a period not to exceed one year. The letter notifying Pinar of the temporary promotion, which was signed by him, provided it could be terminated at any time at the sole discretion of the FAA, and it might become permanent if Pinar met the requirements in the job description before the expiration of one year.
On September 9, 1981, defendant Jones notified Pinar of a proposal to suspend him for seven days for, inter alia, making false . and unfounded statements about Morse in the May 28, 1981, letter of complaint. After consideration of Pinar and his attorneys’ oral and written response to the proposal, Jones reduced the proposed suspension to a letter of reprimand which was issued on December 15, 1981. On or about December 28, 1981, Pinar submitted a formal grievance with respect to the December 15, 1981, reprimand. On January 20, 1982, defendant Halligan rejected the grievance as untimely since it was received after the ten-day period provided for such grievances by the applicable regulation. Pinar requested an extension of time to file his grievance from Airport Director Wilding, who denied it. Pinar appealed his letter of reprimand to the FAA Labor Relations staff. The Labor Relations staff appointed a grievance examiner, who concluded Pinar’s grievance was not timely filed and was thus properly cancelled.
On February 2, 1982, defendant Jones proposed to suspend Pinar for 14 days for failing to properly secure his firearm on July 30, 1981, and for failing to observe precautions for his safety and that of others.
II
The initial issue to be addressed is whether in light of the CSRA, Pinar has a claim under the first amendment for damages against the individual defendants. For purposes of this decision we must assume that Pinar’s first amendment rights were violated by the disciplinary actions taken against him. See Bush v. Lucas,
While his- administrative appeals were pending, Bush brought suit against Lucas to recover damages for defamation and violation of his constitutional rights. The Supreme Court declined to authorize a new nonstatutory damages remedy for federal employees whose first amendment rights are violated by their superiors. The Court concluded that “because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States ... it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy.” Bush,
The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue.
Id.,
Pinar attempts to distinguish Bush on the ground that he was not afforded the comprehensive administrative remedies Bush received. Pinar argues that whereas Bush had substantial, constitutionally adequate remedies available to redress alleged constitutional violations, the statutory remedies available to him were inadequate and constitutionally deficient.
It is undisputed that Pinar was not afforded the extensive administrative remedies afforded to Bush.
The fact that the administrative remedies available to Pinar were less exhaustive than those available to Bush does not render Bush v. Lucas inapposite. Contrary to Pinar’s assertions, the remedies available to him to redress each of the personnel actions taken against him were both comprehensive and constitutionally adequate. With respect to Pinar’s two-day suspension for mishandling his firearm, the agency could only take action “for such cause as will promote the efficiency of the service” and only after affording Pinar:
(1) an advance written notice stating the specific reasons for the proposed action;
(2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
(3) [representation] by an attorney or other representative; and
(4) a written decision and the specific reasons therefor at the earliest practicable date.
5 U.S.C. § 7503. In addition, copies of all records relating to the suspension must be “maintained by the agency and furnished to the MSPB upon its request and to the employee affected upon the employee’s request.” 5 U.S.C. § 7503.
Pinar does not assert that he was not given the aforementioned protections, but rather that the statutory remedies afforded to him with respect to his two-day suspension and the termination of his temporary promotion were constitutionally inadequate to address the alleged violations of his constitutional rights
We decline to accept Pinar’s argument that because he was not afforded the exact same statutory remedial procedures available to Bush, the statutory procedures afforded him were inadequate as a matter of due process to redress the alleged violations of his first amendment rights. In enacting the CSRA Congress intentionally designed the remedial provisions of the Act to provide employees with differing amounts of process depending upon the seriousness of the personnel action taken. The United States Supreme Court acted similarly in the academic setting when it held that a student suspended from school for less than ten days, while having liberty and property interests that qualify for the protections of the due process clause, is entitled only to notice of the charges against him and an opportunity to present his version of the evidence, preferably prior to the suspension. Goss v. Lopez,
In the area of governmental employer-employee relations the Supreme Court has determined that “the existing civil service remedies [available to Bush] for a demotion in retaliation for protected speech are clearly constitutionally adequate.” Bush,
Pinar’s assertion, then, that the statutory remedies available to him to redress his due process claims are constitutionally inadequate merely because they are less comprehensive than the remedies afforded to petitioner Bush is faulty. As the Supreme Court stated in Morrissey v. Brewer,
To determine what procedural protections are due in Pinar’s particular situation, we must look to “the nature of the private interest, the adequacy of the existing procedure in protecting that interest, and the government interest in the efficient administration of the applicable
Second, Pinar was not without adequate statutory procedures to challenge the appellees’ unconstitutional conduct. As noted previously, Pinar was able to refute, with the assistance of counsel, the agency’s claims against him regarding his two-day suspension, and present any evidence to support his answer that the appellees’ conduct was illegal. Pinar’s ability to grieve his two-day suspension gave him additional opportunity to rebut the agency’s evidence and assert the unconstitutionality of the agency's conduct.
Pinar was also able to bring before the OSC his claims that the personnel actions taken against him were taken in retaliation for the exercise of his first amendment rights. Pinar’s attempt to discount the effectiveness of this remedy on the basis that the Special Counsel has absolute discretion to decline tp hear a case and to decline to take any action on a ease that it does hear, see Borrell v. Int’l Communications Agency,
Third, the government’s interest in maintaining discipline in the workforce is great. As noted by Justice Powell,
[I]n the present case, the Government’s interest, and hence the public’s interest, is the maintenance of employee efficiency and discipline. Such factors are essential if the Government is to perform its responsibilities effectively and economically. To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.
Arnett v. Kennedy,
After weighing the above considerations, it is clear that Pinar was afforded constitutionally adequate procedures to protect his first amendment rights. Indeed, Congress balanced 'those factors in enacting the CSRA and provided for separate procedures depending upon the gravity of the personnel action in question. To afford Pinar a full hearing with the right to direct judicial review of the relatively minor personnel actions he received would unduly frustrate the government’s interest in efficiently administering the federal workforce. In addition, an employee such as Pinar, who is the subject of a minor personnel action should not be permitted immediate judicial relief in the form of punitive damages when such relief has been denied employees like Bush who are the subject of more serious personnel actions. To provide such relief would put supervisors in the untenable position of having to take proper supervisory actions against federal employees or take no action at all so as to avoid monetary liability. In light of the nature and effect of the personnel actions involved in this case, the procedures afforded to Pinar under the CSRA to protect his first amendment interests are Constitutionally adequate.
The Fifth, Sixth and Eleventh Circuits have dismissed constitutional damages claims brought by plaintiffs who had no greater statutory remedies available to them than Pinar had available to him in the instant case. In Broadway v. Block,
The reasoning of Bush and Broussard applies with greater force to the facts of this case than it does to the facts of these earlier cases. Here the deprivation is less serious — a reassignment compared to a demotion in Bush and a termination in Broussard —while the violence done to the administrative scheme by allowing plaintiffs to sue directly in federal court is greater, since reassignments are no doubt more routine than demotions and terminations, and since demotions and terminations are already subject to some judicial review under the CSRA.
Id. at 985. Accord, Watson v. U.S. Dept. of Housing and Urban Development,
Similarly, in Braun v. United States,
Recently, the Eleventh Circuit found Bush dispositive in affirming the dismissal of a federal employee’s complaint which alleged she had been disciplined in violation of her fifth and first amendment rights. Hallock v. Moses,
We, like the Court in Bush, do not decide whether it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his first amendment rights ... Congress is in a better position to decide whether the public interest would be served by fashioning the judicial remedy urged by [plaintiff]. Thus, we decline “to create a new substantive legal liability without legislative aid.”
Id. at 757 (citations omitted).
Thus, since Pinar was provided a constitutionally adequate remedy to protect his first amendment rights, the Constitution does not require us to “create a judicially-fashioned damages remedy” in this case. See Bush,
Ill
Pinar’s complaint also requests that the defendants be enjoined from harassing him in the exercise of his first amendment rights and proposing any further unwarranted disciplinary action against him. The district court determined that in light of the comprehensive remedies available to Pinar under the CSRA, such relief in district court from the minor personnel actions at issue must be denied.
The parties agree that federal courts have the authority to grant injunctive relief to the victim of a constitutional violation by virtue of their jurisdiction to decide all cases arising under the Constitution. As noted in Bush, “[28 U.S.C. § 1331 (1976) ]
Pinar argues that because the CSRA does not provide for judicial review of the disciplinary actions taken against him, the district court is obligated to exercise its jurisdiction under 28 U.S.C. § 1331(a) and provide judicial relief. Pinar points out that where jurisdiction has been granted by Congress, access to the courts should be restricted “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent.” Abbott Laboratories v. Gardner,
A review of the remedial provisions of the CSRA supports the finding that Congress clearly intended the comprehensive remedies available to Pinar to be exclusive. Certainly Congress did not intend to preclude the judiciary from reviewing all federal personnel matters. Rather, Congress specifically set forth which personnel matters are entitled to judicial review. In general the CSRA provides:
(1) for major personnel actions specified in the statute (“adverse actions”), direct •' judicial review after extensive prior administrative proceedings; (2) for specified minor personnel actions infected by particularly heinous motivations or disregard of law (“prohibited personnel practices”), review by the Office of Special Counsel, with judicial scrutiny “limited, at most, to insuring compliance with the statutory requirement that the OSC perform an adequate inquiry,” Cutts v. Fowler, supra,692 F.2d at 140 ; and (3) for the specified minor personnel actions not so infected, and for all other minor personnel actions, review by neither OSC nor the courts.
Carducci v. Regan,
Pinar concedes that with respect to adverse actions which are appealable to the MSPB Congress has expressed its intent to avoid district court review by providing for review in the Courts of Appeals (and now exclusively in the Federal Circuit). However, Pinar asserts Congress has not expressed its intent regarding actions which,
We are not unmindful of the decision of the District of Columbia Court of Appeals, Borrell v. Int’l Communications Agency,
We also note that in Hallock v. Moses,
Thus, in this case where the personnel actions are so minor in nature and where the available statutory remedies are constitutionally adequate to provide relief, we conclude that Congress intended that judicially-created remedies in district court not be made available.
IV
Pinar also argues that the district court has subject matter jurisdiction over his claims of arbitrary and capricious agency action under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. While one “adversely affected or aggrieved by agency action within the meaning of a relevant statute,” 5 U.S.C. § 702, may generally obtain judicial review under the APA, the Act confers no cause of action where the “agency action is committed to agency discretion by law,” 5 U.S.C. § 701(a)(2) or where the relevant statute “preclude(s) judicial review.” 5 U.S.C. § 701(a)(1). As stated recently by the Supreme Court,
Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved. Therefore, we must examine this statutory scheme “to determine whether Congress precluded all judicial review, and if not, whether Congress nevertheless foreclosed review to the class to which [Pinar] belong[s].”
Block v. Community Nutrition Institute, — U.S. -, -,
In Broadway v. Block, the Fifth Circuit refused to permit judicial review under the APA of the plaintiff’s claim that she was improperly reassigned to a new position in violation of her constitutional rights. The court concluded, “[w]e decline to allow an employee to circumvent this detailed scheme governing federal employer-employee relations by suing under the more general APA.” Broadway,
allowing suit under the APA would likewise “encourage aggrieved employees to bypass the statutory and administrative remedies in order to seek direct judicial relief and thereby deprive the Government of the opportunity to work out its personnel problems within the framework it has so painstakingly established.”
Id. at 986. (quoting Bush,
More recently, in Carducci v. Regan,
Nor does our recent decision in Hostetter v. United States,
Thus, we agree with the district court that Congress clearly intended the CSRA to be the exclusive remedy for federal employees and the Court of Appeals for the Federal Circuit to be the sole forum for judicial review.
V
Finally, Pinar appeals the trial court’s dismissal of his fifth amendment claim on the ground that Pinar had no property interest in his temporary promotion that required due process protection. Since the fifth amendment prohibits the deprivation of property without due process of law, Pinar must first establish that he was deprived of a cognizable property interest.
Pinar argues his property interest in his temporary promotion for a period not to exceed one year was secured pursuant to 5 U.S.C. § 7513(a) and the terms and conditions of the employment agreement which he signed at the time he was initially promoted. 5 U.S.C. § 7513(a) provides that an agency may take an adverse action such as a reduction in grade or pay “against an employee only for such cause as will promote the efficiency of the service.” Pinar
an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less ...
Pinar's contention that he is not excluded by this definition of employee because § 7511(a)(1)(A) applies to exclude only one serving a temporary appointment, and not to Pinar, who received a temporary promotion, is without merit. Although, as Pinar points out, temporary appointments and temporary promotions are governed by separate chapters of the Federal Personnel Manual, the chapter of the Federal Personnel Manual governing temporary promotions recognizes that “adverse action procedures apply to the return of an employee to his or her regular position after a temporary promotion lasting more than 2 years. ([5 C.F.R.] § 752.401(c)(7)).” Federal Personnel Manual Chap. 335, Subch. 1-5(a)(1)(c). (emphasis added). The cited regulation expressly excludes the termination of a temporary promotion for two years or less from the adverse action procedures provided under the statute:
(c) Exclusions. The subpart does not apply to actions and employees excluded by 5 U.S.C. 7511(b) and 7512, or the following ...
(7) Action which terminates a temporary promotion within a maximum period of two years and returns the employee to the position from which temporarily promoted, or reassigns or demotes the employee to a different position not at a lower grade or level than the position from which temporarily promoted.
5 C.F.R. § 752.401(c)(7). Thus, the termination of Pinar’s temporary promotion for a period not to exceed one year, which returned him to the position from which he was promoted, was not an action against an employee for which cause was required under the statute. Where an employee can be removed from a position for less than cause, he has no constitutionally protected property interest in continued employment and can be removed summarily. See Bishop v. Wood,
In addition, the stated understanding between Pinar and the Agency, which is set forth in a letter confirming Pinar’s temporary promotion, indicates Pinar had no cognizable property interest in his promotion. The letter provides:
This is to confirm your selection under merit promotion announcement AMA-80-736 for temporary promotion [to] the position of Airport Police Officer, GS-083-6, effective February 22, 1981 not to exceed February 21, 1982. This temporary promotion may be terminated at any time at the discretion of the agency. The promotion may be made permanent if you meet the requirements specified in the position description prior to the expiration date of your temporary promotion. If you are returned to your regular position, the adverse action procedures outlined in FPM Chapter 752 and the reduction-in-force procedures in FPM Chapter 351 will not apply. If you are returned to your regular position your salary at the GS-5 level will be the same as that to which you would have been entitled had you not been promoted, and any within-grade increase to which you would have been entitled if your performance was satisfactory.
I have read the above information and understand the reasons for and conditions of the temporary promotion.
The clear import of this letter is that Pinar’s promotion might be made permanent if he met the requirements stated in the job description, but that it could be terminated for less than cause at any time at the discretion of the agency.
Pinar’s reliance on Tymshare, Inc. v. Covell,
Accordingly, the decision of the district court is
AFFIRMED.
Notes
. At the hearing on the defendants’ motion, matters outside the pleadings were presented by the parties which were not excluded by the district court. Accordingly, we treat the court’s ruling as one on a motion for summary judgment, Fed.R.Civ.P. 12(b), 56(c), and accept Pinar’s version of the facts for purposes of this appeal. Bishop v. Wood, 426 U.S. 341, 347,
. The FAA is a federal agency within DOT.
. Pinar won his grievance of the incident and it is not an issue in this case.
. On July 30, 1981 Pinar, who was using the telephone in the Sergeant’s office area, was told by Sergeants Tyng and Hittle to leave the office area. After leaving, Pinar remembered that he had his weapon. Since FAA procedures specify that an officer must secure his weapon in a gun locker before leaving the station if he is not on duty, Pinar returned to the station, disengaged the cylinder of his weapon and placed it in front of Tyng, requesting that Tyng secure it for him. Tyng refused and an argument ensued. Sergeant Hittle then escorted Pinar to the gun locker to secure his gun.
. The procedures available to Bush, which are substantially similar to those currently available to federal employees subjected to "adverse actions," 5 U.S.C. § 7513, included 30 days written notice of the proposed demotion, the right to answer the charges, the right to an agency decision by a higher level official, the trial-type hearing before the Civil Service Commission, and judicial review in either federal district court or the Court of Claims.
. These procedures apply to all employees suspended for a period of 14 days or less.
. The termination of a temporary promotion within a maximum period of two years, which returns the employee to the position from which temporarily promoted, is specifically excluded from the grievance procedures. (5 C.F.R. § 771.206(c)(vi)). With respect to grievable matters, FAA grievance procedures provided Pinar the right to: file a formal grievance with any written supportive evidence or other information the employee desires; official time to make a personal presentation to the grievance examiner; be represented by the representative of his choice; seek advice from agency personnel; and have a qualified grievance examiner
. Pinar also argues the grievance procedure through which he challenged his two-day suspension was constitutionally deficient because without violating an agency regulation defendant Jones wrote a memorandum to Halligan, the grievance official, recommending that the grievance examiner's recommendations be rejected. While the opportunity to refute all of the evidence on the basis of which disciplinary action is taken is a right protected by the due process clause, see Doe v. Hampton,
. In Cutís the D.C. circuit applied its holding in Borrell in finding the district court had jurisdiction over the appellant’s claim that her transfer placed an unconstitutional burden on her freedom to marry, which is protected by the Fifth Amendment. However, while recognizing that the issue of whether a new statutory remedy displaces judicially created remedies for constitutional deprivations "turns on whether Congress meant for the new remedy to displace preexisting, judicially-created remedies, and whether the new remedies are adequate to protect the constitutional right at stake,” Cutts,
Nor are we persuaded by the Seventh Circuit's reliance on Borrell to reject the Fifth Circuit’s decision in Bush "to the extent that Bush posits that the rights of federal employees qua employees are coterminus with the administrative protections afforded by Congress.” Egger v. Phillips,
. That Pinar has exhausted his administrative remedies in this case does not render Hallock less persuasive or require that Pinar be afforded additional relief in district court. Certainly, had the court in Hallock felt the available administrative remedies were inadequate to redress the appellant’s first amendment claims, or that exhausting such remedies would prove to be an exercise in futility, the court could have ordered the district court to provide relief.
. Pinar does not claim he was deprived of a liberty interest.