DATE: August 11, 1989
CASE NO. 88-SWD-2

IN THE MATTER OF

CATE JENKINS,
    COMPLAINANT,

    v.

OFFICE OF SOLID WASTE,
U.S. ENVIRONMENTAL PROTECTION
AGENCY,
    RESPONDENT.

   On April 11, 1989, Cate Jenkins, Complainant in the above-captioned case, filed a complaint under the Solid waste Disposal (SWDA), 42 U.S.C. § 6971, alleging that the U.S. Environmental Protection Agency (EPA) had instituted certain wrongful personnel actions against her in retaliation for her "whistleblowing" activities. Dr. Jenkins is employed as a chemist with EPA in the division which regulates the wood preservation industry. Dr. Jenkins was initially project manager in charge of certain aspects of formulating a list of hazardous waste materials. She was reassigned within the department, given an unsatisfactory rating and denied a within grade pay increase, allegedly in reprisal for having openly disagreed with EPA management over proposed standards.

   On June 5, 1989, the Respondent, EPA, filed a Motion to Dismiss on the basis of six different reasons. By Order dated June 14, 1989, Administrative Law Judge Brenner granted dismissal of Complainant's sexual misconduct allegations, but denied dismissal with respect to most other grounds raised. Remaining to be resolved is the sole issue of whether this case should be dismissed due to lack of subject matter jurisdiction; or more explicitly, whether a federal employee's whistleblowing complaint under the SWDA is preempted by the Civil Service Reform Act of 1978 (CSRA), Pub. L. 95-454 (October 13, 1978), and the new Whistleblower

Protection Act of 1989 (WPA), 5 U.S.C. § 1201 et seq. (April 10, 1989).

   The SWDA, in pertinent part, reads as follows:

§ 6971. Employee protection

(a) General

No person shall fire, or in any other way discriminate against, cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter or under any applicable implementation plan, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter or of any applicable implementation plan.

    42 U.S.C. § 697(a)

The term "person" is defined at 42 U.S.C. § 6903(15):

(15) The term "person" means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body.

   EPA asserts that by its express language the SWDA does not apply to the federal government. EPA cites Faulkner v. Olin Corporation, Case No. 85SWD3, dated August 16, 1985 in support of its contention. The Secretary's Final Order of Dismissal in Faulkner, dated November 18, 1985, however, does not address the issue of the applicability of environmental statutes to federal employees. Moreover, research reveals no precedential decisions interpreting the statutory language of the whistleblower provisions of the SWDA in relationship to federal employees. In light of the fact that the Secretary of Labor has not addressed this issue and that it is not dispositive in this case, the undersigned makes no finding as to the applicability of the SWDA to federal employees in general.

For the limited purpose of this case, however, it will be assumed that the SWDA does apply.

   We then come to EPA's next argument that even if SWDA does apply, it is pre-empted by the CSRA. The United States Supreme Court has recognized that the CSRA comprehensively overhauled the civil service system, creating an elaborate "new framework for evaluating adverse personnel actions against [federal employees]." U.S. v. Fausto, 108 S.Ct. 668, 671 (1988), citing Lindahl v. OPM, 470 U.S. 768, 773-774 (1985). "It prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review." Id., at 671.

   The Court in Fausto found that the purpose behind CSRA was to replace a civil service system which had become an "out- dated patchwork of statutes and rules built up over almost a century." Id. The many different statutory schemes under various jurisdictions had resulted in an appeals process which was protracted and resulted in wide variations in the kinds of decisions issued in similar situations. Id., at 672. Congress responded to this situation by enacting the CSRA, which was "designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration." Id.

   The United States Court of Appeals for the District of Columbia Circuit, the circuit in which this cause of action arises, has repeatedly held that the "CSRA is the exclusive remedy for aggrieved federal employees advancing nonconstitutional claims." Spagnola v. Mathis, 809 F.2d 16, 30 (1986). See also Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983); Gray v. OPM, 771 F.2d 1504 (D.C. Cir. 1985), cert. denied ___ U.S. ___, 106 S.Ct. 1478, 89 L.Ed. 732 (1986); Barnhart v. Devine, 771 F.2d 1515 (D.C. Cir. 1985).

   In Carducci, the D.C. Circuit considered whether a federal employee who alleged prohibited personnel practices could seek direct review by a district court under the Administrative Procedure Act (APA), 5 U.S.C. §701 et seq. (1976), rather than administrative review by the Office of Special Counsel (OSC) under the CSRA. The court found that "the exhaustive remedial scheme of the CSRA would be impermissibly frustrated by permitting, for lessor personnel actions not involving constitutional claims, an access to the courts more immediate than

the statute provides with regard to major adverse actions." 714 F.2d at 174. The court provided the following breakdown of procedural remedies available under the CSRA statutory scheme:

(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 particular 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.

    Id., at 175.

    Major personnel actions are those resulting in removal, suspension for mote than 14 days, reduction in grade or pay, or furlough for 30 days or less. 5 U.S.C. § 7511-7514. Minor personnel actions are those resulting in less severe sanctions, such as suspension for less than 14 days, reassignments or "any other significant change in duties or responsibilities which is inconsistent with the employee's salary or grade level." Id., at 174, citing 5 U.S.C. § 2302(a)(2)(A). In the instant case, the wrongful personnel actions complained of fall within the parameters of the minor personnel actions described at 5 U.S.C. § 2302:

§ 2302. Prohibited personnel practices

(a)(1) For the purpose of this title, "prohibited personnel practice" means any action described in subsection (b) of this section.

(2) For the purpose of this section--

(A) "personnel action" means--

(iv) a detail, transfer, or reassignment;

(viii) a performance evaluation under chapter 43 of this title;

(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; and

(x) any other significant change in duties or responsibilities which is inconsistent with the employee's salary or grade level;

with respect to an employee in, or applicant for, a covered position in the agency;

(b) Any employee who has authority to take, direct others to take, recommend or approve any personnel action, shall not, with respect to such authority--

(8) take or fail to take a personnel action with respect to any employee or applicant for employment as a reprisal for--

(A) a disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences--

(i) a violation of any law, rule, or regulation, or

(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

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if such disclosure is not specifically probibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or

(B) a disclosure to the Special Counsel of the Merit Systems Protection Board, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences--

(i) a violation of any law, rule, or regulation, or

(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

   Dr. Jenkins was reassigned, given an unsatisfactory performance rating, denied a within grade pay increase, and allegedly denied assignment to the technical work duties she prefers. She alleges that these actions were motivatd by a retaliatory intent in reprisal for her whistleblowing activities. Congress has, however, provided a comprehensive remedial scheme to address her concerns. Chapter 23 of the CSRA establishes the principles of the merit system of employment, § 2301, and forbids an agency from engaging in all of the prohibited personnel practices Dr. Jenkins complains of, including reprisals against whistleblowers. § 2302. Complainant would prefer to litigate her claim under the SWDA. That preference does not permit Dr. Jenkins to circumvent the remedial scheme provided by Congress to assure uniform administration of such claims advanced by federal employees. Accordingly, in conformance with the applicable District of Columbia Circuit precedents in Spagnola, supra, and Carducci, supra, it is found that the SWDA is preempted by the comprehensive remedial scheme provided to government employees by the CSRA.

   It is further found that the Whistleblower Protection Act of 1989, 5 U.S.C. 1201 et seq., by its clear language, does not apply in this case because the administrative proceeding was pending on the effective date of that statute.¹ No finding

¹ Savings provisions. Act Apr. 10, 1989, P.L. 101-12, § 7, 103 Stat. 34 (effective 90 days after enactment, as provided by § 11 of such Act, which appears as a note to this section), provides:

"(b) Administrative proceedings. No provision of this Act [For full classification, consult USCS Tables volumes] shall affect any administrative proceeding pending at the time such provisions take effect. Order shall be issued in such proceedings, and appeals shall be taken therefrom, as if this Act had not been enacted.