United States Court of Appeals
FOR THE DISTRICT OF CO LUM BIA CIRCUIT
Argued May 6, 2005 Decided July 26, 2005
No. 04-5297
CARMINE FORNARO , JR., ET AL.,
APPELLANTS
v.
KAY COLES JAMES , DIRECTOR, OFFICE OF PERSONNEL
MANAGEMENT,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02542)
David U. Fierst argued the cause for appellants. With him
on the briefs were Glenn A. Mitchell and Gary S. Marx.
Lisa S. Goldfluss, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
Before: GINSBURG, Chief Judge, and ROGERS and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
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ROBERTS, Circuit Judge: A group of eight plaintiffs seeking
to represent a class of retired, disabled federal law enforcement
officers and firefighters sued the Office of Personnel Manage-
ment. They claimed that class members were entitled to higher
disability benefits, based on recent decisions from the Court of
Appeals for the Federal Circuit, and sought an order requiring
OPM to notify class members and pay them the higher benefits.
The plaintiffs looked to the Administrative Procedure Act for the
waiver of sovereign immunity that would allow their suit to
proceed in district court, but we hold that the APA’s waiver is
inapplicable because Congress has prescribed a route other than
suit under the APA for vindicating claims for civil service
benefits. We affirm the judgment dismissing the action for lack
of jurisdiction.
I.
The Civil Service Retirement Act, codified at 5 U.S.C.
§§ 8331 et seq., provides for payment of annuities to retired
federal employees and their surviving spouses. Congress has
entrusted the administration of this system to the Office of
Personnel Management. Id. § 8347(a). The CSRA provides that
OPM “shall adjudicate all claims” for retirement benefits,
id. § 8347(b), and sets forth a detailed regime for reviewing
those decisions. The CSRA first allows a claimant to appeal an
adverse OPM decision to the Merit Systems Protection Board.
Id. § 8347(d)(1). Claimants can then seek judicial review of
MSPB final orders and decisions, but — except for certain
discrimination claims — must do so before the Court of Appeals
for the Federal Circuit. Id. § 7703(b)(1).
Pursuant to the CSRA, federal law enforcement officers and
firefighters (LEO/FFs), and their surviving spouses, are generally
entitled to a more generous retirement annuity than that received
by other civil service employees. See id. §§ 8336(c), 8339(d).
Receiving the larger annuity, however, is contingent on working
3
past age fifty and having more than twenty years of service, id.
§ 8336(c), and LEO/FFs who retire before either threshold are
entitled only to the standard civil service pension, see id.
§ 8339(g). The CSRA also provides annuities for employees
who become disabled or for the surviving spouses of employees
who die while still employed. See id. §§ 8337, 8341. The
difficult question of statutory interpretation at the root of the
present dispute is whether LEO/FFs who fail to meet the age
fifty or twenty years of service requirements because of death or
disability are nonetheless entitled to the larger annuity. See
generally Wassenaar v. OPM, 21 F.3d 1090, 1092–94 (Fed. Cir.
1994).
The dispute between OPM and LEO/FFs over how to
resolve this question has been going on for some time. Round
one concerned whether death before meeting the age and service
thresholds prevented LEO/FF survivors from receiving an
enhanced annuity. OPM initially took the position that it did. In
response, surviving spouses of LEO/FFs who died before
satisfying the requirements for the larger annuity challenged
OPM’s interpretation through the CSRA review process, taking
their case to the MSPB and the Federal Circuit. The Federal
Circuit held that neither death before age fifty, Wassenaar, 21
F.3d at 1097, nor death before twenty years of service, nor both,
Moore v. OPM, 113 F.3d 216, 218 (Fed. Cir. 1997), deprived
surviving spouses of the enhanced annuity.
Subsequent to these decisions, OPM paid enhanced benefits
to the complaining parties in Wassenaar and Moore, and also
agreed to pay enhanced benefits to surviving spouses of any
future LEO/FFs who died before meeting either or both of the
minimum thresholds. With respect to similarly situated LEO/FF
survivors who were already receiving reduced benefits but had
not been parties to the litigation, however, OPM would only pay
an increased annuity to those who filed a claim for one after the
4
decisions. A class of plaintiffs then sought to compel OPM to
notify current annuitants unaware of the new interpretation in
Wassenaar and Moore, filing suit in the District Court for the
District of Columbia. See Anselmo v. King, 902 F. Supp. 273
(D.D.C. 1995). After several years of inconclusive litigation
there, OPM agreed to seek out current annuitants and pay them
adjusted prospective and retroactive benefits in line with the
Wassenaar and Moore decisions.
The present appeal concerns the impact of disability rather
than death on entitlement to an enhanced annuity. The Federal
Circuit recently ruled, in a case brought through the CSRA
review process, that LEO/FFs younger than fifty are entitled to
enhanced benefits if they retire early because of disability, but
did so without addressing whether the same held for those
retiring because of disability without twenty years of service.
See Pitsker v. OPM, 234 F.3d 1378, 1381–84 (Fed. Cir. 2000).
OPM paid enhanced benefits to the named parties in Pitsker but,
following the same course it had pursued in the survivor
litigation, would not do so for other similarly situated annuitants
unless they came forward and filed a claim. OPM also took the
position that retirees who did not have twenty years of service
were not covered by the Pitsker ruling and were still ineligible
for an enhanced annuity. A group of LEO/FFs who had retired
because of disability before age fifty and with less than twenty
years’ experience filed the present class action suit on December
10, 2001 in the District Court for the District of Columbia,
seeking mandamus and declaratory relief compelling OPM to
notify class members and grant them enhanced retirement
benefits.
OPM moved to dismiss for lack of jurisdiction and failure
to state a claim. On October 31, 2002, the parties stipulated that
OPM would notify and begin paying retroactive and prospective
enhanced benefits to LEO/FFs who retired on disability after
5
serving twenty years, but before the age of fifty — the cohort to
which Pitsker directly applied. See Stipulation and Order, ¶ 2.
Then, on June 6, 2004, the district court granted OPM’s motion
to dismiss for lack of jurisdiction. The court held that the APA
did not waive sovereign immunity with respect to the action
because the relief the plaintiffs sought — notifying annuitants of
their rights or applying Pitsker to those without twenty years of
service — was within the discretion of the agency. Alterna-
tively, the court held that the plaintiffs’ civil action was time-
barred under 28 U.S.C. § 2401(a), because the harm triggering
the cause of action — the initial miscalculation of benefits —
occurred more than six years before filing the complaint. The
plaintiffs appeal.
II.
The United States, as sovereign, “is immune from suit save
as it consents to be sued, and the terms of consent to be sued in
any court define that court’s jurisdiction to entertain the suit.”
United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations
omitted). Plaintiffs rely on the waiver of sovereign immunity in
the APA, which does indeed provide that “[a]n action in a court
of the United States seeking relief other than money damages
and stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity . . . shall not
be dismissed nor relief therein be denied on the ground that it is
against the United States.” 5 U.S.C. § 702. Section 702 goes
on, however, to specify that “[n]othing herein . . . confers
authority to grant relief if any other statute that grants consent to
suit expressly or impliedly forbids the relief which is sought.”
Id.
As we explained in Transohio Savings Bank v. OTS, 967
F.2d 598, 607 (D.C. Cir. 1993), “[t]he APA excludes from its
waiver of sovereign immunity . . . claims for which an adequate
remedy is available elsewhere, and . . . claims seeking relief
6
expressly or impliedly forbidden by another statute.” See also
Sprecher v. Graber, 716 F.2d 968, 974 (2d Cir. 1983) (“The
legislation establishing the authority of [modern regulatory]
agencies usually defines the scope of judicial review over their
actions and sovereign immunity will generally continue to bar
other kinds of lawsuits against them as a consequence of the
proviso to Section 702.”).
The CSRA specifies the benefits to which federal employ-
ees and their survivors are entitled, and provides a reticulated
remedial regime for beneficiaries to secure review — including
judicial review — of benefits determinations. That regime
provides for adjudication of all claims by OPM, 5 U.S.C.
§ 8347(b), appeal of adverse decisions by OPM to the MSPB, id.
§ 8347(d)(1), and subsequent review of MSPB decisions in the
Federal Circuit, id. § 7703(b)(1); 28 U.S.C. § 1295(a)(9). A
series of opinions from the Supreme Court and this court make
clear that these remedial provisions are exclusive, and may not
be supplemented by the recognition of additional rights to
judicial review having their sources outside the CSRA.
In Lindahl v. OPM, 470 U.S. 768 (1985), for example, the
Court confirmed that, under the CSRA, MSPB decisions
concerning retirement disability claims were reviewable in the
Federal Circuit, rejecting an effort to challenge an MSPB
decision through an action in the Claims Court. Id. at 798–99.
As the Supreme Court explained in United States v. Fausto, 484
U.S. 439 (1988), Congress sought in the CSRA “to replace the
haphazard arrangements for administrative and judicial review
of personnel action,” review that often involved appeal of
agency decisions “to the district courts through . . . various forms
of action . . ., including suits for mandamus, injunction, and
declaratory judgment.” Id. at 444 (citations omitted). To
remedy “the wide variations in the kinds of decisions . . . issued
on the same and similar matters which were the product of
7
concurrent jurisdiction . . . of the district courts in all Circuits
and the Court of Claims,” id. at 445 (citation omitted), Congress
created in the CSRA a remedial structure that “avoids an
unnecessary layer of judicial review in lower federal courts, and
[e]ncourages more consistent judicial decisions . . . . ” Id. at 449
(citations omitted). These considerations helped lead the Court
in Fausto to hold that an employee could not sue in the Court of
Claims under the Back Pay Act to remedy an adverse personnel
action, when the CSRA regime did not provide administrative or
judicial review for the claim at issue. Id. at 455. See also Bush
v. Lucas, 462 U.S. 367, 388, 390 (1983) (noting “comprehensive
nature” of civil service remedies and the “elaborate remedial
system that has been constructed step by step, with careful
attention to conflicting policy considerations,” and declining to
“augment[]” system “by the creation of a new judicial remedy”).
Our cases have also recognized, in a variety of contexts, the
exclusivity of the remedial and review provisions of the CSRA.
We early on held that the CSRA review provisions could not be
supplemented by an implied private right of action, see Cutts v.
Fowler, 692 F.2d 138, 140–41 (D.C. Cir. 1982); Borrell v.
United States Int’l Communications Agency, 682 F.2d 981, 987
(D.C. Cir. 1982), and concluded in Carducci v. Regan, 714 F.2d
171, 174–75 (D.C. Cir. 1983), that no remedy was available
under the APA for an employment claim as to which the CSRA
provided no relief. As we explained, the “failure to include” any
relief “within the remedial scheme of so comprehensive a piece
of legislation reflects a congressional intent that no judicial relief
be available.” Id. at 174.
In Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) (en
banc), we ruled that the CSRA precluded a Bivens remedy for
adverse personnel decisions, explaining that “it is the compre-
hensiveness of the statutory scheme involved, not the ‘adequacy’
of specific remedies thereunder, that counsels judicial absten-
8
tion.” Id. at 227; see also Harrison v. Bowen, 815 F.2d 1505,
1516 n.25 (D.C. Cir. 1987) (CSRA “creates an extensive scheme
regulating civil service personnel decisions” and courts should
not “allow an employee to circumvent this detailed scheme
governing federal employer-employee relations by suing under
the more general APA.”) (quoting Broadway v. Block, 694 F.2d
979, 986 (5th Cir. 1982)). Most recently, in Graham v. Ashcroft,
358 F.3d 931 (D.C. Cir. 2004), we held that the remedies under
the CSRA could not be supplemented by so-called “Vitarelli
actions” in district court — suits claiming that, in taking adverse
personnel action, an agency had violated its own regulations. Id.
at 933–36. See Vitarelli v. Seaton, 359 U.S. 535, 539–40 (1959).
In sum, so far as review of determinations under the CSRA is
concerned, what you get under the CSRA is what you get.
The plaintiffs do not dispute this point. Instead, they argue
that the CSRA regime’s exclusivity for individual benefits
determinations does not preclude what they contend is a collat-
eral, systemwide challenge to OPM policy. The plaintiffs rely
heavily on Bowen v. City of New York, 476 U.S. 467 (1986),
which held that a district court could hear a challenge to a Social
Security Administration policy effectively denying claimants’
benefits despite the fact that some claimants in the class had not
exhausted the administrative remedies prescribed by the review
statute. The plaintiffs here contend that they too are challenging
the legality of a “systemwide . . . policy” in a manner “entirely
collateral to a substantive claim to entitlement,” Bowen, 476
U.S. at 485, 483, and therefore need not be relegated to the
remedies set forth in the CSRA for individual claims.
Bowen, of course, did not address the CSRA and its
exclusive remedial scheme. In Bowen, moreover, there was no
dispute that the district court had jurisdiction to review properly
exhausted SSA claims. That a court can “waive” application of
the “intensely practical” doctrine of administrative exhaustion in
9
the context of systemwide challenges, id. at 484, is beside the
point when, as here, the court would not have been able to take
jurisdiction over the claims in any event. Unlike those in
Bowen, the benefits claims at issue here were not eventually
headed to the district court at some point anyway, but could only
be brought before OPM, with review before the MSPB and the
Federal Circuit. Allowing an alternative route to relief in the
district court because plaintiffs frame their suit as a systemwide
challenge to OPM policy would substitute an entirely different
remedial regime for the one Congress intended to be exclusive,
rather than, as in Bowen, simply alter the timing of the congres-
sionally mandated judicial review.
The plaintiffs also rely on McNary v. Haitian Refugee Ctr.,
Inc., 498 U.S. 479 (1991), which allowed a district court suit
challenging agency practices and policies in processing certain
applications, even though review of denial of the applications
was not available in district court. In McNary, however, the
Court emphasized that a victory for the plaintiffs in their district
court action would not “have the practical effect of also deciding
their claims for benefits on the merits.” Id. at 495. Instead, if
those plaintiffs prevailed, they “would only be entitled to have
their case files reopened and their applications reconsidered in
light” of the new requirements. Id. (distinguishing Heckler v.
Ringer, 466 U.S. 602 (1984)). In short, the statutorily mandated
administrative process did not address the sort of procedural and
constitutional claims the McNary plaintiffs sought to bring in
district court, and so did not preclude them. Id. at 493. Here
there is a far closer connection between the relief sought in the
judicial action and that available in the administrative process.
The district court action seeks benefits according to a particular
understanding of the reach of the Pitsker decision; that same
claim can be pressed in an individual benefits claim before
OPM, the MSPB, and — if necessary — the Federal Circuit. It
is hard to see how a district court’s decision to apply Pitsker as
10
interpreted by the plaintiffs and ordering OPM to pay benefits
accordingly would do anything besides decide the merits of the
plaintiffs’ claims for benefits.
Allowing district court actions challenging how OPM
calculates civil service benefits for particular classes of benefi-
ciaries would plainly undermine the whole point of channeling
review of benefits determinations to the MSPB and from there
to the Federal Circuit. Such an approach would reintroduce “the
haphazard arrangements for administrative and judicial review
of personnel action,” involving resort “to the district courts . . .
through various forms of action . . ., including suits for manda-
mus, injunction, and declaratory judgment,” that Congress
sought to replace in the CSRA. Fausto, 484 U.S. at 444
(citations omitted). It would erode “the primacy of the MSPB
for administrative resolution of disputes . . . and the primacy of
the Federal Circuit for judicial review.” Id. at 449. Allowing
the present action to proceed would also impermissibly create a
right of “access to the courts more immediate and direct than the
[CSRA] provides,” Carducci, 714 F.2d at 174, thus fracturing
“the unifying authority . . . of the MSPB,” and “undermining the
consistency of interpretation by the Federal Circuit envisioned”
by the Act, Fausto, 484 U.S. at 451. Nothing about the fact that
plaintiffs’ action is a systemic challenge to OPM policy miti-
gates this impact.
III.
It remains to consider whether the district court could have
exercised mandamus jurisdiction. No separate waiver of
sovereign immunity is required to seek a writ of mandamus to
compel an official to perform a duty required in his official
capacity. Wash. Legal Found. v. U.S. Sentencing Comm’n, 89
F.3d 897, 901 (D.C. Cir. 1996) (citing Dugan v. Rank, 372 U.S.
609, 621–22 (1963); Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 689 (1949)).
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Mandamus is a “drastic” remedy, “to be invoked only in
extraordinary circumstances.” Allied Chem. Corp. v. Daiflon,
Inc., 449 U.S. 33, 34 (1980). “Mandamus is available only if:
(1) the plaintiff has a clear right to relief; (2) the defendant has
a clear duty to act; and (3) there is no other adequate remedy
available to plaintiff.” Power v. Barnhart, 292 F.3d 781, 784
(D.C. Cir. 2002) (internal quotation marks omitted). Because
the plaintiffs do not now contend that OPM has a duty to notify
annuitants about any enhanced benefits that may be enforced
through mandamus, see Recording of Oral Arg. at 11:55–12:10;
13:00–13:05, the sole issue here is whether mandamus is
available to compel OPM to pay all annuitants enhanced benefits
owed under Pitsker. There is no dispute that each of the
plaintiffs and members of the putative class could file a claim for
increased benefits with OPM, appeal any adverse decision to the
MSPB, and seek further review before the Federal Circuit. This
is true regardless of whether a claim would be time-barred in a
civil action, for any such bar under 28 U.S.C. § 2401(a) would
not apply to claims pursued administratively. See Oppenheim v.
Campbell, 571 F.2d 660, 663 (D.C. Cir. 1978) (28 U.S.C.
§ 2401(a) does not apply to civil service retirement claims
brought, prior to the enactment of the CSRA, pursuant to the
APA).
The plaintiffs contend that the CSRA as administered only
allows class certification of MSPB appeals — as opposed to
OPM claims — and that many potential claimants may not know
of the rights asserted under Pitsker. Yet however unsatisfactory
the CSRA’s approach may appear to the plaintiffs, the fact that
a remedial scheme chosen by Congress vindicates rights less
efficiently than a collective action does not render the CSRA
remedies inadequate for purposes of mandamus. See Council of
& for the Blind of Delaware County Valley, Inc. v. Regan, 709
F.2d 1521, 1532 (D.C. Cir. 1983) (en banc) (“Even if we agreed
that one nationwide suit would be more effective than several . . .
12
suits, that does not mean that the remedy provided by Congress
is inadequate”). Because the CSRA regime affords beneficiaries
an adequate remedy with respect to claims for an enhanced
annuity, there is no jurisdiction to issue the writ. See Barnhart
v. Devine, 771 F.2d 1515, 1524, 1527 (D.C. Cir. 1985) (“It is, of
course, elementary that mandamus is an extraordinary form of
relief which lies only when no adequate alternative remedy
exists;” finding mandamus precluded by adequate remedy under
the CSRA).
The judgment of the district court is
Affirmed.