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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2004 Decided February 24, 2004

No. 03-5025

GILBERT M. GRAHAM,

APPELLANT

v.

JOHN D. ASHCROFT, IN HIS OFFICIAL CAPACITY AS

U.S. ATTORNEY GENERAL, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv01231)

Gilbert M. Graham, appearing pro se, argued the cause

and filed the briefs for appellant.

Sherri Evans Harris, Assistant U.S. Attorney, argued the

cause for appellees. With her on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: EDWARDS and ROBERTS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROBERTS.

ROBERTS, Circuit Judge: Appellant Gilbert Graham, at the

time a Special Agent with the Federal Bureau of Investigation, alleges that the Bureau violated its own regulations in

the course of censuring him for alleged irregularities in a

surveillance operation. We hold that the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111

(codified as amended in scattered sections of 5 U.S.C.), precludes judicial review of Graham’s claim, and accordingly

affirm the district court’s dismissal of his action.

I. Background

Graham was a Special Agent in the FBI’s Washington

Field Office who had responsibility for managing a surveillance operation. In April 1999, another Special Agent reported a potential Intelligence Oversight Board (IOB) violation

involving Graham and others to the Inspection Management

Unit. The IOB, a standing committee of the President’s

Foreign Intelligence Advisory Board, investigates and reports

on intelligence activities that may be unlawful or contrary to

executive order. Exec. Order No. 12,863, 58 Fed. Reg.

48,441, 48,442 (Sept. 13, 1993). The report of a possible IOB

violation triggered an inquiry by the FBI’s Office of Professional Responsibility (OPR) to determine whether Graham

was guilty of investigative dereliction. In the course of that

inquiry, Graham was notified of the allegation against him

and afforded an opportunity to submit a sworn statement.

OPR eventually concluded that Graham had violated IOB

requirements, and suspended him without pay for three days.

Graham appealed to the Inspection Division, which noted that

Graham was ‘‘a 24-year veteran of the Bureau with a good

service record and no prior disciplinary sanctions’’ who immediately notified his superiors of the IOB violation, allowing

corrective action to be taken to rectify the situation and avoid

any detrimental effects. Letter from Thomas Locke, Inspection Division, to Graham (May 22, 2002) at 2. The Inspection
3

Division reduced Graham’s suspension to a letter of censure,

with no loss of pay or benefits.

Graham, however, remained unsatisfied. He sued the Attorney General and the Director of the FBI in their official

capacities (collectively the FBI), challenging the FBI’s actions

during the investigation of the IOB violation and the ensuing

disciplinary process. He alleged that the FBI violated the

Administrative Procedure Act, failed to abide by its own

internal procedures and regulations, denied him procedural

due process, and violated his equal protection rights by

discriminating against him on grounds of race.

The FBI moved to dismiss the claims for lack of subject

matter jurisdiction and for failure to state a claim. In his

memorandum opposing the motion, Graham asserted, inter

alia, that the FBI ‘‘must adhere to voluntarily adopted,

binding polic[i]es that limit its discretion,’’ citing Vitarelli v.

Seaton, 359 U.S. 535, 539 (1959). Pl. Mem. Opp. Mot. Dismiss at 5. In Vitarelli, the Supreme Court held that even

agencies with broad discretion must adhere to internally

promulgated regulations limiting the exercise of that discretion. 359 U.S. at 539–40; see Padula v. Webster, 822 F.2d 97,

100 (D.C. Cir. 1987) (‘‘It is well settled that an agency, even

one that enjoys broad discretion, must adhere to voluntarily

adopted, binding policies that limit its discretion.’’). Graham’s contention was that the FBI had violated its own

internal regulations and procedures governing how to handle

alleged IOB transgressions and any resulting disciplinary

process. Although Graham was afforded notice and an opportunity to submit a statement prior to being disciplined, he

contends that the FBI’s internal rules promised him earlier

notice and an opportunity to respond, and that, had he been

given the procedural protections allegedly required, he would

have been able to forestall even the letter of censure.

The district court disposed of the entire action. That court

found that it lacked subject matter jurisdiction over Graham’s

APA claims, because the CSRA precludes review under the

APA of employment-related decisions. Next, the district

court dismissed the due process claims, holding that Graham
4

failed to demonstrate the deprivation of a constitutionally

protected interest, and that he received in any event all the

process due under the Fifth Amendment. The court also

dismissed Graham’s equal protection claim, explaining that

Title VII is the exclusive remedy for a federal employee

claiming racial discrimination.

Graham appealed to this court. We summarily affirmed

the district court’s dismissal of his constitutional and APA

claims. Graham v. Ashcroft, No. 03-5025, slip op. at 1, 2003

WL 21939757, at *1 (D.C. Cir. Aug. 5, 2003). This court

declined, however, to summarily affirm the dismissal of what

was identified as Graham’s separate Vitarelli claim — the

contention that, quite apart from the Constitution or the

APA, the Bureau was required to follow its own internal

regulations voluntarily adopted to circumscribe its discretion,

but had failed to do so. Id. Only that claim is now at issue.

II. Analysis

The FBI contends that the CSRA ‘‘provides the exclusive

remedy for a federal employee to challenge an agency’s

disciplinary decision’’ — thereby precluding any judicial review of alleged procedural violations under Vitarelli. Appellees’ Br. at 9. The CSRA provides a comprehensive scheme

to administer adverse personnel actions against federal employees. See Lindahl v. OPM, 470 U.S. 768, 773–74 (1985).

‘‘It prescribes in great detail the protections and remedies

applicable to such action[s], including the availability of judicial review.’’ United States v. Fausto, 484 U.S. 439, 443

(1988). Chapter 75 of the CSRA governs adverse personnel

actions based on misconduct: Subchapter I, 5 U.S.C.

§§ 7501–7504, governs minor adverse personnel actions and

Subchapter II, 5 U.S.C. §§ 7511–7514, governs major adverse

personnel actions. Subchapter I defines a minor personnel

action as suspension for 14 days or less, § 7502, and applies

only to employees in the ‘‘competitive service,’’ § 7501. Although Section 7503 provides some procedural protections in

such cases, there is no right to judicial review for covered

employees under Subchapter I.
5

Subchapter II governs major adverse personnel actions,

defined as removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less. § 7512.

Employees covered by Subchapter II are entitled to administrative review by the Merit Systems Protection Board

(MSPB), and subsequent judicial review in the Court of

Appeals for the Federal Circuit. §§ 7513(d), 7701, 7703.

Although FBI employees are generally excluded from CSRA

provisions, see §§ 2302(a)(2)(C)(ii), 7511(b)(8), Subchapter II

does apply to ‘‘preference eligible’’ FBI employees.

§ 7511(a)(1)(B). Such ‘‘preference eligible’’ employees are

entitled to specified protections under the CSRA because of

prior military service. See § 2108(3).

The foregoing statutory scheme does not provide Graham a

right to judicial review in the present circumstances. Although Graham may claim the protections of Subchapter II

because of his status as a ‘‘preference eligible’’ employee,1

 the

adverse personnel action in this case — a letter of censure —

fails to qualify as a major adverse personnel action under

Section 7512. (Indeed, it does not even qualify as a minor

adverse personnel action under Subchapter I.) Graham accordingly is not entitled to administrative and judicial review

of this action under the CSRA. See §§ 7512, 7513(d),

7703(a)(1).

The consequences of the lack of availability of relief under

the CSRA for government employees seeking to challenge

employment actions through other avenues were spelled out

by the Supreme Court in Fausto. In that case, a government

employee — whose status gave him no right to administrative

or judicial review under the CSRA — sought judicial review

of his removal from government service under the Back Pay

Act, contending that his dismissal had violated regulations

1 Although Graham failed to allege that he is ‘‘preference

eligible’’ in his complaint, he did claim that status in his memorandum opposing the FBI’s motion to dismiss. The FBI did not

dispute that Graham was ‘‘preference eligible’’ for purposes of the

motion to dismiss. Def. Reply to Pl. Opp. Mot. Dismiss at 3 n.3.
6

issued by his employing agency. See 484 U.S. at 441–43 &

n.2. The Supreme Court held that the comprehensive framework of the CSRA precluded judicial review under the Back

Pay Act:

The CSRA established a comprehensive system for

reviewing personnel action taken against federal employees. Its deliberate exclusion of employees in respondent’s service category from the provisions establishing

administrative and judicial review for personnel action of

the sort at issue here prevents respondent from seeking

review TTT under the Back Pay Act.

Id. at 455.

The Court explained that allowing direct judicial review of

employment claims for employees with no rights under the

CSRA would provide them a more substantial right to review

than was available to personnel granted a right to judicial

review under the CSRA; such personnel had to first seek

administrative review by the MSPB before gaining judicial

review in the Federal Circuit. See id. at 448–50. Direct

judicial review would also undermine ‘‘the development,

through the MSPB, of a unitary and consistent Executive

Branch position on matters involving personnel action,’’ and

would frustrate congressional intent in the CSRA to ‘‘avoid[ ]

an unnecessary layer of judicial review in lower federal

courts.’’ Id. at 449 (internal quotation marks omitted).

Fausto is not directly on point. It involved a ‘‘type of

personnel action covered by [the CSRA],’’ id. at 448 —

removal — as to which some employees were given judicial

review rights and some (like Fausto) were not. The Court

reasoned that in not granting review to some employees

under the CSRA for actions covered by the CSRA, Congress

meant to preclude those employees from securing review

under other avenues. The present case involves an employee

granted certain judicial review rights under the CSRA, but

whose rights do not extend to the personnel action at issue —

a letter of censure. The question is whether in granting

review with respect to some personnel actions under the

CSRA, Congress meant to preclude review of others.
7

The logic of Fausto, if not its holding, provides the answer.

The Court rejected Fausto’s claim because granting it would

have given him greater rights than were available under the

CSRA to employees who enjoyed rights under that statute —

primarily those in the competitive service. Id. at 449–50. As

the Court expressly noted, this reasoning ‘‘assumes, of course,

that competitive service employees, who are given review

rights by Chapter 75, cannot expand those rights by resort to

pre-CSRA remedies. TTT Even respondent has not questioned this assumption.’’ Id. at 450 n.3.

The Court’s explicit assumption in Fausto that employees

with judicial review rights under the CSRA may not obtain

judicial review of personnel actions outside the bounds of the

CSRA covered precisely the situation at issue here — a

personnel action as to which the CSRA grants no right of

review, even for employees who are otherwise granted such

rights under the CSRA in other circumstances. The hypothetical in the text of Fausto to which the quoted footnote 3

was appended concerned an employee like Fausto obtaining

judicial review for a 10–day suspension, while a competitive

service employee favored with rights under the CSRA would

not, because judicial review under the CSRA is available only

for suspensions of more than 14 days. Id. at 449–50. The

Court’s assumption that the CSRA-favored employee would

have no right to review of a suspension below the CSRA

minimum — necessary to its analysis — strongly indicates

that the CSRA-favored Graham has no right to review of a

letter of censure, similarly below the CSRA minima for both

major and minor adverse personnel actions.

In addition, Justice Scalia in footnote 3 of Fausto cited his

opinion for our court in Carducci v. Regan, 714 F.2d 171, 173–

75 (D.C. Cir. 1983). That case held that judicial review was

not available under the APA with respect to employment

claims as to which the CSRA provided no relief to anyone,

because the alleged adverse actions were too minor. Allowing judicial review in such a case, our court explained, presented ‘‘an even more aggravated form of the problem’’ posed

by allowing employees with claims for which the CSRA

provided some relief (but not judicial review) to obtain direct
8

judicial review, when such direct review was not even available under the CSRA for the most serious claims. Id. at 174.

The Fausto Court’s citation of Carducci strongly suggests

that Graham’s situation — involving an adverse personnel

action as to which not even CSRA-favored employees have

any rights of review — presents an even stronger case for

CSRA preclusion than Fausto.

In light of the foregoing, it is clear that judicial review of

Graham’s personnel claims under Vitarelli is precluded by

the CSRA. Granting Graham a right of direct judicial review

for a letter of censure would give him greater rights than the

CSRA affords for major adverse actions, for what does not

even rise to the level of a minor adverse action under the

CSRA. Graham tries to distinguish Fausto by noting that

he, unlike Fausto, is a preference eligible employee under the

CSRA, see Pl. Mem. Opp. Mot. Dismiss at 8, but that only

gives Graham rights with respect to major adverse actions

(and even there, lesser rights than Graham claims). For the

sort of action at issue here, Graham is in the same boat as

Fausto — the CSRA provides no relief and precludes other

avenues of relief. Fausto and Carducci together establish

that the fact that the CSRA provides no relief for lesser

personnel actions cannot be dismissed as an ‘‘uninformative

consequence of the limited scope of the statute.’’ Fausto, 484

U.S. at 448. As we explained in Spagnola v. Mathis, 859

F.2d 223, 227 (D.C. Cir. 1988) (en banc), ‘‘it is the comprehensiveness of the statutory scheme involved, not the ‘adequacy’

of specific remedies thereunder, that counsels judicial abstention.’’

It is no answer to invoke the principle that agencies must

follow their own regulations. That was, after all, the assertion in Fausto, and the Court held that it was trumped by the

proposition that agencies cannot purport to confer rights

undermining a comprehensive congressional scheme. The

conclusion that the CSRA precludes employee Vitarelli claims

in light of Fausto should come as no surprise; the dissent in

Fausto expressly noted that ‘‘[i]n important respects [Fausto’s] case is similar to Vitarelli.’’ 484 U.S. at 456 (Stevens, J.,

dissenting). The majority rejected the dissent’s contention
9

that allowing Fausto’s claims to proceed would not be disruptive of the comprehensive CSRA scheme, because such claims

‘‘will be ‘limited to those instances when the agency violates

its own regulations,’ ’’ id. at 451 n.5 (quoting dissent, id. at

466) — i.e., claims under Vitarelli. Even those claims were

precluded.

We hold that the CSRA precludes judicial review of Graham’s claim that the FBI violated its own regulations in

taking personnel action against him. The district court

therefore had no subject matter jurisdiction over his Vitarelli

claim. See National Treasury Employees Union v. Egger,

783 F.2d 1114, 1117 (D.C. Cir. 1986) (affirming district court’s

dismissal for lack of subject matter jurisdiction because the

CSRA precluded judicial review of minor personnel actions).

* * *

We affirm the district court’s dismissal of Graham’s complaint.