Public-domain · open source
OpenJurist

609 F.2d 540

Docket Nos. 79-1307, 79-1345 and 79-1505.

Kyle v. Interstate Commerce Commission

District of Columbia Circuit Court of Appeals

Decided Oct. 26, 1979.

As Amended Jan. 8, 1980.

District of Columbia Circuit Court of Appeals · decided 1979-10-26

3 counsel of record

Key passage — most relied on by later courts

“No provision of the Civil Service Reform Act shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. “Pending” is considered to encompass existing agency proceedings, and appeals before the Board or its predecessor agencies, that were subject to judicial review or under judicial review on January 11, 1979, the date on which the Act became effective. An agency proceeding is considered to exist once the employee has received notice of the proposed action.”

quoted by 4 later decisions, including Phillips v. Merit Systems Protection Board, Denton v. Merit Systems Protection Board

“[n]o provision of this Act shall affect any administrative proceedings pending at the time such provision takes effect.” The CMPA contains no comparable provision, and the Kyle case has no bearing on the issue. 13 . The arguable unreasonableness of permitting direct review by the Superior Court more than a decade after the CMPA went into effect is further illustrated by what one might describe as a”

quoted by 3 later decisions, including Meadows v. Palmer, Montgomery v. District of Columbia

Applies 28 U.S.C. § 1346 (Federal Tort Claims Act) · 28 U.S.C. § 2401 · 5 U.S.C. § 1101 (Civil Service Miscellaneous Amendments) · 5 U.S.C. § 7703

Relies on Udall v. Tallman · Red Lion Broadcasting Co. v. Federal Communications Commission · Mourning v. Family Publications Service, Inc.

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1979-10-26

How this case has been cited

Cited by 67 later decisions — most recently October 1991 · most notably Walker v. Washington (1980), Devine v. White (1983)

41 federal appellate · 4 district · 1 state decisions

650197919801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*541William Kanter, Joseph B. Scott and Mar-leigh Dover Lang, Attys., Dept, of Justice, Washington, D. C., were on the motions to dismiss for respondents.

¶2Myles J. Ambrose, Washington, D. C., was on the opposition to the motions to dismiss for petitioners in Nos. 79-1307 and 79-1345.

¶3Paul A. Stone was on the opposition to the motions to dismiss for petitioner pro se in No. 79-1505.

¶4Before WRIGHT, Chief Judge, and LEVENTHAL * and WALD, Circuit Judges.

¶6Opinion per curiam.

¶7PER CURIAM:

¶8In these cases, three federal employees have petitioned for review of the final orders of the Merit Systems Protection Board upholding agency adverse personnel actions. We dismiss for lack of jurisdiction because the savings provision of the Civil Service Reform Act precludes direct review in this court.

¶9I.

¶10The Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111, which became effective on January 11, 1979, provides for review of final orders or decisions of the Merit Systems Protection Board in the Court of Claims or a United States Court of Appeals, 5 U.S.C.A. § 7703(b)(1) (Supp. 1979). A savings clause, however, makes the Act inapplicable to cases instituted before its effective date:

No provision of this Act shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.

¶11*542Pub.L. No. 95 — 454, § 902(b), 92 Stat. lili (5 U.S.C.A. § 1101 note (Supp.1979)). In the interest of affording maximum rights to aggrieved employees, the Merit Systems Protection Board promulgated regulations construing the savings clause:

No provision of the Civil Service Reform Act shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. “Pending” is considered to encompass existing agency proceedings, and appeals before the Board or its predecessor agencies, that were subject to judicial review or under judicial review on January 11, 1979, the date on which the Act became effective. An agency proceeding is considered to exist once the employee has received notice of the proposed action.

¶1244 Fed.Reg. 38349, 38360-61 (1979) (to be codified in 5 C.F.R. § 1201.191(b)).

Each of these cases involves an employee who received notice of the proposed personnel action before, but had his case decided adversely by the Merit Systems Protection Board after, the Act became effective.1 Under the Merit Systems Protection Board’s interpretation of the savings clause, each proceeding was pending when the Act became effective, and must therefore be reviewed judicially under prior law, which did not permit review in a Court of Appeals.2

¶13II.

¶14The Board’s interpretation is consistent with the language of the savings clause: “Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.” Pub.L. No. 95-454, § 902(b), 92 Stat. 1111 (5 U.S.C.A. § 1101 note (Supp.1979)) (emphasis added). Moreover, the interpretation reaches a logical result. If prior law is to govern the administrative stage of a proceeding, it should govern judicial review as well. To conclude otherwise may produce incongruous results or even preclude judicial review entirely for some employees. For example, the Act’s thirty-day statute of limitation, 5 U.S.C.A. § 7703(b)(1) (Supp.1979), may foreclose review for employees whose personnel actions could have been reviewed under the six-year limitation period of prior law, 28 U.S.C. §§ 2401, 2501 (1976).3

¶15The Board’s interpretation of the savings clause should be respected, in accordance with the judicial deference usually accorded to the interpretation made by the agency charged with a statute’s administration. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). The Supreme Court recently reaffirmed this principle with its reminder that courts “are bound by the ‘principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.’ ” Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 969 n.25, 59 L.Ed.2d 194 (1979), *543quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). When an agency regulation is reasonably related to the purposes of the enabling legislation, its validity is to be sustained. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652,1660, 36 L.Ed.2d 318 (1973). The Board’s regulation accomplishes the purpose of the savings clause: to ensure that all personnel actions initiated prior to January 11, 1979 are decided under prior law. It is therefore valid.

¶16Accordingly, the personnel actions in these cases are to be reviewed under prior law, which prescribes the Court of Claims or the appropriate United States District Court as the proper forum. Because this Court lacks jurisdiction, the petitions for review are dismissed.

/609/f2d/540 · .json · Public domain