Burroughs v. Office of Personnel Management

ORDER In its petition for rehearing, the government asks that we set aside our decision, 764 F.2d 1300 (9th Cir.1985) and follow a District of Columbia Circuit decision filed approximately one month after our opinion in this case. Barnhart v. Devine, 771 F.2d 1515 (D.C.Cir.1985). The D.C. Circuit in Barnhart held that classification decisions are subject to the limited remedies provided under the Civil Service Reform Act (CSRA) Id. at 1523. Under Barnhart, an employee aggrieved by a decision of the Office of Personnel Management (OPM) must seek redress before the Merit Systems Protection Board (MSPB) through the Office of Special Counsel. Id. at 1524. It is the first case to hold that classification decisions of the OPM are not subject to judicial review. While the government now wishes us to decide this ease in the context of the Barn-hart decision, it has never in this litigation argued that the Office of Special Counsel would provide a meaningful review of appellant’s contentions. Even in its petition for rehearing the government does not fully accept the holding of Barnhart that a classification decision which violates the standards of the Classification Act is a prohibited personnel practice properly redressable by the MSPB. In fact, in this case both appellant and the government originally agreed that the district court should review the decision of the OPM.1 [934] If we were to reconsider our decision in the light of the subsequent D.C. Circuit decision in Barnhart, and assuming arguendo we were further to conclude that we agree with it, we would unfairly require this appellant to try to institute new administrative remedies after years of protracted administrative and judicial proceedings. We accordingly decline to reconsider our decision in this case in the light of a later decision in another circuit. Our denial of rehearing in this case, however, does not preclude this Circuit from considering the Barnhart decision in cases which may follow this one, and in which this court can decide on the basis of a fully developed record the questions raised by that opinion. Since our opinion was entered before Barnhart, it cannot be regarded as either agreeing or disagreeing with the District of Columbia Circuit. Our decision to deny rehearing is therefore without prejudice to the government’s litigating in another case the issues raised in its petition for rehearing and discussed in Judge Beezer’s dissent to the denial of rehearing. Undecided as well are issues not raised in the government’s petition for rehearing, but suggested by legal developments subsequent to our decision, including the question whether judicial review in classification matters should be in the federal circuit. See Barnhart, 771 F.2d at 1524 n. 15. The panel as constituted above has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. The full court has been advised of the suggestion for rehearing en banc, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R.App.P. 35(b). The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. Footnotes [1] The government changed its position in that regard only after the D.C. Circuit decided Carducci v. Regan, 714 F.2d 171 (D.C.Cir.1983), a case which did not involve a claim of violation of the Classification Act, and which our opinion in this case distinguished.