Petition for Review of an Order of the Merit Systems Protection Board. Appeal from the United States District Court for the Central District of Illinois, Rock Island Division. No. 79-C-4018 -- Robert D. Morgan, Judge.
Before Cummings, Wood and Cudahy, Circuit Judges.
Petitioner-appellant, James Beals, appeals from the district court's order of May 21, 1979, denying him leave to file his pro se petition for review of his 1975 discharge from federal employment. Consolidated with his appeal from that order is a second petition for review of his discharge filed with this court on June 8, 1979. Both parties agree that Beals' right to review of his discharge from federal employment lies properly in the district court and that that court erred in denying leave to file his petition. We also agree and accordingly grant the relief asked for.
The procedural problem presented in this case is the result of substantial changes in the procedure for judicial review of federal personnel cases brought about by the Civil Service Reform Act of 1978, Pub.L.No. 95-454 (Oct. 13, 1978). The Act, as did the prior law, provides for judicial review of final orders or decisions of the Merit Systems Protection Board, formerly the Civil Service Commission's Federal Employees Appeals Authority, adversely affecting employees or applicants for federal employment. However, unlike prior law, the Act provides that "a petition to review a final order or final decision of the Board shall be filed in the Court of Claims or a United States Court of Appeals...." 5 U.S.C. § 7703(b)(1). Prior to this revision, petitions for review of adverse personnel action were to be filed in the Court of Claims or a United States District Court. 28 U.S.C. §§ 1346, 1491 (1976). The question presented here is which law applies?
In denying Beals leave to file his petition for review with that court on May 21, 1979, the district court held that the Civil Service Reform Act of 1978 applied, requiring review to be initiated in the Court of Claims or the Court of Appeals. It concluded that it was therefore without jurisdiction. Beals then filed his petition with this court, and the Merit Systems Protection Board promptly moved to dismiss.*fn1 In an order issued August 9, 1979, Judge Swygert, acting for the court, concluded that "this court does not have jurisdiction to hear this appeal because the case falls within the coverage of the Savings Clause of the Civil Service Reform Act of 1978, 5 U.S.C. § 902(b), and therefore, judicial review must be initiated in the Court of Claims or in the appropriate United States District Court." However, to preserve Beals' right to review, Judge Swygert declined to dismiss the petition and instead ordered it held in abeyance and remanded to the district court "for the limited purpose of, (1) ruling on motion to vacate its May 21, 1979, order; and (2) if necessary, ruling on a motion for a finding of excusable neglect to permit petitioner to file a notice (of) appeal from the May 21, 1979, order."
On remand, the district court denied the motion to vacate its prior order, but found petitioner's failure to file an earlier appeal to be due to excusable neglect, thereby allowing the present appeal. Now, having both matters before us, we reverse the district court's order denying Beals leave to file his petition for review with that court and dismiss the petition thereafter filed with this court.
In enacting the Civil Service Reform Act of 1978, Congress was not unaware of the possible difficulties that could arise in determining the proper judicial review procedure to be used in cases pending at the time the Act became effective. It therefore included a Savings Clause within the Act to govern the processing of cases instituted prior to 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.
§ 902(b) of Civil Service Reform Act of 1978 (92 Stat. 1224).
The district court found this language inapplicable to the instant case, however, apparently because in its view no administrative proceedings were pending as to Beals' case on January 11, 1979, when the Act took effect. In denying the motion to vacate its prior order, the district court noted that the Civil Service Commission had issued its decision on June 14, 1976, and Beals had not tendered his petition to the court until May 4, 1979. Presumably the court concluded that because the administrative decision had been rendered before the effective date of the Act and judicial review had not been sought until after the effective date, no proceedings were pending within the meaning of the Savings Clause on the effective date itself. This conclusion is in error.
Pursuant to its authority under section 1205(g) of the Act, 5 U.S.C. § 1205(g), the Merit Systems Protection Board has promulgated regulations interpreting the Savings Clause here at issue. In pertinent part, the regulations provide:
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 ...