UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PETER B. MAPES,

Plaintiff, v. Civil Action No. 20-223 (JEB) JACK REED,

and

RICHARD CODY,

Defendants.

MEMORANDUM OPINION

In late 2018, United States Senator Jack Reed appointed Plaintiff Peter Mapes to the

newly created National Commission on Military Aviation Safety. Upon a recommendation from

the Air Force, the Senator removed Mapes from that position approximately fourteen months

later. Plaintiff believes that his discharge was unlawful, and that, in firing him, Reed and

Commission Chairman General Richard Cody violated both the statute establishing the

Commission and the United States Constitution. Mapes thus brought this action against those

two parties, asserting claims under that statute, the Administrative Procedure Act, and the

Constitution. He asks this Court to reinstate him and order compensation for work he performed

after being removed.

Defendants now move separately to dismiss Plaintiff’s Second Amended Complaint on

both procedural and substantive grounds. The Court agrees with them that it lacks subject-matter

jurisdiction over Mapes’s claims, which Congress required to be pursued through the exclusive

1 review scheme established by the Civil Service Reform Act, rather than in federal district court.

The Court will therefore grant Defendants’ Motions without considering their substantive points.

I. Background

Two years ago, Congress established a “National Commission on Military Aviation

Safety” as part of the John S. McCain National Defense Authorization Act for Fiscal Year 2019

(2019 NDAA). See

,

, 1992 (2018). The

Commission’s purpose, evident from its title, was “to examine and make recommendations with

respect to certain United States military aviation mishaps.”

§ 1087(a)(2). More specifically,

Congress charged the Commission with “undertak[ing] a comprehensive study of United States

military aviation mishaps that occurred between fiscal years 2013 and 2018.” Id. § 1087(h)(1).

After completing this study, the Commission –– which is classified as a “temporary,”

“independent establishment of the Federal Government,” id. § 1087(a)(1) –– was required to

submit a “detailed” report to the President and to the Senate and House Armed Services

Committees by March 1, 2020. Id. § 1087(h)(2). Congress later extended the deadline to

December 1, 2020. See National Defense Authorization Act for Fiscal Year 2020,

(a),

, 1820 (2019).

This case concerns neither aviation nor the Commission’s work product, but rather its

membership. The entity comprises eight people, four appointed by the President and one apiece

by four different members of Congress, including one by the Ranking Member of the Senate

Committee on Armed Services. See 2019 NDAA § 1087(b)(1). The Act specifically states that

Commissioners are “deemed to be Federal employees” and are “appointed for the life of the

Commission,” id. § 1087(b)(5), (7), which ceases to exist ninety days after the submission of the

required report. Id. § 1087(k). In his capacity as Ranking Member, Senator Reed appointed

2 Plaintiff to the Commission on November 13, 2018. See 164 Cong. Rec. S6929-03 (Nov. 13,

2018); see also ECF No. 29 (Second Amended Complaint), ¶ 13.

Mapes’s tenure on this aviation-safety body was apparently turbulent. In late 2019,

representatives from the Air Force sent the Commission’s Chairman, General Richard Cody,

several communications raising complaints about Plaintiff’s behavior. See SAC, ¶¶ 20–21.

Mapes suggests that these concerns arose because of his “suggestions with regard to ensuring

that statistical data was reliable and properly analyzed,” id., ¶ 19, and asserts that he and “various

military services’ [members] have been at odds over aviation safety issues for several years.”

Id., ¶ 22. Whatever the underlying facts — and the current Motion does not oblige the Court to

inquire into them — the Air Force’s account appears to have persuaded Reed. On January 7,

2020, he wrote to Plaintiff terminating his status as a Commissioner. See id., ¶ 23. In doing so,

he explained that Mapes’s service was “no longer compatible with the service of the other

members of the Commission.” Id., ¶ 24.

Not interested in a quiet departure, on January 28, 2020, Mapes filed this suit against

Reed and Cody. See ECF No. 1 (Complaint). Both Defendants separately filed Motions to

Dismiss, and Cody additionally moved for summary judgment. See ECF Nos. 12 & 13. Plaintiff

opposed those Motions and cross-moved for summary judgment in his favor. See ECF Nos. 18

& 19. He then sought leave to amend his Complaint, which the Court granted. See Minute

Order (06/24/2020). Mapes followed up with the now-operative Second Amended Complaint.

In that Complaint, Plaintiff insists that Defendants did not have the authority to fire him

under the 2019 NDAA. He asserts a cause of action for relief on that theory under both the

NDAA itself and the APA. See SAC, ¶¶ 25–28, 45–50. He also asserts that his removal both

“violated the separation of powers” (on the theory that he was an executive-branch employee

3 removed by a legislator) and “violated his federal rights to due process.” SAC, ¶¶ 37, 39.

Plaintiff “requests that his removal be declared void, the Defendants be enjoined from attempting

to terminate [him] in the future, and that he immediately have returned to him all powers incident

to his position as Commissioner.” Id., ¶ 8. He also seeks money damages in the form of

payment for work he performed for the Commission after his removal on January 7, 2020, as

well as attorney fees. Id. at 9.

Both Defendants have again separately moved to dismiss on several grounds (some

overlapping, some not). See ECF Nos. 30 (Reed MTD) & 33 (Cody MTD).

II. Legal Standards

Defendants’ Motions invoke the legal standards for dismissal under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). As the Court does not venture beyond jurisdiction, it sets

out only the former standard.

When a defendant brings a Rule 12(b)(1) motion to dismiss, the plaintiff must

demonstrate that the Court indeed has subject-matter jurisdiction to hear his claims. See Lujan v.

Defs. of Wildlife,

(1992). “Absent subject matter jurisdiction over a case, the

court must dismiss it.” Bell v. U.S. Dep’t of Health & Human Servs.,

(D.D.C. 2014). In policing its jurisdictional borders, a court must scrutinize the complaint,

treating its factual allegations as true and granting the plaintiff the benefit of all reasonable

inferences that can be derived from the alleged facts. See Jerome Stevens Pharm., Inc. v. FDA,

(D.C. Cir. 2005). The court need not rely “on the complaint standing

alone,” Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992), however, but “may

consider such materials outside the pleadings as it deems appropriate to resolve the question [of]

4 whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics,

(D.D.C. 2000) (citing cases).

III. Analysis

While Defendants’ respective Motions differ in several ways, both assert that the Court

lacks subject-matter jurisdiction over Plaintiff’s claims. As it must, the Court will therefore

begin — and, as it happens, end — there. “Within constitutional bounds, Congress decides what

cases the federal courts have jurisdiction to consider.” Jarkesy v. SEC,

(D.C. Cir.

2015) (quoting Bowles v. Russell,

(2007)). Where Congress has established a

“special statutory review scheme,” courts assume that it “‘intended that procedure to be the

exclusive means of obtaining judicial review in those cases to which it applies.’”

(quoting

City of Rochester v. Bond,

(D.C. Cir. 1979)). Defendants argue here that the

Civil Service Reform Act of 1978 (CSRA) provides such a review scheme, precluding this Court

from exercising jurisdiction over Plaintiff’s claims. They are correct.

The CSRA “establishes a framework for evaluating personnel actions taken against

federal employees.” Kloeckner v. Solis,

(2012). Aiming to reform the

“outdated patchwork of statutes and rules” governing federal personnel claims that had “built up

over almost a century,” Congress started afresh and created “an integrated scheme of

administrative and judicial review, designed to balance the legitimate interests of the various

categories of federal employees with the needs of sound and efficient administration.”

Grosdidier v. Chairman, Broad. Bd. of Governors,

(D.C. Cir. 2009) (quoting

United States v. Fausto,

, 444–45 (1988)). To that end, the CSRA “supplies a

variety of causes of action and remedies to employees when their rights under the statute are

violated.”

As the Supreme Court has explained, “Given the painstaking detail with which

5 the CSRA sets out the method for covered employees to obtain review of adverse employment

actions, it is fairly discernible that Congress intended to deny such employees an additional

avenue of review in district court.” Elgin v. Dep’t of Treasury,

, 11–12 (2012).

Courts have thus consistently held that the CSRA review scheme is “exclusive,” as the Act

“constitutes the remedial regime for federal employment and personnel complaints.” Nyunt v.

Chairman, Broad. Bd. of Governors,

(D.C. Cir. 2009) (citing cases).

The question here, accordingly, is whether Mapes’s claims regarding his removal from

the National Commission on Military Aviation Safety are subject to the CSRA’s exclusive

review scheme. The statute creating the Commission specifies that its members are “Federal

employees,” 2019 NDAA § 1087(b)(7), and that it is a “temporary organization under section

3161 of [title 5].” Id. § 1087(a)(1). Per title 5, employees of temporary organizations “are in the

excepted service of the civil service.”

(b)(3). Plaintiff is thus “an individual in

the excepted service” under Chapter 75 of the CSRA, which makes him an “employee” for

purposes of that Chapter. See

§ 7511(a)(1)(C). And per that Chapter, “An employee against

whom an action is taken under this section” (which includes a “removal,” id. § 7512(1)) “is

entitled to appeal [that action] to the Merit Systems Protection Board,” id. § 7513(d), followed

by further appeal to the Court of Appeals for the Federal Circuit. See id. § 7703. In sum,

Plaintiff is an “[e]mployee[] entitled to review” under the CSRA’s “comprehensive system”

because he is a member of the “excepted service” and because he was subject to “removal.” See

Elgin, 567 U.S. at 5–6.

That resolves this case. As discussed above, the Supreme Court and D.C. Circuit have

repeatedly held that an employee who has recourse to CSRA procedures is not permitted to “end-

run” the Act by filing suit directly in federal court. Grosdidier,

. That implied

6 preclusion of review encompasses both Plaintiff’s statutory claims (under the APA and 2019

NDAA) and his constitutional claims, leaving this Court without jurisdiction to consider them.

See Nyunt, 589 F.3d at 448–49 (“[E]xcept where Congress specifies otherwise, the Civil Service

Reform Act is the proper statutory vehicle for covered federal employees to challenge personnel

actions by their employers. Federal employees may not circumvent the [CSRA]’s requirements

and limitations by resorting to the catchall APA to challenge agency employment actions.”)

(quoting Grosdidier, 560 F.3d at 495–97); Elgin, 567 U.S. at 12–13 (CSRA equally precludes

district-court jurisdiction over constitutional challenges to covered employment actions).

Mapes’s counterarguments fall short. He first posits that the CSRA “does not cover

every adverse action against a federal employee.” ECF No. 34 (Opp.) at 8 (quoting Worthington

v. United States,

(Fed. Cir. 1999)); but see Nyunt,

n.1 (noting

that D.C. Circuit and many other circuits disagree with Worthington). Even if that is so, the Act

unambiguously covers a “removal,” which is the action forming the basis of Plaintiff’s claims in

this suit. See

(1).

He next contends that the CSRA does not preclude his constitutional claims. Attempting

to distinguish Elgin’s seeming holding to the contrary, he notes that the petitioners there brought

a constitutional challenge to a statute; meanwhile, he is not attacking the 2019 NDAA itself, but

instead claiming that his removal violated the separation of powers and the Due Process Clause.

See Opp. at 9–10. That is indeed a distinction, but it makes no difference here. As Elgin noted

(and as the petitioners there conceded), it is well established that “claims that an agency took

adverse employment action in violation of an employee’s [constitutional] rights” — in other

words, Mapes’s claims — “must be brought within the CSRA scheme.”

. Elgin

simply took the further step of holding that employees challenging the constitutionality of the

7 statute under which they were removed also may not sue in federal district court.

at 12–13.

After all, “the availability of administrative and judicial review under the CSRA generally turns

on the type of civil service employee and adverse employment action at issue,” not the nature of

the legal arguments underlying a plaintiff’s claim.

; see also deLeon v. Wilkie, No. 19-

1250,

, at *4 (D.D.C. Jan. 14, 2020) (citing Elgin and quoting Steadman v.

Governor,

, 967 (D.C. Cir. 1990)) (“[T]he public interest in upholding the statutory

scheme created by Congress for addressing personnel-related matters is so strong that federal

employees ‘may not circumvent that structure even if their claim is based . . . on the

Constitution.’”).

In addition, Plaintiff cursorily argues that the CSRA cannot be construed to preclude his

suit because the Act’s administrative scheme will not provide him any relief. See Opp. at 8, 10.

While he never explains why that would be so, even if he is right, that too is immaterial. The

Circuit has made clear time and again that the CSRA provides “the exclusive avenue for suit

even if the plaintiff cannot prevail in a claim under the [Act].” Grosdidier,

; see

also Nyunt,

(same). Quite simply, “what you get under the CSRA is what you

get.” Fornaro v. James,

(D.C. Cir. 2005). The answer is no different for a

constitutional claim, per Elgin, as Mapes “can receive meaningful review within the CSRA

scheme,” including ultimate consideration of his arguments by a federal court (just not this one).

See

.

Finally, Plaintiff throws up a “Hail Mary pass,” Nyunt,

, urging the Court

to exercise jurisdiction under the doctrine of Leedom v. Kyne,

(1958). See Opp. at

10–12. That doctrine “permits, in certain limited circumstances, judicial review of agency action

for alleged statutory violations even when a statute precludes review.” Nyunt,

.

8 Its scope, however, is quite narrow, requiring that (i) “the statutory preclusion of review is

implied rather than express”; (ii) “there is no alternative procedure for review of the statutory

claim”; and (iii) the agency has “plainly act[ed] ‘in excess of its delegated powers and contrary

to a specific prohibition in the’ statute that is ‘clear and mandatory.’”

(quoting Leedom,

).

A careful reader will have noted that Mapes’s constitutional claims are not eligible for the

Leedom loophole, which pertains to actions allegedly in excess of an agency’s statutory

authority. The result is ultimately the same for Plaintiff’s statutory claims as well. He cannot

meet the second doctrinal prong, as the CSRA provides an alternative route of review. Nor can

he meet the third, which requires an “extreme error,”

not a mere “garden-variety error[] of

law or fact.” Griffith v. FLRA,

(D.C. Cir. 1988); see also DCH Reg’l Med.

Ctr. v. Azar,

(D.C. Cir. 2019) (requiring “obvious violation of a clear statutory

command” and suggesting Leedom itself is likely no longer good law); Am. Fed’n of Gov’t

Emps. v. Sec’y of Air Force,

, 639 n.6 (D.C. Cir. 2013) (rejecting applicability of

Leedom exception in CSRA case). Mapes points to no provision in the 2019 NDAA, let alone a

clear statutory command, that renders his removal a violation of that statute; indeed, he

recognizes that the “Act . . . is silent on removal authority.” Opp. at 3; see also id. at 6.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendants’ Motions to Dismiss for lack

of subject-matter jurisdiction. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: September 16, 2020

9