Marcia R. Harrison, Appellant, v. Otis R. Bowen, Secretary, H.h.s, 815 F.2d 1505 (D.C. Cir. 1987)

In April 1983, Marcia Harrison was removed from her position as attorney-advisor in the Office of General Counsel of the Department of Health and Human Services (HHS). In December 1983, she filed a complaint against HHS in district court that, as later amended, alleged that, in removing her, HHS violated agency regulations, deprived her of her job without due process, and discriminated against her on the basis of age (which was 65 years at the time) in violation of the Age Discrimination in Employment Act (ADEA).¹  She later claimed that her removal also violated the Civil Service Reform Act of 1978 (CSRA).² 

In January 1986, the district court granted HHS' motion for partial summary judgment, dismissing Harrison's claims based on the agency regulations and the Due Process clause of the Constitution. Soon thereafter, Harrison voluntarily stipulated to a dismissal with prejudice of her ADEA claim, so that she could immediately appeal the summary judgment order.

We hold that the district court lacked jurisdiction to review Harrison's claims based on the CSRA and the agency regulations implementing it, and that she was not denied due process. We accordingly affirm the judgment below.

In 1981, HHS instituted a system for the formal annual performance appraisal of each of its lawyers, in accordance with Sec. 203(a) of the CSRA, 5 U.S.C. § 4302 (1982), and Office of Personnel Management (OPM) regulations (now found in 5 C.F.R. Part 430 (1986)). Each lawyer received one of five ratings³  for each of a series of "critical" and "non-critical" job elements.⁴  These job element ratings were then combined to obtain an overall performance appraisal for that lawyer.⁵ 

When this appraisal system was instituted, Harrison was a GS-14 attorney-advisor at HHS, having worked there (and at its predecessor, the Department of Health, Education, and Welfare) as a lawyer since 1968. At a performance appraisal progress review meeting in September 1982, Assistant General Counsel Darrel Grinstead informed Harrison that her "legal writing" and "legal advice" (both critical job elements for Harrison) had been unsatisfactory and that, if they did not improve during the next three months while she worked under a new supervisor, he would take appropriate action. Early in 1983, when the three months had run, Harrison received her performance appraisal for the period between October 1, 1981, and December 31, 1982.⁶  She was rated as having only "partially met" the two critical job elements in question and she received an overall appraisal of "minimally satisfactory."

On March 18, 1983, Grinstead further notified Harrison in writing that her new supervisor's "conclusions [concerning her performance] were essentially the same as mine in that she rated you less than fully satisfactory in" legal writing and analysis. Grinstead then stated that he considered her work in 1983 to be "for the most part unsatisfactory," describing several specific assignments to illustrate the point. Grinstead therefore informed Harrison that she would be removed from her position "not sooner than April 17, 1983," i.e., no less than thirty days from the time of the notice, based on his evaluation of her performance from March 18, 1982, to March 18, 1983. The letter also apprised her of her rights to procedural review within HHS, which included the "right to be represented in this matter by an attorney or other representative ... an opportunity to respond orally and in writing to this proposal ... not later than April 1, 1983 [and the right to receive] a final written decision which must be concurred in by ... Samuel Turner, Deputy General Counsel for Program Review."

On April 4, 1983, Harrison responded to Grinstead in writing, through her attorney. In her letter, she (1) objected to his reliance on the one year period ending in March 1983, rather than the fifteen month performance rating period ending December 31, 1982; (2) disputed the accuracy of his description of her post-December 31, 1982 projects; (3) asserted that she was constitutionally entitled to "an opportunity for a hearing at which [she] could defend against [his] charges"; and (4) stated that she believed she was the victim of age discrimination.⁷ 

Grinstead replied in writing on April 8, 1983. In response to her charge that he had used the wrong time period for evaluating her work, Grinstead stated that "the statute makes absolutely clear that I must base my decision only on instances of unacceptable performance during the one year period immediately prior to the date of my notice of the proposed action. 5 U.S.C. Section 4303(c) (2) (A)." He again described examples of her work during 1983 that "indicate unacceptable performance in critical elements 1 (written work) and 2 (legal analysis)." Citing authority, he rejected her contention that she was "entitled to any procedural rights beyond those which [she had] already been granted." Grinstead also denied that his decision was based in any part on her age, but he explained to her the departmental grievance procedure for instituting an age discrimination claim. Finally, he stated that she "will have the opportunity to make an oral reply to Mr. Samuel Turner, Deputy General Counsel, who must concur in my decision before it becomes effective."

Harrison and her attorney met with Turner on April 13, 1983, and he later concurred in Grinstead's decision. Harrison was terminated effective April 17, 1983.

Harrison contends that her removal violated the procedural and substantive protections provided in Chapter 43 of the Civil Service Reform Act, 5 U.S.C. § 4303, and in implementing regulations issued by OPM and HHS. As an initial matter, we must determine whether the district court had jurisdiction over these claims. We look first to the statutory claims.⁸  Since the CSRA does not expressly provide for review of these claims in the district court, Harrison argues that jurisdiction may be based upon either an implied right of action under the CSRA or upon the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

i. The Statutory Scheme

Harrison's jurisdictional arguments, and the reason they must fail, cannot be understood without an overview of the entire CSRA. Title I of the CSRA establishes several broad "merit system principles" for federal personnel management generally. These include, for example, norms against various types of invidious discrimination and against taking reprisals against whistleblowers, and in favor of fair and equitable treatment of employees. One principle is that " [e]mployees should be retained on the basis of the adequacy of their performance ... and employees should be separated who cannot or will not improve their performance to meet required standards." 5 U.S.C. § 2301(b) (6).

The CSRA also establishes specific standards and procedures for implementing these broad principles. Chapter 75 outlines the standards and procedures governing removals, demotions, suspensions, and other job actions initiated in order to "promote the efficiency of the service." This chapter enables the government to deal with employee misconduct. Chapter 43, under which Harrison was removed, provides that agencies are to use a performance appraisal system, like the HHS system outlined above, by which they are annually to evaluate their employees' performance. Chapter 43 also provides the standard and the procedures under which the government may remove or demote employees for unacceptable performance. In addition to providing the government with specific authority, in chapters 43 and 75, to take actions necessary to ensure adequate employee performance and conduct, the CSRA provides employees with specific substantive rights with respect to these actions, as well as protection against various types of unfair treatment (termed "prohibited personnel practices").

The CSRA also establishes the procedural framework through which employees may vindicate these rights. In creating these procedures, the CSRA dramatically altered the pre-existing institutional arrangement:

Title II of the CSRA abolishes the Civil Service Commission and replaces it with two new agencies, the MSPB [Merit Systems Protection Board] and the Office of Personnel Management (OPM). The OPM, headed by a single director responsible to the President, supervises the administration of the civil service. The MSPB, an independent agency consisting of three members, is charged with protecting the merit system principles and adjudicating conflicts between federal workers and their employing agencies. The Act also establishes within the Board an independent [Office of] Special Counsel responsible for investigating and prosecuting prohibited personnel practices, employment discrimination, unlawful political activities, arbitrary withholding of information requested under the Freedom of Information Act, and any other violations of law within the federal civil service.

Frazier v. Merit Systems Protection Board, 672 F.2d 150, 154 (D.C. Cir. 1982) (citations omitted). Title II of the CSRA established a concomitant remedial scheme, which we have described before briefly as follows:

(1) for major personnel actions specified in the statute ("adverse actions"), direct judicial review after extensive prior administrative proceedings; (2) for specified minor personnel actions infected by particularly heinous motivations or disregard of law ("prohibited personnel practices"), review by the Office of Special Counsel, with judicial scrutiny "limited, at most, to insuring compliance with the statutory requirement that the OSC perform an adequate inquiry"; and (3) for the specified minor actions not so infected, and for all other minor personnel actions, review by neither OSC nor the courts.

Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir. 1983) (citation omitted).

The CSRA also divides federal employees into four broad groups: (1) those in the "competitive civil service"; (2) those who are "preference eligible"⁹ ; (3) those in the "excepted" civil service; and (4) "probationers," being those who have one year or less of service. The substantive rights and procedural protections to which any particular employee is entitled often depend upon where he or she falls in this typology. In general, the CSRA provides competitive and preference eligible employees more extensive rights and protections than it provides to excepted and probationary employees. The exact protections--both substantive and procedural--available to each group in any specific situation, however, can only be determined by inspecting the particular provision of the CSRA that either authorizes the government to take the disputed job action or provides the employee with the right that he or she claims was violated.¹⁰ 

ii. The Availability of Judicial Review

With this statutory framework in mind, we turn now to Harrison's Sec. 4303 claims to determine whether the CSRA impliedly provides for their review in the district court. As a government lawyer, Harrison was lawfully "excepted" from the competitive civil service under OPM regulations. 5 C.F.R. Sec. 213.3102(d) (1983). See 5 U.S.C. § 2103; Doe v. United States Dep't of Justice, 753 F.2d 1092, 1107 n. 14 (D.C. Cir. 1985). Being "excepted" diminishes but does not extinguish her rights. For as she argues and as HHS concedes, OPM regulations do not exclude lawyers from the definition of "employee" in Chapter 43, 5 U.S.C. § 4301(2) (G). See 5 C.F.R. Sec. 430.201(c) (1983).¹¹  Thus, although Harrison was not entitled to the full panoply of protections granted by the CSRA to a competitive employee, she was covered by the standard and by the procedures of 5 U.S.C. § 4303(a)-(d)¹²  for removal or demotion of an "employee,"¹³  which she claims HHS violated when removing her.

After they have exhausted the internal agency proceedings required by Sec. 4303(a)-(d), the CSRA provides employees with external avenues of redress. Section 4303(e) grants to competitive service and preference eligible employees the right to appeal demotions and removals to the Merit Systems Protection Board (MSPB) for administrative review. The MSPB is granted broad investigative and remedial powers, see 5 U.S.C. § 1205, and its orders may be appealed to the Court of Appeals for the Federal Circuit.¹⁴ 

Section 4303(e) does not grant excepted employees such recourse to the MSPB. See Schwartz v. Dep't of Transportation, 714 F.2d 1581, 1582 (Fed. Cir. 1983). From this, Harrison concludes that the express terms of the CSRA leave her without any avenue to redress her allegedly wrongful removal from her government job. She is incorrect on this point, however; excepted employees have an alternative means of redress, as we described in Carducci. Section 101(a) of the CSRA, 5 U.S.C. § 2302, describes a series of "prohibited personnel practices," one of which is to

take or fail to take any other personnel action [defined in Sec. 2302(a) (2) (viii) to include "a performance evaluation under chapter 43"] if the taking of or failing to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.

5 U.S.C. § 2302(b) (11). Any employee in a "covered position," which includes excepted as well as competitive service employees and thus appears to cover lawyers, Sec. 2302(a) (2) (B), may submit allegations concerning "prohibited personnel practices" to the Office of Special Counsel (OSC) of the MSPB for investigation. See id. Sec. 1206(a) (1).

Congress modeled the OSC after the Office of General Counsel of the National Labor Relations Board. See Wren v. Merit Systems Protection Board, 681 F.2d 867, 873 (D.C. Cir. 1982). Like the General Counsel, the Special Counsel is a largely autonomous public prosecutor with broad investigative powers. See 5 U.S.C. § 1206(b) (3)-(4). When the OSC

determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken which requires corrective action, [it] shall report the determination together with any findings or recommendations to the [MSPB].... [It] may include in the report recommendations as to what corrective action should be taken.

Id. Sec. 1206(c) (1) (A).¹⁵  Unlike preference eligible and competitive service employees, excepted employees may not appeal directly to the MSPB without the intercession of the OSC.¹⁶  Once OSC has taken up their cause, however, they may themselves appeal adverse orders of the MSPB to the Court of Appeals for the Federal Circuit. See id. Sec. 7703(a) (1), (b) (1).

As a "covered person" alleging a "prohibited personnel practice"--here a removal in violation of the dictates of Sec. 4303--Harrison could have presented her claims to the OSC. Cf. Carducci, 714 F.2d at 175. Though this means of potential redress was available to her, the record gives no indication that Harrison tried to use it before she opted to bring this suit in the district court.

For the district court to have jurisdiction over her Sec. 4303 claims, Harrison must rely either upon an implied right of action under the CSRA or upon the review provisions of the APA. With regard to an implied right of action, " [w]hen Congress enacts new legislation, the question is whether Congress intended to create a private remedy as a supplement to the express enforcement provisions of the statute." Merrill Lynch v. Curran, 456 U.S. 353, 378, 102 S. Ct. 1825, 1839, 72 L. Ed. 2d 182 (1982); see Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). Review is more readily available under the APA, where a court may find that a "statute precludes judicial review," 5 U.S.C. § 701(a) (1), only when " 'clear and convincing evidence' of [such] legislative intent" exists. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681 (1967). Thus, under either test, judicial review of Harrison's statutory claims would be foreclosed upon a showing that such review would frustrate the intent of Congress in enacting Sec. 4303 in particular and the CSRA in general.

It would be most helpful, therefore, to know why an express right of action was not provided. Unfortunately, the legislative history is silent concerning the specific question why excepted employees, who were granted substantive and internal agency procedural rights, were not given an express right to appeal to the MSPB.¹⁷  We therefore look to the overall scheme of the CSRA, as we have discerned it in previous cases, to determine whether district court review would be consistent with the purposes of the law. We look also to our previous decisions addressing whether the OSC remedy expressly granted by Congress should be supplemented by us in order to guarantee the rights that Congress clearly intended employees to have.¹⁸ 

In Borrell v. United States Int'l Communications Agency, 682 F.2d 981, 987-88 (D.C. Cir. 1982), and Cutts v. Fowler, 692 F.2d 138, 139-40 (D.C. Cir. 1982), we held that removed and reassigned probationary employees do not have an implied right of action under the CSRA to enforce the prohibition against reprisals for whistleblowing, but must seek relief through the OSC because such reprisals constitute a "prohibited personnel practice." We found that Congress "established in the Act a detailed enforcement scheme to effect its purpose," and that the OSC's mandate to screen allegations of reprisal reflected Congress's concern "not only to provide an effective and expeditious process for investigating whistleblower allegations, but also to protect against abuse of that process to halt termination based on unsatisfactory job performance." Borrell, 682 F.2d at 987, 988. See Cutts, 692 F.2d at 140. We further noted the dictate in 5 U.S.C. § 7703 that, except for certain discrimination suits, judicial review of agency actions taken under the authority of the CSRA would be exclusively in the court of appeals or the Court of Claims.¹⁹  For these reasons, we concluded broadly that "Congress did not mean to allow the district courts any extensive supervisory jurisdiction over the way in which the CSRA's mandates are enforced." Borrell, 682 F.2d at 988.

In Carducci v. Regan, we held that a non-probationary employee in the competitive service has no right of action under the APA to dispute a reassignment purportedly made for "poor performance." Under the CSRA, a reassignment does not rise to the status of an "adverse action" for which review is available before the MSPB and the Federal Circuit, but at most represents a "prohibited personnel practice." 714 F.2d at 175. In rejecting the employee's contention that he should be able to seek judicial review under the APA, rather than relying solely on the OSC, we referred to the reasoning underlying Borrell and Cutts:

The point of both cases is that the exhaustive remedial scheme of the CSRA would be impermissibly frustrated by permitting, for lesser personnel actions not involving constitutional claims, an access to the courts more immediate and direct than the statute provides with regard to major adverse actions. That principle governs here.

Id. at 174. Thus, the holding in Carducci not only precluded judicial enforcement of certain rights granted to employees in the CSRA; as the court there noted, it also had the effect of depriving employees of a right of judicial review under the APA that they probably had prior to enactment of the CSRA.²⁰ 

We followed Carducci in Gray v. Office of Personnel Management, 771 F.2d 1504, 1507-12 (D.C. Cir. 1985), cert. denied, --- U.S. ----, 106 S. Ct. 1478, 89 L. Ed. 2d 732 (1986), where we held that administrative law judges (ALJs) alleging a "prohibited personnel practice" could not seek direct judicial review of a failure to promote, but must present their claims to the OSC. In reaching that result, we rejected the ALJs' attempt to distinguish Carducci based on the special protections afforded ALJs in the CSRA:

Congress, in outlining the elaborate procedures for review of adverse agency actions in the CSRA, expressly imposed a requirement on the MSPB that it make a determination of good cause (after an opportunity for hearing) before the challenged "adverse action" is taken by an agency against an ALJ. Tellingly, however, no special provision for ALJs was set forth by Congress with respect to review of "prohibited personnel practices." Clearly, had Congress intended to treat ALJs differently as to "prohibited personnel practices," it could have done so explicitly just as it did with respect to "adverse actions." We can not and will not, to achieve what is plainly a laudable policy goal sought by appellants, add a statutory provision which the First Branch did not include.

Id. at 1510-11 (citations and footnote omitted). We followed Carducci more recently in National Treasury Employees Union v. Egger, 783 F.2d 1114 (D.C. Cir. 1986) (employees claiming that job reclassification resulted from a "prohibited personnel practice" must rely on the OSC), and in Barnhart v. Devine, 771 F.2d 1515 (D.C. Cir. 1985) (employees denied job reclassification may not seek to mandamus OPM, but must rely on the OSC).

While our approach to the CSRA may need to differ when a constitutional right is at stake, even in that context the result will often be the same, as the Supreme Court's decision in Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983), illustrates. The question before the Court in Bush was whether, for violations of a federal employee's constitutional rights resulting from a demotion, a judicial damage remedy under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), should be created to supplement the administrative and judicial review procedures available under the civil service laws. For purposes of deciding this question, the Court assumed that the employee's First Amendment rights had been violated, and that "civil service remedies were not as effective as an individual damages remedy and did not fully compensate him for the harm he suffered.... Thus, [it assumed] a federal right has been violated and Congress has provided a less than complete remedy for the wrong." 462 U.S. at 372-73, 103 S. Ct. at 2408-09 (footnotes omitted). The Court therefore faced a situation similar to that presented in the cases discussed above, and it provided the same answer, refusing to create a judicial remedy to supplement those provided by Congress:

The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. That question obviously cannot be answered simply by noting that existing remedies do not provide complete relief for the plaintiff. The policy judgment should be informed by a thorough understanding of the existing regulatory structure and the respective costs and benefits that would result from the addition of another remedy for violation of employees' First Amendment rights.

... In all events, Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service. Not only has Congress developed considerable familiarity with balancing governmental efficiency and the rights of employees, but it also may inform itself through factfinding procedures such as hearings that are not available to the courts.

Id. at 388-89, 103 S. Ct. at 2416-17.²¹ 

In each of these cases the principle to which the courts have adhered is clear. The remedial scheme of the CSRA is to be read as it is written to serve the reformatory purpose Congress clearly had. In an area so peculiarly within the ken and concern of Congress as federal personnel management, reading between the lines to interpolate remedies Congress did not provide can only lead the court into error. We believe that the reasoning in Bush, Borrell, Cutts, Carducci, and Gray applies in Harrison's situation as well. Like the civil service provisions involved in those cases, Sec. 4303 represents a "detailed enforcement scheme," Borrell, 682 F.2d at 987, that provides a range of different rights to a range of differently classified federal employees. At one end of the spectrum are non-probationary employees who are either in the competitive civil service or are preference eligible. The CSRA affords these employees the substantive and internal agency procedural protections in Sec. 4303(a)-(d); the right to seek relief through the OSC; and the right in Sec. 4303(e) to bypass the OSC and proceed directly to the MSPB. At the opposite end of the spectrum are probationary employees, to whom the CSRA grants none of these rights. Falling somewhere between these poles are excepted employees who are neither probationary nor preference eligible. If OPM does not issue regulations under Sec. 4301(2) (G) excluding them from the coverage of Sec. 4303, excepted employees have the same substantive and procedural rights in Sec. 4303(a)-(d) that preference eligible and competitive service employees have. Like those two groups, non-excluded excepted employees may also present their Sec. 4303 claims to the OSC. Congress, however, was apparently unwilling to confer on excepted employees a status equal, across the board, with that of preference eligible and competitive service employees. For unlike them, excepted employees may not appeal their claims directly to the MSPB, and if OPM issues regulations excluding them from Sec. 4303,²²  then they are treated no better than probationary employees.

Just as Carducci found that "the exhaustive remedial scheme of the CSRA would be impermissibly frustrated by permitting" direct judicial review of lesser CSRA claims, when major claims had to be litigated first in the MSPB, 714 F.2d at 174, we believe that the remedial scheme in Sec. 4303 would also be upset if excepted employees were able to seek direct judicial review of Sec. 4303 claims, while preference eligible and competitive service employees, to whom the CSRA generally affords greater protections, must exhaust an appeal before the MSPB prior to seeking judicial review. It is not irrelevant either, that the rights of excepted employees under Sec. 4303 may be eliminated altogether "whenever [OPM] determines that ... is in the interest of good administration." S.Rep. No. 95-969, supra n. 22.²³  Rights so conditionally held are no less rights for the condition, but it would be curious indeed if they were favored with greater engines for enforcement than other rights more firmly vested elsewhere in the same Act.

We therefore conclude that Congress intended to foreclose district court review of Sec. 4303 claims by nonpreference eligible excepted employees. These employees consequently have neither an implied right of action under the CSRA²⁴  nor a right to judicial review under the APA.²⁵  As a result, the district court lacked jurisdiction of Harrison's CSRA claims. We pause to emphasize, however, that excepted employees seeking to enforce their Sec. 4303 rights "are by no means being left remediless." Gray v. Office of Personnel Management, 771 F.2d at 1512. They may present their Sec. 4303 claims to the OSC.

Nothing in the [CSRA] or in the regulations suggests that the Special Counsel is powerless to correct abuses of the civil service system. On the contrary, Congress clearly intended the OSC to be the watchdog of the merit system, a watchdog which should not be ignored by employees anxious to resort to federal court.

Barnhart v. Devine, 771 F.2d at 1527. This comment bears repeating in Harrison's case, since the record does not indicate that she so much as stopped at the OSC before marching off to the district court.

Relying on Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957), and Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959), Harrison argues that the district court may compel HHS to comply with the regulations that both it and OPM promulgated in order to implement Sec. 4303.²⁶  The principle she invokes is not without limits, however, where Congress has erected them. Specifically, an agency cannot create through its implementing regulations a right of review withheld by the underlying statute.²⁷  The same principle applies whether the regulations are procedural or undertake to provide substantive protections. As we have stated before, "no [agency] rules, understandings or circumstances can contravene the intent of the legislature regarding the employment entitlements that can be conferred." Carducci, 714 F.2d at 177.

In the CSRA, Congress specifically provided that claims arising from regulations implementing the CSRA would be handled like claims arising directly under the statute. Paragraph 5 U.S.C. 2302(b) (11) and related provisions make it a "prohibited personnel practice" to remove an employee from a covered position in violation of a "regulation implementing, or directly concerning," inter alia, Chapter 43 of the CSRA.²⁸  As with her claims under 5 U.S.C. § 4303 therefore, Harrison could have brought her claims under the OPM and HHS regulations to the OSC. She cannot seek review in the district court of her claims under those regulations for the same reason that she cannot seek district court review of her CSRA claims: Congress intended employees in her position to pursue such claims through the OSC.

The Service and Vitarelli cases are not to the contrary. Although the Court in each case held that district courts may compel an agency to comply with its own regulations governing employee dismissal, neither of those regulations implemented a statutory scheme that itself precluded the plaintiffs from obtaining judicial review of the rights created both therein and thereunder, or expressly provided an alternative means of redress.²⁹  In fact, in Service and Vitarelli the relevant statutes appear neither to have provided by themselves nor to have precluded the agency from providing substantive or procedural protections to the employees. Thus, district court enforcement of the rights created in the regulations did not conflict with the known intent of Congress. In Harrison's situation, by contrast, her rights under the OPM and HHS regulations arose out of the protections granted by the CSRA; she may not vindicate those rights in the district court when Congress has prescribed another avenue of review for such claims.³⁰ 

Finally, Harrison argues that, in removing her, HHS deprived her of property and liberty interests in violation of constitutional due process. The district court rejected these contentions, finding that her dismissal did not deprive her of any liberty; that she had no property interest in an excepted position; and that, assuming arguendo that Harrison had been deprived of a liberty or of a property interest, the procedural protections afforded her by HHS satisfied the requirements of due process.

It is clear, as the district court concluded, that Harrison suffered no deprivation of liberty by reason of her removal. It is true that " [g]overnment 'stigmatization' of an individual, joined with impairment of 'some more tangible interests such as employment,' can constitute a deprivation of liberty." Carducci, 714 F.2d at 176 n. 5, quoting Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 1160, 47 L. Ed. 2d 405 (1976); see Doe v. United States Dep't of Justice, 753 F.2d at 1111. In Harrison's case, however, there was no publication of the reasons for her dismissal, and thus no stigmatic harm. See Mazaleski v. Treusdell, 562 F.2d 701, 712 (D.C. Cir. 1977). Moreover, even if the reasons had been published, Harrison would not have suffered a deprivation of liberty with respect to either her reputation or to a "foreclosure" of her employment opportunities. She was dismissed for an "unsatisfactory job performance," which fact if publicized does not carry with it the sort of opprobrium sufficient to constitute a deprivation of liberty. As we have before, we must discriminate between a dismissal "for dishonesty, for having committed a serious felony, for manifest racism, for serious mental illness, or for lack of 'intellectual ability, as distinguished from [ ] performance....' " Id. at 714 (citations omitted); see Board of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 2707, 33 L. Ed. 2d 548 (1972); Doe v. United States Dep't of Justice, 753 F.2d at 1104-12; Carducci, 714 F.2d at 176 n. 5. The former characteristics imply an inherent or at least a persistent personal condition, which both the general public and a potential future employer are likely to want to avoid. Inadequate job performance, in contrast, suggests a situational rather than an intrinsic difficulty; as part of one's biography it invites inquiry, not prejudgment.

Whether Harrison lacked a property interest in her position is a more difficult question. Prior to enactment of the CSRA, excepted lawyers were held to have no property interest in their jobs. Fiorentino v. United States, 607 F.2d 963, 965-69, 221 Ct. Cl. 545 (1979), cert. denied, 444 U.S. 1083, 100 S. Ct. 1039, 62 L. Ed. 2d 768 (1980); Mervin v. FTC, 591 F.2d 821, 828 (D.C. Cir. 1978). Although we have not defined its exact contours,³¹  Sec. 4303 does on its face constrain an agency in removing an "employee," including an excepted employee such as Harrison who is not excluded from the coverage of Sec. 4303 by an OPM regulation under Sec. 4301(2) (G).³²  If so, then Harrison had a conditional entitlement to continued employment that, under established precedent, is deemed a property interest within the scope of the due process protection.³³ 

We need not decide this question, however, for as the district court alternatively held, even assuming arguendo that Harrison had a property interest in her position, her removal from that position did not violate the requirements of due process. Grinstead first warned Harrison in September 1982 that, unless her work improved, he would have to take appropriate action, and he assigned her to a new supervisor to oversee her performance after that date. When her new supervisor also found Harrison's work unsatisfactory, Grinstead punctiliously followed the review procedures of Sec. 4303(b) (1). As the district court found, Harrison "received 30 days written notice of her proposed removal, an opportunity to respond orally and in writing, which she exercised by counsel, and a further opportunity personally to present her case to a higher official, who concurred in [her] supervisor's decision." Harrison v. Heckler, Civ. No. 83-3776, slip op. at 8 n. 12 (D.D.C. Jan. 8, 1986). Having received the extensive procedural protections provided by the statute, and having had the right to seek relief through the OSC, Harrison received at least as much process as she was due as a matter of constitutional right. Cf. Foster v. Ripley, 645 F.2d 1142, 1150-51 (D.C. Cir. 1981); contrast Doe v. United States Dep't of Justice, 753 F.2d at 1112-14.

For the reasons stated, the judgment is

Affirmed.