Drevaleva v. United States of America

Background

Tatyana Evgenievna Drevaleva, proceeding without a lawyer, brought this action against the United States of America, the Office of Resolution Management of the Department of Veterans Affairs, and Robert Wilkie, the United States Secretary of Veterans Affairs. The opinion describes this as the second of three civil actions brought against the Veterans Administration by an applicant for employment.

In July 2017, the New Mexico Veterans Affairs Medical Center terminated Drevaleva, a medical instrument technician, for allegedly taking leave without permission. In May 2018, she applied for a position at the Minneapolis Veterans Affairs Medical Center and received a tentative offer. After a background check disclosed the earlier termination, the Minneapolis facility rescinded the offer. A human-resources official found her unsuitable under 5 C.F.R. § 731.202, citing misconduct and negligence in employment.

Drevaleva filed this action in March 2019. On September 20, 2019, the court granted the defendants’ motion to dismiss for lack of subject-matter jurisdiction. The court held that the Civil Service Reform Act of 1978 gave the Merit Systems Protection Board authority to review the suitability determination and therefore precluded judicial review under the Administrative Procedure Act. Drevaleva then moved under Federal Rule of Civil Procedure 60(a) to vacate that judgment.

Analysis

Rule 60(a) allows a court to correct a clerical mistake or a mistake caused by oversight or omission in a judgment, order, or other part of the record. Drevaleva argued that the earlier order was mistaken because she had applied for a position in the excepted service, rather than the competitive service, and therefore the Merit Systems Protection Board lacked jurisdiction.

The court rejected that argument. It explained that the Civil Service Reform Act’s comprehensive remedial system can preclude federal judicial review of certain federal employment actions. The Act and related regulations give the Merit Systems Protection Board appellate jurisdiction over actions based on suitability determinations involving an individual’s character or conduct that may affect the integrity or efficiency of the service.

The court relied on Federal Circuit decisions holding that the Board may review an applicant’s non-selection when it results from a suitability determination under 5 C.F.R. § 731.202. Those decisions also held that the Board may review all aspects of an unsuitability determination, including whether the charged conduct makes the applicant unsuitable for the position. The court stated that neither the Board nor the Federal Circuit had held that an applicant must apply for a covered position to preserve the Board’s jurisdiction over a suitability determination. Because the Minneapolis facility expressly rescinded the offer based on a suitability determination under Section 731.202, the court concluded that the earlier jurisdictional ruling was not mistaken.

Drevaleva also argued that the Minneapolis facility’s decision violated substantive due process and the Fifth Amendment’s Due Process Clause. The court stated that those constitutional claims had never been pleaded and that the motion identified no mistake, newly discovered evidence, or misconduct that would justify reopening the case on those matters.

Finally, the court rejected Drevaleva’s argument that 5 U.S.C. § 702 authorized judicial review under the Administrative Procedure Act. The court explained that the Act does not apply when another statute precludes judicial review or when agency action is committed to agency discretion by law. It concluded that the Civil Service Reform Act precluded Administrative Procedure Act review in this case.

Disposition

Judge William Alsup denied Drevaleva’s motion to vacate. The order also stated that no more motions by Drevaleva would be entertained in the case.