Kyaw Zaw Nyunt v. Chairman , Broadcasting Board of Governors

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2009 Decided December 18, 2009
No. 08-5127
KYAW ZAW NYUNT ,
APPELLANT
v.
CHAIRMAN , BROADCASTING BOARD OF GOVERNORS ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01152)
Timothy B. Shea argued the cause and filed the briefs for
appellant.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief was R. Craig Lawrence,
Assistant U.S. Attorney.
Before: GARLAND and KAVANAUGH , Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge
KAVANAUGH .
KAVANAUGH , Circuit Judge: Unlike many U.S.
Government agencies, the Broadcasting Board of Governors
is authorized to hire non-U.S.-citizens. But there is a catch:
The BBG may do so only when no “suitably qualified” U.S.
citizen is available to fill the job in question. 22 U.S.C. §
1474(1).
Nyunt is a U.S. citizen who worked at the BBG, applied
for a promotion, and lost out to a non-U.S.-citizen. He sued
the BBG, claiming he was “suitably qualified” and that the
BBG therefore contravened its statutory mandate when it
promoted a non-U.S.-citizen over him. The problem is that
Nyunt brought this claim in federal district court under the
Administrative Procedure Act. This Court has repeatedly
held that federal employees may not bring employment and
personnel suits of this kind under the APA, but instead must
pursue such claims through the elaborate administrative and
judicial review system set up by the Civil Service Reform Act
of 1978. We therefore affirm the District Court’s dismissal of
Nyunt’s complaint.
I
Kyaw Zaw Nyunt, a U.S. citizen, worked for many years
as an international radio broadcaster in the Burmese service of
Voice of America. The Voice of America is run by the
Broadcasting Board of Governors, a U.S. Government
agency. In March 2003, Nyunt applied for a promotion to a
more senior international broadcaster position. The BBG
selected a non-U.S.-citizen over Nyunt and other applicants.

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In deciding to hire a non-U.S.-citizen, the BBG relied on
its internal hiring policy and the relevant portion of its
authorizing statute, 22 U.S.C. § 1474(1). Section 1474(1)
provides that the BBG – unlike most federal agencies – may
hire non-U.S.-citizens. The statute grants that authority,
however, only “when suitably qualified United States citizens
are not available.”
The BBG has interpreted the phrase “suitably qualified”
to mean “equally or better qualified.” Guidelines for
Selection, Promotion, and Employment of Non-U.S. Citizens
in the Presence of Qualified U.S. Citizen Competitors, App. at
30. In Nyunt’s view, the BBG’s interpretation rewrites and
effectively eviscerates Congress’s mandate. Nyunt contends,
in short, the BBG cannot hire or promote a non-U.S.-citizen
over a U.S. citizen who is qualified for the position.
After the BBG promoted a non-U.S.-citizen over him,
Nyunt sued under several anti-discrimination statutes. He
also raised claims under the Administrative Procedure Act
regarding the BBG’s alleged misinterpretation and violation
of 22 U.S.C. § 1474(1). See 5 U.S.C. § 706(2)(A), (C).
The District Court dismissed Nyunt’s complaint. A prior
panel of this Court summarily affirmed the District Court’s
dismissal of all but the present APA claims. We now
conclude that our precedents squarely foreclose Nyunt’s APA
claims, and we therefore affirm the District Court’s dismissal
of those as well.
II
At the outset, the BBG contends that Nyunt lacks
standing. We disagree. Nyunt alleges that he is a U.S. citizen
who applied for and was unlawfully denied a promotion.

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That alleged injury is fairly traceable to the BBG’s hiring
policy and decision. And it likely would be redressed by a
favorable disposition, which would help establish Nyunt’s
right to the job in question or to front pay and benefits. See
Compl. ¶¶ C, G (requested relief includes an order “for front
pay and benefits, if the BBG does not or will not employ
plaintiff,” and “[s]uch other legal and equitable relief as may
be just and proper”).
We turn, therefore, to analysis of Nyunt’s Administrative
Procedure Act claim. Nyunt’s choice to bring his claim under
the APA is problematic because a long line of cases requires
that federal employees pursue employment and personnel
challenges of this kind through the procedures set up by the
Civil Service Reform Act of 1978, rather than under the APA.
As the Supreme Court stated in United States v. Fausto,
the CSRA is comprehensive: It regulates virtually every
aspect of federal employment and “prescribes in great detail
the protections and remedies” applicable to adverse personnel
actions, “including the availability of administrative and
judicial review.” 484 U.S. 439, 443 (1988). The CSRA is
also exclusive: It constitutes the remedial regime for federal
employment and personnel complaints. See Grosdidier v.
Chairman, Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C.
Cir. 2009); Filebark v. U.S. Dep’t of Transp., 555 F.3d 1009,
1010 (D.C. Cir. 2009); Fornaro v. James, 416 F.3d 63, 66-67
(D.C. Cir. 2005); Graham v. Ashcroft, 358 F.3d 931, 933-35
(D.C. Cir. 2004); Carducci v. Regan, 714 F.2d 171, 172 (D.C.
Cir. 1983); see also Fausto, 484 U.S. at 444; Bush v. Lucas,
462 U.S. 367, 388-90 (1983); 5 U.S.C. §§ 701(a)(1), 702.1
1 Many other courts of appeals have ruled the same way. See
Tiltti v. Weise, 155 F.3d 596, 600 (2d Cir. 1998); Pinar v. Dole, 747
F.2d 899, 912-13 (4th Cir. 1984); Broadway v. Block, 694 F.2d

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When Congress wants to preserve remedies outside the
CSRA, it does so expressly; for example, the CSRA maintains
federal employees’ rights to bring suit under Title VII and
other anti-discrimination laws. 5 U.S.C. § 2302(d); see
Grosdidier, 560 F.3d at 497 n.2.
Applying those principles in Grosdidier, we held that the
CSRA precluded an APA claim that, like Nyunt’s, targeted
the BBG’s implementation of § 1474(1). We stated that,
“except 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.” 560 F.3d at 495-96. “Federal employees may
not circumvent the [CSRA]’s requirements and limitations by
resorting to the catchall APA to challenge agency
employment actions.” Id. at 497. That principle applies to a
“systemwide challenge” to an agency policy interpreting a
statute just as it does to the implementation of such a policy in
a particular case. Fornaro, 416 F.3d at 67-69. And it applies
even if the CSRA scheme ultimately would provide no relief:
As we have repeatedly said, “what you get under the CSRA is
what you get.” Filebark, 555 F.3d at 1010 (internal quotation
marks omitted). In sum, the settled precedents of this Court
bar Nyunt’s APA claim; any claim targeting the BBG’s
interpretation or application of § 1474(1) must proceed
through the CSRA process.
Nyunt argues that he cannot obtain relief for this kind of
§ 1474-related violation in the CSRA process. He contends
that this Court therefore retains the power to consider the
979, 986 (5th Cir. 1982); Ryon v. O’Neill, 894 F.2d 199, 202-04
(6th Cir. 1990); Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984);
Weatherford v. Dole, 763 F.2d 392, 393-94 (10th Cir. 1985). But
see Worthington v. United States, 168 F.3d 24 (Fed. Cir. 1999).

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BBG’s allegedly illegal hiring policy under the precedent of
Leedom v. Kyne, 358 U.S. 184 (1958). That decision permits,
in certain limited circumstances, judicial review of agency
action for alleged statutory violations even when a statute
precludes review. The Leedom v. Kyne exception applies,
however, only where (i) the statutory preclusion of review is
implied rather than express, see Bd. of Governors of the Fed.
Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 44 (1991); see
also McBryde v. Comm. to Review Circuit Council Conduct &
Disability Orders of the Judicial Conference of the U.S., 264
F.3d 52, 63-64 (D.C. Cir. 2001); (ii) there is no alternative
procedure for review of the statutory claim; and (iii) the
agency plainly acts “in excess of its delegated powers and
contrary to a specific prohibition in the” statute that is “clear
and mandatory,” Leedom, 358 U.S. at 188; see also Nat’l Air
Traffic Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses
Panel, 437 F.3d 1256, 1263-64 (D.C. Cir. 2006). Even
assuming arguendo that Nyunt’s claim can meet the first and
second requirements, it cannot meet the third, which requires
that the agency error be “so extreme that one may view it as
jurisdictional or nearly so.” Griffith v. FLRA, 842 F.2d 487,
493 (D.C. Cir. 1988). Given that very stringent standard, a
Leedom v. Kyne claim is essentially a Hail Mary pass – and in
court as in football, the attempt rarely succeeds. So it is here:
Even if the BBG has misinterpreted or otherwise evaded its
statutory obligation to hire “suitably qualified” U.S. citizens,
its action is not the kind of “extreme” error that would justify
reliance on the Leedom v. Kyne exception.
We affirm the judgment of the District Court.
So ordered.

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