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Federal Employees Must Bring Employment Lawsuits Under The CRSA
(December 2009) By Lydia S. Hu, Esquire
For more information, contact Paul Farquharson.
Kyaw Zaw Nyunt v. Chairman, Broadcasting Board of Goverenors,
No. 08-5127 (D. D.C. December 18, 2009)
The Honorable Judge Kavanaugh for the United States Court of
Appeals for the District of Columbia Circuit dismissed employment discrimination
claims when the Plaintiff, Kyaw Zaw Nyunt, brought them under the Administrative
Procedure Act ("APA"). Nyunt, a United States citizen, worked for many years as
an international radio broadcaster for the Broadcasting Board of Governors
("BBG"), a federal agency. In March 2003, Nyunt applied for a promotion and the
BBG selected a non-United States citizen over him, prompting this lawsuit.
BBG relied on its internal hiring policy and title 22 U.S.C.
§ 1474(1) that provides the BBG with the authority to hire non-citizens, unlike
most federal agencies. The statute limits the hiring of non-citizens only to
situations where "suitably qualified United States citizens are not available."
The BBG has interpreted "suitably qualified" to mean "equally or better
qualified." After being passed over for the promotion, Nyunt filed
anti-discrimination claims under the APA alleging misinterpretation and
violation of title 22 U.S.C. § 1474(1).
There is much precedent requiring federal employees to
pursue employment and personal challenges through procedures established by the
Civil Service Reform Act of 1978 ("CRSA"), rather than the APA. The CRSA is
comprehensive and regulates the availability of administrative and judicial
review. It is also the exclusive remedial measure available for federal
employment claims and personnel complaints. When Congress intended to allow
additional remedies outside of the CRSA, it did so expressly. For example,
federal employees may bring suit under Title VII.
Therefore, the Court could not address the merits of the
case and dismissed the action.
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