McClelland v. Andrus, 76-1654
| Citation | 606 F.2d 1278,196 U.S.App.D.C. 371 |
| Decision Date | 17 August 1979 |
| Docket Number | No. 76-1654,76-1654 |
| Parties | B. Riley McCLELLAND, Appellant, v. Cecil D. ANDRUS, Secretary of the Interior, et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
James R. Rosa, Washington, D. C., for appellant. Raymond J. Malloy, Washington, D. C., was on the brief for appellant.
Mary C. Lawton, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U.S. Atty. at the time the brief was filed, and John A. Terry and Eric B. Marcy, Asst. U.S. Attys., Washington, D. C., were on the brief, for appellees.
Before WRIGHT, Chief Judge, and SWYGERT * and ROBB, Circuit Judges.
Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.
After exhausting his administrative remedies appellant, a former employee of the National Park Service, sued in the District Court for restoration of his job with retroactive back pay and other benefits. He challenged on the merits the action of the Civil Service Commission's Appeals Review Board (ARB) upholding the decision of the National Park Service to remove him from the Service. He also challenged appellees' refusal to provide him with a copy of a report on the personnel management practices of appellant's supervisor at Glacier National Park for use in the administrative proceedings resulting in his discharge. The study, which resulted in the report, was recommended by the Department of Interior Administrative Law Judge (ALJ) who first heard his case. The District Court upheld appellees' refusal to produce the report and granted summary judgment for appellees on the merits.
The facts in this case are substantially undisputed. 1 From 1956 to 1973 B. Riley McClelland, appellant, a professional ecologist, 2 was in the continuous employ of the Department of Interior, National Park Service. Prior to 1956 he served for three summers with the Park Service on a seasonal basis. In the course of his 17 years appellant served in three parks Carlsbad Caverns, Yellowstone National Park, and Glacier National Park and moved his duty station 21 times. These moves were not made at appellant's request or for his convenience. Appellant's record with the Park Service was unblemished: there was not a single instance of a disciplinary action, and his performance ratings ranged from satisfactory to excellent.
In May 1965 appellant began serving in Glacier National Park as a park ranger, GS-9. 3 Shortly thereafter the Park Service determined that it needed to create positions for carrying out environmental programs within the natural areas. Accordingly, it promulgated a policy of offering long-term training to qualified employees for these new positions. 4 The training entailed attending a university for one year, at Government expense, to obtain a Master of Science degree in Ecology. Appellant applied and was accepted for a slot in this program. 5 An official of the Park Service orally assured appellant that when the training was completed appellant would serve in a wilderness setting as a resource management specialist. Appellant was also assured by this official that the assignment would be on a long-term basis so that he could use the expertise gained in the course of the training program.
In fulfillment of the training program appellant, at Government expense, attended Colorado State University from September 1967 until September 1968, earning a Master of Science degree in Ecology. At the conclusion of the program in September 1968 appellant was assigned to Glacier National Park as a resource management specialist, GS-11. 6
In July 1969 William Briggle became the superintendent of Glacier National Park. There is evidence in the record indicating that Briggle's conduct in managing Glacier was erratic. At his request an unusual number of employees were transferred out of Glacier. Concerning the relationship between Briggle and appellant, there was a philosophical difference between the two: Briggle was concerned with overall management of the Park whereas appellant was concerned with preservation of resources. But preservation was appellant's job and he did it well.
On September 19, 1971 Briggle informed appellant that he was abolishing the position of resource management specialist, redistributing appellant's duties, and reassigning him. Briggle told appellant that this action had nothing to do with appellant's job performance and was taken only because the performance of the persons serving as resource management specialist was "difficult to evaluate." 7 When appellant asked Briggle what he meant by "difficult to evaluate," Briggle failed to respond. 8 Appellant's supervisors and other management officials testified that appellant's job performance was good, 9 that they had no trouble evaluating his work, 10 and that they had never recommended that the resource management specialist position be abolished. 11 In fact, they testified that there was a continuing need for the resource management specialist position at Glacier and there was no other Glacier employee capable of providing the equivalent service. 12 Evidence in the record further indicates that because of Briggle's abolishment of the position ongoing studies and programs undertaken by appellant were aborted. 13 Briggle claimed that this work was farmed out to other employees. 14 But according to the overwhelming weight of the evidence in the record such was not the case; contrariwise, from the time appellant's position was abolished until the resource management position was reestablished in February 1975, the work of the resource management specialist was not performed. 15 Further, management studies issued after Briggle abolished appellant's position of resource management specialist indicated a need for that position. 16
At the September 19 meeting Briggle offered appellant two options: a transfer out of Glacier or a reassignment within Glacier to the position of park ranger, GS-11. 17 Appellant accepted the park ranger position. 18 However, upon performing the duties of the park ranger position appellant discovered that it was the same position he occupied prior to the graduate training. It did not embrace any of the functions for which he was specially trained. 19 He therefore sent a memorandum dated November 5, 1971 to Briggle requesting consideration for a wilderness ranger position and indicating a willingness to take a cut to GS-9 to get back into resource and wilderness management. The request was denied.
While appellant was unsuccessfully attempting to transfer from one position to another within Glacier, Briggle was attempting to transfer appellant out of Glacier altogether. On October 29, 1971 Briggle telephoned the Midwest Regional Office and made a "special placement request" for appellant. A "special placement request" is a request for placement outside the park area to which the employee is assigned. As a result of Briggle's request, the Director of the Midwest Regional Office, J. Leonard Volz, sent a memorandum dated November 2, 1971 to the National Park Service requesting that appellant be given special placement consideration.
It was not until February 25, 1972 that appellant was advised of these special requests. He had never requested a transfer out of Glacier. In fact, in January 1971 he executed a Form 10-183, entitled "Career Plans and Skills Summary," 20 in which he expressed his desire to remain in the resource management position in the Rocky Mountain area; in February 1972 he executed another Form 10-183 in which he stated that he was uninterested in a transfer to another area. On an endorsement to this second form his immediate supervisor stated that it was in the Park Service's interest to retain appellant in his position for at least a year. However, Briggle, in his endorsement, stated that appellant lacked perspective and "(i)f he is ever to gain perspective and thus be of value to the Service, reassignment at this time is certainly in order." 21
Appellant received and declined an offer of reassignment to Big Horn Canyon. By a memorandum dated March 7, 1972 Regional Director Volz accepted appellant's declination for the stated reason that a subsequent need for his talents and educational background arose in the Midwest Regional Office, Omaha, Nebraska, in connection with coordination and preparation of environmental impact statements. Interestingly, despite the alleged need in Omaha, 22 that position has never been filled. 23
By a memorandum dated March 15, 1972 appellant asked Volz to reconsider the reassignment; he listed personal and medical problems which he stated would preclude his moving for the next six to twelve months. Volz's response was to make appellant's reassignment effective April 2, 1972 and allow him to remain in Glacier until June. Volz ignored appellant's alleged medical problems. 24
In April 1972 appellant filed a grievance over the transfer order. 25 A hearing was conducted on August 14-15, 1972 before a Department of Interior ALJ. The ALJ recommended that the reassignment be affirmed. 26 He also recommended that the Park Service conduct an inquiry into Briggle's management practices and procedures. 27 On May 21, 1973 the Office of the Secretary of Interior issued a decision adopting the ALJ's recommendation. 28
On May 24, 1973 Volz ordered appellant to report to duty on June 11, 1973. 29 By a memorandum dated June 6, 1973 appellant indicated that he would not report to Omaha. He also expressed his willingness to accept a demotion to a GS-7 if he could remain at Glacier. 30 Upon appellant's refusal to report to Omaha, the Regional Director issued his Decision to Remove. 31 Shortly after appellant's removal the resource management specialist position at Glacier was reestablished. 32
On August 23, 1973 appellant appealed his removal to the Civil Service Commission. A hearing...
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