Crispin v. Department of Commerce

• Decision Date: 19 April 1984
• Docket Number: No. 83-1368,83-1368
• Citation: 732 F.2d 919
• Parties: Ann CRISPIN, Petitioner, v. DEPARTMENT OF COMMERCE, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 919

732 F.2d 919

Ann CRISPIN, Petitioner, v. DEPARTMENT OF COMMERCE, Respondent.

Appeal No. 83-1368.

United States Court of Appeals,

Federal Circuit.

April 19, 1984.

Phillip R. Kete, Washington, D.C., for petitioner. Robin M. Gerber, Washington, D.C., was on the brief.

Sandra P. Spooner, Washington, D.C., for respondent. With her on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Washington, D.C., and Beacham O. Brooker, Jr., Bethesda, Md.; Jon Pearson, Dept. of Commerce, Washington, D.C., of counsel.

Before MARKEY, Chief Judge, NICHOLS, Senior Circuit Judge, and KASHIWA, Circuit Judge.

KASHIWA, Circuit Judge.

This is an appeal from a decision of the Merit Systems Protection Board (Board) affirming petitioner's reassignment pursuant to an agency-wide reduction in force (RIF). Petitioner appeals the decision on the grounds that she was denied a hearing on the question of whether her competitive level was properly established. Because we hold that petitioner was entitled to a hearing on this issue, we vacate that portion of the Board's decision determining that petitioner's competitive level was properly established and remand the case to the Board for a full hearing on the merits of this issue.

Background

On March 21, 1982, petitioner, a Bureau of Census employee, was downgraded from a Grade 11 Training Specialist to a Grade 4 Clerk Typist, pursuant to an agency-wide reduction in force (RIF) affecting hundreds of employees. A large number of the affected employees appealed the RIF through their union. Most of the appeals, including petitioner's, were consolidated and assigned to one presiding official. There then ensued the following series of orders, motions, and responses thereto.

On May 17, 1982, the presiding official issued a first prehearing conference order requesting each employee to submit a statement of the issues presented. Petitioner complied with this order, filling out the provided form and raising the competitive level issue by listing other employees doing the same job as she.

On May 21, 1982, the agency served requests for answers to interrogatories requesting the employees to specify their general allegation of errors. On this date the employees also filed a motion to compel the production of all position descriptions, which motion was subsequently denied. On June 9, 1982, the presiding official issued an order directing the employees to specify their general allegations of error and on June 11, 1982, the agency again filed requests for answers to interrogatories.

On June 21, 1982, the presiding official issued a final order of issue clarification dividing the various issues into two classes: issues of law to be briefed by the parties on or before July 16, 1982, and issues of fact to be set for a hearing. The question of whether competitive levels were properly established was expressly placed in the category of issues of law.

On June 29, 1982, the agency filed a motion for dismissal of certain appeals for failure to comply with portions of the June 21, 1982 order. Petitioner was not named in that motion and none of the alleged violations related to the competitive level issue. On July 2, 1982, the agency filed a further motion for dismissal. Again, the competitive level issue was not part of that motion. ¹ On July 9, 1982, the presiding official issued an order granting the agency's motion to dismiss in part.

On July 16, 1982, in compliance with the June 21, 1982 order, the parties submitted briefs on the competitive level issue. Three days later, petitioner submitted a request for a hearing on this issue and the agency then submitted a response thereto.

On June 25, 1982, the presiding official held a mass hearing on the legitimacy of the RIF under 5 C.F.R. Sec. 351.201(a) and on July 16, 1982, she held a hearing on whether petitioner was qualified for certain positions. Without explanation, the presiding Review of the record and the comprehensive justifications submitted by the agency for establishment of competitive levels reveals no error. Moreover, I note that appellant has failed to raise a specific error in this appeal. Thus, I find that the agency has shown by a preponderance of the evidence that it properly established appellant's competitive level in accordance with 5 C.F.R. Sec. 351.403(a). [Citations omitted.]

official denied petitioner's request for a hearing on the competitive level issue. However, in her decision affirming petitioner's reassignment, the presiding official reached the merits of this issue concluding that petitioner's competitive level was properly established:

This appeal followed, the only issue being whether petitioner was entitled to a hearing on the competitive level issue.

I

This court will reverse a decision of the Board if it is not supported by substantial evidence. 5 U.S.C. Sec. 7703(c)(3). Petitioner argues that because she was denied a hearing on the competitive level issue and therefore not permitted to introduce evidence at a hearing, by definition the presiding official's decision cannot be supported by substantial evidence. The government responds by advancing a burden of proof argument which rests on the "evidence" submitted in the briefs of the parties pursuant to the presiding official's June 21, 1982 order.

The government correctly states that the Board will sustain an agency action if the decision is supported by a preponderance of the evidence. 5 U.S.C. Sec. 7701(c)(1). Citing Hishikawa v. Department of Agriculture, 6 MSPB 428 (1981), the government then goes on to state that where an employee presents no evidence to the contrary, the agency may meet its burden by merely asserting that the competitive levels are properly established. The government then cites "evidence" from the briefs submitted by the parties to support its argument that the agency met its burden of proof under this theory.

As the government's argument rests on the "evidence" submitted in the briefs of the parties, it is necessary to review the events which led up to the presiding official's decision. First, it is to be noted that the presiding official requested that the parties brief the competitive level issue as a "legal" one, although it is clear that the issue of whether a particular competitive level was properly established involves a factual inquiry. ² The parties complied with the presiding official's order and three days after submitting her brief, petitioner requested a hearing on this issue. The presiding official denied petitioner's request without stating her reasons for doing so. In her opinion, however, the presiding official decided the merits of this issue apparently relying on the briefs presented. Although the presiding official did not specifically refer to the briefs by name, she did discuss the contentions of the parties and it is this "evidence" upon which the government relies.

In her opinion the presiding official first discussed petitioner's arguments which included: (1) that all positions in the same grade and series must be placed in the same competitive level; (2) that the agency misidentified a large number of employees Because the presiding official never stated why she denied petitioner a hearing, it is necessary for this court to make certain assumptions about what actually happened in this case. Accepting the government's argument in the most favorable light would mean that the presiding official granted the government summary judgment on the briefs presented. Although she never stated that she was doing so, this is in essence what the presiding official did in this case. The presiding official stated that the parties were to brief the competitive level issue as a legal one and she based her decision on the arguments presented in the parties' briefs.

as supervisors and therefore placed them in the wrong competitive levels; and (3) that the agency failed to use particular performance appraisal plans in establishing competitive levels. The presiding official then discussed the agency's contentions, stated that petitioner only raised general allegations of error, and concluded that the agency had established by a preponderance of the evidence that petitioner's competitive level was properly established.

However, the Board does not have available to it a summary judgment proceeding. 5 U.S.C. Sec. 7701(a)(1), which covers appeals to the MSPB from agency actions, provides that:

An appellant shall have the right to a hearing for which a transcript will be kept.

The conference committee report which accompanied the Civil Service Reform Act of 1978 makes clear that this provision was meant to bar summary judgment proceedings:

APPEALS TO THE MERIT SYSTEMS PROTECTION BOARD

RIGHT TO A HEARING

The Senate bill provides that an employee is entitled to an evidentiary hearing before the Merit Systems Protection Board unless a motion for summary decision is granted. A motion for summary decision shall be granted if the presiding officer decides that there are no genuine and material issues of fact in dispute. The presiding officer may provide for discovery and oral representation of views, at the request of either party, in connection with a summary decision.

The House amendment contains no provision for summary decision. It provides that an employee has a right to a hearing before the MSPB for which a transcript will be kept and the right to be represented by an attorney or other representative.

The conference...