Filiberti v. Merit Systems Protection Bd.

• Decision Date: 26 November 1986
• Docket Number: Nos. 85-7010,85-7354,s. 85-7010
• Citation: 804 F.2d 1504
• Parties: Ernest J. FILIBERTI & Domell Dysthe, Petitioners-Appellants, v. MERIT SYSTEMS PROTECTION BOARD, Respondent-Appellee. Ernest J. FILIBERTI, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1504

804 F.2d 1504

Ernest J. FILIBERTI & Domell Dysthe, Petitioners-Appellants, v. MERIT SYSTEMS PROTECTION BOARD, Respondent-Appellee.

Ernest J. FILIBERTI, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Nos. 85-7010, 85-7354.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 2, 1986.

Decided Nov. 26, 1986.

Robert A. Reutershaun, Asst. Director, Commercial Litigation Branch, Civ. Div., Dept. of Justice, Washington, D.C., for petitioners-appellants.

Calvin M. Morrow, Office of the Gen. Counsel, Merit Systems Protection Bd., Washington, D.C., for respondent-appellee.

Petition for Review of a Decision of the Merit Systems Protection Board.

Before GOODWIN, WALLACE, and ANDERSON, Circuit Judges.

WALLACE, Circuit Judge:

Filiberti and Dysthe appeal from a Merit Systems Protection Board (Board) ruling upholding a determination by an Administrative Law Judge (ALJ) that they improperly influenced an applicant for a position to withdraw his application from consideration. The Board had jurisdiction pursuant to 5 U.S.C. Sec. 1205(a)(1). We have jurisdiction under 5 U.S.C. Sec. 1207(c). We affirm the Board's decision except for the penalty ultimately given to Filiberti, an issue we reverse and remand to the Board for further proceedings.

I

At the time this suit was instituted, Filiberti was the civilian personnel officer (CPO) for the Military Sealift Command Pacific (MSCPAC), a position he had occupied since 1974. MSCPAC is a division of the Department of the Navy, providing ocean transportation for various government agencies. Filiberti had approximately 40 years of experience in personnel for the government and was directly responsible for staffing over 2,600 positions.

Dysthe worked directly under Filiberti as director of the MSCPAC employment division. Dysthe had 28 years experience in personnel administration. Both men worked autonomously, receiving only broad policy supervision from their superiors.

In October 1980, the Office of Personnel Management (OPM) delegated authority to MSCPAC to select applicants for a position classified as a "Supervisory Marine Transportation Specialist." The position, informally known as "port captain," is unique in MSCPAC. Filiberti was chosen to serve on a five member selection panel. Dysthe served as an advisor to the panel.

The position was advertised in November and December 1980. The panel screened a number of applicants, eventually offering the position to Bruno, the highest ranked available candidate. Bruno accepted the offer and began serving as port captain in May of 1981.

In November 1981, OPM personnel conducted a routine audit of the screening panel's selection process. The auditors discovered that the panel had incorrectly undervalued the veteran preference due another applicant, McCracken, resulting in his improper placement lower on the hiring register than the non-veteran Bruno.

Before the audit was finalized, the OPM personnel suggested to Filiberti that he contact McCracken to determine whether he was still interested in the position. Dysthe wrote McCracken, telling him of the error and informing him that the position might still be available. McCracken indicated that he was still interested. On December 9, the OPM sent Filiberti a copy of its final audit report, in which it ordered Filiberti to "make a determination as to the preference status of [McCracken]" and, if necessary, to "regularize the appointment." Because the position was unique, Bruno could only be retained if OPM authorized MSCPAC to "pass over" McCracken, or if McCracken withdrew his application.

Late in December, Filiberti requested authority to pass over McCracken and retain Bruno. In his request, Filiberti admitted that McCracken was basically qualified, but argued that his lack of "sea-going experience" made him less suited to perform the "critical duties" of the position. Evidence at the pass-over hearing, however, indicated that sea-going experience was not required. Dysthe told McCracken that the personnel office was going to request the pass-over, but did not inform him that he had a statutory right to oppose the request.

OPM denied the request, and ordered Filiberti to offer the position to McCracken. Instead of doing so, Filiberti sent McCracken a letter, drafted by Dysthe, informing him that final action was still "pending." This letter, dated February 10, 1982 (the February letter), contained a number of pessimistic statements which, Filiberti and Dysthe contend, were intended to help McCracken make a more informed decision. For example, the letter informed McCracken that his moving expenses would not be paid; that the position required extensive travel at a moment's notice; that McCracken might have his military retirement pay reduced if he accepted the position; that the cost of living in the San Francisco Bay area, the situs of the job, was high; and that a merger with the Army was anticipated, with untold effects on the position. McCracken interpreted the letter as an attempt to influence him not to take the position and inquired in a reply letter whether he would "encounter a hostile atmosphere if [he] should replace the incumbent." Filiberti responded on March 9, disclaiming any inference of negativism, and requesting that McCracken make a "final decision" as soon as possible. Filiberti admitted that neither the March 9 nor the February letter constituted an offer of employment.

McCracken subsequently withdrew his application, stating that he did "not wish to become involved in a Donnebrook [sic] not of [his] making." McCracken also indicated that he wished to be reconsidered for the position if it became available in the future.

Filiberti advised OPM of McCracken's withdrawal, enclosing copies of the correspondence between McCracken and MSCPAC. OPM referred the correspondence to special counsel for investigation. In August of 1983, the special counsel filed charges, alleging that Filiberti and Dysthe had improperly exercised their authority to influence McCracken to withdraw in violation of 5 U.S.C. Sec. 2302(b)(5), 5 C.F.R. Sec. 4.3 (1982), and 5 C.F.R. Sec. 330.601 (1982). After a hearing, on July 20, 1984, the ALJ found that the charges against Filiberti and Dysthe were sustained by a preponderance of the evidence. He recommended that the two men be suspended for 60 days. Filiberti and Dysthe appealed to the Board, which rejected their arguments and adopted the ALJ's decision.

Filiberti subsequently retired on the day his suspension was to begin. The special counsel moved the Board to modify its order to impose an alternative penalty. The Board ordered that a sum equivalent to the amount of salary that Filiberti would have forfeited had he served during his suspension be withheld from his accrued leave pay. Filiberti and Dysthe filed a timely appeal.

II

Our role in reviewing decisions of the Board is very narrow. Under 5 U.S.C. Sec. 7703(c), we can set aside a Board decision only if it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) if the Board failed to follow proper procedures; or (3) if the decision was unsupported by substantial evidence. Similarly, while we review interpretations of law de novo, we afford great deference to an agency's interpretations of the statutes and regulations it is charged with administering. United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977); Debose v. United States Department of Agriculture, 700 F.2d 1262, 1266 (9th Cir.1983).

A.

Filiberti and Dysthe attack the sufficiency of the complaint filed against them. In the first count of his complaint against Filiberti and Dysthe, the special counsel charged them with "exercising their authority to influence Francis C. McCracken ... to withdraw from competition for the purpose of securing the unlawful appointment of George I. Bruno, Jr....." (emphasis added) This action, the complaint alleged, violated 5 U.S.C. Sec. 2302(b)(5):

Any employee who has authority to take ... any personnel action, shall not ...

(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment....

Since the ALJ found that Bruno was already an employee at the time of the improper acts, Filiberti and Dysthe argue that they could not be and were not found guilty of securing the appointment of Bruno. Instead, they argue that the evidence shows only that they acted to maintain Bruno's employment. This variance, coupled with a failure to amend the complaint, they argue, justifies reversing the Board's decision.

Filiberti and Dysthe's argument ignores the well established rule that administrative pleadings are to be liberally construed. Donovan v. Royal Logging Co., 645 F.2d 822, 826 (9th Cir.1981). They would have us interpret the word "secure" as being synonymous with "acquire" or "procure." As the Board points out, "secure" can as easily be construed to mean "make safe," "maintain" or "put beyond hazard of losing." In the context of the case before us, the Board's interpretation of the word secure is the more appropriate. Bruno was not a permanent employee in the normal sense of the term. Even though he had assumed the position as port captain, his continued right to hold that position was conditioned on McCracken withdrawing his application. If McCracken did not withdraw his application, Bruno had no claim to the office. Bruno had neither the status nor the tenure of a regular employee. Given this uncertain situation, it is clear that Bruno's position had not yet been "secured" with the definitiveness that the word normally denotes. Bruno's situation was more analogous to that of an "applicant" than to that of an "employee."

Even if there was a variance between the complaint and proof, Filiberti and Dysthe have not shown that they did not have notice of the nature of the charges...