Hayes v. Department of Health and Human Services
| Decision Date | 17 September 1987 |
| Docket Number | 87-3028 and 87-3032,Nos. 86-893,86-942,86-928,s. 86-893 |
| Citation | 829 F.2d 1092 |
| Parties | Beverly HAYES, et al., Petitioners, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
Phillip R. Kete, Takoma Park, Md., for petitioners.
Linda Maramba, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for respondent. With her on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Mary Mitchelson, Asst. Director. Also on the brief was Dan Edelman, Dept. of Health and Human Services, of counsel.
Before MARKEY, Chief Judge, FRIEDMAN, Circuit Judge, and BENNETT, Senior Circuit Judge.
These are consolidated appeals that challenge on various grounds decisions of the Merit Systems Protection Board (Board), (1) holding that 15 of the petitioners properly had been denied positions at the newly created Office of Community Services upon the loss of their positions at the Community Services Administration in a reduction in force resulting from the abolition of the latter agency, and (2) limiting the back pay of the sixteenth petitioner, who received a position at the Office of Community Services approximately nine months after that agency was created. We affirm the Board's decisions sustaining the separation of petitioners Boone, Brown, Cabey, Clark, Hayes and Myers, and limiting the back pay of petitioner MacKenzie. We vacate the decisions sustaining the separation of petitioners Allen, Edwards, Johnson, Price, Saunders, Smith, Thomas, Walston and Webb, and remand their cases to the Board for further proceedings.
A. The background facts involved in this appeal are detailed in this court's decision in Certain Former CSA Employees v. Department of Health and Human Servs., 762 F.2d 978 (Fed.Cir.1985) (Former CSA Employees ), and summarized again in Menoken v. Department of Health and Human Servs., 784 F.2d 365 (Fed.Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 273, 93 L.Ed.2d 249 (1986). Briefly, the facts are as follows:
For many years, the Community Services Administration administered federal anti-poverty program grants to State community action agencies. Effective September 30, 1981, the Community Services Administration was abolished as an independent agency, and a new agency, the Office of Community Services, was established in the Department of Health and Human Services (Department). See Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 357. In Former CSA Employees, we upheld the Board's findings that a number of the functions of the Community Services Administration had been transferred At the time it was abolished, the Community Services Administration had more than 900 employees. The new agency, however, initially established only 165 positions to perform the functions that had been transferred from the Community Services Administration. Because the Community Services Administration had not maintained adequate personnel records, the government "could not reconstruct exact reduction-in-force priority registers for the Community Services Administration employees or determine the exact priorities among those employees for the new positions in the Office of Community Services." Id. at 981. Therefore, the Department created preference order master lists to determine which of the 900 former employees should be offered the 165 positions in the new agency.
to the new agency, and we recognized that "all the Community Services Administration employees were 'identified' with" the transferred functions. 762 F.2d at 983.
In the consolidated appeal of former Community Services Administration employees who had not been selected for positions in the new agency under this procedure, the Board held that although the Department had not followed traditional reduction-inforce procedures, it was not necessary to invalidate the entire reduction in force. According to the Board:
Where, as in this case, the ultimate question for resolution relates to the retention of substantially fewer employees than were necessary prior to the transfer, the agency's noncompliance with certain provisions of part 351 does not warrant unconditional reversal of the entire reduction in force since many of those employees would have been subjected to separation from the federal service in any event.
Certain Former CSA Employees v. Department of Health and Human Servs., 21 M.S.P.R. 379, 393 (1984), aff'd, 762 F.2d 978 (Fed.Cir.1985) (consolidated appeal).
Following the consolidated appeal, the Board remanded the individual appeals to its regional offices for proceedings to determine whether any individual petitioner was entitled to retention. The Board ordered that, in these remand proceedings, each former Community Services Administration employee should show that he was identified with a function that was transferred from the Community Services Administration to the new agency and then should "identify a position or positions for which he was qualified that have been assigned to other employees with less retention standing or positions occupied by employees who had no initial entitlement to transfer." Id. at 393-94. In affirming the Board's decision, we concluded that "the Board has devised an appropriate procedure to determine whether any of the employees of the former agency who were not employed at the latter agency should have been so employed because of their retention priorities." Former CSA Employees, 762 F.2d at 985.
We pointed out that on remand the burden rested initially on the employee to show that there was a position at the new agency that had been assigned to another Community Services Administration employee with less retention standing or occupied by an employee with no initial entitlement to transfer. Id. at 984. If an employee made such a showing, the burden then would shift to the government "to refute that showing." Id. If the government could not do so, the employee would be entitled to the position claimed. We stated that "the only issue on the remand [would] be the relative retention priorities of the employee claiming the particular position and the employee appointed to it." Id.
B. All of the petitioners in the present case are former Community Services Administration employees. Fifteen of them make a variety of arguments to support their contention that the Board erroneously denied them positions at the new agency. Ms. MacKenzie, the only one of the petitioners who was awarded a position at the new agency, claims that the Board erroneously denied her the full amount of back pay to which she was entitled. Because these contentions involve different facts
and legal issues, we will deal with each of them separately.
A. Positions Outside of the New Agency. Petitioners Cabey, Edwards, Johnson, Myers and Webb claim that they were entitled to positions with federal agencies other than the new agency. They assert that the function they performed at the Community Services Administration was transferred to an agency other than the new agency, and that they were entitled to "transfer with their function."
To prevail on remand before the Board, a former Community Services Administration employee was required to identify a "position in the new agency" that was occupied by a person with lower retention standing or no initial entitlement to transfer. Former CSA Employees, 762 F.2d at 984. Thus, as we held in Menoken, a former Administration employee had no right to a position outside the new agency. 784 F.2d at 369. In Menoken, the petitioner, who had been an attorney-advisor at the Administration, claimed that she was entitled to attorney positions outside of the new agency. We rejected the claim:
The functions that were transferred upon the abolition of the Community Services Administration were transferred solely to the new agency and not elsewhere within the Department [of Health and Human Services]. The only right the Community Services Administration employees had was to be transferred to "a position in the new agency" that had been given to a former Community Services Administration employee with lower retention rights than the protesting employee.... Attorney positions elsewhere in the Department did not become positions transferred from the Community Services Administration merely because the attorneys in those positions performed some legal work for the new agency.
The petitioners' claims to positions outside of the new agency are foreclosed not only by this court's decision in Menoken, but also by the transfer-of-function regulations in effect at the time of the reduction in force, upon which the Board based its decision. Under 5 C.F.R. Sec. 351.203(h)(1) (1981), a transfer of function is defined as the transfer of "[t]he performance of a continuing function from one competitive area and its addition to one or more other competitive areas...." Under this regulation, a transfer of function occurs only when a function is transferred to another competitive area and the gaining area undertakes a class of activity it did not previously perform. Kentner v. National Transp. Safety Bd., 20 M.S.P.R. 595, 597 (1984). Thus, an employee has no right to transfer with his function if the gaining office already performs the function and simply adds the employee's duties. Walsh v. Environmental Protection Agency, 25 M.S.P.R. 460, 465 (1984).
The petitioners have not shown that there has been a "transfer of function" between their positions at the Community Services Administration and any agency outside the new agency. Petitioners Cabey, Johnson and Myers were criminal investigators at the Community Services Administration. They assert that the function they performed was transferred to the Department of Justice or the Department of Health and Human Services Office of Inspector General, since those agencies now do the criminal investigation work that the Administration...
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Gearan v. Department of Health and Human Services
...273, 93 L.Ed.2d 249 (1986). Certain positions were deemed effective when the positions were funded. See Hayes v. Department of Health and Human Servs., 829 F.2d 1092, 1105 (Fed.Cir.1987). A Mr. Gearan was employed as an attorney-advisor with CSA. Although he did not have sufficient preferen......