Artmann v. Department of Interior

Decision Date20 February 1991
Docket NumberNo. 90-3349,90-3349
PartiesJoseph W. ARTMANN, Petitioner, v. DEPARTMENT OF the INTERIOR, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Edwin L. Sisam, Minneapolis, Minn., submitted for petitioner.

Douglas J. Hughes, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., submitted, for respondent. With him on the brief, were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Stephen J. McHale, Asst. Director.

Before PLAGER and RADER, Circuit Judges, and FRIEDMAN, Senior Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

The petitioner challenges his reassignment at the same grade and pay as a "constructive demotion" over which the Merit Systems Protection Board (Board) has appellate jurisdiction as a reduction in grade. The Board held it had no jurisdiction and dismissed the appeal, because the petitioner had not satisfied the criteria for establishing that a reassignment at the same grade constituted a "constructive demotion." Artmann v. Interior, 44 M.S.P.R. 443 (1990). We affirm.

I

The petitioner, Dr. Artmann, was a Senior Fish and Wildlife Biologist with the Fish and Wildlife Service (Service), who was the Federal Aid Chief in the Service's Minneapolis, Minnesota, regional office. The Federal Aid Chief position, to which Dr. Artmann had been appointed in 1982, was classified at grade GM-13.

In August 1988, after a wide-scale reorganization of the Service the previous year, the Service substituted for the Federal Aid Chief position the new position of Deputy Assistant Regional Director-Federal Aid at grade GM-14. It invited applicants for the new position, and Dr. Artmann applied. He was not selected, however. The Service then reassigned him to the position of Senior Staff Biologist, GS-13, at the same pay.

Dr. Artmann appealed his reassignment to the Board. He contended that at the time of the reassignment, the Federal Aid Chief position was erroneously classified at grade GM-13, either because its original classification at that grade in 1982 was improper or because, as a result of the increase in his duties, the position should have been reclassified to grade GM-14 before the reassignment; that he should have been noncompetitively promoted to the higher grade; and that his reassignment to another GM-13 position was a "constructive demotion," over which the Board had appellate jurisdiction as a reduction in grade.

After a hearing, the administrative judge dismissed the appeal for lack of jurisdiction. Applying the theory the Board had announced in Russell v. Department of the Navy, 6 MSPB 585, 6 M.S.P.R. 698 (1981), which subsequently has been called "constructive demotion," the administrative judge concluded that Dr. Artmann has not shown that a classification error occurred when his position was last classified by a person with classification authority. Therefore, he has not shown that, at the time of his reassignment, the Federal Aid Chief position was entitled to a higher grade due to classification error. Nor did the appellant show that the agency's decision to upgrade the position was not a planned management action. Consequently, I conclude that the appellant did not carry his burden of establishing that he was constructively demoted.

Artmann v. Interior, MSPB Docket No. CH07528910456, slip op. at 11 (Sept. 12, 1989).

The Board affirmed the decision of the administrative judge. After discussing the evidence and Dr. Artmann's contentions, the Board concluded that "there is a significant amount of evidence showing that the Federal Aid Chief position was upgraded due to the addition of duties and as a result of a reorganization in 1987, not because of a classification error", and that Dr. Artmann "failed to meet his burden to prove by a preponderance of the evidence that he was subjected to a constructive demotion under the theory of Russell, ... and thus that his appeal is within the Board's jurisdiction." Artmann v. Interior, 44 M.S.P.R. 443, 448 (1990).

II

The Board has "only that jurisdiction conferred on it by Congress." See Manning v. Merit Systems Protection Bd., 742 F.2d 1424, 1426 (Fed.Cir.1984). Accordingly, the Board has authority to hear appeals only from the types of actions specifically enumerated by law, rule, or regulation. 5 U.S.C. Sec. 7701(a) (1988); Rose v. Department of Health and Human Services, 721 F.2d 355, 356 (Fed.Cir.1983).

Prior to the Civil Service Reform Act of 1978 (Reform Act), Pub.L. No. 95-454, 92 Stat. 1111, the Board's predecessor (the Civil Service Commission) had jurisdiction over appeals from a "reduction in rank." Under 5 U.S.C. section 7701 (1976), employees were authorized to appeal to the Civil Service Commission from an "adverse decision" under section 7512. The latter section authorized agencies to take "adverse action" against employees. Section 7511 defined "adverse action" to include a "reduction in rank or pay."

The Reform Act eliminated "reduction in rank" as an appealable action and instead gave the Board appellate jurisdiction over a "reduction in grade" and "reduction in pay." 5 U.S.C. Sec. 7512 (1988). The Senate Committee Report explained the reason for this change:

The present statutory language includes a reference to "reduction in rank." This reference is deleted so as to eliminate reduction in rank as an appealable action. In 1944, when the procedural rights were first extended employees, thousands of positions were not covered by any position classification system. Consequently, where there was no reduction in compensation, it was necessary to look to something else, for example, the individual's relative standing in the agency's organizational structure, to determine whether an adverse action had been taken. However, all or most positions in the competitive service, with rare exception, are now covered by position classification or job-grading systems, with pay related directly to the grade of the position as determined under those systems. The concept of "rank" as a separate category of appealable actions is no longer necessary. This change will also more closely relate the protections afforded to the severity of the action taken. It will increase the flexibility of agencies to assign employees to positions and duties where they are needed without having to take an adverse action against an employee when the job title or duties have changed, but the grade has not.

S.Rep. No. 969, 95th Cong., 2d Sess. 49-50 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 2723, 2771-72. Under the Reform Act, the Board does not have appellate jurisdiction over reassignments not constituting a reduction in grade or pay, even though the reassignment reduces the employee's status, duties, or responsibilities. See, e.g., Wilson v. Merit Systems The Board, however, has recognized that there may be situations in which what appears to be merely a reduction in rank, because there is no change in grade or pay, in fact constitutes a reduction in grade. In Russell v. Department of the Navy, 6 MSPB 585, 6 M.S.P.R. 698 (1981), the Board held that

Protection Bd., 807 F.2d 1577, 1580-81 (Fed.Cir.1986).

where an employee is reassigned from a position which due to issuance of a new classification standard or correction of classification error is worth a higher grade, the employee meets the legal and qualification requirements for promotion to the higher grade, and where the employee who held that position is permanently reassigned to a position classified at a grade level lower than the grade level to which the employee would otherwise be promoted, then the employee is reduced in grade. 5 U.S.C. Sec. 7512(3).

Id. 6 M.S.P.R. at 711.

The Board also stated that in the Reform Act

Congress intended to eliminate only those appeals not relating to an employee's grade and that by adding reduction in grade as a standard, it intended to enable employees to appeal personnel actions where a reduction in grade can be demonstrated by the application of position classification principles.

Id. 6 M.S.P.R. at 707.

The Board's framing of the test for determining whether a reassignment at the same grade constitutes a "constructive demotion" in terms of whether there had been a classification error or a new classification standard indicates the Board's rationale for departing from the literal language of the Reform Act that the Board has appellate jurisdiction over only "reductions in grade." The Board's theory apparently is that if a position originally was classified erroneously or a change in classification standards would have mandated a change in grade, it was proper to view the employee as if that error had been rectified, so that the employee would be occupying a position with a higher grade than he actually had. The employee's grade therefore was reduced when the employee was reassigned at the same grade because, had the position been properly classified at the higher grade, that reassignment would have reduced the grade.

This interpretation by the Board of the statutory term "reduction in grade" is a reasonable implementation of the Board's broad authority to interpret and apply the statutory provisions it administers. Cf. Bennett v. Department of Navy, 699 F.2d 1140, 1146 (Fed.Cir.1983). Moreover, since the Board created the concept of "constructive demotion," the agency also has considerable discretion to define the perimeters of the concept.

Specifically, the Board here acted within its authority in concluding that the determination whether there had been a classification error was to be made with respect to the grade at which the position most recently...

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