Beardmore v. Department of Agriculture

Decision Date10 May 1985
Docket NumberNo. 85-517,85-517
Citation761 F.2d 677
PartiesWillis R. BEARDMORE, Petitioner, v. DEPARTMENT OF AGRICULTURE, Respondent. Appeal
CourtU.S. Court of Appeals — Federal Circuit

Michael P. Miller, Weinburg, Ziff & Miller, Palo Alto, Cal., for petitioner.

Hillary A. Stern, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., for respondent. With her on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan, Asst. Director and Beacham O. Brooker, Jr., Washington, D.C.

Virginia Strasser, Office of the General Counsel, Dept. of Agriculture, Washington, D.C., of counsel.

Before BALDWIN, KASHIWA, and MILLER, Circuit Judges.

JACK R. MILLER, Circuit Judge.

Petitioner is a former employee of the Agricultural Marketing Service ("AMS"), United States Department of Agriculture ("USDA" or "agency"). Prior to his removal, he had been an employee of the agency for twenty-four years. Effective January 6, 1984, he was removed from his position of Agricultural Commodity Grader, GS-1980-10, for failure to accept an ordered reassignment from San Jose, California, to a position of like grade and pay in Chicago, Illinois. He appealed to the Merit Systems Protection Board ("MSPB" or "board") contending that his reassignment was invalid because USDA had improperly defined the local commuting area in excluding Watsonville, California, which resulted in a retention register that did not include employees in the Watsonville office. 1 It was stipulated before the Presiding Official of the MSPB that if Watsonville had been included, an employee in that office who had less seniority than petitioner would have been reassigned, thereby creating a vacancy for petitioner to fill in Watsonville.

The Presiding Official issued an initial decision dated April 25, 1984, affirming the agency decision. Petitioner sought review by the full board of the MSPB, which denied the petition, finding that it did not meet the criteria for review prescribed by 5 C.F.R. Sec. 1201.115. 22 M.S.P.R. 649 (1984) Accordingly, the initial decision became the final decision of MSPB under 5 C.F.R. Sec. 1201.113(b), and that decision is before us for review. 5 U.S.C. Sec. 7703(a)(1). We reverse.

Facts

Immediately prior to his removal, petitioner was employed in the San Jose field office of the Processed Products Branch, Fruit and Vegetable Division, AMS, USDA. The Processed Products Branch's inspection program is funded entirely by a trust fund of user fees, and there are no Government appropriated funds for the program. Therefore, when three processing plants canceled their contracts for inspection services, there was insufficient work in the San Jose area for Agricultural Commodity Graders, making three GS-1980-10 Agricultural Commodity Grader positions (including that of petitioner) excess.

The agency decided to solve the overstaffing problem by using a procedure which would avoid implementing a RIF. This was prescribed by USDA's Food Safety and Quality Service ("FSQS") Directive 4300.1. The Directive states that the policy of FSQS is to avoid reductions in force, when possible, by reassignments to vacant positions at the same grades and salaries, and covers reassignments to vacant positions in work reduction situations when reassignments must be made outside the commuting area. The Directive provides, inter alia, as follows:

The area of competition for this purpose will be the local commuting area where the work reduction occurred or where the positions are to be abolished. This area will be determined by the Servicing Personnel Office (SPO). Reassignments under this policy will not be made for the purpose of ultimately separating the reassigned employees.

A local commuting area is a geographic area that usually constitutes one area for employment. It includes a population center (or two or more neighboring ones) and the surrounding localities in which people live and reasonably can be expected to travel back and forth daily from home to work in their usual employment. The extent of a commuting area ordinarily is determined by common practice 2 or by what reasonably can be expected on the basis of the availability and cost of public transportation or the convenience and adequacy of highways, 3 and the travel time required to go to and from work.

The parties stipulated before the Presiding Official that four-lane divided access freeways connect San Jose and Watsonville. Also, we take judicial notice of the American Automobile Association's 1985 edition of the map of California which shows that the distance between Watsonville and San Jose is approximately 45 miles; between Rodeo and San Jose approximately 80 miles; and between Rodeo and Sunnyvale approximately 70 miles.

It was also stipulated that John F. Lewis, a GS-1980-10 Agricultural Grader, performs the same duties as formerly performed by petitioner in San Jose and has the same job title as petitioner. Mr. Lewis was senior to petitioner and the other two graders who were reassigned.

Mr. Elton Hughes (Regional Director of the Processed Products Branch), a USDA witness, testified that until petitioner's case there had never been an occasion for defining the "local commuting area" for San Jose for work reduction purposes.

Mr. Joe Fly, Processed Products Branch Chief in Washington, D.C., testified that he had talked to "personnel" about "the time ... it would require to go from San Jose to Watsonville ... as far as the need for an inspector to be able to rapidly respond to, say, recalls from a plant situation.... So we would not want them commuting any great distance to, to respond to that."

Mr. Raymond Pagliarini (the agency's...

To continue reading

Request your trial
8 cases
  • National Fisheries v. U.S. Bureau of Customs
    • United States
    • U.S. Court of International Trade
    • August 25, 2009
    ...discretion is relatively broad, "`reasonableness' cannot cover for arbitrary or capricious action." See Beardmore v. Dep't of Agric., 761 F.2d 677, 679 (Fed.Cir.1985). Absent from the decision-making was a rational connection between the choice to single out the U.S. shrimp importing indust......
  • National Fisheries Inst. v. U.S. Bureau of Customs
    • United States
    • U.S. Court of International Trade
    • November 13, 2006
    ...according to statutory purpose and regulatory criteria. The discretion, therefore, is not unlimited. See Beardmore v. Dep't of Agric, 761 F.2d 677, 679 (Fed.Cir.1985) (stating that "an agency's discretion is not unlimited, and `reasonableness' cannot cover for arbitrary or capricious action......
  • Nucor Corp. v. U.S.
    • United States
    • U.S. Court of International Trade
    • March 24, 2009
    ... ... Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David Silverbrand and Richard P ... Page 1267 ... Schroeder); Douglas S. Ierley, ... See, e.g., Beardmore v. Dep't of Agriculture, ... Page 1304 ... 761 F.2d 677, 679 (Fed.Cir.1985) (holding that "an ... ...
  • In re Ivory
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • October 29, 2001
    ...849 (5th Cir.1989) (census statistics), cert. denied, 494 U.S. 1088, 110 S.Ct. 1828, 108 L.Ed.2d 957 (1990); Beardmore v. Department of Agriculture, 761 F.2d 677, 679 (Fed.Cir.1985) (judicial notice taken of American Automobile Association's 1985 edition of the map of California); Barber v.......
  • Request a trial to view additional results
1 books & journal articles
  • Judicial notice on appeal: why all the fuss?
    • United States
    • Florida Bar Journal Vol. 80 No. 5, May 2006
    • May 1, 2006
    ...in several government publications); Knox v. Butler, 884 F.2d 849 (5th Cir. 1989) (census statistics); Beardmore v. Dep't of Agriculture, 761 F.2d 677, 679 (Fed. Cir. 1985) (judicial notice taken of American Automobile Association's 1985 edition of California map); Barber v. Ponte, 772 F.2d......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT