Chen v. General Accounting Office
| Decision Date | 26 June 1987 |
| Docket Number | No. 86-1405,86-1405 |
| Parties | 44 Fair Empl.Prac.Cas. 765, 44 Empl. Prac. Dec. P 37,377, 261 U.S.App.D.C. 244 John H.M. CHEN, Petitioner, v. GENERAL ACCOUNTING OFFICE, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Zachary D. Fasman, Washington, D.C., with whom Frederick W. Claybrook, Jr., was on brief for petitioner.
Scott D. Earnshaw, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Asst. Atty. Gen., and William Kanter, Atty., Dept. of Justice, were on brief, for respondent.
Before WALD, Chief Judge, MIKVA and BORK, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Appellant Dr. John H.M. Chen seeks review of a decision of the General Accounting Office Personnel Appeals Board (PAB) upholding the GAO's decision to deny Chen's within-grade salary increase and to fire him from his position as a Training Evaluation Specialist at the Office of Organization and Human Development (OOHD). Chen asserts that his supervisors retaliated against him for his earlier successful EEO complaint, while the agency claims that Chen was simply not performing up to standards. A single member of the PAB rendered the initial decision on Chen's retaliation claim and ordered his reinstatement after concluding that GAO's actions against Chen were retaliatory and their allegations of substandard performance pretextual. We conclude that the PAB applied the wrong standard of review when it reconsidered and reversed the initial decision of its Presiding Member, necessitating a remand of the record for further consideration.
In February 1983, the PAB found that the GAO's refusal to hire Chen despite his extensive qualifications was a discriminatory violation of Title VII of the Civil Rights Act of 1964. The PAB ordered the GAO to hire Chen either as a Training Evaluation Specialist (Series 1701) or as an Education Specialist (Series 1710). In the course of that proceeding at least two significant facts were established: Chen was stipulated to be qualified for the position of education evaluation specialist, and he was found to have a command of the English language adequate for the jobs he had sought. 1
Chen began working at GAO in July 1983. In January 1984, he was denied a within-grade salary increase. 2 In June 1984 Chen was informed that he was being fired. His performance on three assignments were cited as the basis of Chen's poor evaluation: 1) a literature search on learning centers; 2) an evaluation plan for the GAO's learning center; and 3) a draft chapter for a GAO publication dealing with the evaluation of special and issue-area courses. 3
Chen complained to the PAB in February, and again in May, 1984, after he was denied his within-grade salary increase, of discrimination and harassment; he later amended that complaint to encompass his firing. Chen's case was heard in July 1985 by a single member of the PAB (the "Presiding Member"), pursuant to PAB regulations, 4 C.F.R. Sec. 27.1. In December 1985, the Presiding Member issued a sixty-five page opinion finding that Chen's performance was up to standards, given the nature of the assignments and supervision he had received, and that the GAO denied his salary increase and fired him in retaliation for his earlier EEO complaint. Dec. of the Presiding Member, Joint Appendix ("J.A.") 73-140. The Presiding Member ordered that Chen be reinstated with full back pay, and transferred to some appropriate position out of OOHD. Id. at 65, J.A. 139. The GAO petitioned for reconsideration of the Presiding Member's decision by the full PAB. Applying its new reconsideration regulations for the first time, the PAB, on June 19, 1986, reversed the Presiding Member, over his strenuous dissent. PAB Decision, J.A. 4-22; PAB Dissent, J.A. 23-72. On Chen's petition, we now review that decision of the full board.
The PAB's enabling statute sets out a familiar standard of judicial review. Final decisions of the PAB may only be set aside by this court when they are:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law;
(2) not made consistent with required procedures; or
(3) unsupported by substantial evidence.
31 U.S.C. Sec. 755. Although the decision of the Presiding Member constitutes part of the record on appeal, it is the decision of the full board, when it reconsiders the Presiding Member's initial disposition, that is final and subject to judicial review. 4 C.F.R. Sec. 28.25(d).
While the scope of our review remains the same even when a board reverses its hearing officer, see Dunning v. NASA, 718 F.2d 1170, 1174 (D.C. Cir.1983),
the evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 469, 95 L.Ed. 456 (1951). Moreover, such reversals are normally scrutinized very carefully to ensure there is some reasoned explanation of the board's disagreement with the decision of the hearing officer. See, e.g., National Ass'n of Recycling Indus, Inc. v. FMC, 658 F.2d 816, 824-25 (D.C. Cir.1980); Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 853 (D.C. Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). Thus, even if it were otherwise supported by substantial evidence, a board decision that simply ignored the rationale or findings of a hearing officer--especially those based on live testimony not available to the board on reconsideration--would be found to be arbitrary and capricious. National Ass'n of Recycling Indus., 658 F.2d at 825; see also Jackson v. Veterans Admin., 768 F.2d 1325, 1331 (Fed.Cir.1985); General Dynamics Corp. v. OSHRC, 599 F.2d 453, 463 (1st Cir.1979). Similarly, a board decision that applied the wrong standard of review to the decision of its hearing examiner would also be arbitrary and capricious and contrary to law.
Although the PAB nowhere in its decision explicitly states that it is undertaking "de novo review" of the Presiding Member's decision, it is obvious that is what the board did. The PAB noted that Chen's case offered the board its first opportunity pursuant to new regulations, to review a Presiding Member's decision "with regard to whether the record, viewed as a whole, supports the decision." PAB Dec. at 14, J.A. 20. The PAB asserted that its regulations entitled it to "correct any decision which was contrary to the overall weight of the record evidence." Id. PAB counsel have acknowledged in their brief that the PAB "interpreted its new review provisions as permitting it to engage in de novo review of the presiding member's opinion." Respondent's Brief at 13. Because we conclude that the PAB lacked such de novo review authority, we vacate the PAB's decision and remand the record for further consideration of the initial decision under the correct standard of review.
The PAB is a five-member board appointed by the Comptroller General for three-year terms; its members are removable by a majority of the board only for cause. The PAB's duties include "consider[ing] and order[ing] corrective or disciplinary action" in a variety of personnel matters and prescribing regulations on officer and employee appeals as well as its own operating procedures. 31 U.S.C. Sec. 753 (a), (d). The PAB may delegate its Sec. 753(a) authority to a panel or even to a single member, and the decisions of individual members or panels are deemed final decisions of the PAB "unless the Board reconsiders the decision under subsection (c) of this section." Sec. 753(b). Section 753(c) states that reconsideration may take place on motion of a party or the PAB within 30 days of the individual member's decision.
Although PAB regulations say nothing about what standard of review should govern reconsideration by the PAB of an individual member's decision, 4 C.F.R. Sec. 27.1, section 28.25(c) spells out the conditions under which the full board may reopen, and ultimately reverse, decisions of individual PAB members. That section, until March 1986, stated in relevant part:
The Board may grant a motion to reopen and reconsider when it is established that:
(1) New and material evidence is available that, despite due diligence, was not available when the record was closed; or
(2) The decision of the Hearing Officer is based on an erroneous interpretation of statute or regulation.
4 C.F.R. Sec. 28.25(c). In March 1986 the PAB revised the regulation by adding three additional subsections:
(3) The decision is arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law;
(4) The decision is not made consistent with required procedures; or
(5) The decision is unsupported by substantial evidence.
4 C.F.R. Sec. 28.25(c), published at 51 Fed. Reg. 7739 (March 6, 1986). Chen's was the first case to which the PAB applied these new regulations. PAB Dec. at 14; J.A. 20.
We conclude that the PAB regulations, as amended, preclude the board from exercising de novo review powers over individual board members' decisions.
Although the PAB majority stated that the new regulations allow the PAB "the first opportunity to correct any decision which was contrary to the overall weight of the record evidence," PAB Dec. at 14; J.A. 20, the plain language of the regulations imposes a considerably narrower scope of review. The new additions to the old regulation mirror familiar language in the APA and the PAB's own organic statute, see 31 U.S.C. Sec. 755, limiting judicial review of agency actions to a substantial...
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