Cooper v. Tennessee Valley Authority

• Decision Date: 14 December 1983
• Docket Number: No. 83-810,83-810
• Citation: 723 F.2d 1560
• Parties: Kenneth M. COOPER, Petitioner, v. TENNESSEE VALLEY AUTHORITY, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1560

723 F.2d 1560

Kenneth M. COOPER, Petitioner, v. TENNESSEE VALLEY AUTHORITY, Respondent.

Appeal No. 83-810.

United States Court of Appeals, Federal Circuit.

Dec. 14, 1983.

Don W. Poole, Chattanooga, Tenn., submitted for petitioner.

James E. Fox, Assoc. Gen. Counsel, Knoxville, Tenn., argued for respondent, Tennessee Valley Authority. With him on the brief were Herbert S. Sanger, Gen. Counsel, Jr., Justin M. Schwamm, Sr. Asst. Gen. Counsel, and A. Jackson Woodall, Jr., Knoxville, Tenn.

David M. Cohen, Robert E. Richardson, Washington, D.C., argued for Dept. of Justice.

Before FRIEDMAN and SMITH, Circuit Judges, and NICHOLS, Senior Circuit Judge.

FRIEDMAN, Circuit Judge.

This is an appeal from a decision of the Merit Systems Protection Board (Board) upholding the action of the Tennessee Valley Authority (TVA) in terminating the petitioner's employment with that agency as a result of a reduction in force.

The case presents two issues. The petitioner challenges the application of the reduction-in-force procedures to him and urges that he was improperly discharged thereunder. There is also a dispute between TVA and the Department of Justice over whether TVA may represent itself through its own lawyers in this court (as TVA urges), or whether the Department has exclusive authority to represent the agency here.

We affirm the decision of the Board upholding the termination of the petitioner's employment through the reduction in force. We further hold that TVA may represent itself before this court.

I

A. For many years the petitioner served as the supervisor of the Office Engineering Unit at a major TVA hydroelectric construction project, the Raccoon Mountain Project (Raccoon Mountain). By the summer of 1981, however, construction work at the project was nearly completed. Although at one time the petitioner had supervised seven engineers and engineering clerks at the project, by the summer of 1981 these employees all had transferred to other TVA projects. At that time it was "apparent" that work on the project would not last much longer and that there was no further need for engineers. TVA concluded that a reduction in force at Raccoon Mountain was appropriate.

Under Civil Service regulations governing reductions in force, an agency conducting that procedure, in determining an employee's retention rights, must establish (1) the "competitive area," which is the agency's organizational and geographic subdivision within which employees have retention rights, and (2) the "competitive level" at which the employees have such rights. 5 C.F.R. Sec. 351.402-.403 (1983). TVA established Raccoon Mountain as the petitioner's competitive area and the supervising engineer level at which he was employed as his competitive level. Since the petitioner was the only employee in that competitive area at that competitive level, he had no retention rights. TVA accordingly terminated his employment pursuant to the reduction in force.

On the petitioner's appeal from that action, the presiding official of the Board's regional office upheld the reduction in B. The petitioner does not challenge the Board's determination that the reduction in force was justified and that he had no right of assignment to another position. Instead, he challenges the reduction in force on what he describes as a "highly technical" argument, which has two facets.

force, and the Board denied review of that decision. The presiding official held: that the reduction in force "resulted from a lack of work," which under 5 C.F.R. Sec. 351.201(a) is a proper ground for conducting a reduction in force; that the petitioner's "competitive area was properly established"; that, "as the only incumbent of the only position in his competitive level, [the petitioner] was properly reached for release therefrom"; and that, because petitioner was an excepted service employee, he "had no right of assignment" to another position in the agency.

(1) The petitioner first contends that the reduction-in-force notice was defective because it was initiated and signed by someone from a division other than the division in which he was employed. The notice was signed by the chief of the Construction Services Branch, of which Raccoon Mountain was not a part. As the presiding official pointed out, however, the chief of that branch had been "designated to serve as Acting Project Manager at Raccoon Mountain for the sole purpose of closing out that facility ...." In that capacity he had authority to initiate the reduction in force that resulted in the discharge of the petitioner. Contrary to the petitioner's contention, it is immaterial that the designation of the branch chief to perform that function was not made in writing or upon a specific TVA form.

(2) The petitioner also argues that he should have been transferred to the Construction Services Branch, and that if this had been done he would have been at a different competitive level and therefore would not have been discharged. Although the petitioner correctly points out that "[a]t some point in time the Raccoon Mountain Project was transferred to the Construction Services Branch," the presiding officer responded that there was no evidence that the transfer occurred before the reduction in force. The petitioner cites no authority that would have required TVA to transfer the petitioner to the Construction Services Branch, and we know of none. The petitioner has not shown any basis for rejecting the Board's determination that the evidence supports the agency's selection of the petitioner's competitive area and competitive level.

"An agency is accorded wide discretion in conducting a reduction in force; absent a clear abuse of that discretion, a substantial departure from applicable procedures, a misconstruction of governing statutes, or the like, we do not upset a final agency decision." Dancy v. United States, 668 F.2d 1224, 1226 (Ct.Cl.1982); see also, Friedman v. United States, 214 Ct.Cl. 804, 805-06 (1977). Under this limited scope of judicial review, we have no basis for overturning TVA's termination of the petitioner's employment pursuant to the reduction in force.

II

A. In his petition to review in this court, the petitioner named TVA as the respondent, as the Civil Service Reform Act of 1978 required. 5 U.S.C. Sec. 7703(a)(2) (1982). In accordance with our customary practice that the Department of Justice represents the agency in appeals from the Board, the court sent to the Department a notice of the docketing of and routine information about the handling of the appeal. In response to that notice, an attorney from the Department entered his appearance for TVA.

Upon receiving notice from the Department of its action, the General Counsel of TVA informed both the Department and the court that the agency wished to be represented in this case by its own attorneys. TVA and the Department then wrote lengthy letters to the court explaining why each held the view that it, and not the other, was solely authorized to represent the agency. In response, the court ordered the Department and TVA to file separate briefs on the question of representation.

The two agencies filed extensive briefs, and we heard oral argument by them on the issue.

B. The government relies on 28 U.S.C. Sec. 518(a) which, as amended by the Federal Courts Improvement Act of 1982 (Courts Improvement Act), Pub.L. No. 97-164, 96 Stat. 25, provides:

Except when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court and suits in the United States Claims Court or in the United States Court of Appeals for the Federal Circuit and in the Court of International Trade in which the United States is interested.

This provision goes back a long time. It stems from a statute of the First Congress which, upon creating the position of Attorney General, gave him the "duty ... to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned." Act of Sept. 24, 1789, ch. 20, Sec. 35, 1 Stat. 73, 93 (1789). Following the establishment of the Court of Claims in 1855, Act of Feb. 24, 1855, ch. 122, 10 Stat. 612 (1855), Congress added that court to the Supreme Court as the courts in which the Attorney General would "attend to the prosecution and defence [sic] of all matters and suits ... on behalf of the United States." Act of June 25, 1868, ch. 71, Sec. 5, 15 Stat. 75 (1868).

In the 1870 statute that created the Department of Justice and established the position of Solicitor General, Congress revised the provisions governing the representation of the United States in the courts. With respect to the Court of Claims, the statute authorized the Attorney General to require the Solicitor General "to argue any case in which the government is interested before the court of claims." Act of June 22, 1870, ch. 150, Sec. 5, 16 Stat. 162. The provision underwent further changes, which are immaterial to the case before us. Prior to the enactment of the Courts Improvement Act, the pertinent portion of section 518(a) read as follows:

the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court and suits in the Court of Claims in which the United States is interested.

28 U.S.C. Sec. 518(a) (1976).

In the Courts Improvement Act, Congress abolished the Court of Claims and created in its place this court and the United States Claims Court, which succeeded to the trial jurisdiction of the Court of Claims. Sections 101, 105(a), 133(a), 96 Stat. 25, 26, 39 (to be codified at 28 U.S.C. Secs. 41, 171-177, 1491). The Act substituted "United States Claims Court or the United States Court of Appeals for the Federal Circuit" for "Court of Claims" in section 518(a). Section 117, 96 Stat. 32.

At the same time that Congress made this change in section 518(a), it also provided in Section 169 of ...