Debose v. U.S. Dept. of Agriculture

• Decision Date: 08 March 1983
• Docket Number: No. 81-7241,81-7241
• Citation: 700 F.2d 1262
• Parties: 12 Fed. R. Evid. Serv. 1466 Alfonso DEBOSE, Petitioner, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1262

700 F.2d 1262

12 Fed. R. Evid. Serv. 1466

Alfonso DEBOSE, Petitioner, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.

No. 81-7241.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 9, 1983.

Decided March 8, 1983.

W. Mitchell Cogdill, Cogdill, Deno & Millikan, Everett, Wash., for petitioner.

Virginia Strasser, Washington, D.C., for respondent.

Petition for Review of an Order of the Merit Systems Protection Board.

Before SKOPIL, PREGERSON and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

Alfonso Debose appeals from an opinion and order of the Merit System Protection Board issued March 17, 1981 upholding the Department's action in terminating him for unacceptable performance. We affirm.

FACTS:

Alfonso Debose, a college-trained agronomist, has been employed by the Department of Agriculture as a soil scientist within the Soil Conservation Service since 1965. In his latest position, Debose was responsible for determination of soil types in the field and for preparation of maps indicating the location of various soils. The maps, called field sheets, are aerial photographs of the inspected area upon which the soil scientist makes notations. Cartographers working from the field sheets then prepare finished maps for publication.

In June 1979, Debose received a letter from his immediate supervisor informing him that in the preceding five months he had mapped only about twenty percent of the amount of land expected. Standards for Debose's position set 2,000 acres a day as an excellent performance and 640 as the minimum acceptable. The letter warned Debose that he had sixty days in which to improve his performance or face an action to fire or demote him. It set the amount which should be mapped in the sixty-day period at 640 acres a day, the quality of mapping to be maintained at the standards set in specified publications.

Within the sixty-day period, Debose met the quantity requirement, mapping an average of 868 acres daily. However, also within that period, his superiors noted and called to his attention a large number of errors which he failed to correct. In January 1980, Debose was notified by official letter that in thirty days he would be terminated for failure to meet established performance requirements.

The letter grouped the grounds for termination into four specifications. Specification One was based upon a day of observation during which Debose's superiors accompanied him in the field. Based on their observations, the agency asserted that Debose demonstrated lack of a unified mapping concept, displayed only superficial efforts to identify soil classification, and produced work which required a great deal of field verification. Specification Two, based upon twelve photographic field sheets submitted during the sixty-day period, charged a variety of mapping errors which Debose had failed to correct although he had been ordered to do so within the period. The errors were serious enough to prevent a cartographer from completing a final, publishable product and to require additional field investigation. Specification Three embodied three technical appraisals of Debose's work by his supervisors based upon two additional field sheets and a trip which they had made to an area which Debose had previously mapped. They found that his work was poorly done and required close review. Specification Four dealt with the unsatisfactory results of a field trip taken in November 1979 when Debose was given the opportunity to respond to the charges made in Specification Three, and states that after the sixty-day period the quantity of acreage mapped by Debose once again decreased to about fifty percent of the minimum required. The letter also informed Debose of his right to answer the charges and inspect the materials upon which they were based.

After various intra-agency procedures, Debose was terminated in May 1980. He then requested a hearing before the Merit Systems Protection Board. The hearing examiner issued an initial decision affirming the agency action, which Debose took to the board for review on grounds of failure to follow the applicable statutory procedures, improper admission of secondary evidence violating his due process confrontation rights, and insufficient evidence. The board affirmed the initial decision. Debose now petitions, on the same grounds, for review of the board's order. 5 U.S.C. Sec. 7703.

DISCUSSION:

Title 5 U.S.C. Sec. 7703(c) sets forth the applicable standard of review:

In any case filed in the United States Court of Claims or a United States court of appeals, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be--

(1) arbitrary, capricious, an abuse of discretion or otherwise not in accord with law;

(2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.

Brewer v. United States Postal Service, 647 F.2d 1093, 1096 (Ct.Cl.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982).

I. Termination Under Section 7513 versus Termination Under Section 4303

Debose contends that because the agency removed him from his position for failure to meet established performance requirements, he was entitled to the procedures accorded civil service employees under sections 4302 and 4303 of the Civil Service Reform Act of 1978. 5 U.S.C. Secs. 4302-03. ¹ He argues that while section 4303 authorizes removal of an employee for unacceptable performance, the agency was obligated under section 4302 to have provided a uniform system for evaluating employees and assisting them in the improvement of their performances prior to his removal. The board has previously held that to remove an employee under section 4303, a section 4302 performance appraisal system must be in effect. Wells v. Harris, 1 M.S.P.B. 199, 230 (1979). The agency acknowledges that at the time of Debose's termination it had no such system in operation. The agency therefore proceeded under an older section, 5 U.S.C. Sec. 7513(a), which allows removal of an employee in order to promote of the efficiency of the federal service.

The propriety of proceeding under Sec. 7513(a) in these circumstances has not previously been decided in this circuit. It has, however, been carefully and, we believe, soundly addressed by the board in its Wells decision, and we adopt its reasoning. Accord, Kochanny v. Bureau of Alcohol, Tobacco & Firearms, 694 F.2d 698, 700-01 (Fed.Cir.1982); Drew v. U.S. Dep't of the Navy, 672 F.2d 197, 201 (D.C.Cir.1982).

The board noted in Wells that the legislative history of the Civil Service Reform Act reveals that the intent of Congress in enacting sections 4302 and 4303 was to make it easier, rather than harder, for government agencies to terminate employees whose performance was inadequate. 1 M.S.P.B. at 229, 235-36. Contrary to Debose's assertions, it is easier to remove an employee under section 4303 than it is under section 7513. Id. at 236; Drew, 672 F.2d at 203. A section 4303 removal may be accomplished if the employee performs unacceptably in one or more of the critical elements of the job; the proof is by substantial evidence. Wells, 1 M.S.P.B. at 235; Drew, 672 F.2d at 202-03. A section 7513 removal may only be for promotion of the efficiency of the federal service; the proof is by preponderance of the evidence. 5 U.S.C. Sec. 7701(c)(1); Drew, 672 F.2d at 203. In its discussion of the inter-relationship of sections 4302, 4303 and 7513 of the Act, the board held that the more relaxed standard for termination embodied in section 4303 mandated that the protections of the neutral section 4302 appraisal plan be in effect before an agency began such terminations. Wells, 1 M.S.P.B. at 227.

However, the board also noted that with the expressed congressional concern for the damage done to the civil service by its inability to rid itself of inept employees, it could not have been the intent of Congress to declare a moratorium on such terminations until the time that section 4302 appraisal plans became fully operational. Id. at 235. It therefore turned to the termination procedures of section 7513 and held:

If an agency sees some advantage in pursuing a performance-based action under Chapter 75, it is not inconsistent with the Act so long as the agency meets the higher burden of proof--and the more difficult standard of demonstrating that the action will promote "efficiency of the service." There is not the slightest evidence in the legislative history to suggest that Chapter 43 was ever to be a refuge for employees to escape Chapter 75. Chapter 43 originated as a relief measure for agencies and was enacted for that purpose.

Id. at 236. It said further:

The Senate Report by inference can be read to mean that Chapter 75 is available for any action not brought under Sec. 4303 and the option remains for the agency to choose whether to proceed under Chapter 43 or Chapter 75.

Id. at 236 n. 90.

The Wells analysis is directly applicable to the fact pattern before us. The Soil Conservation Service had no section 4302 appraisal plan in effect at the time when it moved to terminate Debose for inadequate performance. However, it was not statutorily obligated to have one established until eighteen months after it informed Debose that he was to be terminated. See 5 U.S.C. Sec. 4302(b)(2). Therefore, unless the agency was to find itself in exactly the moratorium upon such firings which Wells rejects, its only option was to proceed under the more difficult standard of section 7513, which it elected to do.

The Merit Systems Protection Board is the administrative body designated by statute to apply the provisions of the Act. As such, its interpretations are entitled to great deference. New York State Dep't of Social Service v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516, 37 L.Ed.2d 688 (1973); Adams v. Howerton, 673...