Diamond v. U.S. Agency for Intern. Development

• Decision Date: 26 February 1997
• Docket Number: No. 96-3144,96-3144
• Parties: Dennis G. DIAMOND, Petitioner, v. U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 312

108 F.3d 312

Dennis G. DIAMOND, Petitioner, v. U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, Respondent.

No. 96-3144.

United States Court of Appeals, Federal Circuit.

Feb. 26, 1997.

Michael J. Kator, Kator, Scott & Heller, Washington, DC, argued for petitioner.

Stephanie M. Jackson, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued for respondent. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Sharon Y. Eubanks, Deputy Director.

Before ARCHER, Chief Judge, MICHEL and PLAGER, Circuit Judges.

MICHEL, Circuit Judge.

Dennis G. Diamond ("Diamond") petitions for review of the October 13, 1995 decision of the Merit Systems Protection Board ("MSPB" or "Board") holding that it did not have jurisdiction to review the action of the United States Agency for International Development ("USAID" or "agency") removing Diamond from his career position in the Senior Executive Service and placing him in the GS-15 position he had occupied prior to his appointment to the Senior Executive Service. The removal was instituted after an appellate court reversed the district court decision that formed the basis for the court order that led to Diamond's appointment in the Senior Executive Service. The case was submitted for our decision after oral argument on December 4, 1996. Because the agency acted in accordance with a judicial order and ongoing judicial proceedings and was therefore not required to comply with 5 U.S.C. § 3393(g) (1994) when it removed Diamond, we affirm.

BACKGROUND

Diamond, a white male, served for four years as USAID's Acting Director of Equal Opportunity Programs. When the agency sought to fill this position on a permanent basis in 1988, Diamond applied. He was rejected in favor of a black female. Diamond initiated an administrative discrimination complaint against the agency which resulted in a finding that he was denied the promotion because of his sex and race.

When the agency failed to act on this disposition, Diamond filed suit in federal district court. The district court entered summary judgment in favor of Diamond on May 13, 1992, Diamond v. Roskens, 790 F.Supp. 350 (D.D.C.1992), and, over a year later on May 25, 1993, ordered that he be appointed to the Senior Executive Service as the Director of the Office of International Training. USAID duly complied with the order and appointed Diamond to the position effective June 29, 1993.

Although USAID appointed Diamond to the position as ordered, it also appealed the district court's decision. ¹ The United States Court of Appeals for the District of Columbia Circuit reversed and remanded on January 20, 1995, holding that the district court should not have entered summary judgment. Diamond v. Atwood, 43 F.3d 1538, 1542 (D.C.Cir.1995). In its opinion, the appellate court stated that its holding that Diamond was not entitled to judgment as a matter of law on his employment discrimination allegations made it "unnecessary to resolve the issue raised on cross-appeal regarding the remedy awarded by the district court." Id. at 1541. The opinion did not otherwise address the order requiring USAID to appoint Diamond to the Senior Executive Service.

On May 25, 1995, after the District of Columbia Circuit's mandate issued but before trial, USAID notified Diamond that he would be removed from his Senior Executive Position effective June 9, 1995 and would revert back to a GS-15 position, at the grade and pay level he enjoyed before the first district court action. This resulted in a $25,000 reduction in annual salary.

Diamond appealed to the Board the agency's decision to remove him from the Senior Executive Service. Diamond waived his The district court on remand subsequently entered judgment in favor of USAID. Diamond v. Atwood, No. 91-1510 (D.D.C. March 12, 1996). An appeal of that decision is pending in the District of Columbia Circuit.

right to a hearing and the Administrative Judge ("AJ") ruled based on the record that the Board was without jurisdiction. The AJ recognized that Diamond was a career employee at least until the time the circuit court rendered its decision reversing the district court, that career employees can only be removed from the Senior Executive Service in accordance with the provisions of 5 U.S.C. § 3393(g), and that the agency did not comply with these provisions. The AJ also recognized that case law indicates that these provisions may be disregarded only if the appointment violated an absolute statutory prohibition and that Diamond's appointment did not violate such a statutory provision. However, under the circumstances of this case, the AJ concluded that Diamond's removal was effectively determined by judicial action, not agency action, that therefore the agency was not required to comply with section 3393(g), and that the Board accordingly did not have jurisdiction. The full Board denied Diamond's petition for review on January 29, 1996, making final the initial decision of October 13, 1995.

ANALYSIS

We must affirm the decision of the Board unless it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994). "The scope of the Board's jurisdiction presents a question of law that we review de novo." King v. Briggs, 83 F.3d 1384, 1387 (Fed.Cir.1996).

Diamond argues the Board possessed jurisdiction pursuant to 5 U.S.C. § 7701 (1994). That statute provides that "[a]n employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation," 5 U.S.C. § 7701(a), and further provides that agency decisions that are not in accordance with law cannot be sustained, 5 U.S.C. § 7701(c)(2)(C).

The thrust of Diamond's jurisdictional argument is that, in order to remove him from his position, the agency was required to follow certain statutory procedures and that, if those procedures were not followed, he was entitled to appeal to the Board for relief. Specifically, Diamond argues the agency was required to comply with that statute which authorizes, under certain conditions, the removal of a career employee and which states:

A career appointee may not be removed from the Senior Executive Service or civil service except in accordance with the applicable provisions of sections 1215, 3393a, 3592, 3595, 7532, or 7543 of this title.

5 U.S.C. § 3393(g). ² Most of the sections cited in section 3393(g) authorize a removed employee to appeal to the Board. Thus, if the agency was required to comply with section 3393(g) when removing Diamond, the Board would, in at least some circumstances, possess jurisdiction over Diamond's appeal.

Therefore, the underlying issue that we must decide is whether the agency was required to comply with 5 U.S.C. § 3393(g) when it removed Diamond or whether Diamond's immediate removal and return to the status quo ante was judicially compelled or justified once the appellate court reversed the district court decision that formed the basis for the order that required the appointment of Diamond to the position from which he was later removed. This appears to be a question of first impression.

Even though the agency did not comply with any of the statutory procedures set forth in 5 U.S.C. § 3393 when it appointed Diamond, there is no doubt Diamond was lawfully appointed to a career position within it is well settled that courts have the authority under Title VII to order placement of federal employees in career SES positions. See Lander v. Lujan, 888 F.2d 153 (D.C.Cir.1989). For this reason and because correspondence from the agency to appellant concerning his conversion to the SES on June 29, 1993, and the Standard Form (SF) 52 and SF 50 documenting that action refer to his placement in the career SES, the record establishes that appellant was lawfully appointed to the career SES that date.

the Senior Executive Service, as found by the Board. As the AJ stated,

Diamond v. United States Agency for International Development, DC-0752-95-0582-I-1 at 3 (Oct. 13, 1995).

As he was lawfully appointed to a career Senior Executive Service position, Diamond therefore contends he may not be removed from his position except under the provisions of 5 U.S.C. § 3393(g). As it is undisputed that the agency did not comply with this statute when it removed him, Diamond contends that the agency erred when it failed to comply with 5 U.S.C. § 3393(g) and that the Board erred when it engrafted a "judicial action" exception onto that statute. Cf. Trayco, Inc. v. United States, 994 F.2d 832, 836 (Fed.Cir.1993) ("[W]here a statute expressly enumerates the requirements on which it is to operate, additional requirements are not to be implied.").

We do not agree with Diamond. It is an undeniable proposition that parties to a court proceeding are obligated to comply with a court order that issues from that proceeding. See, e.g., Maness v. Meyers, 419 U.S. 449, 459, 95 S.Ct. 584, 591, 42 L.Ed.2d 574 (1975) ("The orderly and expeditious administration of justice by the courts requires that 'an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by...