Dowd v. U.S.

Citation713 F.2d 720
Decision Date01 August 1983
Docket NumberNo. 83-582,83-582
PartiesJames B. DOWD, Jr., Petitioner, v. The UNITED STATES, Respondent. Appeal
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

James E. Maxfield, Washington, D.C., argued, for petitioner.

R. Anthony McCann, Washington, D.C., argued, for respondent. With him on the brief were J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Washington, D.C.

Before MILLER, Circuit Judge, SKELTON, Senior Circuit Judge, and SMITH, Circuit Judge.

EDWARD S. SMITH, Circuit Judge.

Petitioner claims that time-in-grade restrictions were improperly applied to him by the Department of the Army, resulting in its refusal to consider him for a position for which he was otherwise eligible. The Merit Systems Protection Board (board) denied relief on the ground that it lacked jurisdiction of claims arising out of time-in-grade restrictions. We reverse.

Petitioner was a Management Auditor at the GS-7 level with the General Accounting Office, a congressional establishment and so a part of the legislative branch. On July 9, 1980, the Office of Personnel Management (OPM) rated petitioner eligible for a position at the GS-13 or GS-14 level. He then applied for a job as a Supervisory Operations Research Analyst, GS-12, with the Army at Fort Sill, Oklahoma. The Army, however, rated him ineligible for the position because he had not met the time-in-grade restriction of having "served 1 year at the next lower grade." 1

Time-in-grade restrictions are set out in subpart F of part 300, 5 C.F.R. 2 Generally speaking, these restrictions are a way of avoiding the management problems that would result from overly fast promotion within the work force. 3 The restrictions apply without respect to a person's merit-related qualifications; however, the restrictions are specifically limited in application to the competitive service in the executive branch. Section 300.601, "Applicability," states: 4

This subpart does not apply:

(1) When the position from which the advancement is made is outside the competitive service and in the legislative or judicial branch; * * *.

It is undisputed that petitioner was in the excepted service in the legislative branch; it is therefore conceded by the Government--and recognized by the board--that the Army plainly erred in rating petitioner ineligible under the time-in-grade restrictions. Why, then, was relief not forthcoming?

It is fundamental that the board's jurisdiction is not plenary. Its jurisdiction is limited by statute and regulation; it has no implied or inherent jurisdiction. 5 The board's statutory jurisdiction is set out at 5 U.S.C. § 7701: 6

An employee * * * 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. * * *

This appellate jurisdiction is codified in the board regulations, the pertinent part of which provides: 7

This appellate jurisdiction includes:

* * *

* * *

(8) Those actions for which jurisdiction may be properly granted by regulations of the Office of Personnel Management (OPM).

The relevant OPM regulations, subpart A of the aforementioned part 300, in turn provide, in pertinent part: 8

Employment practices. A candidate who believes that an employment practice which was applied to him or her by the Office of Personnel Management violates a basic requirement in § 300.103 is entitled to appeal to the Merit Systems Protection Board * * *.

Thus, to be appealable an action must not only meet the requirements of section 300.103, 9 but as a threshold matter it must be an employment practice within the meaning of subpart A. It is the question whether the misapplication of the time-in-grade restrictions (subpart F) is an employment practice within the meaning of subpart A that separates the parties on appeal.

Analysis must begin with the definition of employment practices in subpart A: 10

For the purpose of this subpart, the term "employment practices" includes the development and use of examinations, qualification standards, tests, and other measurement instruments.

The board, in the Hellman case 11 on which it solely relied in its decision in this case, interpreted this language narrowly. It held, in essence, that the term "employment practices" only includes examinations, measurement tools, and qualifications directly relating to merit. The board claimed that subpart A is exclusively concerned with discrimination and the prevention of non-merit selection. The board contrasted this narrow purpose of subpart A with an equally narrow, and quite different, purpose of subpart F, the time-in-grade restrictions. Subpart F, the board stated, is the lineal descendant of the so-called Whitten Amendment, 12 an emergency fiscal measure to control the rapid growth of the work force during the Korean War, which expired in 1978. 13 The time-in-grade restrictions are therefore, the board argues, not a simple regulation establishing another qualification for eligibility but an overriding mandate not subject to review by the board.

We see two crucial flaws in the board's reasoning. First, the board read the purpose of subpart A far more narrowly than is supported by the authority it relied upon. The board stated that in promulgating subpart A the Civil Service Commission (OPM's predecessor) "specifically cited 5 U.S.C. §§ 7151 and 7154 as authority for issuance. These sections generally relate to the anti-discrimination policy and minority recruitment program of the federal government." 14 In fact, the cited authority reads as follows: 15

AUTHORITY: The provisions of this Subpart A issued under 5 U.S.C. secs. 3301, 3302, * * *. Secs. 300.101-300.104 also issued under 5 U.S.C. secs. 7151, 7154, * * *. [Emphasis supplied.]

Sections 7151 and 7154 are consistent supporting authority cited in addition to sections 3301 and 3302, which are general authorizations to regulate the civil service. 16 Sections 7151 and 7154 were not even mentioned in the original notice of proposed rulemaking, though sections 3301 and 3302 were. 17 The only conclusion that can be drawn from the authority for subpart A is that sections 7151 and 7154 are mentioned specifically in relation to it, not because they are necessarily the subpart's basis or its main purpose, but because sections 7151 and 7154 have nothing whatever to do with the other subparts.

The second flaw is that the history of subpart F is given far too much weight. While its pedigree is significant, the Whitten Amendment, having expired, subpart F is a regulation like any other. As such, it is entitled to no less scrutiny as it affects the rights of civil servants. Furthermore, while time-in-grade restrictions no doubt contribute to fiscal stability, they may well also ensure an experienced work force--a "merit" consideration.

We therefore conclude that the origins of subparts A and F do not prove that time-in-grade restrictions are not qualifications or employment practices. The opposite conclusion, we believe, is compelled by an examination of the language and structure of the relevant provisions.

The definition in section 300.101--"the term 'employment practices' includes"--suggests a broad meaning. The term itself, "employment practices," has a naturally broad and inclusive meaning that would ordinarily embrace the application of time-in-grade restrictions. The definition is couched in inclusive language, which does not imply that anything within the natural meaning is excluded. 18 In addition, section 300.101, before defining employment practices, states: 19

The purpose of this subpart is to establish principles to govern * * * the employment practices of the Federal Government generally, and of individual agencies, that affect the recruitment, measurement, ranking, and selection of individuals * * *. [Emphasis supplied.]

Following as it does this broad statement, therefore, the inclusive definition of employment practices cannot reasonably be read to apply narrowly to tests alone.

The administrative history underlines this conclusion. The proposed subpart was described as "regulations to insure that examining, testing, standards and employment practices" 20 (emphasis supplied); the final version described "examining, testing, and other employment practices" 21 (emphasis supplied). Both descriptions suggest a scope of employment practices that goes beyond merit-based tests.

Furthermore, as a structural matter, it is significant that subpart A does not go on to describe or prescribe "examinations, qualification standards, tests, and other measurement instruments." It is therefore a provision of general applicability. 22 This conclusion also follows from the placement of subpart A among the general provisions of part 300, "Employment (General)." We therefore hold that the application of time-in-grade restrictions is an employment practice within the meaning of subpart A and is appealable thereunder.

Perhaps recognizing the awkwardness of judging time-in-grade restrictions by the relevance, job analysis, and discrimination "Basic requirements" of section 300.103 23 --the second half of the appeal standards set out in section 300.104(a) 24 --and wishing to avoid the effect of Hellman, petitioner suggests that we distinguish between the application of time-in-grade restrictions to an individual and their validity with respect to a particular job. While this is a valid theoretical distinction, it has little practical significance here. Unlike tests or merit qualifications, the exact contours and requirements of time-in-grade restrictions are set out by regulation, equal in dignity to the "Basic requirements" in section 300.103. Their validity as applied to a particular job has, in this sense, already been confirmed by regulation, and applicability is the only remaining issue. Hellman, therefore, cannot be distinguished, but it can be reinterpreted simply to affirm that time-in-grade...

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