Dunning v. National Aeronautics and Space Admin.

• Decision Date: 11 October 1983
• Docket Number: No. 82-1259,82-1259
• Citation: 718 F.2d 1170
• Parties: Robert S. DUNNING, Petitioner, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1170

718 F.2d 1170

231 U.S.App.D.C. 132

Robert S. DUNNING, Petitioner, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent.

No. 82-1259.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 3, 1982.

Decided Oct. 11, 1983.

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

Joseph B. Scott, Washington, D.C., with whom Irving Kator, Washington, D.C., was on brief, for petitioner.

Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for respondent. Evangeline W. Swift, Atty., Merit Systems Protection Board, Washington, D.C., also entered an appearance for respondent.

Before WALD, BORK and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

Petitioner Robert Dunning seeks review of a decision by the Merit Systems Protection Board to affirm a 15-day suspension imposed on him by respondent, the National Aeronautics and Space Administration (NASA). He complains that the Board's action was invalid because the Board did not comply with its own procedural regulations in making its decision, and because the decision itself was arbitrary, capricious, and not supported by substantial evidence. We find none of these challenges to the Board's action valid, and affirm.

I

Dunning, an aerospace engineer, has been employed at the Langley Research Center of NASA since 1959. For several years prior to 1978, he had been ranked near last in performance among those at the Center in his grade level. In March 1978, he was identified as one of three low performers in his Division. His supervisor, Jarrell Elliott, who had not been involved in identifying Dunning as a low performer, was instructed to inform Dunning of the identification, to give him a new assignment, and to work with him to upgrade his performance. Accordingly, on July 13, 1978, Elliott met with Dunning, told him about the identification, and gave him a research assignment requiring determination of the potential benefits of a supersonic aircraft with thrust vectoring capability.

Earlier in 1978, Dunning had applied for the position of Head, Stability Control Branch, which he was denied. In July 1978, he requested that NASA undertake an inquiry into the procedures used to fill the vacancy. Displeased with NASA's response to his request, he asked the Civil Service Commission (whose functions in such cases now belong to the Merit Systems Protection Board) to review the procedures. When he advised Elliott that he had initiated this complaint, Elliott said that it was going to create a lot of extra work and tried unsuccessfully to persuade Dunning not to persist. In October 1978, the Civil Service Commission found Dunning's complaint not to warrant investigation, because it lacked sufficient factual basis.

In July 1978, Elliott started keeping notebooks on his meetings and conversations with Dunning, in anticipation that Dunning's complaint might create a need for documentation of his relations with Dunning. The notebooks recorded 14 meetings with Elliott between August 1978 and December 3, 1979 to discuss progress on the thrust vectoring project. After one such meeting in December 1978, attended also by Phillips, the head of Dunning's Division, Elliott and Phillips agreed that Dunning's performance was inadequate and that his within-grade pay increase should be withheld. That decision was reversed by the Director for Electronics, Stitt, who felt that while Dunning was not making much progress on the assignment, this was probably due to his having to spend too much time on other matters.

At the meeting held on August 3, 1979, and repeatedly at subsequent meetings, Dunning protested to Elliott that the project was a worthless assignment. Elliott nonetheless insisted that he continue working on it, and he did so.

On October 17, 1979, Dunning asked Elliott for a written work order for the thrust vectoring assignment. Elliott told him to draft one, which he did, dating the order November 1979. Elliott changed the date to August 1978, when he had first assigned Dunning the project.

On December 18, 1979, when asked to report on his progress, Dunning refused to do so until "proper sequencing" had been established. The meaning of "proper sequencing" is in dispute, but according to Dunning it meant that his job order should be changed to delete Elliott's additions. As a result of this refusal, Elliott issued Dunning a written reprimand, the minimum penalty in NASA's tables for an offense of insubordination.

At the next meeting, on January 29, 1980, Dunning was again instructed to report his progress and again refused, on the ground that Elliott had changed the job order to make possible an adverse action and was therefore making the request in bad faith. Elliott warned him that his refusal would be considered insubordination. Elliott subsequently issued Dunning a notice of proposed suspension for 15 days, which was approved by Stitt, the NASA officer who had previously sided with Dunning on the within-grade pay raise.

Dunning appealed the suspension to the Philadelphia Regional Office of the Board. The presiding official assigned to the case found that Dunning's conduct was insubordinate, but that the suspension was tainted by Elliott's desire to retaliate against Dunning for the earlier filing of the unsuccessful Civil Service Commission complaint. NASA appealed to the Board, which vacated the presiding official's decision and affirmed the suspension. Dunning then petitioned this Court for review of the Board's decision.

II

The Board's regulations state that:

the Board may grant a petition for review when it is established that:

(a) New and material evidence is available that, despite due diligence, was not available when the record was closed; or

(b) The decision of the presiding official is based on an erroneous interpretation of statute or regulation.

5 C.F.R. Sec. 1201.115 (1983). Petitioner asserts that the only arguably applicable portion of this regulation, referring to a "decision ... based on an erroneous interpretation of statute," does not include what was appealed to the Board here, an alleged misapplication of the law to the facts. The Board does not share that interpretation, and there is some support in the history of the regulation for its more expansive view. ¹ We find it unnecessary to resolve this issue and assume, without deciding, that the petitioner's interpretation is correct. Even on that assumption the agency has reasonably applied its rules to permit the review here provided.

While setting forth the showings on the basis of which "the Board may grant a petition for review," Sec. 1201.115 does not explicitly provide that review will not be granted in any other circumstance. Moreover, any negative implication that might ordinarily arise is eliminated by the second following section, which provides that "[t]he Board may reopen and reconsider a decision of a presiding official on its own motion at any time, notwithstanding any other provision of this part." 5 C.F.R. Sec. 1201.117. (It is clear that "reopening" does not require that the presiding official's decision first become final through expiration of the specified period without filing of an appeal. See 5 C.F.R. Sec. 1201.113(a).) That provision makes it clear beyond doubt that Sec. 1201.115 is not a categorical restriction upon the Board's review authority, but only sets forth the most common situations in which review will ordinarily be entertained. Or to put the point...