General Accounting Office v. General Accounting Office Personnel Appeals Bd.
| Citation | 698 F.2d 516,225 U.S. App. D.C. 350 |
| Decision Date | 18 January 1983 |
| Docket Number | No. 81-2401,81-2401 |
| Parties | GENERAL ACCOUNTING OFFICE, Petitioner, v. GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD, Respondent, Morris L. Shaller, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Petition for Review of an Order of the General Accounting Office Personnel Appeals Board.
Robert H. Levan, Columbia, Md., for respondent.
Morris L. Shaller, was on the brief, for intervenor, pro se.
Howard S. Scher, Atty., Dept. of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and William Kanter, Atty., Dept. of Justice, Washington, D.C., were on the brief, for petitioner.
Before WRIGHT and EDWARDS, Circuit Judges, and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
TABLE OF CONTENTS
Page
I. FACTUAL BACKGROUND ................................. 518
A. The Proceedings Before the PAB .................. 518
B. The PAB's Disposition of the Case ............... 520
II. DISCUSSION ......................................... 521
A. The Statutory Scheme ............................ 521
B. Reviewability ................................... 523
C. The General Counsel's Role in PAB
Proceedings ..................................... 526
1. The Estoppel Issue ........................... 526
2. The Statutory Authority Permitting
the General Counsel to Prosecute
Appeals in Adverse Action Cases .............. 528
a. Plain Language of the Statute ............. 528
b. Legislative History of the Statute ........ 530
c. Authority of the PAB Versus
that of the Comptroller General ........... 531
d. "Comparable" Models ....................... 532
e. Summary ................................... 533
D. Issues Pertaining to Jurisdictional Questions
and the Merits .................................. 534
III. CONCLUSION ......................................... 536
The General Accounting Office ("GAO") is a legislative support agency responsible for auditing, investigating, reporting on and proposing improvements to the programs and financial activities of executive agencies in the federal government. In 1980, Congress passed the General Accounting Office Personnel Act of 1980 ("GOAPA"), 1 establishing a personnel system for the GAO. This system exists independent of executive branch personnel operations and authorities so as to avoid any conflict of roles between officials in the GAO and officials in the federal agencies subject to GAO oversight. Central to this independent personnel system is the GAO Personnel Appeals Board ("PAB" or "Board"), 2 which, along with a PAB General Counsel ("General Counsel"), 3 carries out functions comparable to those of the Merit Systems Protection Board ("MSPB"), the Office of Special Counsel ("Special Counsel"), the Equal Employment Opportunity Commission ("EEOC"), and the Federal Labor Relations Authority ("FLRA").
The GAO, here as an employer agency, seeks review of a PAB order awarding retroactive reinstatement and backpay to Morris L. Shaller, a grade GS-7 Management Analyst. 4 The GAO contends, first, that the Board had no jurisdiction over the case because Shaller was a probationary employee at the time of his termination. Second, the GAO asserts that, even if the PAB had jurisdiction, the General Counsel, who represented Shaller pursuant to regulations implementing the GAOPA, should have been disqualified from the proceedings. The Board prefaces its response to these arguments with threshold contentions that the appeal must be dismissed as nonreviewable and, alternatively, that the GAO should be estopped from raising the disqualification issue. Otherwise, the Board rejects the GAO's arguments as meritless, contending that its decision is supported by substantial evidence and is not inconsistent with law and, therefore, should be affirmed. 5
For the reasons set forth below, we reject the PAB's nonreviewability and estoppel contentions, affirm the PAB's ruling on the disqualification issue, and defer decision on the merits (including the question of the PAB's jurisdiction) pending further consideration by the PAB on remand of the record.
Morris Shaller began federal employment on March 10, 1980, the date of his career-conditional appointment as a GS-5 grade Procurement Agent with the Defense Logistics Agency ("DLA"). 6 Starting from the date of this initial career-conditional appointment, Shaller began a year-long probationary period. 7 Prior to completion of that trial period, the GAO gave Shaller a career-conditional appointment, effective May 4, 1980, without break in service, as a GS-7 grade Management Analyst. 8 The precise nature of the personnel action effecting Shaller's GAO appointment is seriously disputed. The Standard Form 52 ("SF 52"), requesting the personnel action, indicates both that Shaller was selected from a certificate of eligibles and that he was transferred. 9 Whatever the nature of the personnel action effecting Shaller's appointment, however, the SF 52 clearly indicates that he was "subject to completion of [a] 1 year probationary (or trial) period commencing 05-04-80." 10
On March 10, 1981, the GAO notified Shaller that he would be terminated effective March 21, 1981. 11 It is undisputed that this notice failed to grant Shaller procedural protections accorded non-probationary terminatees. 12 Shaller wrote to the PAB on March 12, contending that, because he had already completed a year of service with the federal government, his termination failed to comply with proper procedures. 13 The General Counsel notified Shaller on March 19 that the complaint letter would be treated as a petition for review, despite having been filed prematurely. 14 On March 25, the GAO responded to the petition and indicated that Shaller's appointment was by selection from a certificate of eligibles. The GAO thus concluded that, because such selectees are required to complete a new trial period commencing from the date of appointment, Shaller was not entitled to the procedural rights of a non-probationary employee. 15
Upon receipt of the GAO's response, the General Counsel commenced an investigation of the case. After completion of his investigation, the General Counsel issued a report finding that Shaller was a non-probationary employee on the date of his discharge; the General Counsel accordingly opined that Shaller should be reinstated with backpay. 16 Thereafter, the General Counsel drafted and filed a petition with the PAB formally alleging improper termination and seeking reinstatement and backpay for Shaller. On May 29, 1981, the PAB, in turn, notified Shaller and the GAO of the completion of the investigation and the filing of the petition. 17 Appended to this notice was a copy of the petition, which indicated that the General Counsel would represent Shaller in all subsequent proceedings. 18
On receipt of the PAB's notice, the GAO filed a response requesting a hearing, but making no objection to the General Counsel's representation of Shaller or otherwise indicating that the General Counsel's role in the proceedings would be at issue. 19 The PAB set a hearing for July 28, 1981. 20 On July 24, 1981, four days before the scheduled hearing, the GAO filed motions to disqualify the PAB's General Counsel and to stay the proceedings pending resolution of "the legal issue of the right of the General Counsel ... to act in a prosecuting role, or as a representative of a General Accounting Office employee, in hearings by the Board ...." 21 The PAB rejected these motions summarily. 22 At the July 29 hearing, the PAB accorded the GAO an opportunity to renew its motion for a stay; 23 but after hearing argument on the motion, the PAB again denied the GAO's request. 24 The GAO's representatives thereupon refused to participate further in the proceedings and left the hearing. 25
The PAB's initial decision, issued on August 11, 1981, failed to consider the disqualification issue, concluded that Shaller was non-probationary on the date of his discharge, invalidated the termination, and awarded reinstatement with backpay. 26 On the motion to stay, the PAB explained that "[t]his issue was not raised in a timely manner," and "[t]o defer a decision regarding [Shaller's] appeal would ... prejudice [his] ... right to timely resolution of [the] ... appeal;" in addition, the Board pointed out, "other alternatives are available to [the GAO] ... should it wish to further pursue [the] ... issue of representation before the Board." 27 On the merits, the PAB concluded that the "transfer" designation on the SF 52 governed the nature of the personnel action; since employees appointed non-competitively by transfer need not serve a new probationary period, the Board held that Shaller had only to complete the trial period he began at the DLA, which ended March 9, 1981. 28
On September 9, 1981, the GAO moved for reconsideration of the decision. 29 The GAO advanced several new arguments on the issue of Shaller's employment status and narrowed its grounds for challenging the General Counsel's authority to represent Shaller. The GAO for the first time argued that Shaller's transfer to a GS-7 grade position violated certain competitive appointment principles. And while the GAO had originally argued that the General Counsel was ineligible to appear in any case before the Board, it now argued only that the General Counsel was ineligible to appear representing individual employees in adverse action appeals.
The PAB denied the motion for reconsideration...
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