Haley v. Department of Treasury, No. 92-3077

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtBefore LOURIE, Circuit Judge, RADER, Circuit Judge, and MILLS; RICHARD MILLS
Citation977 F.2d 553
Docket NumberNo. 92-3077
Decision Date13 October 1992
PartiesMichael J. HALEY, Petitioner, v. DEPARTMENT OF the TREASURY, Respondent.

Page 553

977 F.2d 553
Michael J. HALEY, Petitioner,
v.
DEPARTMENT OF the TREASURY, Respondent.
No. 92-3077.
United States Court of Appeals,
Federal Circuit.
Oct. 13, 1992.
Rehearing Denied; Suggestion for
Rehearing In Banc Declined
Dec. 2, 1992.

Page 554

Samuel H. Liberman, Clayton, Mo., argued for petitioner.

Allen D. Bruns, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief was Theodore Dreyer, Attorney, Office of Thrift Supervision, Dept. of The Treasury, of counsel.

Before LOURIE, Circuit Judge, RADER, Circuit Judge, and MILLS, District Judge. *

RICHARD MILLS, District Judge.

We deal here with the disclosure of confidential information.

Consequently, there was a Stipulated Protective Order, and the oral arguments before this court were closed to the public.

I. Procedural History

Petitioner Michael J. Haley petitions for judicial review of the June 4, 1991 decision of the Administrative Judge (AJ), Docket No. SL122191W0098, dismissing the petitioner's claim for corrective action under 5 U.S.C. § 1221 (Supp. II 1990) and determining that it was without jurisdiction to entertain his appeal under 5 U.S.C. § 7701(a) (1988). The petitioner was removed from his position as a Senior Examiner with the Office of Thrift Supervision, Department of the Treasury (the "Agency" or "OTS"), for violating standards of conduct regarding the release of confidential information to unauthorized individuals. The AJ's decision became the final decision of the Merit Systems Protection Board when the Board denied review on October 22, 1991.

II. Factual Background

Petitioner began his federal service in 1977 as an Examiner with the Federal Home Loan Bank Board (the "FHLBB") and during his tenure with the FHLBB was in the competitive service. When the FHLBB became an independent government corporation in 1985, Petitioner consequently lost his status as a federal employee. Pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), the FHLBB was abolished and on October 8, 1989, Petitioner became an employee of the Agency.

While employed as a Senior Examiner with the Agency, Petitioner became familiar with the fiscal condition of the Marion County Mutual Loan and Building Association ("MCM"), a savings and loan association in Hannibal, Missouri. Because MCM did not meet the stringent capital requirements imposed pursuant to FIRREA, it was required to submit to the Agency a capital plan (the "Plan") demonstrating that the capital requirements would be met within a reasonable period of time.

MCM submitted its Plan to the Agency in early 1990 explaining that "[t]he primary feature of the Plan will be to complete a conventional conversion to stock form by December 31, 1990, with a simultaneous conversion of net worth certificates and/or accrued interest payable to GAAP [generally accepted accounting procedures] equity...." MCM's Plan was subsequently rejected by the Agency.

Page 555

On April 30, 1990, in conjunction with the denial of the Plan, MCM was asked by the Agency to sign a Consent Agreement. When executed by both parties, the Consent Agreement would: (1) place restrictions on the operation of MCM; (2) provide for the appointment of a conservator or receiver; (3) authorize the Agency to negotiate a plan of merger, consolidation, or reorganization; and (4) allow for changes in the management of MCM.

On July 3, 1990, Petitioner prepared a memorandum addressed to Robert A. Maffitt, Director of Field Operations for the Agency, criticizing the supervisory officials of the Agency for failing to approve MCM's Plan. This memorandum contained the Agency's confidential financial information about the failing savings and loan institution, the potential removal of MCM's Board of Directors and management, and the possible merger of MCM with another institution. Petitioner sent a copy of the memorandum to Bayard Plowman, Managing Officer of MCM, encouraging Plowman to forward copies of the memorandum to his Congressman and to the head of the House of Representatives Banking Committee.

On July 26, 1990, due to his distribution of confidential information to unauthorized personnel in the aforementioned memorandum, Petitioner was removed from his position with the Agency.

III. Standard of Review

The standard of review for this court in considering the Board's decision is limited. "The agency action must be sustained unless it is found to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedure required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence...." Warren v. Dep't of the Army, 804 F.2d 654, 655-66 (Fed.Cir.1986).

We note as an initial premise that this court's proper role is not to conduct a de novo review of the findings reached by the Board. Instead, this court must determine whether the Board's decision is supported by substantial evidence. In addition, while the Petitioner offers a multitude of arguments in support of his position that the Board erred in reaching its conclusions, this court will address only those which it feels have sufficient merit to warrant consideration.

IV. Analysis

A. The Board's Jurisdictional Authority to Entertain Petitioner's Due Process Claim

Petitioner first contests the Board's determination that it lacked jurisdiction to entertain his claim: that the Agency failed to give him any procedural safeguards when effecting his removal. He argues that because he was in the competitive service until 1985 (the date on which the FHLBB became an independent government corporation) when he became employed by the Agency in 1989 he reentered as a federal employee and was therefore entitled to return to a position in the competitive service. Petitioner contends that the Agency had no right to reinstate him as an excepted employee because pursuant to 5 C.F.R. § 6.1(a) the Agency could not show that his position as an Examiner should have been one excepted from the competitive service.

The Board rejected Petitioner's argument concluding that "OTS appointed the appellant to the excepted service as authorized by OPM [the Office of Personnel Management] [ ("OPM") ]. Therefore ... he is not entitled to appeal to the Board under 5 U.S.C. § 7511(a)(1)(A)(i)."

Pursuant to 5 U.S.C. § 7511(a)(1) (Supp. II 1990),...

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11 practice notes
  • Part II
    • United States
    • Federal Register May 22, 2008
    • 22 Mayo 2008
    ...duties correctly, fairly, in good faith, and in accordance with law and governing regulations.'' Haley v. Department of the Treasury, 977 F.2d 553, 558 (Fed. Cir. 1992) (quoting Parsons United States, 670 F.2d 164, 166 (Ct. Cl. 1982)), cert. denied, 508 U.S. 950 (1993). See also Assoc. of N......
  • NEC Corp. v. U.S., No. 98-1020
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 7 Agosto 1998
    ...with law and governing regulations, and the burden is on the plaintiff to prove otherwise."); Haley v. Department of the Treasury, 977 F.2d 553, 558 In the context of this case, however, we need not decide whether the obligation imposed on the Government to deal honestly and fairly with tho......
  • Alaska Airlines, Inc. v. Johnson, Nos. 93-1028
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 26 Octubre 1993
    ...United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 [47 S.Ct. 1, 6, 71 L.Ed. 131] (1926))." Haley v. Department of the Treasury, 977 F.2d 553, 558 (Fed.Cir.1992). And this presumption stands unless there is "irrefragable proof to the contrary." Torncello v. United States, 681 F.2d 756......
  • In re Beatie v. Beatie, No. 1 CA–CV 13–0209.
    • United States
    • Court of Appeals of Arizona
    • 13 Agosto 2014
    ...in the absence of clear and convincing evidence to the contrary.” (internal citations omitted)); see also Haley v. Dep't of Treasury, 977 F.2d 553, 558 (Fed.Cir.1992) ( “ ‘[T]here is a presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance ......
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10 cases
  • NEC Corp. v. U.S., No. 98-1020
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 7 Agosto 1998
    ...with law and governing regulations, and the burden is on the plaintiff to prove otherwise."); Haley v. Department of the Treasury, 977 F.2d 553, 558 In the context of this case, however, we need not decide whether the obligation imposed on the Government to deal honestly and fairly with tho......
  • Alaska Airlines, Inc. v. Johnson, Nos. 93-1028
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 26 Octubre 1993
    ...United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 [47 S.Ct. 1, 6, 71 L.Ed. 131] (1926))." Haley v. Department of the Treasury, 977 F.2d 553, 558 (Fed.Cir.1992). And this presumption stands unless there is "irrefragable proof to the contrary." Torncello v. United States, 681 F.2d 756......
  • In re Beatie v. Beatie, No. 1 CA–CV 13–0209.
    • United States
    • Court of Appeals of Arizona
    • 13 Agosto 2014
    ...in the absence of clear and convincing evidence to the contrary.” (internal citations omitted)); see also Haley v. Dep't of Treasury, 977 F.2d 553, 558 (Fed.Cir.1992) ( “ ‘[T]here is a presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance ......
  • Fiskars Inc. v. Hunt Manufacturing Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 24 Julio 2000
    ...correctly, fairly, in good faith, and in accordance with the law and governing regulations...." Haley v. Department of the Treasury, 977 F.2d 553, 558 (Fed. Cir. 1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 Page 1323 The claims in suit were not amended to add......
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