Horner v. Schuck
| Decision Date | 06 April 1988 |
| Docket Number | Nos. 86-1723,87-3184,s. 86-1723 |
| Citation | 843 F.2d 1368 |
| Parties | Constance HORNER, Director, Office of Personnel Management, Petitioner, v. Richard N. SCHUCK and Alfred E. Washington, Respondents, and Merit Systems Protection Board, Intervenor. Constance HORNER, Director, Office of Personnel Management, Petitioner, v. H. Anthony JAMES, Jule Hawkins, Robert Lloyd, Jr., Neal Smith and Norman L. Degrange, Respondents, and Merit Systems Protection Board, Intervenor. |
| Court | U.S. Court of Appeals — Federal Circuit |
Elizabeth S. Woodruff, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for petitioner. With her on the brief, were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan, Asst. Director. Also on the brief, were James Hicks, Office of Personnel Management, Washington, D.C., R. Andrew German and Suzanne Hassell Milton, Office of Labor Law, Washington, D.C., of counsel.
Robert F. Laufman, Cincinnati, Ohio, argued for respondents.
Deborah Stover-Springer, Merit Systems Protection Bd., Washington, D.C., argued, for intervenor. With her on the brief, were Llewellyn M. Fischer, General Counsel, Mary L. Jennings, Deputy General Counsel, Marsha E. Mouyal, Reviewer of Litigation and Rita S. Arendal.
Before NEWMAN and ARCHER, Circuit Judges, and BALDWIN, Senior Circuit Judge.
In this consolidated appeal, Constance Horner, Director of the Office of Personnel Management (OPM), petitions, pursuant to 5 U.S.C. Sec. 7703(d) (1982), for review of the final decisions of the Merit Systems Protection Board (MSPB or board) in Schuck, et al. v. United States Postal Service, Docket Nos. CH07528410682 and CH07528510070, and James, et al. v. United States Postal Service, Docket Nos. CH07528510638, CH07528510567, CH07528510583, CH07528510598 and CH07528510633. The board held that (a) placement of respondents, who were regular full-time employees that had been given light duty assignments, in nonpay, nonduty status because of lack of work violated the collective bargaining agreement between the United States Postal Service (Postal Service or agency) and the unions representing respondents, (b) that their placement in such status for periods of less than thirty days were furloughs requiring the use of adverse action procedures, and (c) that their placement in such status for periods of more than thirty days were reductions in force requiring the use of reduction in force procedures. We affirm the decisions of the board.
Respondents are full-time regular employees of the Postal Service who, due to non-job related physical conditions, were given temporary or permanent light-duty assignments. Allegedly due to a lack of work within their job restrictions, and not for disciplinary reasons, they were involuntarily placed in nonpay, nonduty status on several occasions in 1984 and 1985. As preference eligible veterans who had completed more than one year of service, respondents appealed these agency actions to the MSPB. 5 U.S.C. Secs. 2108, 7511(a)(1)(B) and 7701 (1982).
The Administrative Judges (AJs) in Schuck and James held that placement of respondents in nonpay, nonduty status violated Article 8 of the collective bargaining agreement between the Postal Service and the unions representing respondents. See 39 U.S.C. Sec. 1206 (1982). In addition, they found that the nonpay, nonduty status for periods of less than thirty days constituted furloughs under 5 U.S.C. Sec. 7511(a)(5) (1982) and that the Postal Service failed to use the adverse action procedures required by 5 U.S.C. Sec. 7513 (1982). In James, the AJ found that furloughs of more than thirty days constituted reductions in force under 5 C.F.R. Secs. 351.201(a)(2) and 351.202(a)(1) (1985) and that the Postal Service failed to follow the reduction in force procedures The full board denied the Postal Service's petitions for review of the Schuck and James initial decisions and also denied the Director of OPM's petitions for reconsideration. The Director then petitioned this court for review pursuant to 5 U.S.C. Sec. 7703(d) (1982). After review was granted, the MSPB moved to intervene, filed its brief in opposition to the petition for review, and requested reconsideration of the order granting review. This court denied MSPB's motion for reconsideration and ordered that the issues raised be addressed on brief, consolidated the Schuck and James appeals, and granted the MSPB's motion to intervene.
set forth in 5 C.F.R. Part 351 (1985). 1
The MSPB argues that the Director's petition should be dismissed because (1) the board's decisions were an interpretation of a collective bargaining agreement, not an interpretation of a civil service law, rule, or regulation under the jurisdiction of OPM, (2) the board's decisions would not have "substantial impact" on a civil service law, rule, or regulation, and (3) the cases were "mixed cases" outside this court's jurisdiction since they involved claims of discrimination.
The authority of the Director of OPM to seek judicial review of board decisions is set forth in 5 U.S.C. Sec. 7703(d), which states:
The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Director determines, in [her] discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied....
The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. Secs. 1101 et seq., contains no express definition of a "civil service law." In 5 U.S.C. Sec. 2101(1) (1982), however, the civil service is referred to as consisting of "all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services." The Postal Service is included as an "establishment of the executive branch." 39 U.S.C. Sec. 201 (1982); Bacashihua v. Merit Systems Protection Board, 811 F.2d 1498, 1501 (Fed.Cir.1987). Cf. United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (). Moreover, the Postal Reorganization Act (PRA), 39 U.S.C. Sec. 101 et seq., provides in 39 U.S.C. Sec. 1001(b) (1982) that:
Officers and employees of the Postal Service ... shall be in the postal career service, which shall be a part of the civil service....
Although employees of the Postal Service are generally excluded from coverage of the CSRA, 5 U.S.C. Sec. 2105(e) (1982), a specific exception to that rule is contained in 5 U.S.C. Sec. 7511(a), which states, in pertinent part:
(1) "employee" means--
* * *
* * *
(B) a preference eligible in ... the United States Postal Service ... who has completed 1 year of current continuous service in the same or similar positions....
The inclusion of preference eligible employees of the Postal Service in the definition of "employee" affords them the procedural In view of the breadth of these provisions, there can be little doubt that preference eligible employees of the Postal Service are to be treated the same as civil service employees. It is arguable that the PRA should be considered a civil service law because of the language of 39 U.S.C. Sec. 1001(b). We need not decide this, however, because it is clear that the board interpreted a civil service law by deciding whether it had authority under 5 U.S.C. Sec. 7511 to apply CSRA principles to the placement of petitioners in a nonpay, nonduty status.
rights set forth in Subchapter II of Chapter 75 of Title 5 of the U.S. Code, relating to "Removal, Suspension for more than 14 days, Reduction in Grade or Pay, or Furlough for 30 days or less."
Postal employees are bound by the terms and conditions of employment set forth in a collective bargaining agreement negotiated pursuant to the PRA. 39 U.S.C. Secs. 1206 and 1209 (1982). The agreement contains a grievance arbitration process by which disputes as to the interpretation of the agreement may be resolved. Inasmuch as the board considered the scope of its authority to interpret the collective bargaining agreement in light of CSRA principles and the PRA's provisions for dispute resolution, its decisions in Schuck and James involved interpretation of a civil service law. Moreover, in deciding that the agency actions constituted furloughs or reductions in force, the board determined the applicability of 5 U.S.C. Secs. 7511(a)(5), 7512 and 5 C.F.R. Secs. 351.201(a)(2), 351.202(a)(1) and in doing so was engaged in the interpretation of civil service laws and regulations.
The MSPB contends that even if the board decisions involved interpretation of a civil service law, 5 U.S.C. Sec. 7701 (1982) and the legislative history of section 7703 demonstrate that the Director lacks authority to seek review unless the law is one that OPM is "responsible" for administering.
Section 7701(d)(1) provides:
In any case in which--
(A) the interpretation or application of any civil service law, rule, or regulation, under the jurisdiction of the Office of Personnel Management is at issue in any proceeding under this section; and
(B) the Director of the Office of Personnel Management is of the opinion that an erroneous decision would have a substantial impact on any civil law, rule, or regulation under the jurisdiction of the Office; the Director may as a matter of right intervene or otherwise participate in that proceeding before the Board.... (Emphasis...
To continue reading
Request your trial
-
James v. Von Zemenszky
...of a statutory or regulatory provision is at issue. See, e.g., Brook v. Corrado, 999 F.2d 523 (Fed.Cir.1993); Horner v. Schuck, 843 F.2d 1368 (Fed.Cir. 1988). We conclude that the potential effect of the Board's ruling on employment practices within DVA is sufficient to meet the "substantia......
-
Kaplan v. Conyers
...a federal district court. Kloeckner, however, interpreted 5 U.S.C. § 7703(b) and not § 7703(d), which is applicable here. As we reasoned in Horner: There are sound reasons for Congress to establish in sections 7701 and 7703 different standards for the Director's participation. Under section......
-
King v. Lynch
...management are fully considered. Petition at 6. The Director grounds its position on the decisions of this court in Horner v. Schuck, 843 F.2d 1368 (Fed.Cir.1988), and Horner v. MSPB, 815 F.2d 668 (Fed.Cir.1987). In Schuck, we granted the Director's petition for review of a decision by the ......
- Dow Chemical Co v. Astro-Valcour