Hurley v. U.S.

• Decision Date: 17 April 1978
• Docket Number: No. 76-1818,76-1818
• Citation: 575 F.2d 792
• Parties: Royce G. HURLEY, Plaintiff-Appellant, v. UNITED STATES of America, Dr. John L. McLucas, Administrator, Federal Aviation Administration of the United States Department of Transportation, and Robert Hampton, Jayne B. Spain, and L. J. Andolsek, as members of the United States Civil Service Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 792

575 F.2d 792

Royce G. HURLEY, Plaintiff-Appellant, v. UNITED STATES of America, Dr. John L. McLucas,

Administrator, Federal Aviation Administration of the United

States Department of Transportation, and Robert Hampton,

Jayne B. Spain, and L. J. Andolsek, as members of the United

States Civil Service Commission, Defendants-Appellees.

No. 76-1818.

United States Court of Appeals, Tenth Circuit.

Argued Dec. 13, 1977.

Decided April 17, 1978.

Claude V. Sumner, Midwest City, Okl. (Ferrill H. Rogers, Oklahoma City, Okl., on brief), for plaintiff-appellant.

William S. Price, Asst. U. S. Atty., Oklahoma City, Okl. (David L. Russell, U. S. Atty., Oklahoma City, Okl., on brief), for defendants-appellees.

Before SETH, Chief Judge, DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

This dispute arises in the labyrinth of Federal Civil Service regulations. We are called upon to review the district court which reviewed and affirmed the Civil Service Commission Board of Appeals and Review (Board) which reviewed and reversed the Civil Service Commission (CSC) hearing examiner.

SCOPE OF OUR REVIEW

It is not our prerogative to substitute our judgment for that of the Board. The decision of the Board is to be given nearly every presumption of validity that the law presently grants to any administrative adjudication. Since this appeal involves no issues of fact, we concentrate solely on issues of law and the application of legal concepts to facts. The Board's interpretation of its own rules and regulations must be sustained and applied as controlling law unless that interpretation is plainly erroneous or inconsistent with the regulations. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). Accord INS v. Stanisic, 395 U.S. 62, 72, 89 S.Ct. 1519, 23 L.Ed.2d 101 (1969); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Gueory v. Hampton, 167 U.S.App.D.C. 1, 4, 510 F.2d 1222, 1225 (1974); Board of Directors & Officers v. National Credit Union Admin., 477 F.2d 777, 784 (10th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 233, 38 L.Ed.2d 158 (1973). In our review of the Board's application of legal concepts to the undisputed facts, however, it is the duty of this court to set aside a decision of the Board if it is "arbitrary, capricious . . . or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1976). See Leefer v. Administrator, NASA, 177 U.S.App.D.C. 62, 66, 543 F.2d 209, 213 & n.34 (1976); Sexton v. Kennedy, 523 F.2d 1311, 1314 (6th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976); Gueory v. Hampton, supra ; Pauley v. United States, 419 F.2d 1061, 1065 (7th Cir. 1969); Vigil v. Post Office Dept. of the United States, 406 F.2d 921, 924 (10th Cir. 1969); Davis v. Berzak, 405 F.2d 642, 644 (10th Cir. 1969). The scope of our review is therefore quite narrow, limited to ensuring that the required procedures have been followed and that the Board's action is not arbitrary or capricious. The arbitrary and capricious standard of review does not require that

the agency's decision be supported by substantial evidence, but only that it have a rational basis in the law. Wroblaski v. Hampton, 528 F.2d 852, 853 (7th Cir. 1976); Wood v. United States Post Office Dept., 472 F.2d 96, 99 n.3 (7th Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2775, 37 L.Ed.2d 399 (1973). Applying this standard we conclude that the decision of the Board must be reversed.

BACKGROUND

Appellant is a preference eligible career civil service employee. As such he is entitled to substantial procedural safeguards in the event he is the subject of a reduction in force (RIF) action as described by 5 C.F.R. §§ 351 et seq. (1977), or an adverse action as explained in 5 U.S.C. §§ 7511-7512 (1976). Under the RIF procedures outlined in 5 C.F.R. §§ 351 et seq. a preference eligible employee is entitled to preferential treatment in his retention and competition for alternative positions of civil service employment within his home geographic area if he is released from his competitive level by reassignment, reorganization, or reclassification of position due to change in duties. Section 7511(2) defines adverse actions as "a removal, suspension for more than 30 days, furlough without pay, or reduction in rank or pay." Section 7512 provides that an agency may take adverse action against a preference eligible employee "only for such cause as will promote the efficiency of the service," and requires that the employee against whom adverse action is proposed receive advance written notice explaining the nature and reason for the proposed action, an opportunity for full hearing on the matter, and notice of any adverse decision.

Prior to the agency action here under review appellant was a GS-13 program control officer in the Federal Aviation Administration (FAA), Southwest Region, stationed at Ft. Worth, Texas. His duties in this position were originally described as providing managerial and administrative staff support to a superior officer in the flight inspection program. These responsibilities gradually eroded, however, and from 1971 to 1973 appellant's principal duties were connected with an aircraft rental program. Although the duties he actually performed had changed considerably over the years, the agency had made no attempt to reclassify his position as required by CSC regulations.

The Federal Personnel Manual (FPM) 351, Subch. 2-6(a)(2) (1973) provides that an

agency must follow the reduction-in-force procedures in either of the following situations:

(a) When management deliberately changes duties assigned an employee and

(b) When a gradual change results in classification of duties at a lower grade. (emphasis added)

Thus, when appellant's original duties in the flight inspection program eroded, and if his duties in the aircraft rental program no longer could support his GS-13 position as program control officer, it was the imperative duty of the agency to initiate a RIF action in the Southwest Region, giving appellant the preferential treatment for alternative FAA employment to which he was entitled in the area of his Ft. Worth home.

As discussed below, it was the failure of the agency to follow this mandatory procedure that precipitated subsequent errors leading to the controversy now before us on appeal. We regret that the failure of the agency to undertake the prescribed RIF action in the Southwest Region was neither discovered nor rectified by appropriate corrective Board action as required by FPM 351, Subch. 1-11 (1973).

FACTS

The agency was apparently beginning to discharge its duty to conduct a RIF action when it fired its opening salvo in the form of letters dated June 6 and 29, 1973. In those letters the agency notified appellant that his position as a program control officer would be abolished within 120 days pursuant to a major FAA reorganization.

                (A.R. 16, 616.)  1 Appellant immediately inquired whether he would receive the benefits of an appropriate RIF proceeding in the Southwest Region (A.R. 15), and was informed that RIF regulations did not apply to the type of reorganization contemplated.  (A.R. 16.)  On July 8, 1973, the position of program control officer with its eroded, nearly non-existent duties was transferred from the Southwest Region to the Oklahoma Region.  In a mass personnel change, appellant was identified with the transferred program control officer functions and was likewise transferred from Ft. Worth to Oklahoma City.  The aircraft rental program functions were specifically exempted from the list of functions being transferred and remained instead in the Southwest Region as part of another FAA position.  (A.R. 621.)
                

Twenty-three days later, and in accordance with the June 6, 1973 letter, the agency abolished appellant's position as program control officer in a RIF proceeding conducted in the Oklahoma Region. Presented with the choice of leaving the civil service altogether or accepting a GS-12 position available in the Oklahoma Region, appellant accepted the lower grade position and immediately appealed to the Civil Service Commission, seeking review of the agency proceedings by which he was first transferred to the Oklahoma Region and subsequently reduced to a lower grade position. Because the RIF action was taken after his transfer to the Oklahoma Region, appellant complained that he was deprived of the preference consideration he would have received in his home area, the Southwest Region, had the RIF been conducted prior to his transfer.

PRIOR PROCEEDINGS

On review, the CSC hearing examiner concluded that appellant's transfer to the Oklahoma Region was fatally defective and that the Oklahoma Region therefore lacked jurisdiction over appellant when it processed the subsequent RIF action. (A.R. 136.) The CSC Board of Appeals and Review reversed, finding that appellant's transfer was valid under applicable CSC rules and regulations. (A.R. 156-57.) On remand to the hearing examiner and on subsequent appeal to the Board, the RIF action undertaken in the Oklahoma Region was also upheld as valid. (A.R. 3, 46.)

Appellant's unsuccessful appeal to the district court focused solely on the transfer issue and whether appellant suffered an adverse action by reason of the transfer. He did not and does not now complain that if he was properly included in the transfer to the Oklahoma Region the RIF action ultimately taken was improper. His timely complaint to the agency, hearing examiner, Board and district court is that the RIF action should have taken place in his home region and that he should not have been included in the transfer to the Oklahoma Region. We agree.

VALIDITY OF THE TRANSFER

Our primary consideration is whether the Board's determination that appellant was properly transferred is sustained by a rational basis in the law. The validity of appellant's transfer turns on two independent, but related, factors: (1)...