King v. Lynch
| Decision Date | 13 April 1994 |
| Docket Number | No. 332,332 |
| Citation | 21 F.3d 1084 |
| Parties | 90 Ed. Law Rep. 1026, 3 A.D. Cases 193, 5 A.D.D. 233, 5 NDLR P [PG70 James B. KING, Director, Office of Personnel Management, Petitioner, v. Edward J. LYNCH, and Merit Systems Protection Board, Respondents. Misc. |
| Court | U.S. Court of Appeals — Federal Circuit |
Kathryn A. Bleecker, Atty., Dept. of Justice, Washington, DC, argued for petitioner.
George M. Chuzi, Kalijarvi & Chuzi, P.C., Washington, DC, argued for respondent, Edward J. Lynch. Calvin M. Morrow, Atty., U.S. Merit Systems Protection Bd., Washington, DC, argued for respondent, Merit Systems Protection Bd. Of counsel was David C. Kane and Mary L. Jennings, Washington, DC.
Before ARCHER, Chief Judge, 1 BENNETT, Senior Circuit Judge, and NIES, Circuit Judge.
Under 5 U.S.C. Sec. 7703(d), the Director of the Office of Personnel Management (Director or OPM) petitions this court for review of a decision of the Merit Systems Protection Board (MSPB) reversing the Department of Education's removal of Edward J. Lynch, Lynch v. Department of Educ., 52 M.S.P.R. 541 (1992). The Director contends that the MSPB misinterpreted a civil service law and regulation affecting personnel management and that that decision will have a substantial impact on civil service law, rule, regulation, or policy directives. Specifically, the Director asserts that the MSPB erred in interpreting the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, and its implementing regulation 29 C.F.R. Sec. 1613.702, generally prohibiting discrimination against handicapped persons including persons engaged in federal employment. We dismiss the Director's petition for review of the MSPB's decision for lack of jurisdiction.
In March of 1982, the Department of Education (agency) removed Lynch from his position based on charges of unsatisfactory work product and writing skills, failure to submit work in a timely manner and failure to follow through on work, and unauthorized absences. This case has had a long history in which Lynch's allegations of handicap discrimination have been considered by the MSPB, the Equal Employment Opportunity Commission (EEOC), a Special Panel convened pursuant to 5 U.S.C. Sec. 7702(d)(1), and the United States District Court for the District of Columbia, as briefly described below.
Lynch appealed his removal to the MSPB where he raised an affirmative defense of handicap discrimination based on his epilepsy which the agency allegedly failed to accommodate. See 5 U.S.C. Sec. 7702(a)(1)(B)(iii) (). In an initial decision of the MSPB, a presiding official sustained the agency's action in removing Lynch, finding that the agency had proved the latter two of the above three grounds for its actions. On Lynch's affirmative defense of unlawful discrimination, the presiding official held that Lynch was not a "qualified handicapped employee" under 29 C.F.R. Sec. 1613.202(f) because of the side-effects of drugs required to treat his condition. As a result of this holding, the presiding official did not consider whether the agency had reasonably accommodated Lynch's condition. (Lynch I.)
Lynch did not petition the MSPB for review and the initial decision became the final decision of the MSPB. In accordance with 5 U.S.C. Sec. 7702(b)(1), Lynch then petitioned the EEOC to review the MSPB's decision on the discrimination issue. The EEOC ruled that in holding that Lynch was not a qualified handicapped employee the MSPB had applied an improper legal analysis based on an erroneous interpretation of the Rehabilitation Act and 29 C.F.R. Sec. 1613.202(f). Pursuant to 5 U.S.C. Sec. 7702(b)(5)(B), the EEOC referred the case back to the MSPB for further consideration.
The MSPB then reviewed and reaffirmed its decision in Lynch I. Contrary to the finding in Lynch I, the MSPB concluded that the agency had proved all three of the grounds for its action. Based on this determination, the MSPB sustained the presiding official's finding that Lynch was not a qualified handicapped employee because the agency had provided reasonable accommodation and yet Lynch could still not perform the essential functions of his position. Lynch v. Department of Educ., 31 M.S.P.R. 627 (1986) (Lynch II ).
Because the MSPB's decision appeared to be in disagreement with the EEOC's decision, the case was referred to a Special Panel, as required by 5 U.S.C. Sec. 7702(d)(1). The Special Panel affirmed the MSPB's decision in Lynch II, finding that the MSPB had applied the EEOC's standards. Lynch v. Department of Educ., 31 M.S.P.R. 519 (1986).
Lynch then filed suit under 5 U.S.C. Sec. 7703(b)(2) in the United States District Court for the District of Columbia. Count I alleged that the MSPB in Lynch II had overstepped its statutory authority by reopening the performance decision in Lynch I. Count II alleged that Lynch had been discriminated against and, pursuant to 5 U.S.C. Sec. 7702(e)(3), sought de novo review of the discrimination decisions of the MSPB and Special Panel. The district court granted summary judgment for Lynch on Count I of his complaint; as to Count II, the district court remanded to the MSPB for additional proceedings in light of the EEOC's decision. In doing so, the district court retained jurisdiction over the case, including the merits of Count II. Lynch v. Bennett, 665 F.Supp. 62 (D.D.C.1987).
On remand, the MSPB defined the issue before it solely as "whether the agency had made reasonable accommodations to appellant's handicap" under the Rehabilitation Act. The MSPB held the agency had not accommodated Lynch's epilepsy, that the presiding official in Lynch I erred in her analysis of the issue of handicap discrimination, and that Lynch met his burden of proving discrimination. Accordingly, it ordered Lynch reinstated with full relief. Lynch v. Department of Educ., 37 M.S.P.R. 12 (1988) (Lynch III ).
After Lynch received his favorable decision in Lynch III, the Director petitioned the MSPB for reconsideration. The MSPB denied the Director's petition, holding that the Director's right to seek review of an MSPB decision under 5 U.S.C. Sec. 7703(d) extended only to board decisions interpreting civil service laws, rules, and regulations under the jurisdiction of OPM. Finding that the Rehabilitation Act was a discrimination law under 5 U.S.C. Sec. 7702 and not a civil service law, the MSPB held that the Director lacked authority to seek review in the case. Lynch v. Department of Educ., 39 M.S.P.R. 319 (1988) (Lynch IV ).
The Director then sought review in this court. We vacated the MSPB's dismissal of the Director's petition, ruling that the MSPB did not have authority to determine whether the Director's decision to petition for reconsideration was proper and instructed the MSPB to consider the petition on the merits. This court did not consider the question whether the Rehabilitation Act is a discrimination law or a civil service law for purposes of this court's jurisdiction. Newman v. Lynch, 897 F.2d 1144 (Fed.Cir.1990).
On January 31, 1992, the MSPB decided the merits of the Director's petition for reconsideration in favor of Lynch. It held that its decision in Lynch III that the Department of Education had discriminated against Lynch in violation of the Rehabilitation Act "did not articulate an erroneous legal standard" under the Rehabilitation Act and 29 C.F.R. Sec. 1613.202(f). Lynch v. Department of Educ., 52 M.S.P.R. 541 (1992) (Lynch V ).
The Director now petitions this court under 5 U.S.C. Sec. 7703(d) for review of the MSPB's decision in Lynch V.
Both the MSPB and Lynch have filed oppositions to the Director's petition for review of the MSPB's decision, contending that this court lacks jurisdiction to entertain the Director's petition because this is a discrimination case and the Rehabilitation Act, 29 U.S.C. Sec. 794, 2 is not a "civil service law" within the meaning of 5 U.S.C. Sec. 7703(d). 3 The Director has filed a response to the oppositions of the MSPB and Lynch and urges that under the decisions of this court the reference to "civil service law" in Sec. 7703(d) is given broad scope and should include the Rehabilitation Act at issue in this case.
The Director's argument essentially is that any law that can be applied to the civil service should be considered a civil service law for purposes of the Director's right to petition under Sec. 7703(d). Citing the broad definition of "civil service" contained in 5 U.S.C. Sec. 2101(1) (1988), covering "all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services," the Director's petition then observes:
[L]ogic dictates that the term "civil service law ... or regulation" as used in section 7703(d) be given an equally broad reading, so as to ensure that OPM's views upon laws that directly affect Federal civilian personnel management are fully considered.
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 MSPB interpreting a collective bargaining agreement because in doing so the MSPB interpreted and applied civil service laws and regulations relating to furloughs and reductions in force. This court stated 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." 843 F.2d at 1372. The opinion also noted that "in deciding that the agency actions constituted furloughs or reductions in force, the board ... engaged in the interpretation of civil service laws and regulations." Id.
The Director also points to Horner v. MSPB, wherein ...
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