Kochanny v. Bureau of Alcohol, Tobacco and Firearms

• Decision Date: 29 November 1982
• Docket Number: No. 26-81,26-81
• Citation: 694 F.2d 698
• Parties: Thaddeus J. KOCHANNY, Petitioner, v. The BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 698

694 F.2d 698

Thaddeus J. KOCHANNY, Petitioner, v. The BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Respondent.

Appeal No. 26-81.

United States Court of Appeals Federal Circuit.

Nov. 29, 1982.

Frederick J. Czerwionka argued, for petitioner.

Sanda M. Kayden, Washington, D.C., argued for respondent. With her on the brief was Asst. Atty. Gen., J. Paul McGrath, Washington, D.C.

Before DAVIS, BENNETT and NIES, Circuit Judges.

NIES, Circuit Judge.

Petitioner, Thaddeus J. Kochanny, appeals his removal by the Department of the

Treasury, effective May 11, 1979, from his position with the Bureau of Alcohol, Tobacco and Firearms (BATF). The removal was a result of the agency's dissatisfaction with petitioner's performance in each of three "critical elements" of his position. Initially, the agency sought to remove petitioner pursuant to Chapter 43 of the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1121, codified at 5 U.S.C. Secs. 1101 et seq. (Supp. V 1981). During the pendency of an appeal and as a result of its holding in Wells v. Harris, 1 MSPB 199 (1979), nullifying a removal pursuant to interim regulations under Chapter 43, the Merit Systems Protection Board (MSPB) remanded this case to its field office for reconsideration under 5 U.S.C. Sec. 7501 (Chapter 75) (Supp. V 1981) if the agency so elected. Such an election was made; petitioner's dismissal was found to be in accordance with the requirements of Chapter 75; the MSPB affirmed; and petitioner has appealed. We affirm.

Facts

Petitioner is a former Program Analyst (GS-12) with BATF at Chicago, Illinois. On April 19, 1978, petitioner met with his supervisor to receive his annual evaluation. He was advised of problems with his performance, and it was agreed that he would be re-evaluated in six months due to the poor rating he received. The written performance evaluation indicated poor performance, particularly with respect to dependability, judgment, and quality of work. On November 3, 1978, petitioner was re-evaluated and was formally notified in person, and by memorandum from his supervisor, that his performance continued to be unsatisfactory in the indicated areas. He was informed that he would be expected to show significant improvement during a subsequent 90 day evaluation period.

The November 3, 1978, memorandum consisted of seven pages detailing the unacceptability of his performance in connection with eight specific assignments, as well as other examples of problems arising from failure to exercise proper judgment or from operating outside the scope of his authority.

On February 26, 1979, petitioner was issued a Notice of Proposed Removal based upon his failure to meet the requirements of his position. The same three critical elements of the job, quality of work, dependability, and judgment, were identified as not being performed in an acceptable manner. Examples of the poor quality of his work after November 19, 1978, were cited. Petitioner responded to the Notice personally and through counsel.

On May 4, 1979, the Regional Regulatory Administrator of the BATF issued his decision, removing petitioner from his position, effective at the close of business on May 11, 1979, by reason of petitioner's unacceptable work performance. The wording of the Administrator's decision indicates that he was relying on the standards of Chapter 43, i.e., 5 U.S.C. Sec. 4303 (Supp. V 1981). On May 24, 1979, petitioner appealed to the MSPB, alleging various substantive and procedural errors, including, inter alia, charges that the adverse action should have been processed under Chapter 75 instead of Chapter 43, and alternatively, if Chapter 43 applied, that the agency failed to comply with required "interim procedures," as set forth in the regulations, specifically 5 CFR Sec. 432.206.

Upon appeal to the MSPB, the Presiding Officer made an initial decision that the agency had incorrectly applied the interim procedures regulations for removal under Chapter 43. However, before that decision became final, the MSPB reopened 15 cases, including this case, because of its decision in Wells v. Harris, supra, (hereinafter Wells ), which invalidated the interim regulations and precluded resort to Chapter 43 against one in the position of petitioner. ¹ The MSPB then remanded this case to its Chicago In a letter of January 29, 1980, having received the agency's election to proceed under Chapter 75, the Presiding Officer offered

                field office on December 26, 1979.  The remand order indicated, inter alia, that the agency could request reconsideration of the case under the standards of Chapter 75.  Under this chapter, the agency would be required to show that petitioner's removal was for "such cause as will promote the efficiency of the service."    Moreover, the agency action would be subject to a more rigorous standard of review by the MSPB. 2
                

both parties opportunity to present any additional evidence and argument concerning the merits of the appeal, including the issue of whether, by a preponderance of the evidence, the agency action was taken for "such cause as will promote the efficiency of the service."

Petitioner did not request an oral hearing, but did submit further argument in response to this notice.

After a review of the original record and the additional arguments of the parties, the MSPB field office, on March 21, 1980, affirmed petitioner's removal, finding the agency's action supported by a preponderance of the evidence and stating:

Because that action directly flows from demonstrated inadequate performance by the appellant in his official position, I conclude that his removal is for such cause as will promote the efficiency of the agency's operations and, in turn, the efficiency of the service. See 5 U.S.C. Sec. 7513(a).

Petitioner filed a petition with the MSPB in Washington, D.C., for further review on April 23, 1980. On February 18, 1981, the MSPB issued its final order denying the appeal, and on March 12, 1981, petitioner filed the instant appeal in the United States Court of Claims. Jurisdiction now resides in this court pursuant to 28 U.S.C. Sec. 1295(a)(9) and section 403(a) of the Federal Courts Improvement Act of 1982, Pub.L. 97-164, 96 Stat. 25.

OPINION

The action taken against petitioner was pursuant to Chapter 75. Our review convinces us that the evidentiary record supports removal under this Chapter. ³ Accordingly, the agency action cannot be set aside absent an error, either as a matter of law in the agency's proceeding under Chapter 75, or as a matter of faulty procedure which substantially impaired petitioner's rights.

I

As an initial matter, it is necessary to consider the basic challenge made by petitioner to the statutory authority under which action was taken against him. It is petitioner's position that removal under Chapter 75 for the "efficiency of the service" may not be based upon an employee's "unacceptable performance." The thrust of petitioner's argument is that by the enactment of the Civil Service Reform Act of 1978, Chapter 43 became the exclusive vehicle for removals because of such cause. There is no question but that prior to the reform legislation enacted in 1978, an employee's poor performance could be the basis for dismissal for the efficiency of the service under Chapter 75. Thomas v. Ward, 225 F.2d 953 (D.C.Cir.1955); Armando Pimentel Y Cao v. Brownell, 208 F.2d 47 (D.C.Cir.1953).

In Turnage v. Dept. of Agriculture, Ct.Cl.App. 27-80 (Order entered March 12, 1982), the United States Court of Claims stated in connection with a removal action based on deficient job performance:

At the outset, we hold that the removal action was properly conducted by the agency under Chapter 75. [Order at 5.]

In Turnage, the question was whether the agency had properly given notice that it was proceeding under Chapter 75, rather than under Chapter 43. The agency's authority to proceed under Chapter 75 was not questioned. Inherent in the decision, however, is a recognition that an agency could resort to Chapter 75 to remove an employee whose work was unsatisfactory.

In Drew v. United States Department of the Navy, 672 F.2d 197, 201 (D.C.Cir.1982), in a per curiam opinion, the District of Columbia Circuit, facing the issue in a direct challenge, reached the same conclusion, stating:

Petitioner argues that even if adequate notice was received, the Chapter 75 dismissal action must fail insofar as it was predicated on alleged inadequate performance grounds ordinarily applicable solely to Chapter 43 proceedings. 5 U.S.C. Sec. 7512(D) provides, "[t]his subchapter ... does not apply to a reduction in grade or removal under section 4303 of this title ...." As Sec. 4303 removals stem from inadequate performance, petitioner reasons that such grounds may not be used to dismiss petitioner under Chapter 75. This argument is unfounded. In amending Chapter 43 in 1978 by establishing the aforementioned performance appraisal systems, Congress stipulated that such systems need not be fully implemented until October 1, 1981. Until such systems were established, Wells held that federal employees could not properly be dismissed under Chapter 43 and that in the interim Chapter 75 dismissals could proceed on performance-based grounds. As the Board noted in [Wells v. Harris, MSPB Order No. RR-80-3],

Chapter 75 remains available for adverse actions that are performance-related. Section 7512(D) excludes from Chapter 75 only Sec. 4303 actions for "unacceptable performance" as defined in Sec. 4301(3). Nothing in Sec. 7512 prevents action under the provisions of Chapter 75 merely because the action is performance-based .... [T]he higher "preponderance of the evidence" standard and the "efficiency of the service" requirement would apply to such actions, but we have found nothing to indicate that Congress intended to prevent agencies from meeting those requirements where they are able to do so. [Footnotes omitted.]

We are in accord with...