National Treasury Employees Union v. U.S. Merit Systems Protection Bd., 82-1206

Citation743 F.2d 895,240 U.S.App.D.C. 51
Decision Date11 September 1984
Docket NumberNo. 82-1206,82-1206
PartiesNATIONAL TREASURY EMPLOYEES UNION, Petitioner v. UNITED STATES MERIT SYSTEMS PROTECTION BOARD and United States Office of Personnel Management, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Petition for Review of an Order of the Merit Systems Protection board.

Lois G. Williams, Washington, D.C., with whom Robert M. Tobias and John F. Bufe, Washington, D.C., were on the brief, for petitioner. William F. White also entered an appearance for petitioner.

Mary M. Jennings, Atty., Merit Systems Protection Bd., Washington, D.C., with whom Evangeline W. Swift, Gen. Counsel, Merit Systems Protection Bd., Rita S. Arendal and Calvin M. Morrow, Attys., Merit Systems Protection Bd., Washington, D.C., were on the brief, for respondent, Merit Systems Protection Bd. Alan F. Greenwald, Atty., Merit Systems Protection Bd., Washington, D.C., also entered an appearance for respondent, Merit Systems Protection Bd.

Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Atty., Washington, D.C., were on the brief, for respondent, Office of Personnel Management.

Before WALD, MIKVA and BORK, Circuit Judges.

Opinion for the Court in Parts I-II.C.2 filed by Circuit Judge WALD.

Opinion for the Court in Part II.C.3 filed by Circuit Judge BORK.

Separate concurring statement filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioner, National Treasury Employees Union (NTEU), seeks relief from a decision of the Merit Systems Protection Board (MSPB) upholding the validity of an Office of Personnel Management (OPM) regulation, presently published at 5 C.F.R. Sec. 752.401(c)(10) (1983), which allows federal agencies to place "seasonal" government employees in "nonduty, nonpay" status without affording them the adverse action protections required by the Civil Service Reform Act of 1978 (CSRA or Act), 5 U.S.C. Secs. 7501-7543, for federal employees "furloughed" for thirty days or less. Under 5 U.S.C. Sec. 1205(e)(2)(A), the MSPB--when it grants review--must declare a regulation invalid on its face if it determines that the terms of the regulation, if implemented by an agency, would require an employee to commit any of the prohibited personnel practices set forth in 5 U.S.C. Sec. 2302(b). The NTEU argued before the MSPB that the plain language and legislative history of the CSRA indicate that any short-term layoff of a seasonal employee is a "furlough" within the meaning of 5 U.S.C. Sec. 7511(a)(5). If so, failure to afford furloughed seasonal employees recourse to the adverse action procedures of 5 U.S.C. Sec. 7513 is a prohibited personnel practice, and the OPM regulation is invalid on its face. The OPM countered that, although seasonal workers are generally entitled to the protections of the adverse action provisions, it could properly interpret "furlough" to exclude laying them off for brief periods in accordance with the conditions under which they are employed. Furthermore, it urged, the fiscal impact of providing such procedures for all brief layoffs of seasonal employees would destroy the seasonal employment program.

Based on its reading of the legislative history and policies underlying the CSRA, the MSPB concluded that the OPM had properly defined "furlough" to exclude such temporary layoffs of seasonal employees from the adverse action protections accorded to furloughs under 5 U.S.C. Secs. 7511(a)(5) and 7513 and that 5 C.F.R. Sec. 752.401(c)(10) was valid on its face. The NTEU appeals that ruling. The OPM and MSPB argue in this court that we lack jurisdiction to hear the NTEU's appeal, that the NTEU lacks standing to bring the appeal, and that the regulation should be upheld on the merits. We take jurisdiction of the case, find that the NTEU has standing, and affirm the MSPB's order.

I. BACKGROUND
A. The Statutory Scheme

The Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended at 5 U.S.C. Secs. 1101-8913), was designed to revamp a personnel management system President Carter termed a "bureaucratic maze which neglects merit, tolerates poor performance, permits abuse of legitimate employee rights, and mires every personnel action in redtape, delay, and confusion." H.R.Rep. No. 1403, 95th Cong., 2d Sess. 2 (1978), reprinted in 1 House Comm. on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Civil Service Reform Act of 1978, at 636, 639 (Comm. Print 1979) [hereinafter cited as CSRA Legislative History ]. 1 In relevant part, it codifies merit systems principles and prohibited personnel practices; replaces the old Civil Service Commission with two agencies, an Office of Personnel Management to act as the central personnel office of the executive branch and a Merit Systems Protection Board and Special Counsel to adjudicate employee appeals and investigate charges of prohibited personnel practices; and establishes procedures for adverse actions and suspensions.

Of special concern to this case are the CSRA provisions dealing with adverse actions, prohibited personnel practices, and appeals procedures. The CSRA lists removals, suspensions for more than fourteen days, reductions in grade and pay, and furloughs of thirty days or less as adverse actions. 5 U.S.C. Sec. 7512. Whenever the government proposes to take such an action, the employee affected by the action is entitled to the adverse action procedures set out in 5 U.S.C. Sec. 7513, including written notice thirty days in advance, a reasonable time to answer and to furnish supporting affidavits and documentary evidence, representation by an attorney, and a written decision.

Invalidation of OPM rules and regulations that allegedly violate the CSRA provision prohibiting defined personnel practices, 5 U.S.C. Sec. 2302(b), or its adverse action procedures may be sought from the MSPB under 5 U.S.C. Sec. 1205(e), 2 which grants the MSPB discretionary authority to review rules and regulations promulgated by the Director of the OPM in carrying out his personnel management functions under 5 U.S.C. Sec. 1103. 3 The MSPB may grant review on its own motion or when "any interested person" files a petition for review, and must grant review when the MSPB's Special Counsel files a written complaint requesting review. 5 U.S.C. Sec. 1205(e)(1). Once it grants review, Sec. 1205(e)(2)(A) requires the MSPB to declare a rule or regulation invalid on its face if it determines that any provision of the rule or regulation, if implemented by an agency would on its face require any employee to commit a prohibited personnel practice as defined in 5 U.S.C. Sec. 2302(b). 4 Under Sec. 1205(e)(2)(B), the MSPB must declare provisions of rules and regulations invalidly implemented if it determines that such a provision, as it has been implemented by an agency through any personnel action or policy adopted in conformity with the provision, has required any employee to violate Sec. 2302(b).

The MSPB considers several factors in deciding whether to grant review under Sec. 1205(e), including the likelihood of the issue being timely reached through ordinary channels of appeal, the extent of the rule or regulation's application to the federal service, and the strength of the arguments against its validity. Joint Appendix at 25. The MSPB also has substantial discretion in how it conducts its reviews. It may make its decisions on the basis of the pleadings alone, or it may consider additional written comments, hold oral arguments, conduct evidentiary hearings, or use any other appropriate procedures. 5 C.F.R. Sec. 1203.16 (1983). If the MSPB then determines that a provision of a rule or regulation is invalid on its face, or as implemented, Sec. 1205(e)(3)(C) requires it to direct agencies to cease compliance with the provision or to correct any invalid implementation.

NTEU filed its petition for review of the MSPB final order at issue in this case on March 1, 1982. Joint Appendix at 186. On April 2, 1982, the President approved the Federal Courts Improvement Act of 1982 (FCIA), Pub.L. No. 97-164, 96 Stat. 27 (codified in scattered sections of 28 U.S.C., with minor and conforming amendments to other titles), which by its terms became effective on October 1, 1982, id. Sec. 402, 28 U.S.C. Sec. 171 (note). The FCIA granted the United States Court of Appeals for the Federal Circuit exclusive jurisdiction "of an appeal from a final order of the Merit Systems Protection Board," id. Sec. 127(a), 28 U.S.C. Sec. 1295(a)(9), subject to certain exceptions and procedural requirements in section 205 of the CSRA as amended by section 144 of the FCIA, 5 U.S.C. Sec. 7703. The FCIA also repealed certain statutory provisions at issue in this case governing review of MSPB final orders in courts of appeals other than the Federal Circuit. See FCIA Sec. 137 (amending 28 U.S.C. Sec. 2342); id. Sec. 144 (amending 5 U.S.C. Sec. 7703).

We must therefore determine whether the FCIA has affected our jurisdiction over this case. In deciding essentially the same question, the Third Circuit has noted that

[s]ection 403 of the FCIA, [28 U.S.C. Sec. 171 (note) ], does not discuss the effect of the FCIA on petitions for review of MSPB decisions where the petitions were filed before the effective date of the FCIA. However, the FCIA expressly does declare that "[a]ny case in which a notice of appeal has been filed in a district court of the United States prior to the effective date of this Act shall be decided by the court of appeals to which the appeal was taken." FCIA, Sec. 403(e) (emphasis added). Moreover, the FCIA does not provide for the transfer of appeals such as this one to the Court of Appeals for the Federal Circuit even though the Act explicitly does order the transfer of cases pending before the...

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