Newman v. Lynch, 89-3234

• Decision Date: 07 March 1990
• Docket Number: No. 89-3234,89-3234
• Citation: 897 F.2d 1144
• Parties: 52 Fair Empl.Prac.Cas. 404, 52 Empl. Prac. Dec. P 39,708, 59 Ed. Law Rep. 972 Constance NEWMAN, Director, Office of Personnel Management, Petitioner, v. Edward LYNCH and Merit Systems Protection Board, Respondents.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1144

897 F.2d 1144

52 Fair Empl.Prac.Cas. 404,

52 Empl. Prac. Dec. P 39,708, 59 Ed. Law Rep. 972

Constance NEWMAN, Director, Office of Personnel Management, Petitioner, v. Edward LYNCH and Merit Systems Protection Board, Respondents.

No. 89-3234.

United States Court of Appeals, Federal Circuit.

March 7, 1990.

Rehearing Denied May 2, 1990.

Suggestion for Rehearing In Banc Declined June 18, 1990.

Suggestion for Rehearing In Banc Declined July 5, 1990.

Marcia A. Lurensky, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for petitioner. With her on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, Stephen J. McHale, Asst. Director and Torrence R. Thomas, Jr., Atty. Also on the brief were James A. Strock, General Counsel, Ann C. Wilson, Asst. Gen. Counsel, Steven E. Abow and Edward C. Stringer, Office of the General Counsel, Office of Personnel Management, of Washington, D.C., and Robert Wexler, Dept. of Educ., of counsel.

Charles A. Shanor, General Counsel, Equal Employment Opportunity Com'n, of Washington, D.C., argued for respondents. With him on the brief were Gwendolyn Young Reams, Associate General Counsel, Lorraine C. Davis, Asst. Gen. Counsel and Cynthia Misicka, Atty. Calvin M. Morrow, Atty., Merit Systems Protection Bd., of Washington, D.C., argued for respondents. With him on the brief were Mary L. Jennings, Acting General Counsel and Martha B. Schneider, Asst. Gen. Counsel. George M. Chuzi, Kalijarvi, Chuzi & Stetina, P.C., of Washington, D.C., was on the brief for respondent, Edward Lynch.

Gregory O'Duden, Director of Litigation, Kerry L. Adams, Asst. Director of Litigation and Timothy B. Hannapel, Assistant Counsel, National Treasury Employees Union, of Washington, D.C., were on the brief of amicus curiae, National Treasury Employees Union. Elaine Kaplan, National Treasury Employees Union, Washington, D.C., of counsel.

Before NIES, Circuit Judge, BENNETT, Senior Circuit Judge, and ARCHER Circuit Judge.

NIES, Circuit Judge.

The Director of the Office of Personnel Management, with the approval of this court, appeals from the denial of its petition by the Merit Systems Protection Board requesting reconsideration of the Board's May 11, 1988 decision in the case of Edward J. Lynch, Jr. v. Department of Education, 37 M.S.P.R. 12 (1988). In denying OPM's petition, the Board held, in its Opinion and Order dated December 14, 1988, 39 M.S.P.R. 319, that the Director was not entitled to review of the case and, thus, the Board declined to consider the merits of OPM's petition. We vacate and remand for the Board to consider OPM's petition on the merits.

Background

In 1982, Edward J. Lynch, Jr. was removed from his position of GS-13 trial attorney with the United States Department of Education and denied a within-grade increase. We need not recount here the tortuous and lengthy proceedings before the Merit Systems Protection Board, the Equal Employment Opportunity Commission, the Special Panel convened in accordance with 5 U.S.C. Sec. 7702(d) (1982), and the United States District Court for the District of Columbia. It suffices here to state only that in the Board's final decision dated May 11, 1988, Mr. Lynch prevailed on his allegation of handicap discrimination. As relief, the Board ordered the agency to retroactively grant Mr. Lynch his within-grade salary increase and to reinstate him with appropriate back pay and benefits. OPM filed a petition asking the MSPB to reconsider that decision, contending that the Board's finding that appellant met his burden of articulating a reasonable accommodation for his handicap was inconsistent with the Board's previous decisions and erroneous as a matter of law.

Under 5 U.S.C. Sec. 7703(d) (1982), the Director of OPM has a right to petition for reconsideration of a Board decision when the Director "determines, in his [or 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." Those determinations were made by OPM here. However, the Board refused to consider the merits of OPM's petition holding that the Board's decision involving Mr. Lynch did not concern a civil service law, and, therefore, OPM had no authority to petition for reconsideration. OPM requested, and was granted, review by this court of the MSPB's denial of its petition. The issue presented originally was limited to the substantive correctness of the Board's holding that the handicap discrimination law was not a civil service law and, therefore, OPM's petition was improper. During oral argument, this court raised and requested briefing on the issue of whether the MSPB has the authority to decline to consider the merits of an OPM petition on the ground that a predicate determination by OPM for filing the petition is erroneous. ^* Having reviewed the submissions of the parties, we conclude that the MSPB has no authority to review the Director's exercise of discretion in seeking reconsideration of an MSPB decision, and that the MSPB must consider the Director's petition on the merits.

Opinion

The authority of the Director of OPM to obtain reconsideration of an MSPB decision is found in 5 U.S.C. Sec. 7703(d) which provides:

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 his 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. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

As indicated above, the MSPB did not reach the merits of OPM's petition for reconsideration in this case. Instead, the Board held that the Rehabilitation Act of 1973 (the handicap discrimination law at issue), which it interpreted in the Lynch case was not a "civil service law" within the meaning of 5 U.S.C. Sec. 7703(d) and, therefore, the Director had no entitlement to challenge the Board's interpretation of that type of statute.

Under the statutory scheme of the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1111, Congress provided for judicial review of MSPB decisions by an aggrieved employee, but withheld such right of appeal by the affected agency. Only under special circumstances may a...