Shepherd v. Merit Systems Protection Bd.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Citation: Shepherd v. Merit Systems Protection Bd., 652 F.2d 1040 (D.C. Cir. 1981)
• Decision Date: 20 May 1981

Page 1040

652 F.2d 1040

209 U.S.App.D.C. 243

Susan T. SHEPHERD, Petitioner v MERIT SYSTEMS PROTECTION BOARD and Office of Personnel Management, Respondents.

No. 80-1333.

United States Court of Appeals District of Columbia Circuit.

Argued 26 March 1981.

Decided 20 May 1981.

George M. Chuzi, Washington, D. C., for petitioner. June D. W. Kalijarvi and Ellen R. Delate, Washington, D. C., were on the brief, for petitioner.

Michael J. Ryan, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for respondents.

Before WRIGHT and WILKEY, Circuit Judges, and CORCORAN ^*, United States Senior District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

Petitioner, formerly Deputy Administrator of the Rural Electrification Administration (REA) in the Department of Agriculture, seeks review of a final decision of the Merit Systems Protection Board (the Board) denying her "career" status in the newly established Senior Executive Service (SES). ¹ The Board's decision upheld the negative determination made by the Office of Personnel Management (OPM). Petitioner was adversely affected by the denial of a career appointment; as a noncareer appointee, she could be freely removed from the SES at any time. ² A career appointee, on the other hand, could be removed only for cause i. e., less than fully successful executive performance. The career appointee is further protected since even such removal for cause, or involuntary reassignment, may not occur within the first 120 days after the appointment of a new agency head. ³

We find that the Board and the OPM have reached conclusions inconsistent with the OPM regulations ⁴ implementing the Civil Service Reform Act of 1978 which established the SES. ⁵ Consequently, we set aside the Board's decision and remand to the OPM for further consideration of petitioner's eligibility for a career appointment.

I. BACKGROUND CHRONOLOGY

Petitioner's job as Deputy Administrator had been designated for conversion into the SES on 21 December 1978, well before petitioner occupied that position. ⁶ After having been recruited for the Deputy Administrator job, and transferred to the REA from the Federal Power Commission, where she had worked as an attorney for ten years, she actually began serving in that capacity on 13 May 1979. Pending her final security clearance, however, she was named only as a Schedule C Assistant to the Administrator, rather than as official Deputy Administrator. On 12 July 1979 petitioner was informed by letter of her official appointment to be effective the next day, 13 July. ⁷ This letter, written to petitioner by her superior, the Administrator, indicated that petitioner was "receiving a career SES appointment to the Deputy Administrator position." ⁸

Because petitioner's technical status at various points is absolutely crucial to her claim, we note here that: petitioner appears to have had career-oriented service prior to 12 July 1979; ⁹ on 12 July, petitioner was appointed to a "noncareer executive assignment" as a member of the "excepted" civil service (as opposed to the "competitive" civil service); ¹⁰ furthermore, on 12 July petitioner was given notice that her appointment was (conditionally) of the career type; ¹¹ finally, on 13 July petitioner's appointment was automatically converted into the SES. ¹²

Evidently, petitioner somehow learned that the OPM objected, because on 2 August 1979 she solicited the OPM, requesting that her conversion to the SES be as a career appointee. The administrative record reveals that not until 31 August 1979 was petitioner officially informed that her career appointment was being denied. ¹³ She then took an appeal from the OPM's adverse determination to the Board. The Board dismissed the appeal on jurisdictional grounds, holding that petitioner was not an "aggrieved" employee within the meaning of its jurisdictional statute. ¹⁴ Petitioner was not an "aggrieved" employee, held the Board, because she had no right under the applicable regulations to elect conversion to the SES under a career appointment. ¹⁵

We will discuss the conversion regulations presently, but we take exception here with the way the Board has characterized the issue in the case: the Board has confused the difference under the regulations between claims of entitlement to (a) a right to elect conversion to the SES itself, and (b) a right of employees automatically converted in the SES to request conversion to a career appointment under the SES. ¹⁶

II. DISCUSSION

An agency's interpretation of its enabling statute and its own regulations is usually entitled to deference, but there are limits on when and how far a court should defer to the agency. In any event, of course, we must overturn agency action and interpretation inconsistent with the regulations and statutes themselves.

In this case, we need not focus long on the enabling legislation, though the Board construed the relevant section of the Civil Service Reform Act of 1978 to provide an alternate ground for its decision. ¹⁷ We find that the implementing regulations control here because the statute simply does not address the problem we face: status and rights where an employee was appointed to a position after it had been designated as part of the SES, but before the operational date of the SES. The government, both in its brief and at oral argument, seems to concede that the statute does not directly govern petitioner's claim. ¹⁸ By contrast, OPM's regulations do specifically provide for the SES status of post-designation, but yet pre-operational-date, appointments. ¹⁹ Thus, we move on to consider the applicable regulations.

Regarding OPM's regulations, there are several factors encouraging us to grant minimal deference to the agency's interpretation:

First, the agency here had no chance to develop a consistent, established pattern of interpretation. The interim regulations applicable to petitioner were effective as of 15 June 1979, not quite one month before petitioner's appointment and automatic conversion into the SES. ²⁰ Moreover, though the regulations are complicated, even frustrating, they are neither highly technical nor call upon any special expertise beyond experience in interpretation of bureaucratese formulation of the English language. Hence, we trust that we are competent to review critically interpretations attached by the OPM to the language of the regulations. ²¹

Second, it appears that the OPM has selected an interpretation giving its regulations a "curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover." ²² We can find an interpretation, we believe, which strains the applicable regulations less.

Third, and finally, we note a significant amendment of the wording of the final regulations, effective 10 March 1980. ²³ This change of language cut back the right to request "career" conversions as had been provided in the interim regulations governing petitioner's claim, which were effective 15 June 1979 through 10 March 1980. ²⁴ Under the amended regulation, petitioner would plainly have no right to request a "career" conversion because it limits that right to employees who encumbered their positions prior to SES designation; ²⁵ in other words, the OPM has inserted by subsequent amendment the very restriction which it seeks to implement here retroactively. We are not compelled to defer to such interpretation, designed, no doubt, to fill a gap perceived in the original before the amending regulation was in place. ²⁶

A. The Board and OPM Interpretation

The pertinent regulations governing conversion into the SES, 5 C.F.R. Part 317, set up two categories of incumbent government employees:

5 C.F.R. section 317.302(a) applies to incumbent employees who had been appointed to their positions prior to the designation of those positions into the newly created, but not yet operational, SES. To protect these pre- designation incumbents from any hardships attendant upon the unforeseeable conversion, this code section gives them an option. The pre-designation incumbents could elect to convert their appointments into the SES, or they could elect to remain outside of the SES without loss of position or pay. ²⁷

Employees, like petitioner, who were appointed to positions after their positions had been designated into the SES, but before the SES became operational, were required, under 5 C.F.R. section 317.302(b), to accept conversion into the SES. For this category of incumbents, naturally, the prospective creation of the SES was foreseeable when they accepted their jobs. There was no unfairness, then, in converting them into the SES automatically without any option.

The latter category, (b), the one applicable to petitioner, does not mention any right of post-designation incumbents to request that their automatic conversions to the SES be as "career" appointees, if so qualified. The former category, (a), however, explicitly permits pre-designation incumbents who elect to be converted into the SES additionally to request conversion as career appointees. ²⁸ This distinction provided the Board with its basis to find that petitioner was left without an entitlement to request a "career" conversion. She had been required to accept conversion into the SES; she had indicated said acceptance; ²⁹ and thus, the Board reasoned, her automatic conversion precluded recognition of her "career" qualifications and experience. In the Board's view, petitioner's automatic conversion was tantamount to a non career appointment to the SES which is directly contrary to the plain language of part of the letter of 12 July 1979.

B. Our Interpretation

In our view, eligibility for a "career" conversion into the SES is a separate question from that of conversion...