Vesser v. Office of Personnel Management

• Citation: 29 F.3d 600
• Decision Date: 29 June 1994
• Docket Number: No. 93-3423,93-3423
• Parties: Samuel F. VESSER, Jr., Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 600

29 F.3d 600

Samuel F. VESSER, Jr., Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 93-3423.

United States Court of Appeals Federal Circuit.

June 29, 1994.

Samuel F. Vesser, Jr., pro se.

Arnold M. Auerhan, Atty., Dept. of Justice, Washington, DC, submitted, for respondent.

Before RICH and LOURIE, Circuit Judges, and MESKILL, Senior Circuit Judge. ¹

RICH, Circuit Judge.

Decision

Samuel F. Vesser, Jr. petitions for review of the decision of the Merit Systems Protection Board (Board), Docket No. AT300A9110448, in Samuel F. Vesser, Jr. v. Office of Personnel Management, 57 M.S.P.R. 648 (1993), affirming the Office of Personnel Management's (OPM) removal of Mr. Vesser's name from the register of Administrative Law Judge (ALJ) candidates because Mr. Vesser's status as an annuitant disqualified him from employment as an ALJ. We reverse.

Background

Mr. Vesser, a former administrative judge, voluntarily retired from federal service on October 31, 1990. Upon retirement, Mr. Vesser filed for and received a retirement annuity. Before Mr. Vesser retired, he was examined by OPM and found qualified for consideration as an ALJ. Subsequently, OPM certified his name for consideration for an ALJ position with the Office of Hearings and Appeals of the Social Security Administration (SSA), Department of Health and Human Services. Mr. Vesser was interviewed for a possible hiring with the SSA.

Mr. Vesser was not offered an ALJ position because during the hiring process OPM notified SSA that Mr. Vesser's name had been removed from the list of eligible ALJ candidates as he was a retiree receiving an annuity and was, for that reason, statutorily barred from returning to federal service as an ALJ. On March 19, 1991, Mr. Vesser was advised by SSA that OPM had determined that he was ineligible for an ALJ position because of his status as an annuitant. Mr. Vesser contacted OPM seeking an explanation of the determination of ineligibility. OPM advised Mr. Vesser that an individual appointed to an ALJ position is given an absolute appointment, removable only for cause, whereas an individual hired as a reemployed annuitant serves at the will of the agency. Seeing these as inconsistent, OPM adopted the position that a reemployed annuitant cannot be appointed to an ALJ position.

Mr. Vesser advised OPM that were he selected as an ALJ he would waive his annuity and thus render inapplicable OPM's position, making himself eligible for an ALJ appointment. OPM, however, disagreed and determined that waiver of his annuity would not change Mr. Vesser's status as an annuitant.

On April 6, 1991, Mr. Vesser appealed OPM's decision to the Board pursuant to 5 C.F.R. Sec. 300.104(a), alleging that OPM committed an employment practice violation and engaged in age discrimination in removing his name from the register of eligible ALJ candidates. ²

On April 12, 1991, the Board's Chief Administrative Law Judge (CALJ) issued an Acknowledgment Order raising the question of whether the Board had jurisdiction over Mr. Vesser's appeal. After Mr. Vesser and the OPM responded, the CALJ issued an Order, on June 5, 1991, finding that the Board had jurisdiction over Mr. Vesser's appeal. On June 25, 1991, the CALJ issued a second Order responding to OPM's request for reconsideration of the June 5, 1991 Order and denying OPM's request for interlocutory review of the jurisdiction question.

In a first Initial Decision dated September 10, 1991, the CALJ determined that OPM had violated an employment practice in disqualifying Mr. Vesser from competing for appointment as an ALJ, but that Mr. Vesser failed to make out a valid claim of age discrimination. In a second Initial Decision dated December 19, 1991 the CALJ addressed the appropriate remedy and ordered that Mr. Vesser's name be returned to the register of eligible ALJ candidates. On June 10, 1993, the full Board issued its final Opinion and Order holding that it had jurisdiction to hear Mr. Vesser's appeal under 5 C.F.R. part 300. The Board reversed the CALJ and upheld OPM's determination that Mr. Vesser's annuitant status disqualified him for appointment as an ALJ.

Mr. Vesser appealed the Board's decision to this court on June 28, 1993. We have jurisdiction under 5 U.S.C. Sec. 7703(b)(1) (1988).

DISCUSSION

We review Board decisions to determine whether they are:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence ...

5 U.S.C. Sec. 7703(c) (1988).

Jurisdiction

This Court reviews jurisdiction, a question of law, de novo. Dehne v. United States, 970 F.2d 890, 892 (Fed.Cir.1992). Consequently, we review de novo the question of whether the Board has jurisdiction to adjudicate a case. See Cruz v. Department of Navy, 934 F.2d 1240, 1243-44 (Fed.Cir.1991) (en banc).

The Government asserts that the Board lacked jurisdiction to entertain Mr. Vesser's appeal because Mr. Vesser's disqualification from reemployment as an ALJ was the result of a statutory bar and not the result of an agency hiring practice. According to the Government, this distinction is significant because it is only the latter that may be termed an "employment practice" as defined in 5 C.F.R. Sec. 300.101, the misapplication of which may be appealed to the Board under 5 C.F.R. Sec. 300.104.

Employment practices are defined in the regulations to include "the development and use of examinations, qualification standards, tests, and other measurement instruments." 5 C.F.R. Sec. 300.101. The threshold issue, therefore, is whether the action taken is an employment practice within the meaning of the regulations. The Government urges a narrow interpretation of employment practices as being the kinds of "measurement instruments" that determine a candidate's ability to perform the duties and responsibilities of a job, such as the examination that found Mr. Vesser qualified to be considered for an ALJ position.

However, as noted by the Board, this Court held in Dowd v. United States, 713 F.2d 720 (Fed.Cir.1983), that the term employment practices has a "naturally broad and inclusive meaning." Additionally, in direct contrast to the Government's contention, the Court in Dowd stated that "the inclusive definition of employment practices cannot reasonably be read to apply narrowly to tests alone." Dowd, 713 F.2d at 724.

As noted above, employment practices include qualification standards. Applying the requisite broad and inclusive meaning to the term employment practices, we hold that the Board, in removing Mr. Vesser's name from the register of eligible ALJ candidates based on his status as an annuitant, used a qualification standard under 5 C.F.R. Sec. 300.101. We accordingly agree with the Board that an employment practice was applied.

The second step in the jurisdiction analysis is whether the application of the employment practice violates a "basic requirement" because only those who believe that an employment practice has been applied to him in a manner that violates a "basic requirement," as defined in 5 C.F.R. Sec. 300.103, are entitled to appeal to the Board. 5 C.F.R. Sec. 300.104. Section 300.103, entitled "Basic requirements," mandates that an employment practice be (a) based on a "job analysis" that sets forth the duties of and qualifications for the position, (b) relevant to performance in the position, and (c) not discriminatory. Dowd, 713 F.2d at 722, n. 9.

In fact, Sec. 300.103(a)(3) sets forth that employment practices of the Federal Government be based on a job analysis including the "factors that are important in evaluating candidates." Mr. Vesser's status as an annuitant was not only an important but a determinative factor in OPM's evaluation of him as an ALJ candidate. We therefore hold that a basic requirement as defined in section 300.103 was involved in the removal of Mr. Vesser's name from the ALJ register.

For the reasons set forth above, we hold that Mr. Vesser was entitled to appeal the removal of his name from the register of eligible ALJ candidates because such action was an employment practice that may violate a basic requirement as defined in Sec. 300.103. The Board therefore correctly determined that it had jurisdiction over this appeal. We now turn to the merits of Mr. Vesser's appeal.

Merits

The gravamen of this appeal is the proper interpretation of the statutory provision, 5 U.S.C. Sec. 3323(b)(1), and whether, when considering 5 U.S.C. Sec. 7521, Mr. Vesser is precluded from being reemployed as an ALJ. Our review of the meaning of the statutory language is de novo. Frederick R. Marano v. Department of Justice, 2 F.3d 1137, 1138 (Fed.Cir.1993). We review the Board's conclusions of fact for substantial evidence. Association of Data Processing Serv. Organizations v. Board of Governors of Federal Reserve Sys., 745 F.2d 677, 685 (D.C.Cir.1984); Robert A. Perske v. Office of Personnel Mgmt., 25 F.3d 1014, 1017 (Fed.Cir.1994).

In interpreting a statute, we first examine its language to determine whether Congress has "directly spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). If the intent of Congress is clear, that is the end of the matter because we must give effect to the unambiguously expressed intent of Congress. Id. at 842-43, 104 S.Ct. at 2781-82. Thus, we begin our analysis with the wording of the applicable statutes.

Section 3323(b)(1) sets forth that

notwithstanding other statutes, an annuitant, as defined by section 8331, receiving annuity from the Civil Service Retirement and Disability Fund is not barred by reason of his retired status from employment in an appointive position for which the annuitant is qualified. An annuitant so reemployed ... serves at the will of the appointing...