The Circuit Court for the Federal Circuit (the Federal Circuit) reversed the Merit Systems Protection Board (MSPB or the Board) decision in the removal of a Park Service Manager who had refused a directed reassignment. The Board in a series of three decisions on the case, reversed the Agency, the Administrative Judge who heard the case and its own precedent. Apparently, that was three strikes for the court which found that MSPB had violated the law in its decision, failing to follow a clear Federal Circuit precedent.
FedSmith wrote up the Board decision over two years ago. When that article was written, it predicted the Federal Circuit reversal suggesting that not liking the fact that an Agency management has discretion is not grounds for rewriting applicable law. In the article we opined,
“The prior standard had really come down to whether the Agency acted in an arbitrary and capricious manner. This Board, in apparent disagreement with the Court, has opened the door to arrogating the question of the authority of the Agency to reassign to itself. Slippery slope there.”
While the case is somewhat complicated by the Board’s reopening it twice to mess with the decision, it comes down to the standard of review of the Agency decision to reassign an individual whether the person wants to go or not. The Board’s long time standard (since 1980) involved a two part test. First, the agency must come forward with evidence showing a legitimate management reason for the reassignment. Second, the Agency must prove that the employee had adequate notice of the decision to transfer and that he refused to accept the reassignment. (See Ketterer v. Department of Agriculture, 2 M.S.P.R. 294 (1980)).
In this case, the Administrative Judge (AJ) applied the standard and found:
“I find that the management directed reassignment was lawful, that it was based on legitimate management considerations and that the appellant was given adequate notice of the reassignment. I also find no merit in the appellant’s assertion that she is not qualified for the position. Lastly, there is no dispute that the appellant declined the management directed reassignment. The record contains her written election.”
The Court quoted the AJ extensively. I hope that doesn’t hurt the judge’s performance rating but this Board has reversed judges early and often in its attempt to bring about a more favorable environment for employee advocates and unions. No surprise, that’s what the majority members did before and probably will after to their post appointment self-aggrandizement. I know exactly how harsh that sounds, but before this crew got in the Board was respected highly by advocates for both sides. Shame on them for bringing about such an awful turnabout.
The Federal Circuit’s decision reads like a scolding of a student who fell asleep during the semester’s most important lecture. Were I a Board member, I’d be ashamed to be chastised this way but this Board is used to it, after all, it’s not like it’s the first time. The Court’s decision is worth a read:
Turning to our analysis, we first hold that the Board erred as a matter of law in abandoning the Ketterer twostep burden-shifting approach described above. In Frey, we examined Ketterer and Umshler, and we set forth the burden-shifting approach that they articulate. 359 F.3d at 1360. Then, referring to Ketterer and Umshler, we stated: “We endorse the Board’s approach in these cases, as set forth above, and adopt it as the law of the circuit.” Id. (emphasis added). Thus, contrary to what the Board said in Miller II, we did not merely “endorse” the Ketterer framework. Rather, in clear and certain terms, we made it the “law of the circuit.” Ketterer’s approach thereby became law that must be followed by the Board and panels of this court until overruled by either the Supreme Court or by this court en banc. E.g., Tex. Am. Oil Corp. v. Dep’t of Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (“This court applies the rule that earlier decisions prevail unless overruled by the court en banc, or by other controlling authority such as intervening statutory change or Supreme Court decision.”); Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1373 (Fed.Cir. 2001) (citing Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1570 (Fed. Cir. 1993)) (stating that “stare decisis is a doctrine that binds courts to follow their own earlier decisions or the decisions of a superior tribunal”); see also Soc. Sec. Admin. v. Mills, 73 M.S.P.R. 463, 470 (1996) (decisional law “adopted” by the Federal Circuit is “binding on the Board”), aff’d, 124 F.3d 228 (Fed. Cir. 1997) (table). The Board here was not empowered to reject controlling law. In short, Ketterer was, and continues to be, the law of the circuit. It therefore must be followed. “ (my emphasis)
As always, if you detect an opinion, I alone am responsible for it.
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