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03/02/82 Robert J. Frazier, Jr., v. Merit Systems Protection

March 2, 1982

ROBERT J. FRAZIER, JR., TERRY E. LOVE, CHARLES E. MORRIS, WILLIAM C. REILLY, PETITIONERS

v.

MERIT SYSTEMS PROTECTION BOARD AND DEPARTMENT OF JUSTICE, RESPONDENTS WILLIAM E. HALL, PAUL R. MICHAEL AND BENJAMIN R. CIVILETTI, INTERVENORS; ROBERT J.

FRAZIER, JR., PETITIONER

v.

MERIT SYSTEMS PROTECTION BOARD, RESPONDENT



Before BAZELON and McGOWAN, Senior Circuit Judges, and WILKEY, Circuit Judge.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

WILLIAM E. HALL, DIRECTOR,

U.S. MARSHALS SERVICE,

ET AL., INTERVENORS

Nos. 80-1067, 80-1986 1982.CDC.58

Petitions for Review of Orders of the Merit Systems Protection board.

APPELLATE PANEL:

Opinion for the Court filed by Senior Circuit Judge BAZELON.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON

This case presents a number of important questions of first impression arising under the Civil Service Reform Act of 1978 (CSRA or Act). A central purpose of the Act is to provide increased protection for "whistleblowers," federal employees seeking to disclose wrongdoing in the government. The Act authorizes the Merit Systems Protection Board (MSPB or Board), on petition of an independent Special Counsel, to order "corrective action" by federal agencies whose officials have sought to retaliate against whistleblowers. Petitioners, four former Deputy U.S. Marshals, seek review of the Board's first corrective action decision.

In a petition to the Board, the Special Counsel contended that the four deputies were transferred from their duty stations because they had (1) complained to two U.S. Congressmen about alleged wrongdoing in the Marshals Service and (2) filed equal employment opportunity grievances against their superiors. Following an evidentiary hearing, the Board upheld the transfers of three of the deputies and rescinded that of the fourth.

In No. 80-1986, Deputy Frazier, whose transfer was rescinded by the Board, challenges the Board's conclusion that it lacked authority to award him attorney's fees. We hold that the CSRA provides such authority in any case in which an employee or applicant for employment appears as a party. We remand for the Board to consider whether fees should be granted in this case.

In No. 80-1067, all four of the deputies challenge (1) the Board's authority to hold a hearing, (2) its allocation of the burden of proof, and (3) its standard for judging retaliatory intent. The Board, for its part, suggests that the petition is moot and, in any event, not appealable to this court. We hold that we have jurisdiction to hear the appeal and that the contentions of three of the deputies are not moot; but since the fourth deputy, Frazier, received all the relief he sought, his petition is dismissed as moot. On the merits, we find the Board's analysis of the issues consistent with the provisions of the Act governing corrective action proceedings. With respect to Deputies Morris, Reilly, and Love, the decision of the Board is affirmed.

Because this is the first case interpreting the corrective action provisions of the CSRA, we think it helpful to set forth the legal and factual background in some detail. Accordingly, before discussing the legal issues, we will canvass the history and structure of the relevant sections, the facts that gave rise to the present dispute, and the procedures and conclusions adopted by the Board. I. BACKGROUND

A. Statutory scheme.

The CSRA constituted the first comprehensive reform of the federal civil service system since passage of the Pendleton Act in 1883. A product of the nineteenth century progressive movement, the Pendleton Act had sought to replace the "spoils system," under which the President could dispense federal jobs as rewards for political patronage, with a "merit system" that would base selection and promotion of most civil servants on competence. The Pendleton Act also established a Civil Service Commission charged both with protecting the merit principle and with managing the growing federal bureaucracy. *fn1

In subsequent years, an increasing proportion of the federal workforce was classified in the competitive service. As the Commission's management functions grew more complex, it was also compelled to elaborate a wide variety of merit system rules without guidance from Congress. Delay and inefficiency increasingly characterized the procedures required to discipline unsatisfactory employees. *fn2 At the same time, several celebrated episodes suggested that efforts by employees to call attention to government waste and fraud were often inhibited by the threat of retaliatory personnel actions. *fn3 The dual responsibility of the Civil Service Commission for management and merit protection seemed to pose a barrier against mitigating these problems. *fn4

In 1978, these and other concerns led President Carter to propose legislation that would significantly restructure the civil service. Among the legislative objectives identified by the President in his message to Congress were:

To strengthen the protection of legitimate employee rights;

To provide incentives and opportunities for managers to improve the efficiency and responsiveness of the Federal Government; (and)

To reduce the redtape and costly delay in the present personnel system 5

Another important purpose of the proposals, as noted by the legislation's Senate manager, Senator Ribicoff, was to "providenew protections for employees who disclose illegal or improper Government conduct."6

As enacted, the CSRA includes several basic features intended to achieve these goals. Title I of the Act consists of the first statutory expression of the merit system principles that have evolved since the creation of the Civil Service Commission. In addition to detailing the requirement that personnel decisions rest on evaluations of competence, Title I announces a statutory policy of protecting whistleblowers. The Act provides:

Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences-

a violation of any law, rule, or regulation, or

mismanagement, a gross waste of funds, an abuse of authority, or a substantial danger to public health or safety.

Section 2301(b)(9).7 Title I also defines a variety of "prohibited personnel practices" including actions taken in retaliation for whistleblowing, section 2302(b)(8), and those taken as a reprisal "for the exercise of any appeal right granted by any law, rule, or regulation." Section 2302(b)(9).

Title II of the CSRA abolishes the Civil Service Commission and replaces it with two new agencies, the MSPB and the Office of Personnel Management . The OPM, headed by a single director responsible to the President, supervises the administration of the civil service. The MSPB, an independent agency consisting of three members, is charged with protecting the merit system principles and adjudicating conflicts between federal workers and their employing agencies. See sections 1201-05. The Act also establishes within the Board an independent Special Counsel responsible for investigating and prosecuting prohibited personnel practices, employment discrimination, unlawful political activities, arbitrary withholding of information requested under the Freedom of Information Act, and any other violations of law within the federal civil service. See sections 1204 & 1206.

As detailed in Title II, the Board's principal duty is to mediate the recurring conflict between the two most important goals of the CSRA: protection of employee rights and enhancement of government efficiency. There are essentially two ways in which such controversies may reach the Board: The first is through "Chapter 77" appeals8 brought by individual employees complaining of adverse agency personnel actions.9 The Board's role as the final administrative arbiter of such complaints is inherited from the Civil Service Commission. Secondly, section 1206(c)(1)of the Act authorizes the Special Counsel to petition the Board for "corrective action" against agencies or employees engaged in prohibited personnel practices. Unlike appeals, corrective action proceedings have no counterpart in pre-CSRA law.

Chapter 77 confers on federal employees a broad right to challenge personnel decisions before the Board. Section 7701(a) provides: "Any employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation." Actions explicitly deemed appealable include reductions in grade and removals based on unacceptable performance, section 4303(e), and enumerated "adverse actions" taken for other reasons.10 Section 7513(d). Chapter 77 details the procedures governing appeals to the Board and contains provisions related to attorney's fees and judicial review.

Section 1206, in contrast, elaborates the "corrective action" authority of the Special Counsel without reference to the appeal rights of individual employees. The Act instructs the Special Counsel to "receive any allegation of a prohibited personnel practice and (to) investigate the allegations to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken." Section 1206(a)(1). If the focus of the allegations concerns whistleblowing, the Special Counsel must convey the substance of the whistleblower's claims to the relevant agency but may not disclose the identity of the complaining employee without the latter's consent. Sections 1206(b)(1) & (2).11

The Special Counsel's initial investigation may reveal, in addition to alleged wrongdoing within the responsibility of other authorities, evidence of prohibited personnel practices correctable by the Board. In that event, the Special Counsel must first seek an accommodation with the agency involved; if that effort fails, the Special Counsel ...


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