Appealed from: Merit Systems Protection Board
Before Mayer, Chief Judge, *fn1 Rich and Newman, Circuit Judges.
The opinion of the court was delivered by: Mayer, Chief Judge.
John J. Markland seeks review of the February 26, 1996, initial and February 26, 1997, final decisions of the Merit Systems Protection Board, Docket No. DC-0351-96-0128-I-1, sustaining his separation by the Office of Personnel Management pursuant to a reduction in force. We affirm.
Following its redesign in January 1995, the Office of Personnel Management (OPM) delineated fifteen departmental service competitive areas pursuant to 5 C.F.R. § 351.402(b) (1997), each of which corresponded to a subdivision of the central office. The Office of Contracts and Administrative Services (OCAS) and the Office of Information Technology (OIT) were separate competitive areas. Markland was transferred to OCAS from OIT in February 1995. In June 1995, OPM decided to conduct a reduction in force (RIF) because of a lack of funding. Pursuant to this RIF, OCAS eliminated Markland's position in July 1995, and notified him that his separation would be effective on September 29, 1995.
Markland challenged his separation on two grounds: (1) OPM failed to follow RIF regulations with respect to his competitive area, competitive level, and assignment rights; and (2) OPM transferred him into OCAS, where it knew that his chances for surviving the upcoming RIF were slim, in retaliation for his conducting protected whistleblower activities in 1993. Specifically, Markland alleges that he suggested cost-cutting measures to his supervisor at OIT, Walter G. Sutton, a member of OPM's Reinvention Initiatives Task Force, which reviewed employee cost savings suggestions. Markland claims to have alienated Sutton by making these suggestions directly to the Director of OPM after Sutton had rejected them for personal reasons. He alleges that as a result, Sutton threatened to fire him, gave him a "poor" review (which was later changed to "exceeds fully successful"), detailed him to the Combined Federal Campaign, and finally transferred him to OCAS. OPM responds that its files do not show that Markland made any suggestions, Sutton made the suggestions that Markland claims as his, and Sutton gave Markland a "fully successful" rating in his draft review, which he changed to "exceeds fully successful" after Markland surreptitiously showed the draft review to Sutton's supervisor.
In preparation for his hearing before the board, Markland sought discovery though document requests and interrogatories. OPM provided substantial information in response, but objected to several requests as either overly broad, burdensome, or irrelevant. Markland moved to compel discovery, but the administrative Judge (AJ) granted only partial relief. He then ceased further discovery efforts, waived his right to a hearing, and allowed the AJ to decide the case on the basis of the record evidence only. The initial decision held that OPM properly drew Markland's competitive area and level, did not violate his assignment rights, and neither transferred nor separated him in retaliation.
Markland appealed to the board arguing that the AJ erred in denying his motions to compel, which prevented him from proving that OPM failed to comply with RIF procedures and retaliated against him for whistleblower activities. The board found that even if the AJ erred, these decisions did not prejudice Markland because he did not obtain discovery through other available avenues and withdrew his request for a hearing, in which he could have developed additional evidence. This appeal followed.
We must affirm the board's decision unless it is "(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. § 7703(c) (1994). We accord an agency "wide discretion in conducting a reduction in force; absent a clear abuse of that discretion, a substantial departure from applicable procedures, a misconstruction of governing statutes, or the like, we do not upset a final agency decision." Deweese v. Tennessee Valley Auth., 35 F.3d 538, 541 (Fed. Cir. 1994) (quoting Cooper v. Tennessee Valley Auth., 723 F.2d 1560, 1562 (Fed. Cir. 1983)).
OPM bears the burden of proving by a preponderance of the evidence that the RIF procedures were properly invoked. See Wilburn v. Department of Transp., 757 F.2d 260, 262 (Fed. Cir. 1985). To satisfy its burden with respect to Markland's separation from OCAS, OPM's evidence of record includes an affidavit by the personnel management specialist who was in charge of preparing the final retention registers for the OCAS RIF, Diane Tyrrell; an affidavit by the Director of OCAS, Lynn R. Furman; certification under 5 C.F.R. § 351.402(c) (1997) by OPM's Associate Director for Employment, Leonard R. Klein, that the designation of OCAS as a single competitive area complied with the regulations; and OPM's April 4, 1995, Memorandum for Associate Directors, Office Directors and Field Service Directors, describing the revised delegations of authority to the heads of the new competitive areas ("Revised Delegations"). OPM has offered additional evidence on appeal, which is not part of the record, and argues that we may take judicial notice of it. Because the evidence of record is sufficient to establish a prima facie case, we have no need for this additional material.
Pursuant to 5 U.S.C. § 3502(a) (1994), OPM has promulgated regulations that agencies must follow in conducting a RIF, one of which requires the establishment of competitive areas in which separated employees may compete for jobs that survive the RIF. See 5 C.F.R. § 351.402 (1997). "A competitive area must be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined," and "may consist of all or part of an agency." Id. § 351.402(b). With respect to departmental service, which includes OCAS, this sub-section requires that the minimum competitive area be "a bureau, major command, directorate or other equivalent major subdivision of an agency within a local commuting area." Id.
This requirement replaced the previous regulation, which defined a competitive area as "all or that part of an agency in which employees are assigned under a single administrative authority" and further defined a departmental service competitive area as "a primary subdivision of an agency." See 5 C.F.R. § 351.402 (1983). OPM adopted the "new definition of what constitutes a minimum competitive area . . . to provide agencies with ...