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Schmidt v. Department of Interior

August 20, 1998


Before Newman, Plager, and Schall, Circuit Judges.

The opinion of the court was delivered by: Schall, Circuit Judge

Appealed from: Merit Systems Protection Board

William B. Schmidt petitions for review of the final decision of the Merit Systems Protection Board (Board) sustaining the action of the Department of the Interior (Interior or agency) removing him from the Senior Executive Service (SES) and assigning him to a GS-15 position pursuant to a reduction-in-force (RIF). See Schmidt v. Department of the Interior, No. DC-0351-96-0878-I-1 (Oct. 31, 1996). *fn1 Because the Board correctly held that Interior did not abuse its discretion in using a bureau-wide competitive area for purposes of its SES RIF plan and because the Board also correctly held that it lacked jurisdiction to consider Mr. Schmidt's challenge to Interior's efforts to place him in a vacant SES position, we affirm.


In July of 1990, Mr. Schmidt, who was a member of the SES, was appointed Chief of the Division of Environmental Technology in Interior's U.S. Bureau of Mines (BOM). He served in that position at the ES-05 level until June 4, 1996, when he was removed from the SES as part of a RIF that was occasioned by the closing of BOM.


The events leading up to the RIF began in 1995. In late February of that year, Rhea Graham, then-Director of BOM, testified at hearings before the House Interior Appropriations Subcommittee and the House Subcommittee on Energy and Mineral Resources. The purpose of the hearings was to consider BOM's budget and mission. A month later, the Subcommittee on Energy and Mineral Resources recommended that BOM continue operating at a spending level lower than that recommended by the President.

On June 30, 1995, the House Committee on Appropriations recommended that BOM be closed and that $87 million be appropriated for that purpose. At that time, based upon conversations with members of the Senate, however, Ms. Graham believed that the Senate would recommend continued funding for BOM. Indeed, on July 28, the Senate's Committee on Appropriations issued a report voicing strong support for BOM. The Committee recommended that Congress appropriate the President's full budget request for BOM.

Nevertheless, following the August recess, the House-Senate Conference Committee amended Interior's appropriation bill for fiscal year 1996 so as to identify BOM for elimination. See H.R. Conf. Rep. No. 104-259, at 6 (1995). The Conference Committee's report was issued on September 21, 1995. By memorandum dated December 15, 1995, Ms. Graham requested approval from Bonnie Cohen, Assistant Secretary of the Interior for Policy, Management, and Budget, to conduct a RIF of BOM's SES members. Ms. Cohen gave her approval the same day.


While the above-described events were taking place, Interior was in the process of revising and updating its SES RIF procedures. The effort was undertaken because there had been no significant revision of the procedures since at least 1982. In addition, Interior wanted to bring its procedures into compliance with final regulations issued by the Office of Personnel Management (OPM) on February 2, 1995. See 60 Fed. Reg. 6383 (1995) (codified at 5 C.F.R. part 359). Those regulations revised then-existing rules for conducting an SES RIF.

Interior's existing SES RIF procedures employed a department-wide competitive area. In the course of the revision effort, officials at Interior determined that it would be preferable to provide for bureau-wide competitive areas instead. Terry Steele, who was coordinator of executive and senior level programs within Interior's Office of Personnel and who drafted the revised SES RIF plan, testified at the Board hearing that the department-wide competitive area was perceived as unmanageable:

The old plan required that we would have a single area of competition, that if a RIF were required in any particular bureau for any reason or any place in the department for any reason-whether it was because of lack of funding or because of mission or program changes that suddenly an established and filled SES position was no longer necessary and needed to be abolished-it would throw the entire department SES cadre into a RIF situation.

The Office of Personnel or Office of Personnel Policy, as it has just been recently renamed, would have been responsible for establishing both competitive levels and then the retention registers within each competitive level for the whole department.

This would have required all the bureaus to provide us with the executives' official personnel folders. I assume-to me, a special staff would have had to have been ...

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