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Heelen v. Department of Commerce

August 28, 1998


Plager, Circuit Judge, Friedman, Senior Circuit Judge, and Rader, Circuit Judge.

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

Appealed from: The Merit Systems Protection Board

J. Patrick Heelen was an attorney in the Office of the General Counsel (OGC) of the Department of Commerce (Department). On February 29, 1996, the Department notified Mr. Heelen of its plans to abolish his position as part of a reorganization of OGC. On May 24, 1996, the Department eliminated Mr. Heelen's position. Because he was in the excepted service, Mr. Heelen had no assignment rights and was removed. He appealed his removal to the Merit Systems Protection Board (Board). Because the Department did not provide substantial evidence that OGC properly conducted the reduction in force, this court reverses.


The Census Bureau (Bureau) is part of the Economics and Statistics Administration (ESA) in the Department. The Bureau conducts surveys to obtain information about America and the American people. The best known Bureau survey is the decennial census. Because this decennial census influences the allocation of political representation and federal funds, the Bureau is frequently sued by parties who are dissatisfied with survey results. These parties challenge the results of, and the methods used in, the census.

These lawsuits affect the work of OGC. One of OGC's divisions, the Office of the Chief Counsel for the ESA, advises the Bureau on compliance with statutes that protect the confidentiality of census data and govern Bureau administration. The Office of Chief Counsel also helps the Department of Justice defend the Bureau in legal challenges to census results and methods.

In the early 1990s, Mr. Heelen worked in the Office of Chief Counsel as Deputy Chief Counsel for the Bureau. From his office in Suitland, Maryland, he worked with the Department of Justice attorneys who were defending then-Secretary Robert Mosbacher's decision not to use statistical sampling techniques to adjust the results of the 1990 census. Mr. Heelen had previously participated in litigation stemming from the 1970 and 1980 censuses.

In 1994, Ginger Lew assumed her duties as General Counsel for the Department of Commerce and James K. White assumed his duties as Chief Counsel for ESA. Mr. White transferred Mr. Heelen into the downtown Washington office to assist with Census Bureau matters. Later that year, the Second Circuit decided that Secretary Mosbacher's decision declining to adjust the 1990 census had been improper. See City of New York v. United States Dep't of Commerce, 34 F.3d 1114 (2d Cir. 1994), rev'd sub nom. Wisconsin v. City of New York, 517 U.S. 1 (1996). Mr. White and his subordinates, including Mr. Heelen, spent the next year developing and presenting a new litigation strategy for future census litigation. In recognition of this work, Ms. Lew nominated Mr. White and his team, including Mr. Heelen, for a Department award.

In early 1995, the Department became concerned that Congress might cut its budget. Anticipating the possibility of cut-backs in personnel, the head of OGC's personnel decisions reviewed personnel records. Because most of the position descriptions were not current, she started working with managers in OGC to update these records. As part of this process, OGC established a uniform format for position descriptions. The majority of each description consisted of language from a common form. Each description concluded with a short paragraph describing that position's unique requirements.

In May 1995, Mr. White asked Kathleen Styles, an attorney with whom he had previously worked, to join his staff. Like Mr. Heelen, Ms. Styles occupied a GS-15 position. In August 1995, Mr. White directed Mr. Heelen, Ms. Styles, and Philip Freije, the third GS-15 attorney in his office, to revise their position descriptions. After Mr. White reviewed the draft position descriptions, he directed Ms. Styles to further revise the "Unique Position Requirements" portion of the position descriptions. In particular, he instructed Ms. Styles to emphasize litigation in her position description and to minimize litigation in Mr. Heelen's position description.

In late 1995 or early 1996, Ms. Lew decided that a shortage of funds necessitated a reduction in force (RIF) in OGC. On February 29, 1996, Mr. Heelen received notice that his position had been selected for elimination. Mr. Heelen retired from federal service on May 24, 1996, the effective date of the RIF. *fn1 Mr. Heelen challenged the RIF procedures. After a hearing, an administrative Judge sustained the RIF. See Heelen v. Department of Commerce, No. DC-0351-96-0860-I-1 (Oct. 18, 1996). On appeal, the full Board sustained the judgment of the administrative Judge. See Heelen v. Department of Commerce, No. DC-0351-96-0860-I-1 (June 23, 1997). Mr. Heelen now appeals.


This court reviews Board decisions by applying statutory standards. Accordingly, this court can only disturb the Board's decision if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, obtained without procedures required by law, or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994). In reviewing a Board decision for substantial evidence, this court examines the entire record, "taking into consideration both the evidence that supports [the Board's] decision and the evidence that fairly detracts from its weight." O'Brien v. Office of Personnel Management, 144 F.3d 1458, 1461 (Fed. Cir. 1998) (internal quotation marks omitted).

Although enjoying wide discretion in conducting a RIF, see Gandola v. Federal Trade Comm'n, 773 F.2d 308, 313 (Fed. Cir. 1985), an agency nonetheless bears the burden of demonstrating its compliance with proper RIF procedures, see 5 U.S.C. § 7701(c)(2)(B) (1994); see also Wilburn v. Department of Transp., 757 F.2d 260, 262 (Fed. Cir. 1985) (explaining that an agency's "assertion of absolute discretion does not satisfy its burden under the facts of this case"); Williams v. Tennessee Valley Auth., 24 M.S.P.R. 555, 557 (1984) ("When an agency undertakes a RIF, it has the burden of proving by a preponderance of the evidence that it properly invoked and applied the RIF regulations."); Losure v. Interstate Commerce Comm'n, 2 M.S.P.R. 195, 201 (1980). An employee has a substantive right to be placed in a properly determined competitive level during a RIF. See Jicha v. Department of the Navy, 65 M.S.P.R. 73, 76 (1994). Therefore, the agency must prove that it made a valid determination of the competitive levels used ...

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