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Schmelzer v. Office of Compliance

September 17, 1998


Before Rader, Circuit Judge, Friedman, Senior Circuit Judge, and Bryson, Circuit Judge.

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

Appealed from: The Office of Compliance The Board of Directors

United States Court of Appeals for the Federal Circuit


Gerard J. Schmelzer petitions for review of a decision of the Board of Directors of the Office of Compliance (Board), which held that he was not entitled to relief for an alleged violation of section 205 of the Congressional Accountability Act of 1995 (CAA), 2 U.S.C. § 1315. Because we agree with the Board that Mr. Schmelzer was not denied any rights granted to him under the pertinent statutory and regulatory provisions, we affirm.


Mr. Schmelzer was employed by House Postal Operations (HPO), a division of the Office of the Chief Administrative Officer (CAO) of the United States House of Representatives. In early 1995, the Committee on House Oversight decided to privatize HPO's mail delivery functions. On June 14, 1995, all HPO employees received a memorandum advising them of the privatization plans. The memorandum stated that upon award of the contract, "the selected vendor will be required to interview all interested current employees." Mr. Schmelzer testified that, after reading the June 14 memorandum, he understood that he would be interviewed for a position with the private contractor, but that he and other HPO employees believed that "they [were] getting rid of us . . . to save money and to take away jobs and benefits."

On September 8, 1995, another memorandum was sent to all HPO employees informing them of the status of the plans to "outsource Postal Operations." The September 8 memorandum explained that final bids for outsourcing HPO's functions were due by September 15, 1995, and that the winning bidder "is scheduled to begin operations in mid-December." The memorandum also explained that the winning bidder would interview all interested HPO employees for possible employment and that employees with questions should contact Ben Lusby, the author of the memorandum. Although Mr. Schmelzer testified that he did not recall receiving the September 8 memorandum, he does not challenge the Board's factual finding that the memorandum was provided to all HPO employees.

On December 13, 1995, the Committee adopted a resolution directing that HPO functions be terminated as of February 13, 1996, and authorizing the award of a contract to Pitney Bowes Management Services to take over the HPO functions. The resolution instructed the CAO to facilitate an "orderly transition" of operations to the new contractor and to ensure that all existing HPO employees were given an opportunity to apply for employment with Pitney Bowes. The resolution also directed the CAO to "immediately provide sixty days notice to existing House employees affected by the issuance of the contract." The resolution was posted on a bulletin board at the main HPO facility.

Although Mr. Schmelzer contends that he did not see the Committee resolution, he concedes that he attended a meeting held on December 13, 1995, for all HPO employees. During the meeting, a memorandum written by Kay E. Ford, Associate Director of Human Resources, was distributed to all attendees. That memorandum, which Mr. Schmelzer received, states in relevant part:

The selection of Pitney Bowes Management Services has subsequently been approved by the Committee on House Oversight. As a condition of the selection process, the vendor has agreed to interview all current Postal Operations employees interested in employment with their organization. . . . The vendor will inform you directly if you are selected for a position in their organization. . . . The Human Resources' [sic] Office of Training, extension 60526, room 219, FHOB, and the Outplacement Resources Center, extension 64068, rooms 170-171, FHOB, are prepared to offer advice and assist with the preparation of applications on an appointment basis. To make the transition from employment with the U.S. House of Representatives as smooth as possible, an array of support, resources and information will be made available to you. This will include employee assistance programs designed to address the personal, professional and family concerns associated with the transition process as well as employee benefits consultations and briefings.

At the December 13 meeting, the HPO employees were informed that applications for employment with Pitney Bowes would be distributed the next day and that Pitney Bowes was expected to start operations on February 14, 1996. On December 14, Pitney Bowes representatives met with the HPO employees and distributed job applications. The employees at the December 14 meeting were again notified that February 14, 1996, was the "target date" for Pitney Bowes to begin operations. Mr. Schmelzer attended the December 14 meeting and received an application for employment with Pitney Bowes.

On December 19, 1995, Mr. Schmelzer submitted his application for employment with Pitney Bowes. On that application, he identified February 13, 1996, as the date he would be available to begin work. Mr. Schmelzer concedes that the February 13 date was a typographical error and that he intended to specify February 14 as the starting date. Pitney Bowes interviewed many of the HPO employees and offered jobs to 90 of the 110 HPO employees whose positions were to be terminated by CAO. Mr. Schmelzer, however, was not offered a job with Pitney Bowes. Thereafter, on January 23, 1996, Mr. Schmelzer received a termination letter stating that his employment with HPO would end on February 13, 1996.

Mr. Schmelzer acknowledges that the letter he received on January 23, 1996, satisfied the notice requirements of the applicable statute and regulations, except that it was not sent at least 60 days before his termination date. Following his termination, he filed a complaint with the Office of Compliance, contending that he was not provided with 60 days' written notice ...

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