Cobert v. Miller
800 F.3d 1340
| Fed. Cir. | 2015Background
- Mary A. Miller, Park Superintendent (GS-13) at Sitka National Historical Park since 2008, refused a management-directed reassignment to a newly created Alaska Native Affairs Liaison position based in Anchorage.
- Deputy Regional Director Knox offered the position as a voluntary reassignment, then issued a memorandum directing reassignment and warned removal procedures if she refused; Miller (through counsel) declined citing geographic hardship and family/health/financial reasons.
- Regional Director Masica sustained Miller’s removal for refusing the reassignment; Miller appealed to the MSPB and an Administrative Judge (AJ) held for the agency, finding the reassignment bona fide and that Miller was qualified.
- The full MSPB reversed the AJ, abandoning the Ketterer two-step burden-shifting framework and concluding the reassignment was not bona fide and the removal did not promote the efficiency of the service; the MSPB ordered reinstatement.
- The Office of Personnel Management (OPM) petitioned for Federal Circuit review; the Federal Circuit reversed the MSPB, holding the Board erred in abandoning Ketterer and that substantial evidence supports the AJ’s findings that the agency had legitimate management reasons and Miller failed to rebut the prima facie case.
- Case remanded to the MSPB with instructions to reinstate the AJ’s initial decision; each party to bear its own costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MSPB could abandon the Ketterer two-step burden-shifting framework | Miller: Board may evaluate reassignment and adverse action together; may review merits of reassignment in de novo review | OPM: Board erred; Ketterer (adopted in Frey) is binding law and must be followed | Court: MSPB erred — Ketterer is law of the circuit and must be applied |
| Whether the agency met its initial burden to show a bona fide management reason for reassignment | Miller: agency’s reassignment was pretextual, created to force separation | OPM: agency showed legitimate management reasons, need for liaison in Anchorage, credible testimony that Miller was best qualified | Held: Substantial evidence supports the AJ’s findings that the agency demonstrated legitimate management reasons |
| Whether Miller rebutted the agency’s prima facie case | Miller: evidence (e.g., position development, vacancies after removal) casts doubt on bona fides | OPM: AJ credibility findings unrebutted; Miller failed to present evidence to rebut prima facie case | Held: Miller failed to rebut the agency’s prima facie case; AJ’s credibility findings stand |
| Scope of Board review of reassignments underlying removals | Miller/MSPB: Board may consider the agency’s management rationale and infer pretext where appropriate | OPM: Board’s review limited by precedent to whether reassignment had "no solid or substantial basis in personnel practice" (per Frey/Ketterer) | Held: Board exceeded its authority by abandoning Ketterer; it must apply Ketterer burden-shifting test and not supplant agency discretion absent insufficient prima facie showing |
Key Cases Cited
- Frey v. Department of Labor, 359 F.3d 1355 (Fed. Cir.) (adopted Ketterer two-step framework as law of the circuit)
- Doe v. Department of Justice, 565 F.3d 1375 (Fed. Cir.) (refusal to accept reassignment can relate to efficiency of the service)
- Brown v. Department of the Navy, 229 F.3d 1356 (Fed. Cir.) (agencies have discretion to remove employees who refuse geographic reassignments)
- Gava v. United States, 699 F.2d 1367 (Fed. Cir.) (government has broad discretion to reassign employees and discharge for refusal)