*1 895 сarefully by experts authorized drafted medical can find no substan- —and statute, particularly Congress discrepancy federal tial between testimony weighed im carefully the need for jury’s has awards. The amount of dam- provement judicial efficiency, and has ages decide, jury was for the which it did n very attentive to the also been constitution permissible legal within bounds. Accord- al of the interests at stake.12 dimensions ingly, judgment we affirm the of the Dis- Heckers By precedent, of the virtue we trict respects. Court all uphold believe ourselves bound to Section Judgment accordingly. 636(c) Magistrates Act.13
III. The Merits now turn to the
We substantive upon appealed
issue
which WMATA
—the
alleged excessiveness of the verdicts. Our
review such cases is limited to instances
NATIONAL TREASURY EMPLOYEES
grossly
where the amounts are so
exces
UNION, Petitioner
(or
judge
that the decision of the trial
sive
magistrate)
v.
to let them stand amounts to
Taylor
See
v. UNITED STATES MERIT SYSTEMS
of discretion.
abuse
Co.,
145,
Washington Terminal
PROTECTION BOARD and United
denied,
(D.C.Cir.),
cert.
835,
396 U.S.
Manage-
States Office of Personnel
93,
(1969);
Konink
24 L.Ed.2d
90 S.Ct.
ment, Respondents.
lijke
Maatschappij
Luchtvaart
N. KLMV.
No. 82-1206.
Tuller,
(D.C.Cir.),
v.
cert. de
of this
testimony
case—in
plaintiffs,
Nichols,
Virgie
and of the
393, 395-396,
(1888);
8 S.Ct.
distinguished
Wald, Judge, separate filed con- Circuit
curring statement.
89 D.C., brief,
Washington, were on the petitioner. F. White also entered William petitioner, appearance M_ jennings, Systems Mary Atty., Merit protection Bd., D.C., Washington, Counsel, Swift, Evangeline W. whom Gen. Bd., Systems Protection Rita S. Aren- Merit MorroW) Attys., Merit dal and M. Calvin Bd., D.C., Washington, Systems Protection brief, respondent, Merit were on the Systems Protection Bd. Alan F. Green- Bd., wald, Atty., Systems Merit Protection *4 D.C., Washington, appear- also an entered Systems respondent, anee for Merit Protec- tion Bd. Ryan, Atty.,
Michael Asst. U.S. Wash J. D.C., Harris, ington, Stanley with whom S. Atty., Washington, D U.S C at the time filed, Royce the brief was C. Lamberth and Lawrence, Craig Atty., R' Asst. U.S. Wash- brief, respon were on the Management, of Personnel 0fñce dent> Before w ’ ^ ^® ¤ ,! ~ . . * ^ i. .l t TTn o I-II.C.2 Opinion m for the Court Parts WALD. ffled Circuit Opinion for the Court Part II.C.3 filed Judge Circuit BORK. Separate concurring statement filed Judge Circuit WALD.
WALD, Judge: Circuit Petitioner, Treasury Employees National (NTEU), relief from a Union seeks decision Systems the Merit Protection Board (MSPB) upholding the of an Office (OPM) Management regula- of Personnel tion, presently published at 5 C.F.R. 752.- 401(c)(10) (1983), agen- which allows federal government place cies to “seasonal” em- ployees “nonduty, nonpay” status with- affording pro- out them the action adverse required by tections the Civil Service Re- n x, , , , Act), ,, (CSRA form Act of 1978 5 U.S.C. .... f n Order ,3 of an Petition for Review §§ 7501_7543) empioyees for federal “fur- Systems Merit Board. Protection tWrty days less. ]oughed„ for Under 5 Williams, D.C., 1205(e)(2)(A), Washington, U.S.C. the MSPB —when it Lois G. Bufe, regulation grants M. Tobias F. review —must declare whom Robert and John appeal, jurisdiction that the to hear the NTEU’s face if determines its invalid on bring implemented standing NTEU regulation, if that the lacks terms of the require employee to agency, regulation should appeal, and prohibited personnel any of jurisdiction commit upheld on the merits. We take § 2302(b). practices forth set ease, find the NTEU has stand- argued before the MSPB The NTEU ing, and affirm MSPB’s order. history plain language any short-term indicate that the CSRA Background I. is a “fur- layoff employee a seasonal meaning U.S.C. lough” of 5 within Statutory A. Scheme so, 7511(a)(5). fur- If failure to afford Act of The Civil Service Reform loughed employees recourse 95-454, (codified No. 92 Stat. procedures of 5 U.S.C. Pub.L. action adverse §§ 1101-8913), personnel practice, at 5 prohibited as amended 7513 is revamp invalid on designed personnel manage and the OPM that, although system face. The OPM countered ment President Carter termed a generally entitled neglects merit, seasonal workers maze which “bureaucratic provi- protections of the adverse action performance, poor permits tolerates abuse sions, “fur- properly interpret it could legitimate employee rights, and mires lough” laying for brief to exclude them off every personnel redtape, delay, *5 conditions periods in accordance with the H.R.Rep. and confusion.” No. 95th they are Further- employed. under which reprinted (1978), 2 in Cong., 2d Sess. more, Comm, impact provid- fiscal of urged, it the on and House Post Office Civil Ser layoffs procedures such all brief vice, Sess., Legislative Cong., His 96th 1st employees destroy the sea- tory the Civil Act Service Reform program. employment sonal (Comm. 1979) Print [here Legislative CSRA Histor cited as inafter reading the Based on part, In relevant it codifies yj.1 merit CSRA, history policies underlying the and principles prohibited personnel systems and the had the concluded that MSPB practices; replaces the old Civil Service properly “furlough” defined to exclude agencies, Commission two Office layoffs employ- temporary such of seasonal act as Management of Personnel the ac- protections ees the adverse action from personnel furloughs central office of executive 5 U.S.C. corded to under §§ Systems 7511(a)(5) branch and Merit Protection and 7513 and that 5 C.F.R. § Special adjudicate 752.401(c)(10) The and was valid its face. Board Counsel on appeals investigate ruling. employee charges The OPM and and appeals NTEU argue prohibited personnel practices; in this court that we lack and es- MSPB Blowers,” comprehensive Incompetents Protecting American and "Whistle 1. For histories of the service, (1979). Wayne Riper, History see P. Van L.Rev. The civil Pendleton (1958); Hoogen- empow- up Civil Service A. Act set a Civil Service Commission United States boom, political jobholders Outlawing Spoils: History pressures A to limit ered Movement, promulgate personnel various Civil Service (1961); and to rules on Reform Fish, matters, including competitive Pa- C. The Civil Service and the examinations for however, positions. originally passed, tronage The civil service was As modern government passage of the Service Act of Act covered about 10% of born with Civil em- (codi- Act), (Pendleton ployees, powers, ch. created few removal 22 Stat. 403 limits on gave procedural protections employ- & and no fied as amended scattered sections Note, U.S.C.). supra, precipitated by public Over the That Act ees. next decades, system," remedy "spoils attempts disapproval a civil service several these de- procedures inef- rendered the allowed policy to facilitate the removal of fects federal intended appeal personnel, government instead adverse actions but which time-con- ficient suming cоmplex. personnel The and Id. at 99-105. CSRA in wholesale turnovers of resulted every attempted problems government elec- to solve without many parts after these sacri- Note, developed ficing procedural protections Employment— Federal tion defeat. See Removing century. the twentieth The Act Civil Service Reform 1978—of prac prohibiting personnel actions sion defined for adverse procedures tablishes § tices, 2302(b), 5 U.S.C. or its adverse suspensions. and sought procedures action case are the to this special concern Of § 1205(e),2 MSPB under 5 U.S.C. dealing with adverse ac- CSRA authority to grants discretionary the MSPB tions, personnel practices, and prohibited regulations promulgated review rules The lists re- procedures. CSRA carrying by the Director of the OPM in out than movals, suspensions for more four- management personnel his functions under grade pay, days, reductions teen may grant 5 U.S.C. 1103.3 MSPB thirty days or less as adverse furloughs of “any on its own motion or when Whenever actions. 5 U.S.C. person” petition files a for re interested proposes to take such an ac- government view, grant and must review when the tion, affected the action is employee Special Counsel files a written MSPB’s to the adverse entitled complaint requesting review. 5 U.S.C. § 7513, including writ- set out review, 1205(e)(1). grants Once advance, days in a reason- thirty notice ten § 1205(e)(2)(A) requires to de support- time to answer and to furnish able regulation a rule invalid on its face clare evidence, documentary ing affidavits any provision if it determines attorney, by an and a writ- representation regulation, implemented by if rule or ten decision. require any еm would on its face regula- ployee prohibited personnel Invalidation of OPM rules and to commit a § 2302(b).4 allegedly provi- practice as defined in 5 U.S.C. tions that violate CSRA (B) 1205(e) Any provides: review conducted the Board 2. U.S.C. pursuant to this shall be limited to subsection (e)(1) date of At time after effective determining— any rule or issued the Director (i) provision on its face of the carrying out functions under section 1103 review; under title, any provi- shall review of this the Board (ii) provision whether the under review has regulation— such rule or sion of validly implemented. *6 motion; (A) on its own (C) require any agency— The Board shall Board, (B) granting by the in its on the sole (i) compliance any provisions to cease with discretion, any petition such review of for any rule the Board of or by any person, the Board interested filed with under be invalid declares this subsection to petition by after consideration of the the face; on its Board; or (ii) any implementation to correct invalid (C) filing complaint by on the of a written by agency any provision any of rule or the of Special requesting such review. the Counsel regulation which the Board declares under (2) reviewing any provision any In of rule invalidly imple- this subsection to have been regulation pursuant to this subsection the or by agency. the mented provision— Board shall declare such face, pertinent pro- (A) U.S.C. § 3. The section of 5 on its if the Board deter- invalid would, vides: provision imple- mines that such if face, by any agency, require on its mented 1103. Functions of the Director § 2302(b) (a) following any employee to violate section of functions are vested in title; Man- the Director of the Office of Persоnnel this or agement, performed by (B) by any agency, the Di- invalidly implemented shall if rector, title, subject or to section 1104 of this provision, that such the Board determines by as the Di- such of the Office by agency implemented the it has designates: rector ... any personnel by through taken the action (5) executing, administering, and enforc- through any adopted by agency policy the or ing— conformity provision, agency with such has in (A) regulations the civil service rules and of any employee required to violate section the President and the Office and the laws 2302(b) of title. this service; governing the civil ... (3)(A) of The Director of the Office Person- President, (7) aiding as the President the any agency Management, and the of nel head may request, preparing civil in such service any provision any implementing rule or of prescribes.... rules as the President pursuant regulation under review to this sub- section, right participate have the in shall 2302(b) per- prohibited eleven 4. Section sets out review. such practices: on the basis of sonnel discrimination jurisdic- § must Federal exclusive 1205(e)(2)(B),the MSPB de- Circuit Under appeal of rules and a order tion “of an from final of the clare Board,” if it invalidly implemented determines Systems id. Merit Protection implement- § § has been provision, it such 127(a), 1295(a)(9), subject U.S.C. through personnel any ed procedural exceptions require- certain adopted conformity with policy or ments section 205 the CSRA as any required employee to provision, has FCIA, amended section § 2302(b). violate § repealed U.S.C. The FCIA also statutory provisions in certain at issue this considers several factors The MSPB deciding grant governing review under case review MSPB final or- whether § 1205(e), including the likelihood appeals ders in courts than the other timely through § being (amend- reached ordi- issue Federal Circuit. FCIA 137 § nary appeal, § channels of extent 2342); id. (amending U.S.C. application to the feder- regulation’s § rule 7703). argu- service, strength al We must therefore determine whether Appendix against validity. its Joint ments jurisdiction has affected our FCIA over has substantial dis- at 25. The MSPB also deciding essentially this case. same its reviews. cretion in how conducts question, the Third Circuit has noted that on the basis may make its decisions FCIA, [sjection 403 of the [28 alone, or it consider addi- pleadings (note) ], does not discuss effect comments, argu- oral written hold tional petitions of the FCIA on ments, evidentiary hearings, or use conduct petitions where the decisions were procedures. appropriate any other date of filed before the effective (1983). If the MSPB then 1203.16 C.F.R. However, expressly FCIA. the FCIA a rule provision determines “[a]ny declare that case which a does face, imple- invalid or as regulation is appeal dis- mented, notice of has been filed 1205(e)(3)(C)requires it to direct trict court prior compliance pro- the United agencies to cease States implementa- invalid or to correct effective date of this Act shall be vision tion. decided the court of to which FCIA, 403(e) appeal was taken.” petition filed its for review NTEU added). Moreover, the (emphasis FCIA final order issue this of the MSPB provide ap- does not transfer of Appendix case on March 1982. Joint peals as this one the Court of such 2, 1982, the April ap On President *7 Appeals for even the Federal Circuit Improvement proved the Federal Courts though explicitly the Act does order the 97-164, (FCIA), Pub.L. No. Act of 1982 96 pending of cases before the transfer (codified in 27 scattered sections of 28 Stat. § Claims, 403(a), Court of and the Court U.S.C., conforming minor and amend Appeals, of and Customs Patent titles), by to which its terms ments other § 403(b)____ analogy derived from id. on October became effective § § § (note). 403(e), implication negative and the The FCIA 28 U.S.C. 171 §§ 403(a) (b) Appeals arising pro- granted the United Court of and ... States race, sex, relative; color, ing origin, age, special preference employee’s religion, to an national condition, status, failing political taking personnel handicapping a marital or to take action as a affiliation, adversely affecting reprisal protected of or conduct not for disclosure information appeal right; performance; or exercise a valid solicitation or consideration of a of discrimi- personal against person not based on knowl- nation for or because of con- recommendation records; any person’s adversely perform- edge duct does his or interference with affect others; performance political activity; taking ance of freedom of obstruction or failing right compete employment; any personnel violating person’s to un- or to take law, rule, any person regulation implementing withdraw from or or di- fair influence position; granting rectly concerning system principles competition merit for a un- preference any person; giv- employment § set out 5 U.S.C. fair
902 jurisdic- of the former support for our retention tion Court of and 158 vide Claims] §§ [containing 2344],
tion. 28 U.S.C. 2342 and respectively, of title 28.” Section 2344 Man Personnel Lancellotti Office of grants standing “parties aggrieved” by (3d agement, 704 F.2d 98 n. Cir. § orders, 7703(a)(1) pro- final while Scarborough v. 1983); see also Office of “any employee applicant vides that Management, Personnel employment adversely aggriev- affected or (11th Cir.1984). by For the reasons stated court, by ed a final order or decision of the Merit the Lancellotti we think it clear that Systems petition judi- for review in this case Protection Board obtain because the date of the was filed before effective cial review of the order or decision.” FCIA, jurisdiction our is not affected that act. therefore turn to examination We Proceedings Facts This Case B. statutory scheme as existed when NTEU, February On which is petition for review was filed. 120,- representative the exclusive of over review under that scheme Judicial employees, petitioned federal governed by jurisdictional provisions § MSPB, pursuant 1205(e), to 5 U.S.C. (1976 1979) Supp. & Ill U.S.C. regulations, three alleging review cited as former section [hereinafter 2342] regulations were invalid on their face. On § 7703(b) 1981) (Supp. V [here- January granted the MSPB 7703(b)], inafter cited as former section petition regarding for review the seasonal- standing provisions, still furlough regulation, worker 5 C.F.R. force, of 28 U.S.C. 2844 and 5 U.S.C. § 752.401(c)(10)(1983) (originally published § 7703(a). Former section 2342 conferred § 752.401(c)(9)), at 5 C.F.R. and declined to jurisdiction” “exclusive on the courts of other two.5 aside, appeals enjoin, suspend, set § 752.401(c)(10) 5 C.F.R. excludes determine the of all final MSPB “[placement employee serving on an orders, except provided in former sec- intermittent, part-time, or seasonal basis in 7703(b). 7703(b)
tion Former section nonduty, nonpay status accordance that, provided except turn for cases involv- with conditions established at the time discrimination, which must be heard in appointment” courts, pro from the adverse action petition the district “a to review a §§ visions of 5 final or final 7511-7514. The order decision of the Board argued shall filed in the NTEU to the MSPB that Court Claims or a 752.- 401(c)(10) provided United States court of is invalid on its face because sea chapters governed jurisdic- “employees”7 sonal workers6 are for the [which however, appears, 5. The MSPB declined to review C.F.R. § 771.- from the material sub- MSPB, (1983), agencies permits mitted to the that the seasonal workforce to exclude (1) groups: employees can be divided into three bargaining employees coverage unit from the full-time, year-round who work less than sched- agency grievance systems, 752.401(c)(2) and § seasonal, primarily ules but are classified as (1983), which excludes actions that entitle em- employment ceilings because full-time im- ployees grade pt. retention under 5 C.F.R. Management posed Budget the Office of procedural requirements. from adverse action (2) agencies; on federal The MSPB concluded that there was little likeli- *8 duty are hired for who fixed tours of and work prevail hood that the NTEU would merits during son; relatively predictable a discrete and sea- respect challenges regula- to its to either (3) workers, and "on-call” seasonal who do tion. specific duty, not have tours of work at least six per year unpredictable months but on an basis statutory regula- 6. The record discloses no workloads, designed rapidly fluctuating to meet tory employee.” definition of "seasonal See may eventually be converted to full-time Appendix Only at Joint 176. OPM’s Federal 10-11; Appen- status. See MSPB Brief at Joint definition, describing Personnel Manual offers a 84, 88, 91, 93, 101, 107, dix at 134. employee a seasonal as "one who works on an origins employ- The and extent of seasonal recurring annual or on-call basis and for less government ment in the federal are somewhat 2,080 296-33, year.” per Supp. than hours FPM vague. Appendix at 176. The OPM be- Joint S15-2(e) (1982). ch. practice employees hiring spe- lieves that the
QQ3 layoff that the pro action did not intend seasonal adverse of the CSRA’s purposes tections, accomplished worker non- placing employee, a seasonal in accord- “furlough” of that is a duty, nonpay status appointment, should ance with terms meaning of 5 U.S.C. worker within furlough be deemed an adverse action un- § 7511(a)(5),8 furlough of a seasonal and a §§ Appendix and 7513. Joint der must there thirty days or less worker regulation It therefore found the 180-84. protections procedural give rise to fore its face and valid on dismissed NTEU’s § 7513.9 5 U.S.C. appeal petition for review. This followed. regula- agreed The MSPB
tion,
petition
stating that
the NTEU’s
Analysis
II.
questions as to whether
valid
raised
Although they
merge
tend to
the first
authority by so re-
exceeded its
OPM had
two,
parties identify
three issues on
adverse action
stricting the
(1)
appeal:
jurisdic-
whether this court has
§§
It therefore directed
7511-7514.
U.S.C.
decision;
(2)
tion to review the MSPB’s
affi-
and OPM to file briefs and
the NTEU
standing
whether
the NTEU has
to seek
issues,
sought
addressing these
davits
reviеw;
(3)
whether
the MSPB
Appendix at 27.
Joint
public comments.
correctly decided that 5 C.F.R.
752.-
provide
ordered the OPM to
The MSPB
401(c)(10)
up
is valid on its face. We take
ex-
regarding the nature and
information
jurisdiction
standing
the matters of
employment
the federal
tent of seasonal
first,
negative
since
conclusion on either
provid-
response,
the OPM
government;
preclude any
of those issues would
consid-
federal
submissions from ten
ed factual
regulation’s validity.
eration of the
Appendix at 66-172.
agencies.
Joint
Budget
Management and
The
Office
A. Jurisdiction
concerning
comments
submitted
also
impact
requiring
ad-
government-wide
OPM and MSPB assert that this
procedures when seasonal em-
verse action
jurisdiction
court lacks
to hear the NTEU’s
nonduty, nonpay
sta-
ployees
placed
are
appeal because neither former section 2342
tus.
provides
jurisdic-
nor former section 7703
appeal
tional basis for an
from a decision
submissions,
a review of all
After
upholding
the facial
opinion
and order on Feb-
MSPB issued
§ 1205(e).
concluding
of an OPM
under
ruary
fluctuating
cifically
manage
workloads has
of adverse action laws
reduction-in-force
more,
fifty years
regulations.
in existence for
but
Id. at
177.
employees
temporary
that these
received
rather
positions
purposes,
permanent
about
Id.
7. For
adverse
than
until
agencies
7511(a)(1)(A)
"employee”
that ten
em-
at 70.
It has ascertained
as "an
defines
indi-
sixty
ploy approximately
em-
thousand seasonal
competitive service who is not
vidual
in the
ployees, and estimates that more than one hun-
serving
probationary
period
or trial
under an
employees
employed
are
dred thousand such
completed
appointment or who has
initial
agencies.
federal
Id. at
more than one hundred
year
employment
of current continuous
under
agencies,
the Internal Revenue
70-71. Three
temporary appointment
other than a
limited to
Service,
Service,
Park
and the For-
the National
year
or less.”
Service, employ three-fourths of the known
est
employees.
Id. at 78.
7511(a)(5)
"furlough”
U.S.C.
defines
8. 5
permanent,
career
Seasonal
temporary
placing
employee
“the
of an
in a
appointed
authority
employees,
under the same
pay
status without duties and
of lack of
because
registers
perma-
as full-time
and from the same
nondisciplinary
work or funds or other
rea-
Appendix
employees.
Unlike
nent
Joint
sons."
they
temporary employees,
are entitled to most
fringe
employment,
of federal
benefits
may appeal
furloughs of
9. Seasonal workers
benefits,
including job security,
retirement
thirty days to the MSPB under reduc-
more than
within-grade
coverage,
insurance
health and life
provisions.
increases,
Brief at 40
job
tion-in-force
See MSPB
step
promotions, access to other
40;
3502;
1205(a)(1),
agency,
C.F.R.
opportunities
employing
ac-
n.
§§
within the
*9
leave,
1201.3(a),
(1983).
inclusion in
crual
annual and sick
§§
351.901
units, and,
general,
protection
bargaining
any congressional
review of MSPB evidence of
intent to ex-
argue
judicial
that
They
§ 1205(e)
jurisdiction
appeals
is limited to orders
tend
to the courts of
under
orders
§
personnel
1205(e)(2)(A)
determining
actions that
dealing
specific
orders
review
particular
already adversely affectеd
validity
regulations.
have
In-
the facial
concedes,
government
employees.
stead,
concludes,
The
government
since the
§
orders,
1205(e)(2)(B)
in
first,
that
sought
entirely pro-
relief
in such cases is
regulations as
validity
of OPM
volve
regulation
spective
nature and no
is be-
personnel
through individual
implemented
challenged
invalidly implemented,
as
actions,
challenged initially in the
could
judicial
validity
initial
review of
facial
section
appeals under
former
courts of
placed
in the
of OPM
dis-
24, and,
Brief .at 23 n.
see MSPB
courts,
appeals,
not in the courts of
trict
second,
7703(d) permits
that former section
just
it
have
if the
as would
MSPB
seek review of
the Director of the OPM to
regulation
declined to review the
at all.
court if he determines
MSPB orders
this
reasons,
For several
we are not
misinterpreted
the MSPB
a “civil ser
all,
by
argument.
this
First
convinced
law, rule,
affecting per
regulation
or
vice
language
plain
of the CSRA review
management and that
decision
sonnel
[its]
originally
granted
enacted
impact
on a civil
will have
substantial
jurisdiction
appeals
courts of
to review all
law, rule, regulations,
policy
di
service
MSPB,11 except
of the
final orders
those
however,
urges,
under
rective.”
that could instead be filed
the Court of
enacted,
originally
the CSRA as
Nothing
or involved discrimination.
Claims
place
did not intend to
review of
facial
text of former section
2342 or former
validity
regulations in the
of civil service
government’s
section 7703 even hints at the
1205(e)
appeals.
was add
courts of
Section
suggested distinction between MSPB or
CSRA,
asserts,
ed to the
as an internal
determining
validity
the facial
ders
management
congression
audit to alleviate
regulation
civil service
and all other MSPB
assignment
al
that the Act’s
concern
Thus,
final orders.
the statute on its face
adjudicatory
personnel management
grants jurisdiction to this court to hear the
responsibilities formerly
exercised
appeal.
NTEU’s
(CSC) OPM,
Civil Service Commission
an
Second, nothing
legislative history
in the
single political appoin
office headed
tee,
plain language
contradicts its
unduly
protection
decrease the
CSRA
particular
system
indicating either that
these
against abuses of the merit
bipartisan
previously provided.
had
MSPB orders should be unreviewable or
CSC
§ 1205(e)
appeals
improper
The addition of
to the CSRA can
the courts of
are
not,
contends,
government
be taken as
forums for that review.
administra-
would, however,
7703(d)
recognizing
10. The MSPB
limit
that these courts are authorized
permit
so as to
the Director of the OPM to
review some kinds of MSPB actions other than
petition
interpreta-
involving
of MSPB
those
individual adverse actions. See
personnel
Reply
tions rendered in individual
actions.
NTEU’s
Brief at 7 n. 5.
interpretation
See MSPB Brief at 23 n. 25. This
question
7703(d)
11. There is no
that decisions like
persuasive,
is not
since the statute
one at issue here
final
orders
the MSPB
itself makes no such distinction and the OPM
they
regula
since
determine the
of OPM
would then be able to seek review if the MSPB
tions. See OPM Brief at 4. The term “final
declares an OPM rule or
invalid on
reviewing
order"
defined
MSPB
has been
order “that
its face in the course of
an individual
action,
obligation,
right,
imposes
personnel
denies a
but would have no recourse if
fixes
legal relationship usually
in a
some
at the
the MSPB reachеs the identical conclusion
consum
1205(e)(2)(A)
regulation by
process.”
it-
review of the
mation of an administrative
Dunn v.
apparent policy
Dep't Agriculture,
self. This would frustrate the
underlying
United States
654 F.2d
7703(d)
(Ct.Cl.1981),
permitting
quoting
OPM to
68 n. 2
Honicker v. United
Comm’n,
important
Regulatory
decisions.
seek relief from
States Nuclear
(D.C.Cir.1978)
curiam),
(per
cert. de
addition,
government apparently ad-
nied, 441 U.S.
99 S.Ct.
905 Legislative History CSRA congres- 2 initiated final orders. tion-sponsored bill that reform at 1395. major civil service efforts at sional for MSPB provision no in 1977 contained report accompanying The committee S. regulations, nor rules or
review explained in some detail its reasons result, judicial for re- any provision, as a jurisdiction in placing for the courts of any action. such MSPB view appeals to Teview MSPB orders and deci- History at 1-64. Sec- Legislative CSRA particular, sions. the committee wanted however, did, provide bill tion 205 of the any limit variation in the outcome employ- any employee applicant by aggrieved employees appeals from ad- aggrieved by a adversely affected or ment by restricting verse decisions could or decision of MSPB final order of forums in number which such order or deci- judicial review of the obtain exception could be heard. created an or a court of sion in the Court Claims discrimination, however, involving cases Id. appeals. at 206 amended 23. Section reasoning factfinding might that additional § 2342, provision deal- the code required, that district courts were the appeals jurisdiction, with court existing forums for discrimination cases § 205. Id. at 24. conform with involving government, and that uni- reported from the House Committee As formity would be better furthered con- July on Post Office and Civil Service tinuing jurisdiction in the district courts (H.R.11280) still con- House bill S.Rep. claims. over such No. 95th no for MSPB review tained (1978), Cong., 2d Sess. 62-63 U.S.Code regulations judicial or for OPM rules and re- Cong. p. & Admin.News resulting MSPB orders. But review printed Legislative History in CSRA at provided that 205 of the House bill now 1461, 1526-27. adversely aggrieved affected or 1205(e), which Section allows MSPB re- or decisions were to by MSPB final orders regulations, of OPM rules and view judicial seek review the Court of Claims introduced Senator Mathias on Sen- in federal district court rather than August ate floor on amend- Legislative CSRA appeals. courts of (§ 1205). ment to Senator Mathias History at explained that the amendment was intend- report accompanying The committee reported ed to correct deficiencies why explain H.R.11280 did not the commit- bill, provide which did “not sufficient had the federal district tee substituted policymaking powers checks on appeals. courts for the court of It stated Director of the of Personnel Man- Office 7702(a) pro- new section “[t]he restrictions, agement. Without some judicial vides for the Court of of Personnel Director Office Man- Claims or United States district court political appointee agement, as a appealed by of decisions of the Board an President, could issue rules which would applicant employment.” employee or politicize the civil service in violation of 1403; Cong., H.R.Rep. No. 95th 2d Sess. 23 system principles.” Cong.Rec. merit (1978), reprinted Legislative in 1 CSRA 27,561 (1978), reprinted in Legis- CSRA History History lative Percy аt 1659. Senator add- purpose ed that the of the amendment was reported from the Senate Com- bill address concerns ... in the Federal “to July mittee on Affairs on Governmental 27,563, reprinted Id. bureaucracy.” (S. 2640), provi- likewise contained no Legislative History at 1662. The CSRA rules or sions for MSPB review of OPM intended, the amendment was Senator stat- appeal or for to the courts from ed, to address bill, decision. Unlike the House however, retaining designat- 205 of the Senate bill these fears while the essential legis- and the courts of structure and thrust of the overall ed the Court Claims instance, System the Merit appeals as the forums for review of MSPB lation. For *11 906 procedure reviewing Board review nism for final decisions and or-
Protection . agencies.” a role in Federal drafted so as not to allow MSPB ders of administrative being H.R.Rep. (Conf.Rep.) Cong., area reserved No. 1717 policymaking, this 95th (1978), way Cong. simply It is to assure 2d Sess. 143 U.S.Code & Ad- OPM. reprinted 1978, 2723, 2876, implementing policy pp. min.News that OPM 1843, Legislative in 2 History CSRA through regulations step over at does prohibitive per- the line and commit [sic] which is the sole standard
sonnel actions legislative history It is clear from the striking regulations down. of review that former sections 2342 and 7703 were Id. originally employ- drafted when individual adjudications ee were the OPM actions Representative Fisher introduced 1205(e), reviewable the MSPB. Section on the floor of the House same amendment allowing MSPB review of OPM rulemak- 11, 28,720, 1978. Id. at re- September on ing, near legisla- was added the end of the History printed Legislative in 1 CSRA at process. appears, Congress tive So far as 884. He stated that the amendment would thought specifically nеver about the re- protection “add a small bit § 1205(e) Thus, viewability of orders. throughout Government Board____ support legislative there is no history System This amendment Merit government for the distinction the seeks to simply says System that the Merit Protec- § 1205(e)(2)(A) draw between unreviewable Board can tion review OPM challenging orders validity the facial prohibited personnel if it and violates regulations rules OPM and reviewable practice, regula- then it can overrule that § 1205(e)(2)(B) challenging orders the valid- prevent going operation.” into tion ity regulations imple- such rules and Id. After he pointed out that the same mented. Far expres- less is there the clear provision Repre- was in the Senate bill and sion of intent that would be sentative Udall that the administra- added plain language needed to overcome the it, willing accept tion was House Indeed, former sections and 7703. Id. agreed to the amendment. suggests one clue we have passed by Septem- the House on bill provide judicial would have wanted to 13, therefore, 1978, ber allowed the MSPB review of those orders in the courts of regulations rules and review OPM appeals. The Conference Committee had granted jurisdiction to the Court of Claims § 1205(e) opportunity exempt orders and the federal district courts for review of from the of former sections 2342 2640, Cong., final MSPB orders. S. 95th 2d differing and 7703 when it reconsidered §§ 202(a), 205, 29,221, Cong.Rec. Sess. House and Senate versions of these two 29,225, 29,229, reprinted Legis- in CSRA § 1205(e) sections of the statute after 1142, 1155-56, History lative at 1174-75. bill, part made and did not do so. bill, 4, 1978, passed August The Senate on Cong.Rec. 27,593 (1978), provided Congress’ explicitly pre also failure regula- for MSPB reviеw of rules judicial especially telling OPM clude review is tions, placed jurisdiction light but “[o]nly review of the settled doctrine that upon showing MSPB orders the Court of Claims and convincing ‘clear and Legislative CSRA appeals. contrary legislative the courts of evidence’ of a intent 1743, History compromise judicial 1763. A ver- should the court restrict access to Gardner, passed review.” Abbott Laboratories v. sion of S. 2640 Senate Octo- 4, 33,390 136, (1978), 1507, 1511, Cong.Rec. ber and the 387 U.S. 87 S.Ct. 34,105. (1967), quoting Cort, id. Rusk v. House on October The bill L.Ed.2d 681 adopted provision placing juris- the Senate 369 U.S. 82 S.Ct. because, (1962). also diction in the court of Carter v. L.Ed.2d 809 Cleland, according report, (D.C.Cir.1980); to the conference it incor- McLucas, Hayes Corp. International porated appellate “the traditional mecha-
9Q7
denied,
cert.
(5th Cir.),
employ-
423 rector of
OPM
individual
F.2d 247
of MSPB
Despite complications, we all these 1982, govern this case. Each of these sec- authority that would allow us can find no tions, however, specific had its own stand- jurisdiction to review the final ing requirement. part to refuse Section Act, (Hobbs) Administrative Orders Review in this case. We do MSPB order issue §§ 2341-2351, provides juris- possibility sparse not think that diction to review MSPB orders “is invoked preclude in some cases is cause to record *13 by filing petition provided by a as section addition, parties judicial all review. 2344, turn, 2344 of this title.” Section challenging regulations before the OPM broadly permits “[a]ny party aggrieved by to MSPB are on notice that its discretion chapter final order reviewable under this [a accept appeal the decide whether to will petition file a to the ... review order of to] judicial determine the forum of review. appeals the of court wherein venue lies.” Congress provide particu- While did not is, grant standing of Section 7703's how- larly plan judicial coherent for review of ever, 7703(a) pro- more limited. Section regulations, general congression- the “any employee applicant vides that or for al scheme in the was for cases chal- CSRA employment adversely aggriev- affected or lenging go the MSPB decisions to from by ed” final MSPB decisions and orders appeals, thereby MSPB to the courts of may obtain such review. achieving judicial “more consistent deci- § government argues 7703(a) that eliminating “an sions review” and un- individual permits only employees ap or necessary layer judicial S.Rep. of review.” plicants aggrieved by ap MSPB orders to 969, (1978), Cong., No. 95th 2d Sess. 52 peal NTEU, to the courts and that the 1978, Cong. p. U.S.Code & Admin.News employee it is not an because individual but 2774, reprinted Legislative in 2 CSRA employees, instead a collection of is there History at 1516. The statute is plain, precluded obtaining fore such rev interpretation generally sup- natural is Although specificаlly iew.14 it does not § ported certainly not contradicted government pre discuss § legislative sumably argue history, resulting and the 2342 was amended § 7703, merely scheme, to conform to and that the legislative though imperfect, is not § specific standing provision in 7703 con totally unreasonable. We have no authori- § general provision in trols the 2344. circumstances, ty, ignore under these to result, plain meaning. the statute’s As a § true, Congress, pri it is amended 2342 jurisdiction § we find that we have to hear marily to conform to and did not § question this case and turn to the of stand- specifically refer to 2344 when it did so.15 hand, ing. nothing the other On the text of CSRA, provide chapter "employee” 14. Other sections of the CSRA some relations of is "individual," support government’s again for the restrictive inter- "person” defined as while is 7703(a). pretation individual, U.S.C. for § § 5 organi- defined to include "an labor example, explains which used in the terms zation, agency.” 5 U.S.C. 7103. Subse- § CSRA, performance appraisal chapter of the quently, any "person” ag- in U.S.C. § specifically "employee" defines as an “individu- grieved permitted appeal is to an order of the appears al." The same definition in 5 U.S.C. Management Authority. Labor Relations "employee” 7501 and which define for §§ chapter purpose of the adverse actions See, e.g., H.R.Rep. (Conf.Rep.), 15. No. 1717 95th the Act. § which sets out (1978), Cong., reprinted 2d Sess. in 2 CSRA agency appeal for to the MSPB from Legislative History at action, "employee states that is defined as in VII, labor-management § 7511.” In Title so, § § history plausible Had it done it seems orders. Congress did not expansive indicates that it would have wanted the the CSRA § standing provi- “aggrieved party” aggrieved-party ap want the standard to § § apply review of MSPB First, 7703(a) 2344 to although sion of ply. refers § just applies it orders under applicants employ agencies five review of orders of other ment, legislative history suggests § Indeed, listed already Congress trying was not to restrict stand § petition 7703(b)(1) says that a itself ing. contrary, frequently indi On final Board “shall be order modeling standing cated that it was in the a United States court of filed in ... CSRA on Administrative Procedure provided ehapter[ ... [the ] § § Act, 702,18 2344’s lan §§ Act, both Hobbs guage (“any party aggrieved”) quite sim part].” grant standing ilar to 702’s broad persons challenging agency rulemaking in specific statuto recognize that a We (“persons adversely af the district courts gen provision normally more ry controls action”).19 aggrieved But, fected or circum provision. at least eral unlikely case, seems to us that do think also of this we stances most standing appeal would have wanted rule out the grant 2344’s broad 1205(e) orders, likely challenger be limited orders should of MSPB grant union, 7703(a)(l)’s narrower apparently employees’ granted since it broad *14 applicants for standing employees persons to standing to all “interested” here, § the case the employment.16 1205(e)(1)(B) Unlike appeal to OPM rules appeals from the MSPB majority vast of regulations to the MSPB. It make would employ adjudications of individual involve permit appeal little to the union to to sense alleged agency adverse ee from deny right it the to the MSPB and then § drafted, 7703 these actions. When judicial seek review of the MSPB decision. only appeals the could were a distinction would serve no useful Such § cases, 7703(a)’s lan For hear.17 such purpose. merely force the NTEU would aggriev way no with the guage in conflicts bring appeal its in the names one or to of § ed-party standard of 2344. of in its own more of its members instead conclude, therefore, name. We judicial of an Standing to seek review § 7703(a)(1) standing to reg- does restrict or requiring an OPM rule MSPB order judicial re employees so far as however, individual ulation, separate is a issue. Con- rules is MSPB review of OPM specifically consider who view of gress did not § 1205(e) standing appeal concerned. have to should Systems appeal mit an to the Merit Protection § whether or not 7703's
16. We do
decide
applicants
any
appealable
must
action which is
references
Board from
appeals by
rule,
narrowly
law,
an or-
regulation."
read to exclude all
under
or
Board
ganizational representative
employees.
of
We
however,
note,
history
indi-
16;
27,561
See,
Cong.Rec.
e.g., supra
18.
note
124
Congress contemplated that broad
cates
(1978),
LegislativeHistory
reprinted
2in CSRA
standing
the section. The
would exist under
(stand-
(comments
Mathias)
of
1658-59
Senator
report,
example, stated
Senate committee
1205(e)
overly
ing under
was "not meant to be
§
7703(a)
wording
§
is similar to
[of
]
that “the
the
designed
to have the same
restrictive....
[I]t
governing
right
general
of
given
meaning as that term is
in the context of
actions found in Section
Act,
Procedure
and all
Administrative
Act,”S.Rep.
the Administrative Procedure
of
meaning”).
construing
case
law
969,
(1978),
Cong., 2d
U.S.
No.
95th
Sess.
1978,
2784,
Cong.
p.
re-
& Admin.News
Code
Energy
Gage v.
Atomic
19.
United States
1461,
Cf.
Legislative History at
printed
2in CSRA
Comm’n,
(D.C.Cir.1973)
479 F.2d
grants standing
"persons ad-
meaning
("parties"
within the
§§
action,”
aggrieved by agency
versely affected or
participated in
the Hobbs Act must have
2344 of
702.
§
5 U.S.C.
below).
proceedings
the administrative
7701(a) provides that
em-
“[a]n
17. 5 U.S.C.
may
applicant
employment,
ployee,
sub-
remains whether
question
Certainly
interests
NTEU seeks
party
protect
within the
“aggrieved”
rights
is an
here —the
NTEU
its seasonal
general,
pro-
In
an associa workers to the
meaning of
CSRA’s adverse action
n
standing
they
to sue on
of its
tion has
behalf
tections when
are laid off for less
they
thirty days
germane
pur-
other
injured members when
would
than
to its
—are
standing
poses
representative
to sue in their own
those
wise have
exclusive
right,
protect
primary purposes
One of
the interests
seeks
workers.
purpose,
represent
germane
organization’s
to the
a union is to
the interests of its
asserted,
challenging employer
neither the claim
nor the relief members in
requested, requires
participation
arbitrary
in
to be
contrary
believed
to law.
addition,
the lawsuit. Hunt v.
dividual members
neither
the claim asserted—
Apple
Washington
Advertising
State
regulation
that an
is invalid on its
Commission,
333, 343,
requested
face —nor
the relief
U.S.
S.Ct.
—that
(1977);
Com
requires
and 2344
derivative
its members’ stand
The courts that have considered
League
Women Vot
ing.
Rockford
scope
“aggrieved
party”
2344’s
Regulatory
ers v. United States Nucleаr
language
engaged
have
in traditional
Commission,
(7th
679 F.2d
Cir.
See,
standing
e.g., Unit
analysis.
doctrine
1982).
Trade associations have also been
ed
States
Federal Maritime
Commis
injured
allowed to sue
on behalf of their
sion,
(D.C.Cir.1982)
standing
members under the APA’s
sec
(MacKinnon, J.,
See,
United
tion,
dissenting);
e.g.,
National
States
*15
Commission,
v. Federal
Laundry
Cleaning
Automatic
Maritime
&
Council
Schultz,
247,
(D.C.Cir.1980).
v.
(D.C.Cir.1971) F.2d
party gue Congress that intended exclude the NTEU The seasonal workers layoffs short-term seasonal workers injury in fact represents have suffered employ- accordance the terms their question since from the order MSPB from the definition of the term “fur- ment regulation them upheld an OPM that denies lough.” urge They “furlough” has ac protections of the CSRA’s adverse historically construed in civil been service they are laid off from procedures tion parlance practice lay- exclude such thirty days. This jobs their for less than Congress offs and that that ac- endorsed if we injury certainly be redressed addition, cepted they definition. con- ap to hold the invalid on were tend, having ac decision is peal. The workers’ interests MSPB’s consistent procedures the adverse action cess to legislative policy favoring with the CSRA’s clearly within the “zone of are CSRA employee protections against arbitrary protected by Act. interests” to be Con because treatment seasonal workers still gress expressly provided judicial layoffs right appeal any have the not 2342. Because orders undertaken in accordance with the terms of represented by the individual employment. their permit NTEU would therefore have suit, bring the union also has ted this 1. The MSPB Decision standing to the MSPB and OPM. sue acknowledged plain The MSPB that the C. Merits language layoffs of the CSRA includes merits, urges this On the the NTEU days thirty seasonal workers for or less holding to reverse the MSPB’s order court the definition actions. within of adverse It § 752.401(c)(10)(1983) proper that 5 C.F.R. upheld reg nevertheless laid off for ly excludes seasonal workers excluding layoffs, primarily ulation such thirty days or less from the adverse preexisting ser ground that under civil § 7513(b). Specifi 5of U.S.C. policy, vice seasonal-work laying cally, off the MSPB decided ac layoffs er were considered adverse employees in accordance with furloughs tion intended they employed conditions under which previous those CSC definitions follow meaning of 5 furlough within the rejected when it enacted CSRA. § 7511(a)(5) exempt and so *16 NTEU’s contention that if had § procedures ed from 7513’s adverse action carry forward the exclusion of wanted argues this by regulation. The NTEU layoffs pre-CSRA in civil seasonal-worker be reversed because decision must regulations, have service it would listed it face includes the short-time CSRA on its exceptions to along with the other adverse employees within its defini layoff of such specifically in actions set out 5 U.S.C. actions, Congress’ ex: adverse tion of § 7512(A)-(E).20 so, Congress did not do the stat intent is consistent with pressed § reasoned, 7512(A)-(E) the MSPB because applying the language, and plain ute’s § designed per- layoffs to exclude certain procedures to seasonal is were 3321(a)(2) tionary period 7512(A) (E) provide sub- under section of this that "this § 20. — grade chapter” apply if such reduction is to the held not to: title does becoming supervi- immediately before such a (A) suspension Section a removal under or manager, or sor title, of this (D) grade a or removal under reduction in (B) undеr sec- action a reduction-in-force title, section 4303 of this or title, this tion 3502 of (E) an initiated under section 1206 action (C) grade supervisor reduction or 7521 this title. proba- completed manager or who has qualified Appendix sonnel that otherwise actions had no work to do. Joint laying adverse actions. Since off seasonal 180-81. employees in accordance with the terms of addition, pointed In out that
their employment had never been con-
regulation,
even under the OPM’s
seasonal
sidered to constitute an adverse action fur-
completely precluded
are not
workers
lough
expiration
than
any more
challenging
layoffs
thirty days
their
temporary appointment had
con-
§
they
less since
can invoke
7513’s adverse
sidered to constitute a
or the
“removal”
procedures
layoffs
action
if the
are not in
temporary appointment
termination
aof
appoint-
accordance with the terms
their
grade
pay,”
constitute a “reduction
Finally,
giving
ment.
it stated
it was
need,
Congress did not
the MSPB conclud-
interpreting
substantial deference in
ed,
layoffs
specifically
exempt
such
to the
CSRA
OPM because it is the
§
Appendix
7512.
Joint
181-83.
charged with
person-
administration of the
The MSPB also relied on the fundamen
Appendix
nel
of the Act. Joint
policy
tal
of the CSRA that
Federal
“[t]he
at 184.
efficiently
work force
be used
and ef
...
§
fectively.”
2301(b)(5).
5 U.S.C.
Encour
2. Standard
Review
aging the use
workers furthers
§ 7703(c)
5 U.S.C.
directs
stated,
principle,
by permit
this
the MSPB
courts
aside agency
set
ac
ting agencies
employees
peak
hire
tion, findings, or conclusions that are arbi
periods
they
work
when
do not need thоse
trary, capricious,
discretion,
abuse
employees
year-round
Apply
on
basis.
law,
not in accordance
procedurally
with
procedures,
7513’s adverse action
incorrect,
or unsupported
substantial ev
particular
thirty-day
notice
advance
idence.
determining
agen
whether an
provision,
temporary layoffs
to all
of sea
cy’s reading of a
meets
sonal
statute
this stan
probably
workers would
result
dard, we
phasing
generally accord
out of seasonals
deference to its
and reliance on
interpretation.22 See,
e.g.,
Federal Elec
“temporary”
instead.21 These
tion
temporaries
Commission v. Democratic Senatori
have to
be rehired and
31-32,
Committee,
Campaign
al
Alternatively,
retrained each time needed.
454 U.S.
requiring
(1981) (as
adverse action
S.Ct.
He to has no make and hence no With of seasonal ees, occasion to furnish affidavits and other application this of 7511 and sections documentary attorney An evidence. require thirty days’ notice be- 7512 would nothing say have on his behalf. A writ- fore, lay say, the forest service could off a decision, reasons, giving ten could con- employee working “on call” forest service layoff sist of the statement that the is in put results are out a forest fire. These keeping agreement. with the This entire just judgment not absurd set of the reference to the MSPB; they —as important, OPM and more are right commission of a crime and the of against crucial absurd when measured appeal merely emphasize to the MSPB —is legislative policy promoting manage- of designed being for a worker who is dis- efficiency. implications ment The absurd misbehavior, charged for some sort of not interpretation highly proba- of such an temporary layoff pursuant agreement. congressional tive intent con- evidence
Layoffs of seasonals in accordance with
trary to that construction.
employment
the conditions of their
do not
clear,
fact,
It seems
in sections
present
problem
fundamental
ad-
Congress
7511 and 7512
was not address-
by
dressed
that create ad-
question
layoffs
at all.
protections
verse actiоn
defeat of le-
—the
Congress might
pro-
have considered and
gitimate employee expectations
job
re-
problem
vided for the
layoffs
of seasonals’
sense, layoffs
tention.
In this
of seasonals
ways.
might
in two
spe-
have focussed
they agreed
accordance with conditions
cifically
problem
prescribed
taking
jobs
to when
are not “adverse”
might
rule to address it. Or it
have decid-
policy Congress adopted
actions. The
ed that the rule it laid down was intended
protections
adverse action
to serve thus
situations,
apply
including
to all
those
application
protec-
does not favor
of those
currently
enacting
in mind when
Moreover,
layoffs.
tions to seasonals’
Congress
statute.
did neither.
employee-protection
whereas
policy
First,
sign
there is
any congres-
no
support
coverage
the CSRA does not
sional attention to the distinction between
layoffs,
complementary
seasonals’
man-
appointments
subject
agreed
made
condi-
agement-efficiency
CSRA,
policy of the
concerning layoffs
appointments
tions
found, strongly sup-
the OPM and MSPB
contingent.
thus
That distinction is
ports
layoffs
the exclusion of seasonals’
important because the existence of such
coverage.
from
will
agreed
legitimate
expressed
policies
employ-
conditions alters
sup-
the relevant
thus
ports
expectations concerning
ee
position.
the MSPB’s
retention of the
fact,
appointment.
all of the definitions
reading
That NTEU’s
of the text of sec-
betray
section 7511 use terms that
no
tions 7511 and 7512 is not consistent with
sign
congressional contemplation
any-
legislative
intent is further indicated
thing
appointments:
but “unconditional”
interpretation
the fact that “such
leads to
“grade” is defined as “a level of classifica-
Sands,
Sutherland
absurd results.” 2A C.
position
system”;
tion under a
classification
§ 46.07,
Statutory Construction
(4th
at 65
“pay” is defined
pay
as “the rate of basic
1973).
also United
States
ed.
fixed
law or administrative action for
Bryan, 339 U.S.
70 S.Ct.
94 L.Ed.
position
employee”;
held
and the
States,
(1950);
Lange
v. United
examples given
two
in the definition of
(D.C.Cir.1971). Thus,
F.2d
“furlough”
nondisciplinary
reasons for
NTEU’s version of the statute would re-
temporarily placing an
employee
nondu-
thirty days’
quire
notice before an
ty, nonpay status —lack of work or funds—
employee
could demote
tenured
who had
typically
unexpected,
result
un-
temporarily promoted
given high-
merely
history
warned-of events. The
pay
supervisor
er
for the time his
sick,
sign
supervisor
Congress’ having
even
likewise shows no
out
returns
thirty days’
contemplated
to work on less than
notice.
the distinction between “con-
*19
Moreover,
light
expressed
Congress’
appoint-
and “unconditional”
ditional”
969,
Cong.,
major
2d
S.Rep. No.
95th
not
undertake a
review and
ments. See
desire
to
1403, 95th
(1978); H.R.Rep. No.
but rath-
Sess.
alteration of adverse action rules
(1978).
is
The distinction
Cong.,
analy-
2d Sess. 7
codify existing
and leave
er to
rules
the rationale for
sufficiently important
to
for
time and initial-
sis and revision
another
protections
action
provision of adverse
1403, supra,
see
OPM,
H.R.Rep. No.
ly for
have
Congress
that
unlikely
it is
7,
light
7514’s broad
at
and in
of section
dealing
if
had
it
it
to mention
failed
OPM,
authority to
grant
regulatory
employment.
with conditional
reflecting a
best read as
wish
statement
is
(with
adopt
room for future administra-
statutory provisions, sec
relevant
The
(with
7512,
change),
rigid
single,
tive
not to override
prescribe a
7511 and
tions
rule), existing
concerning
govern
statutory
ad
rules
of rules to
simple, general set
system.
“furlough.”
service
concepts
actions in
civil
such
verse
evidence,
statutory
is
either in the
There
no
similarly
Section
not indicate
does
legislative history,
language or
any congressional
on literalism
insistence
variety of
Congress examined the
circum
application
in the
and section 7511.
argued
might
the rules
stances to which
exceptions to
7512’s five listed
its
Section
designed its rules to take
apply and
application are all limitations on otherwise
presented
problems
various
account
coverage;
clear
none is clarification of an
Indeed, the
circumstances.
by the various
unclear, disputable application.
otherwise
Congress decided
Report shows that
House
American Federation
Government
See
details. such
to think much about
not
Employees v. Federal Labor Relations
1403,
Statutory
supra,
at
H.R.Rep.
No.
(D.C.
Authority, 1183,
sort,
general
very
such
language
Cir.1983).
exceptions
The
thus
list of
does
here,
legis
likely
less
to reflect
have
is
we
any problem
purport
not
to address
relat
in all its
all
details and
lative intent
determining
meaning
of sections
statutory
language
than is
applications
7511 and
The existence of the list of
specific problems
detail.
that addresses
short,
7512(A)-(E), in
section
does
ev
Johnson,
115,
v.
F.2d
United States
any congressional
ince
intent
foreclose
Postal
(D.C.Cir.1982);
American
cf.
application
questions
all
of adverse
Postal
Union
United States
Workers
that do not
protections
action
to situations
Service,
(D.C.Cir.
548,
F.2d
562 n. 9
protec
problems
at which those
present
(“The
1983)
specificity with
degree of
are aimed.
tions
annuity compu
out the
set
supported by
further
This conclusion is
in the
indicate that
formulas
statute
tation
expressed
congressionally
desire to
authority
vary
administrator’s
adopt existing
practices
prescribed
adverse
plain meaning of the
formulas
— U.S.-,
denied,
narrow.”),
(with
modifications), putting off a
cert.
some
very
practices for
major
protections under 5 U.S.C. TEMMER, since P & R Mobile d/b/a every layoff of employ definition an on-call Communications Service Company, Appellant, conformity ee is in with the on-call condi give tion. thus On-call v. government virtually plenary discretion FEDERAL COMMUNICATIONS employees, over the livelihood of such COMMISSION, Appellee. play this discretion could abused to fa among employees dealing vorites CORPORATION, AAT ELECTRONICS layoffs.3 temporary For such on-call em Appellant, ployees, it is not so absurd to read providing CSRA as chal mechanism to *22 lenge temporary layoffs as unfair as FEDERAL COMMUNICATIONS Nonetheless, abuses of discretion. Con COMMISSION, Appellee. gress not statutory did draw distinc 83-1580, Nos. 83-1657.
tion on-call other between intermittent employees, or seasonal can this court Appeals, United Court States pencil in that fine line. We are accord District of Columbia Circuit. ingly “plain left choose between a lan guage” interpretation that makes sense for Argued Feb. 1984. a small number of highly situations but is Sept. 14, Decided 1984. majority, in the inefficient and the one sensible, adopted generally here that is but gap protection
leaves a troublesome groups
the most vulnerable workers. I probably Congress
think simply failed to consequences pro
realize the of failing to any protections arbitrary
vide against lay employees.4
offs of on-call For rea
son, I agree while MSPB decision
upholding OPM’s should be af
firmed, hope Congress I nourish the will problem precise and make its
revisit
intent clearer the next time. quite recently
3. There are some limited constraints even Until on-call workers were a government’s lay relatively discretion to on-call phenomena. off rare At the time of the temporarily. Employees alleging workers passage just ap- CSRA’s had CSC layoffs punitive their were undertaken for rea- experimental proved program using the first could, example, appeal layoffs sons those as extensively on-call seasonal workers agencies, in federal suspensions. See 5 U.S.C. §§ Ramsey see Letter of CSC Director 7501(2) 7512(2), plac- ("‘suspension’ means the Chief Personnel Division of the Bureau of reasons, employee, disciplinary of an Bowden, 27, 1977, the Census October Joint temporary pay”). status without duties and Appendix at and use of on-call workers was right And seasonal have the to file a general practice authorized until 1980. complaint Special with the office Counsel Bulletin, April Appen- See FPM Joint Systems they of the Merit if Protection Board (authorizing according at 100 dix such to at- prohibited personnel practice believe that a guidelines). likely tached is thus that Con- 2302(b) defined has occurred. gress simply problems potential overlooked cre- Special required The gate Counsel is then to investi- passed ated "on-call” workers complaint authorized seek a CSRA. stay prohibited personnel action and/or file for corrective action with the See 5 Board. §§