No. 95-1145 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 ISMAEL R. DIAZ, PETITIONER v. DEPARTMENT OF THE AIR FORCE ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General DAVID M. COHEN JEANNE E. DAVIDSON TODD M. HUGHES Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- I QUESTION PRESENTED Whether the court of appeals correctly concluded that: (1) the harmful error provision of 5 U.S.C. 7701(c)(2)(A) applies to performance-based removals I under 5 U.S.C., Ch. 43; and (2) the agency did not fail to inform petitioner of the performance standards applicable to him and of what he needed to accomplish for a successful performance rating. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 2 Statement . . . . 2 Argument . . . . 3 Conclusion . . . . 9 TABLE OF AUTHORITIES Cases: Adams v. Department of Transp., `735 F.2d .488 (Fed. Cir.), cert. denied, 469 U.S. 1018(1984) . . . . 5, 7 Baracco v. Department of Transp., 15 M.S.P.R. 112(1983), aff'd sub nom. Adams v. Department of Transp., 735 F.2d 488 (Fed. Cir.), cert. denied, 469 U.S. 1018 (1984) . . . . 5 Bosco v. United States, 931 F.2d 879 (Fed. Cir. 1991) . . . . 5 Brewer v. USPS, 647 F.2d 1093(Ct. Cl. 1981), cert. denied, 454 U.S. 1144(1982) . . . . 5, 8 Brock v. Pierce County, 476 U.S. 253 (1986) . . . .6 Hamilton v. USPS, 58 M.S.P.R. 486(1993) . . . . 7 Handy v. USPS, 754 F.2d 335(Fed. Cir. 1985) . . . .4, 7 Martin v. FAA, 795 F.2d 995(Fed. Cir. 1986) . . . . 5 Parker v. Defense Logistics Agency, l M.S.P.R. 505 (1980) . . . . 4, 5 Statutes: Civil Service Reform Act of 1978, Pub. L. No. 95- 454, 92 Stat. 1111,5 U.S.C. 1101 et seq . . . .3 5 U.S.C- 2301 et seq. (Ch. 23): 5 U.S.C. 2302(b)(ll) . . . . 8 5 U.S.C. 4301 et seq. (Ch. 43) . . . .3, 5 5 U.S.C. 4303(b)(l) . . . . 2 5 U.S.C. 4303(c) . . . . 6 5 U.S.C. 4303(c)(1) . . . .2 5 U.S.C. 7501 et seq. (Ch. 75) . . . . 4, 5, 6 (III) ---------------------------------------- Page Break ---------------------------------------- Iv Statutes-Continued: Page 5 U.S.C. 7701 et seq. (Ch. 77): 5 U.S.C. 7701(c)(2) . . . . 4, 5, 6, 7 5 U.S.C. 7701(c)(2)(A) . . . . . 3, 4, 5 5 U.S.C. 7701(c)(2)(B) . . . . 5 U.S.C. 7701(c)(2)(C) . . . . 6, 7 Miscellaneous: S. Rep. No, 969, 95th Gong., 2d Sess. (1978) . . . . S, 5, 8 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-1145 ISMAEL R. DIAZ, PETITIONER v. DEPARTMENT OF THE AIR FORCE ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT . . . . . . . . BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 3a-8a) is reported at 63 F.3d 1107, The order of the Merit Systems Protection Board (Pet. App. 9a-11a) denying the petition for review is unpublished, but the decision is noted at 65 M.S.P.R. 509 (Table). The initial opinion of the Merit Systems Protection Board (Pet. App. 12a-50a) is unreported. (1) ---------------------------------------- Page Break ---------------------------------------- 2 JURISDICTION The judgment of the court of appeals was entered on August 21, 1995. A petition for rehearing was denied on October 17, 1995. Pet. App. la-2a. The petition for a writ of certiorari was filed on January 16, 1996 (the Tuesday following a holiday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT 1. Petitioner was a GS-13 Chemist in the Direc- torate of Aerospace Fuels Management at Kelly Air Force Base, Texas. On January 28, 1993, and again on April 16, 1993, petitioner was put on a performance improvement plan and afforded an opportunity to im- prove his work performance because of his un- acceptable performance level. On October 26, 1993, petitioner received a notice of proposed removal based upon his unacceptable performance. On February 2, 1994, petitioner was issued a final decision removing him from his position with the Air Force. Pet. App. 4a-5a. 2. Pursuant to 5 U.S.C, 4303(c)(1)1 a decision re- garding a proposed removal "shall be made within 30 days after the date of expiration of the notice period." Petitioner was informed of his proposed removal on October 26, 1993, triggering the start of a notice period of 30 days (see 5 U.S.C. 4303(b)(l)) that expired on November 25, 1993. Pet. App. 6a. Petitioner's removal on February 2, 1994, occurred more than 30 days after the expiration of the notice period. Ibid. Petitioner appealed his removal to the Merit Sys- tems Protection. Board- (MSPB). In the MSPB'S initial decision, an administrative judge sustained the Air Force's decision to remove petitioner based upon his unacceptable performance. Pet. App. 37a. In ---------------------------------------- Page Break ---------------------------------------- 3 addition, the administrative judge concluded that, although petitioner's removal more than 30 days after the expiration of the notice period constituted a procedural violation, petitioner had failed to establish that he had been harmed by the error as required by 5 U.S.C. 7701(c)(2)(A). Pet. App. 42a. On November 18, 1994, the MSPB denied petitioner's petition for re- view. Id. at 9a-10a. 3. The court of appeals affirmed the MSPB'S decision. Pet. App. 4a-8a. The court concluded that the harmful error standard of 5 U.S.C, 7701(c)(2)(A) applies to performance-based removals pursuant to 5 U.S.C., Ch. 43. Pet. App. 7a-8a. In addition, the court rejected petitioner's claim that the Air Force had not adequately communicated the performance standards for his employment. Id. at 8a. The court of appeals denied petitioner's request for rehearing with a sug- gestion for rehearing in bane. Id. at 1a-2a. ARGUMENT The court of appeals correctly concluded that the harmful error standard of 5 U.S.C. 7701(c)(2)(A) ap- plies to performance-based removals made pursuant to 5 U. S. C., Ch. 43. The court also correctly rejected petitioner's argument that the Air Force did not adequately communicate to petitioner the perform- ance standards for his employment and the actions necessary to meet those. standards. 1. In enacting the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (5 U.S.C. 1101 et seq.), Congress established a new performance appraisal system that provided for dismissal based upon unacceptable performance. 5 U. S. C., Ch. 43; see also S. Rep. No. 969, 95th Cong., 2d Sess. 2 (1978). As part of that legislative reform, Congress also created ---------------------------------------- Page Break ---------------------------------------- 4 three affirmative defenses for employees challenging removals: (2) Notwithstanding paragraph (1) [setting forth minimum evidentiary showings an agency must make for a decision to be sustained], the agency's decision may not be sustained under subsection (b) of this section [detailing appeal process] if the employee or applicant for em- ployment- (A) shows harmful error in the application of the agency's procedures in arriving at such a decision; (B) shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title; or (C) shows that the decision was not in accordance with the law. 5 U.S.C. 7701(c)(2). The MSPB has correctly interpreted Section 7701(c)(2)(A) as providing that procedural errors committed in a performance-based employment action are not a basis for reversing an agency action unless the employee demonstrates that he or she "was harmed by the error. See, e.g., Parker v. Defense Logistics Agency, 1 M.S.P.R. 505,512-513 (1980). In Handy v. USPS, 7.54 F.2d 335,338 (Fed. Cir. 1985), the Court of Appeals for the Federal Circuit held that harmful error analysis applies to conduct-based removals pursuant to 5 U.S.C., Ch. 75.1 Prior to the present ___________________(footnotes) 1 "Chapter 75 covers `adverse personnel actions'-removal, suspension, furlough, reduction in grade and pay-taken to ---------------------------------------- Page Break ---------------------------------------- 5 case, the court of appeals had not specifically ad- dressed whether Section 7701(c)(2)(A) necessitates harmful error analysis for procedural errors in performance-based removals under 5 U. S. C., Ch. 43 as well, but the court had applied such an analysis in a performance-based removal ease in Martin v. FAA, 795 F.2d 995,999 (Fed, Cir. 1986). The legislative history surrounding the enactment of the CSRA supports the conclusion that Congress intended to apply a harmful error standard to pro- cedural violations in both Chapter 75 (conduct-based) and Chapter 43 (performance-based) removal pro- ceedings: "In enacting the Civil Service Reform Act of 1978, Congress declared that [the reviewing] court should reverse agency actions for procedural error `only if the procedures followed substantially im- paired the rights of the employees.'" Brewer v. USPS, 647 F.2d 1093, 1097 (Ct. Cl. 1981), cert. denied, 454 U.S. 1144 (1982) (quoting S. Rep. No. 969, 95th Cong., 2d Sess. 64 (1978)); see also Adams v. Depart- ment of Transp., 735 F.2d 488, 496 (Fed. Cir.) (Nies, J., concurring), cert. denied, 469 U.S. 1018 (1984); Baracco v. Department of Transp., 15 M.S.P.R. 112, 119-120 (1983), aff'd sub nom. Adams v. Department of Transp., 735 F.2d 488 (Fed. Cir.), cert. denied, 469 U.S. 1018 (1984); parker, 1 M.S.P.R. at 512-513. Nothing in Section 7701(c)(2), which provides for appeals of agency decisions, differentiates between performance-based removals pursuant to Chapter 43 ___________________(footnotes) promote the efficiency of the service' (i.e., misconduct). 5 U.S.C. 537503, 7513 (1988) States, 931 F.2d 879, 883 (Fed. Cir. 1991). ---------------------------------------- Page Break ---------------------------------------- 6 and conduct-based removals pursuant to Chapter 75. See 5 U.S.C. 7701(c)(2).2 2. Petitioner contends (Pet 12-21) that issuance of his removal decision more than 30 days after the expiration of the notice period rendered that decision "not in accordance with law" in violation of 5 U.S.C. 7701(c)(2)(C).Petitioner relies upon the mandatory nature of the term "shall" in 5 U.S.C. 4303(c) argue that the procedural violation here rendered the re- moval decision unlawful. In Brock v. Pierce County 476 U.S. 253 (1986), similar mandatory language directed that the Secretary of Labor "shall" issue a final determination within 120 days. Id. at 256. Despite the mandatory nature of that language, this Court concluded that the Secretary did not lose jurisdiction to issue a determination outside the specified period because Congress had not established any penalty for failure to conform to the time requirement and had not stated that the Secretary could not act beyond he statutory time period. Id. at 266. Petitioner maintains (Pet. 8-9) that this Court's decision in Brock is distinguishable, because Con- gress provided a penalty for violations of the statu- tory notice period when it enacted the affirmative defenses contained in Section 7701(c)(2). Petitioner argues that Congress intended that any failure to comply with the notice period renders an agency action not in accordance with the law and, therefore, subject to a Section 7701(c) (2)(C) objection. ___________________(footnotes) 2 As the MSPB noted; the procedural violation actually worked to. petitioner's benefit in this case by effectively ex- tending the time within which he might improve his per- formance. Pet. App. 41a-42a. ---------------------------------------- Page Break ---------------------------------------- 7 Petitioner's argument disregards the context of Section 7701(c)(2). The harmful error provision contained in subsection (A), which specifically covers "error[s] in the application of the agency's pro- cedures," would be effectively negated on petitioner's reading; because any decision involving a procedural violation-whether harmful or not-would require reversal as a decision "not in accordance with law." Petitioner's argument would thus effectively hold that a procedural violation is harmful per se, re- moving the employee's statutory burden of proving the harm of any error resulting from a procedural violation. See Handy, 754 F.2d at 336-337; Adams, 735 F.2d at 496 (Nies, J., concurring).3 3. Petitioner also argues (Pet. 12-21) that his re- moval more than 30 days after the expiration of the notice period constituted a prohibited personnel prac- tice, which, pursuant to Section 7701(c)(2)(B), may not be sustained on appeal. 5 U.S.C. 7701(c)(2)(B). This argument parallels petitioner's argument concerning the "not in accordance with law" defense and should be rejected for the same reasons. Peti- tioner's interpretation would automatically convert all violations of procedural statutes, rules, or regula- tions into prohibited personnel practices requiring reversal of agency decisions. Employees would not have to demonstrate harmful error arising from an ___________________(footnotes) 3 The court of appeals' interpretation of the statute, on the other hand, preserves a sphere of operation for Section 7701(c)(2)(C). See, e.g., Hamilton v. USPS, 58 M.S.P.R. 486 (1993) (agency's demotion action is "not in accordance with law" where decision letter was signed by deciding official four days after she retired and thus had no legal authority to demote agency employees; decision must be made by agency official). ---------------------------------------- Page Break ---------------------------------------- 8 agency's procedural irregularity; rather, the pro- cedural violation of a statute, rule, or regulation would, on petitioner's reading, always constitute a prohibited personnel practice in violation of Section 2302(b)(11). As noted above, however, the legislative history accompanying the enactment of the CSRA emphasizes that agency actions should be reversed for procedural violation only if "the procedures followed substantially impaired the rights of the employees." Brewer, 647 F.2d at 1097, quoting S. Rep. No. 969, 95th Cong., 2d Sess. 64 (1978). 4. Finally, petitioner argues (Pet. 19-20) that the agency failed to inform him of his performance standard and what specifically he needed to improve in order to meet that standard, and that this asserted failure constituted a prohibited personnel practice. The MSPB, however, found that the Air Force had informed petitioner of his-performance standards and what he needed to do in order to meet them. Pet. App. 17a-18a. The board's findings were supported by substantial evidence and were properly affirmed by the court of appeals. Id. at 8a. Further review of that factual matter is not warranted. ---------------------------------------- Page Break ---------------------------------------- 9 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III ISolicitor General FRANK W. HUNGER Assistant Attorney General DAVID M. COHEN JEANNE E. DAVIDSON TODD M. HUGHES Attorneys APRIL 1996 ---------------------------------------- Page Break ----------------------------------------