Cynthia A. Guillebeau v. Department of the Navy, No. 03-3220 (Fed. Cir. March 24, 2004)

Federal agencies have the authority to set absolute standards for employees. Such standards must be applied reasonably, based on objective criteria, and communicated to the employee in advance. More specificially, the Federal Circuit overturned MSPB's case law holding that: absolute performance standards are prohibited; and absolute performance standards generally constitute an abuse of discretion unless death, injury, breach of security, or great monetary loss could result from a single failure to meet the performance standard.

The Department of the Navy removed Guillebeau from her position as an Engineer for failure to develop the majority of web pages assigned to her according to established performance standards, despite several deadline extensions.

In its initial decision, the administrative judge reversed the removal, holding that the performance standard was an invalid absolute standard and ordering interim relief if either party filed a petition for review (PFR). The Navy filed a PFR and certified that it had provided Guillebeau with the interim relief ordered. However, two months later the Navy indefinitely suspended Guillebeau without pay based on security clearance issues. As a result, Guillebeau filed a cross-petition seeking dismissal of the Navy's PFR for failing to comply with the interim relief order. On PFR, the MSPB found no basis for dismissal, and held that the performance standard was not absolute because the standard was not applied in an absolute manner. Guillebeau petitioned the Federal Circuit arguing that the MSPB erred in declining to dismiss the Navy's PFR, and that the performance standard was inappropriately absolute.

In reviewing the motion to dismiss, the court pointed out that MSPB's regulation as amended in 1999 eliminated the mandatory dismissal requirement and gave MSPB discretion to dismiss or not dismiss an appeal if an agency fails to comply with an interim order. MSPB case law holds that the interim relief order does not protect appellants from adverse actions based on events that are unrelated to the interim relief order. Since Guillebeau's removal was not based on the suspension of her security clearance, the court found that MSPB did not err in exercising its discretion to decline the motion to dismiss.

In reviewing the merits of the case, the court agreed with the administrative judge who found the performance standard absolute because it required that Guillebeau satisfy all elements of the performance standard, each element applied to all web pages, and the standard allowed no errors.

The performance standard required: "1) All web pages be peer reviewed prior to final submission; 2) all web pages conform to the format for Coastal Systems Station web pages and technical content be at the "public release" level; 3) all issues from the peer review be resolved and comments incorporated into the final submission; and 4) the final submission be provided in electronic and printed form."

Notwithstanding finding that the standard was absolute, the court disagreed with MSPB's longstanding holding that absolute standards are prohibited except in specific circumstances and explained that no statute, regulation, and legislative history bars absolute performance standards. The court also reiterated that statute and case law require that valid performance standards must be based on objective criteria, reasonable, and communicated to the employee in advance.

Finally, the court clarified that although there is no requirement that standards not be absolute, "we do not suggest that an agency may adopt an unreasonable standard or that absolute performance standards are always reasonable." The Board's decision denying the PFR and upholding the employee's removal for unacceptable performance was affirmed.

The court ultimately affirmed the Board's decision, but took the opportunity to specifically and at some length reverse prior Board case law and hold that absolute standards are not prohibited. It is very important to note that the court specifically cautioned that absolute standards may not always be reasonable (see above quote). Instead, it emphasized that the focus must be on whether the standards are objective, applied in a reasonable manner, and communicated to the employee in advance.