reconsideration following an EEOC decision, the MSPB has three options, pursuant to § 7702(c): it may adopt the EEOC decision; revise the decision if the EEOC incorrectly interpreted civil service law; or revise the decision if the EEOC ruling on an issue of civil service law was not supported by substantial evidence. The "error of civil service law" cited by the MSPB was the EEOC's reliance on the decision in MSPB I that the government had failed to prove that plaintiff's work was unsatisfactory.
In enacting CSRA, Congress plainly intended that in certain cases the MSPB and EEOC would have overlapping jurisdiction, that the EEOC should have the final word on issues of employment discrimination, and the MSPB on issues of civil service law. Had the EEOC made factual findings incorrectly applying civil service law, it is beyond dispute that the MSPB would have been fully within its power to make a contrary finding. In this case, however, the only "error of civil service law" allegedly committed by the EEOC was to rely on the MSPB's final decision on an issue of civil service law.
The MSPB simply attempted to reverse its own prior decision on an issue of civil service law, and, accordingly, acted outside the scope of its authority under § 7702(c)(2).
Agency regulations permit the MSPB to reopen a presiding official's decision "at any time," 5 C.F.R. 1201.117, but such a decision must all be made within a "reasonable" time. See Dawson v. MSPB, 712 F.2d 264 (7th Cir. 1983). The Court is aware of no case that supports the proposition that the MSPB may reopen a prior final decision years after it was issued, and after the completion of EEOC review. CSRA permits an employee to obtain EEOC review of a final MSPB decision, but the decision Mr. Lynch attempted to have reviewed by the EEOC turned out three years later not to have been final. Accordingly, the Court concludes, as did the dissenting member of the Board,
that the MSPB's decision to reopen MSPB I was untimely and outside the scope of its authority under § 7702(c)(2).
When the MSPB reconsiders a case following EEOC review, it is authorized to refer that case to the Special Panel only if it finds that the EEOC incorrectly interpreted civil service law. 5 U.S.C. § 7702(d)(1). The Special Panel itself found that there was no such conflict in this case, the true conflict existing only between the two MSPB decisions. Nonetheless, the Special Panel decided that it was required to render a decision, and it adopted the Board's decision in MSPB II. In so doing, the Panel deferred to the conclusions of the Board, finding from the record only that the Board's conclusions were "reasonable." Because the Special Panel deferred to conclusions that the Board had no authority to make, see supra, slip op. pp. 8 to 10, its opinion must also be vacated.
Because the Court finds that the opinion of Special Panel No. 2 and MSPB II must be vacated, proceedings must resume at the MSPB, at the point at which the EEOC referred the dispute back to the Board. Applying the Rehabilitation Act and its implementing regulations as defined by the EEOC to the final factual findings made by the presiding official in MSPB I, the MSPB should determine whether Mr. Lynch was a qualified handicapped employee, and, if so, whether the agency met its burden to accommodate his handicap.
For the foregoing reasons, therefore, it is, this 22nd day of July, 1987,
ORDERED, that the motion of the MSPB, EEOC and Special Panel to dismiss is denied; and it is
FURTHER ORDERED, that plaintiff's motion for partial judgment on the pleadings or, in the alternative, partial summary judgment, is granted in part; and it is
FURTHER ORDERED, that the January 16, 1986, decision of the MSPB, and the August 20, 1986, decision of the Special Panel are vacated, and it is
FURTHER ORDERED, that this case is remanded to the MSPB for further proceedings consistent with this opinion.