U.S. Court of Appeals, Federal Circuit
February 11, 1999
CHESTER A. WALLACE AND J. DAVID SANCHEZ, PETITIONERS, AND CONSTANCE K. THROCKMORTON, PETITIONER, AND LINDIE R. BREWER, PETITIONER, AND DONLEY S. COLLINS, PETITIONER, AND RALPH J. RICOTTA, PETITIONER, AND SHERRY S. AGARD, PETITIONER, AND DAVID L. MACKE, PETITIONER,
DEPARTMENT OF INTERIOR, RESPONDENT.
Before Mayer, Chief Judge, Skelton, Senior Circuit Judge, and Clevenger, Circuit Judge.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
The petitioners in this consolidated appeal request review of the Merit Systems Protection Board ("Board") decision dismissing their claims that they were improperly separated from their respective positions as the result of a "reduction in force" ("RIF") conducted in 1995 at the United States Geological Survey ("USGS"). See Throckmorton v. Department of Interior, DE-0351-96-0043-I-3, slip op. at 32 (May 27, 1997), affirmed, DE-0351-96-0043-I-3, slip op. at 1 (M.S.P.B. Apr. 2 1998); Macke v. Department of Interior, DE-0351-96-0040-I-2, slip op. at 8 (Dec. 2, 1996), affirmed, 0351-96-0040-I-2, slip op. at 1 (M.S.P.B. Mar. 25, 1997); Wallace v. Department of Interior, DE-0351-96-0089-I-1, slip op. at 10 (Aug. 9, 1996), affirmed, DE0351-96-0089-I-1, slip op. at 1 (M.S.P.B. May 18, 1998). Because the Board's determination that the RIF was justified and properly conducted with respect to the petitioners is supported by substantial evidence, we affirm.
The essence of the petitioners' challenge to their respective separations is that the RIF conducted by the USGS, effected on October 14, 1995, was an unjustified and improper basis for management to eliminate the jobs of particular individuals. Specifically, petitioners as a group challenge the bona fides and implementation of the RIF, first arguing that the USGS's asserted rationale for the RIF - expectations of sharply reduced future funding - was groundless, noting that the large cuts in funding that USGS management cited in support of the RIF did not in fact materialize. Second, the petitioners assert that the RIF's legitimacy was fatally flawed because individuals rather than positions were selected for retention or abolition. Third, as a group, the petitioners also challenge the implementation of the RIF, asserting that USGS management improperly used single-person competitive levels to select individuals rather than positions for retention or abolition, and that USGS managers were impermissibly allowed to compete for science-based positions that they did not occupy at the time of the RIF.
The petitioners also individually challenge the justification and operation of the RIF, arguing that substantial evidence does not support the agency's determination of their competitive levels, and that they each should have been considered for a wider range of jobs before separation.
This court reviews Board decisions by applying statutory standards. Accordingly, this court can only disturb the Board's decision if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994); Heelen v. Commerce, 154 F.3d 1306, 1309 (Fed. Cir. 1998). In cases such as this, where the petitioners challenge the sufficiency of the evidence used by the Board, "we review the entire record, taking into consideration both the evidence that supports [the Board's] decision and the evidence that fairly detracts from its weight." See Heelen, 154 F.3d at 1309; O'Brien v. Office of Personnel Management, 144 F.3d 1458, 1461 (Fed. Cir. 1998).
We have carefully reviewed the evidence, the arguments presented by the petitioners, as well as the detailed and considered decisions of the Administrative Judge. Given our statutory standard of review, however, see 5 U.S.C. § 7703(c), and the fact that the petitioners only challenge the factual findings made by the Board, we are compelled to affirm.
Substantial evidence in the record supports the Conclusion reached by the Board that the USGS has demonstrated its compliance with proper RIF procedures. See 5 U.S.C. § 7701(c)(2)(B) (1994); see also Wilburn v. Department of Trans., 757 F.2d 260, 262 (Fed. Cir. 1985) (agency must show compliance). The Board's Conclusion that limited funding was a bona fide reason for conducting the RIF is supported by substantial documentary and testimonial evidence, much of it unchallenged by the petitioners. See Throckmorton, DE-0351-96-0043-I-3, slip op. at 4; Macke, DE-0351-96-0040-I-2, slip op. at 2; Wallace, DE-0351-96-0089-I-1, slip op. at 2-7. Similarly, the Board's finding that the agency properly implemented the RIF is supported by substantial evidence that: (1) the staffing recommendations were need-based rather than individually-based; (2) the competitive levels were developed in an appropriate process without management interference and that valid position description-based reasons justified the use of single-person competitive levels; *fn1 and (3) the decision to allow managers to compete for nonmanagement (i.e., science-based) positions was due to the agency's long-standing practice of rotating senior scientists into management positions. See Throckmorton, DE-0351-96-0043-I-3, slip op. at 5-7.
We also find that substantial evidence supports the Conclusion that the agency acted within its discretion in placing the petitioners in their respective competitive levels. The thorough opinion below details the evidence presented by the agency that the particular needs and priorities identified by the RIF planning process, in combination with the specific skills and experience of the individual petitioners, led to the designation of the competitive levels. See id. at 11-32; Macke, DE-0351-96-0040-I-2, slip op. at 5-8; Wallace, DE-0351-96-0089-I-1, slip op. at 7-10. Finally, we are satisfied that substantial evidence supports the Board's individual determinations that the positions that the petitioners assert should be within the scope of their competitive levels are unavailable due to the probability of undue interruption. See Throckmorton, DE-0351-96-0043-I-3, slip op. at 11-32; Macke, DE-0351-96-0040-I-2, slip op. at 5-8; Wallace, DE-0351-96-0089-I-1, slip op. at 8-9.
Because the petitioners have failed to point to any factual findings below that are unsupported by substantial evidence and do not otherwise assert that the Board has abused its discretion, the judgment below is affirmed.