Sandra Epley v. Inter-American Foundation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 46

Docket No. DC-0432-15-0032-I-1

Sandra Epley,

Appellant,

v.

Inter-American Foundation,

Agency.

July 24, 2015

Darrin W. Gibbons, Esquire, Richmond, Virginia, for the appellant.

Josh C. Hildreth, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed her removal appeal for lack of Board jurisdiction. For the reasons

discussed below, we GRANT the appellant’s petition for review, REVERSE the

administrative judge’s finding of no jurisdiction, and REMAND the case to the

regional office for further adjudication in accordance with this Opinion and

Order.

2

BACKGROUND

¶2 The appellant held the position of Program Administrator for the

Inter-American Foundation (Foundation). 1 Initial Appeal File (IAF), Tab 11

at 23. The Foundation proposed her removal for failing to meet performance

standards. Id. at 5-13. After the appellant responded, the Foundation issued its

decision, removing her from service effective September 9, 2014. Id. at 14-23.

¶3 The appellant filed a Board appeal challenging her removal. IAF, Tab 1.

The Foundation responded by disputing the Board’s jurisdiction over the matter.

IAF, Tab 8 at 4-5. Subsequently, the administrative judge issued orders directing

the appellant to meet her jurisdictional burden and directing the Foundation to

provide additional information. IAF, Tabs 10, 12. After both parties responded,

IAF, Tabs 11, 13-15, the administrative judge dismissed the appeal for lack of

jurisdiction, IAF, Tab 17, Initial Decision (ID).

¶4 The administrative judge concluded that the Foundation is a Government

corporation, statutorily excluded from chapter 43 of Title 5; the Foundation

removed the appellant pursuant to the powers granted to it under 22 U.S.C.

§ 290f(e); and the appellant failed to make a nonfrivolous allegation that she had

Board appeal rights under chapter 75 of Title 5. ID at 6-14. The appellant has

filed a petition for review. Petition for Review (PFR) File, Tabs 1-2. The

Foundation has filed a response. PFR File, Tab 6.

ANALYSIS

The Foundation is a Government corporation, excluded from chapter 43 of

Title 5.

¶5 The appellant asserted below that the Board has jurisdiction over her

performance-based removal pursuant to chapter 43 of Title 5. IAF, Tab 9 at 4-5.

1

Because one of the issues below was whether the Inter-American Foundation qualifies

as an “agency” as defined in chapter 43 of Title 5, we will refer to it as the

“Foundation” rather than the “agency.” Initial Appeal File, Tab 9 at 4-5, Tab 13 at 4-5.

3

She argued that the Foundation was not a Government corporation exempt from

chapter 43. Id. Among other things, she noted that the Standard Form 50

documenting her removal referenced “REG 432.101” as the legal authority for her

removal. See IAF, Tab 13 at 18, Tab 14; see generally 5 C.F.R. § 432.101

(pertaining to performance-based actions taken pursuant to chapter 43 of Title 5).

The administrative judge found that chapter 43 is not applicable to the

Foundation, ID at 6-9, and we agree.

¶6 Under 5 U.S.C. § 4303, an agency may remove an employee for

unacceptable performance. However, for the purposes of the subchapter, the term

“agency” is defined in 5 U.S.C. § 4301(1). Among other things, that definition

includes a provision specifying that an “agency” does not include a Government

corporation. 5 U.S.C. § 4301(1)(B)(i). “Government corporation” is defined as

“a corporation owned or controlled by the Government of the United

States.” 5 U.S.C. § 103. As the appellant now concedes, PFR File, Tab 2 at 4,

the Foundation meets that definition, see, e.g., 22 U.S.C. § 290f(a), (f), (n).

Therefore, we find that the Foundation is not an “agency” with the authority to

remove employees for unacceptable performance using chapter 43 of Title 5.

The administrative judge erred in finding that the appellant’s removal does not

fall within the Board’s jurisdiction under chapter 75 of Title 5.

¶7 The appellant alleges that the Board has jurisdiction over her removal

pursuant to chapter 75. PFR File, Tab 1 at 4-5, Tab 2 at 4-5. We agree.

¶8 Although Government corporations such as the Foundation are statutorily

excluded from chapter 43, chapter 75 contains no such exclusion. See 5 U.S.C.

§§ 7501-7513. In addition, it is well-settled that an agency may impose an

adverse action for unacceptable performance under chapter 75. See Fairall v.

Veterans Administration, 33 M.S.P.R. 33, 40, aff’d, 844 F.2d 775 (Fed. Cir.

1987). In fact, the Board previously has adjudicated the performance-based

adverse action of a Foundation employee under chapter 75. See Patermaster v.

Inter-American Foundation, 10 M.S.P.R. 364 (1982). Therefore, the question

4

that remains is whether the Foundation may effectuate a performance-based

removal outside the bounds of Title 5.

¶9 The Foundation argues that it removed the appellant for unacceptable

performance pursuant to the powers delegated to it in 22 U.S.C. § 290f, the

statute creating the Foundation. E.g., PFR File, Tab 6 at 5-11. Section “e” of the

statute lists the Foundation’s powers and functions. 5 U.S.C. § 290f(e). Included

is the authority to employ no more than 100 persons. 22 U.S.C. § 290f(e)(5).

Also included is “such other powers as may be necessary and incident to carrying

out its powers and duties under this section.” 22 U.S.C. § 290f(e)(11). The

Foundation’s Chief Executive Officer, in a sworn declaration, cites that broad

authority as its basis for removing the appellant. See, e.g., IAF, Tab 13 at 22-24.

¶10 When interpreting a statute, we must first determine, by using “traditional

tools of statutory construction,” if “Congress had an intention on the precise

question at issue, [and if so,] that intention is the law and must be given effect.”

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,

843 n.9 (1984); see Delverde, SrL v. United States, 202 F.3d 1360, 1363 (Fed.

Cir. 2000) (explaining that the “traditional tools of statutory construction”

include an examination of the statute’s text, structure, and legislative history, as

well as an application of the relevant canons of interpretation). If the statute is

silent or ambiguous concerning the specific issue, the inquiry proceeds to the

question of whether an agency’s interpretation is based on a permissible

construction of the statute. Chevron, 467 U.S. at 842-43.

¶11 Here, we find nothing pertaining to 22 U.S.C. § 290f to indicate that

Congress had any specific intention regarding the issue before us. The text of the

statute confirms that Congress intended to grant the Foundation the authority to

employ up to 100 people, and exercise necessary and incidental powers in doing

so. 22 U.S.C. § 290f(e)(5), (11). However, we are aware of nothing in the statute

or its history to support a conclusion that Congress intended the “necessary and

5

incident powers” to include the authority to effectuate a performance-based

removal outside the scope of Title 5.

¶12 By comparison, it is well-established that Congress enacted the Civil

Service Reform Act (CSRA) to replace the prior “patchwork system” of laws that

had governed Federal employment with “an integrated scheme of administrative

and judicial review, designed to balance the legitimate interests of the various

categories of Federal employees with the needs of sound and efficient

administration.” United States v. Fausto, 484 U.S. 439, 445 (1988), superseded

by statute on other grounds as stated in Kaplan v. Conyers, 733 F.3d 1148 (Fed.

Cir. 2013), cert. denied sub nom. Northover v. Archuleta, 134 S. Ct. 1759 (2014).

The Supreme Court has found that, given the “comprehensive nature” of the

CSRA, the exclusion of certain employees from the protections of chapter 75 was

deliberate. Id. at 448-49; see generally, e.g., 5 U.S.C. § 7511(b)(7) (statutorily

excluding Central Intelligence Agency and Government Accountability Office

employees from the chapter 75 adverse action Board appeal process).

¶13 Despite there being no deliberate exclusion of its employees in the CSRA

itself, the Foundation’s governing statute, or any other rule of law, the

Foundation would have the Board defer to its interpretation of 22 U.S.C.

§ 290f(e)(5), (11) as permitting such exclusion. PFR File, Tab 6 at 7-9.

However, we are unable to do so. The text of 22 U.S.C. § 290f(e)(11) grants the

Foundation broad power, but limits that power to that which is “necessary and

incident.” As described above, the Foundation remains capable of effectuating a

performance-based removal under chapter 75, despite being unable to do so under

chapter 43. Accordingly, the power to effect a performance-based removal is not

“necessary and incident to carrying out [the Foundation’s] powers and duties”

under section 290f. 22 U.S.C. § 290f(e)(11).

¶14 As the Supreme Court has explained, “the CSRA makes [Board]

jurisdiction over an appeal dependent only on the nature of the employee and the

employment action at issue.” Elgin v. Department of the Treasury, 132 S. Ct.

6

2126, 2137 (2012) (citations omitted). Here, the appellant meets both of the

alterative definitions of an “employee” under 5 U.S.C. § 7511(a)(1)(A). See

McCormick v. Department of the Air Force, 307 F.3d 1339, 1341-42 (Fed. Cir.

2002) (holding that an individual is a covered employee if she meets either of the

definitions under this section). When the appellant was removed, she was not

serving a probationary or trial period, and she had completed 1 year of current

continuous service under other than a temporary appointment limited to 1 year or

less. See IAF, Tab 13 at 18, 19. In addition, a removal is an action covered by

Title 5, chapter 75, subchapter II. 5 U.S.C. § 7512(1). Therefore, we conclude

that the action falls within the Board’s jurisdiction. See 5 U.S.C. § 7513(d).

ORDER

¶15 For the reasons discussed above, we REMAND this case to the regional

office for further adjudication in accordance with this Opinion and Order. 2

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.

2

In part, the appellant seems to request that the Board reverse her removal, rather than

remand the matter for adjudication on the merits. See PFR File, Tab 2 at 5. That

request is denied. Any claims of violations of due process or harmful procedural error

are more appropriately raised before the administrative judge on remand.