National Treasury Employees Union v. United States Merit Systems Protection Board and United States Office of Personnel Management

WALD, Circuit Judge,

concurring:

Although the language of the Civil Service Reform Act’s adverse action provisions on its face includes layoffs of seasonal or intermittent employees for less than 30 days in accordance with conditions of their contracts, 1 I concur in the opinion of the court excluding them because in most cases, a literal application of these provisions would be futile and wasteful. Where the limiting conditions of seasonal or intermittent employment are external and objectively verifiable, e.g., when an auxiliary forest fire fighter is hired on condition that there are fires for him to fight, a requirement of notice and opportunity to contest a layoff based on the limiting conditions themselves, e.g., that no fires have occurred, would indeed be absurd.

Many seasonal workers, however, are employed subject to being let go at any time for “lack of work,” “lack of funds,” “weather conditions,” “unforeseen circumstances,” “ceiling limitations,” “fluctuations in workload,” and other conditions of a subjective or even manipulable nature that could become a matter of dispute. MSPB Brief at 10, Joint Appendix at 84, 91, 93, 134, 414, 151. In such situations the seasonal or intermittent worker may have legitimate employment expectations that deserve the protection of the adverse action procedures. For example, a seasonal worker might dispute the government’s assessment that one of these contractual conditions justifying placing him in a nonduty, nonpay status, e.g., “fluctuation in workload,” has been met. If he can show that the layoff conditions of his contract have not been met, or have been invoked only as a pretext to mask other reasons, I interpret the MSPB and OPM’s position to be that the employee is entitled to the protections given furloughs by 5 U.S.C. § 7513 . See 5 C.F.R. § 752.401 (c)(9), Brief for Respondent MSPB at 40. From this conclusion, I extrapolate that where an employee claims that he was placed in a nonduty, nonpay status for less than 30 days not in conformity with the conditions of his employment contract, he is likewise entitled to appeal that placement to the MSPB under the adverse action procedures. See 5 U.S.C. § 7513 (d). My concurrence is specifically predicated on my understanding that this is indeed OPM and MSPB’s interpretation of the scope of the statute and implementing regulations.

For a growing body of seasonal or intermittent workers who are hired only on an on-call basis, 2 however, OPM’s regulations *918 do not appear to provide any adverse action protections under 5 U.S.C. § 7513 , since by definition every layoff of an on-call employee is in conformity with the on-call condition. On-call provisions thus give the government virtually plenary discretion over the livelihood of such employees, and this discretion could be abused to play favorites among employees in dealing with temporary layoffs. 3 For such on-call employees, it is not so absurd to read the CSRA as providing a mechanism to challenge temporary layoffs as unfair or as abuses of discretion. Nonetheless, Congress did not draw any statutory distinction between on-call and other intermittent or seasonal employees, and this court cannot pencil in that fine line. We are accordingly left to choose between a “plain language” interpretation that makes sense for a small number of situations but is highly inefficient in the majority, and the one adopted here that is generally sensible, but leaves a troublesome gap in protection for the most vulnerable groups of workers. I think probably Congress simply failed to realize the consequences of failing to provide any protections against arbitrary layoffs of on-call employees. 4 For that reason, while I agree that the MSPB decision upholding OPM’s regulation should be affirmed, I nourish the hope Congress will revisit the problem and make its precise intent clearer the next time.

. Congress made the definition of protected employees broad enough to cover seasonal employees — on this there is no dispute. Congress also defined adverse actions to include "furlough," “the placing of an employee in a temporary status without duties and pay because of lack of work or funds or for other disciplinary reasons" for 30 days or less. 5 U.S.C. § 7511 (a)(5). Finally, Congress listed in a separate section specific exclusions from the scope of adverse action protections and those exceptions did not include seasonal worker furloughs. 5 U.S.C. § 7512 (A)-(E).

. “On-call employees are hired under competitive career-conditional appointments with a special provision permitting them to be placed in non-pay status and recalled to duty under streamlined procedures as workload dictates.” FPM Bulletin, April 18, 1980, Joint Appendix at 100.

. There are some limited constraints even on the government’s discretion to lay off on-call workers temporarily. Employees alleging that their layoffs were undertaken for punitive reasons could, for example, appeal those layoffs as suspensions. See 5 U.S.C. §§ 7502 , 7503, 7512(2), 7501(2) ("‘suspension’ means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay”). And seasonal employees have the right to file a complaint with the office of the Special Counsel of the Merit Systems Protection Board if they believe that a prohibited personnel practice as defined by 5 U.S.C. § 2302 (b) has occurred. The Special Counsel is then required to investigate the complaint and is authorized to seek a stay of a prohibited personnel action and/or file for corrective action with the Board. See 5 U.S.C. §§ 1206 , 1208.

. Until quite recently on-call workers were a relatively rare phenomena. At the time of the CSRA’s passage in 1978, the CSC had just approved the first experimental program using on-call seasonal workers extensively in federal agencies, see Letter of CSC Director Ramsey to Chief of the Personnel Division of the Bureau of the Census Bowden, October 27, 1977, Joint Appendix at 144, and use of on-call workers was not authorized as a general practice until 1980. See FPM Bulletin, April 18, 1980, Joint Appendix at 100 (authorizing such according to attached guidelines). It is thus likely that Congress simply overlooked potential problems created by "on-call” workers when it passed the CSRA.