Cornyn v. Department of the Treasury

96 F. App'x 678
CourtCourt of Appeals for the Federal Circuit
DecidedApril 8, 2004
DocketNo. 04-3053
StatusPublished

This text of 96 F. App'x 678 (Cornyn v. Department of the Treasury) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cornyn v. Department of the Treasury, 96 F. App'x 678 (Fed. Cir. 2004).

Opinion

PER CURIAM.

Anthony G. Cornyn (“Cornyn”) seeks review of the final decision of the Merit Systems Protection Board (“Board”) affirming an action of the Department of the Treasury (“agency”), separating him from service pursuant to a reduction-in-force (“RIF”). Cornyn v. Dep’t of the Treasury, No. DC-0351-02-0576-I-1 (Sept. 25, 2002) (“Initial Decision”), petition for review denied, Cornyn v. Dep’t of the Treasury, No. DC-0351-02-0576-I-1, 95 M.S.P.R. 293, 2003 WL 22299956 (Sept. 30, 2003). Because the Board’s decision was not arbitrary, capricious, an abuse of discretion or contrary to law, and further was supported by substantial evidence, we affirm.

BACKGROUND

Before the RIF, Cornyn held the position of Director, Risk Management and Industry Analysis, TG-1101, Grade 26, at the agency’s Office of Thrift Supervision. On March 13, 2002, Cornyn was informed that the agency was conducting a RIF due to budgetary constraints, that he would be released from his position, and that the agency was unable to offer him assignment to another position. Initial Decision, slip op. at 2. The effective date of his separation was extended to allow Cornyn to qualify for voluntary retirement in lieu of involuntary action. Cornyn retired on June 1, 2002. Id.

[680]*680Cornyn appealed to the Board on June 14, 2002, arguing that the RIF should be set aside as not in accordance with law, or alternatively, arguing that he had a retreat right to the position of Director, Economic Analysis, TG-301-25. Id. at 2-3. The Board found for the agency on each of Cornyn’s arguments. In particular, responding to Cornyn’s assertion that the RIF should be set aside because the Office of Personnel Management (“OPM”) allegedly had not approved the agency’s performance appraisal system, the Board concluded that there was no law, rule, or regulation requiring an agency to have an OPM-approved system prior to conducting a RIF. Id. at 3-4. Responding to Cornyn’s argument that the RIF should be set aside because his RIF notice did not comply with statutory requirements, the Board concluded that, although there was a minor error in Cornyn’s notice, the error was at most harmless, because it was not shown nor alleged to have affected his substantive rights. Id. at 4-6. Finally, the Board concluded that Cornyn was not entitled to retreat from his position of Director, Risk Management and Industry Analysis, to Director, Economic Analysis, because the positions were not essentially identical. Id. at 6-11.

Cornyn timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

When reviewing a decision of the Board, we may reverse only if the decision was arbitrary, capricious, an abuse of discretion, or unlawful; procedurally deficient; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Chase-Baker v. Dep’t of Justice, 198 F.3d 843, 845 (Fed. Cir.1999). Factual findings are affirmed if they are supported by substantial evidence. 5 U.S.C. § 7703(c). The burden of establishing reversible error in an administrative decision, such as the Board’s, rests upon the petitioner. Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed.Cir.1998).

As a preliminary matter, the agency challenges the Board’s jurisdiction to entertain Cornyn’s appeal. Although the Board lacks jurisdiction to consider an appeal from a voluntary retirement, Covington v. Dep’t of Health & Human Sens., 750 F.2d 937, 941 (Fed.Cir.1984), the Board appears to have considered and treated Cornyn’s dismissal as being involuntary and to have accepted the case as being subject to the Board’s jurisdiction. Initial Decision, slip op. at 1. We similarly consider Cornyn’s appeal as from an involuntary retirement.

On appeal, Cornyn repeats the same arguments he made before the Board, namely: (1) that the RIF was unlawful because OPM has not approved the agency’s performance appraisal system; (2) that the RIF was unlawful because his RIF notice did not comply with statutory requirements; and (3) that he was denied his right to retreat to the position of Director, Economic Analysis. Associated with the argument regarding right to retreat, Cornyn alleges that the Board erred in not permitting the testimony of Mr. Malmquist and, further, accuses the agency of tampering with the position description statements on which the Board’s decision was based. Finally, on appeal, Cornyn adds the argument that the Board failed to provide him with due process because the Board reviewed too many cases on the day his decision was made final.

With respect to Cornyn’s argument that OPM has not approved the agency’s performance appraisal system, Cornyn takes issue on appeal with the Board’s statement that “[a]s an initial matter, [681]*681[Cornyn] cited no law, rule, regulation, or Board decision that would require an agency to have an OPM-approved performance appraisal system in place prior to taking a RIF action.” Initial Decision, slip op. at 3. Cornyn contends that 5 U.S.C. § 4304(b)(1) and 5 U.S.C. § 3502 mandate that the agency, before conducting a RIF, have an OPM-approved appraisal system in place. Cornyn, however, reads much into these two provisions. Although 5 U.S.C. § 4304(b)(1) does delegate to OPM the responsibility of reviewing an agency’s performance appraisal system, section 3502 does not require such a system to be in place prior to a RIF. Rather, that section merely states that “[a]n employee who is entitled to retention preference and whose performance has not been rated unacceptable [under an OPM-approved system] is entitled to be retained in preference of other competing employees.” 5 U.S.C. § 3502 (2000). That provision does not place a qualification on a RIF, but rather sets forth one of many factors to consider when determining the order in which competing employees are considered during a RIF. Moreover, the Board declined to determine whether the agency’s appraisal system is compliant because it concluded that Cornyn failed to allege a reason to believe that the agency did not have OPM-approval. Initial Decision, slip op. at 4 n. 3. For these reasons, we are unpersuaded by Cornyn’s arguments that the RIF was unlawful for lack of an OPM-approved appraisal system.

As to Cornyn’s argument that his RIF notice was unlawful, we are similarly unpersuaded. Section 3502(d)(2) of title 5 U.S.C.

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