James B. King, Director, Office of Personnel Management, Petitioner, v. Lawrence T. Reid, Respondent,andmerit Systems Protection Board, Respondent, 22 F.3d 1106 (Fed. Cir. 1994)
Annotate this CaseBefore MICHEL, Circuit Judge, BENNETT, Senior Circuit Judge, and LOURIE, Circuit Judge.
ON OPM PETITION FOR REVIEW
ORDER
MICHEL, Circuit Judge.
The Office of Personnel Management (OPM) petitions for review of the November 1, 1991 order of the Merit Systems Protection Board (reconsideration denied, January 6, 1994) dismissing Lawrence T. Reid's petition for enforcement. The Board does not oppose review of "the substantive mixed case question." Reid has not filed a response.1
The Department of the Navy removed Reid from his position as electronics engineer. Reid appealed to the Board where the parties entered into a settlement agreement, which was entered into the record. Subsequently, Reid sought to enforce the agreement before the Board arguing, inter alia, that the Navy breached the terms of the agreement when it informed the Office of Workers Compensation Programs (OWCP) that the money it had paid Reid in settlement was backpay rather than damages and that the Navy had discriminated against Reid on the basis of handicap.
The AJ dismissed Reid's petition for enforcement determining that the Navy had complied with the settlement agreement. The AJ did not address Reid's discrimination claim. Reid petitioned the Board for review. The Board denied Reid's petition, reopened the case on its own motion, affirmed the initial decision as modified, and dismissed the petition for enforcement. The Board held that the AJ erred in not addressing Reid's allegations of discrimination on the basis of handicap. However, the Board held that the AJ's failure was not prejudicial to Reid's substantive rights because Reid presented no evidence or argument to support his claim of handicap discrimination. The Board stated that it would nonetheless provide Reid with "mixed-case appeal rights." The "Notice To Appellant" section informed Reid that he could request review of his discrimination claim with the Equal Employment Opportunity Commission or file a civil action seeking review of discrimination and nondiscrimination claims in a federal district court, or, if he waived his discrimination claim, seek review in this court.2
OPM petitioned the Board for reconsideration of its decision pursuant to 5 U.S.C. § 7703(d), arguing that the Board erred in its decision to afford Reid mixed-case appeal rights. OPM argued that an action to enforce a settlement agreement was not an "appealable action" under the statute and thus could not be combined with a discrimination claim to become a mixed case. The Board denied OPM's petition.3 The Board stated that 5 U.S.C. § 7702(a) (1) defines a mixed case as one where an employee has been affected by an action which the employee may appeal to the Board and alleges that the basis for the action was discrimination. The Board then analyzed whether a breach of a settlement agreement is an action appealable to the Board. The Board stated that:
once jurisdiction was established over appellant's removal, and the settlement agreement was incorporated into the record, the Board had jurisdiction over appellant's petition for enforcement. There is also no dispute that the Board had jurisdiction to decide appellant's claim that the agency breached the agreement. As the Board had jurisdiction to decide whether the agency breached the settlement agreement, the alleged breach was necessarily an appealable action. Indeed, the enforcement phase of a case is nothing more than a continuation of the original action, and is just as appealable as the original action. Given the fact that a breach of a settlement agreement is an appealable action, it follows from section 7702(a) that such an action is a mixed case when the appellant alleges that the breach resulted from discrimination. [Citations omitted.]
OPM now petitions the court for review arguing that the Board erred by treating Reid's petition for enforcement and discrimination claim as a mixed case. OPM maintains that Reid's petition for enforcement, although within the Board's enforcement authority, was not an appealable action and that absent an appealable action the Board lacked jurisdiction to entertain the discrimination claim. With regard to substantial impact on the administration of the civil service, OPM argues that the Board's decision "will have a substantial impact upon how petitions to enforce settlement agreements will be treated in the future and how likely agencies will be to embrace the negotiated settlement agreement procedure as a viable means of resolving MSPB appeals."
Pursuant to 5 U.S.C. § 7703(d), OPM may petition this court for review when OPM determines that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on the administration of the civil service. This court must conduct its own inquiry into whether the decision will have a substantial impact on civil service law. Devine v. Sutermeister, 724 F.2d 1558, 1562 (Fed. Cir. 1983). We have found that the requisite substantial impact exists when the interpretation of a statutory or regulatory provision is at issue. See e.g., Horner v. Schuck, 843 F.2d 1368 (Fed. Cir. 1988). We agree with OPM and the Board that this is such a case. Here, OPM's petition for review raises an unresolved issue of statutory interpretation, namely, whether an enforcement action containing an allegation of discrimination qualifies as a mixed case under Sec. 7702(a) (1). Further, neither the Board nor Reid objects to this court's review of the merits of OPM's petition.
Accordingly,
IT IS ORDERED THAT:
(1) OPM's petition for review is granted.
(2) The revised official caption is reflected above.
To date, Reid has not entered an appearance. If Reid intends to participate he should do so (form enclosed)
One of the parties should inform the court if Reid is pursuing his appeal rights from the Board's order, and, if so, where
The Board observed first that OPM was not challenging a final decision of the Board because the notice of appeal rights was set out in a section separate from the decision and was not part of the decision. However, the Board then addressed OPM's arguments on the merits
The Board argues here that OPM may not seek review of that portion of the Board's order notifying Reid of his appeal rights because it is not part of the Board's final decision. However, the Board's decision on the merits is intertwined with, if not the same as, the issue of whether the notice of appeal rights is correct. Hence we are not persuaded that the Board's argument has merit. Further, by analogy to petitions for permission to appeal from orders certified by district courts, it is proper for the appellate court to review the order certified, not just the "controlling question of law." See United States v. Connolly, 716 F.2d 882, 885 (Fed. Cir. 1983) (on appeal from a trial court's certified order, the nature and scope of the court's review is not limited to the certified question; the court is free to consider all questions material to the trial court's order).
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