shaw bransford & roth case law update

Federal Circuit Reverses MSPB Decision on Forced Reassignment

A National Park Service Superintendent at Sitka National Historical Park was removed from her position after she refused a management-directed reassignment to a different position. 

The newly-created position, Alaska Native Affairs Liaison, featured the same grade and pay, but was located in Anchorage, Alaska. The employee appealed the removal to the Merit Systems Protection Board, and contended that she was not qualified for the position and that “the agency’s decision to direct her reassignment was not bona fide because the position was created for the sole purpose of reassigning her from her superintendent position without triggering an adverse action.” An MSPB administrative judge found that the agency had met its initial burden of showing, by a preponderance of the evidence, that it had legitimate management reasons for the employee’s reassignment, and used the two-step, burden-shifting analytical framework set forth in Ketterer v. Department of Agriculture, 2 M.S.P.R. 294 (1980) to reach that holding. The Board in Keterrer held that an agency’s decision to reassign the employee must be a bona fide determination based on legitimate management considerations in the interests of the service. The employee, appealed, and in a series of three opinions that reversed the administrative judge’s decision, the Board abandoned the two-step framework of Ketterer, calling it “cumbersome and unnecessary,” and stating that going forward the Board would “simply weigh all the evidence and make afinding on the ultimate issue of whether the agency proved…that the misconduct occurred and that its action promotes the efficiency of the service.” The Board found that there was credible evidence that the employee’s reassignment was merely a “veil” to effectuate a removal, and also found that the agency failed to establish a rational or bona fide basis for requiring the employee to accept the Alaska Native Affairs Liaison position, and failed to show that the employee’s removal was “rationally related to the efficiency of the service.” The agency appealed the decision to the United States Court of Appeals for the Federal Circuit. On September 2, 2015, the court of appeals reversed the Board’s decision.

The court of appeals stated, at the outset of its discussion of the matter, that its scope of review in an appeal from the Board was limited in that the court of appeals must affirm unless the Board decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence.”

Finding that the Board erred as a matter of law in abandoning the Ketterer approach, the court of appeals noted that it had not merely endorsed the Ketterer approach in the past, but adopted it as the “law of the circuit.” For that reason, the court of appeals held, the Ketterer approach must be followed by the Board until the court of appeals en banc or the Supreme Court overruled that holding.

The court of appeals then set about applying the Ketterer framework to the case in order to determine whether substantial evidence supported the administrative judge’s holding “that the agency established, by a preponderance of the evidence, that it had legitimate management reasons for [the employee’s] reassignment; and that [the employee] failed to rebut the agency’s prima facie case.”

The appeals court found that substantial evidence supported the administrative judge’s finding that, due to testimony regarding the employee’s “unique strengths to fill the Alaska Native Affairs Liaison position” and the “recognized need for the position” from the employee’s supervisors, the agency had acted to reassign the employee based on legitimate management considerations.

The appeals court also determined that the employee did not rebut the agency’s prima facie case for reassignment when she argued that she was not qualified for the Alaska Native Affairs Liaison position.

While the full Board reasoned that the eventual removal of the employee created the avoidable result of two position vacancies (the employee’s former position and the liaison position) and demonstrated that the removal did not promote the efficiency of the service, the appeals court disagreed, stating that “every legitimate removal of an employee for failure to accept a directed reassignment” will result in “the loss of an employee with expertise that the agency considered valuable and that the agency will have two vacancies to fill.” The appeals court also added that no evidence cited by the full Board “supports either its conclusion that credible evidence ‘cast doubt on the agency’s motivations’ or its conclusion that [the employee’s] reassignment was a ‘veil’ to effect her removal.”

The appeals court distinguished the facts in this case from those in Ketterer, stating that in Ketterer, there was credible evidence that the basis for the employee’s reassignment was mistaken and that the removal was effected in order to promote another employee while the reassignment location was being used as a place to send employees in order to encourage them to retire or resign.

Accordingly, the appeals court held that the administrative judge had properly utilized the Ketterer two-step, burden-shifting framework when the administrative judge found that the “agency had made out a prima facie case that the decision to reassign [the employee] was supported by legitimate management reasons and that [the employee] had failed to rebut that prima facie case.”

For the above stated reasons, the United States Court of Appeals for the Federal Circuit reversed and remanded the case to the Board, instructed the Board to instate the administrative judge’s initial decision as the final decision of the Board.

Read the full case: Cobert v. Miller


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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