Appeal from the Merit Systems Protection Board. Docket No. SE0351920021-I-1.
Before Newman, Archer and Clevenger, Circuit Judges.
CLEVENGER, Circuit Judge.
Shirley J. Batey petitions for review the decision of the Merit Systems Protection Board (Board), Docket No. SE0351920021-I-1, affirming the decision of the Defense Mapping Agency (DMA) to eliminate her job by a reduction in force (RIF). The February 24, 1992, initial decision of the Administrative Judge (AJ) became the final appealable decision of the Board on July 15, 1992, when the Board denied review of the AJ's decision. We vacate and remand.
Batey's timely appeal to this court challenges the legality of the RIF on two grounds. First, Batey contends that DMA failed to demonstrate that Major Quin, the officer who initiated and effected the RIF, had the requisite authority within DMA to take the challenged action. With regard to this contention, Batey argues that DMA contumaciously withheld pertinent evidence that she had sought in a "Motion to Compel Agency to Establish Authority to Conduct RIF." Second, Batey argues that even if Major Quin had the requisite authority to conduct a RIF, the record in this case lacks substantial evidence that the RIF was taken for a lawful purpose.
On the record before this court, there can be no doubt that DMA withheld pertinent evidence from Batey during her quest to prove that Major Quin lacked authority to conduct the RIF. DMA's misconduct, of which the AJ seems to have been unaware, terminally poisoned the hearing in which DMA was assigned the burden of proving that Major Quin was authorized to conduct the RIF. We therefore vacate the Board's decision and remand the case for a new hearing before the AJ, who will have occasion to determine whether DMA's conduct warrants imposition of sanctions. See 5 C.F.R. §§ 1201.41(b)(11), 1201.43 (1993); Baker v. Department of Health & Human Servs., 912 F.2d 1448, 1457 (Fed. Cir. 1990); cf. M.A. Mortenson Co. v. United States, 996 F.2d 1177 (Fed. Cir. 1993) (United States has waived sovereign immunity against awards of monetary sanctions in suits brought in the Court of Federal Claims). The explanation of our decision follows.
Batey was employed as a Supervisory Supply Technician, GS-2005-8, with the Pacific Office of the Defense Mapping Agency at Hickam Field, Hawaii. She supervised five supply office employees. Batey's supervisor directly supervised her and five warehouse employees and indirectly supervised the five supply office employees. In October 1990, Major Michael D. Quin, III, assumed command of the Pacific Office. During an annual review of personnel resources, Major Quin assessed the roles of Batey and her supervisor and concluded that the use of two supervisors to oversee ten staff members was excessive. In order to correct this situation, Major Quin initiated the RIF which eliminated Batey's job. Batey then was offered and accepted, at no reduction in pay, a transfer to a GS-2005-6 Supply Technician position with the United States Air Force 15th Supply Squadron, also located at Hickam Field.
Whenever a person adversely affected by a RIF challenges the legality of that action, longstanding precedent burdens the agency with the obligation to prove by a preponderance of the evidence that the RIF procedure was properly invoked. Wilburn v. Department of Transp., 757 F.2d 260, 262 (Fed. Cir. 1985); Losure v. Interstate Commerce Comm'n, 2 M.S.P.R. 195, 201 (1980). An agency meets its initial burden of production by making a prima facie showing that it conducted the RIF for any of the five reasons specified in 5 C.F.R. § 351.201(a). See Bacon v. Department of Housing & Urban Dev., 757 F.2d 265, 269 (Fed. Cir. 1985). This requirement that the agency establish a proper reason for initiating a RIF merely reflects the unexceptional proposition that an agency must offer a plausible, facially valid basis for taking personnel actions.
Upon meeting its initial burden of production, the agency enjoys a strong presumption that its officers acted in good faith and otherwise in accordance with law in conducting the RIF, and the burden shifts to the aggrieved employee to rebut this presumption with "clear and convincing evidence" that, for example, the agency's reason masks an ulterior, illicit motive for the RIF, or that the official who initiated the RIF lacked the authority to do so. See Dancy v. United States, 668 F.2d 1224, 1226 (Ct. Cl. 1982); George v. United States, 166 Ct. Cl. 527, 531 (Ct. Cl. 1964).
For reasons unknown to this court, Batey apparently suspected that Major Quin might have lacked the requisite authority to initiate a RIF in his command. Consequently, Batey repeatedly requested DMA to produce documentary proof of Major Quin's authority. In response to those requests, DMA on two occasions produced the same document, DMAINST 1429.1, POC, 1 August 1980, which is entitled "Subject: Adverse Actions." DMAINST 1429.1 provides "policy, standards, and procedures to be followed in disciplinary and nondisciplinary civilian employee removals, suspensions, furloughs without pay, and reductions in grade or pay." The document also explicitly provides, however, in paragraph 9b., Actions Not Covered, that "these procedures do not apply to . . . [a] reduction-in-force action." Id. para. 9b.(1)(b) (emphasis added).
Batey's counsel received DMAINST 1429.1 for the second time by DMA's facsimile transmission on January 8, 1992. The next day, Batey filed with the AJ her Motion to Compel Agency to Establish ...