Appealed from: Merit Systems Protection Board
Before Archer, Circuit Judges, Cowen, Senior Circuit Judge, and Clevenger, Circuit Judge.
In these cases, which have been consolidated for the purposes of this decision, the court is called upon to resolve the issues presented in two distinct but related controversies.
The first issue is whether under the provisions of 5 U.S.C.A. § 7703(a)(2) (West Supp. 1991), the employing agencies, rather than the Merit Systems Protection Board (MSPB or Board), should be designated as the respondent in the two appeals. This question, which we refer to as the "Caption Issue," comes before the court on motion of the Department of Agriculture (Agriculture) in the Amin appeal and that of the United States Postal Service (Postal Service) in the Lavender appeal to reform the caption to reflect the employing agency as the respondent in each appeal. For the reasons to be set forth, we grant both motions.
The second issue involves the merits of the appeals of Yusuf D. Amin and Michael A. Lavender from the decisions of the MSPB in docket numbers SF07529010818 and AT07529010121, respectively. We affirm the Board's decision in both appeals.
The Caption Issue Background
Petitioners Amin and Lavender appealed their removal to the MSPB and entered into settlement agreements before the Board which resolved their appeals. Mr. Lavender subsequently alleged that the Postal Service breached the settlement by reinstating his removal and filed a petition with the Board to enforce compliance with the agreement. The administrative judge (AJ) denied his petition after determining that the petitioner did not comply with the terms of the settlement agreement. Mr. Amin petitioned the Board to set aside the settlement agreement, maintaining that his attorney lacked authority to enter into the settlement. The Board denied his petition for review.
When the petitions for review were filed in this Court, the Clerk named the Department of Agriculture and the United States Postal Service as the respondents. By letters to the Clerk, the MSPB requested him to recaption the cases to designate the MSPB as the respondent in each case pursuant to 5 U.S.C.A. § 7703(a)(2). Thereafter, the Clerk recaptioned each case by designating the Board as the respondent.
Judicial review of decisions of the MSPB is provided for in 5 U.S.C.A. § 7703, which provides that an employee or applicant for employment may file in this court a petition for review of an adverse MSPB final decision or order. Section 7703(a)(2) governs the designation of the respondent to a petition for review. Prior to its revision in 1989, § 7703(a)(2) provided that:
the Board shall be the named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision issued by the Board under section 7701. In review of a final order or decision issued under section 7701, the agency responsible for taking the action appealed to the Board shall be the named respondent.
The court construed the unamended version of § 7703(a)(2) on several occasions. In Hopkins v. Merit Sys. Protection Bd., 725 F.2d 1368 (Fed. Cir. 1984), petitioner appealed from a decision of the MSPB, dismissing his request for attorney fees on grounds of untimeliness. Both the MSPB and the Department of Justice raised the issue of which agency was the appropriate respondent. The court reasoned that the "agency responsible for taking the action" was the touchstone for determining who was the proper respondent in an appeal from a Board decision. Id. at 1372. The court determined that the action for which petitioner sought review involved MSPB procedural regulations governing the timeliness of attorney fee requests for which the employing agency had no responsibility or involvement. Therefore, the court concluded that the Board, not the employing agency, was the proper respondent in the case. In support of its conclusion, the court cited two prior decisions, Rosano v. Department of the Navy, 699 F.2d 1315, 1316 n.4 (Fed. Cir. 1983) and Phillips v. United States Postal Serv., 695 F.2d 1389, 1390 n.2 (Fed. Cir. 1982), both of which state in a footnote that the MSPB should be the respondent in appeals from dismissals for lack of jurisdiction and untimeliness.
In Hagmeyer v. Department of Treasury, 852 F.2d 531 (Fed. Cir. 1988), the court, sitting en banc, overruled Hopkins, noting that "in spite of an apparent desire by the Hopkins panel to establish a workable rule, that decision has generated some confusion and/or criticism in later cases. . . ." 852 F.2d at 534.
The court concluded that in view of the plain meaning of the statute, which was fully supported by the legislative history, the employing agency should be designated the respondent in every petition for review of an MSPB final decision or order rendered under § 7701.
Shortly after the Hagmeyer decision, Congress amended § 7703(a)(2) as part of the Whistleblower Protection Act of 1989, Pub. L. 101-12, 103 Stat. 16 (1989). The amendment which has been codified as 5 U.S.C.A. § 7703(a)(2) provides:
The Board shall be named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision on the merits on the underlying personnel action or on a request for attorney fees, in which case the agency responsible for taking the personnel action shall be the respondent.
The legislative history*fn1 shows that Hagmeyer prompted the changes to ...