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Perry v. Department of Army

Decided: May 11, 1993.

JANICE PERRY, PETITIONER,
v.
DEPARTMENT OF THE ARMY, RESPONDENT.



Appealed from: Merit Systems Protection Board

Before Nies, Chief Judge, Archer and Clevenger, Circuit Judges.

Archer

ARCHER, Circuit Judge.

Janice Perry appeals from the decision of the Merit Systems Protection Board (MSPB or board) dismissing her petition to enforce a settlement agreement against the Department of the Army. Perry v. Department of the Army, Docket No. DA075289C9049 (MSPB Apr. 28, 1992). We reverse and remand.

I.

In 1989, the Army demoted Perry from her GS-5 position and she appealed that adverse action to the MSPB. In September 1989, Perry and the Army entered into an agreement settling the appeal and made it part of the official record. Accordingly, the MSPB dismissed the appeal but retained jurisdiction to ensure compliance with the settlement agreement. See 5 C.F.R. §§ 1201.41(c)(2)(i), 1201.181-.183 (1992).

According to the agreement Perry was to continue in a GS-5 position for 120 days. She was then to suffer a demotion to a GS-4 position and after 10 months of satisfactory performance in that position, she would then be entitled to "one priority promotion consideration" for a GS-5 position. The pertinent portion of the agreement reads:

The agency agrees to grant [Perry] one priority promotion consideration to the position of Real Property Clerk, . . . or any other Clerical or Secretarial, GS-5/10 position in the GS-300 series for which [Perry] qualifies, provided [Perry] completes satisfactory performance for a minimum period of ten (10) months from the date of the detail in the position and grade level of Clerk-Typist, GS-0322-04 . . . .

Pursuant to the agreement, the Army reinstated Perry to a GS-5 position for 120 days and then demoted her. At the end of 10 months, on July 28, 1990, the Army placed Perry on a "Priority Promotion Consideration Register." Almost six months later, on January 15, 1991, the Army Civilian Personnel Office referred Perry for a GS-5 position by placing her name alone on a DA Form 2600 (Referral and Selection Register), listing her as an exception to the merit selection procedures under "5D & FP Reg 690-11, App A, para 1a."*fn1 The personnel office submitted this form to a designated selecting supervisor. That same day, the selecting supervisor signed the form and returned it to the Civilian Personnel Office without selecting Perry for the position. The only notation he placed on the form was the statement "REQUEST AREA WIDE CONSIDERATION."

By letter dated April 18, 1991, the Army notified Perry that, three months earlier, she had been referred for a GS-5 position but had not been selected, and that the Army had fulfilled its obligations under the agreement to grant her one priority promotion consideration. The letter contained no explanation for the decision not to select her.

On May 6, 1991, Perry filed a petition with the MSPB for enforcement of the settlement agreement, alleging that the Army's referral of Perry for the position did not comply with the agreement because she was not given "priority promotion consideration." Perry argued, and the MSPB administrative Judge (AJ) agreed, that the Army was required to produce evidence of a "justifiable reason for its failure to select" Perry. Because the Army offered no reason for not selecting Perry, the AJ recommended enforcing compliance. The Army petitioned for review of the AJ's decision to the board. The board held that Perry was required to prove that the Army did not comply with the agreement, citing Fredendall v. Veterans Administration, 38 MSPR 366 (MSPB 1988). The board then found that the agreement did not require the Army to explain its reasons for not selecting Perry, but only required that the Army consider Perry before considering anyone else. The board also found no evidence of bad faith because, among other things, there was "no evidence that the selecting official knew [Perry], was aware of either the disciplinary action against her or the settlement agreement, or had any other reason to act in bad faith (or in retaliation) with respect to her referral as a candidate for priority consideration." The board thus concluded that Perry failed to carry her burden of proof. This appeal followed.

II.

This court's standard for reviewing a decision of the MSPB is established by statute. We will affirm a ...


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