Robinson v. Small Business Administration ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3065
KENT S. ROBINSON,
Petitioner,
v.
SMALL BUSINESS ADMINISTRATION,
Respondent.
___________________________
DECIDED: May 4, 2006
___________________________
Before LOURIE, RADER, and PROST, Circuit Judges.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) affirmed the Small Business
Administration’s (SBA’s) removal of Kent S. Robinson from the position of General
Attorney in the SBA’s Los Angeles, California, District Office, effective September 24,
2004. Robinson v. Small Bus. Admin., No. SF-0752-05-0071-I-1 (M.S.P.B. Feb. 10,
2005) (Initial Decision), petition for review denied, id. (M.S.P.B. Sept. 20, 2005).
Because the Board’s decision contains no legal error and is supported by substantial
evidence, this court affirms.
I.
After serving successfully for many years as a GS-13 general attorney in the
SBA’s Los Angeles office, the SBA notified Mr. Robinson of its intention to reassign him
to a GS-14 management position in the SBA’s Fresno office. The SBA’s reassignment
notification also explained that if Mr. Robinson declined reassignment, the SBA would
propose his removal from Federal Service. Mr. Robinson declined the reassignment.
His removal was then proposed, and over Mr. Robinson’s objection, sustained by the
SBA’s General Counsel. Mr. Robinson retired in lieu of involuntary action.
Mr. Robinson then appealed to the Board, challenging the SBA’s reassignment
decision. Mr. Robinson’s argued that he had neither the desire nor the temperament to
be a supervisory attorney. For this reason, he faulted the SBA’s decision to reassign
him to a management position. In rejecting this argument, the Board considered the
SBA’s rationale for the reassignment, including the SBA’s assessment of Mr.
Robinson’s experience, his potential for leadership, the difficulties the SBA had eliciting
a volunteer for the position, and the SBA’s desire to select a candidate for the Fresno
position from a district office that already had at least three staff attorneys. Initial
Decision, slip op. at 3-4. Ultimately the Board affirmed the SBA’s action.
II.
This court possesses limited authority to review a Board decision. The Board’s
decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law; (2) obtained without procedures required by
law, rule or regulation having been followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703 (c) (2000); see Briggs v. Merit Sys. Protection Bd., 331 F.3d 1307,
1311 (Fed. Cir. 2003).
Mr. Robinson attempts to cast his appeal as raising legal issues. To the
contrary, this dispute involves primarily factual issues. The question comes down to
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whether the SBA can show a legitimate management reason for reassignment. See
Frey v. Dept. of Labor, 359 F.3d 1355, 1360 (Fed. Cir. 2004) (“[W]here a removal action
is based on a refusal to accept a directed geographical reassignment, the agency must
prove by a preponderance of the evidence that its reassignment decision was bona fide,
and based upon legitimate management considerations in the interests of the service.”)
(internal quotes and citation omitted). Ultimately, Mr. Robinson asks this court to
reweigh the evidence and accord his evidence more weight. Thus, Mr. Robinson
argues: “there is no way for the [SBA’s] beliefs to outweigh my knowledge of myself.”
Response Br. at 3. To the contrary, broader management considerations may often
outweigh an employee’s desire to maintain his position. The SBA in this case
presented ample evidence of its assessment of Mr. Robinson and of its broader concern
of maintaining sufficient legal staff in all of its district offices. The record therefore fully
supports the Board’s decision.
In addition to his challenge to the reassignment decision, Mr. Robinson also
argues that: (1) there was no additional reason to propose his removal, and so the SBA
should have allowed him to stay in his general attorney position; (2) the reassignment
was a violation of a collective bargaining agreement; and (3) the Board erred in
preventing discovery relevant to Mr. Robinson’s request for class action status. None of
those arguments persuade this court to disturb the Board’s decision. Refusal to accept
a reassignment is itself sufficient grounds for termination. See Frey, 359 F.3d at 1360(“Our predecessor court consistently upheld the discretion of an agency to terminate an
employee who refused a geographical reassignment.”) (citation omitted). Mr. Robinson,
having not filed a timely action based on a violation of the asserted collective bargaining
06-3065 3
agreement, cannot raise a violation of that agreement. Finally, given the fact specific
nature of Mr. Robinson’s reassignment, his failure to specifically identify others similarly
situated, and the highly unlikely proposition that if there were such a class it would be
fairly represented by Mr. Robinson acting pro se, Mr. Robinson’s class action argument
fails.
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