Shaw v. Department of Veterans Affairs

PER CURIAM.

Jaquetta Shaw appeals the decision of the Merit Systems Protection Board in favor of the Department of Veterans Affairs (“agency”). Because the board applied the wrong legal standard, we reverse and remand.

The board’s decision is reviewed in accordance with 5 U.S.C. § 7703(c). See Jones v. Dept. of Transp., 295 F.3d 1298, 1304 (Fed.Cir.2002). The board found that the agency had shown by a preponderance of the evidence that Shaw had been appointed in contravention of 5 C.F.R. §§ 333.102 and 103 and that her removal promoted the efficiency of the service as required by 5 U.S.C. § 7513. The board erred, however, by failing to consider whether the removal of Shaw after three years of satisfactory service promoted the efficiency of the service more than her retention and conversion to career employment as required by 5 C.F.R. § 315.704. See Vidal v. United States Postal Serv., 143 F.3d 1475, 1478 (Fed.Cir.1998) (holding that the board is required to perform a comparative analysis). Likewise, the agency claimed only that the integrity of the merit system had been threatened and that some hypothetical group of applicants had been harmed. It offered no proof that the costs of Shaw’s removal were outweighed by the benefits. On remand, the board is instructed to determine whether Shaw’s removal promotes the efficiency of the service more than her retention.