Phillips v. Department of the Interior , 131 F. App'x 709 ( 2005 )

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
04-3083
HELEN L. PHILLIPS,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
___________________________
DECIDED: April 6, 2005
___________________________
Before CLEVENGER, RADER, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.
Helen L. Phillips petitions for review of the final decision of the Merit Systems
Protection Board, Docket No. DC-0752-98-0148-M-1, in which the Board upheld her
removal from her position as a park ranger with the National Park Service. We affirm.
I
Ms. Phillips was a temporary employee of the National Park Service in 1990
when she applied for a permanent position as a law enforcement park ranger. She
completed the Office of Personnel Management’s Standard Form 86 (SF-86),
“Questionnaire for Sensitive Positions,” as required for that position. Ms. Phillips
answered “no” to item 25 of the SF-86, which asked “[h]ave you ever had a nervous
breakdown or have you ever had medical treatment for a mental condition?” The
agency’s regulations state that an applicant for a law enforcement commission whose
background check produces “a history of . . . mental or emotional instability” shall be
disqualified.
Ms. Phillips was selected for the law enforcement park ranger position. Seven
years later, however, she admitted during a deposition taken in connection with an
employment discrimination suit that she had been treated for depression prior to her
employment with the Park Service. She further admitted that her answer to item 25 on
the SF-86 was inaccurate. The Park Service subsequently issued a notice of removal,
charging Ms. Phillips with willful falsification of a document related to her attaining
employment. Ms. Phillips denied the charge, but the deciding official found the charge
sustained and removed her from her position.
Ms. Phillips appealed her removal to the Merit Systems Protection Board. The
administrative judge assigned to Ms. Phillips’s case held a hearing and upheld the Park
Service’s decision to remove her. Ms. Phillips then petitioned to the full Board, which
denied her petition by a 2-to-1 vote. Ms. Phillips then petitioned for review by this court.
In this court, Ms. Phillips argued, inter alia, that the penalty of removal exceeded
the maximum penalty permitted under the table of penalties in paragraph 30 of the
Interior Department’s Disciplinary Action Guide. Paragraph 30 has two clauses. The
first, paragraph 30(a), designates removal as the penalty when an employee makes a
falsification, misrepresentation, or omission of fact in connection with an application for
employment “[w]ith respect to a material fact or point which would have adversely
affected selection for appointment.” The second, paragraph 30(b), applies to a similar
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falsification, misrepresentation or omission of fact “[w]ith respect to a less important fact
or point which would not have adversely affected selection for appointment.” Paragraph
30(b) provides penalties for a first offense ranging from a reprimand to a five-day
suspension. Ms. Phillips argued that the phrase “adversely affected for selection” in
paragraph 30(a) required the Park Service to prove that she would not have been
selected for the park ranger position if she had given a truthful answer to item 25. In the
absence of a showing that a truthful answer would have resulted in her nonselection,
she contended, paragraph 30(b) of the table of penalties should apply, which would limit
the maximum penalty for her offense to a five-day suspension.
This court vacated the Board’s decision and remanded for further proceedings.
We agreed with the government and the Board that an agency’s interpretation of its own
disciplinary guidelines is entitled to deference, but we noted that Park Service officials
did not make clear how the agency interpreted the disputed phrase in paragraph 30 of
the penalty guidelines in the Interior Department’s Disciplinary Action Guide. See
Phillips v. Dep’t of the Interior, 1 Fed. Appx. 876, 878 (Fed. Cir. 2001). In particular, we
noted that the agency and its witnesses offered arguably inconsistent interpretations of
the guidelines. The agency argued in its brief in that case that paragraph 30(a) applied
because Ms. Phillips would not have been selected if she had answered truthfully. At
oral argument, however, the agency argued that paragraph 30(a) applied because the
agency would have inquired further into her mental suitability had Ms. Phillips answered
item 25 truthfully. In light of the lack of clarity about the agency’s own interpretation of
its guidelines, we remanded to the Board to “ascertain the proper construction of
04-3083 3
paragraph 30(a) and to make the findings necessary to determine whether Ms. Phillips’s
falsification falls within the scope of that provision.” Id.On remand, the administrative judge concluded that there was no further
available evidence on the question of the proper interpretation of the agency’s penalty
guidelines. The administrative judge also noted that there was no way to ascertain
whether a truthful answer to item 25 would have resulted in Ms. Phillips’s nonselection,
“because her false answer denied the agency the opportunity to delve into what clearly
was a legitimate, important, and highly relevant area of inquiry.” Because of her
falsification, the administrative judge explained, “the agency was not able to make an
informed suitability decision about appellant’s law enforcement officer qualifications.”
The administrative judge also noted that under Ms. Phillips’s interpretation, paragraph
30(a) would apply only in the rare case in which the agency could demonstrate that a
truthful answer would have resulted in nonselection; the administrative judge concluded
that it was highly unlikely that the agency would have imposed such a restriction on
itself. The “more logical and likely intended meaning” of paragraph 30(a), the
administrative judge explained, was the one offered by the agency: that paragraph 30(a)
applies “where the falsification concerned a significant matter about which there would
have been further inquiry had the applicant answered truthfully.” Under that standard,
the administrative judge found that the agency properly held paragraph 30(a) applicable
because if Ms. Phillips had answered item 25 truthfully, the agency would have inquired
into her mental suitability for the law enforcement position.
On Ms. Phillips’s petition for review of the administrative judge’s decision, the full
Board upheld the agency’s interpretation of paragraph 30(a) as applying if the
04-3083 4
falsification adversely affected the selection process, even if the truthful answer would
not necessarily have resulted in a nonselection decision. If the agency had intended for
paragraph 30(a) to require a truthful answer to lead to a different selection decision, the
Board held, “it would have specified paragraph 30(a) to designate removal where a
falsification would have resulted in ‘non-selection’ for appointment, as opposed to
‘adversely affect’ selection for appointment.” The Board explained that item 25 did not
appear to have been “designed to directly impact an applicant’s selection based on a
positive response,” but instead was intended to give the agency an opportunity to
“investigate into a relevant area regarding the suitability requirement of mental and
emotional stability if a positive response is given.” Based on that interpretation of
paragraph 30(a), the Board found that Ms. Phillips’s falsification of item 25 fell within the
scope of that penalty guideline. The Board further found that under all the
circumstances, the removal penalty was within the bounds of reasonableness. This
appeal followed.
DISCUSSION
On appeal, Ms. Phillips makes three arguments as to why the Board’s decision
was erroneous. First, she argues that there is no evidence that the agency interpreted
paragraph 30(a) to apply when a truthful answer would have resulted in an inquiry into
suitability, rather than outright non-selection. Second, she argues that the interpretation
is inconsistent with the plain language of paragraph 30(a). Finally, she argues that any
ambiguity in paragraph 30(a) should be construed against the agency and resolved in
her favor.
04-3083 5
Ms. Phillips’s first argument is that there is no evidence that the agency actually
interpreted paragraph 30(a) of the guideline to reach false statements that affect the
selection process but as to which a truthful answer would not necessarily result in
nonselection. We disagree. It is well settled that this court gives broad deference to an
agency’s interpretation of its own regulations. See Cathedral Candle Co. v. United
States Int’l Trade Comm’n, No. 04-1083, slip op. at 14-15 (Fed. Cir. Mar. 9, 2005); Am.
Express Co. v. United States, 262 F.3d 1376, 1382-83 (Fed. Cir. 2001); Krizman v.
Merit Sys. Prot. Bd., 77 F.3d 434, 439 (Fed. Cir. 1996). More importantly in the context
of this case, the “generous degree of deference” that is due to an agency’s
interpretation of its own regulations applies “even when that interpretation is offered in
the very litigation in which the argument in favor of deference is made.” Cathedral
Candle, slip op. 14, citing Auer v. Robbins, 519 U.S. 452, 461-62 (1997). In its brief and
at oral argument in this appeal, the Department of the Interior stated that it interpreted
paragraph 30(a) to require removal when the falsification would have denied the agency
the opportunity to investigate the applicant’s mental suitability for employment as a law
enforcement officer. In light of the standard applicable to agency interpretations of their
own regulations, including interpretations offered “in the very litigation in which the
argument in favor of deference is made,” we agree with the Board that the agency’s
interpretation of its own penalty guidelines is entitled to deference.
Ms. Phillips argues that there is no evidence that the interpretation adopted by
the Board is actually the agency’s interpretation, and that the testimony of the agency
officials with regard to what would have happened if Ms. Phillips had answered item 25
truthfully is inconsistent. It is true that, as we noted in the first appeal, there is some
04-3083 6
apparent inconsistency in the testimony of different agency officials as to whether Ms.
Phillips would have been rejected for the park ranger position if she had provided
accurate information in response to item 25. All of the agency officials testified,
however, that if Ms. Phillips had answered item 25 truthfully, the agency would have
conducted an investigation into her mental suitability for the position. The testimony of
the four agency officials is therefore consistent that a truthful answer would have
provoked a further inquiry into Ms. Phillips’s suitability, and that the falsification
therefore denied the agency an opportunity to investigate her mental suitability further.
Because the agency’s position is that paragraph 30(a) applies when a falsification
denies the agency the opportunity to investigate a matter material to selection, it is not
necessary for the agency to show under that interpretation that Ms. Philips would not
have been selected if she had answered item 25 truthfully.
Ms. Phillips argues that the agency’s interpretation of paragraph 30(a) is
inconsistent with the plain language of that provision, which she contends requires that
the agency prove that the falsification in question would have led to the applicant’s
nonselection. We do not agree that the language of paragraph 30(a) compels that
interpretation. The regulation refers to a falsification with respect to a material fact
“which would have adversely affected selection for appointment.” That language is
susceptible to at least two plausible interpretations: that the falsification affected the
actual selection decision, i.e., that a truthful answer would have resulted in the
applicant’s nonselection; or that the falsification affected the selection process, i.e., that
the false answer deprived the agency of an opportunity to investigate a matter that was
important to the selection process. We agree with the Board that the second
04-3083 7
interpretation, which the agency favors, is a reasonable interpretation of the regulatory
language.
The reasonableness of the agency’s interpretation is buttressed by the fact that,
if Ms. Phillips’s interpretation of the regulation were correct, an applicant for a position
with the agency would have little or no disincentive to make false statements on the
employment application. That is because, under Ms. Phillips’s interpretation, if the
falsification were discovered after the applicant was hired, the applicant would not be
subject to removal from the position unless the item in question was one as to which, if
the applicant had told the truth, the applicant would not have gotten the position in the
first place. In that setting, an applicant would have an incentive to withhold unfavorable
information because, even if the information came to light, concealing the information
could not make the applicant worse off, with respect to obtaining and retaining the
position, than disclosing the information. Moreover, we agree with the Board that if the
agency had meant to limit paragraph 30(a) to cases in which the falsification would have
led to non-selection, it seems likely that the regulation would have said so explicitly. We
therefore agree with the Board that the agency’s interpretation of its regulation is at
least as reasonable as Ms. Phillips’s interpretation. And because the regulation is
subject to differing plausible interpretations, we are required to defer to the agency’s
reasonable interpretation. Krizman, 77 F.3d at 439.
Finally, Ms. Phillips asserts, by analogy to the contract law principle of contra
proferentem, that any ambiguity in paragraph 30(a) should be construed against the
agency because the agency wrote the guidelines. Contract law principles, however, do
not apply in this case. Instead, under the principle of deference to an agency’s
04-3083 8
interpretation of its own regulations, we defer to the agency’s interpretation unless “it is
plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945); see also James v. Office of Pers. Mgmt., 372 F.3d 1365,
1369 (Fed. Cir. 2004); Torrington Co. v. United States, 156 F.3d 1361, 1363-64 (Fed.
Cir. 1998). Since the agency’s interpretation is neither plainly erroneous nor
inconsistent with the guidelines, we agree that the Board correctly adopted the agency’s
interpretation of paragraph 30(a) in upholding Ms. Phillips removal, and we therefore
affirm the Board’s decision.
04-3083 9