A. Marie Phillips v. Gen. Servs. Admin., 917 F.2d 1297 (Fed. Cir. 1990). · Go Syfert
A. Marie Phillips v. Gen. Servs. Admin., 917 F.2d 1297 (Fed. Cir. 1990). Cases Citing This Book View Copy Cite
16 citation events (12 in the last 25 years) across 5 distinct courts.
Strongest positive: Ortiz v. Mayorkas (casd, 2023-05-11)
Top citers, strongest first. 13 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Ortiz v. Mayorkas
S.D. Cal. · 2023 · quote attribution · 1 verbatim quote · confidence high
the 24 federal circuit has held that merit system principles do not provide an independent cause 25 of action, but are used to interpret laws, rules, or regulations that are asserted to be violated 26 by government personnel.
examined Cited as authority (verbatim quote) Perez v. Department of Justice (4×) also: Cited as authority (rule)
Fed. Cir. · 2007 · quote attribution · 2 verbatim quotes · confidence high
merit systems principles can be used to interpret a law, rule, or regulation asserted to be violated by a government agency personnel practice.
cited Cited as authority (rule) Burch v. United States
Fed. Cl. · 2011 · confidence medium
Admin., 917 F.2d 1297, 1298 (Fed.Cir.1990). 2 If a plaintiff can prove that a regulation issued pursuant to merit system principles was violated, he may be entitled to relief.
cited Cited as authority (rule) Wheaton v. Merit Systems Protection Board
Fed. Cir. · 2008 · confidence medium
Admin., 917 F.2d 1297, 1298 (Fed.Cir.1990).
cited Cited as authority (rule) Miller v. Merit Systems Protection Board
Fed. Cir. · 2006 · confidence medium
Admin., 917 F.2d 1297, 1298 (Fed.Cir.1990).
cited Cited as authority (rule) Fargo v. Social Security Administration
Fed. Cir. · 2003 · confidence medium
Admin., 917 F.2d 1297,1298 (Fed.Cir.1990).
discussed Cited as authority (rule) Calvin J. Weber v. Merit Systems Protection Board
Fed. Cir. · 1996 · confidence medium
Admin., 917 F.2d 1297, 1298 (Fed.Cir.1990) (violation of a merit system principle, even an alleged constitutional violation, does not create a direct cause of action before the Board). 6 Weber cites Saul v. United States, 928 F.2d 829 (9th Cir.1991), in support of his claim that the Board may hear such cases.
cited Cited as authority (rule) Albert A. Waters v. Merit Systems Protection Board
Fed. Cir. · 1996 · confidence medium
Admin., 917 F.2d 1297, 1298 (Fed.Cir.1990). 1 In Phillips, we cited Department of Treasury v. Federal Labor Relations Auth., 837 F.2d 1163, 1167 (D.C.Cir.1988).
discussed Cited as authority (rule) Carmen O. De Rivera v. Merit Systems Protection Board
Fed. Cir. · 1996 · confidence medium
Admin., 917 F.2d 1297, 1298 (Fed.Cir.1990). 6 De Rivera is correct that 5 U.S.C. § 1204 (f)(2) grants the Board original jurisdiction to determine whether a regulation adopted by the Office of Personnel Management, either on its face or as implemented, resulted or would result in a prohibited personnel practice.
cited Cited as authority (rule) Mitchell v. Espy
D. Kan. · 1994 · confidence medium
Phillips v. General Services Administration, 917 F.2d 1297, 1298 (Fed.Cir.1990).
cited Cited "see" Albert W. Morton v. Social Security Administration
MSPB · 2015 · signal: see · confidence high
Id.; see Phillips v. General Services Administration, 917 F.2d 1297, 1298 (Fed.
cited Cited "see" Hauschild v. United States
Fed. Cl. · 2002 · signal: see · confidence high
See Phillips v. GSA, 917 F.2d 1297, 1298 (Fed.Cir.1990) (merit systems principles do not provide independent cause of action nor basis for jurisdiction).
cited Cited "see, e.g." Christopher Freeman v. Department of Veterans Affairs
MSPB · 2023 · signal: see, e.g. · confidence medium
See, e.g., Phillips v. General Services Administration, 917 F.2d 1297, 1298 (Fed.
Retrieving the full opinion text from the archive…
A. Marie PHILLIPS, Petitioner,
v.
GENERAL SERVICES ADMINISTRATION, Respondent
90-3228.
Court of Appeals for the Federal Circuit.
Oct 25, 1990.
917 F.2d 1297
Peter B. Broida, Cohen, Broida & Associates, Arlington, Va., argued, for petitioner., Anthony G. Anikeeff, Attorney, Commercial Litigation Branch, Dept, of Justice, Washington, D.C., argued, for respondent. With him on the brief were Stuart M. Ger-son, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director.
Markey, Newman, Clevenger.
Cited by 14 opinions  |  Published
MARKEY, Circuit Judge.

Phillips appeals from a Merit Systems Protection Board (board) denial of her Motion For Compliance. We AFFIRM.

I. BACKGROUND

The facts forming the background of this appeal are set out in Phillips v. General Services Admin., 878 F.2d 370, 371-74, (Fed.Cir.1989), wherein this court held that the government wrongfully demoted Ms. Phillips and ordered the board to direct the General Services Administration (GSA) to restore her position, back pay, and benefits. The “Federal Times” newspaper published an article about the case entitled “Insubordination Ruled Invalid Where ‘Check Was[*1298] In the Mail’ The article recounted, with some editorializing, the facts appearing in this court’s opinion.

GSA circulates a newsletter called “What’s News” to its employees. One such newsletter, dated July 25, 1989, had appended to it copies of ten articles from various publications including a group of five from the “Federal Times”. Within the “Federal Times” group was the “Insubordination” article.

Six weeks later, on September 12, 1989, the board issued an Order directing GSA to return Ms. Phillips to her former GS-13 position and to award her back pay and other benefits.

On September 18, 1989 Phillips filed a “Motion for Compliance” demanding that GSA publish a retraction of the “What’s News” article, give Phillips a written apology, and notify all employees of GSA’s commitment to employee privacy. The board denied the Motion and determined that it had no jurisdiction to consider whether circulation of the “What’s News” article violated a merit systems “principle”.

II.ISSUE

Whether the board denial of Phillips’ motion was arbitrary, capricious, otherwise not in accordance with the law, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1978).

III.OPINION

Ms. Phillips argues that the GSA’s circulation of the “What’s News” article violated this court’s mandate in Phillips v. GSA or the board’s Order. The circulation, however, could not have violated either, for both occurred well after the date of the circulation.

Ms. Phillips contends that the return to the status quo required by the Order, Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed.Cir.1984), necessitated board action to remedy “unwarranted” publicity. The board noted GSA’s contention that Ms. Phillips was not harmed by the article because it was accurate and generally favorable to her in reporting this court’s decision that she was wrongfully terminated. Indeed, GSA’s circulation of a truthful newspaper article about a court decision involving its employee cannot be considered unwarranted. Moreover, Ms. Phillips’ requested remedies suggest impossibility. Even if appropriate (and it is not), an apology for the circulation, if directed only to Ms. Phillips, would not counteract any effect of that circulation. An apology made public would only draw more of the attention Ms. Phillips says she does not want. A published retraction of the “What’s News” article would also draw more attention. A notice to all GSA employees that was specific to Ms. Phillips would likewise further publicize the facts of the case. A notice that was not specific to Ms. Phillips would in no way counteract past publicity of her case.

Lastly, Ms. Phillips asserts that the board erred as a matter of law in holding that merit systems principles, 5 U.S.C. § 2301, do not in themselves provide an independent cause of action or an independent basis for jurisdiction and cannot be considered in the absence of a violated law, rule, or regulation. Department of Treasury v. Federal Labor Relations Auth., 837 F.2d 1163, 1167-68 (D.C.Cir.1988). Merit systems principles can be used to interpret a law, rule, or regulation asserted to be violated by a government agency personnel practice. Wilburn v. Department of Transp., 757 F.2d 260, 262 (Fed. Cir.1985). Contrary to Ms. Phillips assertion, Wilburn does not hold that a violation of merit systems principles can create a cause of action. In Wilburn, our decision was based on a violation of reduction-in-force regulations. Because the circulation of “What’s News” was not a violation of a law, rule, or regulation, it did not constitute an action appealable to the board and the board correctly refused to consider whether the circulation may have violated a merit systems principle.

IV.CONCLUSION

Ms. Phillips has failed to show that denial of her motion was arbitrary, capricious,[*1299] contrary to law, or unsupported by substantial evidence.

AFFIRMED.