NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3062 MARTHA RANGEL, Petitioner,

v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Gony F. Goldberg , Assistant General Counsel, Amer ican Federation of Government Employees, AFL-CIO, of Washi ngton, DC, argued for petitioner. Claudia Burke , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washingt on, DC, argued for respondent. With her on the brief were Gregory G. Katsas , Assistant Attorney Gener al, Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Appealed from: Arbitrator DecisionNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3062 MARTHA RANGEL, Petitioner,

v. DEPARTMENT OF HOMELAND SECURITY, Respondent.

Petition for review of an arbitrator’s decision in FMCS No. 060301-02312-3 by Don B. Hays.

______________________________ DECIDED: February 10, 2009

______________________________

Before RADER, FRIEDMAN , and BRYSON, Circuit Judges

. PER CURIAM. A former government employ ee challenges an arbitrator’s affirmance of her removal for inadequate performance. She contends that the Office of Personnel Management (“OPM”) had not approved her agency’s performance appraisal system, which OPM was required to do before t he agency could use the system. We hold, however, that she failed adequately to raise this point in the arbitration proceedings, and therefore cannot assert it her e. We therefore affirm th e arbitrator’s decision upholding her removal.I The appellant Martha Rangel was employ ed as a computer specialist by the United States Customs and Border Patrol (“Border Patrol”), a part of the Department of Homeland Security. Her supervisor viewed Rangel’s work as unsatisfactory, and Rangel considered her supervisor incompetent. In August 2004, Rangel was placed on a 60 -day performance improvement plan. Thereafter her supervisor told Rangel t hat her performance had not improved and gave her a detailed written statement of her deficiencies. The Border Patrol subsequently removed her for unacceptable performance in three critical elements of her position. To challenge her removal, Rangel’s union invoked the arbitration appeal provisions of the collective bargaining agreement. After a hearing, at which Rangel was represented, the arbitrator denied the appeal. In an 84-page opinion, which discussed the evidence in detail, the arbitrator concluded that the agency had proved by substantial evidence that Ran gel’s “performance was unsatisfa ctory, in one or more of the designated critical elem ents of her performance work plan, during the designated (bona fide) trial period of August 31, 2004, through Oct ober 31, 2004, and that her removal was not pretextual for discrimin atory intent by agency management.” The arbitrator also ruled that the agency had “offered preponderant proof that its performance appraisal system had been previously approved by the OPM.” Before this court Rangel challenges only the la tter, but not the former ruling. This court reviews an arbitrator’s decis ion in Federal employment disputes “under the same standard of revi ew that is applied to decisio n[s] from the Merit Systems

2008-3062 2Protection Board.” Giove v. Dep’t of Transportation , 230 F.3d 1333, 1338 (Fed. Cir. 2000); see 5 U.S.C. § 7121(f).
II Under governing statutes and OPM regulat ions, federal agencie s are required to “develop” performance appraisal systems that “provide for periodic appraisals of job performance of employees” and that permit “re moving employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance,” and OPM is required to approv e such systems before agencies may use them. 5 U.S.C. § 4302(a)(1), (b)(1 ),(3), (b)(6); 5 C.F.R. § 430.210. In the arbitration proceedings, Rangel made the following statements about OPM’s approval of her agency’s performance appraisal system: On the second day of the hearing, Rang el’s representative stated that “the question of an approved performance appraisal system” is “not really a threshold issue. I just assume they have some evidence of that approval.” After Rangel stated that “the agency must specifically show” approval of the system she further “suggest[ed]” that “as part of their prima facie case to prove res ponsibility”, the agency must show that it is “operating under” “an approved system.” On the last day of the hearing, Rangel’s repr esentative stated: I just wanted to mention again, it ’s one of our issues . . . Can the Agency show that its per formance appraisal system has been approved by OPM. . . . When the arbitrator told R angel’s representative that “[y] ou can raise it as part of your brief,” she responded: “we will.” She then stated:

2008-3062 3I’m simply raising it now so t hat if counsel wants to attempt to secure evidence of such ap proval, he is on notice that he can do it. In her post-hearing brief, Rangel reiter ated that on the la st hearing day “we raised . . . again” “the issue of whether the agency has an OPM approved performance appraisal system . . . so that agency coun sel would be on notice that he needed to secure evidence of such approval.” In its brief, the government included two letters in which OPM approved the performance appraisal system. In the first lette r, dated February 13, 1996, addressed to the Treasury Department, OPM “approved” “a new performance appraisal system for the Department of the Treas ury.” The second letter, dated November 17, 2003 and addressed to the Department of Homel and Security, “approved” “a performance appraisal system (PAS) for t he Department of Homeland Secu rity (DHS). The system will apply to all agency non-SES employees , other than” specified “excluded” employees. It is unclear from the record exactly under which performance appraisal system Rangel was evaluated and remov ed. Prior to the Homeland Security Act of 2002, the Border Patrol, for which she worked, was part of the Immigrati on and Naturalization Service, which in turn was part of the De partment of Justice. Under the Homeland Security Act, the Border Patrol was combi ned with certain functions of the Customs Service to form the United Stat es Customs and Bor der Patrol, which became part of the Homeland Security Department. The Border Patrol evaluated Rangel’s annual performance under the standards of a Department of Justice appraisal system, which also were the standards under her

2008-3062 4performance improvement plan. It is unclear when Rangel referr ed to her “Agency’s” performance evaluation system in her statements to the ar bitrator, whether she was referring to the Department of Justice system, or to the Border Patrol or the Department of Homeland Security system. What is clear is that her evaluati on in 2004 (apparently based on Department of Justic e standards) was made by the Border Patrol, then a part of the Department of Homeland Security , whose system OPM had approved in 2003. In his opinion, the arbitrator rejected Rangel’s contention that OPM had not approved her agency’s performance appraisal syst em. He ruled that “the agency was never placed on timely notice of its obligation to offer proof on such issues until after the evidence phrase of the trial had essentially been completed. It was only at that late hour that agency counsel, and this arbitrator, were put on reasonable notice of this procedural issue having become a pivotal part of Rangel’s defensive scheme.” He “consider[ed] the agency’s unr efuted and unchallenged docum entary evidence [in its brief] to be relevant, admissible and disposit ive of the grievant’s (OPM) procedural challenge.”
III The Merit Systems Protection Board has ruled that, in def ending an employee’s removal, the agency is required to show that OPM has approved its performance appraisal system only if “an appe llant alleges that there is reason to believe that an agency is not in compliance with the law.” Daigle v. Dep’t of Veterans Affairs , 84 M.S.P.R. at 630-31 (1999); see also Dobson v. Dep’t of the Navy , ___ Fed. Appx. ____, 2008 WL 2796394 (Fed. Cir. )*4 (unpubl ished decision, citing Daigle ). Daigle changed the Board’s practice, which theretofore had required the a gency always to show, as part

2008-3062 5of its case supporting its empl oyee-disciplinary action, OPM prior approval of its system. The Board made this change so as not “to perpetuate an outmoded paperwork requirement.” This court has not decided whether a fo rmer federal employee may challenge her removal for inadequate performance on the ground that OPM had not approved her agency’s performance appraisal system. We need not resolve that issue here because, even under the Board’s Daigle principle, Rangel would not prevail in her lack-of-OPMapproval contention. During the extensive hearing before the ar bitrator, Rangel never “allege[d] that there is reason to believe that [her] agen cy was not in compliance with the law,” i.e. , that it was operating under a per formance appraisal system t hat OPM had not approved. Although she stated that t here was an issue whether the agency had an OPM-approved performance appraisal system, she never alleged that “there is reason to believe” that the agency did not have such a system. That allegation, howeve r, is what Daigle requires before an agency is ob ligated to show such approval . Indeed, it appears that Rangel was invoking t he Board’s pre-Daigle standard that the agency was always required to show OPM approval as part of its defense of its adverse employment action. Rangel has not properly raised the OPM-approval issue in this case, and we decline to consider that issue. Our conclusion also is fatal to Rangel’s specific challenges to the arbitrator’s decision. Rangel cont ends that she was denied a fair hearing and Due Process when the arbitrator reopened the re cord and admitted into ev idence the two OPM-approval letters included in the government’s brief. She argues that this procedure denied her a

2008-3062 62008-3062 7 fair opportunity to object to the government’s documents or to present countervailing evidence or argument on the issue. For the reasons given, however, the challenges to the validity of those letters to support her removal are not pr operly before us. In any ev ent, as noted, on the final hearing day Rangel invited the agency to s ubmit evidence showing OPM approval. Moreover, during the four m onths between the filing of t he government’s brief and the issuance of the arbitrator’s opi nion, Rangel did not attempt to submit to the arbitrator any evidence that contravened the government ’s submission, or any argument why the two letters the government submitted did no t establish OPM’s approval of her agency’s performance appraisal system. T here is no reason to believe that if she had sought to make such a filing, the arbitrator would have refused to accept or consider it. For similar reasons, we also decline to consider Rangel’s contention that the arbitrator’s ruling that t he OPM letters have established that OPM had approved her agency’s performance appraisal system was not supported by substantial evidence. CONCLUSION The decision of the arbitrator upholding Rangel’s removal is
AFFIRMED

.