File 2: Opinion of Member Pope
[ v59 p317 ]
Member Pope, dissenting in part:
I agree with the majority that 5 C.F.R. § 430.504(d) applies in this case and that the award is deficient because it is contrary to that regulation. I do not agree, however, that the award should be set aside. I believe that the award should be modified to permit the Agency to review the performance awards directed by the Arbitrator under § 430.504(d).
Modifying -- not setting aside -- the award would be consistent with FDA, the Authority's most recent decision applying § 430.504(d) to an award providing a remedy nearly identical to that in this case. The majority refuses to apply FDA on the ground that it is "inconsistent with the intent of" § 430.504(d), claiming that "the intent of the regulation was to allow an agency to determine on an individualized basis whether to grant performance awards; it did not mean that improperly ordered performance awards should remain intact unless the agency later acted to disapprove them." Majority Opinion at 12 n.14. The majority prefers to apply the Authority's earlier decision in Fort Rucker, which set aside a similar award.
The majority is wrong. Nothing in § 430.504(d) or OPM's interpretation of it suggests that the award in this case may not be modified. In this regard, under the plain wording of § 430.504(d), "[t]he decision to grant a performance award, includi