United States Court of Appeals for the Federal Circuit

of agency action must limit itself to the basis on which the agency acted. The
reviewing court cannot itself substitute a more satisfying rationale for the one the
agency has chosen. When an agency gives the wrong reason for its action, an
appellate body “...cannot do service for an administrative judgment...(a)n appellate
court cannot intrude upon the domain which Congress has exclusively entrusted to
an administrative agency.” 318 U.S. at 87 (1947) Chenery applies when the
“reviewing body is an administrative tribunal rather than a court.” Horne v.
MSPB, 684 F. 2d 155, 157 (D.C. Cir. 1982) In Horne, the Court held that the
MSPB “should not be in the business of affirming administrative decisions based
on how an agency might have acted if it had followed the proper procedures. The
role of review is to evaluate agency discretion as it has been exercised.” Id. at 157-
158.
This Circuit follows Chenery. The Board may review the employing
agency’s adverse action solely on the grounds the Agency invokes, and may not
substitute what it considers to be a better basis. O’Keefe v. USPS, 318 F.3d 1310,
1315 (Fed. Cir. 2002); Gottlieb v. VA, 39 M.S.P.R. 606, 609 (1989) Here, deciding
official Donzanti impermissibly relied on a rule to judge MacLean’s behavior that
did not exist until years later. The Board’s purported cure wholly ignored both the
Agency and AJ’s precise grounds by substituting what it considered an acceptable
basis, thus avoiding retroactivity. This machination runs smack into Chenery. The
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