Carley v. Department of the Army

• Decision Date: 28 June 2005
• Docket Number: No. 04-3300.,04-3300.
• Parties: Michael CARLEY, Petitioner, v. DEPARTMENT OF THE ARMY Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

413 F.3d 1354

Michael CARLEY, Petitioner, v. DEPARTMENT OF THE ARMY Respondent.

No. 04-3300.

United States Court of Appeals, Federal Circuit.

DECIDED: June 28, 2005.

Neil C. Bonney, Bonney & Allenberg, PC, of Virginia Beach, Virginia, for petitioner.

Joshua E. Gardner, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief was Daniel M. Kininmonth, Trial Attorney, Litigation Division, United States Department of the Army, of Fort Knox, Kentucky.

Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge NEWMAN.

CLEVENGER, Circuit Judge.

Michael Carley seeks review of the final decision of the Merit Systems Protection Board ("Board") dismissing his appeal. See Carley v. Dep't of Def., No. CH0752020752-I-1, 96 M.S.P.R. 63, 2004 WL 716787 (M.S.P.B. March 29, 2004). Because Mr. Carley cannot establish the jurisdiction of the Board, we affirm.

I

Mr. Carley was employed in Fort Knox, Kentucky, by the Department of the Army ("agency") as a grade WG-08 Industrial Equipment Control Repairer. The agency informed Mr. Carley that his position was slated to be abolished and that he would be subject to a reduction in force ("RIF"). In December 2000, in lieu of the RIF, Mr. Carley chose to participate in a voluntary Mock RIF and registered for placement under the Department of Defense's Priority Placement Program ("PPP"). Participation in the PPP meant that Mr. Carley could avoid the possible adverse consequences of the proposed Fort Knox RIF. In January 2001, a formal RIF was noticed at Fort Knox.

Under the PPP, Mr. Carley was offered a WG-05 position with the Department of the Navy in Norfolk, Virginia, as a Utility Systems Repairer. At that time, the agency was obligated by regulation to inform Mr. Carley whether the position in Norfolk was under study for elimination. If the position was subject to a study for elimination, Mr. Carley could reject the offer and remain in the PPP, but if the position was not under study, Mr. Carley was obligated to accept the placement or be removed from the PPP. Personnel informed Mr. Carley that the Norfolk position was not under study for elimination, and on March 11, 2001, Mr. Carley chose to accept the assignment with the retained grade and pay of his WG-08 Fort Knox position for two years, rather than be removed from the PPP. The formal RIF in Fort Knox became effective on June 2, 2001.

On April 25, 2002, after Mr. Carley had been at Norfolk for over a year, the agency announced a RIF that included Mr. Carley's new position. Contrary to the information given to Mr. Carley, the position in Norfolk was under study for elimination at the time it was offered to Mr. Carley. However, through inadvertent error, the registering activity at the Fort Knox Civilian Personnel Office was not provided this information, and consequently Mr. Carley did not know that the Norfolk position he accepted was under consideration for elimination. As a result of the formal RIF at Norfolk, Mr. Carley was placed in a WG-01 grade position with saved grade and pay from Fort Knox on July 28, 2002.

On September 2, 2002, Mr. Carley appealed to the Board his March 11, 2001, placement at Norfolk, citing his wish to return to Kentucky. He did not challenge the legality of either the Fort Knox or the Norfolk RIF but asserted that he would not have accepted the Norfolk position under the PPP if he had been told that the Norfolk position was under review for elimination.

While his appeal to the Board was pending and he was still in saved grade and pay status, Mr. Carley voluntarily accepted a promotion to a WG-08 position in Norfolk on October 6, 2002. This promotion was unrelated to a RIF or PPP. On December 9, 2002, based on this promotion an administrative judge ("AJ") dismissed Mr. Carley's case as moot on the ground that there was no relief that could be afforded to him because he had not suffered any reduction in grade or pay. Carley v. Dep't of Def., No. CH0752020752-I-1 (M.S.P.B. Dec. 9, 2002). The AJ did not address whether the Board had jurisdiction. The full Board denied review on March 29, 2004. Carley v. Dep't of Def., No. CH0752020752-I-1, 96 M.S.P.R. 63, 2004 WL 716787 (M.S.P.B. March 29, 2004). Mr. Carley timely sought review in this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II

This court will not overturn an appeal from a decision of the Board unless the Board's decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000). This court reviews questions of law and determinations of jurisdiction without deference to the Board. Diefenderfer v. Merit Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed.Cir. 1999).

The Board has jurisdiction over only those actions which are made appealable to it by law, rule, or regulation. 5 U.S.C. §§ 1204(a)(1), 7701(a) (2000); Butler v. Soc. Sec. Admin., 331 F.3d 1368, 1372 (Fed.Cir.2003). A challenge to the Board's jurisdiction may be made at any time, even on appeal. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).

III

Mr. Carley asserts that the Board had jurisdiction over his case under 5 U.S.C. § 7513. As the government points out, the grant of jurisdiction to the Board under section 7513 is limited to the specific adverse actions denominated in Subchapter II of Title 5, as listed in section 7512. These adverse actions include a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, and a furlough of 30 days or less. 5 U.S.C. § 7512 (2000).

Section 7512 also expressly excludes actions arising from a reduction in force under section 3502 of Title 5. However, the Board does have jurisdiction to hear appeals for certain actions arising from a reduction in force, i.e. "[a]n employee who has been furloughed for more than 30 days, separated, or demoted by a reduction in force action may appeal to the Merit Systems Protection Board." 5 C.F.R. § 351.901 (2005). But Mr. Carley does not assert that he has been subjected to these actions under the RIF. Rather, Mr. Carley's complaint is that he has been denied a transfer back to Fort Knox. He does not contest the Board's statement that he has been promoted to a position with the same grade and same pay, and that in the interim he received the same pay in his saved grade and pay position. Instead, he argues that the government's erroneous information on the Norfolk position led him to accept the transfer, and but for that error he would still be in Fort Knox. According to Mr. Carley, "[h]indsight establishes that the reduction in force [at Fort Knox] most probably would have ended in his successful placement." (Appellant's Br. at 6.) He requests to be sent back to Fort Knox so that the agency can "reconstruct what would have become of him [under the Fort Knox RIF] based on his priority placement rights." (Id. at 11.) In essence, Mr. Carley complains of his transfer from Kentucky to Virginia and seeks as relief his return to Kentucky.

We have held as a general proposition that reassignment or transfer, absent an underlying action over which the Board has jurisdiction, does not provide the Board with jurisdiction.¹ See Brewer v. Am. Battle Monuments Comm'n, 779 F.2d 663, 664 (Fed.Cir.1985); Manning v. Merit Sys. Prot. Bd., 742 F.2d 1424, 1427 (Fed. Cir. 1984); Thomas v. United States, 709 F.2d 48, 50 (Fed.Cir.1983). This court has been clear: "[A]llegations of a reassignment without change of grade or pay do not provide a basis for MSPB jurisdiction." Manning, 742 F.2d at 1427.

Although not advanced by Mr. Carley himself, the government's brief suggests a possible avenue of jurisdictional authority for Mr. Carley. The actions complained of in this case occurred in a PPP, but the regulation that provides for jurisdiction of the Board in RIF actions may apply. The Office of Personnel Management ("OPM") has allowed agencies to use PPP procedures in lieu of formal RIFs for Reemployment Priority List ("RPL") rights under 5 U.S.C. § 3315. OPM has promulgated RPL regulations that state:

(c) An agency need not maintain a distinct RPL for employees separated by reduction in force if the agency operates a placement program for its employees and obtains OPM concurrence that the program satisfies the basic requirements of this subpart. The intent of this provision is to allow agencies to adopt different placement strategies that are effective for their particular programs yet satisfy legal entitlements to priority consideration in reemployment.

5 C.F.R. § 330.201(c) (2005). Under this theory, if an agency chooses to use a PPP in lieu of RPL rights, the PPP implicitly serves the purpose of protecting RPL rights. RPL appeal rights are provided for in the regulations:

An individual who believes that his or her reemployment priority rights under this subpart have been violated because of the employment of another person who otherwise could not have been appointed properly may appeal to the Merit Systems Protection Board under the provisions of the Board's regulations.

5 C.F.R. § 330.209 (2005).

The Board has found that it possesses jurisdiction to review violations of reemployment priority rights under a PPP when an agency maintains a PPP in lieu of a distinct RPL. Stuck v. Dep't of the Navy, 72 M.S.P.R. 153, 156-58 (1996), overruled in nonrelevant part by Sturdy v. Dep't of the Army, 88 M.S.P.R. 502, 510 n. 4 (2001). The Board in Stuck determined that the evidence established that the agency had chosen to use a PPP in lieu of...