793 F.2d 284 (Fed. Cir. 1986), 85-2444, Huber v. Merit Systems Protection Bd.

Docket Nº:Appeal Nos. 85-2444, 85-2469 and 85-2470.
Citation:793 F.2d 284
Party Name:Stewart G. HUBER, Myron A. Maiewski, John F. Apitz, Billy R. Burke, William F. Burnette, Brian D. Burns, Larry E. Dahl, and J. Fred King, Petitioners, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
Case Date:June 05, 1986
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 284

793 F.2d 284 (Fed. Cir. 1986)

Stewart G. HUBER, Myron A. Maiewski, John F. Apitz, Billy R.

Burke, William F. Burnette, Brian D. Burns, Larry

E. Dahl, and J. Fred King, Petitioners,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent.

Appeal Nos. 85-2444, 85-2469 and 85-2470.

United States Court of Appeals, Federal Circuit

June 5, 1986

Page 285

        Walter H. Fleischer, Cole & Groner, P.C., Washington, D.C., argued for petitioners. With him on brief was Alfred F. Belcuore.

        Paul Streb, Merit Systems Protection Bd., Washington, D.C., argued for respondent. With him on brief were Evangeline W. Swift, General Counsel, Mary L. Jennings, Associate General Counsel for Litigation and David C. Kane, Reviewer for Litigation.

        Before MARKEY, Chief Judge, and FRIEDMAN and NEWMAN, Circuit Judges.

        PAULINE NEWMAN, Circuit Judge.

        Petitioners appeal 1 the decision of the Merit Systems Protection Board ("Board"), which dismissed petitioners' appeals for lack of jurisdiction. For the reasons that follow, we affirm the decision of the Board.

Background

        Petitioners were employed either as State Executive Directors of the Agricultural Stabilization and Conservation Service or as State Directors of the Farm Home Administration, U.S. Department of Agriculture ("agency"). Petitioners held Schedule A excepted service appointments, without veterans preference ("non-preference eligible"). 5 C.F.R. Sec. 6.2 states that:

Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be listed in Schedule A.

        On March 23, 1981, the President issued Executive Order 12300, 46 Fed.Reg. 18,683 (1981), reprinted at 5 U.S.C. Sec. 3301 note (1982), which amended 5 C.F.R. Sec. 6.8 to include a new subsection:

        (c) Within the Department of Agriculture, positions in the Agricultural Stabilization and Conservation Service the incumbents of which serve as State Executive Directors and positions in the Farmers Home Administration the incumbents of which serve as State Directors or State Directors-at-Large shall be listed in Schedule C for all grades of the General Schedule.

        5 C.F.R. Sec. 6.2 states that:

Positions of a confidential or policy-determining character shall be listed in Schedule C.

        Petitioners were informed by notice issued March 25, 1981 that as a result of the Executive Order their Schedule A positions had been abolished, and that they would be separated by a reduction in force ("RIF") action, effective May 1, 1981. Petitioners were also advised of their right to appeal the RIF to the Board in accordance with Part 351 of 5 C.F.R.

        The appeals of these non-preference eligible petitioners were consolidated before the Board with appeals of the preference eligible employees who had been separated from the same category of positions in the same RIF action. At the hearing before the Chief Administrative Law Judge (ALJ), all appellants asserted that the RIF was invalid because their positions had not actually been abolished, and that they had been separated for political reasons contrary to the First Amendment right of freedom of association.

        The preference eligible appellants further asserted that the RIF was devised by the agency to deprive them of their rights as veterans, 5 U.S.C. Sec. 7511(a)(1)(B).

Page 286

These appellants argued that had the agency's action been a removal rather than a RIF, they could have been separated only for cause in conformity with 5 U.S.C. Sec. 7513.

        The agency argued that all the appellants' Schedule A positions had become redundant when they were replaced with the new Schedule C positions, and that this constituted a reorganization or reclassification within the RIF regulations. The agency further asserted, in the alternative, that if a RIF had not occurred...

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