Barry v. Office of Personnel Management

• Decision Date: 15 April 1992
• Docket Number: No. 92-3032,92-3032
• Citation: 965 F.2d 1064
• Parties: NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. William R. BARRY, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1064

965 F.2d 1064

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

William R. BARRY, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 92-3032.

United States Court of Appeals, Federal Circuit.

April 15, 1992.

Before PLAGER, Circuit Judge, BENNETT, Senior Circuit Judge, and LOURIE, Circuit Judge.

DECISION

PER CURIAM.

Petitioner Barry appeals the decision of the Merit Systems Protection Board, Docket No. SF07319110155, September 11, 1991, that he was not suitable for employment as an air traffic control specialist with the United States Marine Corps Air Station, El Toro, California. The President's directive of December 9, 1981, stated that the discharged air controllers should not be deemed suitable for employment in positions within the scope of their former positions with the FAA. See also 5 U.S.C. § 7311(3) (1988). The Office of Personnel Management (OPM) found Barry ineligible because he had been removed from his position as an air traffic controller by the Federal Aviation Administration for participation in the illegal strike against the United States in August 1981. On March 1, 1991, after a hearing which was held at Barry's request, the administrative judge affirmed the OPM's decision. This decision became final when the full board declined review for failure to meet the criteria for review. 5 C.F.R. § 1201.115 (1991). We affirm.

DISCUSSION

The appeal contends that OPM had no jurisdiction to rule on Barry's suitability because he sought a transfer to the position at El Toro, California, and that this is an action excluded from OPM review under 5 C.F.R. § 731.301(a)(1)(i), (vi). The trouble with this view is that the President's directive of December 9, 1981, effectively vested OPM with authority to determine suitability of the discharged air traffic controllers in all situations, including transfers. In other words, the President's directive overrode or superseded the regulation. Korte v. Office of Personnel Management, 797 F.2d 967, 970 (Fed.Cir.1986). The directive clearly instructs OPM to apply the standards and procedures of 5 C.F.R. § 731 only when the application is for a position outside the scope of an air traffic controller's prior position with the FAA. Any other reading of the...