Noble v. Tennessee Valley Authority

• Decision Date: 22 December 1989
• Docket Number: No. 88-3436,88-3436
• Parties: 52 Empl. Prac. Dec. P 39,528 George NOBLE, Petitioner, v. TENNESSEE VALLEY AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1013

892 F.2d 1013

52 Empl. Prac. Dec. P 39,528

George NOBLE, Petitioner, v. TENNESSEE VALLEY AUTHORITY, Respondent.

No. 88-3436.

United States Court of Appeals, Federal Circuit.

Dec. 22, 1989.

Jay E. Emerson, Jr., Higgs & Conchin, Huntsville, Ala., for petitioner.

Ronald E. Klipsch, Tennessee Valley Authority, Knoxville, Tenn., for respondent. With him on the brief were Edward S. Christenbury, General Counsel, Justin M. Schwamm, Sr., Asst. General Counsel and Harriet A. Cooper, Sr. Litigation Atty.

Before MARKEY, Chief Judge, RICH, NIES, NEWMAN, BISSELL, ARCHER, MAYER and MICHEL, Circuit Judges, and BENNETT and FRIEDMAN, ^* Senior Circuit Judges.

ORDER

ARCHER, Circuit Judge.

This petition for review arises from the decision of the Merit Systems Protection Board (MSPB or Board), Docket No. AT03518810283 (June 24, 1988), sustaining the separation of George Noble by reduction-in-force (RIF) from the Tennessee Valley Authority (TVA).

A. Noble, a "preference eligible" as defined by 5 U.S.C. § 2108 (1988), was employed by the TVA at its Bellefonte Nuclear Plant in Hollywood, Alabama, until August 30, 1985, when he and eighteen other cement masons in his competitive level were separated by RIF. Noble challenged his separation by filing an Equal Employment Opportunity (EEO) complaint within the TVA alleging that he had been discriminated against on the basis of both age and race. Following the agency's denial of his EEO complaint on February 10, 1988, Noble appealed to the MSPB on the grounds set forth in his EEO complaint and, as well, alleging that the TVA had illegally failed to recognize and honor his reemployment rights under the Veterans' Preference Act of 1944 (VPA) (codified at 5 U.S.C. §§ 1302, 2108, 3305, 3308-3318, 3320, 3351, 3363, 3501-3504, 7511-7513, and 7701 (1988)). Noble's claim to reemployment rights relates to the failure of TVA to rehire him in October 1985.

The Board characterized Noble's appeal as a challenge to the bona fides of the agency's RIF action and, after finding the agency's procedures to be in accordance with law, denied Noble's appeal. Although Noble specifically raised the issue, the Board did not consider his claim that the TVA had violated his reemployment rights under 5 U.S.C. § 3315 (1988).

In this court, Noble has abandoned his discrimination claims, instead basing his petition solely on the failure of the MSPB to require the TVA to honor his reemployment rights under the VPA. Accordingly, this is no longer a "mixed" case and jurisdiction over this matter lies, if at all, in this court. See 5 U.S.C. § 7703(b)(1) (1988); 28 U.S.C. § 1295(a)(9) (1982); cf. 5 U.S.C. § 7703(b)(2) (1988); Williams v. Department of Army, 715 F.2d 1485 (Fed.Cir.1983) (in banc) (Federal Circuit has no jurisdiction to review MSPB decisions involving discrimination claims).

B. Our appellate jurisdiction is governed by 28 U.S.C. § 1295 (1982) which states, in part, that this court has "exclusive jurisdiction ... of an appeal from a final order or final decision of the [MSPB], pursuant to sections 7703(b)(1) and 7703(d) of title 5[.]" 28 U.S.C. § 1295(a)(9). Implicit in this grant of authority, however, is the limitation that we may review the Board's decisions regarding only those matters over which the Board itself has subject matter jurisdiction. Maddox v. Merit Sys. Protection Bd., 759 F.2d 9, 10 (Fed.Cir.1985); see also P. Broida, A Guide to Merit System Protection Board Law & Practice 1487 (1989) ("It is significant in determining whether the Federal Circuit has jurisdiction in an appeal to first determine whether the Board properly has jurisdiction...."). Therefore, unless the MSPB was authorized to consider Noble's claim that the TVA violated his VPA reemployment rights, we are without power to entertain his petition for review on that issue.

As we have often stated, the MSPB has no jurisdiction except that granted to it by "law, rule, or regulation." 5 U.S.C. § 7701(a) (1988); see, e.g., Manning v. Merit Sys. Protection Bd., 742 F.2d 1424, 1426 (Fed.Cir.1984); Thomas v. United States, 709 F.2d 48, 49 (Fed.Cir.1983); cf. Lackhouse v. Merit Sys. Protection Bd., 773 F.2d 313, 315-16 (Fed.Cir.1985). A general listing of the Board's subject matter jurisdiction is set forth in 5 C.F.R. § 1201.3(a) (1989).

In this case, Noble has cited no "law, rule, or regulation" authorizing an appeal to the MSPB by a preference eligible seeking reemployment by the TVA based on an alleged violation of his priority rights under the VPA, and none exists. While the TVA is required by statute to honor the reemployment priority rights of preference eligibles pursuant to the VPA, see 5 U.S.C. §§ 3315, 3316 and 3320 (1988), neither the VPA nor the regulations promulgated pursuant to the VPA, see 5 U.S.C. § 1302 (1988), contain any provision granting Noble and others similarly situated the right to appeal an alleged violation of these rights to the MSPB.

An appeal to the MSPB by a preference eligible against whom an "adverse action" has been taken under 5 U.S.C. §§ 7511-7513 (1988) is authorized by section 7513(d). These "adverse actions," however, do not include a failure to rehire following separation by RIF. Likewise, the appeal right set forth in 5 C.F.R. § 330.209, which provides that "[a]n individual who believes that his or her reemployment priority rights under this subpart have been violated ... may appeal to the [MSPB]," does not apply to one in Noble's situation. Subpart 330 covers only those individuals seeking reemployment within the "competitive" service, 5 C.F.R. § 330.203, from which the TVA is excepted. See Dodd v. TVA, 770 F.2d 1038, 1040 (Fed.Cir.1985), ¹ (positions within the TVA are within the "excepted," not the "competitive," service). The reemployment and appeal rights set forth in subparts 302, 352, and 353 of 5 C.F.R. similarly do not apply to persons in Noble's status. The provisions of these subparts are tailored to specific factual situations, none of which involves reemployment following separation by RIF from the TVA.

Accordingly, because there is no "law, rule, or regulation" authorizing the Board to adjudicate Noble's alleged violation of his VPA reemployment rights, the Board was without subject matter jurisdiction to consider that portion of his appeal. Because the Board lacked jurisdiction over Noble's VPA reemployment rights, which is the only issue before this court (all other matters raised before the MSPB being abandoned), we, as well, are without jurisdiction over Noble's petition for review. If Congress or the Office of Personnel Management had determined that preference eligibles of Noble's status should be allowed to seek redress of violations of their reemployment rights by appealing to the MSPB, they could have so provided. Neither has done so at this time and we are without authority to prescribe such a procedure.

Accordingly, IT IS ORDERED that the appeal be dismissed.

BENNETT, Senior Circuit Judge, dissenting, with whom FRIEDMAN, Senior Circuit Judge, and NEWMAN, Circuit Judge, join.

I respectfully dissent from the order. As background, petitioner Noble, an employee in the excepted civil service of the United States, 5 U.S.C. § 2103 (1988), with the Tennessee Valley Authority, was separated from his position by a reduction in force no longer contested. He later asserted, but was denied, his right to be rehired pursuant to his entitlements under miscellaneous provisions of the Veterans' Preference Act of 1944 (VPA), as amended, and the Civil Service Reform Act of 1978 (CSRA). See 5 U.S.C. §§ 1302, 3315-3316, 3501 (1988). Hence this appeal. It is uncontested that Noble is a veteran as defined by law, 5 U.S.C. § 2108 (1988), and as such was a preference eligible employee of the government. The fact that he occupied an excepted position is irrelevant to his entitlement as a veteran to preference in hiring, retention, or rehiring over nonpreference employees. Cf. Dodd v. TVA, 770 F.2d 1038, 1041 nn. 6 & 7 (Fed.Cir.1985).

The sweep of veteran's preference law in our society for reemployment of a qualifying veteran is very broad. 38 U.S.C. §§ 2021-2026 (1988). Enforcement of reemployment rights where the employer is a private employer, a state or one of its political subdivisions, can be had by resorting to the authority of a United States district court. 38 U.S.C. § 2022. However, since Noble, a federal government employee, had the status of a preference eligible by reason of military service, he was required to turn to the Merit Systems Protection Board (MSPB) for enforcement of his statutory right to be rehired ahead of those without such statutory preference. In his appeal to the MSPB, petitioner raised the reemployment preference issue four times but the MSPB did not address it. The appeal was disposed of on grounds mentioned in the order, which are no longer in issue. In Noble v. TVA, 876 F.2d 1580 (Fed.Cir.1989), we simply remanded for findings by the MSPB on the merits of the reemployment claim which the Board had not decided.

The order now at issue would prohibit this veteran from establishing his claim on the merits before the MSPB and, implicitly, from review by this court. It does so by contending that Noble could point to no "law, rule, or regulation" which authorizes him to appeal to the MSPB. 5 U.S.C. § 7701(a) (1988). It is submitted here that this is not so. The authorization for Mr. Noble's appeal to the MSPB is the Veterans' Preference Act itself, which gives Mr. Noble his reemployment rights, together with the Civil Service Reform Act, which, as construed by the Supreme Court, establishes the MSPB as the exclusive forum in which those rights can be enforced.

I.

The statutes and regulations demonstrate Congress intended that the MSPB shall have powers essentially exclusive in nature for administrative adjudication of personnel disputes in the government when an agency's action is tested by an employee who believes he has been...