Roberts v. Department of Army, 98-3246

Decision Date08 February 1999
Docket NumberNo. 98-3246,98-3246
Citation168 F.3d 22
PartiesGregory K. ROBERTS, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Keith E. Kendall, Kendall Miller, P.C., of Harrisburg, Pennsylvania, for petitioner.

Alan J. Lo Re, Trial Attorney, for respondent. On the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Bryant G. Snee, Assistant Director, and Virginia M. Lum, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice.

Before RICH, BRYSON, and GAJARSA, Circuit Judges.

DECISION

RICH, Circuit Judge.

Gregory K. Roberts appeals from the final decision of the Merit System Protection Board (M.S.P.B.), Docket No. PH0330970305-I-1, denying review of the initial decision of the board, which dismissed Roberts claim. Because the MSPB correctly held that it lacked jurisdiction to hear Roberts' claim, we affirm.

BACKGROUND

Roberts is a civilian employee of the Army who held the temporary position of Industrial Radiographer from 1993 to 1996. In 1996, the temporary position that Roberts held was approved for permanent fill. The permanent position was filled by an individual who was on the Department of Defense's Reemployment Priority List ("RPL") and Roberts was returned to the position that he held before he was promoted to the temporary position.

Roberts asserts that because the hired individual needed hundreds of hours of training to perform the job that Roberts was already doing, the individual was not qualified for the position and Roberts, not the individual from the RPL, should have been placed in the permanent position.

Roberts filed an appeal to the MSPB on the grounds that the hiring of the other individual violated RPL regulation 5 C.F.R. § 330.208(a) which requires the placement of only "qualified" individuals. The Administrative Judge dismissed Roberts appeal for lack of jurisdiction reasoning that Roberts was not an RPL Registrant or a Reduction in Force (RIF) casualty and thus did not have a remedy for any misapplication of the RPL regulations. The Administrative Judge's decision became the Board's final decision when the full Board denied Roberts' petition for review. This appeal followed.

DISCUSSION

5 C.F.R. § 330.209 (1998) states that an "individual who believes that his or her reemployment priority rights under this subpart [Reemployment Priority List (RPL) ] 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."

Roberts asserts that a federal employee who was negatively affected by the misapplication of the selection criteria set forth in the RPL regulations, such as himself, has reemployment priority rights and may appeal to the MSPB under 5 C.F.R. § 330.209.

We disagree. 5 C.F.R. § 330.209 by its own language only applies to reemployment rights under Subpart B "Reemployment Priority List (RPL)" See e.g., Colbert v. Department of the Army, 54 M.S.P.R. 492, 496 (1992). 5 C.F.R. § 330.201(a) (1998) defines the Reemployment Priority List as the mechanism agencies use to give reemployment consideration to their former competitive service employees separated by RIF or fully recovered from a compensable injury after more than one year. 5 C.F.R. § 330.202 (1998) provides that only two categories of individuals are eligible to be placed on the Reemployment Priority List. These individuals are those who have been subjected...

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3 cases
  • Nicholas v. Department of Army
    • United States
    • Merit Systems Protection Board
    • 21 Marzo 2016
    ... ... Lionel ... A. Nicholas, APO, AE, pro se ... David ... H. Roberts, Esquire, APO, AE, for the agency ... BEFORE ... Susan Tsui Grundmann, Chairman Mark A. Robbins, Member ... ...
  • Carroll v. Office of Personnel Management, CH-3443-16-0042-I-1
    • United States
    • Merit Systems Protection Board
    • 12 Abril 2016
    ... ... The appellant filed an appeal against the Department of ... Veterans Affairs (DVA) challenging his nonselection for an ... alleged to be unfair or incorrect. Roberts v. Department ... of the Army, 168 F.3d 22, 23-24 (Fed. Cir. 1999) ... ...
  • Montgomery v. Department of Interior, DC-3443-15-1083-I-1
    • United States
    • Merit Systems Protection Board
    • 16 Marzo 2016
    ... ... matters alleged to be incorrect. Roberts v. Department of ... the Army, 168 F.3d 22, 24 (Fed. Cir. 1999) ... ¶7 ... ...

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