Sturdy v. Department of Army

• Decision Date: 13 March 2006
• Docket Number: No. 05-3045.,05-3045.
• Citation: 440 F.3d 1328
• Parties: Jerry C. STURDY, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

440 F.3d 1328

Jerry C. STURDY, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.

No. 05-3045.

United States Court of Appeals, Federal Circuit.

March 13, 2006.

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Sharon K. Weaver, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Inc., of Tulsa, Oklahoma, for petitioner. With her on the brief was James R. Polan.

Nancy M. Kim, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Bryant G. Snee, Assistant Director. Of counsel on the brief was Kathryn McClure, Office of the Staff Judge Advocate, United States Army Field Artillery Center, of Fort Sill, Oklahoma.

Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and SCHALL, Circuit Judge.

SCHALL, Circuit Judge.

Jerry C. Sturdy petitions for review of the final decision of the Merit Systems Protection Board ("Board") that (i) rejected his claim that the Department of the Army ("Army" or "agency") violated his reemployment priority rights in the course of a reduction in force ("RIF") action and (ii) sustained the action of the Army reassigning him from the GS-11 position of Resource Management Specialist at Fort Chaffee, Arkansas, to the GS-11 position of Conservation Specialist at Fort Worth, Texas. Sturdy v. Dep't of the Army, No. DA-0330-98-0028-B-1, slip op. (M.S.P.B. Feb.7, 2002) ("Initial Decision"). Pursuant to 5 C.F.R. § 1200.3(b) (2005),¹ the initial decision became the final decision of the Board when the two sitting Members of the Board were unable to agree on a ruling in response to Mr. Sturdy's petition for review. Sturdy v. Dep't of the Army, 97 M.S.P.R. 146 (2004) ("Sturdy III"). For the reasons set forth below, we vacate and remand.

BACKGROUND

I.

We begin with the regulatory scheme that frames this case. Under the Veterans' Preference Act of 1944, Pub.L. No. 78-359, 58 Stat. 387 (codified at 5 U.S.C. §§ 2108, 3309-3320), "[a] preference eligible who has been separated or furloughed without delinquency or misconduct, on request, is entitled to have his name placed on appropriate registers and employment lists for every position for which his qualifications have been established." 5 U.S.C. § 3315(a) (2000). The Office of Personnel Management ("OPM") has adopted regulations to implement the requirements of section 3315. The regulations are codified at 5 C.F.R. §§ 330.201-330.209.

Sections 330.201-330.208 require that each agency maintain a reemployment priority list ("RPL") and establish guidelines for the operation of its RPL. Under section 330.201(a), employees entered on an RPL enjoy, at a minimum, "priority consideration over certain outside job applicants." The regulations provide that an agency may not make a final commitment to an individual not on the RPL to fill a permanent or temporary competitive service position when a "qualified" individual is available on the agency's RPL, unless the first individual is on the agency's rolls. 5 C.F.R. §§ 330.205(b), (c).

Section 330.201(b) requires that each agency "establish and maintain a reemployment priority list for each commuting area in which it separates eligible competitive service employees by RIF . . ., except as provided by paragraph (c) of this section." The section 330.201(c) exception states:

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.

Thus, the regulations require that an agency maintain either an RPL or an alternative program that has obtained OPM concurrence or, put another way, approval.

Although agencies must maintain an RPL under sections 330.201(a) and (b) or an equivalent program under section 330.201(c), the regulations do not mandate that employees participate in available agency reemployment programs. Section 330.202 clarifies that placement on an agency RPL is not automatic. In order to be entered on an RPL, an employee must first complete an application within the time frame set forth in section 330.202(a)(1). Section 330.202(a)(1) provides:

To be entered on the RPL, an eligible employee under § 330.203 must complete an application .... Registration may take place as soon as a specific notice of separation under part 351 of this chapter, or a Certification of Expected Separation as provided in § 351.807 of this chapter, has been issued. The employee must submit the application within 30 calendar days after the RIF separation date. An employee who fails to submit a timely application is not entitled to be placed on the RPL.

Even though an employee is not entitled to automatic entry on the RPL, he or she is entitled to receive information from the agency that may aid the employee in applying for the RPL. Pursuant to 5 C.F.R. § 330.203(b), at the time employees receive notices of separation or Certifications of Expected Separation ("CES")s, "the agency must give each eligible employee information about the RPL, including appeal rights."

The regulations also establish qualification requirements for placement through the RPL. In order to be appointed to an open position through the RPL an employee must meet all the requirements set forth in section 330.208(a). Section 330.208(a) provides:

Subject to applicable requirements of law and this chapter, an individual is considered qualified for a position if he or she:

(1) Meets OPM-established or approved qualification standards and requirements for the position, including any minimum educational requirements, and any selection placement factors established by the agency;

(2) Is physically qualified, with reasonable accommodation where appropriate, to perform the duties of the position; and

(3) Meets any special qualifying condition that OPM has approved for the position.

(4) Meets any other applicable requirement for appointment to the competitive service.

As noted above, section 330.205(b) requires priority treatment for "qualified" individuals on an agency's RPL. However, section 330.208(a)(1) gives an agency some discretion to establish "selection placement factors." In the August 1995 "Operating Manual for Qualification Standards for General Schedule Positions" ("Operating Manual for Qualification Standards"), OPM notes that "selective placement factors"² include "specialized agency requirements" such as specific training or educational requirements for a particular position. For example, an agency may require knowledge of economics for an economist position. The Operating Manual for Qualification Standards also notes that an agency may require that an employee have an appropriate license, registration, or certification for a particular position. Therefore, "selection placement factors" appear to be agency-established requirements that are tailored for a particular position. Further, subsection (b) of section 330.208 contains an exception that allows an agency, under certain enumerated conditions, to adopt an alternative qualification standard other than the one set forth in subsection (a). Section 330.208(b) expressly notes, however, that this exception "does not authorize a waiver of the selection order required by § 330.207."

Section 330.207 establishes two permissible selection order methods for operating an RPL. These methods are set forth in section 330.207(b), entitled "Retention standing order," and section 330.207(c), entitled "Rating and ranking." If an agency chooses to follow the "Retention standing order" method described in subsection (b), the agency is required to "place qualified individuals in group and subgroup order in accordance with part 351 of this chapter."³ Id. § 330.207(b) (emphasis added). If the agency chooses the "Rating and ranking" option set forth in subsection (c), then the agency is required to "rate[ ] qualified individuals according to their job experience and education." Id. § 330.207(c) (emphasis added). Thus, both of the selection order options set forth in section 330.207(c) refer to "qualified individuals." Section 330.207(d) creates an exception that allows an agency to appoint an individual who is either not on the RPL or has a lower standing than others on the RPL to a position when it is "necessary to obtain an employee for duties that cannot be taken over without undue interruption."

Employee appeal rights are established by section 330.209, which states:

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.

II.

Turning to the facts of this case, Mr. Sturdy was working as a Resource Management Specialist for the Army at Fort Chaffee, Arkansas, when he received a notice, dated April 3, 1997, informing him that he would be subject to an RIF effective September 30, 1997. At the time of the RIF, the Department of Defense ("DOD"), of which the Army is a part, operated both an RPL and a separate priority placement program ("PPP"). It is undisputed that the PPP was not OPM-approved.

After receiving the notice, Mr. Sturdy took action to increase his chances of finding a new position before the RIF took effect. In that regard, he registered for the PPP. He did not apply for the RPL, however.

After being registered for the PPP in May of 1997, Mr. Sturdy applied for one of three open Environmentalist positions at Fort Chaffee, for which he was rated "qualified." The Army found that he was not "well...