Error: Bad annotation destination United States Court of Appeals for the Federal Circuit
04-3300
MICHAEL CARLEY,
Petitioner,
v.
DEPARTMENT OF THE ARMY
Respondent.
Neil C. Bonney, Bonney & Allenberg, PC, of Virginia Beach, Virginia, for petitioner.
Joshua E. Gardner, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief was Daniel M. Kininmonth, Trial Attorney, Litigation Division, United States Department of the Army, of Fort Knox, Kentucky.
Appealed from: United States Merit Systems Protection Board United States Court of Appeals for the Federal Circuit
DEPARTMENT OF THE ARMY,
___________________________
DECIDED: June 28, 2005 ___________________________
Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge NEWMAN.
CLEVENGER, Circuit Judge.
Michael Carley seeks review of the final decision of the Merit Systems Protection
Board ("Board") dismissing his appeal. See Carley v. Dep't of Def.,
No. CH0752020752-I-1 (M.S.P.B. Mar. 29, 2004). Because Mr. Carley cannot
establish the jurisdiction of the Board, we affirm.
I
Mr. Carley was employed in Fort Knox, Kentucky, by the Department of the Army
("agency") as a grade WG-08 Industrial Equipment Control Repairer. The agency
informed Mr. Carley that his position was slated to be abolished and that he would be
subject to a reduction in force ("RIF"). In December 2000, in lieu of the RIF, Mr. Carley chose to participate in a voluntary Mock RIF and registered for placement under the
Department of Defense's Priority Placement Program ("PPP"). Participation in the PPP
meant that Mr. Carley could avoid the possible adverse consequences of the proposed
Fort Knox RIF. In January 2001, a formal RIF was noticed at Fort Knox.
Under the PPP, Mr. Carley was offered a WG-05 position with the Department of
the Navy in Norfolk, Virginia, as a Utility Systems Repairer. At that time, the agency
was obligated by regulation to inform Mr. Carley whether the position in Norfolk was
under study for elimination. If the position was subject to a study for elimination,
Mr. Carley could reject the offer and remain in the PPP, but if the position was not under
study, Mr. Carley was obligated to accept the placement or be removed from the PPP.
Personnel informed Mr. Carley that the Norfolk position was not under study for
elimination, and on March 11, 2001, Mr. Carley chose to accept the assignment with the
retained grade and pay of his WG-08 Fort Knox position for two years, rather than be
removed from the PPP. The formal RIF in Fort Knox became effective on June 2, 2001.
On April 25, 2002, after Mr. Carley had been at Norfolk for over a year, the
agency announced a RIF that included Mr. Carley's new position. Contrary to the
information given to Mr. Carley, the position in Norfolk was under study for elimination at
the time it was offered to Mr. Carley. However, through inadvertent error, the
registering activity at the Fort Knox Civilian Personnel Office was not provided this
information, and consequently Mr. Carley did not know that the Norfolk position he
accepted was under consideration for elimination. As a result of the formal RIF at
Norfolk, Mr. Carley was placed in a WG-01 grade position with saved grade and pay
from Fort Knox on July 28, 2002.
04-3300 2 On September 2, 2002, Mr. Carley appealed to the Board his March 11, 2001,
placement at Norfolk, citing his wish to return to Kentucky. He did not challenge the
legality of either the Fort Knox or the Norfolk RIF but asserted that he would not have
accepted the Norfolk position under the PPP if he had been told that the Norfolk position
was under review for elimination.
While his appeal to the Board was pending and he was still in saved grade and
pay status, Mr. Carley voluntarily accepted a promotion to a WG-08 position in Norfolk
on October 6, 2002. This promotion was unrelated to a RIF or PPP. On December 9,
2002, based on this promotion an administrative judge ("AJ") dismissed Mr. Carley's
case as moot on the ground that there was no relief that could be afforded to him
because he had not suffered any reduction in grade or pay. Carley v. Dep't of Def.,
No. CH0752020752-I-1 (M.S.P.B. Dec. 9, 2002). The AJ did not address whether the
Board had jurisdiction. The full Board denied review on March 29, 2004. Carley v.
Dep't of Def., No. CH0752020752-I-1 (M.S.P.B. Mar. 29, 2004). Mr. Carley timely
sought review in this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II
This court will not overturn an appeal from a decision of the Board unless the
Board's decision is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; obtained without procedures required by law, rule or regulation; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000). This court reviews
questions of law and determinations of jurisdiction without deference to the Board.
Diefenderfer v. Merit Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed. Cir. 1999).
04-3300 3 The Board has jurisdiction over only those actions which are made appealable to
it by law, rule, or regulation. 5 U.S.C. §§ 1204(a)(1), 7701(a) (2000); Butler v. Soc. Sec.
Admin., 331 F.3d 1368, 1372 (Fed. Cir. 2003). A challenge to the Board's jurisdiction
may be made at any time, even on appeal. Bender v Williamsport Area Sch. Dist.,
475 U.S. 534, 541 (1986).
III
Mr. Carley asserts that the Board had jurisdiction over his case under 5 U.S.C.
§ 7513. As the government points out, the grant of jurisdiction to the Board under
section 7513 is limited to the specific adverse actions denominated in Subchapter II of
Title 5, as listed in section 7512. These adverse actions include a removal, a
suspension for more than 14 days, a reduction in grade, a reduction in pay, and a
furlough of 30 days or less. 5 U.S.C. § 7512 (2000).
Section 7512 also expressly excludes actions arising from a reduction in force
under section 3502 of Title 5. However, the Board does have jurisdiction to hear
appeals for certain actions arising from a reduction in force, i.e. "[a]n employee who has
been furloughed for more than 30 days, separated, or demoted by a reduction in force
action may appeal to the Merit Systems Protection Board." 5 C.F.R. § 351.901 (2005).
But Mr. Carley does not assert that he has been subjected to these actions under the
RIF. Rather, Mr. Carley's complaint is that he has been denied a transfer back to Fort
Knox. He does not contest the Board's statement that he has been promoted to a
position with the same grade and same pay, and that in the interim he received the
same pay in his saved grade and pay position. Instead, he argues that the
government's erroneous information on the Norfolk position led him to accept the
04-3300 4 transfer, and but for that error he would still be in Fort Knox. According to Mr. Carley,
"[h]indsight establishes that the reduction in force [at Fort Knox] most probably would
have ended in his successful placement." (Appellant's Br. at 6.) He requests to be sent
back to Fort Knox so that the agency can "reconstruct what would have become of him
[under the Fort Knox RIF] based on his priority placement rights." (Id. at 11.) In
essence, Mr. Carley complains of his transfer from Kentucky to Virginia and seeks as
relief his return to Kentucky.
We have held as a general proposition that reassignment or transfer, absent an
underlying action over which the Board has jurisdiction, does not provide the Board with
jurisdiction.1 See Brewer v. Am. Battle Monuments Comm'n, 779 F.2d 663, 664 (Fed.
Cir. 1985); Manning v. Merit Sys. Prot. Bd., 742 F.2d 1424, 1427 (Fed. Cir. 1984);
Thomas v. United States, 709 F.2d 48, 50 (Fed. Cir. 1983). This court has been clear:
"[A]llegations of a reassignment without change of grade or pay do not provide a basis
for MSPB jurisdiction." Manning, 742 F.2d at 1427.
Although not advanced by Mr. Carley himself, the government's brief suggests a
possible avenue of jurisdictional authority for Mr. Carley. The actions complained of in
this case occurred in a PPP, but the regulation that provides for jurisdiction of the Board
in RIF actions may apply. The Office of Personnel Management ("OPM") has allowed
1 When the Board has jurisdiction, geographic transfers may be considered when fashioning relief. The Board has held that when an agency is ordered to return an employee to the status quo ante of his former employment, geographic factors such as a return to the facility from which an employee was removed or reemployment in the commuting area surrounding the employee's former position can be properly included elements of relief. See Rogers v. Dep't of the Army, 88 M.S.P.R. 610 (2001); Holtgrewe v. FDIC, 57 M.S.P.R. 307 (1993). This precedent, however, requires an action over which the Board has jurisdiction before it can entertain geographic transfer relief.
04-3300 5 agencies to use PPP procedures in lieu of formal RIFs for Reemployment Priority List
("RPL") rights under 5 U.S.C. § 3315. OPM has promulgated RPL regulations that
state:
(c) 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.
5 C.F.R. § 330.201(c) (2005). Under this theory, if an agency chooses to use a PPP in
lieu of RPL rights, the PPP implicitly serves the purpose of protecting RPL rights. RPL
appeal rights are provided for in the regulations:
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.
5 C.F.R. § 330.209 (2005).
The Board has found that it possesses jurisdiction to review violations of
reemployment priority rights under a PPP when an agency maintains a PPP in lieu of a
distinct RPL. Stuck v. Dep't of the Navy, 72 M.S.P.R. 153, 156-58 (1996), overruled in
nonrelevant part by Sturdy v. Dep't of the Army, 88 M.S.P.R. 502, 510 n.4 (1998). The
Board in Stuck determined that the evidence established that the agency had chosen to
use a PPP in lieu of a RPL, and if review was denied under the PPP, an agency could
effectively deny an appellant review under 5 C.F.R. § 330.209. 72 M.S.P.R. at 156-57.
According to Stuck, where an agency operates a placement program for its employees
under 5 C.F.R. § 330.209, RPL appeal rights arise in a PPP when an employee's rights
04-3300 6 are violated "because of the employment of another person who otherwise could not
have been appointed properly." Id. at 156. In those circumstances, an agency cannot
remove RPL appeal rights by substituting a PPP for a formal RIF.
However, because Mr. Carley does not argue that his reemployment priority
rights have been violated because of the employment of another person, Stuck is of no
aid to him. Mr. Carley asserts no error in his RPL rights, and therefore we need not
decide in this appeal whether Stuck correctly states the law concerning Board
jurisdiction for PPP cases. That issue is reserved for a case that squarely presents the
question.
IV
Had Mr. Carley met the requirement for jurisdiction under 5 U.S.C. § 7513 or
5 C.F.R. § 330.209, his request for transfer to Fort Knox would have been within the
realm of relief possible. Consequently, his case is not moot, and the Board thus erred
in dismissing Mr. Carley's appeal on mootness grounds. However, because Mr. Carley
has presented no jurisdictional foundation for his prayer for relief, the dismissal of his
appeal must therefore be affirmed. Mr. Carley's request for attorney fees is accordingly
denied.
COSTS
No costs.
AFFIRMED
04-3300 7 United States Court of Appeals for the Federal Circuit
NEWMAN, Circuit Judge, dissenting.
I respectfully dissent. Mr. Carley was advised that if he turned down a valid offer
under the Priority Placement Program (PPP), that is, an offer of a position not under study
for elimination, he would lose his priority rights in the RIF. Thus he accepted the offer to
work in Norfolk, having twice asked whether the position in Norfolk was under study for
elimination, and being twice told that it was not and that the offer was valid. Within days
after his arrival in Norfolk, he was told that the position he had accepted was in fact under
study for elimination. He immediately told the agency that he wished to return to Fort Knox.
The record shows that the agency recognized its error and recommended this remedy, but
that it was not offered. Indeed, this is the same remedy Mr. Carley even now continues to
seek: a return to the PPP and RIF procedures at Fort Knox. It is correct, as the majority states, that the agency discovered its error. The record
contains a memorandum between agency personnel in the Department of Defense,
proposing that the "most reasonable remedy is to re-register Mr. Carley [in a PPP]." The
memorandum requires notification to the originating personnel officer when "registration
has been activated"; yet no such notification is in the record, nor any indication that this (or
any other) remedy was actually offered to Mr. Carley. The Board did not decide the case
on this ground.
The Board decided the case on the quite different ground that since Mr. Carley had
not suffered a reduction in pay, and eventually was promoted to a job at Norfolk at his
original grade, he had no right to complain about the agency error that caused his
dislocation from Kentucky to Virginia. On this ground the Board ruled that the case was
"moot." Yet the Board has recognized that wrongful geographic dislocation is subject to
remedy. See Holtgrewe v. FDIC, 57 M.S.P.R. 307, 309-10 (1993) (return to a position at
the same grade and pay at a different geographic location is not return to the status quo
ante).
The uprooting of an employee from home and neighborhood and job site is not an
event of insignificant human impact. When due to clear and admitted agency error, it is
subject to remedy. Mr. Carley requests no more than reconstruction of the RIF list at Fort
Knox with the priority of the position he held. A reconstructed RIF would determine what
positions would have been available to him, and aid in fashioning a suitable remedy. A
similar procedure was applied in Jordan v. Dep't of Justice, 91 M.S.P.R. 635, 638 (2002),
where the Board required the agency "to return the appellant to the eligibility list for
employment."
04-3300 2 Since remedy was possible, the Board's dismissal of the case as moot was not in
accordance with law. See Church of Scientology v. United States, 506 U.S. 9, 13 ("The
availability of this possible remedy is sufficient to prevent this case from being moot"). See
generally 1A C.J.S. Actions §39 (when a court can provide effective relief, when the effect
of not deciding the case would be different from the relief that might be granted by ruling on
it, or when a party to the action would benefit from an order that could be rendered, the
case is not moot).
The government provides no excuse for the Board's erroneous ruling of mootness,
and instead raises the issue of "jurisdiction." The panel majority, deciding that the Board
did not have jurisdiction, gives Mr. Carley no opportunity to defend the Board's jurisdiction,
and declines to remand for this purpose. Appellate review of agency rulings is limited to the
grounds on which the agency relied, and here the agency did not rely on jurisdiction. See
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 50 (1983) ("It is
well established that an agency's action must be upheld, if at all, on the basis articulated by
the agency itself"); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (citing SEC v.
Chenery Corp., 318 U.S. 80 (1943)) (a reviewing court must judge a decision of an
administrative agency "solely by the grounds invoked by the agency").
In SEC v. Chenery the Court ruled that "if [the agency's] grounds are inadequate or
improper, the court is powerless to affirm the administrative action by substituting what it
considers to be a more adequate or proper basis." 332 U.S. at 196. Vacatur is required.
Holderfield v. Merit Sys. Prot. Bd., 326 F.3d 1207, 1209 (Fed. Cir. 2003) ("Since the Board
did not address the 'working conditions' definition of a personnel action, and we are not
able to review its decision without its analysis, we must vacate"); Whittington v. Merit Sys.
04-3300 3 Prot. Bd., 80 F.3d 471, 476 (Fed. Cir. 1996) (because the Board "failed to make relevant
factual findings or apply the appropriate statutory and regulatory law . . . we can neither
reverse nor affirm the Board's decision because either action would require us to apply law
the Board did not consider to facts the Board did not consider; such a complete de novo
review is not our proper role"). Without more, the panel majority's action is improper.
Although jurisdiction may be challenged at any time, an untimely challenge does not
also confer authority on the appellate court to develop the arguments and bar the petitioner
not only from his day in court, but also from the opportunity to establish jurisdiction. See
Abbott Labs. v. Gardner, 387 U.S. 136, 140-41 (1967) (the heavy weight of authority favors
enabling access to the courts, not denying it). The question of jurisdiction that is now
raised by the panel majority requires exploration by the Board of the complex statutes and
regulations that govern RIF procedures, and should not be casually resolved to deprive the
petitioner of a hearing on this threshold question. See Commodity Futures Trading
Comm'n v. Schor, 478 U.S. 833, 845 (1986) (finding the agency's expertise on an issue of
its own jurisdiction "superior to that of a court"); St. Joseph Stock Yards Co. v. United
States, 298 U.S. 38, 53 (1936) ("the judicial duty is performed in the light of the
proceedings already had and may be greatly facilitated by the assembling and analysis of
the facts in the course of the legislative determination. Judicial judgment may be none the
less appropriately independent because informed and aided by the sifting procedure of an
expert legislative agency"). Federal Circuit precedent well supports remand for the purpose
of establishing the facts relevant to jurisdiction, when the challenge is raised on appeal.
See Holderfield v. Merit Sys. Prot. Bd., 326 F.3d 1207, 1210 (Fed. Cir. 2003) (vacating and
remanding to give petitioner opportunity to satisfy Board of jurisdiction); Dumas v. Merit
04-3300 4 Sys. Prot Bd., 789 F.2d 892, 895 (Fed. Cir. 1986) (same); Burgess v. Merit Sys. Prot. Bd.,
758 F.2d 641, 643 (Fed. Cir. 1985) (same). In Holderfield the government argued that the
Board lacked jurisdiction over an Individual Right of Action appeal because the employee
had failed to identify an agency action that would constitute a "personnel action" within the
meaning of 5 U.S.C. §2302(a)(2); the court held that because the Board had not
considered this provision, and the court is "not able to review its decisions without its
analysis," the decision "must" be vacated and remanded for the Board to determine
whether the allegations were "non-frivolous" and within the identified category, which are
"determinations for the Board in the first instance." Holderfield, 326 F.3d at 1209-10.
The panel majority acknowledges that jurisdiction may lie under 5 C.F.R. §330.209,
which provides for RIF appeal when an employee believes that his priority rights were
violated by the placement of another person in a position that should have been his. Mr.
Carley states that "the vast majority of employees were placed during the RIF processes at
Fort Knox," whereas he was obliged, through agency error, to relocate to Norfolk. He
states that had this error not occurred, "in all probability" he would have been placed in the
Fort Knox area. On its face, the criteria of §330.209 are met, and these nonfrivolous
allegations, supported by admission of agency error, establish Board jurisdiction. See
Smith v. Dep't of the Army, 97 M.S.P.R. 272, 276 (2004) (jurisdiction is established where
the appellant makes a nonfrivolous allegation that the agency violated his RPL rights by
employing another person during his eligibility for the RPL).
Agency precedent fully supports Mr. Carley. See Sweeney v. Dep't of the Interior,
73 M.S.P.R. 329, 334 (1997) (remanding for determination of jurisdiction where appellant
"alleged that he was separated by RIF, that there was an agencywide policy regarding
04-3300 5 reemployment priority rights and that [the agency] did not follow the policy"); Miller v. Dep't
of the Navy, 2005 MSPB LEXIS 763, at *5 (Jan. 25, 2005) (jurisdiction is established where
appellant made non-frivolous allegations, which if proven would show that "he applied to
the agency for RPL or PPP rights," and that "the agency's employment of another person
deprived him of those rights").
The majority's ruling that the Board did not have jurisdiction of this admitted wrongful
agency action is incorrect. At a minimum, the case should be remanded to the Board for
review of jurisdiction, and to fashion a remedy appropriate to the agency's conceded
wrongful action.
04-3300 6