George Noble v. Tennessee Valley Authority

892 F.2d 1013, 1989 WL 153525
Court of Appeals for the Federal Circuit·Decided December 22, 1989·No. 88-3436·Published·Cited by 14 cases

Opinions

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 juris[1015]*1015diction 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.

Free access — add to your briefcase to read the full text and ask questions with AI

George Noble v. Tennessee Valley Authority, 892 F.2d 1013, 1989 WL 153525 (Fed. Cir. 1989).

892 F.2d 1013 (George Noble v. Tennessee Valley Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Burroughs v. Department of the Army
524 F. App'x 611 (Federal Circuit, 2013)
Burroughs v. Merit Systems Protection Board
417 F. App'x 964 (Federal Circuit, 2011)
Seay v. TVA
Sixth Circuit, 2003
Willie Smith, Jr. v. Tennessee Valley Authority
95 F.3d 1168 (Federal Circuit, 1996)
Taydus v. Cisneros
902 F. Supp. 288 (D. Massachusetts, 1995)
Kent S. Brucker v. Merit Systems Protection Board
17 F.3d 1444 (Federal Circuit, 1994)
James R. Burchard v. Department of the Navy
16 F.3d 422 (Federal Circuit, 1993)
Ralph M. Malone v. Department of the Treasury
16 F.3d 421 (Federal Circuit, 1993)
Lefloris Lyon v. Merit Systems Protection Board
991 F.2d 811 (Federal Circuit, 1993)
Payne v. United States
778 F. Supp. 804 (D. Vermont, 1991)
George Noble v. Tennessee Valley Authority
892 F.2d 1013 (Federal Circuit, 1989)