Michael Carley v. Department of the Army

413 F.3d 1354, 2005 U.S. App. LEXIS 12750, 2005 WL 1514250
Court of Appeals for the Federal Circuit·Decided June 28, 2005·No. 04-3300·Published·Cited by 17 cases

Opinions

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, 96 M.S.P.R. 63, 2004 WL 716787 (M.S.P.B. March 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 [1356] 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.

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. Car-ley’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, 96 M.S.P.R. 63, 2004 WL 716787 (M.S.P.B. March 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).

The Board has jurisdiction over only those actions which are made appeal-able 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, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).

III

Mr. Carley asserts that the Board had jurisdiction over his case under 5 U.S.C. § 7513. As the government points [1357] out, the grant of jurisdiction to the Board under section 7513 is limited to the specific adverse actions denominated in Subchap-ter 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).

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Michael Carley v. Department of the Army, 413 F.3d 1354, 2005 U.S. App. LEXIS 12750, 2005 WL 1514250 (Fed. Cir. 2005).

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