NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit 

05-3044 

EDDIE L . SMITH, 

 Petitioner, 

v. 

DEPARTMENT OF THE ARMY, 

 Respondent. 

__________________________ 

DECIDED: July 11, 2005 

 __________________________ 

Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit 

Judge. 

PER CURIAM. 

Eddie L. Smith seeks review of the final decision of the Merit Systems Protection 

Board (“Board”) denying Mr. Smith’s petition for review of an initial decision of an 

administrative judge and dismissing his case for lack of jurisdiction. See Smith v. Dep’t 

of the Army, No. DA0330010660-I-1 (M.S.P.B. Sept. 17, 2004) (“Final Decision”). We 

affirm. 

BACKGROUND 

The Army separated Mr. Smith from his position as a Logistics Management 

Specialist at Fort Sill, Oklahoma by a reduction in force (“RIF”) on October 30, 1998. In 
response, Mr. Smith did two things: (1) he appealed his RIF separation to the Board 

and (2) he registered with the Army’s Reemployment Priority List (“RPL”). 

The adjudication of Mr. Smith’s RIF separation resulted in the Board ordering the 

Army to cancel Mr. Smith’s RIF separation, reassign Mr. Smith to a position effective 

October 30, 1998, and pay Mr. Smith back pay and benefits. See Smith v. Dep’t of the 

Army, 86 M.S.P.R. 282, 287 (2000). On August 10, 2000, the Army, as ordered by the 

Board, cancelled Mr. Smith’s RIF separation and retroactively reassigned him effective 

October 30, 1998.1

On August 22, 2001, Mr. Smith filed the present case in which he alleged that the 

Army violated his RPL rights in 1999 and 2000 when it appointed other individuals to 

vacant positions to which he was qualified. In an initial decision, an administrative judge 

found that each of the positions in question either (1) had a grade target outside the 

range to which Mr. Smith was entitled; (2) was outside the occupational series for which 

Mr. Smith could be considered; or (3) was filled after the expiration of the two-year 

period for RPL rights. See Smith v. Dep’t of the Army, No. DA0330010660-I-1 

(M.S.P.B. Dec. 31, 2001). 

Mr. Smith filed a petition for review with the Board. The Board denied the 

petition, reopened the appeal on its own motion, vacated the initial decision, and 

dismissed the case for lack of jurisdiction. See Final Decision. The Board reasoned 

 1 Mr. Smith later filed a case with the Board alleging that the Army failed to 

comply with the Board’s order. The Board found the Army in compliance, but forwarded 

new claims of noncompliance first alleged on appeal to an administrative judge for 

further adjudication. See Smith v. Dep’t of the Army, 89 M.S.P.R. 82, 83 (2001). We 

affirmed the rejection of the new claims. See Smith v. Dep’t of the Army, 95 Fed. Appx. 

340, No. 04-3041 (Fed. Cir. Apr. 8, 2004). 

05-3044 2
that Mr. Smith failed to make a nonfrivolous allegation that the agency violated his RPL 

rights because, pursuant to its interpretation of 5 C.F.R. § 330.203(d)(2)(ii), Mr. Smith’s 

eligibility for RPL rights expired on October 30, 1998, the effective date Mr. Smith was 

reassigned. The Board noted that the positions to which Mr. Smith claimed RPL rights 

were filled between December 16, 1998 and August 9, 2000 and therefore after October 

30, 1998. The Board did not address the fact that the Army actually reassigned Mr. 

Smith on August 10, 2000. 

Mr. Smith petitions for review of the final decision of the Board. We have 

jurisdiction under 28 U.S.C. § 1295(a)(9). 

DISCUSSION 

Our scope of review of a decision of the Board is established by statute. We 

review decisions of the Board to ensure they are not arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; obtained without procedures 

required by law, rule, or regulation having been followed; or unsupported by substantial 

evidence. 5 U.S.C. § 7703(c) (2000). The scope of the Board’s jurisdiction is a legal 

question that we review de novo. Monasteri v. Merit Sys. Prot. Bd., 232 F.3d 1376, 

1378 (Fed. Cir. 2000). In this regard, we have recognized that the jurisdiction of the 

Board is not plenary but rather is limited to actions designated for appeal to the Board 

under any law, rule, or regulation. Id. (citing 5 U.S.C. § 7701(a) and Martinez v. Merit 

Sys. Prot. Bd., 126 F.3d 1480, 1482 (Fed. Cir. 1997)). 

In his informal brief, Mr. Smith does not argue that the Board wrongly dismissed 

his case for lack of jurisdiction or otherwise present any arguments related to the 

underlying merits of this case. Instead, he only presents arguments that appear to be 

05-3044 3
relevant to claims in one of his related cases. In that case, we rejected Mr. Smith’s 

arguments and upheld the Board’s decision. See Smith, 95 Fed. Appx. 340. Of course, 

Mr. Smith is precluded from relitigating issues and claims against the Army that we have 

already passed upon. See Thomas v. Gen. Servs. Admin., 794 F.2d 661, 664 (Fed. Cir. 

1986). We have an independent obligation, however, to review jurisdictional 

determinations of the Board. Cf. Dunklebarger v. Merit Sys. Prot. Bd., 130 F.3d 1476, 

1480 (Fed. Cir. 1997). 

The basis for the Board’s jurisdiction over reemployment priority rights cases is 

found at 5 C.F.R. § 330.209. This section states that “[a]n 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.” According to the Army, if an individual’s eligibility for placement on 

the RPL terminates prior to the “employment of another person,” then the individual 

lacks standing to claim a violation of RPL rights by the employment of the other person. 

We agree. This case therefore turns on whether Mr. Smith was eligible for placement 

on the RPL at the time the Army employed the other persons. 

The Army argues that the Board was correct to determine that Mr. Smith’s 

eligibility for placement on the RPL terminated on October 30, 1998, the effective date 

Mr. Smith was restored to work, and not on August 10, 2000, the actual date Mr. Smith 

was restored to work, because of 5 C.F.R. § 330.203(d)(2). That regulation lists several 

situations in which “an individual is taken off the RPL before the period of eligibility 

expires.” 5 C.F.R. § 330.203(d)(2) (2004). One of those situations is when the 

05-3044 4
individual “[r]eceives a career, career-conditional, or excepted appointment without time 

limit in any agency.” Id. § 330.203(d)(2)(ii). Essentially, the Board interprets the 

regulation as taking an individual off of the RPL on the effective date of reinstatement 

rather than on the actual date the reinstatement is ordered. We agree with this 

interpretation of 5 C.F.R. § 330.203(d)(2). 

CONCLUSION 

For the foregoing reasons, we affirm the decision of the Board dismissing Mr. 

Smith’s case for lack of jurisdiction. 

05-3044 5