NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-3161 

ROBERT J. WIESER, 

Petitioner, 

v. 

DEPARTMENT OF THE ARMY, 

Respondent. 

Robert J. Wieser, of Independence, Missouri, pro se. 

Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With him on 

the brief were Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant 

Director. Of counsel was William M. Edwards, United States Army Corps of Engineers, 

of Kansas City, Missouri. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit 

2007-3161 

ROBERT J. WIESER, 

Petitioner, 

v. 

DEPARTMENT OF THE ARMY, 

Respondent. 

Petition for review of the Merit Systems Protection Board in CH-0752-06-0107-B-1. 

___________________________ 

DECIDED: June 4, 2008 

___________________________ 

Before BRYSON and PROST, Circuit Judges, and ZAGEL, District Judge.

*

PER CURIAM. 

DECISION 

Robert J. Wieser petitions for review of a decision of the Merit Systems 

Protection Board sustaining his removal by the Department of the Army for refusing to 

accept a management directed reassignment. We affirm. 

 

*

 Honorable James B. Zagel, District Judge, United States District Court for 

the Northern District of Illinois, sitting by designation. 
BACKGROUND 

 Mr. Wieser was employed as a civil engineer with the Army Corps of Engineers 

in the agency’s Kansas City, Missouri, office. In August 2004, the agency notified him 

that he would be reassigned from the Kansas City office to the agency’s office in Ft. 

Riley, Kansas. After being given an extension of time within which to consider his 

decision, Mr. Wieser declined to accept the reassignment. The agency then removed 

him for failing to accept a lawful reassignment. 

 Mr. Wieser appealed his removal to the Merit Systems Protection Board. The 

administrative judge who was assigned to his appeal found that the management 

directed reassignment was lawful, in that it was based on legitimate management 

considerations and Mr. Wieser had been given adequate notice of the reassignment. 

The administrative judge rejected Mr. Wieser’s arguments that the Ft. Riley position 

should have been filled through an outside hire or, alternatively, that others in his office 

should have been chosen in place of him. The administrative judge explained that the 

agency was under no legal obligation to fill the position with an outside hire or to fill it 

with someone having less seniority than Mr. Wieser. Mr. Wieser petitioned for review 

by the full Board, but the petition for review was denied. Mr. Wieser now petitions for 

review by this court. 

DISCUSSION 

 In order to justify removing an employee based on a management directed 

reassignment, the agency must show that its decision to reassign the employee was 

based on legitimate management considerations, that the employee was given 

adequate notice of the reassignment, and that the employee refused to accept the 

2007-3161 2
reassignment. Frey v. Dep’t of Labor, 359 F.3d 1355, 1360 (Fed. Cir. 2004). Mr. 

Wieser plainly refused to accept the reassignment; he argues, however, that the 

reassignment was unlawful and that he was not given sufficient notice of the 

reassignment. We hold that neither argument has merit because substantial evidence 

supports the Board’s finding that the agency’s reassignment was lawful and that Mr. 

Wieser was given adequate notice of the reassignment. 

 The evidence as to the reason for the reassignment showed that the agency was 

undergoing a restructuring of its operations and that it needed to realign its field offices 

to meet short and long term objectives. In particular, the evidence showed that the 

agency anticipated a shift in the volume of work from the Kansas City office to the office 

in Ft. Riley. As the government points out, Mr. Wieser has not challenged the agency’s 

showing that it needed additional manpower at the Ft. Riley office; instead, he has 

focused principally on the contention that the agency should have met that need in 

some way other than transferring him. 

 Mr. Wieser argues that the agency should have hired someone from outside the 

agency to fill the position in Ft. Riley or should have transferred an employee with less 

seniority or one of the employees who, unlike him, had signed a “mobility agreement.” 

There is simply no legal requirement, however, that the agency limit its options in that 

manner. As stated by the administrative judge, the agency’s authority to reassign its 

employees is based on regulations that do not make the agency’s power to transfer an 

employee dependent on the employee’s execution of a mobility agreement. See 5 

C.F.R. §§ 335.102, 335.103. Nor is there any legal requirement that the agency 

transfer those with less seniority before considering more senior employees for transfer. 

2007-3161 3
Moreover, as the administrative law judge explained, hiring someone from outside the 

agency to fill the position in Ft. Riley would not have served the purpose of reducing the 

staffing at the Kansas City office, which was one of the objectives of the transfer. The 

administrative judge thus found that the agency acted within its legal rights to direct Mr. 

Wieser’s reassignment. In addition, the administrative judge rejected Mr. Wieser’s 

contention that the agency’s action was simply a ploy to force him to resign or retire. 

Because substantial evidence supports the findings on which the administrative judge 

based her conclusion that the agency’s action was lawful, we sustain that conclusion. 

Mr. Wieser argues that he was not given sufficient notice of his reassignment. 

His claim, however, is not based on lack of notice of the reassignment, but instead is 

based on his contention that because the agency did not require him to sign a mobility 

agreement and did not otherwise advise him at the outset of his employment that he 

was subject to reassignment, the agency should be barred from reassigning him at all. 

That is not a claim of lack of notice as that term is used in cases such as Frey v. 

Department of Labor, supra, dealing with management directed reassignments. The 

argument instead amounts to a contention that the agency is barred from transferring 

him because of its failure to advise him earlier that he might be transferred and to obtain 

his consent to such a transfer. As we noted above, however, the agency’s right to 

transfer employees is a function of agency authority pursuant to regulations 

promulgated by the Office of Personnel Management; the agency does not obtain its 

right to transfer from a particular employee’s consent, nor is it denied the right to 

transfer a particular employee because that employee has not previously given such 

consent or been specifically notified of the possibility of a transfer at some time in the 

2007-3161 4
2007-3161 5

future. There is therefore no force to Mr. Wieser’s argument regarding the lack of 

notice. 

Finally, we reject Mr. Wieser’s argument that removal was an inappropriate 

penalty for his refusal to comply with the reassignment. To say that an agency must 

select a penalty other than removal when an employee unjustifiably refuses a 

reassignment is in effect to say that the agency cannot insist on compliance with a 

lawful reassignment order. Because the agency is entitled to insist that the employee 

accept the reassignment, the agency is not required to leave the employee in place if 

the employee refuses to move. See Frey, 359 F.3d at 1360. We therefore uphold the 

Board’s decision sustaining the removal action in this case.