## United States Court of Appeals for the Federal Circuit

05-3053

ROMEO M. RASING, Petitioner,

v.

DEPARTMENT OF THE NAVY, Respondent.

Charles E. Moore , Simpson & Brenner, LLP, of San Diego, California, argued for petitioner. David D. D’Alessandris , Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, ar gued for respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and William F. Ryan , Assistant Director.

Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

05-3053

ROMEO M. RASING, Petitioner,

v.

DEPARTMENT OF THE NAVY, Respondent.

_______________________ DECIDED: April 7, 2006

_______________________

Before MICHEL, Chief Judge , SCHALL, and GAJARSA, Circuit Judges

. SCHALL, Circuit Judge

. Romeo M. Rasing petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that dismissed his claim that the Department of the Navy (“Navy” or “agency”) violated his reemployment priority rights after he was separated from the agency in the course of a reduction in force (“RIF”). Rasing v. Dep’t of the Navy , 97 M.S.P.R. 373 (2004) (“ Final Decision ”). In an initial decision, the administrative judge (“AJ”) assigned to Mr. Ra sing’s case held t hat the Board lacked jurisdiction over his claim. Rasing v. Dep’t of the Navy , No. SF0330010268-I-1, slip op.at 6 (M.S.P.B. Apr. 30, 2001) (“ Initial De cision ”). Pursuant to 5 C.F.R. § 1200.3( b) (2006), 1 the Initial Dec i sion became the final decis ion o f the Board when the two sitting Members of the Board were unable to agr ee on a ruling in response to Mr . Rasing’s petition for review. Final Decis i on , 97 M.S.P.R. at 374. We affirm. BACKGROUND
I. We begin with the regulatory sc heme that frames this case. Under the Veterans’ Preference Act of 1944, Pub. L. No. 78-359, 58 Stat. 387 (codifi ed at 5 U.S.C. §§ 2108, 3309-3320) , “[a] preference elig ible who has been s eparat ed or furloughed without delinquenc y or misconduct, on request, is ent itled to have his name placed on appropriate registers a nd employ ment lists for every position for which his qualifications have been established.” 5 U.S.C. § 3315(a) (2000). The Office of Personnel Management (“OPM”) has adopt ed regulations to implem ent the requirements of section 3315. The regulations are codified in Subpart B of Part 330 of Title 5 of the Code of Federal Regulations. Se e 5 C.F.R. §§ 330.201-330.209. Sections 330.201-330.208 r equire that each agency maintain a reemployment priority list (“RPL”) and establish guidelines fo r the operation of it s RPL. Under section 330.201(a), employees ent ered on an RPL enjoy, at a mini mum, “priority consideration over certain outside job applicants.” On ce an emp l oyee is registered on the RPL, section 330.205(b) entitles hi m or her to priority plac ement when a v a c ancy in the agency aris es. Section 330.205(b) requires:

1 The relev a nt provisions of the C ode of Federal Regulations hav e not been amended s i nce 1997, when the events relevant to this appeal took place. Thus, all references are to the 2006 version of the Code of Federal Regulations. 05-3053 2When a qualified indiv i dual is available on an agency’s RPL, the agenc y may not make a final commitment to an indiv i dual not on the RPL to f ill a permanent or temporary competitive service position by: (1) A new appointment, unless the individual appointed is a qualified 10-point pref erence eligible; or (2) Transfer or reemployment, unless the individual is a preference eligible, is exerci sing restoration rights under part 353 of this chapter bas ed on return from military service or recovery from a compensa b le injury or disab ility within 1 ye ar, or is exer cising othe r statutory or regulatory reemploym ent rights. Although s e ction 330.205( b) gives employees on the RPL s i gnificant priority over other applicants, subsection (c) allows an agen cy to c hoose cer t ain employees over candidates on the RPL. In particular, under 5 C.F.R. § 330.205(c)(2)(i) an agency may fill a sp ecific position with “a current, qualifie d employe e of the ag ency through [d]etail or position c hange (pr o motion, demotion, reassi gnment)” rather than with a qualified employee f r om the RPL. Thus, a person regist ered on the RPL is not en titled to priority over internal applicant s for a position. Section 330.201(b) requires that each agency “establish and maintain a[n RPL] for each c o mmuting area in which it separates eligib le competitive service employees by RIF . . . , except as provided by par agraph (c) of this section.” The section 330.201(c) exception s t ates: An agenc y need not mainta in 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 pr ogram satisfies the basic requirements of this subpart. The intent of this provision is to allow agencies to adopt differ ent placement strategies that are effecti v e for their particu lar programs yet satisfy legal entitlements to priority cons ideration in reemployment.

05-3053 3Thus, the regulation requires th at an agency maintain either an RPL or an alternate program that has obtained OPM concurrence. Although agencies must main tain an RPL under sections 330.201(a) and (b) or an equivalent under s e ction 33 0.201(c), the regulations do not mandate that employee s participate in available agency reemployment programs. Se ction 330.202 clarifies that placement on an agency RPL is not automatic. In order to be entered on an RPL, an employee must first complete an applic at ion, within the time frame set fort h in section 330.202(a)(1). Sect ion 330.202(a)(1) provides: To be ent ered on the RPL, an eligible employee under § 330.203 must complete an application . . . . Registration may take plac e as s oon as a s pecific notice of separation under part 351 of this c hapter, or a Certification of Expected Separation as prov ided in § 351.807 of this chapter, has been is sued. The employee must submit the application within 30 calendar da ys after the RIF separation date. An employee who fails to s ubmit a tim e ly application is not entitled to be placed on the RPL. Even though an employee is no t entitled t o automatic ent ry on the RPL, he or she is entitled to receive information from the agency that may ai d the employee in apply i ng for the RPL. Pursuant to 5 C.F.R. § 330.203( b), at the time employ ees receiv e notices of separation or Cert ifications of Expected Separat ion, “the agency must give each eligible employee information about the RPL, including ap peal rights.” Employee appeal rights are established by section 330.209, which provides: An indiv i dual who believes that hi s or her reemployment priority rights under this subpart have been violated because of the empl oyment 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.

05-3053 4II. Between 1993 and 2000, Mr. Rasing was employed by the Navy’s Fleet and Industrial Supply Cent er (the “Fuel Farm”) in San Diego, California. At the time he was separated, Mr. Rasing held the position of a Wage Grade (“WG”)-9 Fuel Distribution Worker at the Fuel Far m

. In 1999, M r . Rasing took four months of medical leav e. Initial Decisio n , slip op. at 4. Upon returning in Decem ber of 1999, he received a Letter of Unsatisfactory Performance, which was dat ed December 15, 1999. Id. The letter outlined Mr. Rasing’s unsatisfactory performance in the cr itical element of “Execution of Duties” and explained t hat he had sixty days to demonstr ate acceptable performance. The letter was not rescinded and no further action was taken on it. Id. Mr. Rasing’s return to the Fuel Farm in December of 1999 after his four months of medical leave was brief. On February 9, 2000, he met with an Equal Employment Opportunity (“EEO”) Counselor. During the meeting, he stat ed that “[he] could not be responsible that if things got so bad and [he] lost it and [he] came in and killed everyone, the command would be liable for that.” The agency perceived Mr. Rasing’s statement as a threat. C onsequently, on February 10, 2000, it issued a temporary order barring him from the Fuel F a rm. On Febr uary 23, 2000, Mr. Rasing was permanently barred from the Fuel Farm. Thereafter, the agency proposed Mr. Raising’s removal, citing his statements to the EEO counselor.

05-3053 5During late 1999 and early 200 0, an RIF was taking shape at the Fuel F a rm. In July of 2000, while the removal action agains t Mr. Raising was pending, Mr. Rasing wa s separated from federal service by the RIF. 2 At the time of the RIF, t he Department of Defense (“DOD ”), of which the Nav y is a part, operated both an RPL and a separate priority placement program (“P PP”). T he DOD PPP has not been approved by OPM under 5 C.F.R. § 330.201(c). The recor d contains Mr. Rasing’s Notice of Reduction-I n-Force, which mentions that he “may be entitled to r egister in t he DO D Priority Plac e m ent Program ( PPP).” Mr. Rasing asked to be registered in the PPP, but was refuse d registration beca u s e he d i d n o t meet the eligibility requirements for it. Pursuant to the PPP Operations Manual employees ar e ineligible for the PPP if their performance or conduc t is less than “fully s a tisfactory.” The finding that Mr. Rasing’s per formance was not “fully satisfact o ry” was based solely on the December 15, 1999 Letter of Unsatisfactory Performance. 3 In the Notice of Reduction-In-Force Mr. Rasing received, there was no mention of the RPL. Mr. Rasing alleges that his reemployment pr iority rights were violated in the RIF. He alleges that, instead of being separat ed, he should have been placed through the DOD PP P in a WG-6 Fuel Distr ibution Worker position that became vacant s hortly after the RIF. Initial Dec i s i on , slip op. at 4. The pos ition was in fact filled by Margaret

2 The Board affirmed Mr. Rasing’s s eparation via the RIF in a separate decision dated April 30, 2001. Rasing v. Dep’t of the N a vy , Nos. SF-0351-00-0591-I-1, SF-0351-00-0591-I-2, slip op. (M.S.P.B. A p r. 30, 2001), aff’d , 57 Fed. Appx. 872 (Fed. Cir. 2003). 3 It appears that the Human Resource s Offic e personnel who evaluated Mr. Rasing’s request to be placed on the PPP were unaware of the statement made by Mr. Rasing to t he EEO Counselor and the result ing orders barring him fr om the Fuel Farm. Howev e r, the AJ noted that the barring orders would also have made Mr. Rasing ineligible fo r PPP registration. Initial Dec i sio n , slip op. at 6. 05-3053 6Lovato. Prior to the RIF, Ms. Lovato was employed as a maintenance worker at the Fuel F a rm. The agency check ed the DO D PP P b e fore promoting Ms. Lovato to the
vacancy. Id.
III. Mr. Rasing filed an appeal with the Board, al leging that his reem ployment priority rights had been violat ed. The AJ did not find any jurisdictional defect arising from the fact that Mr. Rasing attempted to register for the DOD PPP, but did n o t attempt to register for the DOD RPL. Initial Decis i on , slip op. at 3 n.2, 5. The AJ obs erved: “The PPP is a program establishe d by the DoD to satisfy the requirements of 5 C.F. R. § 330.201 et seq. and to est ablis h a[n RPL] for employees separated in a re duction-inforce.” Id. , slip op. at 3 n.2. The AJ ass u m ed that the agency’s PPP was required t o comply wit h the regulations at 5 C.F.R. § 330.201- 33 0.208, but found that the agency did not violate the regulati ons because the job Mr. Ras i ng alleged he was denied wa s given to M s . Lovato, who was an inte rnal c andidate for the position. Id. , slip op. at 6. Specifically , the AJ held that a violation of reemploym ent priority rights occurs under 5 C.F.R. § 330.205 only when an ex ternal c andidate is hired over an employ ee seeking reemployment. Id. T he AJ determined that becaus e Mr. Rasing had not alleged that the Navy had appointed a person who could not otherwise have been appointed had Mr. Rasing been registered, the Board had no jurisdicti on under 5 C.F.R. § 330.209 over his appeal. Id. In response to Mr. R a sing’s petition fo r review, Acting C hairman McPhie and Member Marshall agreed that the AJ correct ly dismissed Mr. Rasing’s c l aim; they differed in their reasoning, however. C hairman McPhie concluded that although Mr.

05-3053 7Rasing had successfully established jurisd iction, his claim failed on the merits. Fi nal Decis i on , 97 M.S.P.R. at 375. In her separ ate opinion, Member Marshall advocated affirming the AJ’s det ermination that the Boar d lacked jurisdiction to hear Mr. Rasing’s appeal on two grounds. Id. at 375-77. First, Member Ma rshall noted that even if Mr. Rasing had registered on the RPL, which he did not , the Board would lac k jurisdiction over his appeal because he had failed to make a nonfrivolous allegat ion that the agency had placed a person in the Fu el Distribution Worker posit ion who could not have been appointed properly to t he position if he had been on the DOD RPL. Id. at 377. Member Marshall noted that Ms. Lovato was an inter nal candidate for the position in question, and therefore the Navy was not required to hi re an employee from the DOD RPL befor e promoting her. Id. Member Marshall also outlined a second independent reason why , in her view, the Board lacked jurisd iction ov er Mr. Rasing’s appeal. Id. She noted that in order for the Board to have juri sdiction, an employee must show that he or she wa s registered for the RPL or an OPM-approved PPP. Id. (citing Sturdy v. Dep’t of the Army , 97 M.S.P.R. 1 46, 154-55 (2004), vacated , No. 05-3045, 2006 WL 589391 (Fed. Cir. Mar. 13, 2006)). She stated that becau se Mr. Rasing did not make a nonfrivolous allegation t hat he was regi stered in a subpar t B RPL or an OPM-approved PPP, he had failed to establis h the Board’s jurisdiction ov er his appeal. Id. Mr. Rasing timely appealed the decision of the Board to this court. We hav e jurisdiction over his appeal pursuant to 28 U

. S.C. § 1295(a)(9).

05-3053 8DISCUSSI ON
I. We will ov erturn a Board decisio n only if it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordanc e with law; (2) obtained without procedures required by law, rule, or regulation hav ing been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000). We review the Boar d’s finding s regarding questions of law, in cluding jurisdiction, without deference to the Board. Carley v. Dep’t of the Army , 413 F.3d 1354, 1356 (Fed. Cir. 2005) (citing Diefenderfer v

. Merit Sys. Prot. Bd. , 194 F.3d 1275, 1277 (Fed. Cir. 1999)).
II. Mr. Rasing contends that the B oard had jurisdiction over his appeal under 5 C.F.R. § 330.209 because he made a non-fr ivolous allegation that the agency appointed a person t o the Fuel Distribution Worker position who could not have been appointed properly to the pos ition had he been reg i ster ed for the DOD PPP. Mr. Rasing’s ar gument appears to be that under the DOD PPP an inte rnal candidate s u ch as Ms. Lovato may not be hired before a qua lified person on either the DOD PPP or the DOD RPL. Mr. Rasing disp utes Member Marshall’s analys is that the Bo ard lack s jurisdiction because he was not registered fo r the DOD RPL. He contends that the Navy failed to inform Mr. Rasi ng of his rights to apply for the RPL, as required by 5 C.F.R. § 330.205(c). On the merits, Mr. Rasing argues that his reemploym ent priority rights under the PPP were violated. He notes t hat under 5 C.F.R. § 330.203, elig ibilit y fo r the RPL is determined by the “last annual performance rati ng of record for part 351 purposes.”

05-3053 9Part 351 states that “[a]n empl oy ee’s entitlement to additional retention serv ice credit” in an RIF “shall be based on the empl oyee’s three most recent rati ngs of record . . . .” 5 C.F.R. § 351.504(b)(1). Mr. Rasing points out t hat his Notice of Reduction-In-Force stated that his last three “ratings of record ” listed him as being either “Exceeds Fully Successful” or “Outstanding.” Thus, Mr. Rasing alleges that the agency violated h i s rights unde r sections 330.201-33 0.208 by findi ng h i m disqua lifie d for the PPP based o n performance reviews that were not “ratings of record.” The gover nment counters that the Board lacked jurisdiction over Mr. Rasing’s appeal. The government argues that the AJ erred in concluding t hat the DOD PPP was operated in lieu of an RPL pursu ant to 5 C.F.R. § 330.201(c) . The government urges that because the DO D PPP has not bee n approved by OPM and becaus e Mr. Rasing did not allege that he registered for the DOD RPL, the Board lack ed jurisdiction to hear his appeal. In the alternativ e, the government notes that even if one assum e s that Mr. Rasing registered on the RPL, Mr. Rasi ng has not alleged a violation of his reemployment priority rights under sec t ions 330. 201-330.208. Specifically, the government argues that the agency was entitl ed to pr omote an internal can d idate suc h as Ms. Lovato to a position before a per son registered under the RPL pursuant to section 330.205(c). In other word s, becaus e Ms. Lovato was someone who could have been appointed to the Fuel Distribution Work er position, Board jurisdiction under 5 C.F.R. § 330.209 did not lie. The gov ernment thus asks us to affirm the Board’s decision dismissing for lack of juri sdiction.

05-3053 10III. The Board’s jurisdiction is limited to “ any action which is a ppealable to the Board under any law, rule, or regulat ion.” 5 U.S.C. § 7701 ( 2000); Cowan v. United States , 710 F.2d 803, 805 (Fed. Cir. 1983) (“The board has no plenary jurisdiction; rather, its jurisdiction is limited to those areas specifica lly granted by statute or regulation.”). Mr. Rasing had the burden of demonstrating the B oard’s jurisdiction by a preponderance of the evidenc e. See 5 C.F.R. § 1201.56. Two recent decisions of this court speak to the jurisdictional is sues that this appeal presents. In Roberto v. Department of the Navy , No. 05-3043, 2006 WL 590361 (Fed. Cir. Mar. 13, 2006), we held that t he Board only has jurisdiction o v er appeals brought by an individual who is r egistered fo r either an RPL or an OPM-approved PPP. Id. at *7. We also held, howev er, that even w hen an indiv i dual fails to register for an RPL or an OPM-approved PPP, t he Board has jurisdiction if an agency fails to inform the individual of his or her RPL rights as required by 5 C.F.R. § 330.203(b). Id. at *10. Roberto in volved the same DOD PPP an d DOD RPL that are at issue in Mr. Rasing ’s case. We determined that the Board lacked jurisdiction in Roberto because Mr. Roberto had failed to register for the D O D RP L and becaus e the DOD PPP, for which Mr. Roberto did register, was not an OPM-approved PPP. Id. at *11. We further determined that Mr. Roberto could not r e ly on section 330. 203(b) for jurisdiction because the agency had provided him with adequat e information about the RPL. Id. The same day that Roberto was decided, we is sued our decision in Sturdy v. Department of the Army , 2006 WL 589391. In Sturdy , we were presented again with an employee who had failed to register for an RPL or an OPM-approved PPP. Id. at *6.

05-3053 11Like Rober to , Sturdy also involv ed the s a me DOD RPL and DOD PPP that are at issu e in Mr. Rasing’s appeal. Des p it e Mr. Sturdy’s failure to register for the RPL, we determined that the Board had jurisdicti on over his appeal be cause the agency had misinformed him about the RPL. Id. Roberto disposes of Mr. Rasing’s claim that the Navy violated his reemploy ment priority rights under the DOD PPP. Bec aus e the DOD PPP was n o t OPM-approved, the Board lack ed jurisdiction over Mr. Ra sing ’s claim arising under the PPP. Roberto and Sturdy , however, both teach that Board jurisdiction lies ov er an appeal by an individual who did not register for an RPL if the indiv i dual’s failure to register for the RPL resulted from the employing agenc y’s failu re to inform the indiv i dual of his or her RPL rights or if the employing agency mis i nfo rmed the individual about his or her RPL rights. Mr. Rasing ar gues that t he Board had jurisdiction over his appea l because the Navy failed to inform him of his RP L rights. He urges us to remand the case to the Board s o that the facts on th is issue m a y be more fully dev eloped. We agree with Mr. Rasing that, on the record befor e us, it is not po ssible to determine whether or not he was provided adequate in formation concerning the DOD RPL when he was notified of the RIF. 4 Se e Roberto , 2006 WL 590361, at *10. We need not remand the case for further findings on this issue, however, bec ause, even assuming that Mr. Rasing was not pr ovided adequate information about the DOD RPL, the Boar d still lacke d jurisdiction over Mr. Rasing ’s app eal.

4 The government acknowledged at oral argument that it is unclear as to whether the record includes all the doc umentation about the RP L provided to Mr. Rasing. 05-3053 12As seen above, 5 C.F.R. § 330.209 provides that [a]n individual who believ e s that his or her reemployment priority rights under this subpart have been violated because of the empl oyment 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. The Board lacked jurisdiction ov er any RP L claim by Mr. Rasing because Mr. Rasing failed to demonstrate the second jurisdiction al requ irement of se ction 330.209—that any alleged v i olation of the regul ations governing RPLs result ed in the appoin tment of a person “who otherwise could not have been appoi nted properly.” Assuming f o r the sake of argument that Mr. Rasing was eligible for the DOD RPL, the relevant regulations
express l y allowed the agency to promote internal candidates be fore hiring off an RPL. See 5 C.F.R. § 330.205(c)(2)(i). Therefore, Ms. Lovato could have properly bee n appointed to the Fuel Distribution Worker pos ition regardless of whether or not Mr. Rasing was registered on the RPL. Thus, even assuming the Navy failed t o inform Mr. Rasing of his RPL rights, the Board lack ed jurisdicti on under 5 C.F.R. § 330.209 because M r . Rasing was not claiming that his r eemployment priority rights were violated because of the employment of a person “who otherwis e could not have been appointed properly” to the WG-6 pos ition. Thus, alth ough the AJ incorrectly concluded that the Board had jurisdiction to consider a claim, such as Mr. Rasing’s, based upon the DOD PPP, her ultimate decision dismis sing the appeal for lack of jurisdiction was correct. CONCLUS ION For the foregoing reasons, the final decisi on of the Board dismiss i ng Mr. Rasing’s appeal for lack of jurisdic tion is affirmed.

05-3053 13COSTS Each party shall bear its own costs.
AFFIRMED

05-3053 14