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 Justice, of Washington, DC, argued 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. Rasing’s case held that 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 Decision”). Pursuant to 5 C.F.R. § 1200.3(b) 

(2006),1 the Initial Decision became the final decision of the Board when the two sitting 

Members of the Board were unable to agree on a ruling in response to Mr. Rasing’s 

petition for review. Final Decision, 97 M.S.P.R. at 374. We affirm. 

BACKGROUND 

I. 

We begin with the regulatory scheme that frames this case. Under the Veterans’ 

Preference Act of 1944, Pub. L. No. 78-359, 58 Stat. 387 (codified at 5 U.S.C. §§ 2108, 

3309-3320), “[a] preference eligible who has been separated or furloughed without 

delinquency or misconduct, on request, is entitled to have his name placed on 

appropriate registers and employment 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 adopted regulations to implement the requirements of 

section 3315. The regulations are codified in Subpart B of Part 330 of Title 5 of the 

Code of Federal Regulations. See 5 C.F.R. §§ 330.201-330.209. 

Sections 330.201-330.208 require that each agency maintain a reemployment

priority list (“RPL”) and establish guidelines for the operation of its RPL. Under section 

330.201(a), employees entered on an RPL enjoy, at a minimum, “priority consideration

over certain outside job applicants.” Once an employee is registered on the RPL,

section 330.205(b) entitles him or her to priority placement when a vacancy in the 

agency arises. Section 330.205(b) requires: 

 1 The relevant provisions of the Code of Federal Regulations have not been 

amended since 1997, when the events relevant to this appeal took place. Thus, all

references are to the 2006 version of the Code of Federal Regulations. 

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When a qualified individual is available on an agency’s RPL,

the agency may not make a final commitment to an 

individual not on the RPL to fill a permanent or temporary 

competitive service position by: 

(1) A new appointment, unless the individual appointed is a 

qualified 10-point preference eligible; or 

(2) Transfer or reemployment, unless the individual is a 

preference eligible, is exercising restoration rights under 

part 353 of this chapter based on return from military 

service or recovery from a compensable injury or 

disability within 1 year, or is exercising other statutory or 

regulatory reemployment rights. 

Although section 330.205(b) gives employees on the RPL significant priority over other 

applicants, subsection (c) allows an agency to choose certain employees over

candidates on the RPL. In particular, under 5 C.F.R. § 330.205(c)(2)(i) an agency may 

fill a specific position with “a current, qualified employee of the agency through [d]etail or

position change (promotion, demotion, reassignment)” rather than with a qualified 

employee from the RPL. Thus, a person registered on the RPL is not entitled to priority

over internal applicants for a position. 

Section 330.201(b) requires that each agency “establish and maintain a[n RPL] 

for each commuting area in which it separates eligible competitive service employees

by RIF . . . , except as provided by paragraph (c) of this section.” The section

330.201(c) exception states: 

An agency need not maintain 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 program satisfies the basic

requirements of this subpart. The intent of this provision is 

to allow agencies to adopt different placement strategies that 

are effective for their particular programs yet satisfy legal 

entitlements to priority consideration in reemployment. 

05-3053 3
Thus, the regulation requires that an agency maintain either an RPL or an alternate 

program that has obtained OPM concurrence. 

Although agencies must maintain an RPL under sections 330.201(a) and (b) or 

an equivalent under section 330.201(c), the regulations do not mandate that employees

participate in available agency reemployment programs. Section 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 application, within the time frame set forth in 

section 330.202(a)(1). Section 330.202(a)(1) provides: 

To be entered on the RPL, an eligible employee

under § 330.203 must complete an application . . . . 

Registration may take place as soon as a specific notice of 

separation under part 351 of this chapter, or a Certification of

Expected Separation as provided in § 351.807 of this 

chapter, has been issued. The employee must submit the 

application within 30 calendar days after the RIF separation 

date. An employee who fails to submit a timely application is 

not entitled to be placed on the RPL. 

Even though an employee is not entitled to automatic entry on the RPL, he or

she is entitled to receive information from the agency that may aid the employee in 

applying for the RPL. Pursuant to 5 C.F.R. § 330.203(b), at the time employees receive 

notices of separation or Certifications of Expected Separation, “the agency must give 

each eligible employee information about the RPL, including appeal rights.” 

Employee appeal rights are established by section 330.209, which provides: 

An 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. 

05-3053 4
II. 

Between 1993 and 2000, Mr. Rasing was employed by the Navy’s Fleet and 

Industrial Supply Center (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 Farm. 

In 1999, Mr. Rasing took four months of medical leave. Initial Decision, slip op. 

at 4. Upon returning in December of 1999, he received a Letter of Unsatisfactory 

Performance, which was dated December 15, 1999. Id. The letter outlined Mr. 

Rasing’s unsatisfactory performance in the critical element of “Execution of Duties” and 

explained that he had sixty days to demonstrate 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 stated 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. Consequently, on February 10, 2000, it issued a temporary order 

barring him from the Fuel Farm. On February 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 5
During late 1999 and early 2000, an RIF was taking shape at the Fuel Farm. In 

July of 2000, while the removal action against Mr. Raising was pending, Mr. Rasing was

separated from federal service by the RIF.2 

At the time of the RIF, the Department of Defense (“DOD”), of which the Navy is

a part, operated both an RPL and a separate priority placement program (“PPP”). The 

DOD PPP has not been approved by OPM under 5 C.F.R. § 330.201(c). The record

contains Mr. Rasing’s Notice of Reduction-In-Force, which mentions that he “may be 

entitled to register in the DOD Priority Placement Program (PPP).” Mr. Rasing asked to

be registered in the PPP, but was refused registration because he did not meet the 

eligibility requirements for it. Pursuant to the PPP Operations Manual employees are 

ineligible for the PPP if their performance or conduct is less than “fully satisfactory.”

The finding that Mr. Rasing’s performance was not “fully satisfactory” 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 priority rights were violated in the RIF. 

He alleges that, instead of being separated, he should have been placed through the 

DOD PPP in a WG-6 Fuel Distribution Worker position that became vacant shortly after 

the RIF. Initial Decision, slip op. at 4. The position was in fact filled by Margaret 

 2 The Board affirmed Mr. Rasing’s separation via the RIF in a separate 

decision dated April 30, 2001. Rasing v. Dep’t of the Navy, Nos. SF-0351-00-0591-I-1, 

SF-0351-00-0591-I-2, slip op. (M.S.P.B. Apr. 30, 2001), aff’d, 57 Fed. Appx. 872 (Fed.

Cir. 2003). 

3 It appears that the Human Resources Office personnel who evaluated Mr. 

Rasing’s request to be placed on the PPP were unaware of the statement made by Mr.

Rasing to the EEO Counselor and the resulting orders barring him from the Fuel Farm.

However, the AJ noted that the barring orders would also have made Mr. Rasing 

ineligible for PPP registration. Initial Decision, slip op. at 6. 

05-3053 6
Lovato. Prior to the RIF, Ms. Lovato was employed as a maintenance worker at the 

Fuel Farm. The agency checked the DOD PPP before promoting Ms. Lovato to the 

vacancy. Id. 

III. 

Mr. Rasing filed an appeal with the Board, alleging that his reemployment priority 

rights had been violated. The AJ did not find any jurisdictional defect arising from the 

fact that Mr. Rasing attempted to register for the DOD PPP, but did not attempt to 

register for the DOD RPL. Initial Decision, slip op. at 3 n.2, 5. The AJ observed: “The 

PPP is a program established by the DoD to satisfy the requirements of 5 C.F.R. 

§ 330.201 et seq. and to establish a[n RPL] for employees separated in a reduction-inforce.” Id., slip op. at 3 n.2. The AJ assumed that the agency’s PPP was required to

comply with the regulations at 5 C.F.R. § 330.201-330.208, but found that the agency

did not violate the regulations because the job Mr. Rasing alleged he was denied was

given to Ms. Lovato, who was an internal candidate for the position. Id., slip op. at 6.

Specifically, the AJ held that a violation of reemployment priority rights occurs under 5 

C.F.R. § 330.205 only when an external candidate is hired over an employee seeking 

reemployment. Id. The AJ determined that because 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 jurisdiction under 5 C.F.R. § 330.209 

over his appeal. Id.

In response to Mr. Rasing’s petition for review, Acting Chairman McPhie and 

Member Marshall agreed that the AJ correctly dismissed Mr. Rasing’s claim; they

differed in their reasoning, however. Chairman McPhie concluded that although Mr. 

05-3053 7
Rasing had successfully established jurisdiction, his claim failed on the merits. Final 

Decision, 97 M.S.P.R. at 375. In her separate opinion, Member Marshall advocated 

affirming the AJ’s determination that the Board lacked jurisdiction to hear Mr. Rasing’s 

appeal on two grounds. Id. at 375-77. First, Member Marshall noted that even if Mr. 

Rasing had registered on the RPL, which he did not, the Board would lack jurisdiction 

over his appeal because he had failed to make a nonfrivolous allegation that the agency 

had placed a person in the Fuel Distribution Worker position who could not have been 

appointed properly to the position if he had been on the DOD RPL. Id. at 377. Member 

Marshall noted that Ms. Lovato was an internal candidate for the position in question,

and therefore the Navy was not required to hire an employee from the DOD RPL before

promoting her. Id. Member Marshall also outlined a second independent reason why,

in her view, the Board lacked jurisdiction over Mr. Rasing’s appeal. Id. She noted that 

in order for the Board to have jurisdiction, an employee must show that he or she was

registered for the RPL or an OPM-approved PPP. Id. (citing Sturdy v. Dep’t of the 

Army, 97 M.S.P.R. 146, 154-55 (2004), vacated, No. 05-3045, 2006 WL 589391 (Fed. 

Cir. Mar. 13, 2006)). She stated that because Mr. Rasing did not make a nonfrivolous

allegation that he was registered in a subpart B RPL or an OPM-approved PPP, he had 

failed to establish the Board’s jurisdiction over his appeal. Id.

Mr. Rasing timely appealed the decision of the Board to this court. We have

jurisdiction over his appeal pursuant to 28 U.S.C. § 1295(a)(9). 

05-3053 8
DISCUSSION 

I. 

We will overturn a Board decision only if it is “(1) arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000). We review the Board’s findings

regarding questions of law, including 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 Board had jurisdiction over his appeal under 5 

C.F.R. § 330.209 because he made a non-frivolous allegation that the agency

appointed a person to the Fuel Distribution Worker position who could not have been 

appointed properly to the position had he been registered for the DOD PPP. Mr. 

Rasing’s argument appears to be that under the DOD PPP an internal candidate such 

as Ms. Lovato may not be hired before a qualified person on either the DOD PPP or the 

DOD RPL. Mr. Rasing disputes Member Marshall’s analysis that the Board lacks

jurisdiction because he was not registered for the DOD RPL. He contends that the 

Navy failed to inform Mr. Rasing 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 reemployment priority rights under the 

PPP were violated. He notes that under 5 C.F.R. § 330.203, eligibility for the RPL is 

determined by the “last annual performance rating of record for part 351 purposes.” 

05-3053 9
Part 351 states that “[a]n employee’s entitlement to additional retention service credit” in 

an RIF “shall be based on the employee’s three most recent ratings of record . . . .” 5 

C.F.R. § 351.504(b)(1). Mr. Rasing points out that 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 his 

rights under sections 330.201-330.208 by finding him disqualified for the PPP based on

performance reviews that were not “ratings of record.” 

The government counters that the Board lacked jurisdiction over Mr. Rasing’s

appeal. The government argues that the AJ erred in concluding that the DOD PPP was

operated in lieu of an RPL pursuant to 5 C.F.R. § 330.201(c). The government urges 

that because the DOD PPP has not been approved by OPM and because Mr. Rasing 

did not allege that he registered for the DOD RPL, the Board lacked jurisdiction to hear 

his appeal. In the alternative, the government notes that even if one assumes that Mr. 

Rasing registered on the RPL, Mr. Rasing has not alleged a violation of his

reemployment priority rights under sections 330.201-330.208. Specifically, the 

government argues that the agency was entitled to promote an internal candidate such

as Ms. Lovato to a position before a person registered under the RPL pursuant to 

section 330.205(c). In other words, because Ms. Lovato was someone who could have 

been appointed to the Fuel Distribution Worker position, Board jurisdiction under 5 

C.F.R. § 330.209 did not lie. The government thus asks us to affirm the Board’s 

decision dismissing for lack of jurisdiction. 

05-3053 10
III. 

The Board’s jurisdiction is limited to “any action which is appealable to the Board 

under any law, rule, or regulation.” 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 specifically granted by statute or regulation.”). Mr.

Rasing had the burden of demonstrating the Board’s jurisdiction by a preponderance of

the evidence. See 5 C.F.R. § 1201.56. 

Two recent decisions of this court speak to the jurisdictional issues 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 the Board only has jurisdiction over appeals

brought by an individual who is registered for either an RPL or an OPM-approved PPP. 

Id. at *7. We also held, however, that even when an individual fails to register for an 

RPL or an OPM-approved PPP, the 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 involved the same DOD PPP and 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 DOD RPL and because 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 rely on section 330.203(b) for jurisdiction 

because the agency had provided him with adequate information about the RPL. Id. 

The same day that Roberto was decided, we issued 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 11
Like Roberto, Sturdy also involved the same DOD RPL and DOD PPP that are at issue 

in Mr. Rasing’s appeal. Despite Mr. Sturdy’s failure to register for the RPL, we 

determined that the Board had jurisdiction over his appeal because the agency had 

misinformed him about the RPL. Id. 

Roberto disposes of Mr. Rasing’s claim that the Navy violated his reemployment

priority rights under the DOD PPP. Because the DOD PPP was not OPM-approved, the

Board lacked jurisdiction over Mr. Rasing’s claim arising under the PPP. 

Roberto and Sturdy, however, both teach that Board jurisdiction lies over an 

appeal by an individual who did not register for an RPL if the individual’s failure to 

register for the RPL resulted from the employing agency’s failure to inform the individual

of his or her RPL rights or if the employing agency misinformed the individual about his

or her RPL rights. Mr. Rasing argues that the Board had jurisdiction over his appeal 

because the Navy failed to inform him of his RPL rights. He urges us to remand the 

case to the Board so that the facts on this issue may be more fully developed. We 

agree with Mr. Rasing that, on the record before us, it is not possible to determine 

whether or not he was provided adequate information concerning the DOD RPL when 

he was notified of the RIF.4

 See Roberto, 2006 WL 590361, at *10. We need not

remand the case for further findings on this issue, however, because, even assuming 

that Mr. Rasing was not provided adequate information about the DOD RPL, the Board 

still lacked jurisdiction over Mr. Rasing’s appeal. 

 4 The government acknowledged at oral argument that it is unclear as to 

whether the record includes all the documentation about the RPL provided to Mr. 

Rasing. 

05-3053 12
As seen above, 5 C.F.R. § 330.209 provides 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. 

The Board lacked jurisdiction over any RPL claim by Mr. Rasing because Mr. Rasing 

failed to demonstrate the second jurisdictional requirement of section 330.209—that any 

alleged violation of the regulations governing RPLs resulted in the appointment of a 

person “who otherwise could not have been appointed properly.” Assuming for the sake 

of argument that Mr. Rasing was eligible for the DOD RPL, the relevant regulations

expressly allowed the agency to promote internal candidates before hiring off an RPL. 

See 5 C.F.R. § 330.205(c)(2)(i). Therefore, Ms. Lovato could have properly been

appointed to the Fuel Distribution Worker position regardless of whether or not Mr. 

Rasing was registered on the RPL. Thus, even assuming the Navy failed to inform Mr. 

Rasing of his RPL rights, the Board lacked jurisdiction under 5 C.F.R. § 330.209 

because Mr. Rasing was not claiming that his reemployment priority rights were violated 

because of the employment of a person “who otherwise could not have been appointed 

properly” to the WG-6 position. Thus, although 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 dismissing the appeal for lack of jurisdiction was correct. 

CONCLUSION 

For the foregoing reasons, the final decision of the Board dismissing Mr. Rasing’s

appeal for lack of jurisdiction is affirmed. 

05-3053 13
COSTS 

Each party shall bear its own costs. 

AFFIRMED

05-3053 14