                    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.




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