 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.
05-3053                                     2
              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-in-

force.” 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.




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                                      COSTS

     Each party shall bear its own costs.

                                     AFFIRMED




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