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 United States Court of Appeals for the Federal Circuit



                                        04-3300



                                  MICHAEL CARLEY,

                                                             Petitioner,

                                           v.

                            DEPARTMENT OF THE ARMY

                                                             Respondent.



        Neil C. Bonney, Bonney & Allenberg, PC, of Virginia Beach, Virginia, for
petitioner.

       Joshua E. Gardner, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief was Daniel M.
Kininmonth, Trial Attorney, Litigation Division, United States Department of the Army, of
Fort Knox, Kentucky.

Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit

                                          04-3300

                                    MICHAEL CARLEY,

                                                                      Petitioner,

                                             v.

                             DEPARTMENT OF THE ARMY,

                                                                      Respondent.

                            ___________________________

                            DECIDED: June 28, 2005
                            ___________________________


Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by
Circuit Judge NEWMAN.

CLEVENGER, Circuit Judge.


        Michael Carley seeks review of the final decision of the Merit Systems Protection

Board    ("Board")   dismissing    his   appeal.      See   Carley   v.   Dep't     of   Def.,

No. CH0752020752-I-1 (M.S.P.B. Mar. 29, 2004).              Because Mr. Carley cannot

establish the jurisdiction of the Board, we affirm.

                                              I

        Mr. Carley was employed in Fort Knox, Kentucky, by the Department of the Army

("agency") as a grade WG-08 Industrial Equipment Control Repairer.            The agency

informed Mr. Carley that his position was slated to be abolished and that he would be

subject to a reduction in force ("RIF"). In December 2000, in lieu of the RIF, Mr. Carley
chose to participate in a voluntary Mock RIF and registered for placement under the

Department of Defense's Priority Placement Program ("PPP"). Participation in the PPP

meant that Mr. Carley could avoid the possible adverse consequences of the proposed

Fort Knox RIF. In January 2001, a formal RIF was noticed at Fort Knox.

       Under the PPP, Mr. Carley was offered a WG-05 position with the Department of

the Navy in Norfolk, Virginia, as a Utility Systems Repairer. At that time, the agency

was obligated by regulation to inform Mr. Carley whether the position in Norfolk was

under study for elimination.    If the position was subject to a study for elimination,

Mr. Carley could reject the offer and remain in the PPP, but if the position was not under

study, Mr. Carley was obligated to accept the placement or be removed from the PPP.

Personnel informed Mr. Carley that the Norfolk position was not under study for

elimination, and on March 11, 2001, Mr. Carley chose to accept the assignment with the

retained grade and pay of his WG-08 Fort Knox position for two years, rather than be

removed from the PPP. The formal RIF in Fort Knox became effective on June 2, 2001.

       On April 25, 2002, after Mr. Carley had been at Norfolk for over a year, the

agency announced a RIF that included Mr. Carley's new position.           Contrary to the

information given to Mr. Carley, the position in Norfolk was under study for elimination at

the time it was offered to Mr. Carley.        However, through inadvertent error, the

registering activity at the Fort Knox Civilian Personnel Office was not provided this

information, and consequently Mr. Carley did not know that the Norfolk position he

accepted was under consideration for elimination. As a result of the formal RIF at

Norfolk, Mr. Carley was placed in a WG-01 grade position with saved grade and pay

from Fort Knox on July 28, 2002.




04-3300                                  2
      On September 2, 2002, Mr. Carley appealed to the Board his March 11, 2001,

placement at Norfolk, citing his wish to return to Kentucky. He did not challenge the

legality of either the Fort Knox or the Norfolk RIF but asserted that he would not have

accepted the Norfolk position under the PPP if he had been told that the Norfolk position

was under review for elimination.

      While his appeal to the Board was pending and he was still in saved grade and

pay status, Mr. Carley voluntarily accepted a promotion to a WG-08 position in Norfolk

on October 6, 2002. This promotion was unrelated to a RIF or PPP. On December 9,

2002, based on this promotion an administrative judge ("AJ") dismissed Mr. Carley's

case as moot on the ground that there was no relief that could be afforded to him

because he had not suffered any reduction in grade or pay. Carley v. Dep't of Def.,

No. CH0752020752-I-1 (M.S.P.B. Dec. 9, 2002). The AJ did not address whether the

Board had jurisdiction. The full Board denied review on March 29, 2004. Carley v.

Dep't of Def., No. CH0752020752-I-1 (M.S.P.B. Mar. 29, 2004).          Mr. Carley timely

sought review in this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                            II

     This court will not overturn an appeal from a decision of the Board unless the

Board's decision is arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; obtained without procedures required by law, rule or regulation; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000). This court reviews

questions of law and determinations of jurisdiction without deference to the Board.

Diefenderfer v. Merit Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed. Cir. 1999).




04-3300                                 3
       The Board has jurisdiction over only those actions which are made appealable to

it by law, rule, or regulation. 5 U.S.C. §§ 1204(a)(1), 7701(a) (2000); Butler v. Soc. Sec.

Admin., 331 F.3d 1368, 1372 (Fed. Cir. 2003). A challenge to the Board's jurisdiction

may be made at any time, even on appeal. Bender v Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986).

                                             III

       Mr. Carley asserts that the Board had jurisdiction over his case under 5 U.S.C.

§ 7513. As the government points out, the grant of jurisdiction to the Board under

section 7513 is limited to the specific adverse actions denominated in Subchapter II of

Title 5, as listed in section 7512.      These adverse actions include a removal, a

suspension for more than 14 days, a reduction in grade, a reduction in pay, and a

furlough of 30 days or less. 5 U.S.C. § 7512 (2000).

       Section 7512 also expressly excludes actions arising from a reduction in force

under section 3502 of Title 5.     However, the Board does have jurisdiction to hear

appeals for certain actions arising from a reduction in force, i.e. "[a]n employee who has

been furloughed for more than 30 days, separated, or demoted by a reduction in force

action may appeal to the Merit Systems Protection Board." 5 C.F.R. § 351.901 (2005).

But Mr. Carley does not assert that he has been subjected to these actions under the

RIF. Rather, Mr. Carley's complaint is that he has been denied a transfer back to Fort

Knox. He does not contest the Board's statement that he has been promoted to a

position with the same grade and same pay, and that in the interim he received the

same pay in his saved grade and pay position.              Instead, he argues that the

government's erroneous information on the Norfolk position led him to accept the




04-3300                                  4
transfer, and but for that error he would still be in Fort Knox. According to Mr. Carley,

"[h]indsight establishes that the reduction in force [at Fort Knox] most probably would

have ended in his successful placement." (Appellant's Br. at 6.) He requests to be sent

back to Fort Knox so that the agency can "reconstruct what would have become of him

[under the Fort Knox RIF] based on his priority placement rights."        (Id. at 11.)   In

essence, Mr. Carley complains of his transfer from Kentucky to Virginia and seeks as

relief his return to Kentucky.

       We have held as a general proposition that reassignment or transfer, absent an

underlying action over which the Board has jurisdiction, does not provide the Board with

jurisdiction.1 See Brewer v. Am. Battle Monuments Comm'n, 779 F.2d 663, 664 (Fed.

Cir. 1985); Manning v. Merit Sys. Prot. Bd., 742 F.2d 1424, 1427 (Fed. Cir. 1984);

Thomas v. United States, 709 F.2d 48, 50 (Fed. Cir. 1983). This court has been clear:

"[A]llegations of a reassignment without change of grade or pay do not provide a basis

for MSPB jurisdiction." Manning, 742 F.2d at 1427.

       Although not advanced by Mr. Carley himself, the government's brief suggests a

possible avenue of jurisdictional authority for Mr. Carley. The actions complained of in

this case occurred in a PPP, but the regulation that provides for jurisdiction of the Board

in RIF actions may apply. The Office of Personnel Management ("OPM") has allowed



       1
              When the Board has jurisdiction, geographic transfers may be considered
when fashioning relief. The Board has held that when an agency is ordered to return an
employee to the status quo ante of his former employment, geographic factors such as
a return to the facility from which an employee was removed or reemployment in the
commuting area surrounding the employee's former position can be properly included
elements of relief. See Rogers v. Dep't of the Army, 88 M.S.P.R. 610 (2001);
Holtgrewe v. FDIC, 57 M.S.P.R. 307 (1993). This precedent, however, requires an
action over which the Board has jurisdiction before it can entertain geographic transfer
relief.


04-3300                                  5
agencies to use PPP procedures in lieu of formal RIFs for Reemployment Priority List

("RPL") rights under 5 U.S.C. § 3315. OPM has promulgated RPL regulations that

state:

         (c) 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.

5 C.F.R. § 330.201(c) (2005). Under this theory, if an agency chooses to use a PPP in

lieu of RPL rights, the PPP implicitly serves the purpose of protecting RPL rights. RPL

appeal rights are provided for in the regulations:

         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.

5 C.F.R. § 330.209 (2005).

         The Board has found that it possesses jurisdiction to review violations of

reemployment priority rights under a PPP when an agency maintains a PPP in lieu of a

distinct RPL. Stuck v. Dep't of the Navy, 72 M.S.P.R. 153, 156-58 (1996), overruled in

nonrelevant part by Sturdy v. Dep't of the Army, 88 M.S.P.R. 502, 510 n.4 (1998). The

Board in Stuck determined that the evidence established that the agency had chosen to

use a PPP in lieu of a RPL, and if review was denied under the PPP, an agency could

effectively deny an appellant review under 5 C.F.R. § 330.209. 72 M.S.P.R. at 156-57.

According to Stuck, where an agency operates a placement program for its employees

under 5 C.F.R. § 330.209, RPL appeal rights arise in a PPP when an employee's rights




04-3300                                    6
are violated "because of the employment of another person who otherwise could not

have been appointed properly." Id. at 156. In those circumstances, an agency cannot

remove RPL appeal rights by substituting a PPP for a formal RIF.

      However, because Mr. Carley does not argue that his reemployment priority

rights have been violated because of the employment of another person, Stuck is of no

aid to him. Mr. Carley asserts no error in his RPL rights, and therefore we need not

decide in this appeal whether Stuck correctly states the law concerning Board

jurisdiction for PPP cases. That issue is reserved for a case that squarely presents the

question.

                                            IV

      Had Mr. Carley met the requirement for jurisdiction under 5 U.S.C. § 7513 or

5 C.F.R. § 330.209, his request for transfer to Fort Knox would have been within the

realm of relief possible. Consequently, his case is not moot, and the Board thus erred

in dismissing Mr. Carley's appeal on mootness grounds. However, because Mr. Carley

has presented no jurisdictional foundation for his prayer for relief, the dismissal of his

appeal must therefore be affirmed. Mr. Carley's request for attorney fees is accordingly

denied.

                                         COSTS

      No costs.



                                       AFFIRMED




04-3300                                 7
United States Court of Appeals for the Federal Circuit


                                          04-3300



                                   MICHAEL CARLEY,

                                                         Petitioner,

                                             v.

                             DEPARTMENT OF THE ARMY,

                                                         Respondent.



NEWMAN, Circuit Judge, dissenting.




       I respectfully dissent. Mr. Carley was advised that if he turned down a valid offer

under the Priority Placement Program (PPP), that is, an offer of a position not under study

for elimination, he would lose his priority rights in the RIF. Thus he accepted the offer to

work in Norfolk, having twice asked whether the position in Norfolk was under study for

elimination, and being twice told that it was not and that the offer was valid. Within days

after his arrival in Norfolk, he was told that the position he had accepted was in fact under

study for elimination. He immediately told the agency that he wished to return to Fort Knox.

The record shows that the agency recognized its error and recommended this remedy, but

that it was not offered. Indeed, this is the same remedy Mr. Carley even now continues to

seek: a return to the PPP and RIF procedures at Fort Knox.
         It is correct, as the majority states, that the agency discovered its error. The record

contains a memorandum between agency personnel in the Department of Defense,

proposing that the "most reasonable remedy is to re-register Mr. Carley [in a PPP]." The

memorandum requires notification to the originating personnel officer when "registration

has been activated"; yet no such notification is in the record, nor any indication that this (or

any other) remedy was actually offered to Mr. Carley. The Board did not decide the case

on this ground.

         The Board decided the case on the quite different ground that since Mr. Carley had

not suffered a reduction in pay, and eventually was promoted to a job at Norfolk at his

original grade, he had no right to complain about the agency error that caused his

dislocation from Kentucky to Virginia. On this ground the Board ruled that the case was

"moot." Yet the Board has recognized that wrongful geographic dislocation is subject to

remedy. See Holtgrewe v. FDIC, 57 M.S.P.R. 307, 309-10 (1993) (return to a position at

the same grade and pay at a different geographic location is not return to the status quo

ante).

         The uprooting of an employee from home and neighborhood and job site is not an

event of insignificant human impact. When due to clear and admitted agency error, it is

subject to remedy. Mr. Carley requests no more than reconstruction of the RIF list at Fort

Knox with the priority of the position he held. A reconstructed RIF would determine what

positions would have been available to him, and aid in fashioning a suitable remedy. A

similar procedure was applied in Jordan v. Dep't of Justice, 91 M.S.P.R. 635, 638 (2002),

where the Board required the agency "to return the appellant to the eligibility list for

employment."


04-3300                                         2
       Since remedy was possible, the Board's dismissal of the case as moot was not in

accordance with law. See Church of Scientology v. United States, 506 U.S. 9, 13 ("The

availability of this possible remedy is sufficient to prevent this case from being moot"). See

generally 1A C.J.S. Actions §39 (when a court can provide effective relief, when the effect

of not deciding the case would be different from the relief that might be granted by ruling on

it, or when a party to the action would benefit from an order that could be rendered, the

case is not moot).

       The government provides no excuse for the Board's erroneous ruling of mootness,

and instead raises the issue of "jurisdiction." The panel majority, deciding that the Board

did not have jurisdiction, gives Mr. Carley no opportunity to defend the Board's jurisdiction,

and declines to remand for this purpose. Appellate review of agency rulings is limited to the

grounds on which the agency relied, and here the agency did not rely on jurisdiction. See

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 50 (1983) ("It is

well established that an agency's action must be upheld, if at all, on the basis articulated by

the agency itself"); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (citing SEC v.

Chenery Corp., 318 U.S. 80 (1943)) (a reviewing court must judge a decision of an

administrative agency "solely by the grounds invoked by the agency").

       In SEC v. Chenery the Court ruled that "if [the agency's] grounds are inadequate or

improper, the court is powerless to affirm the administrative action by substituting what it

considers to be a more adequate or proper basis." 332 U.S. at 196. Vacatur is required.

Holderfield v. Merit Sys. Prot. Bd., 326 F.3d 1207, 1209 (Fed. Cir. 2003) ("Since the Board

did not address the 'working conditions' definition of a personnel action, and we are not

able to review its decision without its analysis, we must vacate"); Whittington v. Merit Sys.


04-3300                                       3
Prot. Bd., 80 F.3d 471, 476 (Fed. Cir. 1996) (because the Board "failed to make relevant

factual findings or apply the appropriate statutory and regulatory law . . . we can neither

reverse nor affirm the Board's decision because either action would require us to apply law

the Board did not consider to facts the Board did not consider; such a complete de novo

review is not our proper role"). Without more, the panel majority's action is improper.

       Although jurisdiction may be challenged at any time, an untimely challenge does not

also confer authority on the appellate court to develop the arguments and bar the petitioner

not only from his day in court, but also from the opportunity to establish jurisdiction. See

Abbott Labs. v. Gardner, 387 U.S. 136, 140-41 (1967) (the heavy weight of authority favors

enabling access to the courts, not denying it). The question of jurisdiction that is now

raised by the panel majority requires exploration by the Board of the complex statutes and

regulations that govern RIF procedures, and should not be casually resolved to deprive the

petitioner of a hearing on this threshold question. See Commodity Futures Trading

Comm'n v. Schor, 478 U.S. 833, 845 (1986) (finding the agency's expertise on an issue of

its own jurisdiction "superior to that of a court"); St. Joseph Stock Yards Co. v. United

States, 298 U.S. 38, 53 (1936) ("the judicial duty is performed in the light of the

proceedings already had and may be greatly facilitated by the assembling and analysis of

the facts in the course of the legislative determination. Judicial judgment may be none the

less appropriately independent because informed and aided by the sifting procedure of an

expert legislative agency"). Federal Circuit precedent well supports remand for the purpose

of establishing the facts relevant to jurisdiction, when the challenge is raised on appeal.

See Holderfield v. Merit Sys. Prot. Bd., 326 F.3d 1207, 1210 (Fed. Cir. 2003) (vacating and

remanding to give petitioner opportunity to satisfy Board of jurisdiction); Dumas v. Merit


04-3300                                      4
Sys. Prot Bd., 789 F.2d 892, 895 (Fed. Cir. 1986) (same); Burgess v. Merit Sys. Prot. Bd.,

758 F.2d 641, 643 (Fed. Cir. 1985) (same). In Holderfield the government argued that the

Board lacked jurisdiction over an Individual Right of Action appeal because the employee

had failed to identify an agency action that would constitute a "personnel action" within the

meaning of 5 U.S.C. §2302(a)(2); the court held that because the Board had not

considered this provision, and the court is "not able to review its decisions without its

analysis," the decision "must" be vacated and remanded for the Board to determine

whether the allegations were "non-frivolous" and within the identified category, which are

"determinations for the Board in the first instance." Holderfield, 326 F.3d at 1209-10.

       The panel majority acknowledges that jurisdiction may lie under 5 C.F.R. §330.209,

which provides for RIF appeal when an employee believes that his priority rights were

violated by the placement of another person in a position that should have been his. Mr.

Carley states that "the vast majority of employees were placed during the RIF processes at

Fort Knox," whereas he was obliged, through agency error, to relocate to Norfolk. He

states that had this error not occurred, "in all probability" he would have been placed in the

Fort Knox area. On its face, the criteria of §330.209 are met, and these nonfrivolous

allegations, supported by admission of agency error, establish Board jurisdiction. See

Smith v. Dep't of the Army, 97 M.S.P.R. 272, 276 (2004) (jurisdiction is established where

the appellant makes a nonfrivolous allegation that the agency violated his RPL rights by

employing another person during his eligibility for the RPL).

       Agency precedent fully supports Mr. Carley. See Sweeney v. Dep't of the Interior,

73 M.S.P.R. 329, 334 (1997) (remanding for determination of jurisdiction where appellant

"alleged that he was separated by RIF, that there was an agencywide policy regarding


04-3300                                       5
reemployment priority rights and that [the agency] did not follow the policy"); Miller v. Dep't

of the Navy, 2005 MSPB LEXIS 763, at *5 (Jan. 25, 2005) (jurisdiction is established where

appellant made non-frivolous allegations, which if proven would show that "he applied to

the agency for RPL or PPP rights," and that "the agency's employment of another person

deprived him of those rights").

       The majority's ruling that the Board did not have jurisdiction of this admitted wrongful

agency action is incorrect. At a minimum, the case should be remanded to the Board for

review of jurisdiction, and to fashion a remedy appropriate to the agency's conceded

wrongful action.




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