 United States Court of Appeals for the Federal Circuit


                                      05-3045



                                JERRY C. STURDY,

                                                           Petitioner,

                                          v.


                           DEPARTMENT OF THE ARMY,

                                                           Respondent.



      Sharon K. Weaver, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Inc., of Tulsa,
Oklahoma, for petitioner. With her on the brief was James R. Polan.

        Nancy M. Kim, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Bryant G. Snee, Assistant Director. Of counsel on the brief was Kathryn McClure,
Office of the Staff Judge Advocate, United States Army Field Artillery Center, of Fort
Sill, Oklahoma.

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


                                       05-3045


                                 JERRY C. STURDY,

                                                     Petitioner,

                                          v.


                           DEPARTMENT OF THE ARMY,

                                                     Respondent.



                          _______________________

                          DECIDED: March 13, 2006
                          _______________________



Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and SCHALL, Circuit
Judge.

SCHALL, Circuit Judge.


      Jerry C. Sturdy petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that (i) rejected his claim that the Department of the Army

(“Army” or “agency”) violated his reemployment priority rights in the course of a

reduction in force (“RIF”) action and (ii) sustained the action of the Army reassigning

him from the GS-11 position of Resource Management Specialist at Fort Chaffee,

Arkansas, to the GS-11 position of Conservation Specialist at Fort Worth, Texas.

Sturdy v. Dep’t of the Army, No. DA-0330-98-0028-B-1, slip op. (M.S.P.B. Feb. 7, 2002)
(“Initial Decision”).   Pursuant to 5 C.F.R. § 1200.3(b) (2005),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. Sturdy’s petition for review. Sturdy v.

Dep’t of the Army, 97 M.S.P.R. 146 (2004) (“Sturdy III”). For the reasons set forth

below, we vacate and remand.

                                    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 at 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.” The regulations provide that an agency may not

make a final commitment to an individual not on the RPL to fill a permanent or

temporary competitive service position when a “qualified” individual is available on the

       1
             The relevant provisions of the Code of Federal Regulations have not been
amended since 1997, the time when the events relevant to this appeal took place.
Thus, unless otherwise indicated, all references are to the 2005 version of the Code of
Federal Regulations.
05-3045                                     2
agency’s RPL, unless the first individual is on the agency’s rolls.             5 C.F.R.

§§ 330.205(b), (c).

      Section 330.201(b) requires that each agency “establish and maintain a

reemployment priority list 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.

Thus, the regulations require that an agency maintain either an RPL or an alternative

program that has obtained OPM concurrence or, put another way, approval.

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

an equivalent program 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.

05-3045                                     3
      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 (“CES”)s, “the agency

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

      The regulations also establish qualification requirements for placement through

the RPL. In order to be appointed to an open position through the RPL an employee

must meet all the requirements set forth in section 330.208(a). Section 330.208(a)

provides:

                    Subject to applicable requirements of law and this
             chapter, an individual is considered qualified for a position if
             he or she:
             (1) Meets OPM-established or approved qualification
             standards and requirements for the position, including any
             minimum educational requirements, and any selection
             placement factors established by the agency;
             (2) Is physically qualified, with reasonable accommodation
             where appropriate, to perform the duties of the position; and
             (3) Meets any special qualifying condition that OPM has
             approved for the position.
             (4) Meets any other applicable requirement for appointment
             to the competitive service.

As noted above, section 330.205(b) requires priority treatment for “qualified” individuals

on an agency’s RPL. However, section 330.208(a)(1) gives an agency some discretion

to establish “selection placement factors.” In the August 1995 “Operating Manual for

Qualification Standards for General Schedule Positions” (“Operating Manual for

Qualification Standards”), OPM notes that “selective placement factors”2 include



      2
            OPM appears to use “selection placement factors” and “selective
placement factors” interchangeably under section 330.208. When section 330.208 was
enacted in 1988, OPM used the term “selective placement factors” in the regulation.
05-3045                                     4
“specialized agency requirements” such as specific training or educational requirements

for a particular position. For example, an agency may require knowledge of economics

for an economist position. The Operating Manual for Qualification Standards also notes

that an agency may require that an employee have an appropriate license, registration,

or certification for a particular position. Therefore, “selection placement factors” appear

to be agency-established requirements that are tailored for a particular position.

Further, subsection (b) of section 330.208 contains an exception that allows an agency,

under certain enumerated conditions, to adopt an alternative qualification standard other

than the one set forth in subsection (a). Section 330.208(b) expressly notes, however,

that this exception “does not authorize a waiver of the selection order required by

§ 330.207.”

       Section 330.207 establishes two permissible selection order methods for

operating an RPL.      These methods are set forth in section 330.207(b), entitled

“Retention standing order,” and section 330.207(c), entitled “Rating and ranking.” If an

agency chooses to follow the “Retention standing order” method described in

subsection (b), the agency is required to “place qualified individuals in group and

subgroup order in accordance with part 351 of this chapter.”3           Id. § 330.207(b)

(emphasis added). If the agency chooses the “Rating and ranking” option set forth in

subsection (c), then the agency is required to “rate[ ] qualified individuals according to

their job experience and education.” Id. § 330.207(c) (emphasis added). Thus, both of


(Cont’d….)
Final Regulation, 53 Fed. Reg. 45,065, 45,068 (Nov. 8, 1988). We have found no
indication as to why the term was changed to “selection placement factors” in the
currently codified regulation.
       3
              Part 351 governs “Reduction in Force.” Subparts D and E of Part 351
describe procedures for determining retention standing order.
05-3045                                     5
the selection order options set forth in section 330.207(c) refer to “qualified individuals.”

Section 330.207(d) creates an exception that allows an agency to appoint an individual

who is either not on the RPL or has a lower standing than others on the RPL to a

position when it is “necessary to obtain an employee for duties that cannot be taken

over without undue interruption.”

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

                     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.

                                             II.

       Turning to the facts of this case, Mr. Sturdy was working as a Resource

Management Specialist for the Army at Fort Chaffee, Arkansas, when he received a

notice, dated April 3, 1997, informing him that he would be subject to an RIF effective

September 30, 1997. At the time of the RIF, the Department of Defense (“DOD”), of

which the Army is a part, operated both an RPL and a separate priority placement

program (“PPP”). It is undisputed that the PPP was not OPM-approved.

       After receiving the notice, Mr. Sturdy took action to increase his chances of

finding a new position before the RIF took effect. In that regard, he registered for the

PPP. He did not apply for the RPL, however.

       After being registered for the PPP in May of 1997, Mr. Sturdy applied for one of

three open Environmentalist positions at Fort Chaffee, for which he was rated

“qualified.” The Army found that he was not “well qualified” for the Environmentalist

positions, however, and hired three external applicants instead. These applicants were

05-3045                                      6
not registered on the RPL or on the PPP. Mr. Sturdy ultimately accepted reassignment

through the PPP to a Conservation Specialist position at Fort Worth, Texas, in August of

1997. Because his reassignment took effect prior to the September 30, 1997 RIF, Mr.

Sturdy was never separated by the RIF. Both Mr. Sturdy’s former position as Resource

Management Specialist and his new position as Conservation Specialist were at grade

GS-11 and carried the same pay.

                                           III.

      Mr. Sturdy appealed to the Board on October 14, 1997, claiming that the Army

violated his reemployment priority rights when it did not select him for one of the three

Environmentalist positions at Fort Chaffee, Arkansas.        In an initial decision, the

administrative judge (“AJ”) to whom the case was assigned dismissed the appeal for

lack of jurisdiction because Mr. Sturdy had not registered for the RPL, although he

noted Mr. Sturdy’s contention that the Army told him that he would be registered on the

RPL as of the date of his separation pursuant to the RIF. Sturdy v. Dep’t of the Army,

No. DA-0330-98-0028-I-1, slip op. at 2-4 (M.S.P.B. Jan. 15, 1998).

      Mr. Sturdy petitioned the Board for review of the initial decision. On Mr. Sturdy’s

petition for review, the Board, citing Stuck v. Department of the Navy, 72 M.S.P.R. 153

(1996), stated: “[A]n agency may maintain both an RPL and a PPP, and the Board has

held that, pursuant to [5 C.F.R. §] 330.209, it has jurisdiction to review an alleged

violation of reemployment priority rights under a PPP.” Sturdy v. Dep’t of the Army, 80

M.S.P.R. 273, 276 (1998) (“Sturdy I”), reh’g granted, 230 F.3d 1372 (Fed. Cir. 1999)

(table) (“Sturdy Rehearing Decision”), rev’d, Sturdy v. Dep’t of the Army, 88 M.S.P.R.

502 (2001) (“Sturdy II”). The Board thus agreed with Mr. Sturdy that his failure to



05-3045                                     7
register for the RPL did not “necessarily deprive the Board of jurisdiction over [his]

appeal.” Id. However, the Board affirmed the AJ’s dismissal of Mr. Sturdy’s appeal for

lack of jurisdiction on the alternative ground that an employee could only appeal an

alleged violation of reemployment priority rights if the employee was separated from his

or her position by an RIF, which was not the case with Mr. Sturdy. Id.

      The Board’s decision in Sturdy I was appealed. While the appeal was pending,

the government filed a motion requesting a remand to the Board, so that the Board

could address how changes in 5 C.F.R. § 330.203(a)(3) affected the Board’s jurisdiction

over an employee who, like Mr. Sturdy, had been notified of an impending RIF, but was

never actually separated from his or her position. See Eligibility Due to Reduction in

Force, 57 Fed. Reg. 21,890 (May 26, 1992).4 We granted the government’s request.

Sturdy Rehearing Decision, 230 F.3d at 1372.

      On remand, the Board (with its full complement of Members) deferred to the view

of OPM that separation by an RIF was not necessary for jurisdiction over an appeal of

RPL rights under 5 C.F.R. § 330.209. Sturdy II, 88 M.S.P.R. at 510. The Board then

ruled that it had jurisdiction even though Mr. Sturdy had not registered for the RPL

because the Army’s misinformation about the RPL caused Mr. Sturdy not to register for



      4
              In 1992, OPM altered the eligibility requirements for entry on the RPL to
allow employees to register for the RPL up to six months prior to separation by an RIF.
Prior to 1992, subsection (a)(3) required that an employee has “received a specific
notice of separation under Part 351 of this chapter” before the employee could be
entered on the RPL. 5 C.F.R. § 330.203(a)(3) (1991). The 1992 amendments provided
instead that an employee has “received 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.” 5 C.F.R. § 330.203(a)(3) (1993) (emphasis added). Thus, as of 1992, an
employee is eligible for entry on an RPL when the employee is either separated by an
RIF or, alternatively, when the employee receives a CES, which may be issued up to six
months prior to separation by an RIF. See 5 C.F.R. § 330.203(a).
05-3045                                    8
it.5 Id. at 511-12. Based upon its ruling, the Board remanded the case to the AJ for

adjudication of the merits of Mr. Sturdy’s reemployment priority rights claim.

       The AJ ruled in the initial decision on remand that the Army had not violated Mr.

Sturdy’s reemployment priority rights when it found that Mr. Sturdy was not “well

qualified” for an Environmentalist position. Initial Decision, slip op. at 1-12. Mr. Sturdy

timely petitioned for review of the initial decision by the full Board. In an order issued

September 23, 2004, the two sitting Members of the Board, Chairman McPhie and

Member Marshall, failed to agree on the disposition of the petition for review. Sturdy III,

97 M.S.P.R. 146. Under 5 C.F.R. § 1200.3(b), the initial decision thereby became the

final decision of the Board.

       In the September 23, 2004 order, Chairman McPhie expressed his view that the

Board had jurisdiction because Mr. Sturdy’s failure to register for the RPL was due to

agency misinformation. Sturdy III, 97 M.S.P.R. at 153. Despite the fact that the Board

had jurisdiction over Mr. Sturdy’s appeal, Chairman McPhie would have affirmed the

AJ’s decision on the merits because, in his view, the agency did not err in finding that

Mr. Sturdy was not “well qualified.” Id. at 153. Member Marshall, on the other hand,

would have dismissed Mr. Sturdy’s appeal for lack of jurisdiction. In her view, Mr.

Sturdy’s appeal failed to meet the jurisdictional requirements of 5 C.F.R. § 330.209 for



       5
               The Board found credible Mr. Sturdy’s allegation that he was told that he
and other employees who were affected by the RIF would be registered on the RPL on
the date of their RIF separations, which in Mr. Sturdy’s case was September 30, 1997.
Sturdy II, 88 M.S.P.R. at 512. The Board determined that this allegation indicated “that
the agency would register employees for the RPL on their separation date” and that Mr.
Sturdy was entitled to rely on this information. Id. The Board also found that the
agency’s RIF notice and attached information sheet, which Mr. Sturdy received, were
insufficient to rebut the above misinformation because they did not indicate when Mr.
Sturdy would be registered (or allowed to register) for the RPL. Id.
05-3045                                     9
two reasons: (i) Mr. Sturdy was never separated or demoted pursuant to an RIF; and (ii)

Mr. Sturdy was not registered under either an RPL or an OPM-approved PPP. Id. at

154-55.

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

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

                                      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.

       We first address the jurisdictional issues in the case. On appeal, the government

does not argue, as it did below, that the Board lacked jurisdiction because Mr. Sturdy

was never separated by an RIF. Rather, the government argues that the Board lacked

jurisdiction because Mr. Sturdy failed to register for the RPL or an OPM-approved PPP.

Additionally, the government argues that the Board erred in Sturdy II in concluding that

it could exercise jurisdiction over Mr. Sturdy’s appeal because his failure to register for

the RPL was the result of misinformation from the Army.




05-3045                                     10
       Preliminarily, even though the government does not challenge the Board’s

jurisdiction on the ground that Mr. Sturdy was not separated in the RIF, we must

address the issue. The parties may not confer jurisdiction by consent and we must be

satisfied that the Board did have jurisdiction. See Dunklebarger v. Merit Sys. Prot. Bd.,

130 F.3d 1476, 1480 (Fed. Cir. 1997) (“[A]n agency cannot by acquiescence confer

jurisdiction on the Merit Systems Protection Board to hear an appeal that Congress has

not authorized the Board to entertain.”).

       As noted above, the Board ruled in Sturdy II that it had jurisdiction,

notwithstanding that Mr. Sturdy had not been separated in the RIF. 88 M.S.P.R. at 510.

It did so after considering the advisory opinion that it had requested from OPM on the

question. Id. In its advisory opinion, OPM stated that “[s]ince 1987, OPM has notified

agencies that RPL appeal rights for employees accrue at the time they have been

specifically notified that they are to be separated based on a RIF and are registered on

the RPL.” Thus, it was OPM’s position that, even prior to the 1992 amendment to

section 330.203(a), an employee had appeal rights prior to being RIFed. According to

OPM, the 1992 amendment merely changed the timing of accrual to allow employees to

acquire RPL appeal rights after receiving a CES. Based upon OPM’s views, the Board

reasoned that separation by RIF is not a jurisdictional requirement for an appeal of

reemployment priority rights. Sturdy II, 88 M.S.P.R. at 510. The Board noted that

OPM’s interpretation was “neither plainly erroneous nor inconsistent with the

regulations.” Id. Further, the Board was persuaded that public policy favored allowing

an employee to appeal reemployment priority rights prior to the employee’s separation

by an RIF. Id. We see no error in the Board’s ruling on this jurisdictional point. OPM’s



05-3045                                     11
position and the Board’s ruling are consistent with the language of 5 C.F.R.

§ 330.203(a).

       The jurisdictional arguments that the government does make are resolved by

Roberto v. Department of the Navy, No. 05-3043, decided today. In Roberto, we hold

that the Board has jurisdiction under 5 C.F.R. § 330.209 over a reemployment priority

rights claim that is asserted by an individual who registered for either an RPL or an

OPM-approved PPP.        We also hold that the Board has jurisdiction under section

330.209 over a reemployment priority rights claim that is asserted by an individual who

did not register for an RPL when his or her employing agency failed to provide the

individual with correct information about the RPL as required by 5 C.F.R. § 330.203(b).

       Turning to this case, Mr. Sturdy was not registered on the RPL, and the PPP in

which he did register is not OPM-approved. However, in Sturdy II, the Board held that it

had jurisdiction because Mr. Sturdy’s failure to register on the RPL was the result of

misinformation he received from the Army. Sturdy II, 88 M.S.P.R. at 512. As noted, the

Board based its finding that Mr. Sturdy had been misinformed on (i) Mr. Sturdy’s

affidavit stating that the Army led him to believe that he would be entered on the RPL as

of the date of his separation by the RIF and (ii) the deficiencies in the description of the

RPL that the Army provided to Mr. Sturdy with his RIF notice. Id. In particular, the

Board noted that the Army did not provide any information, verbally or in the information

sheet attached to Mr. Sturdy’s RIF notice, concerning when he would be registered or

allowed to register for the RPL. Id. We see no reason to disturb the Board’s finding that

the Army misinformed Mr. Sturdy. The Board’s decision is supported by substantial

evidence in the form of Mr. Sturdy’s affidavit and the contents of the RPL information



05-3045                                     12
sheet provided to Mr. Sturdy with his RIF notice. Thus, the Board properly exercised

jurisdiction over Mr. Sturdy’s appeal under 5 C.F.R. § 330.209 because his failure to

register for the RPL was excused due to misinformation he received from the Army

concerning the RPL, in violation of 5 C.F.R. § 330.203(b).

                                            III.

       As far as the merits are concerned, Mr. Sturdy argued before the Board that

because he was rated “qualified” for the Environmentalist positions, he would have been

selected for one of the positions had the agency accorded him proper selection

consideration pursuant to 5 C.F.R. §§ 330.206-330.208 (before it considered the

applications of the selected outside candidates). Mr. Sturdy urged that it was improper

for the agency to use a “well qualified” standard as a selection placement factor under

5 C.F.R. § 330.208. The AJ found, however, that the Army did not violate Mr. Sturdy’s

reemployment priority rights by hiring three outside candidates for the Environmentalist

positions. Initial Decision, slip op. at 11. In reaching that conclusion, the AJ relied on

the declaration of Vicki Kosechata, Personnel Management Specialist and Fort Sill

Directorate of Personnel.6 In her declaration, Ms. Kosechata stated that under both the

RPL and the PPP, as applied at Fort Sill, candidates for a particular position must be

more than merely “qualified.” They must be “well qualified.” Id., slip op. at 3-4.

       The AJ first determined that the “well qualified” standard used in the PPP would

be a valid standard if used to administer an RPL. Id., slip op. at 5-7. The AJ concluded

that under 5 C.F.R. §§ 330.203-330.208, which govern the administration of RPLs, it is

permissible for an agency to utilize a “well qualified” standard.      The AJ noted that

       6
              The Fort Sill Directorate of Personnel administered the RIF that took place
at Fort Chaffee in 1997. Initial Decision, slip op. at 4.
05-3045                                     13
section 330.208(a)(1) permits an agency to establish its own “selection placement

factors.” Id., slip op. at 5. The AJ reasoned that even if the “well qualified” requirement

was a “standard” rather than a “selection placement factor” under section 330.208(a)(1),

the requirement still was valid because section 330.208(b) permits an agency to adopt

alternative standards for administering an RPL. Id., slip op. at 6-7. The AJ found that

nothing in the language of section 330.208(b) barred the Army (Fort Sill) from adopting

a heightened qualification standard like the “well qualified” standard rather than a

lowered qualification standard.      Id., slip op. at 7. After determining that the “well

qualified” requirement complied with the RPL regulations, the AJ ruled that the Army

had not erred when it applied the “well qualified” requirement to Mr. Sturdy. Id., slip op.

at 8-11. The AJ found that the Army had demonstrated by a preponderance of the

evidence that Mr. Sturdy was not “well qualified” for the Environmentalist positions at

Fort Chaffee. Id., slip op. at 11.

       On appeal, Mr. Sturdy argues that the “well qualified” requirement utilized by the

PPP and the RPL comprises an impermissible heightened standard under 5 C.F.R.

§§ 330.201-330.208.       As he did before the Board, he urges that by applying a

heightened “well qualified” standard, the Army violated his reemployment priority rights

under sections 330.201-330.208. According to Mr. Sturdy, the DOD’s heightened “well

qualified” standard effectively eliminates any priority. He asserts that pursuant to 5

C.F.R. §§ 330.205(b) and 330.208(a), an individual simply must be “qualified,” rather

than “well qualified.” In addition, Mr. Sturdy contends that even if the DOD’s “well

qualified” requirement was a permissible alternative standard under section 330.208(b),

the Army had to comply with the selection method outlined in 5 C.F.R. § 330.207. Mr.



05-3045                                     14
Sturdy urges that because section 330.207 requires that “qualified” candidates on an

RPL be considered for a position in a particular order relative to other candidates, the

agency’s refusal to consider Mr. Sturdy because he was not “well qualified” violated

section 330.207.    Although Mr. Sturdy raises the issue of the validity of the “well

qualified” standard, he does not argue on appeal that the AJ erred in finding that he was

not “well qualified” for the Environmentalist positions.

       The government contends that the AJ correctly found that the “well qualified”

requirement used by the Army at Fort Sill constituted a permissible agency “selection

placement factor” pursuant to 5 C.F.R. § 330.208(a)(1). According to the government,

the “well qualified” requirement is a “selection placement factor” because it “places a

premium on factors such as the applicant’s training and experience.” In the alternative,

the Army contends that section 330.208(b) authorizes the use of a “well qualified”

requirement as an “alternative qualification standard.”

       The question before us is whether the Army violated Mr. Sturdy’s reemployment

priority rights under 5 C.F.R. §§ 330.201-330.208 by not hiring him for one of the three

Environmentalist positions at Fort Chaffee because, although he was “qualified” for the

positions, he was not “well qualified” for them. More precisely, the question is whether

the Army violated Mr. Sturdy’s reemployment priority rights under the DOD RPL. There

are two reasons for this. First, although Mr. Sturdy was enrolled in the DOD PPP and

was considered for the Environmentalist positions under the PPP and not under the

RPL, the PPP was not approved by OPM.               Therefore, it is not governed by the

regulations at 5 C.F.R. §§ 330.201-330.208. As a result, Mr. Sturdy’s argument that the

PPP’s “well qualified” requirement does not comply with sections 330.201-330.208 fails



05-3045                                      15
because the PPP is not subject to the regulations. In addition, under Roberto, the

Board was without jurisdiction to consider any claims arising under the PPP. Second,

the Board found that Mr. Sturdy’s failure to register for the DOD RPL was the result of

misinformation he received from the Army. Under Roberto, as a result of this finding,

the Board had jurisdiction under 5 C.F.R. § 330.209 to determine whether Mr. Sturdy’s

reemployment priority rights under the RPL were violated.

      Whether Mr. Sturdy’s RPL rights were violated comes down to a hypothetical

question. The question is this: If Mr. Sturdy had registered for the RPL would he have

been selected for one of the three Environmentalist positions? Before answering this

question, however, we must decide whether it would have been proper for the Army to

apply a “well qualified” standard7 under the DOD RPL. If it would have been proper to

apply the “well qualified” standard, then it is clear that Mr. Sturdy would not have been

selected. That is because it is undisputed that he was “qualified” for the positions, but

not “well qualified.” If however, it would not have been proper for the Army to use the

“well qualified” standard under the DOD RPL, the matter boils down to whether Mr.

Sturdy would have been selected for one of the positions under the proper standard. If

the answer to that question is “yes,” then his reemployment priority rights were violated.



      7
              We reject the Army’s argument that the “well qualified” requirement is a
“selection placement factor.” “Selection placement factors” are agency-established
requirements that are specifically tailored for a particular position. See Office of
Personnel Management, Operating Manual for Qualification Standards 19-24 (1995).
The “well qualified” requirement mandates that an employee “be completely
acceptable,” that he or she not require extensive training, and that he or she have
recent experience. Department of Defense, DOD Program for Stability of Civilian
Employment 3-12 (1990). Thus, the “well qualified” requirement is not tailored to a
specific position like a “selection placement factor.” We therefore find that the “well
qualified” requirement is a standard rather than a “selection placement factor” under 5
C.F.R. § 330.208(a)(1).
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       We begin with the pertinent provisions of the RPL itself. The RPL is set forth in

Subchapter 330 of the “Department of Defense Civilian Personnel Manual” (“DOD

CPM”). The paragraphs of the RPL are designated “SC.”             Subparagraph SC330.1

states that, among other things, Subchapter 330 implements DOD policy under Part 330

of Title 5 of the Code of Federal Regulations. Subparagraph SC330.3.1 provides that,

within DOD, “eligible RPL applicants shall be provided priority consideration for

reemployment in accordance with the provision of . . . Subchapter [330].” At the same

time, subparagraph SC330.3.5 instructs that rights provided under the RPL pursuant to

Subchapter 330 and 5 C.F.R. Part 330, including the right of appeal to the Board, “are

separate and distinct” from those provided pursuant to the DOD PPP. The paragraph

adds that “[t]he PPP and the RPL operate independently.”

       Paragraph SC330.6 sets forth eligibility requirements for the RPL. It states that

individuals who meet the conditions enumerated in paragraph SC330.6—which it notes

are specified in 5 C.F.R. §§ 330.203 and 330.2048—“may receive reemployment

consideration” under the RPL. Subparagraph SC330.6.1.2 states that an individual is

eligible for placement on the RPL if he or she “[r]eceived a performance rating above

unacceptable . . . , or equivalent, on the last annual performance rating of record” for the

RIF.   Finally, subparagraph SC330.8, which deals with selection order, states that

       8
             Section 330.203 sets forth the prerequisites for applying for the RPL.
Under section 330.203(a), an employee must serve under an appointment in the
competitive service in one of two particular tenure groups, have received a rating
“above unacceptable” in the employee’s last annual performance rating, and received a
notice of separation or CES. Further, section 330.203(a)(4) requires that an employee
have not declined an offer for placement during the course of an RIF for the same type
of work schedule and a representative rate at least as high as the employee’s
previously held appointment. Section 330.204 sets forth the eligibility requirements for
competitive service employees with a compensable injury or disability. Both section
330.203 and section 330.204 also describe conditions for removal from the RPL.
05-3045                                     17
“[w]hen a qualified RPL applicant is present on an activity’s RPL, an activity may not

make new appointment unless the appointee is a qualified 10-point preference eligible.”

(emphasis added). Subparagraph SC330.8 concludes with the statement that “RPL

guidance on the required selection order and applicable exceptions are provided in 5

CFR 330.”

       Based upon the foregoing, it seems to us that two points are clear. First, DOD’s

RPL and PPP are separate and distinct programs. Second, the qualification standard

under the RPL is “qualified” not “well qualified.” That is the case, we think, for two

reasons. The first reason is that the RPL is squarely grounded in the regulations set

forth at 5 C.F.R §§ 330.301-330.208. Those regulations speak in terms of “qualified”

individuals.   See 5 C.F.R. §§ 330.205(b), (c)(1), (c)(2) (“Employment restrictions”);

§§ 330.207(b), (c)(1), (c)(2)(ii) (“Selection from RPL”) (emphasis added). The second

reason is that the language of the RPL itself supports the conclusion that the governing

standard is “qualified.” Subparagraph SC330.6.1.2 states that an individual is eligible

for reemployment consideration under the RPL if he or she had a last performance

rating “above unacceptable.” At the same time, subparagraph SC330.8 refers to a

“qualified” RPL applicant (emphasis added).         Taken together, these provisions are

consistent with a standard of “qualified,” rather than “well qualified.”

       If, then, the RPL’s governing standard is “qualified,” rather than “well qualified,”

the question that remains is whether, at Fort Sill, the Army has properly added a “well

qualified” gloss to the RPL standard. (As noted above, Ms. Kosechata stated in her

declaration before the Board that, as the RPL is applied at Fort Sill, “the Agency

requires that RPL registrants be well-qualified for placement into positions. This has



05-3045                                      18
been a consistent policy of Fort Sill . . . .”) In our view, the answer to this question is

“No.”

        The government argues that the regulations allowed Fort Sill to adopt an

alternative qualification standard under the DOD RPL. As seen above, under 5 C.F.R.

§ 330.208(a)(1), an employee is “qualified” for a position if he or she “[m]eets OPM-

established or approved qualification standards and requirements.” (emphasis added).

Thus, “qualification standards” typically must be “OPM-established or approved.”

However, the government urges that section 330.208(b) gives agencies flexibility by

allowing them to adopt entirely different qualification standards.      As already seen,

section 330.208(b) provides:

              An agency may make an exception to the qualification
              standard and adopt an alternative standard under the
              following conditions (this provision does not authorize waiver
              of the selection order required by § 330.207):
              (1)      The exception is applied consistently and equitably in
              filling a position;
              (2)      The individual meets any minimum educational
              requirements for the position; and
              (3)      The agency determines that the individual has the
              capacity, adaptability, and special skills needed to
              satisfactorily perform the duties and responsibilities of the
              position.

We are not persuaded by the government’s argument. In our view, the problem with it

is this: Assuming for the moment—and it is a matter that we do not decide—that DOD

could properly impose a “well qualified” standard in the implementation of its RPL, that

is not what happened here.      Pursuant to 5 C.F.R. § 330.201(b), “[e]ach agency is

required to establish and maintain a reemployment priority list for each commuting area

in which it separates eligible competitive service employees by RIF.” To effectuate that

mandate, DOD established the RPL program at issue in this case. By its terms, the

05-3045                                     19
DOD RPL, which we have examined above, applies, inter alia, to “the Military

Departments.”    Department of Defense, DOD CPM, subparagraph SC330.2 (1996).

DOD is the “agency” that adopted the RPL in this case, and that RPL embodies a

qualification standard of “qualified.” There is no indication, let alone suggestion, that

DOD, as the implementing agency, has adopted a “well qualified” standard for its RPL.

All we are told is that the “consistent policy” of Fort Sill is to require that RPL registrants

be “well qualified.” Fort Sill, however, cannot effectively alter the qualification standard

of DOD’s RPL by applying it as if it read “well qualified.”9 Accordingly, it is the “qualified”

standard of DOD’s RPL that controls the disposition of this case. Thus, if Mr. Sturdy

had been registered on the DOD RPL, the Army would have had to consider him for one

of the Environmentalist positions at Fort Chaffee under a “qualified,” rather than “well

qualified” standard.

                                       CONCLUSION

       We reject Mr. Sturdy’s argument that the Army violated his reemployment priority

rights under the DOD PPP by applying a “well qualified” standard to his application for

       9
              The foreword of the DOD CPM provides, “Use of this Manual by all DoD
Components is mandatory.” Further, subparagraph C100.2.3 of Chapter 100 (“General
Information”) states, “Civilian personnel policies, procedures, and programs as set forth
in this Manual are binding on all DoD Components. Existing DoD Component civilian
personnel policies, procedures, and programs may continue until superseded by law,
controlling regulations, new provisions of this Manual, or related DoD Publication
provision.” Thus, the manual is binding on all DOD components, including the Army.
See Farrell v. Dep’t of the Interior, 314 F.3d 584, 590 (Fed. Cir. 2002) (noting that an
agency statement may bind the agency if the agency intended the statement to be
binding); see also Hamlet v. United States, 63 F.3d 1097, 1105 (Fed. Cir. 1995) (holding
that when determining whether a provision of an agency personnel manual is binding on
the agency, a court should consider, among other things, “whether the language of the
provision is mandatory or advisory”). Further, the Army has not directed us to anything
showing that DOD intended for the Fort Sill Directorate to have the discretion to adopt
different RPL policies and procedures than the mandatory policies set forth in the
manual.
05-3045                                       20
one the Fort Chaffee Environmentalist positions. However, the Army did violate Mr.

Sturdy’s reemployment priority rights by misinforming him as to his rights under the

DOD RPL. As a result, it must be determined whether, if Mr. Sturdy had registered on

the DOD RPL, he would have been selected for one of the Environmentalist positions.

That determination has not yet been made. Accordingly, the final decision of the Board

sustaining Mr. Sturdy’s non-selection is vacated. The case is remanded to the Board

for a determination of whether, if Mr. Sturdy had been registered on the RPL, he would

have been selected for one of the Environmentalist positions.10           In making this

determination, the Board should start from the premise that, as an RPL registrant, Mr.

Sturdy would have been considered for the position under a “qualified” rather than a

“well qualified” standard.

                                         COSTS

Each party shall bear its own costs.

                             VACATED and REMANDED




       10
              The record reflects that, in addition to Mr. Sturdy and the three external
applicants, there were six other eligible applicants for the Environmentalist positions at
Fort Chaffee. It is unclear from the record before us whether any of these six applicants
were internal applicants or registered on either the RPL or the PPP. Therefore, we
cannot determine whether or not Mr. Sturdy would have been placed in one of the
Environmentalist positions even under a “qualified” standard.
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