[Federal Register Volume 65, Number 48 (Friday, March 10, 2000)]
[Notices]
[Pages 13050-13052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5903]


=======================================================================
-----------------------------------------------------------------------

MERIT SYSTEMS PROTECTION BOARD


Opportunity To File Amicus Briefs in Jerry C. Sturdy v. 
Department of the Army, MSPB Docket No. DA-0330-98-0028-M-1

AGENCY: Merit Systems Protection Board.

ACTION: The Merit Systems Protection Board has requested an advisory 
opinion from the Director of the Office of Personnel Management (OPM) 
concerning the interpretation of regulations promulgated by OPM. The 
Board is providing interested parties with an opportunity to submit 
amicus briefs on the same questions raised in the request to OPM. The 
Board's request to OPM is reproduced below: Pursuant to 5 U.S.C. 
1204(e)(1)(A), the members of the Merit Systems Protection Board 
request that you provide an advisory opinion concerning the 
interpretation of regulations promulgated by the Office of Personnel 
Management (OPM).

-----------------------------------------------------------------------

Background

    After the agency issued the appellant a notice that he would be 
separated by reduction in force (RIF), the agency reassigned him under 
its Priority Placement Program. On appeal to the Board, he alleged that 
his nonselection for reassignment to a different position constituted a 
violation of his reemployment priority rights under 5 CFR part 330, 
subpart B (entitled ``Reemployment Priority List (RPL)'').
    The Board dismissed the appeal, finding that it lacked RPL 
jurisdiction because the appellant was not separated from the agency by 
the RIF. Sturdy v. Department of the Army, 80 M.S.P.R. 273 (1998). The 
appellant filed a petition for judicial review before the U.S. Court of 
Appeals for the Federal Circuit, and the court in a nonprecedential 
order granted the agency's motion to remand this case to the Board for 
reconsideration of its jurisdictional determination.

Applicable Regulations

    The Board's RPL jurisdiction is derived from 5 CFR 330.209, which 
provides that:

    An individual who believes that his or her reemployment priority 
rights under this subpart have been violated because of the 
employment of another

[[Page 13051]]

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.

    Our review of the regulatory history reveals that this provision 
was not revised in pertinent respects, since 1979. Because the Board's 
jurisdiction under this provision is based on reemployment priority 
rights, it is necessary to examine the nature and extent of such rights 
under part 330, subpart B.
    The RPL regulations are derived form 5 U.S.C. 3315(a), which 
provides that ``[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 * 
* * '' (Emphasis added.) See 53 FR 408 (1988). The RPL regulations 
themselves provide, at 5 CFR 330.201, that:

    (a) The reemployment priority list (RPL) is the mechanism 
agencies use to give reemployment consideration to their former 
competitive service employees separated by reduction in force (RIF) 
or fully recovered from a compensable injury after more than 1 year. 
* * *

(Emphasis added.) We note that Sturdy does not involve recovery from a 
compensable injury that, therefore, the discussion here will ignore 
that aspect of the Board's RPL jurisdiction.
    In addition, 5 CFR 330.206(a)(3) provides that ``[a]n eligible 
employee may be entered on the RPL only for the commuting area in which 
separated.'' (Emphasis added.) Subsection (a)(2) of the same section 
provides that ``[a]n employee is considered for positions having the 
same type of work schedule as the position from which separated * * * 
.'' (Emphasis added.) These provisions suggest that only ``former'' 
employees who were ``separated'' by RIF have reemployment priority 
rights under subpart B.
    Other provisions of the RPL regulations suggest, however, the 
employees who have not been separated by RIF may have reemployment 
priority rights. For instance, 5 CFR Sec. 330.202(a)(1) provides that 
``[r]egistration [on the RPL] 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 Sec. 351.807 of this chapter, has 
been issued.'' Section 330.203(a)(3) provides in pertinent part that, 
to be eligible to apply for the RPL, the employee must ``[h]ave 
received a specific notice of [RIF] separation * * * or a Certification 
of Expected Separation * * *'' These provisions suggest that employees 
may have RPL rights once they receive a specific notice of RIF 
separation or a Certification of Expected Separation and enroll in the 
RPL, even before they are a separated by RIF.

Discussion

    The Board has consistently held that it has jurisdiction over an 
RPL appeal only if the appellant has been separated by RIF. Stuck v. 
Department of the Navy, 72 M.S.P.R. 153, 157 (1996); Gometz v. 
Department of the Navy, 69 M.S.P.S.R. 284, 289 (1996); Horner v. 
Department of the Navy, 41 M.S.P.R. 20, 24 n.2 (1989); Bartlett v. 
Department of the Army, 18 M.S.P.R. 75, 77 (1983); see also Sweeney v. 
Department of the Interior, 76 M.S.P.R. 644, 647 (1997) (listing the 
jurisdictional criteria for an RPL appeal to include a showing that the 
employee was separated by RIF).
    In Freeman v. Department of Agriculture, 2 M.S.P.R. 224, 226-27 
(1980), the Board held that RPL rights vest only upon the employee's 
RIF separation, and noted that ``the very name of the right under 
discussion, a `Reemployment Priority right,' clearly implies a right to 
return to employment'' and that ``[o]ne can only return after one is no 
longer employed.'' In Roberts v. Department of the Army, 168 F.3d 22, 
23 (Fed. Cir. 1999), Roberts, who was not on any RPL, appealed his 
nonselection for a position, alleging that the selection of an 
individual on an RPL was improper. In holding that the Border lacked 
jurisdiction over the appeal, the court stated that ``[a]s Roberts has 
not been separated by RIF * * * Roberts does not have reemployment 
priority rights as set forth in the applicable regulations.'' Id.
    As the agency has pointed out before the court in its motion for 
remand in this appeal, and as the Board noted in Sweeney, 76 M.S.P.R. 
at 648 n.2, OPM revised the RPL regulations in 1992 to permit 
enrollment in the RPL up to 6 months prior to the date of a RIF 
separation. Specifically, the regulations were revised by interim rules 
to permit enrollment in the RPL upon the employee's receipt of a 
specific notice of RIF separation (which must be issued at least 60 
days before the RIF action, 5 CFR Sec. 351.801(A)(1)) or a 
Certification of Expected Separation (which may be issued up to 6 
months before the RIF action, 5 CFR Sec. 351.807(a)). 57 FR 21899, 
21890 (1992); 5 CFR Sec. 330.203 (1993). Contrary to the agency's 
argument before the court in its motion for remand, however, RPL 
enrollment prior to 1992 was not ``restricted * * * to persons already 
actually separated by RIF,'' as discussed below.
    Prior to 1988, 5 CFR Sec. 330.201(e) provided, in pertinent part, 
that an agency's reemployment priority list ``shall consist of: (1) 
Former employees in the competitive service in tenure groups I or II 
who were separated [by RIF] under Part 351 of this chapter.'' (Emphasis 
added.)
    On January 7, 1988, OPM proposed to revise its RPL regulations, 
noting that ''[t]he RPL is the mechanism agencies use to give 
reemployment consideration to employees who have been separated by 
reduction in force * * *'' 53 FR 408, 408 (1988). OPM stated that the 
proposed ``changes are intended to improve the operation of the RPL and 
clarify requirements.'' Id. OPM explained that ``[u]nder current 
regulations, * * * employees in the competitive service are eligible 
for the RPL when they have received a notice of separation by reduction 
in force (RIF).'' Id. This rule is not mentioned in the 1988 RPL 
regulations themselves, and it appears that the rule was contained in 
the Federal Personnel Manual (FPM). See Washington v. Garrett, 10 F.3d 
1421, 1435 (9th Cir. 1993) (the court stated that, as of June 1988, 
when Washington was separated by RIF, ``an employee's name was to be 
placed automatically on the RPL by the agency the day after she 
received notification of her impending separation,'' citing FPM, ch. 
330, subch. 2, sec. 2-3)c)). OPM further explained that the proposed 
revision of the RPL regulations ``would require an employee separated 
by RIF to complete an application specifying the conditions under which 
he or she would accept a job offer,'' instead of automatic enrollment 
in the RPL upon receipt of a RIF separation notice, and that the 
``period of enrollment would run from the date the eligible is entered 
on the RPL, rather than from the date of separation.'' 53 FR 408.
    On November 8, 1988, OPM issued its final regulations revising its 
RPL regulations pursuant to the proposal. 53 FR 45065 (1988). The 
revisions provided that an ``employee must submit the application [for 
the RPL] within 30 calendar days after the RIF separation date,'' 53 FR 
45067; 5 CFR Sec. 330.202(a)(1) (1989), and that to be eligible to 
apply for the RPL, an employee must ``[h]ave received a specific notice 
of [RIF] separation,'' 53 FR 45067; 5 CFR Sec. 330.203(A)(3) (1989). 
They further provided that the employee must be enrolled on the RPL 
``no later than 10 calendar days after receipt of an application or 
request.'' 53 FR 45067; 5 CFR Sec. 330.202(b) (1989).

[[Page 13052]]

    Thus, as early as 1988 and apparently before, employees could be 
enrolled in the RPL upon their receipt of a specific RIF separation 
notice; they were not required to wait until their actual RIF 
separation.
    On May 26, 1992, OPM issued interim rules that provided for early 
warning of expected RIF separations. 57 FR 21889 (1992). The early 
warning was given in the form of a Certification of Expected Separation 
issued up to 6 months prior to the expected separation date, and 
employees were allowed to enroll in the RPL upon their receipt of the 
Certification. Id. OPM noted that, ``[p]reviously, participation in * * 
* the RPL * * * was limited to employees who had received a specific 
RIF notice'' and that ``[e]perience has shown that the earlier 
individuals are registered in such programs, the greater their chances 
of finding other employment and avoiding or minimizing any period of 
unemployment.'' Id. These interim rules become final rules when OPM 
revised the RPL regulations in 1995, upon sunsetting the FPM. 60 FR 
3055 (1995). OPM noted at that time that ``[t]here was particular 
agreement not to change current policies in the sensitive area of 
reductions-in-force (RIF) and related reemployment priority lists 
(RPL).'' Id. The 1995 revision added to the regulations the explanatory 
language used by OPM at the time it proposed to revise the RPL 
regulations in 1988. To wit, section 330.201(a) was revised to add the 
statement that RPL is ``the mechanism agencies use to give reemployment 
consideration to their former competitive service employees separated 
by reduction in force (RIF) * * *.'' Id. at 3,058 (emphasis added). The 
RPL regulations have not been revised since 1995.
    As discussed, the RPL regulations are ambiguous on their face 
regarding whether the Board has jurisdiction over an RPL claim brought 
by an employee, such as Sturdy, who has not been separated by RIF, and 
our review of the regulatory history does not shed light on this issue.

Request for an Advisory Opinion

    The members of the Board therefore request that you provide an 
advisory opinion on whether the Board has jurisdiction over an alleged 
violation of reemployment priority rights where the appellant was not 
separated by RIF.
    The Director is requested to submit her advisory opinion to the 
Clerk of the Board within 30 days of her receipt of this letter, and to 
serve copies of her opinion on the parties and their representatives in 
the above-captioned appeal. (The addresses of the parties and their 
representatives are set forth below in the ``cc'' list.) The parties 
may file any comments on the Director's opinion no later than 30 days 
from the date of service of her opinion.

DATES:  All briefs in response to this notice shall be filed with the 
Clerk of the Board on or before April 10, 2000.

ADDRESSES:  All briefs should include the case name and docket number 
noted above (Jerry C. Sturdy v. Department of the Army, MSPB Docket No. 
DA-0330-98-0028-M-1) and be entitled ``Amicus Brief.'' Briefs should be 
filed with the Office of the Clerk, Merit Systems Protection Board, 
1120 Vermont Avenue, NW, Washington, DC 20419.

FOR FURTHER INFORMATION CONTACT:  Shannon McCarthy, Deputy Clerk of the 
Board, or Matthew Shannon, Counsel to the Clerk, (202) 653-7200.

Robert E. Taylor,
Clerk of the Board.
[FR Doc. 00-5903 Filed 3-9-00; 8:45 am]
BILLING CODE 7400-01-M