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Richard M. Ovens v. Department of Army

U.S. Court of Appeals, Federal Circuit


May 06, 1998

RICHARD M. OVENS, PETITIONER,
v.
DEPARTMENT OF THE ARMY, RESPONDENT.

Before Michel, Circuit Judge, Archer, Senior Circuit Judge, and Gajarsa, Circuit Judge.

The opinion of the court was delivered by: Gajarsa, Circuit Judge.

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

DECISION

Richard M. Ovens appeals the July 11, 1997 final decision of the Merit System Protection Board (Board), Docket No. SE-0351-97-0116-I-1, dismissing his appeal for lack of jurisdiction. Mr. Ovens' appeal challenges his demotion by the United States Department of the Army (Department) as part of a reduction-in-force (RIF) conducted in 1996. The Board dismissed the appeal because it found that Mr. Ovens' demotion was voluntary and therefore not appealable to the Board. Because Mr. Ovens voluntarily accepted a lower-graded position before he was informed of the action to be taken by the Department during the RIF, the Board is without jurisdiction to hear Mr. Ovens' appeal under 5 C.F.R. § 351.901. We therefore affirm the final decision of the Board dismissing Mr. Ovens' appeal for lack of jurisdiction.

BACKGROUND

Mr. Ovens was employed by the Department as a grade GM-14 Civilian Personnel Officer at the Civilian Personnel Office (CPO) in Fort Richardson, Alaska. The CPO in Fort Richardson was one of several CPOs located within the Pacific Region. In late 1995 and early 1996, the Department developed a plan to reorganize the Pacific Region to improve its cost effectiveness. The Department planned to consolidate many of the functions of the CPOs within the Pacific Region into a new Civilian Personnel Operations Center (CPOC) to be located at Fort Richardson, Alaska. Under the plan, only the director of the CPOC at Fort Richardson would be classified as a GM-14 position. The remaining positions were to be classified at the GS-13 level. As part of the reorganization, Mr. Ovens' position was to be abolished. On March 14, 1996, the Department notified Mr. Ovens that he did not have a transfer of function right to preferential consideration for the CPOC Director position. However, he was subsequently encouraged to submit an application and to compete for the position.

On May 16, 1996, the Department offered Mr. Ovens a position as a Supervisory Personnel Staffing and Classification Specialist, Grade GS- 13, in the newly created CPOC. The offer also included the right to saved pay for two years. The letter stated that this was the best offer that could be made to Mr. Ovens at that time and that he had five days from the receipt of the letter to accept the offer. If Mr. Ovens declined the position, or did not respond, the letter informed him that he would compete in a RIF for placement in the CPOC or into another organization in his competitive area. The letter finally stated that Mr. Ovens had the right to appeal his transfer to the Board and briefly explained the procedures for doing so.

On May 30, 1996, Mr. Ovens accepted the GS-13 position within the CPOC offered to him in the May 16, 1996 letter. At that time, the selection process for the GM-14 Director position was not yet complete. Another candidate was eventually selected for the GM-14 Director position on June 18, 1996. Mr. Ovens was reassigned to the position of Supervisory Personnel Staffing and Classification Specialist, Grade GS- 13 on September 29, 1996. He subsequently appealed his demotion to the Board.

In an initial decision dated January 10, 1997, the Administrative judge (AJ) found that Mr. Ovens had not been told that he would not be selected for a position at the same grade level and therefore his decision to accept the GS-13 position in the CPOC was a voluntary transfer. The AJ found Mr. Ovens' position legally indistinguishable from that in Cooley v. United States Postal Service, 68 M.S.P.R. 353 (1995), aff'd, 80 F.3d 468 (Fed. Cir. 1996). The AJ therefore concluded that Cooley governed Mr. Ovens' case and that the Board did not have jurisdiction to hear Mr. Ovens' appeal. The decision of the AJ became the final decision of the Board on July 11, 1997, pursuant to 5 C.F.R. § 1201.113(b).

Discussion

The jurisdiction of the Board is limited to agency actions for which the right to appeal is specifically granted by law, rule, or regulation. See 5 U.S.C. § 7701(a) (1994); Harants v. United States Postal Serv., 130 F.3d 1466, 1468 (Fed. Cir. 1997). This court reviews the Board's jurisdictional Conclusion de novo. See King v. Reid, 59 F.3d 1215, 1217 (Fed. Cir. 1995).

The Board's jurisdiction in this case is governed by 5 C.F.R. § 351.901 which states: "An 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." An assignment to a lower-grade position constitutes an appealable RIF demotion even where the employee apparently accepts that position voluntarily, as long as the assignment is made after the agency has informed the employee that his original position had been abolished and that he had not been selected for assignment to a position at his former grade level. See Harants, 130 F.3d at 1469. Mr. Ovens' only contact with the Department regarding his options during the forthcoming RIF was the May 16, 1996 letter informing him of the opportunity to accept a GS-13 position in the CPOC. Thus, this case turns entirely upon the characterization of the May 16, 1996 letter.

Mr. Ovens argues that the May 16, 1996 letter not only informed him that his position had been abolished as part of the RIF, but that it also informed him that he would not be retained at his current level. In support, Mr. Ovens points to paragraph four which begins: "The best offer which can be made to you at this time is a change to a lower graded position." Contrary to Mr. Ovens' assertion, this language does not specifically inform him that he "had not been selected for assignment to a position at his former grade level." Harants, 130 F.3d at 1469. A reasonable interpretation of this language is that it informs Mr. Ovens that, as of the date of the letter, a GS-13 was the best position available. It does not inform Mr. Ovens that, pursuant to the RIF procedures, he could not be retained in his current grade level as required by Harants and Cooley. See also Brown v. United States Postal Serv., 58 M.S.P.R. 345, 351 (1993).

The GS-13 position in the CPOC which Mr. Ovens ultimately accepted was not offered to him as part of the RIF procedures. Rather, it was offered to Mr. Ovens only because he had previously volunteered for a position in the CPOC. In fact, the May 16, 1996 letter informed Mr. Ovens that "[i]f you decline this offer of a transfer of function, you will compete in a reduction in force at your installation for placement into the [CPOC]." The letter itself makes clear that a RIF competition had not yet taken place and consequently, Mr. Ovens could not have been informed that he was not selected for assignment to a position at his former grade level. In taking the GS-13 position in the CPOC, Mr. Ovens was not coerced into accepting the GS-13 position before the Department determined that he necessarily would be demoted. Because his decision to accept the GS-13 position in the CPOC was voluntary, the Board does not have jurisdiction to hear his RIF appeal under 5 C.F.R. § 351.901.

Mr. Ovens also argues that he detrimentally relied on an erroneous statement in the May 16, 1996 letter which informed him that he had the right to appeal the Department's action to the Board. Understanding that the Department does not have the authority to confer appeal rights not specifically granted by statute or regulation, the AJ granted Mr. Ovens a hearing to demonstrate that his acceptance of the GS-13 position had been induced by the Department's misrepresentation. The AJ found that Mr. Ovens specifically rejected the assertion that he had been so induced. In his brief to this court, Mr. Ovens points out that at the time he received the May 16, 1996 letter, he did not specifically rely on the "right to appeal" statement in deciding whether or not to accept the GS-13 position in the CPOC. Rather, Mr. Ovens states that he considered the statement to be an accurate statement of the law based upon his belief that his demotion had been involuntary. We also note that Mr. Ovens was employed as a civilian personnel officer, a position that would presumably give him significant experience with RIF procedures and appeal rights. While we applaud Mr. Ovens' honesty and candor, it is clear that in making his decision to accept the GS-13 position in the CPOC, he was influenced only by his belief that his decision to accept this position was involuntary and not upon any misinformation about appeal rights contained in the May 16, 1996 letter.

Conclusion

Based upon the language of the May 16, 1996 letter and the voluntary action pursued by Mr. Ovens, we affirm the decision of the Board.

19980506


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