United States Court of Appeals for the Federal Circuit
04-3086
WILLEMA HARDY,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
Richard H. Semsker, Lippman & Semsker, PLLC, of Bethesda, Maryland, argued
for petitioner. With him on the brief was S. Micah Salb.
Claudia Burke, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
her on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director; and James M. Kinsella, Deputy Director.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
04-3086
WILLEMA HARDY,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
DECIDED: January 4, 2005
__________________________
Before MICHEL∗, Chief Judge, ARCHER, Senior Circuit Judge, and SCHALL, Circuit
Judge.
MICHEL, Chief Judge.
Willema Hardy (“Hardy”) petitions for review of the final decision of the Merit
Systems Protection Board (“Board”), upholding the Department of the Navy’s (“Navy’s”)
reassignment offer to Hardy during a reduction in force (“RIF”) after her former position
was abolished and she was reached for release. Hardy v. Dep’t of the Navy,
No. DC0351030294-I-1 (M.S.P.B. Aug. 27, 2003) (“Decision”).1 The appeal was
*
Chief Judge Paul R. Michel assumed the position of Chief Judge on
December 25, 2004.
1
Because Hardy did not challenge the initial decision, it became the final
decision of the Board on October 1, 2003. See Wood v. Merit Sys. Prot. Bd., 938 F.2d
1280 (Fed. Cir. 1991); 5 C.F.R. § 1201.113. Accordingly, we refer to the initial decision
herein as “Decision.”
submitted after oral argument on November 4, 2004. Because the Board correctly
construed the Office of Personnel Management’s (“OPM’s”) RIF regulations and
properly concluded that the Navy complied with those regulations in offering to place
Hardy in a vacancy at a lower grade when higher-graded positions were also vacant, we
affirm.
I. BACKGROUND
Hardy worked as a Telecommunications Specialist GS 391-11 (“Specialist 11”)
for the Navy at the Naval District Washington. In May 2002, the Navy initiated a
functional analysis study of the information technology and telecommunications
divisions at its Washington, D.C. location. Based upon the results of that study, the
Navy decided to eliminate the entire telecommunications division, which consisted of
five employees, including Hardy.
On October 16, 2002, the Navy notified Hardy that her position was being
abolished pursuant to a RIF. The Navy offered to place Hardy in a vacant Secretary GS
310-07 position (“Secretary 07”). Hardy challenged this offer by requesting review by
the Board, contending that she was qualified for and therefore entitled to the
higher-graded vacant positions of Customer Relations Manager 2210-11 (“Manager 11”)
and Secretary GS 318-09 (“Secretary 09”).
The Administrative Judge (“AJ”) assigned to her case conducted a hearing at
Hardy’s request and issued an initial determination that Hardy was not entitled to either
the Manager 11 or the Secretary 09 positions. The AJ observed that a released
employee does not have assignment rights to a vacant position. Decision at 4. The AJ
recognized that an agency may, however, implement a mandatory policy or promulgate
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its own regulation to offer vacant positions to RIF-displaced employees. Id.
Nevertheless, the AJ noted that it was undisputed that the Navy did not have such a
policy or such an agency regulation. Id. at 5. Thus, the AJ concluded that the Navy
could exercise complete discretion in considering RIF-displaced employees for
vacancies and that Hardy was not entitled to either the vacant Manager 11 position or
the vacant Secretary 09 position. Id.
Despite reaching this conclusion, the AJ went on to address the hypothetical
situation where the Navy had adopted such a policy. The AJ considered whether in
that event Hardy would be entitled to either the vacant Manager 11 position or the
vacant Secretary 09 position. Id. In doing so, the AJ evaluated whether Hardy could
exercise bump or retreat assignment rights under 5 C.F.R. § 351.701(b) or (c),
respectively, ultimately concluding that Hardy could not meet the criteria for exercising
these rights. Id. at 6. The AJ found that Hardy did not have bump rights under section
351.701(b) because there was no assertion that Hardy had higher tenure group or
subgroup standing than another employee assigned to the vacant positions. Id. The AJ
also found that Hardy did not have retreat rights under section 351.701(c) because
neither the Manager 11 position nor the Secretary 09 position was the same, or
essentially identical to, her former Specialist 11 position. Id. at 15, 18. Accordingly, the
AJ concluded that the Navy properly applied the applicable RIF procedures in offering to
place Hardy in the vacant Secretary 07 position. Id. at 18.
As noted above, Hardy did not challenge the AJ’s initial decision, whereby it
became the final decision of the Board. Hardy now petitions for review of the Board’s
decision, asserting she is qualified for the Manager 11 and Secretary 09 positions.
3
Hardy seeks to be placed into the position of either Manager 11 or Secretary 09 and to
be awarded back pay starting from the date that she was not offered these positions.
We have jurisdiction over a final Board decision pursuant to 5 U.S.C. § 7703(b)(1).
II. DISCUSSION
Hardy recognizes that under part 351 of 5 C.F.R., the Navy had discretion in
choosing whether to fill vacant positions with RIF-displaced employees. She argues,
however, that once the Navy decided to fill vacancies with RIF-displaced employees,
she was entitled to an offer of placement in either the Manager 11 or Secretary 09
positions if she established her qualifications for those positions by satisfying the
requirements set forth in section 351.703.2 In this regard, Hardy claims that the
substantial weight of the evidence readily demonstrates that she met both the education
requirement and the capacity, adaptability, and special skills requirements contained
within section 351.703. Thus, in essence, Hardy appears to contend that section
351.703 alone establishes entitlement to a vacancy of her choosing.
Hardy’s argument is entirely off the mark. Section 351.703 does not
independently confer any assignment rights to vacancies on a RIF-displaced employee.
Rather, section 351.703 is a dependent provision that only comes into play during a RIF
2
Section 351.703 states:
An agency may assign an employee to a vacant position under
§ 351.201(b) or § 351.701 of this part without regard to OPM’s standards
and requirements for the position if:
(a) The employee meets any minimum education requirement for the
position; and
(b) The agency determines that the employee has the capacity,
adaptability, and special skills needed to satisfactorily perform the duties
and responsibilities of the position.
4
action by way of 5 C.F.R. §§ 351.201, 351.704, and 351.701. Nevertheless, Hardy
entirely ignores these sections, relying exclusively on section 351.703.
When sections 351.201, 351.704, and 351.701 are applied in this case, none
confer any assignment rights on Hardy, just as the Board found. Section 351.201 is
directed generally to the applicability of the RIF regulations. Section 351.201(b) affords
an agency discretion in deciding whether to fill vacancies with RIF-displaced
employees, stating in pertinent part: “This part does not require an agency to fill a
vacant position.” 5 C.F.R. § 351.201(b); see also Madsen v. Veterans Admin., 754 F.2d
343, 345 (Fed. Cir. 1985) (holding that an agency is not required to fill vacant positions
in conducting a RIF). Section 351.704(a)(1) echoes the discretion afforded to an
agency in filling vacancies during a RIF, stating in pertinent part: “An agency may also
offer an employee assignment under § 351.201(b) to a vacant position in lieu of
separation by reduction in force under 5 CFR part 351.” (Emphasis added).
As just noted, section 351.703 provides that when an agency exercises its
discretion under sections 351.201(b) and 351.704(a)(1) to place a RIF-displaced
employee in a vacant position, it is permitted to do so even if the placement does not
comply with normal OPM standards and requirements for the position. Section 351.703
states that “[a]n agency may assign an employee to a vacant position under
§ 351.201(b) . . . of this part without regard to OPM’s standards and requirements for
the position” if specified conditions are met. (Emphasis added). In short, section
351.703 makes it easier to move a RIF-displaced employee into a vacant position if the
agency wishes in its discretion to do so. It does not, however, grant a RIF-displaced
employee any rights to a vacant position.
5
The only exception is where the agency, on its own, has adopted an agency
regulation or mandatory policy of placing RIF-displaced employees in available
vacancies. Spartin v. Gov’t Printing Office, 46 M.S.P.R. 119, 123 (M.S.P.B. 1990), aff’d,
937 F.2d 623 (Fed. Cir. 1991) (Table) (holding that an agency is not obligated to offer
vacancies to employees subject to a RIF action, absent a mandatory policy requiring an
agency to fill vacant positions in lieu of separating RIF-displaced employees). Hardy
has not alleged that the Navy had such a regulation or policy. The Navy, consequently,
could have elected to fill the vacancies sought by Hardy before, during, or after the RIF
with RIF-displaced employees. Alternatively, the Navy just as permissibly could have
elected not to fill any of the vacancies in dispute or to fill them with outside applicants.
On this basis, we conclude that the Board correctly determined that Hardy was not
entitled to an offer of placement in either the vacant Manager 11 or Secretary 09
positions.
Nevertheless, the Navy, exercising its discretion, voluntarily offered to place
Hardy into the vacant Secretary 07 position rather than release her from service.
Having made this choice, the Navy was bound to follow applicable provisions of part
351. Section 351.201(b) states in pertinent part: “[W]hen an agency, at its discretion,
chooses to fill a vacancy by an employee who has been reached for release from a
competitive level for one of the reasons in paragraph (a)(2) of this section, this part shall
be followed.” (Emphasis added). Thus, the issue on appeal is whether the Navy
followed part 351 in offering to place Hardy in the Secretary 07 position as opposed to
the Manager 11 or Secretary 09 positions.
6
Section 351.704 addresses the basic requirements that an agency must fulfill
when it exercises its discretion to place a RIF-displaced employee in a vacant position.
Section 351.704(a)(1) states in pertinent part: “Any offer of assignment under
§351.201(b) to a vacant position must meet the requirements set forth under
§ 351.701.”
Section 351.701 sets forth the general assignment rights for a
RIF-displaced employee. Section 351.701 provides in paragraph (a) as follows:
When a group I or II competitive service employee with a current annual
performance rating of record of minimally successful (Level 2) or
equivalent, or higher, is released from a competitive level, an agency shall
offer assignment, rather than furlough or separate, in accordance with
paragraphs (b), (c), and (d) or this section to another competitive position
which requires no reduction, or the lease [sic] possible reduction, in
representative rate. The employee must be qualified for the offered
position. The offered position shall be in the same competitive area, last
at least 3 months, and have the same type of work schedule (e.g., full-
time, part-time, intermittent, or seasonal) as the position from which the
employee is released. Upon accepting an offer of assignment, or
displacing another employee under this part, an employee retains the
same status and tenure in the new position. The promotion potential of
the offered position is not a consideration in determining an employee’s
rights of assignment.
Paragraphs (b) and (c) of section 351.701 relate to bump and retreat rights,
respectively.3 Paragraph (d) qualifies the retreat rights set forth in paragraph (c). Other
3
According to section 351.701(b):
A released employee shall be assigned in accordance with paragraph (a)
of this section and bump to a position that:
(1) Is held by another employee in a lower tenure group or in a lower
subgroup within the same tenure group; and
(2) Is no more than three grades (or appropriate grade intervals or
equivalent) below the position from which the employee was released.
7
paragraphs of section 351.701 relate to pay rates (paragraph (e)) and the determination
of applicable grades (or grade intervals) under sections 351.701(b)(2) and 351.701(c)(2)
(paragraph (f)).
While section 351.704(a)(1) explicitly refers to section 351.701, this section does
not seem to have any substantive application in situations involving an offer of
assignment to a vacant position. The reason is that section 351.701, beginning with its
title “Assignment Involving Displacement,” appears to be devoted to the situation in
which an employee subject to a RIF displaces another employee by exercising bump or
retreat rights. It does not say anything about the right of a RIF-displaced employee to
be offered a vacant position, the subject addressed in section 351.704(a). The only
possible connection between section 351.701 and section 351.704(a)(1) would be
paragraph (a) of section 351.701, which states, in pertinent part, that “the employee
must be qualified for the offered position.” This paragraph may suggest that a
RIF-displaced employee can only be placed into a vacancy position for which he is
qualified under section 351.703. However, we need not and do not so decide here, but
leave this issue for another day.
According to section 351.701(c):
A released employee shall be assigned in accordance with paragraphs (a)
and (d) of this section and retreat to a position that:
(1) Is held by another employee with lower retention standing in the same
tenure group and subgroup; and
(2) Is not more than three grades (or appropriate grade intervals or
equivalent) below the position from which the employee was
released . . . ; and
(3) Is the same position, or an essentially identical position, formerly held
by the released employee on a permanent basis as a competing
employee in a Federal agency . . . .
8
Under both paragraphs (b) and (c) of section 351.701, a RIF-displaced employee
can only exercise assignment rights to a position that is “held by another employee.” A
discretionary offer of assignment to a vacant position, which is all that is at issue in this
case, cannot involve displacement of an incumbent employee. In any event, Hardy has
never asserted that she was entitled to an encumbered position by reason of bump or
retreat rights. Indeed, she could not, because the Manager 11 and Secretary 09
positions were vacant. Nor does Hardy argue section 351.701 otherwise supports her
claim.
This conclusion, however, does not end our analysis. Despite not being clearly
argued by Hardy, we still consider whether the Navy was obligated by any other
provision of part 351 to offer Hardy placement in either of the two higher-graded
vacancies. We conclude that no provision of the RIF regulations obligates an agency to
offer placement in the highest-graded available vacancy. To the contrary, sections
351.201(b) and 351.704(a)(1) affirmatively provide complete discretion whether and
how to fill vacancies during a RIF action. We have not been cited to, nor are we aware
of, any RIF regulation that even implicitly obligates the agency to offer placement to the
RIF-displaced employee in the highest-grade vacant position; the RIF regulations
instead only obligate the agency to conform any discretionary assignment offer to
section 351.701(a), meaning, at most, to evaluate qualifications for its chosen vacancy
under section 351.703. An agency, therefore, can offer to place a RIF-displaced, but
qualified, employee in any, all, or none of the vacancies without violating part 351.
We also note that any requirement that an agency place a RIF-displaced
employee in the highest-grade available vacancy could defeat the purpose of many RIF
9
actions. Often, a government agency reduces the size of its workforce to match the
available salary dollars appropriated by Congress. See Int’l Fed’n of Prof’l & Technical
Eng’rs, 8 F.L.R.A. 212, 213 (1982) (noting that prerequisite conditions for a RIF include
lack of work, shortage of funds, or agency reorganization). If an agency were required
under the RIF regulations to offer to place every RIF-displaced employee in the
highest-grade available vacancy for which such employee is qualified, then the agency
might not be able to reduce its salary expenditures. Hence, an agency must be free to
restructure its work force to meet the constraints placed upon it by Congress, including
by not filling vacancies or only filling lower-grade and lower-pay vacancies. Any
contrary interpretation of the RIF regulations, then, would be illogical and dysfunctional.
We thus conclude that Hardy has no legal basis for her challenge. The Navy
was neither obligated under a mandatory policy nor under an agency regulation to offer
Hardy placement in a vacant position. Having opted in its discretion to try to do so, the
Navy was not required to offer her placement in all vacant positions for which she was
qualified. Instead, the Navy was entitled to elect whether to offer Hardy any, all, or none
of those vacant positions. Accordingly, we conclude that the Board’s decision upholding
the Navy’s offer to assign Hardy to the Secretary 07 position, but not the Manager 11 or
Secretary 09 positions, must be
AFFIRMED
10