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STOVER v. CHAIRMAN

July 1, 1987

George W. Stover, Plaintiff,
v.
Chairman, Equal Employment Opportunity Commission, Defendant



The opinion of the court was delivered by: GREEN

 JOYCE HENS GREEN

 This case is before the court on defendant's motion to dismiss or, in the alternative, for summary judgment. For the reasons set forth below, defendant's motion will be granted in part and denied in part.

 Shortly thereafter, plaintiff filed an appeal with the Merit Systems Protection Board (MSPB), challenging the RIF on the grounds that (1) the agency defined the competitive area in an impermissibly narrow manner that failed to provide for fair and adequate competition as required by Federal Personnel Manual (FPM) Chapter 351 and (2) the agency violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., by deliberately placing him in a division that was slated for abolition. *fn1" Following a hearing on these claims, the MSPB's presiding official affirmed the agency's action, and that decision was upheld on appeal to the full Board. Plaintiff then commenced this action pro se, again challenging the agency's designation of the competitive area and claiming that he had been intentionally transferred to a division targeted for extinction in violation of the ADEA.

 Plaintiff's contention that the Commission improperly limited the competitive area to OPR, and thereby prevented fair and adequate competition, is without merit. Plaintiff stipulated at the MSPB level that he did not contest the actual application of the RIF procedures regarding competitive levels, retention rights, notice, or assignment rights, and further, that he did not contest the fact that a reorganization occurred. His sole claim is that the EEOC's designation of OPR as the competitive area to which the RIF procedures should be applied violated governing civil service regulations.

 The regulation in question, 5 C.F.R. § 351.402(b), provides:

 
The standard for a competitive area is that it include all or that part of an agency in which employees are assigned under a single administrative authority. A competitive area in the departmental service meets this standard when it covers a primary subdivision of an agency in the local commuting area. A competitive area in the field service meets this standard when it covers a field installation in the local commuting area.

 In addition, Chapter 351 of the FPM states that:

 
An agency's different activities, although located side by side, may be separate competitive areas if each is:
 
(1) under a separate administrative authority;
 
(2) independent of others in operation, staff, work functions, and personnel administration; and
 
(3) separately organized and clearly distinguished ...

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