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McKee v. Tennessee Valley Authority

October 14, 1999


Before Michel, Circuit Judge, Smith, Senior Circuit Judge, and Schall, Circuit Judge.


Douglas G. McKee petitions for review of the final decision of the Merit Systems Protection Board (the "Board"), Docket No. AT-0351-98-0066-I-1, sustaining his removal in a reduction-in-force ("RIF") despite his preference-eligible status as a veteran. The July 10, 1998 initial decision became the final decision of the Board on January 29, 1999, pursuant to 5 C.F.R. § 1201.113(b) (1999), when the full Board denied review. Because Mr. McKee has not demonstrated the applicability of 5 U.S.C. § 3310 or otherwise shown reversible error in the Board's decision, we affirm.


Mr. McKee was a Courier at the Brown's Ferry Nuclear Power Plant (the "Plant"), operated by the Tennessee Valley Authority (the "TVA"), until September 26, 1997, when he was removed from that position by a RIF. Mr. McKee, as a veteran with preference-eligible status, appealed his RIF removal to the Board. Specifically, Mr. McKee alleged that the TVA violated his rights under 5 U.S.C. § 3310 (1994) because he should have been retained instead of Ms. Shelva Harrison, another Courier without preference-eligible status. The Administrative Judge (the "AJ") affirmed the TVA's action in an initial decision, determining that the RIF regulations were properly invoked and applied to Mr. McKee. Mr. McKee appealed the initial decision to the full Board, which denied his petition for review, rendering final the AJ's initial decision. Mr. McKee timely appealed the Board's final decision to this court.

We must affirm the Board's decision unless we find it to be (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. See 5 U.S.C. § 7703(c) (1994); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

On appeal, Mr. McKee argues that despite his repeated assertions, the Board failed to consider his rights under the Veteran's Preference Act (the "Act"), specifically 5 U.S.C. § 3310. Although the Board did make a determination on the merits of the case, it did not expressly address Mr. McKee's rights under 5 U.S.C. § 3310.

"Interpretation of a statute is a question of law that we review de novo." Lachance v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999). In matters of statutory interpretation, it is this court's independent responsibility to determine statutory meaning. See AT & T Corp. v. Excel Communications, Inc., 172 F.3d 1352, 1355, 50 USPQ2d 1447, 1449 (Fed. Cir. 1999). If the language of the statute itself is unambiguous, its plain meaning controls. See Perez v. United States, 156 F.3d 1366, 1370 (Fed. Cir. 1998).

Section 3310 provides that "[i]n examinations for positions of guards, elevator operators, messengers, and custodians in the competitive service, competition is restricted to preference eligibles as long as preference eligibles are available." 5 U.S.C. § 3310. The statute's meaning is clear. It only restricts competition in examinations to fill the listed positions and plainly does not apply during a RIF. Therefore, the Board's failure to explicitly address section 3310 was not error.

Mr. McKee further alleges that the Board's determination in this case violates the spirit of the Act by allowing his preference-eligible status to be overridden during the RIF by TVA's collective bargaining agreement (the "CBA"). Under the CBA between the TVA and its union, Ms. Harrison, as a designated union representative ("DUR") for the Plant, had the right to be placed in a separate competitive level *fn1 from other employees working in the same position and to be retained above these other employees during a RIF. As a result, Ms. Harrison was removed from Mr. McKee's competitive level and placed into a separate competitive level above Mr. McKee, who was left in a single-person competitive level.

The provision of the Act that addresses retention preference during a RIF is 5 U.S.C. § 3502 (1994). When an agency conducts a RIF, the Act entitles a preference-eligible employee "to be retained in preference to other competing employees." 5 U.S.C. § 3502(c) (1994) (emphasis added). Retention preference over competing employees is inapplicable to employees placed in single-person competitive levels because there are no competing employees. See Dodd v. Tennessee Valley Auth., 770 F.2d 1038, 1042 (Fed. Cir. 1985).

In this case, the TVA lawfully placed Ms. Harrison in a separate competitive level due to her additional duties as a DUR, leaving Mr. McKee in a single-person competitive level (and therefore in competition with no one). Since retention rights do not apply to single-person competitive levels, Mr. McKee's rights under the Act were not undermined by the CBA or otherwise violated. He simply had no retention rights.

Accordingly, the decision of the Board ...

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