John F. Roberto petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that dismissed, for lack of jurisdiction, his appeal to the Board in which he claimed that, in the course of a reduction in force (“RIF”) action, the Department of the Navy (“Navy” or “agency”) violated his reemployment priority rights. Mr. Roberto claimed that the Navy failed to afford him the rights to which he was entitled under the Department of Defense (“DOD”) reemployment priority list (“RPL”) program.
See 5
C.F.R. § 330.201(a) (2005).
1
Following a hearing, the administrative judge (“AJ”) to whom the appeal was assigned dismissed it for lack of jurisdiction.
Roberto v. Dep’t of the
Navy, No. SE-0330-01-0211-I-1, slip op. (M.S.P.B. Oct.22, 2001)
(“Initial Deci
*1344
sion
”). The AJ concluded that, while the Board did have authority to adjudicate claims arising under DOD’s RPL, it lacked authority to adjudicate claims arising under DOD’s priority placement program (“PPP”), which the AJ found was the program under which Mr. Roberto had enrolled. The AJ determined that the Board lacked jurisdiction with respect to Mr. Roberto’s claims under the PPP because the Office of Personnel Management (“OPM”) had not given its concurrence to the program.
Id.
Pursuant to 5 C.F.R. § 1200.3(b), the initial decision became the final decision of the Board when the two sitting Members of the Board were unable to agree on a ruling in response to Mr. Roberto’s petition for review.
Roberto v. Dep’t of the Navy,
BACKGROUND
I.
We begin with the regulatory scheme that frames this case. Under the Veterans’ Preference Act of 1944, Pub. IL. No. 78-359, 58 Stat. 387 (codified at 5 U.S.C. §§ 2108, 3309-3320), “[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 for every position for which his qualifications have been established.” 5 U.S.C. § 3315(a) (2000). OPM has adopted regulations to implement the requirements of section 3315. The regulations are codified at 5 C.F.R. §§ 330.201-330.209.
Sections 330.201-330.208 require that each agency maintain an RPL and establish guidelines for the operation of its RPL. Under section 330.201(a), employees entered on an RPL enjoy, at a minimum, “priority consideration over certain outside job applicants.” The regulations provide that an agency may not make a final commitment to an individual not on the RPL to fill a permanent or temporary competitive service position when a qualified individual is available on the agency’s RPL, unless the first individual is on the agency’s rolls. 5 C.F.R. §§ 330.205(b), (c).
Section 330.201(b) requires that each agency “establish and maintain a reemployment priority list for each commuting area in which it separates eligible competitive service employees by RIF ..., except as provided by paragraph (c) of this section.” The section 330.201(c) exception states:
An agency need not maintain a distinct RPL for employees separated by reduction in force if the agency operates a placement program for its employees and obtains OPM concurrence that the program satisfies the basic requirements of this subpart. The intent of this provision is to allow agencies to adopt different placement strategies that are effective for their particular programs yet satisfy legal entitlements to priority consideration in reemployment.
Thus, the regulations require that an agency maintain either an RPL or an alternate program that has obtained OPM concurrence or, put another way, approval, as discussed in Part III of the DISCUSSION infra.
Although agencies must maintain an RPL under sections 330.201(a) and (b) or an equivalent program under section 330.201(c), the regulations do not mandate that employees participate in available agency reemployment programs. Section 330.202 clarifies that placement on an agency RPL is not automatic. In order to be entered on an RPL, an employee must first complete an application within the time frame set forth in section 330.202(a)(1). Section 330.202(a)(1) provides:
To be entered on the RPL, an eligible employee under § 330.203 must com- *1345 píete an application .... Registration 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 § 351.807 of this chapter, has been issued. The employee must submit the application within 30 calendar days after the RIF separation date. An employee who fails to submit a timely application is not entitled to be placed on the RPL.
Even though an employee is not entitled to automatic entry on the RPL, he or she is entitled to receive information from the agency that may aid the employee in applying for the RPL. Pursuant to 5 C.F.R. § 330.203(b), at the time employees receive notices of separation or Certifications of Expected Separation (“CES”)s, “the agency must give each eligible employee information about the RPL, including appeal rights.”
Employee appeal rights are established by 5 C.F.R. § 330.209, which provides:
An individual who believes that his or her reemployment priority rights under this subpart have been violated because of the employment of another 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.
II.
Turning to the facts of this case, Mr. Roberto worked at the Navy Public Works Center (“FWC”) in Guam between 1985 and April of 2000. Initial Decision, slip op. at 10, 17. As of 2000, Mr. Roberto held the position of Air Conditioning Equipment Mechanic. Id., slip op. at 10. On April 7, 2001, he was separated from his position due to an RIF in Guam. Id., slip op. at 17. At the time of the RIF, DOD operated both an RPL and a PPP. See id., slip op. at 12. It is undisputed that the PPP was not OPM-approved. 2
The PWC began issuing notices and holding briefings concerning the impending RIF in August of 1999. Id., slip op. at 10. Specifically, Joni Santos-Borja, the Supervisory Human Resources Staff Specialist and PPP Program Manager for the Guam Human Resources Office (“HRO-Guam”) conducted three RIF briefings between August and October of 1999. Id. Ms. Santos-Borja’s briefings focused on explaining RIF rules and forthcoming RIF notices. Id., slip op. at 11. “Very minimal” references were made to the agency’s RPL, which was described as optional. Id. Appeal rights were also mentioned, but only very generally. Id. On November 23, 1999, Mr. Roberto was issued a CES. The CES contained a list of reemployment programs, including the RPL and the PPP, with brief descriptions of each. Id., slip op. 11-12. Mr. Roberto was issued a “RIF Notice of Separation” on December 7, 1999. Along with the Notice of Separation, he received the “Department of Defense Displaced Employee Guide.” Id., slip op. at 12. The guide included a description of DOD’s RPL. Id. It also included a description of the separate PPP maintained by DOD. Id., slip op. at 12. Among other things, the guide specified that an employee must apply for the RPL within thirty days of separation by an RIF. The “Department of Defense Displaced Employee Guide” also described employees’ appeal rights. The guide stated, “If you believe that your reemployment priority rights under this program have been violated, you may appeal to the [Board] under the regulations provided .... ”
*1346 Mr. Roberto did not attend any of the three briefings conducted by Ms. Santos-Borja at HRO-Guam during August and October. Id., slip op. at 11. Nor did he read any of the information provided to him about the RPL. Id., slip op. at 12-13. However, he did attend “a couple” of briefings given by persons other than Ms. Santos-Borja. Id., slip op. at 11.
In late October of 1999, Mr. Roberto moved to Hawaii because his son required medical treatment there. Id., slip op. at 10-11. Due to his relocation, Mr. Roberto was granted leave from Guam without pay beginning in January of 2000. Id., slip op. at 11. While in Hawaii, Mr. Roberto met with Claire Hashimoto, Personnel Staffing and Classification Specialist at the Human Resource Service Center for the Pacific in Honolulu. Id., slip op. at 13. Ms. Hashi-moto assisted Mr. Roberto in filling out his forms for registration on DOD’s PPP. Id., slip op. at 14. However, she testified that she did not actually register Mr. Roberto for the PPP because that was the responsibility of HRO-Guam. Id. Rather, she stated, she merely aided Mr. Roberto in filling out his PPP registration forms as a courtesy to HRO-Guam. Id. Although Ms. Hashimoto typically mentioned the RPL to employees she registered on the PPP, she made no mention of the RPL to Mr. Roberto. Id., slip op. at 13-14.
Based on the forms he completed with Ms. Hashimoto’s assistance, Mr. Roberto was successfully registered on the DOD PPP, as a result of which he received a temporary position as an Air Conditioning Equipment Mechanic at the Navy PWC in Pearl Harbor. Id., slip op. at 15. While working at his temporary position, Mr. Roberto also applied for a permanent position as an Air Conditioning Equipment Mechanic through the PPP. Id. HRO-Guam denied Mr. Roberto’s application for the permanent position because it determined that he was unqualified. Id. One of Mr. Roberto’s co-workers at the Navy PWC in Pearl Harbor was hired instead for the permanent position. Id.
Mr. Roberto was separated by the RIF effective April 7, 2001. Id., slip op. at 17.
III.
Mr. Roberto appealed to the Board on April 26, 2001. In his appeal, he claimed that his re-employment priority rights under 5 C.F.R. § 330.201 were violated because the Navy hired a person for the permanent Air Conditioning Equipment Mechanic position who otherwise would not have been hired had Mr. Roberto been properly considered for the position.
As noted above, following a hearing, the AJ dismissed the appeal for lack of jurisdiction. Initial Decision, slip op. at 1. The AJ did so on the ground that the Board only has jurisdiction over a reemployment priority rights claim under 5 C.F.R. § 330.209 if the appellant was registered under an agency RPL or an OPM-approved PPP. As seen, Mr. Roberto was not registered on the DOD RPL. Rather, he was registered on the DOD PPP, which was not approved by OPM. Id., slip op. at 25.
The AJ rendered his ruling in Mr. Roberto’s appeal against a backdrop of conflicting jurisprudence. In
Stuck v. Department of the Navy,
Even though he had not been RIFed, Mr. Sturdy lodged an appeal with the Board, claiming that the Army had violated his reemployment priority rights when it did not select him for one of the three Environmentalist positions at Fort Chaf-fee. In an initial decision, the AJ to whom the case was assigned dismissed the appeal for lack of jurisdiction because Mr. Sturdy had not registered for the DOD RPL.
Sturdy v. Dep’t of the Army,
No. DA-0330-98-0028-1-1, slip op. (M.S.P.B. Jan.15, 1998). On petition for review, the Board affirmed the AJ’s dismissal of the appeal, but on another ground.
Sturdy v. Dep’t of the Army,
The Board’s decision in
Sturdy I
was appealed to this court. While the appeal was pending, however, the government moved for a remand to the Board so that the Board could address the extent to which changes in 5 C.F.R. § 330.203(a)(3) affected the Board’s jurisdiction over an employee who, like Mr. Sturdy, was notified of an impending RIF but was never actually separated from his position.
See
Eligibility Due to Reduction in Force, 57 Fed.Reg. 21,890 (May 26, 1992). The government’s remand request was granted.
Sturdy v. Dep’t of the Army,
On remand, the Board deferred to the view of OPM that actual separation by an RIF was not a necessary predicate for Board jurisdiction over an appeal under 5 C.F.R. § 330.209.
Sturdy v. Dep’t of the Army,
*1348
We now return to the AJ’s decision in this case. Noting the Board’s decisions in
Stuck
and
Sturdy,
as well as in two subsequent cases,
Russo v. Department of the Navy,
Turning to the jurisdictional issues in the case before him, the AJ rejected Mr. Roberto’s argument that the DOD PPP was operated “in lieu of’ an RPL, thus giving the Board jurisdiction based on Stuck and 5 C.F.R. § 330.201(c). Id., slip op. at 23. According to the AJ, the most important evidence demonstrating the inapplicability of section 330.201(c) was the fact that DOD “neither sought nor obtained OPM concurrence” for its PPP. Id. The AJ concluded that the DOD PPP involved in Mr. Roberto’s appeal was not “in lieu of’ of an RPL because “the DOD PPP is a concurrent, stand-alone, ‘in addition-to’ program.” Id.
The AJ also rejected Mr. Roberto’s argument that jurisdiction existed because the DOD PPP had “in effect” replaced the RPL. Although the AJ found the evidence “indicates clearly that the PPP has ‘in effect’ replaced the RPL, as a practical matter,” he concluded that “it is unclear how this development gives the Board jurisdiction under Part 330.” Id., slip op. at 24-25. The AJ stated that he was unaware of any “in effect” theory of Board jurisdiction. Id., slip op. at 25.
As far as the DOD RPL was concerned, the AJ noted that Mr. Roberto had failed to establish that he applied for the RPL or was registered on it. Id., slip op. at 18-20. At the same time, the AJ ruled that the Board’s holding in Sturdy II did not provide a basis for jurisdiction because Mr. Roberto had not shown that the Navy had interfered with Mr. Roberto’s right to register for the RPL. Id., slip op. at 20. As seen above, 5 C.F.R. § 330.203(b) requires that an agency provide employees with information about the RPL, including appeal rights, at the time the employee receives an RIF notice of separation or a CES. Id. Considering together the “very minimal” references to the RPL in Ms. Santos-Borja’s briefings, the description of the RPL on Mr. Roberto’s CES, and the summary in the “Department of Defense Displaced Employee Guide,” the AJ concluded that the Navy had provided Mr. Roberto with sufficient information to ap *1349 prise him of the RPL and his appeal rights under section 330.203(b).
Mr. Roberto petitioned the Board for review of the initial decision. 'In an order issued September 23, 2004, the two sitting Members of the Board failed to agree on the disposition of the petition.
Final Decision,
Mr. Roberto timely appealed the final decision of the Board to this court. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(9) (2000).
DISCUSSION
I.
We will overturn a Board decision only if it is “(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.” 5 U.S.C. § 7703(c) (2000). We review the Board’s findings regarding questions of law, including jurisdiction, without deference.
Carley v. Dep’t of the Army,
II.
As seen, the AJ determined that the Board lacked jurisdiction because Mr. Roberto failed to register for the RPL and because the DOD PPP, for which he did register, was not approved by OPM.
Initial Decision,
slip op. at 23-24. On appeal, Mr. Roberto acknowledges that he did not register for the RPL within thirty days after the RIF, as required by 5 C.F.R. § 330.202(a)(1). He contends, however, that
Stuck
and its progeny establish that the Board had jurisdiction over the DOD PPP because it was operated “in lieu of’ an RPL under 5 C.F.R. § 330.201(c). Mr. Roberto also argues that the Navy “in effect” replaced the RPL with the PPP, so that his failure to register for the RPL did not result in the Board lacking jurisdiction over his appeal. In any event, he argues, he was not told that he needed to register for the RPL in order to secure his reemployment rights and that, under these circumstances and the reasoning of Chairman McPhie in
Sturdy III,
The government argues that because Mr. Roberto did not register for the RPL and the DOD PPP was not OPM-approved, the Board did not have jurisdiction over his appeal. The government discounts Mr. Roberto’s contention that the Board had jurisdiction because the PPP “in effect” replaced the RPL by arguing that the applicable regulations provide no basis for jurisdiction in a situation where there has been an “in effect” replacement. With regard to Mr. Roberto’s contentions that the Board had jurisdiction under section 330.203(b) as a result of the insufficiency of the information provided to him about the RPL, the government argues that the AJ’s decision finding that the information was *1350 sufficient should be affirmed because it is supported by substantial evidence.
III.
It is well settled that the Board’s jurisdiction is strictly limited to “any action which is appealable to the Board under any law, rule, or regulation.” 5 U.S.C. § 7701(a) (2000);
Carley,
The rules of statutory construction apply when interpreting an agency regulation.
Wronke v. Marsh,
As noted above, section 330.209 states, in relevant part, that an appeal may be taken to the Board by “[a]n individual who believes that his or her reemployment priority rights under this subpart have been violated .... ” “[T]his subpart” refers to Subpart B of 5 C.F.R. Pt. 330. Subpart B is titled “Reemployment Priority List (RPL).” It contains section 330.201, which, as already seen, requires that an agency maintain either an RPL or an OPM-approved PPP to provide reemployment priority rights.
See
5 C.F.R. § 330.201(a) (stating that an RPL is the mechanism agencies use in order “to give priority reemployment consideration to their former employees separated by reduction in force”);
id.
§ 330.201(c) (stating that an OPM-approved program adopted under subsection (c) must “satisfy legal entitlements to priority consideration in reemployment”). In short, reemployment priority rights under Subpart B are defined by either an RPL or an OPM-approved PPP. From that, we think it logically flows that when section 330.209, the jurisdictional regulation, refers to “reemployment priority rights under this sub-part,” it is referring to rights conferred by either an RPL or an OPM-approved PPP. It is not referring to rights conferred by a PPP that have not been approved by OPM. Accordingly, we hold that unless a PPP receives OPM concurrence, jurisdiction over appeals of alleged violations of PPP rights does not lie with the Board. Because the plain meaning of the regulation is clear, no further inquiry is required into agency interpretations or the regulatory history to determine its meaning.
See Meeks,
An agency may establish a PPP in addition to its RPL without seeking OPM concurrence. An employee faced with an impending RIF may register on both the RPL and the PPP. When an employee has such dual-enrollment, as was the case in Stuck, the Board has jurisdiction to hear appeals of adverse decisions concerning the RPL under section 330.209, ensuring that the employee’s rights under sections 330.201-330.209, including the right to appeal, are preserved. Thus, it is appropri *1351 ate to interpret section 330.201(c) in accordance with its plain language so as to give the Board jurisdiction over PPPs only when they have obtained OPM concurrence.
The parties are in agreement that 5 C.F.R. § 330.201(c), when properly construed, requires “OPM concurrence” in order to bring appeals pursuant to an agency PPP under the jurisdiction of the Board. They dispute, however, the meaning of the term “OPM concurrence,” as used in section 330.201(c). At oral argument, counsel for Mr. Roberto contended that OPM concurrence exists when a program is implemented by an agency and allowed to exist without OPM objection. On this basis, he urges that the DOD PPP in this case was OPM-approved. We do not agree.
We think that “OPM concurrence” under section 330.201(c) means that OPM has expressly given documented approval for an agency PPP. Section 330.201(c) states that an agency must “obtain[ ] OPM concurrence” when replacing its RPL with a PPP. 5 C.F.R. § 330.201(c). In our view, the act of “obtaining” concurrence requires more than waiting for tacit consent from OPM. When subsection (c) was added to section 330.201 in 1988, OPM expressly noted that the new provision “would permit an agency to operate an alternative placement program as an exception to the RPL requirement. In the final regulation, we have clarified that OPM prior approval is necessary for such an exception.” Recruitment, Selection, and Placement (General); Reduction in Force, 53 Fed.Reg. 45,065, 45,065 (Nov. 8, 1988) (emphasis added). To us, this statement compels the conclusion that “OPM concurrence” means express approval rather than some kind of tacit assent, as suggested by counsel for Mr. Roberto. Therefore, an agency PPP only falls under the scope of section 330.201(c) when OPM has expressly approved the PPP.
As noted, Mr. Roberto also argues that the Board has jurisdiction over his appeal because the DOD PPP was operated “in lieu of’ an RPL under 5 C.F.R. § 330.201(c). According to Mr. Roberto, the Navy “in effect” replaced the DOD RPL with the PPP, so that his failure to register for the RPL did not result in the Board lacking jurisdiction over his appeal. We are not persuaded by Mr. Roberto’s arguments. First, there is simply no factual basis for the assertion that DOD’s PPP was operated in lieu of its RPL. It is clear that DOD has an RPL and that, in addition, it operates a separate PPP. Turning to Mr. Roberto’s second argument, it is true that the AJ found — and the government does not dispute the finding — that, “as a practical matter,” the Navy “in effect” replaced DOD’s RPL with the PPP. Initial Decision, slip op. at 24-25. The AJ concluded, however, that this finding did not lead to the conclusion that the Board had jurisdiction in this case. Id., slip op. at 25. We agree.
Merely replacing a RPL with a PPP “in effect” does not provide a basis for jurisdiction before the Board. The Board’s jurisdiction is strictly limited to areas that are governed by statute or regulation.
See Carley,
has shown that to deny her review of her claims under the PPP in effect denies her review by the Board of her *1352 claims under 5 C.F.R. § 330.209. In this regard, the Board has found that it will enforce an agency’s own policy even if that policy or regulation grants the employee greater rights than she would have had under the general regulations.
Stuck,
IV.
Mr. Roberto also argues that, in any event, the Board had jurisdiction over his appeal because the Navy failed to advise him of his rights under the DOD RPL. In making this argument he points to the regulation at 5 C.F.R. § 330.203(b). As seen above, section 330.203(b) provides that “[a]t the time it gives a specific RIF notice of separation or a Certification of Expected Separation, the agency must give each eligible employee information about the RPL, including appeal rights.”
We have not addressed whether a violation of section 330.203(b) would give the Board jurisdiction. We have, however, addressed the government’s obligations under similar statutes and regulations.
Brush v. Office of Personnel Management,
*1353
The Board addressed the exact issue before us in
Sturdy II.
In
Sturdy II,
the Board held that it had jurisdiction pursuant to 5 C.F.R. §§ 330.203(b) and 330.209 because the Army provided insufficient information about RPL registration to an eligible employee, thereby denying him his appeal rights.
Based on the foregoing, we hold that an agency’s failure to correctly inform an eligible employee of his or her RPL rights in a timely fashion, as required by section 330.203(b), constitutes a violation of the employee’s reemployment priority rights. Such a violation of reemployment priority rights is appealable to the Board under 5 C.F.R. § 330.209. 5
Although a violation of 5 C.F.R. § 330.203(b) would give the Board jurisdiction under 5 C.F.R. § 330.209, Mr. Roberto has not demonstrated such a violation. Section 330.203(b) requires that an agency provide eligible employees with information about the RPL, including appeal rights. The AJ found that the Navy provided Mr. Roberto with sufficient information about the RPL to comply with the regulation.
Initial Decision,
slip op. at 20. This factual finding of the Board will only be overturned if it is not supported by substantial evidence. 5 U.S.C. § 7703 (2000);
Bolton v. Merit Sys. Prot. Bd.,
In finding that the Navy provided Mr. Roberto with information about the RPL as required by section 330.203(b), the AJ noted that the Navy held several briefings in which references to the RPL were made. The AJ also noted that there was a description of the RPL on Mr. Roberto’s CES and that the Navy provided Mr. Roberto with the “Department of Defense Displaced Employee Guide” when he received his “RIF Notice of Separation.” Initial Decision, slip op. at 19. The “Department of Defense Displaced Employee Guide” contained a description of the RPL and Mr. Roberto’s right to appeal to the Board. Id. Mr. Roberto disputes neither that the Navy held briefings wherein the RPL was mentioned nor that the Navy sent him at least these two documents containing descriptions of the RPL. Instead, Mr. Roberto claims that some of the documents provided to him by the Navy described the PPP without mentioning the RPL and that Ms. Hashimoto did not disclose to him the importance of registering for the RPL when she assisted him with his PPP forms. The Navy’s failure to mention the RPL at every opportunity does not undermine the fact that the Navy did provide Mr. Roberto with information about the RPL at several briefings, with his CES, and with his “RIF Notice of Separation.” We hold that these briefings and documents provide substantial evidence supporting the AJ’s conclusion that the Navy fulfilled its obligation under section 330.203(b) to inform Mr. Roberto about the RPL and his appeal rights.
*1354 CONCLUSION
For the foregoing reasons, the decision of the Board dismissing Mr. Roberto’s appeal for lack of jurisdiction is affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED
Notes
. The relevant provisions of the Code of Federal Regulations have not been amended since 2001, when Mr. Roberto was separated by the RIF. Thus, unless otherwise indicated, all references are to the 2005 version of the Code of Federal Regulations.
. The agency’s RPL and PPP remain in effect today. The PPP still has not been approved by OPM.
. On remand the AJ affirmed the agency's finding that Mr. Sturdy was not "well qualified” for one of the three Environmentalist positions. Sturdy v. Dep’t of the Army, No. DA-0330-98-0028-B-1 (M.S.P.B. Feb.7, 2002). Mr. Sturdy then petitioned the Board for review.
The AJ's initial decision became the Board’s final decision when the two sitting Members of the Board failed to agree on the disposition of Mr. Sturdy's petition.
Sturdy v. Dep’t of the Army,
. The two sitting Members of the Board agreed that the Board lacked jurisdiction over Mr. Roberto’s appeal, but wrote separately to express their different rationales. In Chairman McPhie’s view, the Board lacked jurisdiction over Mr. Roberto’s appeal because Mr. Roberto's failure to register on an RPL or an OPM-approved PPP was not due to agency misinformation.
Final Decision,
. Indeed, the government does not challenge the proposition that a violation of section 330.203(b) would confer jurisdiction on the Board. At oral argument, counsel for the Navy was asked to comment on the following: "In [the Sturdy III ] case, [Chairman McPhie] expressed the view that there can also be jurisdiction if, in fact, the agency fails to inform its employees about the available programs or misinforms the [employees].” Counsel for the Navy replied, "Our view is that would be sort of a constructive denial of RPL rights and that would give the MSPB jurisdiction over the allegations of constructive denial of RPL rights, but not jurisdiction over allegations of violations of the PPP.”