Green v. Merit Systems Protection Board , 638 F. App'x 990 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM GREEN, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3194
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-3443-15-0046-I-1.
______________________
Decided: January 6, 2016
______________________
WILLIAM GREEN, JR., Baltimore, MD, pro se.
SARA B. REARDEN, Office of the General Counsel, Mer-
it Systems Protection Board, Washington, DC, for re-
spondent. Also represented by BRYAN G. POLISUK.
______________________
Before LOURIE, DYK, and HUGHES, Circuit Judges.
2 GREEN v. MSPB
PER CURIAM.
William Green, Jr. (“Green”) seeks review of a final
decision of the Merit Systems Protection Board (“Board”)
dismissing his appeal for lack of jurisdiction. See Green v.
Dep’t of Army, No. PH-3443-15-0046, 2015 WL 3444383(M.S.P.B. May 29, 2015) (“Decision”). We affirm.
BACKGROUND
Green works as an Information Technology Specialist
for the U.S. Army. From 2007 to 2014, Green underwent
a series of reassignments. He started under the General
Schedule pay plan as a GS-13, Step 7, IT Specialist; was
then reassigned to the National Security Personnel Sys-
tem as a YA-2, IT Specialist; then to the Personnel
Demonstration Project as a DE-3, IT Specialist; until he
finally returned to the General Schedule as a GS-13, Step
10, IT Specialist. Decision ¶ 2. With each reassignment,
Green maintained his 2210 Occupational Series. Id.In 2014, Green filed a pro se appeal at the Board,
alleging that the Army failed to properly adjust his basic
pay during the reassignment process. Resp’t’s App.
(“R.A.”) 59–60. In an acknowledgement order, the admin-
istrative judge (“AJ”) informed Green that because he was
challenging “[his] reassignment to another position with-
out a loss of grade or pay,” he bore “the burden of proving
that the Board has jurisdiction over [his] appeal.” R.A.
50. Green did not respond to that order. See Decision ¶ 3.
The Army timely moved for the appeal to be dismissed
for lack of jurisdiction. R.A. 42–48. Thereafter, Green
submitted, inter alia, performance reviews from 2009 to
2013, a memorandum addressing his transition to the
General Schedule, and an Employee Bulletin on the
impact of the transition on pay and grade. Decision ¶ 3.
The AJ considered the submitted documents, but nev-
ertheless dismissed Green’s appeal for lack of jurisdiction.
R.A. 8–11. The AJ reasoned that Green made a “bare
GREEN v. MSPB 3
allegation that his reassignment from DE-3 to GS-13,
Step 10, resulted in a loss of pay,” without providing any
evidence to suggest that he lost pay, much less specifying
how much he lost. R.A. 10. Instead, the AJ found, “the
evidence indicates that as a DE-3, the appellant’s adjust-
ed basic pay was $116,901 and it was the same after
conversion to GS-13, Step 10.” R.A. 10. Absent evidence
suggesting a reduction in pay or grade, the AJ determined
that the Board lacked jurisdiction over Green’s appeal.
The AJ’s initial decision became final on May 29, 2015
when the full Board denied Green’s petition for review.
Decision ¶ 1; 5 C.F.R. § 1201.113. Green timely appealed
to this court for relief; we have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
The Board’s jurisdiction over a matter is not plenary;
it is circumscribed by statute and regulation. See Herman
v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999).
Under 5 U.S.C. §§ 7512(3)–(4), the Board has jurisdiction
over an employee’s “reduction in pay” or his “reduction in
grade,” i.e., a reduction in “level of classification under a
position classification system,” 5 U.S.C. § 7511(a)(3). We
review de novo the Board’s determination that it lacked
jurisdiction. See Johnson v. Merit Sys. Prot. Bd., 518 F.3d
905, 909 (Fed. Cir. 2008).
The Federal Register sets forth several specific occu-
pational families for the Department of Defense’s Science
and Technology Reinvention Laboratory Personnel Man-
agement Project at the United States Army. 66 Fed. Reg.
54872, 54877 (Oct. 30, 2001). In particular, the notice
describes Pay Plan DE for Business and Technical per-
sonnel, id., which includes Green’s Occupational Series
(2210), id. at 54896. According to the Pay Band Chart, a
DE-3 is equivalent to a GS-12 to GS-13 grade employee.
Id. at 54877.
4 GREEN v. MSPB
For a Pay Band corresponding to two or more grades,
such as DE-3, a multi-part inquiry is required to deter-
mine which GS grade applies. First, “the employee’s
adjusted rate of basic pay under the demonstration pro-
ject (including any locality payment or staffing supple-
ment) is compared with step 4 rates in the highest
applicable GS rate range.” Id. at 54891. Then, “[i]f the
employee’s adjusted project rate equals or exceeds the
applicable step 4 rate of the highest GS grade in the band,
the employee is converted to that grade.” Id. The em-
ployee is then assigned to one of the ten steps within the
converted grade that most closely approximates the
employee’s adjusted basic pay.
In this case, Green’s adjusted basic pay was $116,901.
Appellant’s Informal Reply Br. 2 n.2. It exceeded the GS-
13, Step 4 grade, which is $98,916. Accordingly, the Army
converted Green to a GS-13 employee. Then, within the
GS-13 grade, Step 10 most closely approximated Green’s
adjusted basic pay; in fact, it equaled his adjusted basic
pay. The Army therefore converted Green to a GS-13,
Step 10 employee, with a salary of $116,901. 1
Green argues that, according to an Employee Bulletin
he received in 2014, the Army should have reassigned
him to GS-14, Step 5, rather than GS-13, Step 10. Appel-
lant’s Suppl. App. 1–9. According to Green, such a reduc-
tion in grade, and consequent reduction in pay, bestowed
jurisdiction on the Board to address his appeal under 5
U.S.C. §§ 7512(3) & (4).
1 There exists an exception to the approach outlined
above. An employee whose adjusted basic pay exceeds
Step 10 of the applicable grade, “but fits in the rate range
for the next higher applicable grade (i.e., between step 1
and step 4),” will be converted to that next higher appli-
cable grade. 66 Fed. Reg. at 54891. Green does not
contend that that exception applies here.
GREEN v. MSPB 5
We find that contention unpersuasive and affirm the
Board’s conclusion that it lacked jurisdiction over Green’s
appeal. As an initial matter, the referenced Bulletin is
inapposite; it simply illustrates the conversion calculation
for a Pay Plan DB employee, not a DE employee. Appel-
lant’s Suppl. App. 1. Thus, the mere fact that the Bulletin
contemplates a conversion to GS-14 for a DB-3 employee
does not help Green’s case. Green’s status as DE-3, with
an $116,901 adjusted basic pay, did not make him eligible
for a GS-14 position, at any step. 66 Fed. Reg. at 54877.
Moreover, Green failed to present any substantive ev-
idence refuting the Army’s conversion calculation; his
bare allegations were inadequate to vest the Board with
jurisdiction. See 5 C.F.R. §§ 1201.56(a), (c)(2). The Board
correctly determined that Green could not establish a
reduction in grade or in pay based solely on his reassign-
ment from DE-3 to GS-13, Step 10, and thus correctly
determined that it lacked jurisdiction over his appeal.
We have considered the remaining arguments pre-
sented in Green’s informal petition, but do not find them
persuasive. For the foregoing reasons, the decision of the
Board is affirmed.
AFFIRMED
COSTS
No costs.