Cordero v. Department of Agriculture , 120 F. App'x 805 ( 2004 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3340
ANGEL CORDERO,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE
Respondent.
___________________________
DECIDED: December 15, 2004
___________________________
Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.
PER CURIAM.
Petitoner, Angel Cordero (“Cordero”) seeks review of the final decision of the
Merit Systems Protection Board (“MSPB” or “Board”) dismissing as moot his challenge
to a reduction in pay resulting from reassignment. Cordero v. Dep’t of Agriculture, No.
NY-0752-02-0101-I-1 (M.S.P.B. May 11, 2004). The Board held that no further relief
was available to Cordero because respondent, the Department of Agriculture (“DOA”)
had already rescinded Cordero’s reassignment and provided retroactive pay. We
affirm.
BACKGROUND
In April 2000 Cordero was reassigned from the position of Plant Protection
Technician (“PPT”) to that of Plant Protection & Quarantine Officer (“PPQO”). As a
condition of his appointment, Cordero was required to complete and pass New Officer
Training (“NOT”) within a one-year period. In May, 2000, Cordero was severely injured
when attacked by three pit bulls while on duty and was not able to return to work until
September, 2000.
Cordero attended NOT in January, 2001. He completed part of the training but
did not finish the course when it became clear, given the scores already received, that it
would be impossible to pass. As a result of his failure to complete NOT, he was
reassigned to his original PPT position on February 25, 2001. The reassignment did not
result in a grade reduction, but did reduce Cordero’s basic pay given the special salary
rate for PPQO positions. In March, 2001 he initiated an Alternative Dispute Resolution
claim with the agency, alleging that his reassignment to the PPT position was a result of
the mental and physical disabilities incurred as a result of his work-related injuries. He
filed a formal discrimination complaint when advised that the dispute resolution process
would not resolve the issue. On November 4, 2001, he was reinstated as a PPQO and
his basic pay was restored to the rate it had been prior to his February reassignment.
Cordero filed an appeal with the Board in January, 2002, challenging his
reduction in pay as a result of reassignment and alleging that the agency had
discriminated against him because of his disability by failing to provide him with
reasonable accommodation during the NOT training.
Because of Cordero’s reinstatement as a PPQO prior to the filing of the appeal,
the Administrative Judge (“AJ”) found that the only live issue at the time the appeal was
filed was that of his reduction in pay during the period from February 25, 2001, through
November 4, 2001. Cordero v. Dep’t of Agriculture, No. NY-0752-02-0101-I-1 at 3,
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(M.S.P.B. July 31, 2002). During the course of the appeal, DOA advised the Board that
Cordero’s reduction in pay during the period from February 25, 2001, through
November 4, 2001, was due to an administrative error and submitted evidence to
demonstrate that the agency had provided him with the pay he would have received but
for the reassignment from the PPQO position to the PPT position. Finding that “the
agency has provided him all of the relief . . . that he could get if the instant appeal were
to be adjudicated in his favor,” the AJ dismissed Cordero’s reduction in pay appeal as
moot. Id. at 3-4, 5.
The AJ also held that the Board lacked jurisdiction over Cordero’s discrimination
claim because such discrimination claims may only be heard by the Board when the
alleged wrongful act forms a basis for an agency action over which the Board otherwise
has jurisdiction. Id. at 5. The AJ found that the MSPB has no jurisdiction over training,
and that the connection between the alleged discrimination received during NOT
training and the reduction in back pay was too attenuated to justify the exercise of its
jurisdiction in this case. Id.
Upon petition for review, the two Board members that reviewed the initial
decision could not agree on the disposition of Cordero’s case. Therefore, pursuant to 5
C.F.R. § 1200.3(b), the AJ’s initial decision became the final decision of the Board on
May 11, 2004. Cordero timely appealed to this court, which has jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
04-3340 3
DISCUSSION
We must sustain the Board’s decision unless it is “found 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.” 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys.
Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998).
We find that substantial evidence on the record supports the finding that full relief
has been granted. Although the AJ stated the issue as one of mootness, the ultimate
question was whether the petitioner would meet his burden of establishing that he was
entitled to further relief. Cordero’s assertion that he was not properly reassigned to his
PPQO position is contravened by the record. (IResp’t App. at 39, 41.) Petitioner points
to no evidence in support of his allegation that he was forced to “re-apply for the
position under a vacancy announcement.” (Pet’r Br. at 4.) Nor, even assuming that
petitioner did need to apply for the PPQO position prior to his reassignment, does
petitioner demonstrate how going through an application process was in any way
harmful, given the undisputed fact that he did obtain the position on November 4, 2001.
Petitioner similarly fails to meet his burden of establishing error in the Board’s
decision that the agency provided him with the back pay to which he was entitled. See,
e.g., Tiburzi v. Dep’t of Justice, 269 F.3d 1346, 1351 (Fed. Cir. 2001); Cheeseman v.
Office of Pers. Mgmt., 791 F.2d 138, 141-42 (Fed. Cir. 1986). Cordero’s reliance on a
single Board member’s views as expressed in a separate opinion at the petition for
review stage that it was difficult to conclude that “the appellant had been made whole
monetarily from the existing record,” Cordero v. Dep’t of Agriculture, No. NY-0752-02-
04-3340 4
0101-I-1, Separate Op. of Acting Chairman Neil McPhie, at 7-8 (M.S.P.B., May 11,
2004) is not sufficient to demonstrate error. Indeed, at no point does petitioner
expressly state that he has not received the requisite back pay or attempt to show that
he did not. Rather, Cordero notes that the earning statements provided “do not show
any back pay” and if “back pay is hiding somewhere in one of these statements then it
must be circled so I can see it.” (Pet’r Reply Br. at 1-2.)
Petitioner points to no authority that states there is any obligation on the part of
respondent to separately list back pay from other earnings received in pay statements.
Although the available evidence is less than a model of clarity, Petitioner has failed to
demonstrate error in the Board’s decision.
Cordero’s remaining claims on appeal are without merit. Our decisions make
clear that Cordero’s claims for lost overtime compensation or other types of premium
pay due to his reassignment are beyond the Board’s jurisdiction, and therefore not
appealable reductions in pay. Mattern v. Dep’t of the Treasury, 291 F.3d 1366, 1370
(Fed. Cir. 2002); see also Pann v. Dep’t of the Navy, 265 F.3d 1346, 1348 (Fed. Cir.
2001). We have considered Cordero’s other arguments and find them to be
unpersuasive.
CONCLUSION
For the foregoing reasons, the decision of the Board is affirmed.
COSTS
No costs.
04-3340 5