Michael A. Currie, Jr. v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL A. CURRIE, JR., DOCKET NUMBER
Appellant, PH-315I-16-0106-I-1
v.
DEPARTMENT OF THE ARMY, DATE: July 1, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael A. Currie, Jr., Newport, Rhode Island, pro se.
Matthew J. Gowan, North Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 Effective December 28, 2014, the agency promoted the appellant to a GS-9
Supervisory Medical Technician position. Initial Appeal File (IAF), Tab 7 at 48.
The Standard Form 50 (SF-50) documenting the appointment indicated that the
appointment was subject to a 1-year supervisory probationary period beginning
December 15, 2014. Id. On November 10, 2015, the agency reassigned the
appellant from his GS-9 supervisory position to a GS-7 nonsupervisory position
for failure to satisfactorily complete the supervisory probationary period.
Id. at 12, 14. The appellant timely appealed the reassignment to the Board. IAF,
Tab 1. He did not request a hearing. Id. at 2. After notifying the appellant of his
jurisdictional burden, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 2 at 2, Tab 8, Initial
Decision (ID). The appellant has filed a petition for review of the initial
decision, and the agency has responded in opposition to the petition for review.
Petition for Review (PFR) File, Tabs 1, 3.
¶3 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears the
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burden of demonstrating by preponderant evidence that the Board has jurisdiction
over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶4 Under 5 U.S.C. § 3321, an individual serving in an initial appointment as a
supervisor or manager in the competitive service is required to serve a
probationary period. Burton v. Department of the Air Force, 118 M.S.P.R. 210,
¶ 7 (2012). An individual in the competitive service who has been promoted to a
supervisory position and who does not satisfactorily complete the probationary
period, like the appellant, “shall be returned to a position of no lower grade and
pay than the position from which the individual was . . . promoted.” 5 U.S.C.
§ 3321(b); Burton, 118 M.S.P.R. 210, ¶ 7; 5 C.F.R. § 315.907(a). Here, the
agency reassigned the appellant to a GS-7, step 5, nonsupervisory position for
failure to satisfactorily complete his supervisory probationary period, returning
him to the same grade and step as in the position he held prior to his promotion. 2
IAF, Tab 7 at 12, 15, 51.
¶5 Under these circumstances, an employee “has no appeal right” unless he
nonfrivolously alleges that the action “was based on partisan political affiliation
or marital status.” Burton, 118 M.S.P.R. 210, ¶ 7; 5 C.F.R. § 315.908. The
appellant has not alleged that the agency reassigned him on the basis of partisan
political reasons or marital status. IAF, Tabs 1, 6; PFR File, Tab 1; ID at 4.
Thus, as the administrative judge correctly determined, the Board lacks
jurisdiction over this appeal. ID at 5.
¶6 On review, the appellant appears to argue that he has the right to appeal his
reassignment to the Board because he qualifies as an “employee” under 5 U.S.C.
2
Although the record contains an SF-50 showing that the appellant occupied a GS-7,
step 4, nonsupervisory Medical Technician position as of March 29, 2013, IAF,
Tab 7 at 51, the record does not contain an SF-50 showing the appellant’s grade and pay
immediately preceding his promotion to the supervisory position, id. at 48-49. The
demotion letter states, however, that the appellant was promoted from a GS-7, step 5,
nonsupervisory Medical Technician position into the supervisory position. IAF, Tab 7
at 15. The appellant has not disputed this assertion. IAF, Tabs 1, 6; PFR File, Tab 1.
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§ 7511(a)(1) and because the agency’s evidence in support of his demotion was
“falsified and exaggerated.” PFR File, Tab 1 at 4. These contentions, however,
are inapposite to the jurisdictional issue in this appeal and provide no basis to
disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012).
If you choose to file, be very careful to file on time. The court has held that
normally it does not have the authority to waive this statutory deadline and that
filings that do not comply with the deadline must be dismissed. Pinat v. Office of
Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
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If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.