DOT FAA Albuquerque, NM v. Department of Transportation ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOCKET NUMBERS
DOT FAA ALBUQUERQUE, NM, DE-3443-14-0519-I-1 (GROUP 1)
DOT FAA2 ALBUQUERQUE, NM, DE-3443-14-0561-I-1 (GROUP 2)
DOT FAA4 ALBUQUERQUE, NM, DE-3443-14-0589-I-1 (GROUP 4)
STEPHEN VAN SICKLE, DE-3443-14-0514-I-1
KAY F. WILEY, DE-3443-14-0587-I-1
Appellants, 1
v.
DATE: August 25, 2015
DEPARTMENT OF
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Robert J. Mattmann, Eugene W. Victor, William H. Klein,
Kent T. MacKenzie, Jon L. Semanek, Michael J. Murtagh,
Jeffrey A. Ross, Roger A. Mandeville, Stephen Van Sickle, and
Kay F. Wiley, pro se.
Sarah L. McKinin, Esquire, Washington, D.C., for the Group 2 appellants.
Theresa Dunn, Esquire, Fort Worth, Texas, for the agency.
1
Our findings in this Final Order apply only to Appellants Wiley and Van Sickle and
the appellants set forth in Appendices A-C to this Final Order, not to the appellants who
were previously part of the consolidated groups 1-4 but did not file petitions for review.
See Dye v. Department of the Army, 121 M.S.P.R. 142, ¶ 1 n.2 (2014).
2
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellants have filed petitions for review of the initial decisions, which
dismissed their appeals for lack of jurisdiction. Generally, we grant petitions
such as these 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
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. See 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, and based on the following points and authorities, we conclude that the
petitioners have not established any basis under section 1201.115 for granting the
petitions for review. Therefore, we DENY the petitions for review. Except as
expressly MODIFIED by this Final Order to address the appellants’ claim that
they suffered a reduction in pay, we AFFIRM the initial decisions.
BACKGROUND
¶2 The appellants are former Air Traffic Control Specialists and Supervisory
Air Traffic Control Specialists at the agency’s Air Route Traffic Control Center
in Albuquerque, New Mexico (the Albuquerque Center or facility), who retired
from service with the agency in or prior to January 2014. See, e.g., Victor v.
Department of Transportation, MSPB Docket No. DE-3443-14-0491-I-1, Initial
Appeal File (Victor IAF), Tab 5 at 4; Cockrell v. Department of Transportation,
3
MSPB Docket No. DE-3443-14-0507-I-1, Initial Appeal File (Cockrell IAF),
Tab 7 at 4.
¶3 The pay of Air Traffic Control Specialists and Supervisory Air Traffic
Control Specialists is determined by the classification level of the facility where
they work, which in turn is determined, in part, by the volume and complexity of
air traffic managed at the facility. See DOT FAA Albuquerque, NM v. Department
of Transportation, MSPB Docket No. DE-3443-14-0519-I-1, Group 1
Consolidated Appeal File (G1CAF), Tab 2 at 47-48; Murtagh v. Department of
Transportation, MSPB Docket No. DE-3443-14-0485-I-1, Initial Appeal File
(Murtagh IAF), Tab 11 at 7. The appellants’ claims in these appeals arise out of
the agency’s failure to upgrade the Albuquerque Center’s classification level in
2004. See, e.g., Semanek v. Department of Transportation, MSPB Docket No.
DE-3443-14-0483-I-1, Initial Appeal File (Semanek IAF), Tab 1 at 4; Cockrell
IAF, Tab 1 at 5.
¶4 The Albuquerque Center is classified as a Level 10 facility. G1CAF, Tab 2
at 48. In 2006, the National Air Traffic Controllers Association (NATCA), which
represents bargaining unit employees at the Albuquerque Center, filed a
grievance, challenging the agency’s decision not to upgrade the facility’s
classification level in 2004. Id. at 18, 43, 48; Murtagh IAF, Tab 11 at 38. In
October 2013, an arbitrator issued a partial award finding that the Albuquerque
Center should have been upgraded in 2004. G1CAF, Tab 2 at 15, 35-39, 41.
However, the arbitrator afforded the agency an opportunity to present evidence
that the facility would have been downgraded again at a later date. Id. at 39, 41.
¶5 Approximately 3 months later, on January 27, 2014, NATCA and the
agency entered into a settlement agreement resolving this grievance. G1CAF,
Tab 2 at 43-45. Pursuant to the settlement, the agency agreed to make lump sum
payments to current employees in the NATCA bargaining unit and former
employees who separated from the agency in a NATCA bargaining unit position.
Id. at 43.
 4
¶6 One of the appellants, Appellant Victor, was a bargaining unit employee
when he retired, and he received payments pursuant to the settlement for time that
he was employed as a bargaining unit employee but not for time that he was
employed as a manager. 3 Victor IAF, Tab 1 at 5, Tab 5 at 4-6; G1CAF, Tab 2
at 6, 7 n.4, 12-13. The remaining appellants did not receive any payments
because they were not in a NATCA bargaining unit when they retired. See, e.g.,
Semanek IAF, Tab 6 at 4; Cockrell IAF, Tab 7 at 4; Murtagh IAF, Tab 8 at 4; see
also G1CAF, Tab 2 at 46 (explaining that ineligibility for bargaining unit status is
indicated on the Standard Form 50s by the code 8888 in block 37).
¶7 Subsequently, in July 2014, the agency voluntarily made similar payments
to current Federal Aviation Administration (FAA) managers assigned to the
Albuquerque Center during the time period covered by the settlement agreement.
G1CAF, Tab 2 at 48-49. The appellants did not receive payments because they
had retired prior to July 2014, and thus were not current managers. E.g.,
Semanek IAF, Tab 6 at 4; see G1CAF, Tab 2 at 49.
¶8 Between July and September 2014, the appellants filed Board appeals,
challenging the agency’s failure to upgrade the Albuquerque Center and increase
their pay. See, e.g., Mandeville v. Department of Transportation, MSPB Docket
No. DE-3443-14-0539-I-1, Initial Appeal File (Mandeville IAF), Tab 1 at 3, 5;
Wiley v. Department of Transportation, MSPB Docket No. DE-3443-14-0587-I-1,
Initial Appeal File (Wiley IAF), Tab 1 at 3, 5; Murtagh IAF, Tab 1 at 3, 5.
¶9 Appellant Wiley’s appeal was adjudicated individually, and the remaining
individual appeals were consolidated into four groups presided over by three
different administrative judges. See G1CAF, Tab 1; DOT FAA2 Albuquerue, NM
v. Department of Transportation, MSPB Docket No. DE-3443-14-0561-I-1,
Group 2 Consolidated Appeal File (G2CAF), Tab 1 at 1; DOT FAA3 Albuquerue,
3
The Standard Form 50s documenting the payments to Appellant Victor pursuant to the
settlement identified the nature of the action as an “individual cash award.” Victor
IAF, Tab 5 at 5-6.
5
NM v. Department of Transportation, MSPB Docket No. DE-3443-14-0566-I-1,
Group 3 Consolidated Appeal File (G3CAF), Tab 1; DOT FAA4 Albuquerue, NM
v. Department of Transportation, MSPB Docket No. DE-3443-14-0589-I-1,
Group 4 Consolidated Appeal File (G4CAF), Tab 1; Wiley IAF, Tab 10, Initial
Decision (Wiley ID).
¶10 After issuing orders to the appellants to establish Board jurisdiction over
their appeals and considering any responses, the administrative judges dismissed
the appeals for lack of jurisdiction without holding the requested hearings. 4 See,
e.g., Wiley IAF, Tab 1 at 2, Tab 5 (the orders requiring the appellants to establish
jurisdiction over their appeals); Victor IAF, Tab 1 at 2 (examples of the
appellants’ requests for hearings); G1CAF, Tab 4; G2CAF, Tab 1; G3CAF, Tab 3;
G4CAF, Tab 1; G1CAF, Tab 5, Initial Decision (G1-ID); G2CAF, Tab 3, Initial
Decision (G2-ID) ; G3CAF, Tab 4, Initial Decision (G3-ID) ; G4CAF, Tab 4,
Initial Decision (G4-ID); Wiley ID. The administrative judges found that the
Board lacks jurisdiction to enforce the arbitration decision or the settlement
agreement resolving the grievance. Wiley ID at 5; G1-ID at 5-6; G2-ID at 5-6;
G3-ID at 5-6; G4-ID at 5. They further found that the Board lacks jurisdiction to
review classification actions and that the appellants failed to raise a nonfrivolous
allegation that they suffered constructive demotions. 5 Wiley ID at 6-8; G1-ID
4
On review, several appellants argue that the administrative judges erred by failing to
grant their hearing requests. See, e.g., Victor v. Department of Transportation, MSPB
Docket No. DE-3443-14-0491-I-1, Petition for Review (Victor PFR) File, Tab 3 at 2-3.
However, the administrative judges properly found that they failed to raise a
nonfrivolous allegation that the alleged wrongdoing by the agency constituted any
matter appealable to the Board. See Wiley ID at 1-2, 4-9; G1CAF, Tab 5, Initial
Decision (G1-ID) at 1-2, 5-9; G2CAF, Tab 3, Initial Decision (G2-ID) at 2, 4-9;
G3CAF, Tab 4, Initial Decision (G3-ID) at 1-2, 5-9; G4CAF, Tab 4, Initial Decision
(G4-ID) at 2, 5-8. Accordingly, the appellants were not entitled to a jurisdictional
hearing. See Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 14 (2013).
5
The administrative judge presiding over the Group 2 cases also considered allegations
raised by three appellants that they retired because they reached mandatory retirement
age, or received a disability-based retirement, as potential claims that their retirements
were involuntary. See G2-ID at 8-9. On review, the appellants have not challenged the
6
at 6-8; G2-ID at 6-9; G3-ID at 6-8; G4-ID at 6-8. Finally, they found that the
appellants failed to establish jurisdiction over their claims that the agency’s
actions affected their retirement annuities because they did not allege that the
Office of Personnel Management (OPM) had issued a final decision. 6 Wiley ID
at 8; G1-ID at 8-9; G2-ID at 9; G3-ID at 8-9; G4-ID at 9.
¶11 Appellants Wiley and Van Sickle and the appellants from Groups 1 and 4
filed individual petitions for review. See, e.g., Wiley v. Department of
Transportation, MSPB Docket No. DE-3443-14-0587-I-1, Petition for Review
(Wiley PFR) File, Tab 4; Victor v. Department of Transportation, MSPB Docket
No. DE-3443-14-0491-I-1, Petition for Review (Victor PFR) File, Tab 3. The
Group 2 appellants, through their designated representative, filed a joint petition
for review. DOT FAA2 Albuquerque, NM v. Department of Transportation,
MSPB Docket No. DE-3443-14-0561-I-1, Group 2 Petition for Review (G2PFR)
File, Tab 3. The agency has filed separate consolidated responses to the petitions
for review filed by the appellants in Groups 1, 2, and 4, and to the petitions for
review filed by Appellant Wiley and Appellant Van Sickle, who was the sole
appellant in Group 3 that filed a petition for review. See DOT FAA Albuquerque,
NM v. Department of Transportation, MSPB Docket No. DE-3443-14-0519-I-1,
administrative judge’s finding that they failed to raise a nonfrivolous allegation that
their retirements were involuntary, and we discern no basis to disturb this well-reasoned
finding. See G2-ID at 8-9; DOT FAA2 Albuquerque, NM v. Department of
Transportation, MSPB Docket No. DE-3443-14-0561-I-1, Group 2 Petition for Review
(G2PFR) File, Tab 3.
6
Prior to issuing the initial decision, the administrative judge did not inform the
Group 4 appellants of the burdens and elements of proof for establishing jurisdiction
over a constructive demotion or retirement claim. See G4CAF, Tab 1; see also Burgess
v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (an appellant
must receive explicit information on what is required to establish an appealable
jurisdictional issue). However, this oversight was cured by the initial decision, which
provided this information. G4-ID at 6-8; see Mapstone v. Department of the Interior,
106 M.S.P.R. 691, ¶ 9 (2007) (the administrative judge’s failure to provide an appellant
with proper Burgess notice can be cured if the initial decision contains the notice that
was lacking, thus affording the appellant an opportunity to meet his burden on petition
for review).
7
Group 1 Petition for Review (G1PFR) File, Tab 3; G2PFR File, Tab 7; Van Sickle
v. Department of Transportation, MSPB Docket No. DE-3443-14-0514-I-1,
Petition for Review (Van Sickle PFR) File, Tab 7; DOT FAA4 Albuquerque, NM
v. Department of Transportation, MSPB Docket No. DE-3443-14-0589-I-1,
Group 4 Petition for Review (G4PFR) File, Tab 3; Wiley PFR File, Tab 6. The
agency has further requested that all of the appeals be consolidated on review.
See G1PFR File, Tab 1 at 4-6; G2PFR File, Tab 5 at 6-7; Van Sickle PFR File,
Tab 5 at 6-7; G4PFR File, Tab 1 at 4-5; Wiley PFR File, Tab 3 at 4-5.
¶12 As a preliminary matter, because the petitions for review raise similar
issues, we GRANT the agency’s motion to further consolidate the appeals to
address the petitions for review. See 5 C.F.R. § 1201.36(b) (consolidation is
appropriate if doing so would expedite processing and not adversely affect the
interests of the parties); see also Prouty v. General Services
Administration, 122 M.S.P.R. 117, ¶ 1 (2014) (consolidating cases on review that
were adjudicated separately below). 7
DISCUSSION OF ARGUMENTS ON REVIEW
The appellants failed to raise a nonfrivolous allegation that they suffered an
adverse action.
¶13 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). Thus, it follows that the
Board does not have jurisdiction over all matters involving Federal employees
that are alleged to be unfair or incorrect. Johnson v. U.S. Postal
Service, 67 M.S.P.R. 573, 577 (1995). With exceptions not applicable here, under
the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
7
In addition, we DENY the agency’s request to include the individual appeal filed by
Appellant Ronald Perino, MSPB Docket No. DE-3443-14-0447-I-1, in this
consolidation. See G1PFR File, Tab 1 at 4-6, 8. We will issue a separate decision with
regard to Appellant Perino.
8
(the Ford Act), covered FAA employees have the right to appeal certain adverse
actions to the Board. 49 U.S.C. § 40122(g)(2)(H), (g)(3); Roche v. Merit Systems
Protection Board, 596 F.3d 1375, 1378, 1380-81 (Fed. Cir. 2010) (discussing
which FAA employees may appeal adverse actions to the Board); Goldberg v.
Department of Transportation, 97 M.S.P.R. 441, ¶ 6 (2004) (finding that the Ford
Act permits covered employees to appeal involuntary reductions in pay and
grade). Adverse actions include a removal, a suspension for more than 14 days, a
reduction in pay or grade, and certain furloughs. 5 U.S.C. § 7512; 49 U.S.C.
§ 40122(h), (j) (defining “major adverse personnel actions” that FAA employees
can contest through either a contractual grievance procedure, an internal FAA
process, or to the Board).
¶14 On review, some appellants argue that the Board has jurisdiction over their
appeals because the agency’s failure to upgrade the facility constituted a “major
adverse action.” E.g., Victor PFR File, Tab 3 at 1, 4, 15, 18; Murtagh v.
Department of Transportation, MSPB Docket No. DE-3443-14-0485-I-1, Petition
for Review (Murtagh PFR) File, Tab 3 at 5, 8, 13, 15, 19-20, 22; Van Sickle PFR
File, Tab 3 at 8. The failure to upgrade a facility classification level, however, is
not an adverse action appealable to the Board. See 5 U.S.C. § 7512; 49 U.S.C.
§ 40122(j).
¶15 As they did below, several appellants also argue that they suffered a loss of
“grade and pay” due to the agency’s failure to upgrade the facility. See, e.g.,
Murtagh IAF, Tab 10 at 4-5; Murtaugh PFR File, Tab 3 at 8, 12; Mallen v.
Department of Transportation, MSPB Docket No. DE-3443-14-0496-I-1, Initial
Appeal File (Mallen IAF), Tab 5 at 5; Wiley IAF, Tab 8 at 4. The Board has
jurisdiction over appeals of reductions in grade and pay. 5 U.S.C. § 7512(3)-(4);
see Goodwin v. Department of Transportation, 106 M.S.P.R. 520, ¶ 11 (2007)
(covered FAA employees may appeal reductions in grade and pay to the Board).
Here, however, the appellants have not alleged that the agency actually reduced
their grade and pay, but instead allege that the agency was obligated to increase
9
their grade and pay by upgrading the facility and failed to do so. See, e.g., Victor
PFR File, Tab 3 at 4, 15; Murtagh PFR File, Tab 3 at 8, 19; Wiley IAF, Tab 8 at 4
(alleging that appellant Wiley suffered a “de facto” reduction in pay and grade);
Mallen IAF, Tab 5 at 5.
¶16 A failure to increase an employee’s basic pay generally does not constitute
an appealable reduction in pay. 8 Gaydar v. Department of the
Navy, 121 M.S.P.R. 357, ¶ 7 (2014) (the Board lacked jurisdiction over an
appellant’s claim that an agency improperly failed to increase his basic pay rate
as an adjustment in connection with the reduction in the number of hours he
worked due to a furlough); see Caven v. Merit Systems Protection Board, 392
F.3d 1378, 1381-82 (Fed. Cir. 2004) (the denial of a promotion that would have
resulted in a pay increase is not an appealable reduction in pay). Accordingly, we
find that the appellants failed to raise a nonfrivolous allegation that they suffered
a reduction in pay.
¶17 Even without an actual reduction in grade, however, an employee may be
deemed to have suffered an appealable constructive reduction in grade, or
“constructive demotion.” Marcheggiani v. Department of Defense, 90 M.S.P.R.
212, ¶ 7 (2001). To receive a jurisdictional hearing on a constructive demotion
claim, an appellant must nonfrivolously allege, in pertinent part, that he was
8
The administrative judges did not address the appellants’ claims that they suffered a
reduction in pay. See Wiley ID at 4 n.2; G1-ID at 5 n.4; G2-ID at 5 n.4; G3-ID at 5 n.4;
G4-ID at 6-9. However, the failure to address this argument was not reversible error.
See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initial decision). Furthermore, although the administrative judges did
not inform the appellants of the burdens and elements of proof for establishing
jurisdiction over a reduction in pay claim, this oversight was cured by the agency’s
pleadings below, which provided this information. See Wiley IAF, Tab 9 at 7-8;
G1CAF, Tab 2 at 10; G2CAF, Tab 2 at 8-9; G3CAF, Tab 2 at 7-9; G4CAF, Tab 2 at 7-8
(the agency’s pleadings discussing reduction in pay claims); see also Mapstone,
106 M.S.P.R 691, ¶ 9 (an administrative judge’s failure to provide an appellant with
proper Burgess notice can be cured if the agency’s pleadings contain the notice that was
otherwise lacking). We modify the initial decisions to address the appellants’ reduction
in pay claims.
10
reassigned and that his former position was upgraded. Elmore v. Department of
Transportation, 421 F.3d 1339, 1342-43 (Fed. Cir. 2005); Beaudette v.
Department of the Treasury, 100 M.S.P.R. 353, ¶ 13 (2005).
¶18 In the present case, the appellants did not allege that they were reassigned,
but instead alleged that they retired from positions that were later upgraded, or
9
should have been upgraded prior to their retirement. See, e.g., Wiley PFR File,
Tab 4 at 7; Van Sickle PFR File, Tab 3 at 2, 7-8; Victor PFR File, Tab 3 at 9. In
the absence of any allegation that the appellants were reassigned, we agree with
the administrative judges that they failed to raise a nonfrivolous allegation of
jurisdiction over their constructive demotion claims. See Phillips v. Department
of the Air Force, 104 M.S.P.R. 229, ¶ 5 (2006) (an appellant failed to raise a
nonfrivolous allegation that he was constructively demoted where he alleged that
he performed higher-graded duties in his current position, but did not allege that
he was reassigned); Beaudette, 100 M.S.P.R. 353, ¶ 13 (the Board lacked
jurisdiction over an appellant’s constructive demotion claim where he was not
reassigned when his former position was upgraded); see also Wiley ID at 7-8;
G1-ID at 7-8; G2-ID at 7-8; G3-ID at 7-8; G4-ID at 7-8.
The administrative judges correctly found that the Board lacks jurisdiction over
the appellants’ retirement annuity claims, and the appellants have not
demonstrated that the evidence that they submit in the first instance on review is
material.
¶19 On review, the appellants challenge the administrative judges’ findings that
the Board lacks jurisdiction to review their claims that the agency’s actions
reduced their retirement annuities. See, e.g., G2PFR File, Tab 3 at 11-14; Victor
PFR File, Tab 3 at 9-10; Murtagh PFR File, Tab 3 at 13-14; see also G1-ID
9
Because the appellants have not alleged that they were reassigned, we need not decide
whether the payments made by the agency to NATCA bargaining unit employees and
current managers in 2014 constituted an “upgrade” of the appellant’s former positions.
See Marcheggiani, 90 M.S.P.R. 212, ¶ 8 (a constructive demotion cannot be established
based on a claim that a position could have been or should have been reclassified
upwards).
11
at 8-9; G2-ID at 9; G3-ID at 8-9; G-4 ID at 8; Wiley ID at 8 (the administrative
judges’ findings). If OPM has not issued a reconsideration decision on an
appellant’s entitlement to a retirement benefit, the Board generally lacks
jurisdiction over an appeal of that matter. Fagone v. Office of Personnel
Management, 85 M.S.P.R. 49, ¶ 9 (2000). The Board has recognized an
exception to that general rule, and may take jurisdiction over a retirement appeal
absent an OPM reconsideration decision if the appellant has made “repeated
requests” for such a decision and the evidence indicates that OPM does not intend
to issue a final decision. Id.
¶20 Below, none of the appellants alleged that they received a final or
reconsideration decision from OPM. See, e.g., Semanek IAF, Tab 1 at 3
(indicating that whether the appellant received an OPM final decision was “not
applicable”). However, on review, Appellant Todd argues that he alleged below
that he made repeated requests to OPM for a final decision. G2PFR File, Tab 3
at 13. A review of Appellant Todd’s submissions below demonstrates that,
although he alleged that he called OPM numerous times to determine the correct
person to assist him, he alleged that he made, at most, one request for a decision
regarding his retirement annuity, which is insufficient to establish Board
jurisdiction over his appeal. See Todd v. Department of Transportation, MSPB
Docket No. DE-3443-14-0494-I-1, Initial Appeal File, Tab 8 at 6-7; see also
Fagone, 85 M.S.P.R. 49, ¶ 11 (finding a single request for a final decision from
OPM was insufficient to establish jurisdiction over an appellant’s retirement
appeal).
¶21 For the first time on review, multiple appellants allege that they received
final decisions from OPM after the initial decisions in these appeals were issued,
which they contend constitute new and material evidence. See, e.g., Wiley PFR
File, Tab 4 at 2, 12; MacKenzie v. Department of Transportation, MSPB Docket
No. DE-3443-14-0473-I-1, Petition for Review (MacKenzie PFR) File, Tab 3 at 5,
12; Ross v. Department of Transportation, MSPB Docket No. DE-3443-14-0540-
12
I-1, Petition for Review (Ross PFR) File, Tab 3 at 2-3, 12. The Board generally
will not consider evidence submitted for the first time on review absent a showing
that: (1) the documents and the information contained in the documents were
unavailable before the record closed despite due diligence; and (2) the evidence is
of sufficient weight to warrant an outcome different from that of the initial
decision. Carson v. Department of Energy, 109 M.S.P.R. 213, ¶ 21 (2008), aff’d,
357 F. App’x 293 (Fed. Cir. 2009); see 5 C.F.R. § 1201.115(d). The agency
argues that the OPM letters would have been available had the appellants
exercised due diligence, and, in any event, are not material to the issue of Board
jurisdiction. See, e.g., G1PFR File, Tab 3 at 8-11; G4PFR File, Tab 3 at 8-11.
We agree with the agency that the appellants have failed to demonstrate that the
letters would establish Board jurisdiction over their retirement claims, and,
accordingly, the evidence is not material to the outcome of their appeals.
¶22 The letters from OPM that the appellants submit in the first instance on
review state that OPM is responding to the appellants’ requests to file
classification appeals, not to their requests for a final or reconsideration decision
on retirement matters. See, e.g., Wiley PFR File, Tab 4 at 12; MacKenzie PFR
File, Tab 3 at 12; Ross PFR File, Tab 3 at 12. The Board lacks jurisdiction to
review OPM decisions in classification appeals. 10 Saunders v. Merit Systems
Protection Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985). Therefore, we find that
the OPM letters do not establish jurisdiction over the appellants’ retirement
claims. 11
10
On review, the Group 1 appellants contend that the administrative judge erred in
construing their claims as classification appeals. See, e.g., Victor PFR File, Tab 3
at 10-14; Murtagh PFR File, Tab 3 at 14-18. However, we find any such error harmless
here because they have failed to raise a nonfrivolous allegation that their claims were
otherwise appealable to the Board. See Panter, 22 M.S.P.R. at 282 (an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision).
11
On review, some appellants allege that OPM misunderstood their requests. See, e.g.,
Ross PFR File, Tab 3 at 3. However, they did not submit copies of their requests or
13
The Board lacks jurisdiction over the appellant’s remaining claims.
¶23 On review, the Group 2 appellants argue that the Board has jurisdiction to
enforce the October 2013 arbitration decision. G2PFR File, Tab 3 at 15. The
Board lacks jurisdiction to either review or enforce an arbitration award that does
not address any matter appealable to the Board. Cloutterbuck v. Department of
Labor, 88 M.S.P.R. 1, ¶ 5 (2001); Hunter v. Department of the Air
Force, 83 M.S.P.R. 7, ¶¶ 10-11 (1999). Therefore, we agree with the
administrative judges that the Board lacks jurisdiction to enforce the arbitration
award. 12 See, e.g., G1-ID at 5; G2-ID at 5.
¶24 On review, the appellants argue that the agency’s failure to upgrade the
facility and increase their pay violated a memorandum of understanding (MOU)
between the agency and NATCA, 13 position classification standards, and other
agency laws, rules, or regulations. See, e.g., G2PFR File, Tab 3 at 7-8, 14-15;
Victor PFR File, Tab 3 at 2; Wiley PFR File, Tab 4 at 2. They further allege that
otherwise establish that the OPM letters were tantamount to a final decision on a
retirement matter.
12
The Group 1 appellants also argue that, because the arbitrator determined that the
Albuquerque Center should have been upgraded, the Board has jurisdiction to award
them back pay under the Back Pay Act. See, e.g., Victor PFR File, Tab 3 at 19.
However, the Board is only authorized to award back pay under the Back Pay Act when
adjudicating appeals within its jurisdiction. Mattern v. Department of the Treasury,
88 M.S.P.R. 65, ¶ 10 (2001), aff’d, 291 F.3d 1366 (Fed. Cir. 2002). Here, because the
Board lacks jurisdiction over the appeals, it has no authority to award the appellants
back pay. See Bell v. Department of Transportation, 39 M.S.P.R. 210, 213 (1988) (the
Board lacked jurisdiction to resolve back pay issues resulting from an arbitration
award).
13
In support of this argument, for the first time on review, the Group 2 appellants
submit a July 3, 2013 arbitration decision discussing the MOU, which was not part of
the record below in the Group 2 appeals. G2PFR File, Tab 3 at 19, 28-33. However,
the evidence was previously submitted in the Group 1 appeals, and was available before
the record closed on review in the Group 2 appeals. See Murtagh IAF, Tab 11.
Regardless, the Group 2 appellants have failed to demonstrate that the decision would
establish Board jurisdiction over their appeals, and, accordingly, it is not material to the
outcome. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R.
§ 1201.115(d).
14
the agency’s actions were criminal and that the agency acted in bad faith. See,
e.g., Wiley PFR File, Tab 4 at 9; Victor PFR File, Tab 3 at 2; Van Sickle PFR
File, Tab 3 at 7. However, in the absence of an otherwise appealable action, the
Board lacks jurisdiction to review these claims. See Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012) (in the absence of an otherwise appealable
action, the Board lacked jurisdiction over claims of harmful error, prohibited
personnel practices, and the agency’s alleged failure to comply with regulations);
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (prohibited personnel
practices under 5 U.S.C. § 2302(b) are not an independent source of Board
jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decisions, as supplemented by this Final Order, constitute the
Board’s final decisions in this matter. 5 C.F.R. § 1201.113. You have the right
to request review of this final decision by the United States 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. See 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. See
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
15
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.
If you are interested in securing pro bono representation for your appeal to
the 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
16
APPENDIX A
DOT FAA Albuquerque, NM
DE-3443-14-0519-I-1
Eugene W. Victor DE-3443-14-0491-I-1
Jon Semanek DE-3443-14-0483-I-1
Kent T. MacKenzie DE-3443-14-0473-I-1
Michael J. Murtagh DE-3443-14-0485-I-1
Robert J. Mattmann DE-3443-14-0472-I-1
William H. Klein DE-3443-14-0484-I-1
17
APPENDIX B
DOT FAA2 Albuquerque, NM
DE-3443-14-0561-I-1
Angela J. Stalans DE-3443-14-0506-I-1
Anthony R. Bass DE-3443-14-0522-I-1
Bruce B. Connolly DE-3443-14-0511-I-1
Catherine Bass DE-3443-14-0523-I-1
Christopher A. Prince DE-3443-14-0508-I-1
David Cockrell DE-3443-14-0507-I-1
Holly L. Mings DE-3443-14-0517-I-1
Janet L. Mould DE-3443-14-0497-I-1
Jerry E. Todd DE-3443-14-0494-I-1
Joan Mallen DE-3443-14-0496-I-1
Larry D. Duke DE-3443-14-0505-I-1
Lois J. Warwick DE-3443-14-0495-I-1
Michael S. Szucs DE-3443-14-0518-I-1
Richard A. Underwood DE-3443-14-0498-I-1
Shannon L. Johnson DE-531D-14-0516-I-1
18
APPENDIX C
DOT FAA4 Albuquerque, NM
DE-3443-14-0589-I-1
Jeffrey A. Ross DE-3443-14-0540-I-1
Roger A. Mandeville DE-3443-14-0539-I-1