Steven Tod Baseden v. Department of the Navy ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN TOD BASEDEN, DOCKET NUMBERS
Appellant, DC-3443-15-0743-I-1
DC-0752-15-0372-I-1
v.
DEPARTMENT OF THE NAVY,
Agency.
DATE: March 7, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL *
Steven Tod Baseden, Juneau, Alaska, pro se.
Thomas A. Damisch, Jacksonville, Florida, 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 the appeals for lack of jurisdiction by applying the doctrine of
collateral estoppel. 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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application of the law to the facts of the case; the 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. 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, 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. Except as expressly MODIFIED by this Final Order to
dismiss MSPB Docket No. DC-3443-15-0743-I-1 for lack of jurisdiction without
applying the doctrine of collateral estoppel, we AFFIRM the initial decision.
BACKGROUND
¶2 The agency selected the appellant for a Civil Engineer position at the GS-12
grade level. Baseden v. Department of the Navy, MSPB Docket No. DC-3443-15-
0743-I-1, Initial Appeal File (0743 IAF), Tab 6 at 58-76. A rotation agreement,
which the appellant signed on December 11, 2013, indicated that he was
appointed at the GS-12, step 5 rate. Id. at 72. According to the agency, the
appellant attempted to negotiate a GS-12, step 5 rate of pay, but was appointed at
the GS-12, step 1 rate of pay. Id. at 19. The appellant’s appointment was in the
competitive service and was subject to a 1-year probationary period. Id. at 60.
¶3 The appellant filed an appeal, Baseden v. Department of the Navy, MSPB
Docket No. DC-3443-14-0468-I-1, alleging that he should have been reinstated to
his position rather than appointed and that the correct pay rate for the position
was GS-12, step 5. Id. at 125-35. The administrative judge issued an initial
decision, without holding a hearing, dismissing the appeal for lack of jurisdiction
because he found that the appellant could not establish that he was an employee
within the meaning of 5 U.S.C. § 7511(a)(1), and thus he lacked adverse action
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appeal rights pursuant to 5 U.S.C. chapter 75. Id. The initial decision included a
statement that the appellant had not made a nonfrivolous allegation that he
suffered a reduction in pay. Id. at 130. The appellant filed a petition for review,
and the Board issued a final decision on December 4, 2014, affirming the initial
decision but modifying it to find that, if the appellant had established he was an
employee within the meaning of 5 U.S.C. § 7511(a)(1), he would have made a
nonfrivolous allegation of jurisdiction. Baseden v. Department of the Navy,
MSPB Docket No. DC-3443-14-0468-I-1, Final Order (Dec. 4, 2014) (Final
Order); 0743 IAF, Tab 6 at 117-23. The appellant appealed the final decision to
the U.S. Court of Appeals for the Federal Circuit, which affirmed the Board’s
decision and declined to address the issue of whether the appellant would have
made a nonfrivolous allegation of jurisdiction if he met the statutory definition of
an employee. Baseden v. Merit Systems Protection Board, No. 2015-3069, 2015
WL 5946035 (Fed. Cir. Oct. 14, 2015).
¶4 On January 23, 2015, the appellant filed a second appeal with the Board,
alleging that the agency committed harmful procedural error when it selected and
appointed him to a GS-12, step 5 position but only paid him at the GS-12, step 1
rate. Baseden v. Department of the Navy, MSPB Docket No. DC-0752-15-0372-
I-1, Initial Appeal File (0372 IAF), Tab 1 at 3. On May 19, 2015, the appellant
filed a third appeal alleging that the agency failed to correct his pay rate in
accordance with the Board’s decision in his first appeal. 0743 IAF, Tab 1 at 5.
The administrative judge joined his second and third appeals and dismissed them,
without holding a hearing, for lack of jurisdiction by applying the doctrine of
collateral estoppel. 0372 IAF, Tabs 9-10; 0743 IAF, Tab 12, Initial Decision
(ID).
¶5 The appellant has filed a petition for review arguing that the doctrine of
collateral estoppel does not apply and that he is raising matters within the Board’s
jurisdiction. Petition for Review (PFR) File, Tab 1. The agency has filed a
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response in opposition to the petition for review. PFR File, Tab 4. The appellant
has filed a reply to the agency’s response. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s second appeal, MSPB Docket No. DC-0752-15-0372-I-1, was
properly dismissed for lack of jurisdiction under the doctrine of collateral
estoppel.
¶6 The Board applies collateral estoppel to determine whether a previous
adjudication of a jurisdictional issue precludes its relitigation. McNeil v.
Department of Defense, 100 M.S.P.R. 146, ¶¶ 15-20 (2005). Collateral estoppel,
or issue preclusion, is appropriate when: (1) the issue is identical to that involved
in the prior action; (2) the issue was actually litigated in the prior action; (3) the
determination on the issue in the prior action was necessary to the resulting
judgment; and (4) the party against whom the issue preclusion is sought had a full
and fair opportunity to litigate the issue in the prior action. Id., ¶ 15. Collateral
estoppel may bar a party from relitigating an issue in a second action even when
the prior appeal was dismissed for lack of jurisdiction. See Noble v. U.S. Postal
Service, 93 M.S.P.R. 693, ¶ 8 (2003). Collateral estoppel may be grounds for
dismissing an appeal for lack of jurisdiction where a prior finding of lack of
jurisdiction is afforded collateral estoppel effect. Id. at ¶¶ 10-11.
¶7 The appellant argues that collateral estoppel does not apply to his pending
appeals because the jurisdictional issues are not identical and the jurisdictional
“defect” in his first appeal has been cured because he now meets the statutory
definition of an “employee.” PFR File, Tab 1 at 6-10. Jurisdiction is established
by the status of the parties on the date the appealed action is effectuated. Pratt v.
Veterans Administration, 3 M.S.P.R. 288, 289 (1980). In his second appeal, the
appellant contests the agency’s initial setting of his pay. 0372 IAF, Tab 1 at 3.
Although he claims that the agency committed harmful error and acted unlawfully
in doing so, the action being appealed is the setting of his pay. Id.; PFR File,
Tab 1 at 6-7. The agency set the appellant’s rate of pay at the GS-12, step 1 rate
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on January 22, 2014, 0372 IAF, Tab 4 at 48, and his status on that date dictates
whether he has a right to bring a Board appeal regarding an alleged reduction in
pay pursuant to 5 U.S.C. §§ 7512(4), 7513(d), see Pratt, 3 M.S.P.R. at 289. As
the Board previously found in its December 4, 2014 final decision in his first
appeal, which the Federal Circuit has affirmed, the appellant did not meet the
relevant statutory definition of “employee” with Board appeal rights on that date.
Final Order, ¶ 11; 0743 IAF, Tab 6 at 44. Because this issue was actually
litigated in the prior appeal, the determination on this issue was necessary to the
judgment, and the appellant was fully able to represent his interests both before
the Board and the Federal Circuit, we find that the administrative judge properly
determined his second appeal was barred by the doctrine of collateral estoppel.
ID at 4-5.
¶8 The appellant argues that the Board should decline to apply collateral
estoppel in this instance because it would result in an injustice and compromise
public policy. PFR File, Tab 1 at 10-12. We find his arguments unavailing. The
appellant has had a full and fair opportunity to litigate the pertinent jurisdictional
issues. As the Board previously has recognized, it would be contrary to the
purpose of a probationary period and statutory restrictions on appeal rights to
allow employees to appeal actions taken during their probation merely because of
continuing effects after the probationary period ended. See Pratt, 3 M.S.P.R.
at 289.
The doctrine of collateral estoppel does not apply to the jurisdictional issues in
the appellant’s third appeal, MSPB Docket No. DC-3443-15-0743-I-1.
¶9 In his third appeal, the appellant alleges that he requested that the agency
correct his pay pursuant to the Board’s decision in his first appeal, and the agency
refused to take action. 0743 IAF, Tab 1 at 5. Below, the administrative judge
applied the doctrine of collateral estoppel and dismissed this appeal for lack of
jurisdiction. ID at 4-5. In determining whether an issue is identical, differences
precluding the application of the doctrine of collateral estoppel may be in facts,
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subject matter, periods of time, case law, statutes, procedural protections, notions
of public interest, or qualifications of tribunals. Tanner v. U.S. Postal Service,
94 M.S.P.R. 417, ¶ 11 (2003). Before the doctrine of collateral estoppel can be
invoked, the legal matter raised in the subsequent proceeding must involve the
same set of events or documents. Id. The action the appellant contests in his
third appeal is related to the action he raised in the first appeal, but it is not
identical. In his third appeal, the appellant is arguing that, after he completed his
probationary period and became an employee with adverse action appeal rights,
the agency refused to grant his request to correct his pay. 0743 IAF, Tab 1 at 5;
PFR File, Tab 1 at 5, 7. Therefore, we find that, because his appeal rights status
as of January 22, 2014, is not the dispositive jurisdictional issue as it was in his
prior appeals, the doctrine of collateral estoppel does not apply to the third
appeal, and we modify the initial decision accordingly.
The Board lacks jurisdiction over the appellant’s third appeal, MSPB Docket No.
DC-3443-15-0743-I-1, because the action being contested is not appealable to the
Board.
¶10 The appellant bears the burden of establishing jurisdiction over his appeal
and may make a prima facie showing of jurisdiction by establishing that his rate
of basic pay was reduced. Vega v. U.S. Postal Service, 108 M.S.P.R. 221,
¶ 11 (2008). The appellant misinterprets the Board’s December 4, 2014 decision
when he concludes that the Board found his pay rate should be GS-12, step 5, and
argues that an appealable reduction in grade occurred when the agency failed to
raise his rate of basic pay after that decision was issued. PFR File, Tab 1 at 4.
The Board dismissed the appellant’s first appeal because he was not an employee
with Board appeal rights, and it did not make any findings of fact regarding the
merits of his reduction-in-pay claim. Final Order, ¶¶ 10-11; 0743 IAF, Tab 6
at 122-23. In so doing, the Board determined that the appellant made a
nonfrivolous allegation that he suffered a loss in pay. The fact remains, however,
that the appellant was not a statutory “employee” when this alleged adverse
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action occurred, and the Board dismissed the appellant’s first appeal on that
basis. Id.¶11 The right to appeal a reduction in pay has been narrowly construed and
requires a demonstrable loss, such as an actual reduction in pay, to establish
jurisdiction. See Chaney v. Veterans Administration, 906 F.2d 697, 698 (Fed.
Cir. 1990) (explaining that an appealable reduction in pay occurs only when there
is an ascertainable lowering of the employee’s pay at the time of the action). The
appellant does not allege that his pay was lowered. Rather, he alleges that the
agency failed to raise his pay. 0743 IAF, Tab 1 at 3, 5. An allegation that an
agency failed to raise an employee’s pay is not an appealable reduction in pay.
See Gaydar v. Department of the Navy, 121 M.S.P.R. 357, ¶ 7 (2014). The
appellant attempts to use our previous decision to create an appealable action by
stating that the agency had an obligation to change his rate of pay. 0743 IAF,
Tab 9 at 7-9. However, if the agency was required to take corrective action based
on the previous decision, the Board would have ordered the agency to take that
action. See 5 C.F.R. § 1201.181(a). The Board did not do so, and we dismiss the
appellant’s third appeal, MSPB Docket No. DC-3443-15-0743-I-1, for lack of
jurisdiction because the agency’s refusal to raise his pay is not an appealable
action.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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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
title 5 of the U.S. 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 U.S. 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 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.