Michael C. Phillips v. Merit Systems Protection Board

Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3401
MICHAEL C. PHILLIPS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD
Respondent.
Michael C. Phillips, of Atmore, Alabama, pro se.
Sara B. Rearden, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel,
and Raymond W. Angelo, Acting Associate General Counsel. Of counsel was
Thomas N. Auble.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3401
MICHAEL C. PHILLIPS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: April 6, 2007
___________________________
Before MICHEL, Chief Judge, DYK, Circuit Judge, and GARBIS, Senior District Judge * .
PER CURIAM.
Michael C. Phillips (“Phillips”) appeals from the decision of the Merit Systems
Protection Board (“Board”) in AT0752060274-I-1 dismissing for lack of jurisdiction his
appeal challenging the reduction in the number of hours he was assigned to work. We
affirm.
BACKGROUND
Phillips worked as a Part-Time Custodial Laborer at the Atmore, Alabama post
office. He was apparently assigned to work 16 hours per week, but on December 6,
2005, his hours were cut to an unspecified amount. His rate of pay and grade were not
reduced. On January 17, 2006, Phillips sent a letter to the Board’s Atlanta office
*
Honorable Marvin Garbis, Senior District Judge, United States District
Court for the District of Maryland, sitting by designation.
requesting assistance, which the Board construed as an appeal from the reduction in
his hours of work. On February 15, 2006, the United States Postal Service (“Agency”)
moved to dismiss his appeal for lack of jurisdiction. In an April 6, 2006, initial decision,
the Administrative Judge dismissed Phillips’s appeal for lack of jurisdiction, and the full
Board denied Phillips’s petition for review on July 13, 2006. A timely appeal to this court
followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board’s decision must be affirmed unless it is found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation; or unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2006); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480,
1483 (Fed. Cir. 1998).
The Board “has jurisdiction of only those actions made appealable by statute or
regulation.” Van Werry v. Merit Sys. Prot. Bd., 995 F.2d 1048, 1050 (Fed. Cir. 1993).
Phillips challenges the reduction in the number of hours he was assigned to work.
Unlike reductions in grade and reductions in pay, reductions in the number of hours
worked are not adverse actions under 5 U.S.C. § 7512, nor does any other provision of
law make them appealable actions. See Wood v. Merit Sys. Prot. Bd., 938 F.2d 1280,
1282 (Fed. Cir. 1991) (affirming dismissal for lack of jurisdiction where employee
challenged Postal Service’s reduction in the number of hours she worked, without
affecting the amount she was paid per hour, thereby reducing her annual salary).
Although Phillips alleges that his “paycheck was reduced by approximately 35% per pay
period,” pay is defined in the statute as “the rate of basic pay fixed by law or
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administrative action for the position held by an employee,” 5 U.S.C. § 7511(a)(4), and it
is undisputed that Phillips’s basic rate of pay (i.e., the amount of money he makes per
hour worked) and grade have not changed. Thus, the reduction in the amount of money
in his paycheck is solely the result of the reduction in the number of hours he has been
assigned to work and is not appealable. See Wood, 938 F.2d at 1282. We affirm the
Board’s dismissal of the appeal for lack of jurisdiction.
No costs.
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