Tsungu v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ILIR M. TSUNGU,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3155
______________________
Appeal from the Merit Systems Protection Board in
No. DC3443120310-I-1.
______________________
Decided: March 7, 2013
______________________
ILIR M. TSUNGU, of Centreville, Virginia, pro se.
KATHERINE M. SMITH, Attorney, Office of General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel and KEISHA DAWN BELL,
Deputy General Counsel.
______________________
2 ILIR TSUNGU v. MSPB
Before RADER, Chief Judge, SCHALL and PROST, Circuit
Judges.
PER CURIAM.
Ilir M. Tsungu seeks review of a decision of the Merit
Systems Protection Board (“Board”) dismissing his appeal
for lack of jurisdiction. We affirm.
BACKGROUND
Mr. Tsungu has been employed continuously since
2008 as a Supervisory Human Resources (“HR”) Specialist
within the Workforce Relations Labor Strategy & Negoti-
ations office at the Internal Revenue Service. As an
Associate Director in the agency’s Workforce Relations
Division, Mr. Tsungu served as a principal advisor to top
management and took a leadership role in the develop-
ment, implementation, administration, and evaluation of
the IRS’s strategic policies with respect to labor and
employee relations. He reported directly to the Director of
Workforce Relations. The position was classified as an
IR-0201-SM (Senior Management), which corresponds to
GS grade levels 14 and 15. The minimum pay for the SM
pay band is identical to GS-14, step 1; the maximum pay
is identical to GS-15, step 10. Mr. Tsungu earned
$129,517 in base pay and $25,983 in locality pay, for a
total salary of $155,500 before his reassignment.
Effective January 15, 2012, Mr. Tsungu was reas-
signed to the position of Human Resources Specialist
within the Labor Relations department. As a Senior
Program Advisor in the agency’s Workforce Relations
Division, Mr. Tsungu’s job is to provide key advice and
consultation to the Director of Workforce Relations and
other top agency executives regarding broad policy and
operational directives. Apparently, that position had been
expressly created for Mr. Tsungu to effectively utilize his
talents, and was classified as a GS-0201-15, step 10. In
that position, Mr. Tsungu earned $129,517 in base pay
ILIR TSUNGU v. MSPB 3
and $25,983 in locality pay, for a total salary of
$155,500—identical to his prior salary as a Supervisory
HR Specialist.
On February 13, 2012, Mr. Tsungu appealed his
reassignment to the Board, alleging that he had “been
effectively . . . removed” from his Supervisory HR Special-
ist position and “placed in a tenuous position that has
[Reduction in Force (“RIF”)] implications” without “due
notice of removal.” He alleged that had the agency fol-
lowed RIF procedures, he would not have been reas-
signed.
On February 16, 2012, the Board issued an Acknowl-
edgment Order asking that Mr. Tsungu file evidence and
argument to prove that the Board has jurisdiction over his
appeal, which challenged his “reassignment to another
position without a loss of grade or pay.”
Mr. Tsungu responded to the Acknowledgment Order
on March 1, 2012, asserting that his reassignment was (1)
a demotion because he was removed from a supervisory
position and placed in a non-supervisory; (2) accepted
involuntarily because the agency effectively forced him to
do so with threats and by providing misleading infor-
mation; and (3) an improper substitution for an illegal
RIF without following proper RIF procedures.
With respect to the involuntary demotion claim, Mr.
Tsungu further alleged that he initially refused the reas-
signment when it was proposed to him in November 2011,
whereupon his supervisor “threatened” him that she
would “hold him responsible for” managerial improve-
ments she wished to see in his relationships with his
staff, and “would scrutinize every action and complaint.”
Apparently, Mr. Tsungu would never have considered
reassignment until his then-manager “strongly suggested”
it to him. It was only after several rounds of discussion
and reconsideration that Mr. Tsungu reluctantly accepted
the reassignment in early December 2011.
4 ILIR TSUNGU v. MSPB
Further, Mr. Tsungu added that because the agency
reorganized the Workforce Relations Division in which
Mr. Tsungu worked to reduce the number of senior man-
agers sometime after his reassignment, and replaced him
with a junior senior manager at his prior position who
had no relevant experience, the agency was attempting
either to avoid an RIF or was conducting an improper
RIF.
The agency responded on March 12, 2012 with the
main argument that Mr. Tsungu’s appeal was not within
the Board’s jurisdiction because his reassignment did not
constitute a demotion since he suffered no reduction in
grade or pay. The agency further asserted that Mr.
Tsungu voluntarily accepted the reassignment. Finally,
the agency contended that it need not follow RIF proce-
dures when it reassigned Mr. Tsungu because it was not
required to under 5 C.F.R. § 10.102(b)(4)(ii) when no
demotion or employee displacement had taken place. The
agency submitted a declaration from Phyllis Brown, Mr.
Tsungu’s supervisor, attesting to the pertinent facts and
explaining the agency’s pay band schedules.
On March 21, 2012, the administrative judge issued
an Initial Decision dismissing Mr. Tsungu’s appeal for
lack of jurisdiction. The administrative judge found that
Mr. Tsungu did not make a non-frivolous allegation that
(1) he was demoted because he did not demonstrate that
he suffered a reduction in pay or grade; (2) his alleged
demotion was involuntary or obtained through duress,
coercion, or misrepresentation; and (3) the agency im-
properly reassigned him in lieu of a RIF under the appli-
cable regulation. The administrative judge therefore
dismissed Mr. Tsungu’s appeal without holding a jurisdic-
tional hearing. Her decision became the Final Decision of
the Board on April 25, 2012, after neither party petitioned
for review. Mr. Tsungu now appeals that decision. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
ILIR TSUNGU v. MSPB 5
DISCUSSION
The court shall hold unlawful and set aside any Board
action, findings, or conclusions 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). Whether the Board has jurisdiction is a ques-
tion of law we review de novo. See Herman v. Dep’t of
Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999). As the
petitioner, Mr. Tsungu bears the burden of establishing
the Board’s jurisdiction by a preponderance of the evi-
dence. 5 C.F.R. § 1201.56(a)(2)(i).
We conclude that the Board properly dismissed Mr.
Tsungu’s petition for review for lack of jurisdiction. Mr.
Tsungu did not make non-frivolous factual allegations
sufficient to support his claims and to vest the Board with
jurisdiction. The Board’s jurisdiction is limited by stat-
ute. 5 U.S.C. § 7701(a). It may only review certain enu-
merated adverse agency actions, such as a reduction in
pay or grade, a removal, a suspension for more than
fourteen days, and a furlough of thirty days or less. 5
U.S.C. § 7512(1)–(5).
As to Mr. Tsungu’s first claim, when an employee is
reassigned to a different position, “the Board ordinarily
possesses jurisdiction only if the agency’s action resulted
in a reduction in grade or pay.” Walker v. Dep’t of the
Navy, 106 F.3d 1582, 1584 (Fed. Cir. 1997). In this case,
the Board concluded that Mr. Tsungu’s reassignment
from the IR-0201-SM position to the GS-15 position did
not result in a reduction of either grade or pay. We agree.
The Board correctly found, after examining and com-
paring the representative rates of pay for the positions at
issue, that Mr. Tsungu did not suffer a reduction in grade
because the representative rate of the position to which he
was reassigned is not lower than that of his former posi-
6 ILIR TSUNGU v. MSPB
tion. See 5 C.F.R. §§ 351.203 and 536.103. The Board
was also correct to find that Mr. Tsungu did not suffer a
reduction in pay because his basic and locality pay at the
new position is identical to his basic and locality pay in
his prior position.
On appeal to the court, Mr. Tsungu contends that,
notwithstanding the identical grade and pay, he suffered
a reduction in rank and responsibility because the agency
reassigned him from a supervisory to a non-supervisory
position and because his future prospects may be affected.
However, “a reduction in responsibility without a concur-
rent reduction in grade or pay . . . is not appealable to the
Board.” Wilson v. Merit Sys. Prot. Bd., 807 F.2d 1577,
1580 (Fed. Cir. 1986). This is because the Civil Service
Reform Act of 1978 eliminated the old reduction in rank
standard with the present reduction in grade or pay test
in order to “increase the flexibility of agencies to assign
employees to positions and duties where they are needed.”
Id. Thus, the Board does not have jurisdiction over Mr.
Tsungu’s reduction in rank or responsibility claim without
him alleging that his grade or pay was reduced.
We also agree with the Board that Mr. Tsungu failed
to make non-frivolous allegations that jurisdiction exists
because his acceptance of reassignment was involuntary.
Mr. Tsungu did not proffer sufficient evidence to show
that his voluntary acceptance of the reassignment was
obtained through duress, coercion, or misrepresentation
by the agency. Staats v. U.S. Postal Serv., 99 F.3d 1120,
1124 (Fed. Cir. 1996). Coercive involuntariness does not
apply merely because an employee is “faced with an
unpleasant situation or that his choice is limited to two
unattractive options.” Id.Mr. Tsungu’s third claim that the agency improperly
demoted him in lieu of following RIF procedures was also
properly dismissed by the Board. Mr. Tsungu has not, as
a first step, presented any evidence that he suffered a
ILIR TSUNGU v. MSPB 7
demotion within the meaning of 5 C.F.R. § 210.102(b)(4).
As such, we reject Mr. Tsungu’s assertion that his reas-
signment should be treated as an improper RIF process.
Finally, Mr. Tsungu contends that the Board should
have held a hearing on the issues of whether a demotion
and an involuntary reassignment occurred. Although 5
U.S.C. § 7701(a) gives employees subject to adverse
personnel actions the right to a hearing on disputed
factual issues involving the merits, that right exists only
if the Board has jurisdiction. Wilson, 807 F.2d at 1582.
Further, there is “no statutory requirement that the
Board hold a hearing on the threshold issue of jurisdic-
tion.” Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210,
1215 (Fed. Cir. 2003). Because Mr. Tsungu did not make
non-frivolous factual allegations sufficient to overcome
the threshold jurisdictional requirement, he is not enti-
tled to a hearing.
The decision of the Board dismissing the petitioner’s
appeal for lack of jurisdiction is affirmed.
AFFIRMED
COSTS
Each party shall bear their own costs.