Wadhwa v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3176, -3177
DOM WADHWA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Dom Wadhwa, of Moorestown, New Jersey, pro se.
Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Calvin M. Morrow, Acting Assistant General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3176, -3177
DOM WADHWA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in
PH0752070313-I-1 and PH3443070638-I-1.
_________________________
DECIDED: October 7, 2008
_________________________
Before RADER, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Dom Wadhwa (“Dr. Wadhwa”) petitions for review of two final decisions of the
Merit Systems Protection Board (“Board”). Each of the decisions dismissed for lack of
jurisdiction an appeal by Dr. Wadhwa to the Board. Wadhwa v. Dep’t of Veterans
Affairs, No. PH-0752-07-0313-I-1 (M.S.P.B. Jan. 29, 2008) (“Final Decision I”); Wadhwa
v. Dep’t of Veterans Affairs, No. PH-3443-07-0638-I-1 (M.S.P.B. Jan. 29, 2008) (“Final
Decision II”). The two petitions have been consolidated into a single appeal. We
affirm.
DISCUSSION
I.
Dr. Wadhwa is employed as a physician with the Department of Veterans Affairs
(“DVA”). This case arises out of his transfer on October 15, 2006, from his physician
position at the Philadelphia VA Medical Center (“PVAMC”) to a physician position at the
Northern Indiana Healthcare System (“NIHCS”). Dr. Wadhwa was reassigned back to
PVAMC on January 21, 2007.
Following his reassignment from NIHCS, Dr. Wadwha filed two appeals with the
Board. In his first appeal, he claimed that his reassignment resulted in a reduction in his
pay or grade. In his second appeal, he claimed that his reassignment constituted a
removal. On July 24, 2007, the administrative judge (“AJ”) assigned to the appeals
issued an initial decision dismissing the reduction-in-pay claim for lack of jurisdiction.
Wadhwa v. Dep’t of Veterans Affairs, No. PH-0752-07-0313-I-1 (July 24, 2007) (“Initial
Decision I”). Subsequently, on October 31, 2007, the AJ issued an initial decision
dismissing the removal claim, also for lack of jurisdiction. Wadhwa v. Dep’t of Veterans
Affairs, No. PH-3443-07-0638-I-1 (Oct. 31, 2007) (“Initial Decision II”).
Initial Decision I and Initial Decision II became final decisions of the Board on
January 29, 2008, when the Board denied Dr. Wadhwa’s petitions for review in Final
Decision I and Final Decision II, respectively, for failure to meet the criteria for review
set forth at 5 C.F.R. § 1201.115(d) (2008).
2008-3176, -3177 2
II.
We have jurisdiction over Dr. Wadhwa’s appeal pursuant to 28 U.S.C.
§ 1295(a)(9) (2006). Pursuant to 5 U.S.C. § 7703(c) (2006), we must affirm a decision
of the Board unless we find it to be “(1) arbitrary, capricious, and abuse of discretion, or
otherwise not in accordance with law; (2) obtained without procedures required without
procedures required by law, rule, or regulation having been followed; or (3) unsupported
by substantial evidence.” See also Kewley v. Dep’t of Health & Human Servs., 153 F.3d
1357, 1361. (Fed. Cir. 1998).
Dr. Wadha was appointed to his position as a DVA physician under 38 U.S.C.
§ 7401(1) (2006). For that reason, he is generally not an employee for purposes of
filing an appeal to the Board. See 5 U.S.C. § 7511(b)(10) (2006); Bonner v. Dep’t of
Veterans Affairs Pittsburgh Healthcare Sys., 477 F.3d 1343, 1348 (Fed. Cir. 2007)
(“[E]mployees hired under 38 U.S.C. § 7401(1) . . . have never had the right to appeal
§ 7512-type adverse actions to the MSPB . . . .”). However, employees such as Dr.
Wadhwa may appeal to the Board under limited circumstances. In James v. Von
Zemenszky, 284 F.3d 1310, 1314-15 (Fed. Cir. 2002), this court held that reduction-in-
force (“RIF”) regulations apply to DVA health care professionals who are separated by a
staff adjustment. In addition, we stated that “[DVA] health-care professionals enjoy the
protections of title 5 RIF procedures along with the right to appeal a RIF separation to
the Board.” Id. at 1321. RIF appeals to the Board, though, are limited by 5 C.F.R.
§ 351.901 to appeals by “employees who are furloughed for more than 30 days,
separated, or demoted by the RIF action.” Wolf v. Dep’t of Veterans Affairs, 317 F.3d
1395, 1396 (Fed. Cir. 2003). On appeal, Dr. Wadhwa contends that the Board had
2008-3176, -3177 3
jurisdiction over his appeals because he was demoted by a RIF action and because,
through his reassignment, he suffered loss of pay or grade.
An employee’s official position under RIF regulations is defined by grade as
documented on the employee’s most recent Notification of Personnel Action (Standard
Form 50 or “SF-50”). In this case, the SF-50 submitted by both parties fails to reflect a
loss of pay or grade. The SF-50 indicates that Dr. Wadhwa was transferred from one
full-time physician position to another full-time physician position with the same grade.
The SF-50 also indicates that Dr. Wadhwa’s basic rate of pay at his NIHCS position and
at the PVAMC position to which he was reassigned were the same.
Dr. Wadhwa argues, however, that he suffered a loss of grade because the DVA
“separated” him from his clinical physician duties and reassigned him to non-clinical
physician duties. The contention is without merit. Alteration of duties does not
constitute a separation or loss of grade under RIF regulations. See Aliota v. Dep’t of
Veterans Affairs, 60 M.S.P.R. 491, 495 (1994) (“As a general rule, the Board does not
have appellate jurisdiction over reassignments that do not constitute a reduction in
grade or pay, even though reassignment reduces the employee’s status, duties, or
responsibilities.”). Also without merit is Dr. Wadhwa’s contention that he suffered a loss
of pay in the form of a $5,000 performance award and $2,257 in locality pay. Loss of
pay is calculated on the basis of an employee’s rate of basic pay, excluding additional
pay of any kind such as locality payments or special rate supplements. See 5 C.F.R.
§ 531.203 (2008).
Because Dr. Wadhwa did not suffer a loss of either grade or pay, he was not
demoted under RIF regulations. Accordingly, the Board did err in dismissing his
2008-3176, -3177 4
appeals for lack of jurisdiction. See Talley v. Dep’t of the Army, 50 M.S.P.R. 261, 263
(1991).
For the foregoing reasons, the two final decisions of the Board which are on
appeal in this case are affirmed.
2008-3176, -3177 5