Billy Wayne Stocks v. Department of Transportation

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BILLY WAYNE STOCKS, DOCKET NUMBER
Appellant, DC-3443-13-0149-B-1
v.
DEPARTMENT OF DATE: August 19, 2016
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Billy Wayne Stocks, Washington, North Carolina, pro se.
E. Linda Ubokudom and Russell B. Christensen, Washington, D.C., 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 appeal for lack of jurisdiction. 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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regulation or the erroneous 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. 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant, as an Air Traffic Control Specialist, AT-2152-FH, at Ceredo,
West Virginia, applied for two positions in Warrenton, Virginia: (1) Traffic
Management Specialist (TMS), AT-2152-LH; and (2) Notice to Airmen and
Weather Unit (NOTAM/Weather Specialist), AT-2152-HH. Initial Appeal File
(IAF), Tab 11. The appellant met the minimum qualifications for both positions.
On June 9, 2011, the Air Traffic Manager selected the appellant for the
NOTAM/Weather Specialist position, and selected 8 other applicants for the TMS
positions. Id. at 52, 54. In late August and early September 2011, he and four
other agency managers signed a request for a personnel action to transfer the
appellant into the NOTAM/Weather Specialist position. Id. at 50.
¶3 On October 12, 2011, a Human Resources Specialist issued the appellant a
memorandum with the subject line “Firm Offer Letter,” offering him one of the
TMS positions rather than the NOTAM/Weather Specialist position authorized by
the Air Traffic Manager. Id. at 47-48. The memorandum designated the effective
date as April 21, 2012, with a base pay of $87,925 and adjusted salary with
locality of $109,220. Id. at 47. In addition, the memorandum indicated:
3
In accordance with National Air Traffic Controllers Association
AFL-CIO and FAA agreement of 2009. Certified Professional
Controllers (CPC) are entitled to an increase when moving to a
higher level facility. In your case, you are receiving a 6% increase.
One-half of the increase to be paid upon initial transfer and the
remaining one-half when fully certified in the new facility. The firm
offer represents the initial salary increase.
Id. The appellant faxed his acceptance of the offer on the same day. IAF, Tab 3
at 7.
¶4 On May 14, 2012, the agency issued a Standard Form 50 (SF-50)
transferring the appellant into the NOTAM/Weather Specialist position with the
basic pay and adjusted salary consistent with those stated in the memorandum for
the TMS positions. IAF, Tab 11 at 45.
¶5 When the appellant began his new position in April 2012, he was assigned
to and performed duties in the NOTAM/Weather Specialist position. IAF, Tab 7
at 2, Tab 11 at 29-43. In September 2012, the appellant was certified for the
facility, and afterward, he asked the National Operations Manager about the other
half of his 6% salary increase. IAF, Tab 7 at 2. A few weeks later, the National
Operations Manager explained to the appellant that because of mistakes made by
Human Resources, he had been offered too high of a salary for his position. Id.On November 19, 2012, the agency provided the appellant with a revised “Firm
Job Offer” containing the information for the NOTAM/Weather Specialist
position. IAF, Tab 11 at 18‑19.
¶6 The appellant appealed the agency’s action. While the appeal was pending
below, the agency’s Human Resources Department issued two additional SF-50s,
retroactively appointing the appellant to the TMS position and increasing his
salary because he obtained certification in September. IAF, Tab 15 at 4-6. On
February 9, 2013, the Human Resources Department added four additional SF-50s
to the appellant’s Official Personnel File, IAF, Tab 16, that placed him back in
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the NOTAM/Weather Specialist position with the corrected salary. 2 Id. The
administrative judge issued an initial decision that dismissed the appeal for lack
of jurisdiction. IAF, Tab 18.
¶7 The appellant petitioned for review. Petition for Review File, Tab 1.
Because the administrative judge did not address the appellant’s argument—based
on the series of SF-50s that the agency issued after he filed his appeal—that the
agency promoted him to the TMS position but then cancelled the promotion and
appointed him to the NOTAM/Weather Specialist position retroactively, the
Board found that it may have jurisdiction over the appeal. Stocks v. Department
of Transportation, MSPB Docket No. DC-3443-13-0149-I-1, Final Order at 8
(Apr. 10, 2014). The Board remanded the appeal for further development of the
record. Id. at 9.
¶8 On remand, the administrative judge found that there was no evidence that
the Air Traffic Manager or any other authorized appointing official approved the
appellant’s placement in the TMS position, and she further found that the
appellant’s situation was the result of a series of mistakes made by the agency’s
Human Resources department. Remand File (RF), Tab 14, Remand Initial
Decision (RID) at 6-7. Thus, she found that the appellant was not appointed to
the TMS position and correcting a pay-setting error was not within the Board’s
jurisdiction. RID at 7.
¶9 In his petition for review, the appellant reasserts that he was subjected to a
reduction in pay. Remand Petition for Review File, Tab 1.
¶10 The Board has jurisdiction to review an appeal of a reduction in grade or
pay. 5 U.S.C. § 7512. “Grade” is defined as “a level of classification under a
position classification system.” 5 U.S.C. § 7511(a)(3). The Board has held that,
to establish jurisdiction in an appeal from the cancellation of a promotion as a
reduction in grade, the appellant must show that: (1) the promotion actually
2
This appears to be the date the agency corrected the appellant’s salary.
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occurred; that is, that it was approved by an authorized appointing official aware
that he or she was making the promotion; (2) the appellant took some action
denoting acceptance of the promotion; and (3) the promotion was not revoked
before it became effective. Levy v. Department of Labor, 118 M.S.P.R. 619, ¶ 10
(2012). Cancelling an effected promotion constitutes an appealable reduction in
grade. Marrero v. Department of Veterans Affairs, 100 M.S.P.R. 424, ¶ 7 (2005),
overruled on other grounds by Deida v. Department of the Navy, 110 M.S.P.R.
408, ¶ 16 (2009). When a promotion to a higher grade is not effected, however,
there is not an appealable reduction in grade or pay. Id.¶11 The Human Resources Specialist who issued the appellant’s “Firm Offer
Letter” dated October 12, 2011, declared under penalty of perjury that the
reference to the TMS position was incorrect and that the appellant had in fact
been selected for the NOTAM/Weather Specialist position. RF, Tab 13.
Moreover, there is no evidence that she had the authority to place the appellant in
the TMS position at a higher salary. RF, Tab 8 at 38. Likewise, the changes to
the appellant’s SF-50s in December 2012 placing him in the TMS position were
also errors by Human Resources and not authorized by his managers. Id. at 40.
The official who approved the SF-50s testified that she had “no role in the
assessment of candidates, or selections” for the TMS position. Id. The agency’s
own policy provides that the selecting official had the authority to fill the TMS
position, not Human Resources personnel. Id. at 36. We agree with the
administrative judge that there is no support for the conclusion that the appellant
was appointed to, or ever performed the duties of, the TMS position. Instead, the
appellant at all times performed the duties of the NOTAM/Weather Specialist
position. While the appellant sent the agency an “acceptance” of the TMS
position and has consistently argued that this formed an employment contract
with the agency, Federal employment is not governed simply by contract law.
Bartel v. Federal Aviation Administration, 14 M.S.P.R. 24, 35 (1982) (finding
that appointment, not contract law, is the central concept in Federal employment).
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¶12 Concerning the pay-setting error, it is well established that correcting an
administrative error relating to a pay adjustment is not within the Board’s
jurisdiction. McGarigle v. U.S. Postal Service, 40 M.S.P.R. 675, 677‑78 (1989),
aff’d, 904 F.2d 687 (Fed. Cir. 1990). Because the appellant was appointed to and
served in the position of NOTAM/Weather Specialist, he was entitled to a pay
increase of only 6%, not the higher rate of the TMS position. Consequently, the
Board lacks jurisdiction to review his reduction‑in‑pay claim.
¶13 In sum, the record reflects that the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on the issue of credibility. RID at 6-7; e.g., Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105–06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
Accordingly, we deny the petition for review. The initial decision remains the
final decision of the Board.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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
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
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that filings that do not comply with the deadline must be dismissed. 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 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 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.