William Owens, Jr v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM OWENS, JR., DOCKET NUMBER
Appellant, DC-3443-16-0461-I-1
v.
DEPARTMENT OF THE NAVY, DATE: September 22, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
William Owens, Jr., Dudley, North Carolina, pro se.
Aisha Z. Mahmood, Cherry Point, North Carolina, 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 his 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
regulation or the erroneous application of the law to the facts of the case; the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant filed an appeal alleging that the agency engaged in a
prohibited personnel practice when it failed to issue a Request for Personnel
Action (RPA) authorizing him to receive increased compensation for performing
a higher-level position on a temporary basis. The appellant asserted that this was
a violation of 5 U.S.C. § 2302(b)(12). Initial Appeal File (IAF), Tab 1. Because
it appeared that the Board lacked jurisdiction over this appeal, the administrative
judge ordered the appellant to submit evidence and argument to show why the
appeal should not be dismissed. IAF, Tab 2. The appellant did not respond. The
agency subsequently filed a motion to dismiss for lack of jurisdiction. IAF,
Tab 5.
¶3 The administrative judge dismissed the appeal for lack of jurisdiction. IAF,
Tab 6, Initial Decision (ID) at 1. The administrative judge found no evidence
showing that the appellant was formally appointed to a higher-graded position
with increased compensation and, thus, the administrative judge found that the
appellant failed to establish that he was subjected to any reduction in grade or
pay. ID at 2. The administrative judge found further that, absent an otherwise
appealable action, the Board lacks jurisdiction over an employee’s allegation of a
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prohibited personnel practice under 5 U.S.C. § 2302(b). Similarly, regarding the
appellant’s allegation that a female employee subsequently performed the same
position on a temporary basis and that the agency issued an RPA to authorize
increased compensation for her, the administrative judge found that the Board has
no jurisdiction over allegations of discrimination absent an otherwise appealable
action. ID at 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Here, the applicable law and
the record evidence support the administrative judge’s findings that the appellant
was not formally appointed to the higher-graded position and he only is entitled
to the pay and benefits of the position to which he is officially appointed, and that
he has not shown that he suffered a reduction in grade or pay while on detail to
the temporary position. Rojas v. U.S. Postal Service, 70 M.S.P.R. 400, 405
(1996) (finding that an employee is only entitled to the rights and benefits of the
position to which he is officially appointed; by its nature, a detail is temporary
and involves no formal appointment), overruled on other grounds by Fernandez
v. Department of Justice, 105 M.S.P.R. 443, ¶ 5 n.1 (2007).
¶5 Furthermore, allegations of prohibited personnel practices do not otherwise
provide an independent basis for Board jurisdiction. Pridgen v. Office of
Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012). Thus, absent an
otherwise appealable action, the Board does not have jurisdiction to review the
appellant’s claims of prohibited personnel practices or discrimination. Saunders
v. Merit Systems Protection Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985); Wren v.
Department of the Army, 2 M.S.P.R. 1, 2 (1980) (explaining that prohibited
personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
Board jurisdiction), aff’d, 681 F.2d 867, 871‑73 (D.C. Cir. 1982).
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¶6 The appellant alleges on review that he has new documentation
substantiating his claim that the agency violated 5 U.S.C. § 2302(b)(12), and he
has included numerous documents with his petition for review. Petition for
Review File, Tab 1. However, the appellant has provided no argument
challenging the administrative judge’s jurisdictional findings in the initial
decision. Nor has he provided any explanation of the documents included with
his submission. Id. Rather, the appellant merely asserts that he has submitted
additional evidence that was not available when he first filed his appeal, and that
he had no access to his Government account until he returned from travel on
April 28, 2016. Id. The documents submitted on review include numerous emails
and documentation dated January 2016 or before, which appear to reflect that the
appellant was detailed to the higher-graded position and that the agency may have
attempted, or was attempting, to compensate him with an award for periods when
he was detailed to the higher-graded position. Id.
¶7 Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). To constitute new
and material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554,
564 (1989). Further, the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).
¶8 Here, the appellant filed his appeal on March 31, 2016, and the
administrative judge issued a show cause order on April 4, 2016, to which the
appellant did not respond. Although the appellant now asserts on review that the
documents he attached to his petition were not available when he filed his appeal,
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the documents are not new as they are dated prior to the filing of his appeal and
his travel, and he has not shown that they were unavailable despite his due
diligence. Moreover, the documents submitted by the appellant are not material
as they do not challenge any of the administrative judge’s findings on the
jurisdictional issues. Rather, all of the documents submitted on review address
the merits of his appeal. Thus, we have not considered them. Accordingly, we
find that the administrative judge correctly dismissed this appeal for lack of
jurisdiction.
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
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
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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.