Tsungu v. Merit Systems Protection Board , 513 F. App'x 942 ( 2013 )


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  •        NOTE: This disposition is nonprecedential.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.
    

Document Info

Docket Number: 2012-3155

Citation Numbers: 513 F. App'x 942

Judges: Per Curiam, Prost, Rader, Schall

Filed Date: 3/7/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023