Baseden v. MSPB , 629 F. App'x 962 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEVEN TOD BASEDEN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF THE NAVY,
Intervenor
______________________
2015-3069
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-14-0468-I-1.
______________________
Decided: October 14, 2015
______________________
STEVEN TOD BASEDEN, FPO, AE, pro se.
CALVIN M. MORROW, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
DANIEL KENNETH GREENE, Commercial Litigation
Branch, Civil Division, United States Department of
2 BASEDEN v. MSPB
Justice, Washington, DC, for intervenor. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
REGINALD T. BLADES, JR.
______________________
Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
PER CURIAM.
Appellant Steven Tod Baseden (“Mr. Baseden”) ap-
peals the December 4, 2014 decision of the Merit Systems
Protection Board (“MSPB” or “the Board”) dismissing Mr.
Baseden’s appeal for lack of jurisdiction. Baseden v. Dep’t
of Navy, No. DC-3443-14-0468-I-1, 2014 WL 6879130
(M.S.P.B. Dec. 4, 2014) (“Final Decision”). For the below
reasons, we affirm.
BACKGROUND
On October 18, 2013, the Navy issued a job an-
nouncement in order to recruit a GS (General Schedule)-
12 civil engineer to be stationed at Naval Station Guan-
tanamo Bay, Cuba. On November 25, 2013, after consid-
ering a list of eligible candidates, Mr. Baseden received an
email from Navy personnel tentatively offering him the
position. Mr. Baseden was previously employed by the
Department of Indian Affairs (DIA) until he resigned in
2004. At the time of his resignation, he was compensated
at the GS-12, Step 5 level.
The position the Navy tentatively offered Mr. Based-
en, however, was for an appointment at GS-12, Step 1.
Mr. Baseden accepted the offer, but requested he be
reinstated at his previous paygrade, GS-12, Step 5. He
did not make his acceptance conditional on this request,
however. On January 22, 2014, the agency sent Mr.
Baseden an SF (Standard Form)-50, indicating that it had
appointed him to the position of Civil Engineer at the GS-
12, Step 1 level.
BASEDEN v. MSPB 3
Mr. Baseden filed an appeal with the MSPB on Feb-
ruary 21, 2014, alleging that the agency demoted him
from a GS-12, Step 5 position to a GS-12, Step 1 position
in February 2014. Baseden v. Navy, No. DC-3443-14-
0468-I-1, 2014 WL 1516346 (Apr. 17, 2014). Because the
Board believed it lacked jurisdiction, it issued a show
cause order on February 27, 2014. Mr. Baseden respond-
ed that same day, alleging that he was “classified as a GS-
0810-12-5 employee in Dec 2013, went on the payroll in
Jan 2014 at the agreed to GS-0810-12-5 and then was
notified in February 2014 that he was being demoted from
step 5 to step 1.” Id. In support of his claim, Mr. Baseden
submitted a rotation agreement, with his signature, dated
December 11, 2013, classifying Mr. Baseden as an “em-
ployee” and selecting him for a GS-12, Step 5 Civil Engi-
neer position. Final Decision, 2014 WL 6879130 at ¶ 3.
For its part, the agency responded to the show cause
order by alleging the Board lacked jurisdiction over the
appeal because Mr. Baseden did not meet the definition of
an “employee” under 5 U.S.C. § 7511(a), and because
there was no appealable action as Mr. Baseden never
suffered a reduction in pay. The agency adduced evi-
dence, in the form of an SF-50, that it had appointed him
to the position of Civil Engineer at the GS-12, Step 1 level
effective January 22, 2014, contradicting Mr. Baseden’s
allegation that he had been appointed at the GS-12, Step
5 level.
The Administrative Judge (“AJ”) issued an initial de-
cision dismissing the appeal for lack of jurisdiction. The
AJ found that Mr. Baseden could not establish that he
was an employee within the meaning of 5 U.S.C.
§ 7511(a). The AJ further found that, even if Mr. Baseden
could qualify as an employee, he failed to make a nonfriv-
olous allegation that he suffered a reduction in pay.
Mr. Baseden filed a petition for review of the initial
decision. The Board denied that petition and affirmed its
4 BASEDEN v. MSPB
initial decision that it lacked jurisdiction over Mr. Based-
en’s reduction in pay claim because Mr. Baseden was not
an employee within the meaning of 5 U.S.C. § 7511. The
Board went on to note, however, that, had Mr. Baseden
established jurisdiction, his reliance on the rotation
agreement would constitute a nonfrivolous allegation that
he suffered a loss in pay.
DISCUSSION
A. Standard of Review
Whether the Board has jurisdiction to hear an appeal
is a question of law reviewed de novo. Diefenderfer v.
Merit Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed. Cir. 1999).
The Board’s jurisdiction is limited to those actions specifi-
cally granted by law, rule, or regulation. 5 U.S.C.
§ 7701(a) (2000); Meeker v. Merit Sys. Prot. Bd., 319 F.3d
1368, 1374 (Fed. Cir. 2003). The petitioner bears the
burden to establish jurisdiction. See, e.g., McCormick v.
Dep’t of the Air Force, 307 F.3d 1339, 1340 (Fed. Cir.
2002). To satisfy this burden, a petition must put forward
a nonfrivolous allegation of Board jurisdiction. Nonfrivo-
lous allegations are allegations of fact that, if proven,
could demonstrate the Board’s jurisdiction over the mat-
ter at hand. Walker v. Department of the Army, 119
M.S.P.R. 391, ¶ 6 n.2 (2013).
We review MSPB decisions under the standards es-
tablished by 5 U.S.C. § 7703. U.S. Postal Serv. v. Gregory,
534 U.S. 1, 6–7, 122 S. Ct. 431, 151 L. Ed. 2d 323 (2001).
We set aside MSPB’s actions, findings, or conclusions if
they are:
(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 . . . .
BASEDEN v. MSPB 5
5 U.S.C. § 7703(c). Arbitrary and capricious review is
“extremely narrow.” Gregory, 534 U.S. at 6–7. Under this
standard, the MSPB receives “wide latitude” and “[i]t is
not for the Federal Circuit to substitute its own judgment
for that of the Board.” Id. at 7.
B. Analysis
“The jurisdiction of the MSPB is not plenary but is
limited to those actions which are made appealable to it
by law, rule, or regulation.” Maddox v. Merit Sys. Prot.
Bd., 759 F.2d 9, 10 (Fed. Cir. 1985); see also Goines v.
Merit Sys. Prot. Bd., 258 F.3d 1289, 1294 (Fed. Cir. 2001);
Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368, 1374 (Fed.
Cir. 2003).
5 U.S.C. § 7513 states that “[a]n employee against
whom an action is taken under this section is entitled to
appeal to the Merit Systems Protection Board . . . .” Mr.
Baseden argues that the Board has jurisdiction over his
alleged reduction in pay. Mr. Baseden does not, however
qualify as an employee under the statutory guideline.
In the competitive service, an employee is an individ-
ual either: (1) who is not serving a probationary or trial
period under an initial appointment, or (2) who has
completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or
less. 5 U.S.C. § 7511(a)(1)(A).
If an individual has not served a full year under his
appointment—which Mr. Baseden had not as of the time
his appeal was dismissed—he can nevertheless demon-
strate that he is no longer a probationer by tacking on
prior service if: (1) the prior service was rendered imme-
diately preceding the probationary appointment; (2) it
was performed in the same agency; (3) it was performed
in the same line of work; and (4) it was completed with no
more than one break in service of less than 30 days.
6 BASEDEN v. MSPB
Henderson v. Dep’t of Treasury, 114 M.S.P.R. 149, ¶ 10
(2010).
The Board found that on the date of the alleged reduc-
tion in pay—February 3, 2014—Mr. Baseden was a proba-
tionary employee in the competitive service. “[T]he
appellant was appointed to a career conditional position
in the competitive service, effective January 22, 2014,
that was subject to the completion of a 1-year probation-
ary period, which commenced that day.” Final Decision,
2014 WL 6879130 at ¶ 7. Before being appointed, there
was a 10-year break in Mr. Baseden’s service between
2004 and 2014. Mr. Baseden is, therefore, a probationer
and not an employee.
In response, Mr. Baseden argues that his appoint-
ment was unlawful. Because he was never properly
appointed, he remains an applicant and not an employee.
Applicants, however, are not entitled to appeal reduction
in pay claims to the Board. 5 U.S.C. § 7513 states that
“[a]n employee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Protec-
tion Board . . . .” (emphasis added).
In a final effort to establish jurisdiction, Mr. Baseden
argues that he was reinstated rather than appointed. See
5 U.S.C. § 7511(a)(1)(A)(i) (an employee is one who “is not
serving a probationary or trial period under an initial
appointment”). In support of this, Mr. Baseden points to
the rotation agreement, which notes in handwriting at the
bottom: “N/A — Reinstatement to Fed govt.” Interpret-
ing this in the light most favorable to the petitioner,
however, Mr. Baseden still fails to establish jurisdiction.
A conclusory statement from petitioner that a handwrit-
ten statement on a rotation agreement is sufficient to
affect reinstatement is insufficient. A rotation agreement
provides a Department of Defense (DOD) employee who is
rotating to a foreign duty station with notice of his or her
return rights to the position that the employee held just
BASEDEN v. MSPB 7
prior to rotating as well as notice of any restrictions on his
or her overseas employment. 10 U.S.C. § 1586. Mr.
Baseden’s rotation agreement was issued to indicate that
he did not have return rights. The Board found no basis
to conclude that, because reinstatement was mentioned in
the rotation agreement, Mr. Baseden was reinstated
rather than appointed. Final Decision, 2014 WL 6879130
at ¶ 9. Rather, the Board concluded that the evidence
showed that Mr. Baseden “was appointed from a list of
eligible and not reinstated.” Id. Such a decision was
within the agency’s discretion in determining how to fill
vacancies in the competitive service.
“An agency may fill a vacancy in the competitive ser-
vice by any method authorized in this chapter, including
competitive appointment from a list of eligibles, noncom-
petitive appointment under special authority, reinstate-
ment, transfer, reassignment, change to lower grade, or
promotion.” 5 C.F.R. § 330.102 (emphasis added). In this
case, the agency produced documentary evidence that Mr.
Baseden was selected from a list of eligibles, including the
SF-50 from January 22, 2014. Mr. Baseden incorrectly
contends that an ambiguous, handwritten notation on a
rotation agreement constitutes sufficient evidence to
create a prima facie case of jurisdiction. We disagree.
On this record, because Mr. Baseden did not put for-
ward a nonfrivolous allegation of Board jurisdiction, the
Board’s decision dismissing his case for lack of jurisdiction
is correct. We agree with the Board that Mr. Baseden is
not an employee within the meaning of 5 U.S.C. § 7511
and affirm its final decision dismissing the matter. 1
1 The Department of the Navy, as intervenor, asks
us to correct an alleged error committed by the Board.
Namely, the Board’s conclusion that, if Mr. Baseden was
found to be an employee in the relevant sense, the Board
8 BASEDEN v. MSPB
CONCLUSION
For the foregoing reasons, and because we find Mr.
Baseden’s remaining arguments are without merit, we
affirm the judgment of the Merit Systems Protection
Board.
AFFIRMED
would have jurisdiction because the rotation agreement
could form the basis of a nonfrivolous allegation that Mr.
Baseden has “suffered a demonstrable loss in pay.” We
decline to do so in light of our determination that the
Board lacks jurisdiction over Mr. Baseden’s claims.