Gershfeld v. Merit Systems Protection Board , 232 F. App'x 972 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3347
DAVID A. GERSHFELD,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
David A. Gershfeld, of Bethesda, Maryland, pro se.
Raymond W. Angelo, Attorney, Office of the General Counsel, United States
Merit Systems Protection Board, of Washington, DC, for respondent. With him on the
brief were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General
Counsel, and Thomas N. Auble, Acting Associate General Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3347
DAVID A.GERSHFELD,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: May 4, 2007
___________________________
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER,
Circuit Judge.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) dismissed, for lack of
jurisdiction, David A. Gershfeld’s request for corrections to his pay history.
Gershfeld Department of the Navy, No. DC-3443-06-0447-I-1 (MSPB May 26,
2006). Finding no reversible error, this court affirms.
I
Mr. Gershfeld was employed by the Naval Research Lab (NRL) until his
retirement on December 21, 1988. On March 30, 2005 Mr. Gershfeld filed an
appeal with the Board seeking corrections in his pay history and receipt of
payment consistent with those corrections. Specifically, Mr. Gershfeld argues he
was not promoted to GS-11 and GS-12 positions as quickly as he should have.
Further he contends the Department of the Navy (Agency) promoted him to avoid
paying him the special pay rate available to engineers at the time. Mr. Gershfeld
also asserts he was placed on forced leave without pay for 276 hours while at a
duty station in San Diego, California. These various actions, according to Mr.
Gershfeld, affected his “high three” salary for calculating his disability pension.
Before the Board, the Agency challenged the timeliness of the appeal and
the Board’s jurisdiction. Finding that it needed clarification on the promotion
issue, as well as information on Mr. Gershfeld‘s disability and its effect on his
diligence in filing, the Board issued a show cause order. Both the Agency and
Mr. Gershfeld filed responses to the order. In his response, however, Mr.
Gershfeld only addressed the timeliness issue. Based on Mr. Gershfeld’s failure
to provide jurisdictional evidence, i.e. evidence he was not paid at the correct
compensation level for the position he occupied, the Board held that it did not
have jurisdiction to hear Mr. Gershfeld’s appeal.
II
Whether the Board has jurisdiction to adjudicate a particular appeal is a
question of law, which this court reviews de novo. Herman v. Dep’t of Justice,
193 F.3d 1375, 1378 (Fed. Cir. 1999); Middleton v. Dep’t of Defense, 185 F.3d
1374, 1379 (Fed. Cir. 1999). Mr. Gershfeld has the burden of establishing
jurisdiction before the Board by a preponderance of the evidence. 5 C.F.R. §
1201.56(a)(2) (2006); Clark v. United States Postal Serv., 989 F.2d 1164, 1167
2006-3347 2
(Fed. Cir. 1993). However, the board’s appellate jurisdiction is limited to those
matters specifically conferred on it by statute or regulation. 5 U.S.C. § 7701(a).
Reassignment to other positions within an agency is not generally
appealable to the Board unless the reassignment involved a demotion with a
reduction in grade or pay. McDonald v. Veterans Affairs, 86 M.S.P.R. 539(2000). However, a constructive demotion occurs when: (1) an employee is
reassigned from a position which due to the issuance of a new classification
standard or correction of a classification error, is worth a higher grade; (2) the
employee meets the legal and qualification requirements for promotion to the
higher grade; and (3) the employee is permanently reassigned to a position
classified at a grade lower than the grade level to which the employee would
otherwise be promoted. Russell v. Dept. of the Navy, 6 M.S.P.R. 698, 711
(1981).
The record shows that Mr. Gershfeld was not merely reassigned, he was
promoted from an Ocean Engineer GS-09 to a Research Physicist GS-11 at a
higher salary. Because Mr. Gershfeld's reassignment did not involve a reduction
in either grade or pay, the Board did not have jurisdiction over Mr. Gershfeld's
claim for the special pay rate.
Regarding the improper leave without pay issue, the Board acknowledged
it would have jurisdiction if the appeal was timely. Under section 1201.22, an
appeal to the Board generally must be filed no later than 30 days after the
effective date, if any, of the action being appealed, or 30 days after the date of
receipt of the agency's decision. 5 C.F.R. § 1201.22(b)(1) (2007).
2006-3347 3
In reviewing Mr. Gershfeld’s appeal for timeliness, the Board noted the
events occurred during the years 1982-1986, approximately 20 years ago. In the
show cause order, Mr. Gershfeld was advised that to be eligible for a waiver of
the statute of limitations, he must establish good cause for his delay. Mr.
Gershfeld provided evidence that he had found completely disabled by OPM and
unable to work for 12 years due to his disability. The Board found, however, that
the evidence was insufficient to establish that his disability had rendered him
unable to prepare and file an appeal throughout the entire period of the delay.
Indeed, the Board noted that Mr. Gershfeld had filed several other earlier appeals
on unrelated matters. See e.g., Gershfled v. Office of Personnel Mgmt., DC-
0841-04-0612-I-1 (MSPB June 25, 2004).
In his appeal to the Board, Mr. Gershfeld argued no stature of limitations
applies to his case because OPM still considers him completely disabled and 28
USC § 2401(a) stands for the proposition that a civil action against the United
States may be commenced within 3 years after the disability ceases. As the
Board properly held, however, section 2401 applies to civil actions against the
government, not administrative appeals. Because section 2401 is not applicable
and Mr. Gershfeld has failed to show good cause for his delay, his appeal is not
timely.
In Mr. Gershfeld's claim for delayed promotions, Mr. Gershfeld states that
at the end of his first year he was tenured but not promoted to GS-11 and at the
end of his second year he was tenured but not promoted to GS-12. Mr.
Gershfeld's only supporting evidence of any delay in promotion is a notification of
2006-3347 4
personal action indicating his eligibility for a within grade increase was adjusted
to reflect 276 hours of leave without pay. The time required for advancement
between grades is governed by 5 CFR § 300.604.
Section 300.604 places a minimum requirement for time in grade. It does
not, however, mandate that an employee be promoted upon meeting this
minimum. Further, Mr. Gershfeld has not provided any evidence that the Agency
improperly delayed his promotions. Because promotions under section 300.604
are discretionary and Mr. Gershfeld did not show that the Agency improperly
followed its own rules, the Board lacks jurisdiction over Mr. Gershfeld's claim for
delayed promotion. For these reasons, this court affirms the Board’s decision.
2006-3347 5