Fong v. Merit Systems Protection Board , 351 F. App'x 438 ( 2009 )


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  •                      NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2009-3165
    EDWIN FONG,
    Petitioner,
    v.
    MERIT SYSTEMS PROTECTION BOARD,
    Respondent.
    Edwin Fong, of Oakland, California, pro se.
    Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems
    Protection Board, of Washington, DC, for respondent. With her on the brief were B.
    Chad Bungard, General Counsel, Keisha Dawn Bell, Deputy General Counsel, and
    Sara B. Rearden, Reviewing Attorney.
    Appealed from: Merit Systems Protection Board
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2009-3165
    EDWIN FONG,
    Petitioner,
    v.
    MERIT SYSTEMS PROTECTION BOARD,
    Respondent.
    Petition for review of the Merit Systems Protection Board in SF0752080497-I-1.
    ___________________________
    DECIDED: November 9, 2009
    ___________________________
    Before RADER and MOORE, Circuit Judges, and WILKEN, District Judge. *
    PER CURIAM.
    Edwin Fong appeals from a final decision of the Merit Systems Protection Board
    (Board) dismissing his petition for lack of jurisdiction. See Fong v. U.S. Postal Serv.,
    No. SF-0752-08-0497-I-1 (M.S.P.B. Sept. 15, 2008) (initial decision); Fong v. U.S.
    Postal Serv., No. SF-0752-08-0497-I-1 (M.S.P.B. Mar. 11, 2009) (final order denying
    petition for review). For the reasons discussed below, we affirm.
    Mr. Fong worked as a Vehicle Maintenance Program Analyst at a saved grade
    EAS-25 level for the U.S. Postal Service (USPS) in Oakland, California. In January
    2008, USPS notified Mr. Fong that the domicile duty location of his position would be
    changed to San Diego, California. Mr. Fong declined reassignment to San Diego in
    *
    Honorable Claudia Wilken, District Judge, United States District Court for
    the Northern District of California, sitting by designation.
    January 2008 and, in June 2008, was placed in an Operations Support Specialist
    position. Despite this new position being listed at the EAS-17 level in an “Employee
    Master Record,” Mr. Fong continued to be employed at the EAS-25 level with indefinite
    saved grade and at the same annual rate of pay.
    Mr. Fong filed a petition with the Board on June 2, 2008. Mr. Fong alleged that
    USPS had improperly directed reassignment to San Diego and had threatened
    separation after he declined the reassignment. He also argued that USPS failed to
    follow reduction-in-force (RIF) regulations and that his acceptance of the Operations
    Support Specialist position was an involuntary reduction-in-grade.
    In an initial decision, the administrative judge (AJ) dismissed Mr. Fong’s petition
    for lack of jurisdiction after concluding that Mr. Fong failed to make a non-frivolous
    allegation that, if proven, would show that an appealable action has taken place.
    Specifically, the AJ concluded that USPS was not required to follow RIF regulations
    because there was no evidence that Mr. Fong’s position was abolished. USPS offered
    to retain Mr. Fong at the same Vehicle Maintenance Program Analyst position in San
    Diego, California.   The AJ also determined that Mr. Fong’s reassignment to the
    Operations Support Specialist position was not a reduction-in-grade because, although
    this position was classified at the EAS-17 level, Mr. Fong continued employment at a
    saved grade EAS-25 level. The AJ’s initial decision became final after the Board denied
    Mr. Fong’s petition for review. See Fong v. U.S. Postal Serv., No. SF-0752-08-0497-I-1
    (M.S.P.B. Mar. 11, 2009).
    Mr. Fong appeals from the Board’s final decision, and we have jurisdiction under
    
    28 U.S.C. § 1295
    (a)(9). We must affirm the Board’s decision unless it is “(1) arbitrary,
    2009-3165                                  2
    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). We review “questions of law
    and determinations of jurisdiction without deference to the Board.” Carley v. Dep’t of
    the Army, 
    413 F.3d 1354
    , 1356 (Fed. Cir. 2005).
    On appeal, Mr. Fong contends that the AJ failed to take into account whether the
    directed reassignment was improper.         “We have held as a general proposition that
    reassignment or transfer, absent an underlying action over which the Board has
    jurisdiction, does not provide the Board with jurisdiction.”    
    Id. at 1357
    .   Mr. Fong
    maintains that he suffered a reduction-in-grade or demotion over which the Board has
    jurisdiction because the Operations Support Specialist position was listed at the EAS-17
    level and not the EAS-25 level. As the AJ explained, however, Mr. Fong did not suffer a
    reduction-in-grade or demotion because Mr. Fong was nevertheless employed in the
    Operations Support Specialist position at a saved grade EAS-25 level and received the
    same pay. We agree. “This court has been clear: ‘[A]llegations of reassignment without
    change of grade or pay do not provide a basis for MSPB jurisdiction.’” 
    Id.
     (quoting
    Manning v. Merit Sys. Prot. Bd., 
    742 F.2d 1424
    , 1427 (Fed. Cir. 1984)). Lastly, we
    reject Mr. Fong’s assertion that “what the USPS is doing in this case should also be
    treated as a RIF process.”
    For the foregoing reasons, we affirm the final decision of the Board dismissing
    Mr. Fong’s petition for lack of jurisdiction.
    COSTS
    No costs.
    2009-3165                                       3
    

Document Info

Docket Number: 2009-3165

Citation Numbers: 351 F. App'x 438

Judges: Moore, Per Curiam, Rader, Wilken

Filed Date: 11/9/2009

Precedential Status: Non-Precedential

Modified Date: 8/3/2023