Faye L. Banks v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FAYE L. BANKS, DOCKET NUMBER
Appellant, DC-0752-14-1011-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 22, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Laura A. O’Reilly, Esquire, Virginia Beach, Virginia, for the appellant.
Deborah Muldoon, Esquire, and Michael J. Rhoades, Esquire, Scott Air
Force Base, Illinois, 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 for lack of jurisdiction her reduction-in-grade appeal. 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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).
¶2 The appellant previously served as a GS-12 Traffic Management Specialist
at Fort Eustis, Virginia. In February 2007, she was notified that her organization,
the Surface Deployment and Distribution Command, was relocating to Scott
Air Force Base, Illinois and that she would be reassigned in her GS-12 position.
Initial Appeal File (IAF), Tab 4 at 9, 12. Because she did not wish to relocate,
she began to look for other jobs. Id. at 9. She applied, and was selected, for
another YA-2 Traffic Management Specialist position in a different organization
at Fort Eustis. IAF, Tab 4 at 9, Tab 5 at 13, 16-17, 34. She was reassigned to
that position under the National Security Personnel System (NSPS), effective
March 29, 2009, with no loss in pay. IAF, Tab 5 at 18. After the repeal of the
NSPS, she was reassigned to the position of Traffic Management Specialist,
GS-11, with no loss in pay, effective June 20, 2010. IAF, Tab 1 at 13.
¶3 On August 27, 2014, the appellant filed an appeal in which she alleged that
she had been reduced in grade without due process. Id. at 6. She explained that
the agency never provided her any appeal rights and that, once she learned that
she could appeal to the Board, she promptly did so. IAF, Tab 4. The agency
moved that the appeal be dismissed for lack of jurisdiction, IAF, Tab 5, and the
appellant challenged the agency’s motion, IAF, Tab 11.
3
¶4 Based on the written record, the administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 15, Initial Decision (ID) at 1, 4. She
acknowledged the seminal NSPS case of Arrington v. Department of the Navy,
117 M.S.P.R. 301, ¶¶ 11-13 (2012), wherein the Board found that when the
appellant initially occupied a position within the GS system when the NSPS was
created, was converted into the NSPS, and was subsequently converted back to
the GS system at a lower grade level than she occupied prior to the conversion
into the NSPS, the cumulative effect of those personnel actions was the
appellant’s reduction in grade. The administrative judge found, however, that
Arrington was not dispositive because in this case the appellant was not converted
to the NSPS while occupying a position in the GS system, but rather voluntarily
left her position in the GS system to apply for a position that was already in the
NSPS. 2 ID at 3-4.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.
The appellant has replied to the agency’s response. PFR File, Tab 4.
¶6 On review, the appellant disputes the administrative judge’s finding that
Arrington is not controlling because the appellant voluntarily accepted the NSPS
position and therefore did not suffer a reduction in grade. She concedes that she
applied for the YA-2 NSPS position, but argues that she was unaware that it was
lower graded and that she did not voluntarily accept it. 3 PFR File, Tab 1 at 6-7.
2
The administrative judge did not address the apparent untimeliness of the appellant’s
appeal. We assume, however, that the administrative judge deemed it unnecessary to do
so, given her dismissal of the appeal on jurisdictional grounds.
3
The appellant cites to two nonprecedential final orders issued by the Board which, in
her view, support her position. PFR File, Tab 1 at 7-8. Such orders are not binding
upon the Board except where it is determined that they have a preclusive effect on
parties under the doctrines of res judicata, collateral estoppel, judicial estoppel, or law
of the case. 5 C.F.R. § 1201.117(c)(2). None of these doctrines applies to this case.
And while parties may cite these orders, they have no precedential value and the Board
is not required to follow or distinguish them. Id.
4
¶7 What is significant here is that the appellant voluntarily applied for and was
selected to fill an appointment in the NSPS, unlike the appellant in Arrington who
transitioned into the NSPS in the same position that she held as a GS appointee.
Arrington, 117 M.S.P.R. 301, ¶ 2. Had the appellant not applied for the YA-2
Traffic Management Specialist position in the NSPS, she could have remained in
her GS position. Therefore, we find that the appellant’s decision not to relocate
in her GS position but instead to compete for appointment in the NSPS did not
create the same cumulative series of transactions that the Board found compelling
in Arrington. See Ellis v. Department of the Navy, 117 M.S.P.R. 511, ¶ 8 (2012).
Accordingly, we agree with the administrative judge that the appellant failed to
show that she suffered an appealable reduction in grade or pay and that the Board
lacks jurisdiction over this appeal. 4
¶8 The appellant further argues on review that the administrative judge erred in
not convening the jurisdictional hearing she requested. PFR File, Tab 1 at 14;
IAF, Tab 1 at 2. The administrative judge did not specifically address the
appellant’s request, but we read her decision as denying a hearing because the
appellant failed to raise a nonfrivolous allegation of Board jurisdiction. The
appellant urges that, to the extent that voluntariness is a material factual issue, a
jurisdictional hearing should have been scheduled. PFR File, Tab 1 at 14.
However, the appellant does not dispute the fact that she chose to apply for the
YA-2 NSPS position rather than remaining in her GS-12 position because she did
not want to relocate. IAF, Tab 4 at 9. For that reason, and because she did not
allege that she transitioned into the NSPS in the same manner as did the appellant
in Arrington, her contentions are insufficient to establish a nonfrivolous
4
With her petition, the appellant has submitted documents that she submitted below.
Compare PFR File, Tab 1 at 16-50, with IAF, Tab 11 at 15-50. These documents do not
constitute new evidence. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
(1980).
5
allegation that she suffered an appealable reduction in grade so as to entitle her to
a jurisdictional hearing. As a result, we affirm the initial decision.
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
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
6
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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.