Naheemakil L. Pryor v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NAHEEMAKIL L. PRYOR, DOCKET NUMBER
Appellant, AT-3443-14-0899-I-1
v.
DEPARTMENT OF VETERANS DATE: January 29, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Naheemakil L. Pryor, Columbia, South Carolina, pro se.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his position classification for lack of jurisdiction.
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 interpretation of statute or regulation or the erroneous application of
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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the law to the facts of the case; the 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, and based on the
following points and authorities, 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).
BACKGROUND
¶2 The agency hired the appellant for the position of GS-3 File Clerk. See
Initial Appeal File (IAF), Tab 1 at 9-13. The appellant, who had previously
worked in the same position for unpaid work experience in the Vocational
Rehabilitation Program, disputed the grade rating because his supervisor had
recommended a GS-5 rating for the position description. See id. at 17. The
appellant sought internal review and reclassification, maintaining that the
position should carry a GS-5 rating. Id. at 17-28. The Human Resources
Specialist who classified the position informed the appellant that the duties and
responsibilities described in the position description supported classification as a
GS-3 but not as a GS-5 and that a grade recommendation by a supervisor
constitutes a mere recommendation. Id. at 21. The Human Resources Specialist
notified the appellant of the formal classification appeal procedure, including a
direct appeal to the Office of Personnel Management (OPM). Id.¶3 The appellant filed an appeal with the Board, alleging that the agency had
given him “the incorrect GS rating upon being hired.” Id. at 2-4. The
administrative judge ordered the appellant to file evidence and argument that the
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Board has jurisdiction to review the action being appealed. IAF, Tab 2 at 2. The
appellant filed an untimely response that the administrative judge did not consider
in her analysis of the appeal. IAF, Tab 3, Tab 4, Initial Decision (ID) at 2 n.*. In
an initial decision issued on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant sought to
appeal the classification of his position and that well-settled precedent holds that
the Board lacks jurisdiction to review such classifications. ID at 1-2. On review,
the appellant has made no argument but instead has refiled “all of the documents
submitted initially” in his appeal. Petition for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board has not
been granted jurisdiction over cases concerning the proper classification of a
position, either by statute or regulation. Saunders v. Merit Systems Protection
Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985). The appellant bears the burden of
proof of establishing Board jurisdiction by a preponderance of the
evidence. 5 C.F.R. § 1201.56(a)(2)(i). An appellant is entitled to a hearing if he
raises a nonfrivolous allegation of Board jurisdiction over his appeal. See
Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 6 (2013).
¶5 The administrative judge correctly held that the appellant failed to make a
nonfrivolous allegation of Board jurisdiction. While the appellant indicated on
his appeal form that he was appealing a “reduction in grade, pay, or band,” his
written statements and evidence submitted indicate that he is contesting the
classification of the position he accepted and occupies. IAF, Tab 1 at 3-4, 9-28.
Although given notice of the jurisdictional issue by the administrative judge, the
appellant has failed to make any specific allegation of Board jurisdiction over his
appeal of the position classification. See IAF, Tab 2 at 2, Tab 3; PFR File, Tab 1.
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The appellant’s untimely response made only a blanket assertion of Board
jurisdiction under 5 U.S.C. § 2301, without any pertinent argument or evidence.
IAF, Tab 3 at 2-7. An allegation of a violation of the merit systems principles
under 5 U.S.C. § 2301 is not an independent source of Board jurisdiction. D’Leo
v. Department of the Navy, 53 M.S.P.R. 44, 48 (1992).
¶6 While the record indicates that the agency’s Human Resources Specialist
notified the appellant of the formal classification appeal procedure, there is no
evidence that the appellant pursued an appeal with OPM directly or through the
agency procedure. IAF, Tab 1 at 21; see Pierce v. Merit Systems Protection
Board, 242 F.3d 1373, 1376 (Fed. Cir. 2001) (an appellant seeking to contest
classification should have sought relief from OPM). Thus, we conclude that the
appellant has failed to adequately allege any appeal rights before the Board and
has not shown error in the administrative judge’s finding that the Board lacks
jurisdiction over the present appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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).
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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 United States 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 United
States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The 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.