Opinion

Warren W Dewey v. Department of the Army

Court: Merit Systems Protection Board
Filed: Feb 28, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.3%

explaining that, in an IRA appeal, the Board may find it lacks jurisdiction 4 based on an appellant’s failure to meet any one of the jurisdictional prerequisites

How later courts described this case

explaining that, in an IRA appeal, the Board may find it lacks jurisdiction 4 based on an appellant’s failure to meet any one of the jurisdictional prerequisites

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WARREN W. DEWEY, DOCKET NUMBER

Appellant, DE-1221-24-0166-W-1

DEPARTMENT OF THE ARMY, DATE: February 28, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Janice Jackson , Leavenworth, Kansas, for the appellant.

Autumn Marie Hayes , Fort Leavenworth, Kansas, for the agency.

Kristine Hale Bell , Fort Eustis, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman*

Raymond A. Limon, Member

*Vice Chairman Kerner recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction. On

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

petition for review, the appellant predominantly reiterates his arguments from

below that he made a protected disclosure when he declined to start Secure

Internet Protocol Room duties at his supervisor’s request due to an alleged lack of

training and the repercussions it could have on national security. Generally, we

grant petitions such as this one only in the following circumstances: 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 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. 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.

Except as expressly MODIFIED to correct the characterization of the covered

personnel action at issue in this appeal, we AFFIRM the initial decision.

The administrative judge stated that the sole personnel action at issue was

the appellant’s demotion but did not analyze this action further because he found

that the appellant failed to nonfrivolously allege that he made a protected

disclosure or engaged in protected activity within the scope of the Board’s IRA

jurisdiction. Initial Appeal File (IAF), Tab 10, Initial Decision at 1, 3-6. We

clarify here that the covered personnel action at issue is not a demotion but a

“decision concerning pay, benefits, or awards” under 5 U.S.C. § 2302(a)(2)(A)

(ix).

The Board has chapter 75 jurisdiction over reductions in grade and pay.

5 U.S.C. §§ 7512(3)-(4), 7513(d). However, when, as here, a reclassification of

an employee results in a reduction in pay and grade and the employee has

received retained pay and grade, the employee has no chapter 75 appeal rights to

the Board. Broderick v. Department of the Treasury, 52 M.S.P.R. 254, 258

(1992). The appellant asserted below that he was subject to a demotion. IAF,

Tab 1 at 4, Tab 7 at 5. However, his position was in fact reclassified from a

GS-13 to a GS-12 and, under the agency’s pay retention policy, he was to retain

his GS-13 salary for 2 years. IAF, Tab 9 at 58-60.

In an initial decision issued on May 10, 2023, an administrative judge

previously found that the appellant did not suffer a chapter 75 “demotion” but

rather the appellant’s position was “downgraded following a reclassification

where grade and pay retention were provided.” Dewey v. Department of the

Army, MSPB Docket No. DE-3443-23-0190-I-1, Initial Decision (0190 ID) at 3-5

(May 10, 2023). Neither party filed a petition for review and the initial decision

is now the final decision of the Board on this issue. 0190 ID at 8; see 5 C.F.R.

§ 1201.113.

While a reduction in grade with retention of pay and benefits under

chapter 75 is not appealable, in an IRA appeal this can qualify as a personnel

action. The Board has previously held that an agency’s refusal to reclassify a

position at a higher grade level, when the duties of the position warrant a higher

classification, constitutes a “decision concerning pay” under 5 U.S.C. § 2302(a)

(2)(A)(ix) and is a personnel action. Briley v. National Archives and Records

Administration, 71 M.S.P.R. 211, 221-22 (1996). Thus, we find that the appellant

has nonfrivolously alleged that he was subject to “a decision concerning pay,

benefits, or awards” that qualified as a personnel action when his position was

reclassified. In any event, because we agree with the administrative judge’s

determination that the appellant failed to nonfrivolously allege that he made a

protected disclosure or engaged in a protected activity within the scope of the

Board’s IRA jurisdiction, we affirm the administrative judge’s determination.

See Schmittling v. Department of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir.

2000) (explaining that, in an IRA appeal, the Board may find it lacks jurisdiction

based on an appellant’s failure to meet any one of the jurisdictional

prerequisites).

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review

of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your

claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following