The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONALD L. WENCEWICZ, DOCKET NUMBER
Appellant, DE-3443-13-1949-I-1
v.
DEPARTMENT OF DATE: August 28, 2014
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donald L. Wencewicz, Albuquerque, New Mexico, pro se.
Rebecca Holmes, Esquire, Fort Worth, Texas, for the agency.
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 his removal appeal 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 In 1981, the agency separated the appellant from his employment as an Air
Traffic Controller (ATC) due to his participation in the Professional Air Traffic
Controllers Organization (PATCO) strike. Initial Appeal File (IAF), Tab 1 at 5.
Thereafter, he worked at the Department of Agriculture, from which he retired in
2007. IAF, Tab 16 at 1. He began receiving retirement benefits from the Office
of Personnel Management in or around 2007. Id.
¶3 Effective June 3, 2012, the agency rehired the appellant as an Air Traffic
Control Specialist and enrolled him in a pass/fail initial training program for new
hires. IAF, Tab 11 at 41-42, Tab 12 at 23-24. On December 14, 2012, however,
the agency terminated the appellant for failure to successfully complete the
program. IAF, Tab 1 at 5, Tab 11 at 42. The appellant filed an appeal of his
removal with the Board, arguing that, as a “reinstated PATCO Controller,” he
should not have been placed in the initial training program nor graded on a
pass/fail basis. IAF, Tab 5 at 1. The agency moved to dismiss on the grounds
that the appellant was a rehired annuitant with no Board appeal rights, and, in
3
addition, that the appeal was untimely filed. 2 IAF, Tab 8 at 4. The administrative
judge advised the appellant of his burden to establish Board jurisdiction and
ordered him to show cause why the appeal should not be dismissed. IAF, Tab 16.
The appellant responded that the Board had jurisdiction over his appeal because
he was a “reinstated employee.” IAF, Tab 17 at 3.
¶4 On December 31, 2013, without holding a hearing, the administrative judge
dismissed the appeal for lack of jurisdiction, finding that: (1) the appellant was a
reemployed annuitant because he was receiving annuity payments at the time of
his second termination; and (2) as a reemployed annuitant, he was an at-will
employee with no Board appeal rights. IAF, Tab 22, Initial Decision (ID). The
administrative judge referenced the appellant’s arguments that he was a
“reinstated employee” holding a permanent appointment, that he had been
subjected to age discrimination, that other reemployed ATCs were not terminated
when they did not pass training, and that there was a recent arbitration decision
holding that former PATCO controllers were not required to take initial training
on a pass/fail basis. ID at 5. However, because the Board lacks jurisdiction over
the appeal, the administrative judge concluded that these arguments were
immaterial to the jurisdictional issue. ID at 5.
2
Initially, the appellant challenged his removal through both an equal employment
opportunity (EEO) complaint and an appeal to the Board. The Board appeal was
dismissed to permit the appellant to pursue the discrimination complaint process. See
Wencewicz v. Department of Transportation, MSPB Docket No. DE-3443-13-0154-I-1,
Initial Decision (Jan. 25, 2013). The EEO complaint was subsequently dismissed
because the appellant had already filed with the Board. IAF, Tab 11 at 27-29. The
appellant appealed the dismissal to the Equal Employment Opportunity Commission,
Office of Federal Operations, which affirmed the decision. Id. Thereafter, the
appellant filed the appeal now on review. The administrative judge noted that there
may be a timeliness issue based on the appellant’s prior withdrawal of his appeal but
deferred ruling on it pending a determination on the threshold jurisdictional issue. IAF,
Tab 16.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On February 3, 2014, the appellant filed a petition for review of the initial
decision. Petition for Review (PFR) File, Tab 1. He argues that the
administrative judge failed to consider the portion of the arbitration decision
finding that rehired former PATCO controllers, such as himself, are covered by
the collective bargaining agreement (CBA) between the National Air Traffic
Controllers Association and the agency even while at the training academy. Id.
at 3. The appellant states that the Board has jurisdiction to hear “this category”
of appeal since he was covered by the CBA. Id. at 3-4. The agency opposes the
appellant’s petition for review, arguing that: (1) the appellant was a rehired
annuitant with no right to appeal an adverse action to the Board; and (2) the cited
arbitration decision does not change or expand the Board’s jurisdiction. PFR
File, Tab 3. On review, we discern no reason to disturb the initial decision.
¶6 An individual receiving an annuity may become reemployed in an
appointive position for which he is qualified; however, an annuitant so
reemployed serves at the will of the appointing authority unless he ceases
collecting an annuity upon reemployment. 5 U.S.C. § 3323(b)(1); see Vesser v.
Office of Personnel Management, 29 F.3d 600, 605 (Fed. Cir. 1994); see also
5 U.S.C. § 7511(b)(4) (the Board lacks jurisdiction over removals of any
employee “who is receiving an annuity from the Civil Service Retirement and
Disability Fund . . . based on the service of such employee”). Consequently, such
a reemployed annuitant generally has no right to appeal his separation to the
Board. Bovay v. Small Business Administration, 100 M.S.P.R. 175, ¶ 7 (2005).
The appellant’s appointment Standard Form (SF) 50 reflects that he was classified
as a reemployed Civil Service Retirement System annuitant and that his annual
salary was reduced by the amount of his retirement annuity. IAF, Tab 12 at 23.
The appellant does not challenge the SF-50’s characterization of his employment,
nor does he dispute he was receiving a retirement annuity at the time he was
terminated from the agency in 2012. See PFR File, Tab 1. Our reviewing court
5
has emphasized that actual receipt of an annuity is significant with regard to the
at-will status of a reemployed individual. Vesser, 29 F.3d at 605. Thus, we agree
with the administrative judge’s determination that the appellant was a reemployed
annuitant subject to section 3323(b)(1).
¶7 To the extent that the appellant argues that the CBA accords him a different
status, i.e., as a reinstated employee with Board appeal rights, his argument is
unavailing. The Board’s jurisdiction is limited to those matters specifically
entrusted to it by law, rule, or regulation. Caracciolo v. Department of the
Treasury, 105 M.S.P.R. 663, ¶ 7 (2007). Here, section 3323(b)(1) expressly
provides that reemployed annuitants, like the appellant, do not have Board appeal
rights. Further, it is well-settled that an agreement between an agency and its
employees cannot serve to confer jurisdiction on the Board. Godfrey v. Veterans
Administration, 40 M.S.P.R. 438, 441 (1989); Pogarsky v. Department of the
Treasury, 7 M.S.P.R. 196, 198 (1981). Accordingly, the CBA does not extend
Board jurisdiction to the appellant’s removal appeal. Insofar as the CBA affords
the appellant procedural entitlements to challenge his employment status,
compliance with those entitlements can be enforced only through the negotiated
grievance procedure. See Pogarsky, 7 M.S.P.R. at 198. We therefore agree with
the administrative judge that the appellant, as a reemployed annuitant, has no
right to appeal his termination to the Board.
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
6
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 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.