Lee Ronso v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LEE RONSO, DOCKET NUMBER

Appellant, AT-3443-14-0157-I-1

v.

DEPARTMENT OF THE NAVY, DATE: September 25, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lee Ronso, Cantonment, Florida, pro se.

Douglas T. Frydenlund, Portsmouth, Virginia, and Nikcy Clervil,

Jacksonville, Florida, 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 for lack of jurisdiction his appeal of the agency’s failure to compensate

him for his time “on-call.” Generally, we grant petitions such as this one only

when: the initial decision contains erroneous findings of material fact; the initial

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant sought to appeal the agency’s failure to pay him for time he

was on-call, allegedly in violation of Title 38 guidelines. Initial Appeal File

(IAF), Tab 1 at 4-5. According to the appellant, another employee was

compensated for the same on-call work. Id. The administrative judge ordered the

appellant to produce evidence and argument to prove that the Board had

jurisdiction over his appeal. IAF, Tab 2 at 2, Tab 3. In its narrative response, the

agency argued that the appellant had not met his burden to prove jurisdiction and

further asserted that the appellant was properly excluded from on-call pay. IAF,

Tab 7 at 4-5. The appellant responded to the agency’s submission but did not

address the Board’s jurisdiction. IAF, Tabs 8, 9. Instead, he argued that he was

entitled to on-call pay because he was a licensed marriage and family counselor

who was required to be on call and asserted that the agency paid a lump sum to a

psychologist who performed on-call duties. IAF, Tab 9 at 4-5. The

administrative judge dismissed the appeal for lack of jurisdiction, finding that the

3

appellant did not suffer a reduction in pay that is appealable to the Board. 2 IAF,

Tab 10, Initial Decision (ID) at 2.

¶3 The appellant has filed a timely petition for review in which he contends the

Board has jurisdiction because he is alleging inequitable pay. Petition for Review

(PFR) File, Tab 1 at 5, Tab 5 at 4-5. He also seeks to submit new documents on

review. PFR File, Tab 5 at 5, 7-9. The agency has responded to the petition for

review, and the appellant has replied. PFR File, Tabs 4, 5.

¶4 We agree with the administrative judge that we lack jurisdiction to

adjudicate on-call pay. ID at 2. 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). Thus, it follows that the Board does not have jurisdiction over all matters

alleged to be unfair or incorrect. Johnson v. U.S. Postal Service, 67 M.S.P.R.

573, 577 (1995). Although the Board generally has jurisdiction over appeals of

reductions in pay, its jurisdiction is limited to reductions in “the rate of basic pay

fixed by law or administrative action for the position held by the employee, that

is, the rate of pay before any deductions and exclusive of additional pay of any

kind.” Vega v. U.S. Postal Service, 108 M.S.P.R. 221, ¶ 11 (2008) (quoting

5 C.F.R. § 752.402); see U.S.C. §§ 7511(a)(4) (defining “pay” for purposes of a

chapter 75 adverse action appeal), 7512(4) (listing “a reduction in pay” among

those adverse actions covered under chapter 75 of Title 5), 7513(d) (providing

that a covered employee subject to an adverse action has the right to appeal to the

Board). The Board and the courts have interpreted the term “rate of basic pay”

restrictively because Congress intended adverse action rights, such as the right to

appeal a reduction in pay, to be given a narrow construction. Gaydar v.

Department of the Navy, 121 M.S.P.R. 357, ¶ 6 (2014). Thus, a reduction in pay

does not include premium pay such as the “on-call” pay the appellant claims he

2

The appellant did not request a hearing, and none was held. IAF, Tab 1 at 2; ID at 1.

4

should receive. See Spinks v. U.S. Postal Service, 621 F.2d 987, 988-89 (9th Cir.

1980) (finding that a loss in premium pay for working at night was not an

appealable reduction in pay). Therefore, the appellant has not suffered a

reduction in pay that is appealable to the Board.

¶5 On review, the appellant repeats his argument, made below, that he is being

treated unfairly because he is being paid under Title 5, rather than Title 38. PFR

File, Tab 1 at 5-7; IAF, Tab 1 at 5, Tab 9 at 4-5. However, the Board does not

have jurisdiction over the pay provisions of Title 38. See generally 5 C.F.R.

§§ 1201.2-1201.3 (listing those claims over which the Board has original and

appellate jurisdiction). Although the appellant argues that the Board should hear

his claim because he is not covered by a collective bargaining agreement, the lack

of a grievance remedy does not vest the Board with jurisdiction. 3 PFR File, Tab 1

at 5; IAF, Tab 8 at 3; see Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 11

(2009) (the Board lacks jurisdiction over claims regarding the operation of the

grievance process under a collective bargaining agreement).

¶6 On review, the appellant argues, for the first time, that his allegedly unfair

treatment is motivated by religious discrimination. PFR File, Tab 5 at 5. The

Board generally will not consider an argument raised for the first time in a

petition for review absent a showing that it is based on new and material evidence

not previously available despite the party’s due diligence. Banks v. Department

of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). Here, the

appellant has not shown that his claim of religious discrimination is based on new

evidence. In any event, the Board has no jurisdiction over appeals based on

alleged religious discrimination, unless such allegation is raised in conjunction

with a matter otherwise within the Board’s jurisdiction. Shepard v. U.S.

Department of Agriculture, 2 M.S.P.R. 528, 529-30 (1980) (citing 5 U.S.C.

3

The agency asserted below that the appellant was, in fact, covered by a collective

bargaining agreement. IAF, Tab 7 at 10. Because such coverage is not relevant to our

jurisdictional holding here, we need not resolve this factual dispute.

5

§ 7702(a)(1) (providing that the Board has jurisdiction over Title VII-type

discrimination and reprisal claims raised in the context of an appealable action)).

Therefore, the appellant’s late-raised claim of religious discrimination does not

establish Board jurisdiction over his appeal. 4

¶7 Also for the first time on review, the appellant provides an exchange of

emails that he asserts “could not be wholly retrieved and were not available when

the record was closed.” PFR File, Tab 5 at 5, 7-9. Under 5 C.F.R. § 1201.115,

the Board will not consider evidence submitted for the first time with the petition

for review absent a showing that it was unavailable before the record was closed

despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 214 (1980). To constitute new evidence, the information contained in the

documents, not just the documents themselves, must have been unavailable

despite due diligence. 5 C.F.R. § 1201.115(d). Further, the Board will not grant

a petition for review based on new evidence absent a showing that it is of

sufficient weight to warrant an outcome different from that of the initial decision.

Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).

¶8 The record on jurisdiction closed in January 2014. IAF, Tab 3 at 2. The

emails themselves are dated almost 7 months earlier. PFR File, Tab 5 at 7-9.

Although an inquiry from the appellant initiated the email string, he was not

listed as a recipient on the response and may not have received the response when

it was originally generated. Id. However, even assuming he only acquired the

emails shortly before submitting them to the Board, the appellant still has not

explained why the underlying information was not available, nor does he discuss

4

Likewise, the appellant’s claims that the failure to pay him for his on-call time was

procedural error or “not in accordance with law” are not independent bases for Board

jurisdiction. See PFR File, Tab 1 at 5; see 5 U.S.C. § 7701(c)(2)(A), (C) (providing

that an appealable action may not be sustained if the employee or applicant shows

harmful procedural error, or that the decision was not in accordance with law); Hurston

v. Department of the Army, 113 M.S.P.R. 34, ¶ 11 (2010) (the Board has no independent

jurisdiction over a claims of discrimination and harmful error).

6

his diligence in trying to obtain this information. Therefore, we cannot find that

the information is new. Further, the exchange does not warrant an outcome

different from that of the initial decision. The emails contain a discussion of

whether marriage and family counselors are eligible for on-call pay under Title

38. Because, as discussed above, the eligibility for on-call pay under Title 38 is

not within the Board’s jurisdiction, this allegedly new information is not material.

¶9 Accordingly, we affirm the administrative judge’s dismissal for lack of

jurisdiction.

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).

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.

7

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.