Naheemakil L. Pryor v. Department of Veterans Affairs

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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