Ronald Perino v. Department of Transportation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RONALD PERINO, DOCKET NUMBER

Appellant, DE-3443-14-0447-I-1

v.

DEPARTMENT OF DATE: August 25, 2015

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronald Perino, Albuquerque, New Mexico, pro se.

Theresa Dunn, Esquire, Fort Worth, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his 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 interpretation of statute or

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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. Except as

expressly MODIFIED by this Final Order to address the appellant’s claim raised

in the first instance on review that he suffered a constructive demotion, we

AFFIRM the initial decision.

BACKGROUND

¶2 The following facts are undisputed. 2 The appellant is a former Supervisory

Air Traffic Control Specialist at the agency’s Air Route Traffic Control Center in

Albuquerque, New Mexico (the Albuquerque Center or facility), who retired from

service on July 31, 2013, having reached the mandatory separation age for air

traffic controllers. Initial Appeal File (IAF), Tab 7 at 5, Tab 9 at 5.

¶3 The pay of Air Traffic Control Specialists and Supervisory Air Traffic

Control Specialists is determined by the classification level of the facility where

they work, which in turn is determined, in part, by the volume and complexity of

air traffic managed at the facility. IAF, Tab 7 at 5, 43. In 2006, the National Air

Traffic Controllers Association (NATCA), which represents bargaining unit

2

The appellant and the agency did not provide evidence to support many of their factual

assertions below. See Initial Appeal File (IAF), Tab 7 at 2-6, Tab 9. In addition, in his

pleadings below, the appellant refers to several exhibits that were not included in the

record below. See IAF, Tab 7 at 5 (referencing “Exhibit 1” and “Exhibit 2,” neither of

which was included in the record below). Nevertheless, the parties do not dispute the

material facts relevant to this appeal.

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employees at the Albuquerque Center, filed a grievance challenging the agency’s

decision not to upgrade the facility’s classification level in 2004. Id. at 5, 39, 74.

In 2013, an arbitrator issued a partial award finding that the Albuquerque Center

should have been upgraded. Id. at 31-35, 37. However, the arbitrator afforded

the agency an opportunity to present evidence that the facility would have been

downgraded again at a later date. Id. at 34-35, 37.

¶4 Subsequently, on January 27, 2014, NATCA and the agency entered into a

settlement agreement resolving this grievance. IAF, Tab 7 at 39, Tab 9 at 5.

Pursuant to the settlement, the agency agreed to make lump sum payments to

current employees in the NATCA bargaining unit and former employees who

separated from the agency in a NATCA bargaining unit position. IAF, Tab 7

at 39. The appellant did not receive a payment pursuant to the settlement because

he was a supervisor and was not in the NATCA bargaining unit when he retired.

IAF, Tab 1 at 5, Tab 7 at 39, Tab 9 at 5.

¶5 In July 2014, the agency voluntarily made similar payments to current

Federal Aviation Administration (FAA) managers assigned to the Albuquerque

Center during the time period covered by the settlement agreement. IAF, Tab 9

at 5. The appellant did not receive a payment because he had retired prior to

July 2014, and thus, was not a current manager. IAF, Tab 1 at 5, Tab 9 at 5.

¶6 The appellant filed this Board appeal, alleging that the agency did not

provide him with a payment because he was “forced to retire,” having reached the

mandatory separation age. IAF, Tab 1 at 5. In a subsequent pleading, the

appellant alleged, among other things, that the agency’s failure to upgrade the

facility affected his retirement annuity, and that the agency discriminated against

him on the basis of his age. IAF, Tab 7 at 4, 7-9. After issuing an order

explaining that the Board appeared to lack jurisdiction over the appeal, and

affording the appellant an opportunity to respond, the administrative judge

dismissed the appeal for lack of jurisdiction without holding the requested

hearing. IAF, Tab 10, Initial Decision (ID); see IAF, Tab 1 at 2, Tab 8. She

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found that the appellant failed to raise a nonfrivolous allegation that his

retirement was involuntary. ID at 3-4. She further found that the appellant failed

to establish jurisdiction over his claim regarding his retirement annuity because

the record did not indicate that the Office of Personnel Management (OPM) had

issued a final decision on this matter. ID at 4. Finally, the administrative judge

found that, absent an otherwise appealable action, the Board lacked jurisdiction to

consider the appellant’s claims of prohibited personnel practices and

discrimination. ID at 4-5.

¶7 The appellant has filed a petition for review of the initial decision, and the

agency has responded. Petition for Review (PFR) File, Tabs 1, 4. 3

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant failed to raise a nonfrivolous allegation that he suffered an adverse

action.

¶8 The Board’s jurisdiction 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 involving Federal employees

that are alleged to be unfair or incorrect. Johnson v. U.S. Postal

Service, 67 M.S.P.R. 573, 577 (1995). With exceptions not applicable here, under

the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century

(the Ford Act), covered FAA employees have the right to appeal certain adverse

actions to the Board. 49 U.S.C. § 40122(g)(2)(H), (g)(3); Roche v. Merit Systems

3

On review, the agency moved to consolidate this appeal with the appeals of other

individuals challenging the agency’s failure to upgrade the Albuquerque Center, MSPB

Docket Nos. DE-3443-14-0519-I-1, DE-3443-14-0561-I-1, DE-3443-14-0566-I-1,

DE-3443-14-0587-I-1 and DE-3443-14-0589-I-1. PFR File, Tab 2 at 4-5. However, the

appellant’s claims below differed from the claims of the other individuals at issue in

several regards. See ID. Therefore, we find that consolidation would not expedite

processing of the appeals, and we DENY the agency’s request to consolidate this appeal

on review. See 5 C.F.R. § 1201.36(b) (consolidation is appropriate if doing so would

expedite processing and not adversely affect the interests of the parties). The Board

issued a separate decision addressing the above-referenced appeals.

5

Protection Board, 596 F.3d 1375, 1378, 1380-81 (Fed. Cir. 2010) (discussing

which FAA employees may appeal adverse actions to the Board); Goldberg v.

Department of Transportation, 97 M.S.P.R. 441, ¶ 6 (2004) (finding that the Ford

Act permits covered employees to appeal involuntary reductions in pay and

grade). Adverse actions include a removal, a suspension for more than 14 days, a

reduction in pay or grade, and certain furloughs. 5 U.S.C. § 7512; 49 U.S.C.

§ 40122(h), (j) (defining “major adverse personnel actions” that FAA employees

can contest through either a contractual grievance procedure, an internal FAA

process, or to the Board).

¶9 Below, the appellant alleged that he did not receive either a settlement

payment or a voluntary payment because he was forced to retire due to his age.

IAF, Tab 1 at 5, Tab 7 at 7-9. An involuntary retirement is tantamount to a

removal and, accordingly, is appealable to the Board. Salazar v. Department of

the Army, 115 M.S.P.R. 296, ¶ 9 (2010). The administrative judge found that

because the mandatory separation age for air traffic controllers is established by

Federal law and is permissible under the Age Discrimination in Employment Act

(ADEA), the appellant failed to raise a nonfrivolous allegation that his retirement

was appealable. See ID at 3-4; see also Johnson v. Mayor of Baltimore, 472 U.S.

353, 357 (1985) (observing that amendments to the ADEA “left untouched”

certain Federal mandatory retirement statutes, including for air traffic

controllers); Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 8, 11-12 (2013)

(holding that the elements of a constructive adverse action claim include

wrongful actions by an agency that deprive an appellant of a meaningful choice).

The appellant does not challenge this well-reasoned finding on review, and we

see no reason to disturb it.

6

¶10 For the first time on review, the appellant argues that he was denied an

increase in grade as a result of the agency’s failure to upgrade the facility. 4 PFR

File, Tab 1 at 6-7. He characterizes the agency’s decision in this regard as a

“major adverse action.” Id. at 8. We interpret this claim as an allegation that he

suffered a constructive demotion and modify the initial decision to address this

new argument.

¶11 The Board has jurisdiction over the reduction in grade of a covered

employee. 5 U.S.C. § 7512(3); see Goodwin v. Department of

Transportation, 106 M.S.P.R. 520, ¶ 11 (2007) (finding that covered FAA

employees may appeal reductions in grade to the Board). Because the appellant’s

new argument potentially implicates the Board’s jurisdiction and the issue of

jurisdiction is always before the Board and may be raised by any party or sua

sponte by the Board at any time during a Board proceeding, we will consider the

appellant’s argument that he was denied an increase in grade. See Lovoy v.

Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 30 (2003).

¶12 Even without an actual reduction in grade, an employee may be deemed to

have suffered an appealable constructive reduction in grade, or “constructive

demotion.” Marcheggiani v. Department of Defense, 90 M.S.P.R. 212, ¶ 7

(2001). To receive a jurisdictional hearing on a constructive demotion claim, an

appellant must nonfrivolously allege, in pertinent part, that he was reassigned and

4

The appellant also alleges that he was denied an increase in pay. PFR File, Tab 1

at 6-7. However, a failure to increase an employee’s basic pay generally does not

constitute an appealable reduction in pay. Gaydar v. Department of the Navy,

121 M.S.P.R. 357, ¶¶ 7-8 (2014) (holding that the Board lacked jurisdiction over an

appellant’s claim that an agency improperly failed to increase his basic pay rate to

adjust for the reduction in the number of hours he worked due to a furlough); see Caven

v. Merit Systems Protection Board, 392 F.3d 1378, 1381-82 (Fed. Cir. 2004) (finding

that the denial of a promotion that would have resulted in a pay increase is not an

appealable reduction in pay). Therefore, the appellant’s claim that the agency did not

increase his pay does not raise a nonfrivolous allegation that he suffered an adverse

action appealable to the Board.

7

that his former position was upgraded. 5 Elmore v. Department of

Transportation, 421 F.3d 1339, 1342-43 (Fed. Cir. 2005); Beaudette v.

Department of the Treasury, 100 M.S.P.R. 353, ¶ 13 (2005). In the present case,

the appellant did not allege that he was reassigned, but instead alleged that he

retired from a position that was later upgraded, or should have been upgraded,

6

prior to his retirement. See PFR File, Tab 1 at 6-7; IAF, Tab 1 at 5. In the

absence of any allegation that the appellant was reassigned, we find that he failed

to raise a nonfrivolous allegation of jurisdiction over a constructive demotion

claim. See Phillips v. Department of the Air Force, 104 M.S.P.R. 229, ¶ 5 (2006)

(finding that the appellant failed to raise a nonfrivolous allegation that he was

constructively demoted where he alleged that he performed higher-graded duties

in his current position, but did not allege that he was reassigned);

Beaudette, 100 M.S.P.R. 353, ¶ 13 (finding that the Board lacked jurisdiction

over the appellant’s constructive demotion claim where he was not reassigned

when his former position was upgraded).

The administrative judge correctly found that the Board lacks jurisdiction over

the appellant’s retirement annuity claim, and the appellant has not demonstrated

that the evidence that he submits in the first instance on review is material.

¶13 On review, the appellant reiterates his argument, raised below, that the

agency’s failure to upgrade the facility affected the calculation of his retirement

5

Although the appellant did not raise a constructive demotion claim below, the

administrative judge nevertheless notified the appellant of the burdens and elements of

proof for establishing jurisdiction over such a claim in the order explaining that the

Board appeared to lack jurisdiction over the appeal. See IAF, Tab 8 at 4; see also

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985)

(holding that an appellant must receive explicit information on what is required to

establish an appealable jurisdictional issue).

6

Because the appellant has not alleged that he was reassigned, we need not decide

whether the payments made by the agency to NATCA bargaining unit employees and

current managers in 2014 constituted an “upgrade” of the appellant’s former position.

See Marcheggiani, 90 M.S.P.R. 212, ¶ 8 (finding that a constructive demotion cannot be

established based on a claim that a position could have been or should have been

reclassified upwards).

8

annuity. PFR File, Tab 1 at 2, 6, 8; IAF, Tab 7 at 4, 9. We agree with the

administrative judge that the Board lacks jurisdiction over this claim.

¶14 If OPM has not issued a reconsideration decision on an appellant’s

entitlement to a retirement benefit, the Board generally lacks jurisdiction over an

appeal of that matter. Fagone v. Office of Personnel Management, 85 M.S.P.R.

49, ¶ 9 (2000). The Board has recognized an exception to that general rule, and

may take jurisdiction over a retirement appeal absent an OPM reconsideration

decision if the appellant has made “repeated requests” for such a decision and the

evidence indicates that OPM does not intend to issue a final decision. Id.

¶15 Below, the appellant did not allege that he received a final or

reconsideration decision from OPM, or that he made repeated requests for such a

decision. See IAF, Tabs 1, 7. On review, however, he alleges that he received a

final decision from OPM after the initial decision in his appeal was issued. PFR

File, Tab 1 at 2. In support of this allegation, the appellant submits a

November 24, 2014 letter from OPM. Id. at 9.

¶16 The Board generally will not consider evidence submitted for the first time

on review absent a showing that: (1) the documents and the information

contained in the documents were unavailable before the record closed despite due

diligence; and (2) the evidence is of sufficient weight to warrant an outcome

different from that of the initial decision. Carson v. Department of

Energy, 109 M.S.P.R. 213, ¶ 21 (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009);

see 5 C.F.R. § 1201.115(d). The agency argues that the letter from OPM would

have been available had the appellant exercised due diligence, and, in any event,

it is not material to the issue of Board jurisdiction. PFR File, Tab 4 at 8-10. We

agree with the agency that the appellant has failed to demonstrate that the letter

would establish Board jurisdiction over his retirement claims, and, accordingly,

the evidence is not material to the outcome of his appeal.

¶17 The November 24, 2014 letter from OPM that the appellant submits in the

first instance on review states that OPM is responding to the appellant’s request

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to file a classification appeal, not to his request for a final or reconsideration

decision on a retirement matter. PFR File, Tab 1 at 9. The Board lacks

jurisdiction to review OPM decisions in classification appeals. Saunders v. Merit

Systems Protection Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985). Therefore, we

find that the letter from OPM does not establish jurisdiction over the appellant’s

claim relating to his retirement annuity. 7

The Board lacks jurisdiction over the appellant’s remaining claims.

¶18 On review, the appellant argues that the agency’s failure to upgrade the

facility and increase his pay violated a memorandum of understanding between

the agency and NATCA, position classification standards, and other agency laws,

rules, or regulations. PFR File, Tab 1 at 3-6. He further alleges that that the

facility was not upgraded because of misrepresentations and misconduct by

agency employees, and that the agency’s actions were criminal. Id. at 4-5, 7-8.

However, in the absence of an otherwise appealable action, the Board lacks

jurisdiction to review these claims. See Penna v. U.S. Postal

Service, 118 M.S.P.R. 355, ¶ 13 (2012) (stating that, in the absence of an

otherwise appealable action, the Board lacked jurisdiction over claims of harmful

error, prohibited personnel practices, and the agency’s alleged failure to comply

with regulations); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980)

(finding that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an

independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir.

1982).

7

On review, the appellant alleges that OPM “completely missed the point” of his

request. PFR File, Tab 1 at 2. However, he did not submit a copy of his request to

OPM or otherwise establish that the letter from OPM was tantamount to a final decision

on a retirement matter.

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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 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 an appeal to the

United States 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

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Circuit. 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.