DOT FAA Albuquerque, NM v. Department of Transportation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DOCKET NUMBERS

DOT FAA ALBUQUERQUE, NM, DE-3443-14-0519-I-1 (GROUP 1)

DOT FAA2 ALBUQUERQUE, NM, DE-3443-14-0561-I-1 (GROUP 2)

DOT FAA4 ALBUQUERQUE, NM, DE-3443-14-0589-I-1 (GROUP 4)

STEPHEN VAN SICKLE, DE-3443-14-0514-I-1

KAY F. WILEY, DE-3443-14-0587-I-1

Appellants, 1

v.

DATE: August 25, 2015

DEPARTMENT OF

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Robert J. Mattmann, Eugene W. Victor, William H. Klein,

Kent T. MacKenzie, Jon L. Semanek, Michael J. Murtagh,

Jeffrey A. Ross, Roger A. Mandeville, Stephen Van Sickle, and

Kay F. Wiley, pro se.

Sarah L. McKinin, Esquire, Washington, D.C., for the Group 2 appellants.

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

1

Our findings in this Final Order apply only to Appellants Wiley and Van Sickle and

the appellants set forth in Appendices A-C to this Final Order, not to the appellants who

were previously part of the consolidated groups 1-4 but did not file petitions for review.

See Dye v. Department of the Army, 121 M.S.P.R. 142, ¶ 1 n.2 (2014).

2

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellants have filed petitions for review of the initial decisions, which

dismissed their appeals for lack of jurisdiction. Generally, we grant petitions

such as these 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 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

petitioners have not established any basis under section 1201.115 for granting the

petitions for review. Therefore, we DENY the petitions for review. Except as

expressly MODIFIED by this Final Order to address the appellants’ claim that

they suffered a reduction in pay, we AFFIRM the initial decisions.

BACKGROUND

¶2 The appellants are former Air Traffic Control Specialists and Supervisory

Air Traffic Control Specialists at the agency’s Air Route Traffic Control Center

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

from service with the agency in or prior to January 2014. See, e.g., Victor v.

Department of Transportation, MSPB Docket No. DE-3443-14-0491-I-1, Initial

Appeal File (Victor IAF), Tab 5 at 4; Cockrell v. Department of Transportation,

3

MSPB Docket No. DE-3443-14-0507-I-1, Initial Appeal File (Cockrell IAF),

Tab 7 at 4.

¶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. See DOT FAA Albuquerque, NM v. Department

of Transportation, MSPB Docket No. DE-3443-14-0519-I-1, Group 1

Consolidated Appeal File (G1CAF), Tab 2 at 47-48; Murtagh v. Department of

Transportation, MSPB Docket No. DE-3443-14-0485-I-1, Initial Appeal File

(Murtagh IAF), Tab 11 at 7. The appellants’ claims in these appeals arise out of

the agency’s failure to upgrade the Albuquerque Center’s classification level in

2004. See, e.g., Semanek v. Department of Transportation, MSPB Docket No.

DE-3443-14-0483-I-1, Initial Appeal File (Semanek IAF), Tab 1 at 4; Cockrell

IAF, Tab 1 at 5.

¶4 The Albuquerque Center is classified as a Level 10 facility. G1CAF, Tab 2

at 48. In 2006, the National Air Traffic Controllers Association (NATCA), which

represents bargaining unit 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 18, 43, 48; Murtagh IAF, Tab 11 at 38. In

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

Center should have been upgraded in 2004. G1CAF, Tab 2 at 15, 35-39, 41.

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 39, 41.

¶5 Approximately 3 months later, on January 27, 2014, NATCA and the

agency entered into a settlement agreement resolving this grievance. G1CAF,

Tab 2 at 43-45. 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.

Id. at 43.

4

¶6 One of the appellants, Appellant Victor, was a bargaining unit employee

when he retired, and he received payments pursuant to the settlement for time that

he was employed as a bargaining unit employee but not for time that he was

employed as a manager. 3 Victor IAF, Tab 1 at 5, Tab 5 at 4-6; G1CAF, Tab 2

at 6, 7 n.4, 12-13. The remaining appellants did not receive any payments

because they were not in a NATCA bargaining unit when they retired. See, e.g.,

Semanek IAF, Tab 6 at 4; Cockrell IAF, Tab 7 at 4; Murtagh IAF, Tab 8 at 4; see

also G1CAF, Tab 2 at 46 (explaining that ineligibility for bargaining unit status is

indicated on the Standard Form 50s by the code 8888 in block 37).

¶7 Subsequently, 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.

G1CAF, Tab 2 at 48-49. The appellants did not receive payments because they

had retired prior to July 2014, and thus were not current managers. E.g.,

Semanek IAF, Tab 6 at 4; see G1CAF, Tab 2 at 49.

¶8 Between July and September 2014, the appellants filed Board appeals,

challenging the agency’s failure to upgrade the Albuquerque Center and increase

their pay. See, e.g., Mandeville v. Department of Transportation, MSPB Docket

No. DE-3443-14-0539-I-1, Initial Appeal File (Mandeville IAF), Tab 1 at 3, 5;

Wiley v. Department of Transportation, MSPB Docket No. DE-3443-14-0587-I-1,

Initial Appeal File (Wiley IAF), Tab 1 at 3, 5; Murtagh IAF, Tab 1 at 3, 5.

¶9 Appellant Wiley’s appeal was adjudicated individually, and the remaining

individual appeals were consolidated into four groups presided over by three

different administrative judges. See G1CAF, Tab 1; DOT FAA2 Albuquerue, NM

v. Department of Transportation, MSPB Docket No. DE-3443-14-0561-I-1,

Group 2 Consolidated Appeal File (G2CAF), Tab 1 at 1; DOT FAA3 Albuquerue,

3

The Standard Form 50s documenting the payments to Appellant Victor pursuant to the

settlement identified the nature of the action as an “individual cash award.” Victor

IAF, Tab 5 at 5-6.

5

NM v. Department of Transportation, MSPB Docket No. DE-3443-14-0566-I-1,

Group 3 Consolidated Appeal File (G3CAF), Tab 1; DOT FAA4 Albuquerue, NM

v. Department of Transportation, MSPB Docket No. DE-3443-14-0589-I-1,

Group 4 Consolidated Appeal File (G4CAF), Tab 1; Wiley IAF, Tab 10, Initial

Decision (Wiley ID).

¶10 After issuing orders to the appellants to establish Board jurisdiction over

their appeals and considering any responses, the administrative judges dismissed

the appeals for lack of jurisdiction without holding the requested hearings. 4 See,

e.g., Wiley IAF, Tab 1 at 2, Tab 5 (the orders requiring the appellants to establish

jurisdiction over their appeals); Victor IAF, Tab 1 at 2 (examples of the

appellants’ requests for hearings); G1CAF, Tab 4; G2CAF, Tab 1; G3CAF, Tab 3;

G4CAF, Tab 1; G1CAF, Tab 5, Initial Decision (G1-ID); G2CAF, Tab 3, Initial

Decision (G2-ID) ; G3CAF, Tab 4, Initial Decision (G3-ID) ; G4CAF, Tab 4,

Initial Decision (G4-ID); Wiley ID. The administrative judges found that the

Board lacks jurisdiction to enforce the arbitration decision or the settlement

agreement resolving the grievance. Wiley ID at 5; G1-ID at 5-6; G2-ID at 5-6;

G3-ID at 5-6; G4-ID at 5. They further found that the Board lacks jurisdiction to

review classification actions and that the appellants failed to raise a nonfrivolous

allegation that they suffered constructive demotions. 5 Wiley ID at 6-8; G1-ID

4

On review, several appellants argue that the administrative judges erred by failing to

grant their hearing requests. See, e.g., Victor v. Department of Transportation, MSPB

Docket No. DE-3443-14-0491-I-1, Petition for Review (Victor PFR) File, Tab 3 at 2-3.

However, the administrative judges properly found that they failed to raise a

nonfrivolous allegation that the alleged wrongdoing by the agency constituted any

matter appealable to the Board. See Wiley ID at 1-2, 4-9; G1CAF, Tab 5, Initial

Decision (G1-ID) at 1-2, 5-9; G2CAF, Tab 3, Initial Decision (G2-ID) at 2, 4-9;

G3CAF, Tab 4, Initial Decision (G3-ID) at 1-2, 5-9; G4CAF, Tab 4, Initial Decision

(G4-ID) at 2, 5-8. Accordingly, the appellants were not entitled to a jurisdictional

hearing. See Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 14 (2013).

5

The administrative judge presiding over the Group 2 cases also considered allegations

raised by three appellants that they retired because they reached mandatory retirement

age, or received a disability-based retirement, as potential claims that their retirements

were involuntary. See G2-ID at 8-9. On review, the appellants have not challenged the

6

at 6-8; G2-ID at 6-9; G3-ID at 6-8; G4-ID at 6-8. Finally, they found that the

appellants failed to establish jurisdiction over their claims that the agency’s

actions affected their retirement annuities because they did not allege that the

Office of Personnel Management (OPM) had issued a final decision. 6 Wiley ID

at 8; G1-ID at 8-9; G2-ID at 9; G3-ID at 8-9; G4-ID at 9.

¶11 Appellants Wiley and Van Sickle and the appellants from Groups 1 and 4

filed individual petitions for review. See, e.g., Wiley v. Department of

Transportation, MSPB Docket No. DE-3443-14-0587-I-1, Petition for Review

(Wiley PFR) File, Tab 4; Victor v. Department of Transportation, MSPB Docket

No. DE-3443-14-0491-I-1, Petition for Review (Victor PFR) File, Tab 3. The

Group 2 appellants, through their designated representative, filed a joint petition

for review. DOT FAA2 Albuquerque, NM v. Department of Transportation,

MSPB Docket No. DE-3443-14-0561-I-1, Group 2 Petition for Review (G2PFR)

File, Tab 3. The agency has filed separate consolidated responses to the petitions

for review filed by the appellants in Groups 1, 2, and 4, and to the petitions for

review filed by Appellant Wiley and Appellant Van Sickle, who was the sole

appellant in Group 3 that filed a petition for review. See DOT FAA Albuquerque,

NM v. Department of Transportation, MSPB Docket No. DE-3443-14-0519-I-1,

administrative judge’s finding that they failed to raise a nonfrivolous allegation that

their retirements were involuntary, and we discern no basis to disturb this well-reasoned

finding. See G2-ID at 8-9; DOT FAA2 Albuquerque, NM v. Department of

Transportation, MSPB Docket No. DE-3443-14-0561-I-1, Group 2 Petition for Review

(G2PFR) File, Tab 3.

6

Prior to issuing the initial decision, the administrative judge did not inform the

Group 4 appellants of the burdens and elements of proof for establishing jurisdiction

over a constructive demotion or retirement claim. See G4CAF, Tab 1; see also Burgess

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

must receive explicit information on what is required to establish an appealable

jurisdictional issue). However, this oversight was cured by the initial decision, which

provided this information. G4-ID at 6-8; see Mapstone v. Department of the Interior,

106 M.S.P.R. 691, ¶ 9 (2007) (the administrative judge’s failure to provide an appellant

with proper Burgess notice can be cured if the initial decision contains the notice that

was lacking, thus affording the appellant an opportunity to meet his burden on petition

for review).

7

Group 1 Petition for Review (G1PFR) File, Tab 3; G2PFR File, Tab 7; Van Sickle

v. Department of Transportation, MSPB Docket No. DE-3443-14-0514-I-1,

Petition for Review (Van Sickle PFR) File, Tab 7; DOT FAA4 Albuquerque, NM

v. Department of Transportation, MSPB Docket No. DE-3443-14-0589-I-1,

Group 4 Petition for Review (G4PFR) File, Tab 3; Wiley PFR File, Tab 6. The

agency has further requested that all of the appeals be consolidated on review.

See G1PFR File, Tab 1 at 4-6; G2PFR File, Tab 5 at 6-7; Van Sickle PFR File,

Tab 5 at 6-7; G4PFR File, Tab 1 at 4-5; Wiley PFR File, Tab 3 at 4-5.

¶12 As a preliminary matter, because the petitions for review raise similar

issues, we GRANT the agency’s motion to further consolidate the appeals to

address the petitions for 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); see also Prouty v. General Services

Administration, 122 M.S.P.R. 117, ¶ 1 (2014) (consolidating cases on review that

were adjudicated separately below). 7

DISCUSSION OF ARGUMENTS ON REVIEW

The appellants failed to raise a nonfrivolous allegation that they suffered an

adverse action.

¶13 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

7

In addition, we DENY the agency’s request to include the individual appeal filed by

Appellant Ronald Perino, MSPB Docket No. DE-3443-14-0447-I-1, in this

consolidation. See G1PFR File, Tab 1 at 4-6, 8. We will issue a separate decision with

regard to Appellant Perino.

8

(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

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).

¶14 On review, some appellants argue that the Board has jurisdiction over their

appeals because the agency’s failure to upgrade the facility constituted a “major

adverse action.” E.g., Victor PFR File, Tab 3 at 1, 4, 15, 18; Murtagh v.

Department of Transportation, MSPB Docket No. DE-3443-14-0485-I-1, Petition

for Review (Murtagh PFR) File, Tab 3 at 5, 8, 13, 15, 19-20, 22; Van Sickle PFR

File, Tab 3 at 8. The failure to upgrade a facility classification level, however, is

not an adverse action appealable to the Board. See 5 U.S.C. § 7512; 49 U.S.C.

§ 40122(j).

¶15 As they did below, several appellants also argue that they suffered a loss of

“grade and pay” due to the agency’s failure to upgrade the facility. See, e.g.,

Murtagh IAF, Tab 10 at 4-5; Murtaugh PFR File, Tab 3 at 8, 12; Mallen v.

Department of Transportation, MSPB Docket No. DE-3443-14-0496-I-1, Initial

Appeal File (Mallen IAF), Tab 5 at 5; Wiley IAF, Tab 8 at 4. The Board has

jurisdiction over appeals of reductions in grade and pay. 5 U.S.C. § 7512(3)-(4);

see Goodwin v. Department of Transportation, 106 M.S.P.R. 520, ¶ 11 (2007)

(covered FAA employees may appeal reductions in grade and pay to the Board).

Here, however, the appellants have not alleged that the agency actually reduced

their grade and pay, but instead allege that the agency was obligated to increase

9

their grade and pay by upgrading the facility and failed to do so. See, e.g., Victor

PFR File, Tab 3 at 4, 15; Murtagh PFR File, Tab 3 at 8, 19; Wiley IAF, Tab 8 at 4

(alleging that appellant Wiley suffered a “de facto” reduction in pay and grade);

Mallen IAF, Tab 5 at 5.

¶16 A failure to increase an employee’s basic pay generally does not constitute

an appealable reduction in pay. 8 Gaydar v. Department of the

Navy, 121 M.S.P.R. 357, ¶ 7 (2014) (the Board lacked jurisdiction over an

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

as an adjustment in connection with 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) (the denial of a promotion that would have

resulted in a pay increase is not an appealable reduction in pay). Accordingly, we

find that the appellants failed to raise a nonfrivolous allegation that they suffered

a reduction in pay.

¶17 Even without an actual reduction in grade, however, 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

8

The administrative judges did not address the appellants’ claims that they suffered a

reduction in pay. See Wiley ID at 4 n.2; G1-ID at 5 n.4; G2-ID at 5 n.4; G3-ID at 5 n.4;

G4-ID at 6-9. However, the failure to address this argument was not reversible error.

See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an

adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis

for reversal of an initial decision). Furthermore, although the administrative judges did

not inform the appellants of the burdens and elements of proof for establishing

jurisdiction over a reduction in pay claim, this oversight was cured by the agency’s

pleadings below, which provided this information. See Wiley IAF, Tab 9 at 7-8;

G1CAF, Tab 2 at 10; G2CAF, Tab 2 at 8-9; G3CAF, Tab 2 at 7-9; G4CAF, Tab 2 at 7-8

(the agency’s pleadings discussing reduction in pay claims); see also Mapstone,

106 M.S.P.R 691, ¶ 9 (an administrative judge’s failure to provide an appellant with

proper Burgess notice can be cured if the agency’s pleadings contain the notice that was

otherwise lacking). We modify the initial decisions to address the appellants’ reduction

in pay claims.

10

reassigned and that his former position was upgraded. 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).

¶18 In the present case, the appellants did not allege that they were reassigned,

but instead alleged that they retired from positions that were later upgraded, or

9

should have been upgraded prior to their retirement. See, e.g., Wiley PFR File,

Tab 4 at 7; Van Sickle PFR File, Tab 3 at 2, 7-8; Victor PFR File, Tab 3 at 9. In

the absence of any allegation that the appellants were reassigned, we agree with

the administrative judges that they failed to raise a nonfrivolous allegation of

jurisdiction over their constructive demotion claims. See Phillips v. Department

of the Air Force, 104 M.S.P.R. 229, ¶ 5 (2006) (an 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 (the Board lacked

jurisdiction over an appellant’s constructive demotion claim where he was not

reassigned when his former position was upgraded); see also Wiley ID at 7-8;

G1-ID at 7-8; G2-ID at 7-8; G3-ID at 7-8; G4-ID at 7-8.

The administrative judges correctly found that the Board lacks jurisdiction over

the appellants’ retirement annuity claims, and the appellants have not

demonstrated that the evidence that they submit in the first instance on review is

material.

¶19 On review, the appellants challenge the administrative judges’ findings that

the Board lacks jurisdiction to review their claims that the agency’s actions

reduced their retirement annuities. See, e.g., G2PFR File, Tab 3 at 11-14; Victor

PFR File, Tab 3 at 9-10; Murtagh PFR File, Tab 3 at 13-14; see also G1-ID

9

Because the appellants have not alleged that they were 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 positions.

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

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

upwards).

11

at 8-9; G2-ID at 9; G3-ID at 8-9; G-4 ID at 8; Wiley ID at 8 (the administrative

judges’ findings). 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.

¶20 Below, none of the appellants alleged that they received a final or

reconsideration decision from OPM. See, e.g., Semanek IAF, Tab 1 at 3

(indicating that whether the appellant received an OPM final decision was “not

applicable”). However, on review, Appellant Todd argues that he alleged below

that he made repeated requests to OPM for a final decision. G2PFR File, Tab 3

at 13. A review of Appellant Todd’s submissions below demonstrates that,

although he alleged that he called OPM numerous times to determine the correct

person to assist him, he alleged that he made, at most, one request for a decision

regarding his retirement annuity, which is insufficient to establish Board

jurisdiction over his appeal. See Todd v. Department of Transportation, MSPB

Docket No. DE-3443-14-0494-I-1, Initial Appeal File, Tab 8 at 6-7; see also

Fagone, 85 M.S.P.R. 49, ¶ 11 (finding a single request for a final decision from

OPM was insufficient to establish jurisdiction over an appellant’s retirement

appeal).

¶21 For the first time on review, multiple appellants allege that they received

final decisions from OPM after the initial decisions in these appeals were issued,

which they contend constitute new and material evidence. See, e.g., Wiley PFR

File, Tab 4 at 2, 12; MacKenzie v. Department of Transportation, MSPB Docket

No. DE-3443-14-0473-I-1, Petition for Review (MacKenzie PFR) File, Tab 3 at 5,

12; Ross v. Department of Transportation, MSPB Docket No. DE-3443-14-0540-

12

I-1, Petition for Review (Ross PFR) File, Tab 3 at 2-3, 12. 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 OPM letters would have been available had the appellants

exercised due diligence, and, in any event, are not material to the issue of Board

jurisdiction. See, e.g., G1PFR File, Tab 3 at 8-11; G4PFR File, Tab 3 at 8-11.

We agree with the agency that the appellants have failed to demonstrate that the

letters would establish Board jurisdiction over their retirement claims, and,

accordingly, the evidence is not material to the outcome of their appeals.

¶22 The letters from OPM that the appellants submit in the first instance on

review state that OPM is responding to the appellants’ requests to file

classification appeals, not to their requests for a final or reconsideration decision

on retirement matters. See, e.g., Wiley PFR File, Tab 4 at 12; MacKenzie PFR

File, Tab 3 at 12; Ross PFR File, Tab 3 at 12. The Board lacks jurisdiction to

review OPM decisions in classification appeals. 10 Saunders v. Merit Systems

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

the OPM letters do not establish jurisdiction over the appellants’ retirement

claims. 11

10

On review, the Group 1 appellants contend that the administrative judge erred in

construing their claims as classification appeals. See, e.g., Victor PFR File, Tab 3

at 10-14; Murtagh PFR File, Tab 3 at 14-18. However, we find any such error harmless

here because they have failed to raise a nonfrivolous allegation that their claims were

otherwise appealable to the Board. See Panter, 22 M.S.P.R. at 282 (an adjudicatory

error that is not prejudicial to a party’s substantive rights provides no basis for reversal

of an initial decision).

11

On review, some appellants allege that OPM misunderstood their requests. See, e.g.,

Ross PFR File, Tab 3 at 3. However, they did not submit copies of their requests or

13

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

¶23 On review, the Group 2 appellants argue that the Board has jurisdiction to

enforce the October 2013 arbitration decision. G2PFR File, Tab 3 at 15. The

Board lacks jurisdiction to either review or enforce an arbitration award that does

not address any matter appealable to the Board. Cloutterbuck v. Department of

Labor, 88 M.S.P.R. 1, ¶ 5 (2001); Hunter v. Department of the Air

Force, 83 M.S.P.R. 7, ¶¶ 10-11 (1999). Therefore, we agree with the

administrative judges that the Board lacks jurisdiction to enforce the arbitration

award. 12 See, e.g., G1-ID at 5; G2-ID at 5.

¶24 On review, the appellants argue that the agency’s failure to upgrade the

facility and increase their pay violated a memorandum of understanding (MOU)

between the agency and NATCA, 13 position classification standards, and other

agency laws, rules, or regulations. See, e.g., G2PFR File, Tab 3 at 7-8, 14-15;

Victor PFR File, Tab 3 at 2; Wiley PFR File, Tab 4 at 2. They further allege that

otherwise establish that the OPM letters were tantamount to a final decision on a

retirement matter.

12

The Group 1 appellants also argue that, because the arbitrator determined that the

Albuquerque Center should have been upgraded, the Board has jurisdiction to award

them back pay under the Back Pay Act. See, e.g., Victor PFR File, Tab 3 at 19.

However, the Board is only authorized to award back pay under the Back Pay Act when

adjudicating appeals within its jurisdiction. Mattern v. Department of the Treasury,

88 M.S.P.R. 65, ¶ 10 (2001), aff’d, 291 F.3d 1366 (Fed. Cir. 2002). Here, because the

Board lacks jurisdiction over the appeals, it has no authority to award the appellants

back pay. See Bell v. Department of Transportation, 39 M.S.P.R. 210, 213 (1988) (the

Board lacked jurisdiction to resolve back pay issues resulting from an arbitration

award).

13

In support of this argument, for the first time on review, the Group 2 appellants

submit a July 3, 2013 arbitration decision discussing the MOU, which was not part of

the record below in the Group 2 appeals. G2PFR File, Tab 3 at 19, 28-33. However,

the evidence was previously submitted in the Group 1 appeals, and was available before

the record closed on review in the Group 2 appeals. See Murtagh IAF, Tab 11.

Regardless, the Group 2 appellants have failed to demonstrate that the decision would

establish Board jurisdiction over their appeals, and, accordingly, it is not material to the

outcome. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R.

§ 1201.115(d).

14

the agency’s actions were criminal and that the agency acted in bad faith. See,

e.g., Wiley PFR File, Tab 4 at 9; Victor PFR File, Tab 3 at 2; Van Sickle PFR

File, Tab 3 at 7. 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) (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) (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).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decisions, as supplemented by this Final Order, constitute the

Board’s final decisions 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

15

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 appeal to

the 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

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.

16

APPENDIX A

DOT FAA Albuquerque, NM

DE-3443-14-0519-I-1

Eugene W. Victor DE-3443-14-0491-I-1

Jon Semanek DE-3443-14-0483-I-1

Kent T. MacKenzie DE-3443-14-0473-I-1

Michael J. Murtagh DE-3443-14-0485-I-1

Robert J. Mattmann DE-3443-14-0472-I-1

William H. Klein DE-3443-14-0484-I-1

17

APPENDIX B

DOT FAA2 Albuquerque, NM

DE-3443-14-0561-I-1

Angela J. Stalans DE-3443-14-0506-I-1

Anthony R. Bass DE-3443-14-0522-I-1

Bruce B. Connolly DE-3443-14-0511-I-1

Catherine Bass DE-3443-14-0523-I-1

Christopher A. Prince DE-3443-14-0508-I-1

David Cockrell DE-3443-14-0507-I-1

Holly L. Mings DE-3443-14-0517-I-1

Janet L. Mould DE-3443-14-0497-I-1

Jerry E. Todd DE-3443-14-0494-I-1

Joan Mallen DE-3443-14-0496-I-1

Larry D. Duke DE-3443-14-0505-I-1

Lois J. Warwick DE-3443-14-0495-I-1

Michael S. Szucs DE-3443-14-0518-I-1

Richard A. Underwood DE-3443-14-0498-I-1

Shannon L. Johnson DE-531D-14-0516-I-1

18

APPENDIX C

DOT FAA4 Albuquerque, NM

DE-3443-14-0589-I-1

Jeffrey A. Ross DE-3443-14-0540-I-1

Roger A. Mandeville DE-3443-14-0539-I-1