The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE GRESZCZUK, DOCKET NUMBER
Appellant, DC-0752-14-0440-I-1
v.
DEPARTMENT OF HOMELAND DATE: November 5, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ralph E. Avery, Esquire, Washington, D.C., for the appellant.
Aaron Baughman, Esquire, Arlington, Virginia, 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
affirmed his reduction in pay band based upon his position’s downward
reclassification. Generally, we grant petitions such as this one only when: the
initial decision contains erroneous findings of material fact; the initial decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative 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, 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).
¶2 The appellant serves as a general engineer with the Department of
Homeland Security, Transportation Security Administration (TSA or agency) in
Arlington, Virginia. Initial Appeal File (IAF), Tab 5 at 21. The agency issued
the appellant notice on May 29, 2013, that it was proposing to reduce his position
from a K band to a J band following an agency-wide position classification
review. 2 Id. at 34-36. The appellant responded to the proposed reduction in pay
band in writing, id. at 29-33, and the agency issued him a written notice that it
was effecting the proposed reduction in pay band effective January 12, 2014, id.
at 21-28. In its final notice of position reclassification, the agency explained that
the appellant was entitled to 2 years of retained pay at the K pay band level. Id.
at 25.
¶3 The appellant filed the instant appeal challenging his reduction in pay band,
and he raised due process and harmful error affirmative defenses. IAF, Tab 1.
2
For the purposes of this appeal, a pay band is similar to a grade, and a reduction in
pay band is similar to a reduction in grade. See Solamon v. Department of Commerce,
119 M.S.P.R. 1, ¶ 15 (2012) (substituting the terms pay band for grade in a constructive
demotion appeal).
3
Following a hearing, the administrative judge issued an initial decision affirming
the agency’s action and denying the appellant’s affirmative defenses. IAF,
Tab 30, Initial Decision (ID). In her initial decision, the administrative judge
found that the agency acted in accordance with law in effecting the appellant’s
reduction in pay band by notifying the appellant of the proposal in advance,
providing him with copies of the supporting materials, and giving him an
opportunity to respond. ID at 11-12. The administrative judge further found that
the appellant failed to prove either of his affirmative defenses. Specifically, the
administrative judge rejected the appellant’s argument that the agency denied him
due process when it previously transferred him to the position he held when the
agency conducted the classification review and proposed the reduction in pay
band. ID at 12-14. The administrative judge explained that reassignments
generally are not appealable to the Board unless accompanied by an adverse
action, and that the appellant failed to prove that his 2011 transfer involved either
a reduction in pay or pay band. ID at 12. Based on this finding, the
administrative judge found that she could not review the circumstances of the
appellant’s 2011 transfer, and she further found that he could not establish that
the agency deprived him of due process in connection with his reduction in pay
band based on the agency’s prior actions. ID at 12-13. Finally, the
administrative judge found that the appellant failed to prove any other due
process violation based on lack of notice or an opportunity to respond, and that he
also failed to prove harmful procedural error in connection with his position’s
reclassification. ID at 11-14.
¶4 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. On review, the appellant argues that the
administrative judge improperly defined the issues in his appeal and erred in
excluding the circumstances surrounding his 2011 transfer from consideration.
Id. at 13-17. The appellant asserts that, had the agency properly classified his
2011 transfer as a reassignment, he could have refused the reassignment, and that
4
the agency would have had to initiate removal proceedings against him for failing
to accept a directed reassignment. Id. at 15. The appellant maintains that, had
this occurred, he could have challenged the nature of his 2011 transfer before the
Board, and he would not have held the position of employment he did at the time
of the agency’s classification review. Id. at 28. The agency has filed an
opposition in response to the petition for review, arguing that the administrative
judge properly defined the issues on appeal and correctly affirmed the decision to
reduce the appellant’s pay band based on the agency-wide reclassification
process. PFR File, Tab 3 at 11. The appellant has filed a reply in further support
of his petition for review. PFR File, Tab 4. 3
¶5 As an employee of the TSA, the appellant’s appeal is governed by the
Aviation and Transportation Security Act (ATSA). See Quinlan v. Department of
Homeland Security, 118 M.S.P.R. 362, ¶¶ 4, 8 (2012), overruled on other grounds
by Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 43 n.8 (2015). Under
the ATSA, TSA employees are covered by the personnel management system that
is applicable to employees of the Federal Aviation Administration
under 49 U.S.C. § 40122, except to the extent that the Administrator of TSA
modifies that system as it applies to TSA employees. Quinlan, 118 M.S.P.R. 362,
¶ 8 (citing 49 U.S.C. § 114(n)). The Board has found that it has jurisdiction over
reductions in grade under 49 U.S.C. § 40122(g)(3) where an appellant does not
receive grade retention and such an action was appealable to the Board as of
March 31, 1996. Id. We thus agree with the administrative judge that the
appellant’s reduction in pay band is appealable to the Board. ID at 4-5.
¶6 The Board’s review of a reduction in pay band or grade, however, is quite
limited. See Bobie v. Department of the Army, 105 M.S.P.R. 592, ¶ 10 (2007). In
3
The appellant has submitted an unopposed motion to file an amended reply to include
the full text of a footnote, as only a portion of this footnote appeared in his original
reply. PFR File, Tab 5. With his motion, the appellant attached his amended reply
brief that includes the full text of the footnote. Id. We have considered the appellant’s
amended reply brief that was filed with his motion.
5
cases where an appellant has suffered a reduction in grade due to a downward
reclassification decision, the Board’s review of the agency’s action is limited to
whether the agency’s action in effecting the reduction in grade was in accordance
with law. See Quinlan, 118 M.S.P.R. 362, ¶ 9. In conducting such an
assessment, the Board will look to whether the agency adhered to its internal
management directives in determining whether its actions were taken in
accordance with law. Id.; see Gibson v. Department of the Navy, 20 M.S.P.R.
274, 277 (1984) (finding that the scope of review in an appeal of a reduction in
grade due to a downward reclassification is limited to determining whether the
agency showed that the reclassification decision comported with law).
¶7 We agree with the administrative judge that the agency demonstrated it
effected the appellant’s reduction in pay band in accordance with law. The
agency submitted preponderant evidence below that, consistent with its internal
policies, it provided the appellant advanced notice of its proposed reclassification
of his position and corresponding reduction in pay band, a copy of the materials
in support of its proposal, and an opportunity to reply. IAF, Tab 5 at 21-60;
Quinlan, 118 M.S.P.R. 362, ¶ 10. The appellant has not specifically challenged
these findings on review, and we concur with the administrative judge that the
agency complied with its internal policies and directives when it proposed the
appellant’s reduction in pay band. ID at 11-12. Accordingly, under the Board’s
limited review of a reduction in grade based on a downward reclassification
decision, we find that the agency’s action comports with law and was properly
affirmed by the administrative judge. See Quinlan, 118 M.S.P.R. 362, ¶¶ 9-10;
Gibson, 20 M.S.P.R. at 277.
¶8 The appellant devotes a substantial portion of his arguments on review to
the propriety of the agency’s previous decision to transfer him to the position he
held when the agency proposed his reclassification. PFR File, Tab 1 at 10-17.
On review, he asserts that the administrative judge erred in framing the issues on
appeal when she excluded the circumstances of this transfer from consideration
6
and when she precluded him from introducing evidence concerning this transfer
prior to the hearing. Id. at 11-12; IAF, Tab 20.
¶9 We find the appellant’s arguments lack merit in this regard. The appellant
filed the instant appeal in February 2014, after he received the agency’s final
decision reclassifying his position and reducing it from a K pay band to a J pay
band. See IAF, Tab 1; IAF, Tab 5 at 21-28. The only operative adverse action at
issue in this appeal is the reduction in pay band based on that reclassification
decision. The appellant has offered no argument or explanation as to why he
did not initiate an earlier challenge to his 2011 transfer. More importantly, as
explained by the administrative judge, the Board does not have jurisdiction over a
reassignment that does not involve an appealable adverse action. ID at 12-13
(citing Brown v. Department of Justice, 20 M.S.P.R. 524, 527 (1984)). Here,
there is no evidence that the appellant’s 2011 transfer was either accompanied by
a corresponding reduction in pay or grade, or was taken in connection with the
instant reduction in pay band, thus making it part of the same appealable action
under a unified penalty theory. See Welch v. Department of
Agriculture, 37 M.S.P.R. 18, 21 (1988) (explaining that the Board would have
jurisdiction to consider a reassignment that accompanies or implements an
appealable adverse action as a portion of the penalty imposed by the agency). We
further agree with the administrative judge that the Board is without the authority
to consider either the merits of the appellant’s 2011 transfer or the merits of the
reclassification decision that lead to the reduction in pay band at issue in this
appeal. See Bobie, 105 M.S.P.R. 592, ¶ 10; Gibson, 20 M.S.P.R. at 277.
¶10 We also find no support for the appellant’s theory that the agency
committed harmful procedural error in effecting his 2011 transfer, which in turn
caused the agency to not follow its internal processes for effecting the reduction
in pay band in dispute. PFR File, Tab 1 at 18-22. We emphasize that the action
at issue in this appeal is the agency’s January 2014 decision to reduce the
appellant’s position classification from a K pay band to a J pay band. Pursuant
7
to 5 U.S.C. § 7701(c)(2)(A), an agency’s action may not be sustained where an
appellant proves “harmful error in the application of the agency’s procedures at
arriving at such a decision.” We find that, because the appellant focuses his
allegations of harmful error on an agency action not before the Board in this
appeal, he has failed to prove that the agency committed harmful procedural error
warranting the reversal of the reduction in pay band. 4 See Osokow v. Office of
Personnel Management, 25 M.S.P.R. 319, 325 (1984).
¶11 Finally, we have considered the appellant’s argument that he was denied
due process. To the extent the appellant alleges that his 2011 transfer violates
due process, PFR File, Tab 1 at 15-17, the circumstances of his 2011 transfer
are not before the Board in this appeal. We agree with the administrative judge,
moreover, that the agency provided the appellant advanced written notice of its
proposed reduction in pay band and an opportunity to respond, thus adhering to
the tenets of due process. See Flores v. Department of Defense, 121 M.S.P.R.
287, ¶ 10 (2014); ID at 13.
¶12 For the aforementioned reasons, the appellant’s petition for review is denied
and the administrative judge’s initial decision sustaining the appellant’s reduction
in pay band is affirmed.
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:
4
We also have reviewed the agency’s internal processes and find that they do not
require the agency to confirm that the employee has been properly transferred into a
position before the agency can reclassify that position and effect a reduction in pay
band. IAF, Tab 5 at 61-68. We thus agree with the administrative judge that the
appellant has not demonstrated harmful procedural error regarding the application of
the agency’s reclassification process. ID at 12.
8
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
Circuit. The Merit Systems Protection Board neither endorses the services
9
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.