Karl Brookins v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2023 MSPB 3

Docket No. DE-531D-18-0028-I-1

Karl Brookins,

Appellant,

v.

Department of the Interior,

Agency.

January 10, 2023

Karl Brookins, Fort Collins, Colorado, pro se.

Deborah E. Yim, Esquire, Lakewood, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

OPINION AND ORDER

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

dismissed his appeal of his within-grade increase (WIGI) denial for lack of

jurisdiction. For the reasons discussed below, we GRANT the appellant’s

petition for review, VACATE the initial decision, and REMAND the case to the

Denver Field Office for further adjudication.

BACKGROUND

¶2 The appellant was a Fishery Biologist for the agency. Initial Appeal File

(IAF), Tab 1 at 8. On September 3, 2017, he became eligible for a WIGI from a

2

GS-12 step 5 to a step 6. Id. On September 15, 2017, the agency informed him

that it was denying his WIGI because he received a “minimally successful” rating

for the rating period of October 1, 2015, through September 30, 2016, and

completed a performance improvement plan that resulted in his performance

rating being raised from “unsatisfactory” to “minimally successful” on one of his

critical elements. 1 Id. at 8-9, 11-12. In the notice of his WIGI denial, the agency

informed him that he could request reconsideration of its determination, which he

did on September 30, 2017. IAF, Tab 1 at 9, Tab 4 at 28-38. On October 10,

2017, the agency denied his request for reconsideration. IAF, Tab 1 at 13.

¶3 On October 22, 2017, the appellant timely filed an initial appeal with the

Board, alleging that, in denying his WIGI and request for reconsideration, the

agency committed prohibited personnel practices (PPPs) under 5 U.S.C.

§ 2302(b)(2) and (b)(12). Id. at 5. The administrative judge conducted a

preliminary status conference and subsequently issued a summary and order

questioning the Board’s jurisdiction over the appellant’s WIGI denial b ecause the

appellant was a bargaining unit employee, WIGI denials were subject to the

negotiated grievance procedures of the applicable collective bargaining agreement

(CBA), and the appellant had not alleged discrimination after a final decision, as

required to elect a Board appeal under 5 U.S.C. § 7121(d). IAF, Tab 8 at 1-3.

The administrative judge ordered the appellant to submit evidence and argument

to establish that the Board had jurisdiction over the agency’s denial of his WIGI.

Id. at 3. The appellant responded to the administrative judge’s order , arguing

among other things that 5 U.S.C. § 7121(g) allows for an appeal directly to the

Board when the aggrieved employee alleges a violation of 5 U.S.C.

1

The memorandum denying the appellant’s WIGI referenced “Critical Element 5,” but

the appellant only had four critical elements, the fourth of which was rated “minimally

successful.” IAF, Tab 1 at 8, 11.

3

§ 2302(b)(2)-(14) in connection with an action covered under negotiated

grievance procedures. IAF, Tab 9 at 4-5.

¶4 On December 19, 2017, the administrative judge issued an initial decision

dismissing the appeal for lack of jurisdiction without a hearing. IAF, Tab 12,

Initial Decision (ID) at 1. The administrative judge found that the appellant was

a bargaining unit employee who was subject to the grievance procedures set forth

in the CBA. ID at 4. He additionally found that the denial of a WIGI is not

identified on the list of matters excluded from the grievance process , and thus the

CBA allowed for grievances of such denials. Id. Under these circumstances, the

administrative judge found that, if “the [CBA] provides for review of WIGI

denials under the grievance procedure, then that procedure is exclusive.” ID at 3

(citing 5 C.F.R. § 531.410(d)). The administrative judge stated that the only

exception to this rule is when the employee alleges discrimination under 5 U.S.C.

§ 2302(b)(1). ID at 3-4 (citing 5 U.S.C. § 7121(d)). Even in the presence of a

claim of discrimination, the administrative judge continued, the employee must

first pursue the matter through the negotiated grievance procedures and receive a

final decision on the matter in order to then pursue the matter before the Board.

ID at 4. The administrative judge found that, absent an allegation of

discrimination, the appellant’s only avenue of recourse was through the

negotiated grievance procedure, and thus the Board lack s jurisdiction to hear the

matter, regardless of his claim of PPPs under 5 U.S.C. § 2302(b)(2) and (b)(12).

ID at 4-6.

¶5 The appellant has filed a petition for review, arguing among other things

that the grievance procedures are not his exclusive remedy because he has alleged

PPPs under 5 U.S.C. § 2301(b)(2) and (12), and therefore, he may elect a direct

4

Board appeal under 5 U.S.C. § 7121(g). 2 Petition for Review (PFR) File, Tab 1.

The agency has filed a response. PFR File, Tab 3.

ANALYSIS

¶6 An employee occupying a permanent position under the General Schedule

earns a periodic increase in pay, or WIGI, as long as his performance is at an

acceptable level of competence. 5 U.S.C. § 5335(a). An agency’s decision to

deny a WIGI is appealable to the Board under 5 U.S.C. § 5335(c), provided that

the employee first requests reconsideration from the agency and the agency

affirms the denial. Priselac v. Department of the Navy, 77 M.S.P.R. 332, 335

(1998). Nevertheless, if a WIGI denial is also grievable under a negotiated

grievance procedure, then it will be subject to the election of remedies provisions

of 5 U.S.C. § 7121. Generally, if an employee is covered by a CBA that includes

WIGI denials in its negotiated grievance procedures, then those pr ocedures are

the exclusive procedures for appealing the denial. 5 U.S.C. § 7121(a)(1). Under

the Civil Service Reform Act of 1978 as originally enacted, the only exception to

this general rule was found in 5 U.S.C. § 7121(d), for cases in which the

employee alleges that he has been affected by a PPP under 5 U.S.C.

§ 2302(b)(1). 3 Pub. L. No. 95-454, § 7121, 92 Stat. 1111. It is undisputed that

this exception does not apply to the instant appeal because the appellant has not

alleged that the agency subjected him to a PPP under 5 U.S.C. § 2302(b)(1). PFR

File, Tab 1 at 6. However, in 1994, Congress amended 5 U.S.C. § 7121 by

adding a new subsection (g) and providing another exception for cases in which

employees allege that they have been affected by a PPP other than under 5 U.S.C.

2

The appellant’s petition for review raises numerous other arguments in support of

jurisdiction; however, because we find that his argument concerning the application of

5 U.S.C. § 7121(g) warrants remand, we decline to reach those arguments at this time.

3

Another exception exists for removals and other adverse actions that are otherwise

appealable under 5 U.S.C. chapters 43 or 75. 5 U.S.C. § 7121(a)(1), (e).

5

§ 2302(b)(1). Pub. L. No.103–424, § 9, 108 Stat. 4361. That is the exception

that applies to the instant appeal.

¶7 Although this statute was amended in 1994, the Board has not yet issued a

precedential decision addressing the section 7121(g) exception as applied to

appeals of WIGI denials under 5 U.S.C. § 5335(c). 4 In finding that the

appellant’s only avenue to the Board was through 5 U.S.C. § 7121(d), the

administrative judge considered the Board’s nonprecedential decision in

Silveria v. Department of Veterans Affairs, MSPB Docket No. SF-531D-16-0042-

I-1, Final Order (Jan. 6, 2017). 5 ID at 4. However, the facts in Silveria, which

included allegations of PPPs under 5 U.S.C. § 2302(b)(1), indicated that 5 U.S.C.

§ 7121(d) was the applicable exception in that case. Silveria, Final Order, ¶¶ 5,

9, 12-13, 18. The Board did not cite or discuss 5 U.S.C. § 7121(g) because that

exception was not implicated by the facts of that particular case—not because that

exception is unavailable as a general matter.

¶8 Nevertheless, in reaching its decision, the Board in Silveria cited to Hunt v.

Department of Veterans Affairs, 88 M.S.P.R. 365, ¶ 6 (2001), in which the Board

held in relevant part as follows:

If an employee is covered by a CBA containing a grievance

procedure that does not exclude WIGI withholdings from its

coverage, and if the employee does not allege prohibited

discrimination, she cannot appeal an agency’s decision to withhold a

4

The U.S. Court of Appeals for the Federal Circuit has issued one nonprecedential

decision that provides some helpful guidance. Weslowski v. Department of the Army,

217 F.3d 854, *3 (Fed. Cir. 1999) (Table) (holding that 5 U.S.C. § 7121(g) is an

exception to the general rule set forth in 5 U.S.C. § 7121(a)(1) that the negotiated

grievance procedure is the exclusive administrative procedure for resolving disputes

that fall within a CBA’s coverage). Although Weslowski is not binding on the Board,

we have considered it for its persuasive value. See Jennings v. Social Security

Administration, 123 M.S.P.R. 577, ¶ 25 n.2 (2016).

5

The administrative judge recognized that Silveria was not a binding decision, but he

considered it for its persuasive value. ID at 4 n.3; see 5 C.F.R. § 1201.117(c)(2).

6

WIGI; instead, the negotiated grievance procedure is the exclusive

means for resolving the dispute.

This holding seems to suggest that, for a WIGI denial covered under a negotiated

grievance procedure, the only avenue of Board review is through 5 U.S.C.

§ 7121(d), to the exclusion of 5 U.S.C. § 7121(g). To the extent that it does,

Hunt is overruled. 6 We also overrule other Board cases issued after the

enactment of 5 U.S.C. § 7121(g), such as Caracciolo v. Department of the

Treasury, 105 M.S.P.R. 663, ¶ 8 (2007), to the extent those cases state that WIGI

denials, if covered by a CBA, are not appealable to the Board even when an

aggrieved employee has alleged a PPP other than a PPP under 5 U.S.C.

§ 2302(b)(1).

¶9 The Board in Silveria also cited to the Office of Personnel Management’s

regulation at 5 C.F.R. § 531.410(d), which states as follows:

When a negative [WIGI] determination is sustained after

reconsideration, an employee shall be informed in writing of the

reasons for the decision and of his or her right to appeal the decision

to the Merit Systems Protection Board. However, for an employee

covered by a collective bargaining agreement a reconsideration

decision that sustains a negative determination is only reviewable in

accordance with the terms of the agreement.

This regulation accurately sets forth the general rule of 5 U.S.C. § 7121(a)(1), but

it does not account for either of the exceptions to that rule that allow for a direct

Board appeal where a PPP has been alleged, i.e. 5 U.S.C. § 7121(d) and (g). To

the extent that this regulation is inconsistent with the statute, the statute controls.

See Johnson v. Department of Justice, 71 M.S.P.R. 59, 67 (1996) (finding that the

provisions of a statute will prevail in any case in which there is a conflict

between a statute and a regulation).

6

In support of this holding, the Board in Hunt relied on Espenschied v. Merit Systems

Protection Board, 804 F.2d 1233, 1236-37 (Fed. Cir. 1986). However, Espenschied

was issued prior to the enactment of 5 U.S.C. § 7121(g) in 1994.

7

¶10 Turning to the facts of this case, the appellant is a bargaining unit employee

covered by a CBA with a negotiated grievance procedure that includes WIGI

denials. IAF, Tab 4 at 13. Prior to filing an appeal with the Board, he requested

reconsideration of the agency’s denial and the agency upheld the denial. Id.

at 26-38. The appellant then timely filed an appeal with the Board, alleging that

the WIGI denial constituted a PPP under 5 U.S.C. § 2302(b)(2) and (b)(12). IAF,

Tab 1 at 5. There is nothing in the record to suggest that the appellant previously

filed a grievance through the CBA or a complaint with the Office of Special

Counsel regarding this WIGI denial. 7 Therefore, it appears that the appellant may

have made a valid election under 5 U.S.C. § 7121(g) to file an appeal directly

with the Board, and we find that the appeal must be remanded for further

adjudication of the issue.

¶11 We note that, to this point, the appellant has made only bare assertions of

PPPs under 5 U.S.C. § 2302(b)(2) and (b)(12). IAF, Tab 1 at 5. Neither party

has briefed whether the appellant is required to do anything more to establish th e

7

On his initial appeal form, the appellant checked “Yes” next to the question of

whether, “[w]ith respect to the agency personnel action or decision you are appeal ing,

have you, or has anyone on your behalf, filed a grievance under a negotiated grievance

procedure provided by a [CBA]?” IAF, Tab 1 at 4. However, in response to the

following question, he stated that he filed said grievance on December 15, 2016, which

was nearly 9 months before the WIGI denial at issue here. Id. Moreover, in the

agency’s “declaration of collective bargaining agreement,” the agency stated in no

unclear terms that “[t]he Appellant has not grieved this action.” IAF, Tab 4 at 13.

Although it is not material to the outcome of this appeal, we note our disagreement with

the administrative judge that an election to proceed before the Board under 5 U.S.C.

§ 7121(d) requires that the employee first obtain a final decision on a grievance. ID

at 4. If the employee first elects to proceed with a grievance, the statute does not

preclude Board review of the final decision under 5 U.S.C. § 7702(a), but the actual

initial election under subsection (d) is between a negotiated procedure and any available

statutory procedure, including an appeal directly to the Board. See Avila v. Defense

Logistics Agency, 21 M.S.P.R. 91, 92-93 (1984).

8

Board’s jurisdiction over his appeal. 8 Regardless, the appellant was not afforded

notice that he needed to do anything further regarding his PPP allegations to

establish jurisdiction. See 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).

In the absence of briefing by the parties and adequate Burgess notice for the

appellant, we will not decide this issue on the current record. The administrative

judge and the parties can address these issues on remand as necessary.

¶12 The administrative judge should also rule on the appellant’s three

objections to the Order and Summary of Telephonic Status Conference. IAF,

Tab 11 at 4-5. Because they are not material to our holding here, we decline to

rule on them at this time. The appellant’s Request for Order to Preserve

Computer Files is denied because he has not alleged or shown that the computer

files contain information relevant to the issues in this appeal. PFR File, Tab 4

at 4; see 5 C.F.R. § 1201.72(a). However, in light of the clarified jurisdictional

8

The Board has held that, to elect its procedure under 5 U.S.C. § 7121(d), which

requires an allegation of discrimination under 5 U.S.C. § 2302(b)(1), the discrimination

allegation need not be nonfrivolous. See Farooq v. Corporation for National &

Community Service, 109 M.S.P.R. 73, ¶ 9 (2008); Cooper v. Department of Defense,

98 M.S.P.R. 313, ¶¶ 9-11 (2005); see also 5 C.F.R. § 1201.4(s) (defining “nonfrivolous

allegation”). Moreover, the Board has held on occasion that, absent express instruction

from Congress, the exceptions set forth in 5 U.S.C. § 7121(d), (e), and (g) should be

treated the same. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 16 (2013).

However, it is potentially significant that appeals under section 7121(d) are brought

under 5 U.S.C. § 7702, whereas appeals under section 7121(g) are brought under

5 U.S.C. § 7701. Cooper, 98 M.S.P.R. 313, ¶ 10. Section 7702(a)(1), unlike

section 7701, specifically states that the Board “shall . . . decide both the issue of

discrimination and the appealable action,” and section 7702 does not differentiate

between frivolous and nonfrivolous discrimination claims. 5 U.S.C. § 7702; Bennett v.

National Gallery of Art, 79 M.S.P.R. 285, 289 (1998).

9

issue, the administrative judge should afford the parties another opportunity to

initiate discovery. 9

ORDER

¶13 For the reasons discussed above, we remand this case to the Denver Field

Office for further adjudication in accordance with this Opinion and Order.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

9

The administrative judge previously stayed discovery pending a jurisdictional ruling.

IAF, Tab 8 at 3. If the administrative judge deems it appropriate, he may initially limit

discovery to the jurisdictional issue.