The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK R. ROBISON, DOCKET NUMBER
Appellant, DA-3443-17-0323-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: August 30, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alisa J. Robison, Luther, Oklahoma, for the appellant.
Captain Justin Edward Boerner, Esquire, and William David Vernon,
Esquire, Tinker Air Force Base, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his reassignment for lack of jurisdiction. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 affec ted 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. 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 On review, the appellant repeats his arguments that he was hired for a
permanent swing shift position, and he contests his reassignment to a day shift
position, which resulted in the loss of differential pay. Petition for Revie w (PFR)
File, Tab 1 at 3. Although he acknowledges that “management has a right to
reassign employees due to certain reasons such as workload,” he asserts that there
was no such workload justification concerning his reassignment. Id. at 3-4. The
administrative judge properly found that the Board lacks jurisdiction over the
appellant’s reassignment and that his alleged loss of differential pay did not meet
the statutory definition of a “reduction in pay” under 5 U.S.C. § 7512(4). Initial
Appeal File (IAF), Tab 11, Initial Decision (ID) at 3; see Fair v. Department of
Transportation, 4 M.S.P.R. 493, 495-96 (1981) (finding that a loss of premium
pay such as a shift differential is not an appealable adverse action); see also
5 C.F.R. §§ 752.401(a)(4), 752.402 (defining “pay” in this context as the rate of
basic pay fixed by law before any deductions and exclusive of additional pay of
any kind). The appellant stated in his initial appeal that he had not filed a
whistleblower reprisal complaint with the Office of Special Counsel, and he has
not alleged any facts below or on review that might implicate jurisdiction over an
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independent right of action appeal. IAF, Tabs 1, 6-7, 9-10; PFR File, Tabs 1, 4;
see 5 U.S.C. §§ 1221, 2302(b)(8)-(9). Finally, the appellant repeats his
complaints about the method by which the agency reassigned him, the agency’s
alleged failure to issue a Standard Form 50 effecting the reassignment , and the
agency’s alleged failure to address his administrative grievance. PFR File, Tab 1
at 3-4, Tab 4 at 4-5. As stated in the initial decision, to the extent that the
appellant argues that the agency committed harmful procedural error or a
prohibited personnel practice, such claims do not provide an independent basis
for finding Board jurisdiction absent an otherwise appealable action. ID at 4; see
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867,
871-73 (D.C. Cir. 1982); see also Penna v. U.S. Postal Service, 118 M.S.P.R.
355, ¶ 13 (2012).
¶3 The appellant submits certain evidence for the first time on review, namely
email correspondence concerning “dual encumbering” his current position for
mission-related agency purposes, dated more than 1 month prior to his initial
appeal. PFR File, Tab 4 at 10-12. He also resubmits the performance plan for the
E3 Aircraft Production Flight Chief-Swing Shift position, which he previously
had submitted into the record in response to the administrative judge’s
acknowledgment order. Id. at 6-9; IAF, Tab 6 at 15-18. The appellant offers no
explanation why he did not previously submit the email correspondence in any of
his four responses to the acknowledgment order, and he has failed to show that
the correspondence he submits on review is new or material evidence. See
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the
Board generally will not grant a petition for review based on “new” evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision); Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980) (stating that, under 5 C.F.R. § 1201.115, the Board generally will
not consider evidence submitted for the first time on review absent a showing that
it was unavailable before the record was closed despite the party’s due diligence).
4
The appellant has provided no argument or facts describing how the emails would
alter the jurisdictional finding in the initial decision, and we find that they are
immaterial to that threshold issue.
¶4 Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then yo u must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
6
race, color, religion, sex, national origin, or a disabling condition, you may b e
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.