Opinion

Kenneth Keith v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Mar 15, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KENNETH L. KEITH, DOCKET NUMBER

Appellant, DE-3443-18-0128-I-1

DEPARTMENT OF THE INTERIOR, DATE: March 15, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Al Arendt , Esquire, Pierre, South Dakota, for the appellant.

Rachel Wieghaus , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his appeal of an alleged reduction in pay or grade, among other alleged

personnel actions, 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 on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. 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).

The appellant is a WS-7 Maintenance Mechanic Supervisor with the

agency’s Bureau of Indian Affairs. Initial Appeal File (IAF), Tab 1 at 8. In

January 2018, he filed this appeal regarding three alleged personnel actions. Id.

at 7. First, he alleged that he suffered a reduction in pay or grade because from

May 2013 to May 2017 he performed as the Acting Facility Manager and did not

have his pay or grade adjusted upward during that period. Id. at 8. Second, he

alleged a denial of a within-grade increase (WIGI), although he provided no

details regarding the allegation. Id. at 7. Third, he alleged that, in December

2017, the agency denied his request for reimbursement of a travel voucher. Id.

at 7, 27. The appellant additionally included with his appeal a timeline of events

concerning alleged discrimination based on his color, age, national origin, sex,

and genetics, and his filing of complaints with the Equal Employment

Opportunity Commission. Id. at 19-33.

The appellant argues that because he was “promoted” to Facility Manager,

he should have received the pay associated with that position and asserts that he

was “effectively demoted” when his detail ended. Petition for Review (PFR)

File, Tab 1 at 5. However, he has acknowledged that he was only designated as

the Acting Facility Manager until such time as the position of Facility Manager

could be advertised and selected. IAF, Tab 1 at 6, 8. As the administrative judge

correctly found, an employee is only entitled to the rights and salary of the

position to which he has been appointed by one having proper authority to do so.

IAF, Tab 9, Initial Decision (ID) at 4; see Julius v. Department of the Army,

35 M.S.P.R. 130, 133 (1987), aff’d, 852 F.2d 1293 (Fed. Cir. 1988) (Table). The

appellant has not alleged that his official position of record ever changed during

the course of the events at issue. To the extent he alleges that his official position

of record should have been changed to Facility Manager or Acting Facility

Manager, the Board generally lacks jurisdiction to review an appellant’s claim

concerning the proper classification of his position, Ellis v. Department of the

Navy, 117 M.S.P.R. 511, ¶ 10 (2012), or his nonselection for a promotion, Harrell

v. U.S. Postal Service, 112 M.S.P.R. 492, ¶ 11 (2009). Accordingly, we find the

appellant’s argument to be without merit. 2

On review, the appellant attaches two letters from his supervisor, dated

May 9, 2017, and March 19, 2018, stating that she had designated him as the

Acting Facility Manager. PFR File, Tab 1 at 17, Tab 2 at 6. The earlier of these

letters was already a part of the record below. IAF, Tab 1 at 12. These letters do

not warrant a different outcome in this appeal because, as discussed above, the

appellant’s official position of record never changed during his detail.

The appellant also argues on review, for the first time, that the agency

proposed to suspend him and thereby effectively reduced his rate of basic pay.

PFR File, Tab 1 at 4-5. He attaches to his petition for review a May 31, 2017

memorandum proposing to suspend him for 5 days. Id. at 7-16. In his pleading,

the appellant states that the proposal was “eventually incorporated herein,”

To the extent that the appellant argues that he suffered a constructive demotion, we

clarify that to establish the Board’s jurisdiction over such a claim, an appellant must

nonfrivolously allege that: he was reassigned without a loss of grade or pay; his former

position was upgraded; the upgrade resulted from a new or corrected classification

standard; and he met the legal and qualification requirements for promotion to the

upgraded position. Marcheggiani v. Department of Defense, 90 M.S.P.R. 212, ¶ 7

(2001). The appellant failed to allege that any of these elements are present. Thus, to

the extent that he intended to argue that he was constructively demoted, we find that he

failed to nonfrivolously allege the Board’s jurisdiction over such a claim.

suggesting that the agency had, in fact, imposed the 5-day suspension. Id. at 5.

At no point, however, does the agency state that it was reducing his rate of basic

pay. Id. at 7-16.

The Board generally lacks jurisdiction over appeals of suspensions of

14 days or fewer. Lefavor v. Department of the Navy, 115 M.S.P.R. 120, ¶ 5

(2010). The Board may nonetheless adjudicate certain personnel actions it

generally lacks jurisdiction over when an appellant files either an individual right

of action appeal, Eilinsfeld v. Department of the Navy, 79 M.S.P.R. 537, 541

(1998), or an appeal under the Uniformed Services Employment and

Reemployment Rights Act, Bambl v. Department of the Treasury, 113 M.S.P.R.

55, ¶ 9 (2010). The appellant has not filed such an appeal. Thus, even if the

agency ultimately suspended the appellant for 5 days without pay, the Board is

without jurisdiction to adjudicate the action as a suspension.

Employees have the right to appeal a reduction in pay. 5 U.S.C.

§§ 7512(4), 7513(d). “Pay” is defined as “the rate of basic pay fixed by law

or administrative action for the position held by an employee.” 5 U.S.C.

§ 7511(a)(4). For prevailing rate employees such as the appellant, IAF, Tab 1

at 6, the rate of basic pay means the scheduled rate of pay plus any night or

environmental differential, 5 C.F.R. § 532.401. The appellant cites no authority

for his argument that his suspension “effectively” reduced his rate of basic pay,

PFR File, Tab 1 at 4-5, and we are aware of no authority for such a proposition.

Accordingly, we find his argument to be without merit.

An appellant must receive explicit information on what is required to

establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). However, the failure to provide an

appellant with proper Burgess notice in an acknowledgment order or show cause

order can be cured if the initial decision itself puts the appellant on notice of what

he must do to establish jurisdiction so as to afford him the opportunity to meet his

jurisdictional burden for the first time on review. Milam v. Department of

Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005). Here, the administrative judge

dismissed the appellant’s WIGI denial claim for lack of jurisdiction, ID at 6,

without first providing him proper jurisdictional notice on the claim, IAF, Tab 2.

But the initial decision itself informed the appellant what he must do to establish

the Board’s jurisdiction over his claim, ID at 5-6, and therefore cured the error,

see Fleming v. Department of Labor, 97 M.S.P.R. 341, ¶ 9 (2004). On review,

the appellant still fails to meet his jurisdictional burden on his WIGI denial

claim. 3 PFR File, Tabs 1-2.

In any event, the Board lacks jurisdiction over WIGI denials to prevailing

rate, or wage grade, employees. Hall v. Department of the Navy, 73 M.S.P.R.

251, 253-54 (1997). As the administrative judge found, it is undisputed that the

appellant is such an employee. ID at 6; IAF, Tab 1 at 1, 6, 8. Accordingly, the

lack of jurisdictional notice did not prejudice the appellant’s substantive rights.

See Labinski v. U.S. Postal Service, 88 M.S.P.R. 125, ¶ 6 (2001) (finding that the

lack of jurisdictional notice did not prejudice the appellant’s substantive rights

because the undisputed record evidence plainly showed that the Board did not

have jurisdiction over the appeal).

Although not raised on review, we acknowledge that the appellant indicated

in his initial appeal form that he filed a complaint with the Office of Special

Counsel (OSC) on September 8, 2017. IAF, Tab 1 at 34. However, the appellant

failed to provide the date of OSC’s decision or termination of investigation, or

attach copies of his complaint and OSC’s termination of investigation letter, as

requested in the initial appeal form. Id. He has provided no information about

what his purported OSC complaint concerned. Neither below nor on review has

Indeed, on review the appellant fails to even mention his claims regarding the WIGI

denial, the unreimbursed travel voucher, or unlawful discrimination and retaliation for

past equal employment opportunity activity, PFR File, Tabs 1-2, all of which claims the

administrative judge found the Board lacked jurisdiction over, ID at 5-7. We see no

reason to disturb these findings.

he provided any other indication that he intended to file this case as an individual

right of action appeal. Accordingly, we decline to adjudicate this case as such.

NOTICE OF APPEAL RIGHTS 4

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 below 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).

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:

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.

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 that 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 you 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

race, color, religion, sex, national origin, or a disabling condition, you may be

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

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. 5 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