Opinion

Dion Woodward v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Apr 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DION CHANNING WOODARD, DOCKET NUMBER

Appellant, DC-3443-22-0500-I-1

DEPARTMENT OF THE NAVY, DATE: April 11, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dion Channing Woodard , Germantown, Maryland, pro se.

David L. Mannix , Esquire, Falls Church, Virginia, 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 classification appeal 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 the facts of the case; the administrative judge’s rulings during either

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

expressly MODIFIED to address the appellant’s new arguments on review that

the Board has jurisdiction over his claim as an employment practice or the denial

of a within-grade increase (WIGI), we AFFIRM the initial decision.

BACKGROUND

The appellant is a GS-13 Supervisory Acquisition Specialist employed in

the agency’s Bureau of Medicine and Surgery’s Naval Medical Logistics

Command (NMLC). Initial Appeal File (IAF), Tab 1 at 7. This position is in the

competitive service. Id. According to the appellant, in April 2020, the agency’s

Naval Sea Systems Command (NAVSEA) offered him a position with a higher

salary. Id. at 9. In May 2020, his then-supervisor agreed to, among other things,

submit the appellant’s position description to agency human resources within

30 days in exchange for the appellant remaining in his position. Id. at 13-14.

The appellant filed the instant appeal, alleging that the agency did not honor the

agreement. Id. at 5, 9-10. He asserted that, instead of reclassifying his position

within 30 days to reflect his additional duties, “[t]he command pen[ned] and

inked the changes” on his position description without seeking reclassification

2 years later. Id. at 5. He also asserted that he “lost pay based on the assumption

that the job would grade out at GS[-]14.” Id.

The administrative judge issued a jurisdictional order, advising the parties

that the Board generally lacks jurisdiction over appeals concerning position

classification disputes. IAF, Tab 3 at 2. She ordered the appellant to provide

evidence and argument on the jurisdictional issue. Id. at 3. The appellant did not

respond. IAF, Tab 6, Initial Decision (ID) at 2. Thereafter, the administrative

judge issued an initial decision dismissing the appeal for lack of jurisdiction. ID

at 1, 4. She determined that the appellant appeared to argue that, upon failing to

reclassify his position, the agency denied him a promotion to which it had agreed.

ID at 3. She reasoned that the appellant was alleging either that he was denied

reclassification of his position or a promotion, and that the Board lacks

jurisdiction over either matter. Id.

On review, the appellant argues for the first time that he was subjected to

an employment practice that violated the requirements of 5 C.F.R. § 300.103.

Petition for Review (PFR) File, Tab 1 at 4. He again asserts that the agency

breached an agreement to reclassify his position in order to retain him as

an employee. Id. at 4-5. The agency has not responded to the petition for review.

DISCUSSION OF ARGUMENTS ON REVIEW

With his petition for review, the appellant has submitted emails between

him and NAVSEA reflecting that NAVSEA offered him a position as an NT-05

Administrative/Technical Specialist in April 2020, and that he turned down the

offer in May 2020, in favor of remaining at NMLC due to his supervisor’s

commitment to request reclassification of his position. Id. at 23-27. He also

attaches emails from January 2022, in which he disagreed with an agency official

regarding what the official termed a “Pen and Ink change” to the appellant’s

position description. Id. at 20-23. The rest of his attachments are not new. Id.

at 15-19; IAF, Tab 1 at 11-15.

We have considered the appellant’s submissions, both below and on

review, to the extent that they are relevant to the issue of Board jurisdiction, a

matter that may be raised at any time during Board proceedings. Lovoy v.

Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 30 (2003).

However, the documents do not change the outcome here because they are

evidence supporting the appellant’s allegations.

An appellant bears the burden of proving that the Board has jurisdiction

over his appeal. Kim v. Department of the Army, 119 M.P.S.R. 429, ¶ 6 (2013).

If the appellant makes a nonfrivolous allegation of fact that, if proven, would

establish the Board’s jurisdiction, then he is entitled to a hearing at which he

must prove jurisdiction. Id. A nonfrivolous allegation is an assertion that, if

proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). The

administrative judge presumed the appellant’s allegations were true for the

purposes of determining whether he made nonfrivolous allegations of jurisdiction

entitling him to a jurisdictional hearing, as do we. ID at 3; see Ferdon v. U.S.

Postal Service, 60 M.S.P.R. 325, 329 (1994) (explain that an administrative judge

may not weigh the evidence and resolve conflicting assertions in determining if

an appellant has made a nonfrivolous allegation of jurisdiction). We agree with

the administrative judge that the appellant did not meet his burden.

The agency’s failure to reclassify the appellant’s position is not appealable to the

Board as an employment practice.

The appellant does not dispute, and we discern no basis to disturb, the

administrative judge’s findings that the Board lacks jurisdiction over the agency’s

failure to reclassify his position or promote him. ID at 2-3. For the first time on

review, however, the appellant argues that the agency’s failure to reclassify his

position constituted an employment practice applied to him by the Office of

Personnel Management (OPM) under 5 C.F.R. Part 300. PFR File, Tab 1 at 4.

Under 5 C.F.R. § 300.104(a), “[a] candidate who believes that

an employment practice which was applied to him or her by [OPM] violates a

basic requirement in § 300.103 is entitled to appeal to the Merit Systems

Protection Board under the provisions of its regulations.” To be appealable,

an employment practice must pertain to an applicant’s selection for an initial

appointment or competitive promotion. Crum v. Department of the Navy,

75 M.S.P.R. 75, 78-80 (1997) (citing Kelly v. Office of Personnel Management,

53 M.S.P.R. 511, 516 (1992)); see 5 C.F.R. § 300.101 (explaining that the

purpose of OPM’s employment practices regulations is, as relevant here, “to

establish principles to govern . . . the employment practices . . . that affect the

recruitment, measurement, ranking, and selection of individuals for initial

appointment and competitive promotion in the competitive service”). The term

“employment practice,” defined in 5 C.F.R. § 300.101, refers to those practices

“that affect the recruitment, measurement, ranking, and selection of individuals

for initial appointment and competitive promotion in the competitive service.”

5 C.F.R. § 300.101.

We find that the appellant’s allegations concerning the agency’s actions do

not relate to initial appointment or competitive promotion. Moreover, as noted

above, employment practices concern “measurement, ranking, and selection,”

while here, the appellant asserts that the agency should have reclassified his

position to reflect the additional duties that he had performed for years. PFR

File, Tab 1 at 4; IAF, Tab 1 at 13. Presuming that the reclassified position would

grade out at GS-14, he believes he has “lost potential increases in pay in 2020,

2021, and 2022.” PFR File, Tab 1 at 5-6; IAF, Tab 1 at 5.

The appellant is arguing, in essence, that he should have been upgraded

without competition. Because his allegations do not relate to initial appointment

or competitive promotion, we find that they are insufficient to invoke the Board’s

jurisdiction over his claims as an employment practices appeal. See Crum,

75 M.S.P.R. at 79-80 (determining, as relevant here, that the appellants failed to

establish jurisdiction under 5 C.F.R. § 300.104(a) when they did not show that

any alleged improprieties in their reclassifications related to initial appointment

or competitive promotion).

The appellant has failed to allege that he was denied a WIGI.

For the first time on review, the appellant claims that he is appealing the

denial of a WIGI. PFR File, Tab 1 at 4. Citing 5 U.S.C. § 5335(c) and 5 C.F.R.

§ 531.410, the appellant indicates that he is appealing a “[r]econsideration

decision sustaining a negative determination of competence for a general schedule

employee.” Id. As with his “employment practice” claim first raised on review,

we will consider this new argument because it implicates the Board’s jurisdiction.

See Lovoy, 94 M.S.P.R. 571, ¶ 30.

An employee under the General Schedule earns periodic increases in pay,

or within-grade increases, as long as his performance is at an acceptable level of

competence. 5 U.S.C. § 5335(a); Brookins v. Department of the Interior,

2023 MSPB 3, ¶ 6. When an agency determines that an employee is not

performing at an acceptable level of competence and that a WIGI should be

withheld, the employee is entitled to “prompt written notice of that

determination” and an opportunity for reconsideration under regulations

prescribed by OPM. 5 U.S.C. § 5335(c). OPM’s regulations provide that

an employee must seek reconsideration of a decision to withhold a within-grade

increase in writing within 15 days of receiving the decision from the agency.

5 C.F.R. § 531.410(a)(1). If the determination is affirmed on reconsideration,

the employee is entitled to appeal to the Board. 5 U.S.C. § 5335(c).

The appellant does not allege that the agency denied him a periodic

increase in pay. PFR File, Tab 1 at 4. Nor has he claimed that anyone

determined his performance was unacceptable. Id. The appellant alleges that the

agency breached its agreement to seek reclassification of his position from a

GS-13 to a GS-14 level. IAF, Tab 1 at 5; PFR File, Tab 1 at 4-5. Thus, he has

failed to nonfrivolously allege that he was denied a WIGI.

Accordingly, we find that the administrative judge properly dismissed this

appeal for lack of jurisdiction. We modify the initial decision to address the

appellant’s new arguments on review.

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 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