Meglio v. Merit Systems Protection Bd.
| Decision Date | 10 October 1984 |
| Docket Number | No. 84-1149,84-1149 |
| Citation | 758 F.2d 1576 |
| Parties | Anthony MEGLIO, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Anthony Meglio, Philadelphia, submitted pro se.
Evangeline W. Swift, Gen. Counsel, Alan F. Greenwald, Deputy Gen. Counsel and Mary L. Jennings, Associate Gen. Counsel for Litigation, Merit Systems Protection Bd., Washington, D.C., submitted for respondent.
Before BENNETT, MILLER and SMITH, Circuit Judges.
The final decision of the Merit Systems Protection Board (board), 19 M.S.P.R. 643 (1984), denying petitioner Anthony Meglio's (Meglio) petition for review of a board initial decision dismissing Meglio's appeals for lack of jurisdiction, is affirmed.
Meglio raises three issues before this court, all concerning the presiding official's dismissal of this case for lack of jurisdiction. We discuss the most substantive of these issues first and then touch upon the other two, mentioning salient facts where necessary.
OpinionMeglio's strongest contention before this court is that the board presiding official, in her initial decision of July 13, 1983, erred in dismissing Meglio's appeals concerning two within-grade salary denials by Meglio's employing agency, the Veterans' Administration (VA). Meglio's assertion that the board did indeed possess jurisdiction to review these denials is based on the March 21, 1977, negotiated agreement between the VA Center in Philadelphia, Pennsylvania, and the local union to which Meglio belonged. Article XXIV, section 2 of that agreement provides for a grievance procedure for employees, not including "matters for which a statutory appeals procedure exists." Under 5 U.S.C. Sec. 5335(c) (1982) such statutory appeal procedure to the board, when an agency has both denied an employee a within-grade increase and reconsidered and affirmed that denial, does exist. By contrast, a later negotiated agreement between the VA and the union, executed on August 13, 1982, provides that the grievance procedure is the exclusive procedure for resolving grievances (article 13, section 1), with exceptions not covering within-grade denials.
The VA first notified Meglio that his within-grade salary increase was being denied in May 1982 and in September 1982 reconsidered and affirmed that denial. In July 1982 the VA issued a second denial of the within-grade and again reconsidered and affirmed the denial in November 1982. Hence Meglio's contention that both within-grade denials, having occurred before the effective date of the August 1982 agreement, are appealable by statute to the board is not unreasonable. On the other hand, the board's position that these denials do not become appealable until reconsidered and affirmed, as occurred in Meglio's case after August 1982, may be the more proper on the face of the statute. Section 5335(c).
We need not determine on the merits which of the above two positions is correct, however, because the record shows that Meglio did indeed fail to raise this problem before the board presiding official, when Meglio was ordered to show cause why the board had jurisdiction. At that time the VA clearly contended, in a letter of March 25, 1983, that the August 1982 agreement applied to Meglio's denials, thus precluding a board appeal. Meglio in his response to the show cause order did not clearly contest this by referring to the earlier March 1977 agreement. Since this argument and the 1977 agreement were not before the presiding official, she found that Meglio failed to meet his burden of proof in response to the show cause order, and the full board denied Meglio's petition for further review of the matter. 5 C.F.R. Sec. 1201.115 (1983). Under our standard of review of the board's final decision--whether it is arbitrary or capricious, not in...
To continue reading
Request your trial
-
Mitchell v. Espy
...(Fed.Cir.1985). The statute disallows appeals to the MSPB concerning suspensions of 14 days or less. See Meglio v. Merit Systems Protection Board, 758 F.2d 1576, 1578 (Fed.Cir.1984). Jurisdiction exists in the district court over cases in which an employee has been affected by an action of ......
-
Philipp Bros., Inc. v. United States, 84-4-00528.
...function when it sets aside the administrative determination upon a ground not theretofore presented"); Meglio v. Merit Systems Protection Board, 758 F.2d 1576, 1577-78 (Fed.Cir. 1984) (failure to raise claim before administrative body constitutes effective waiver of right to A plaintiff's ......
-
Rockwell v. Department of Transp., F.A.A., 85-1646A
...2347(c), 28 U.S.C. Sec. 2106, James v. Federal Energy Regulatory Commission, 755 F.2d 154 (Fed.Cir.1985), Meglio v. Merit Systems Protection Board, 758 F.2d 1576 (Fed.Cir.1985), and Lizut v. Department of the Army, 717 F.2d 1391 We perceive no basis in fact, law, or logic for Rockwell's att......
-
Wallace v. Department of the Air Force
...to raise this issue before the Board, it is not open to her on this appeal, and we do not consider it. Meglio v. Merit Sys. Protection Bd., 758 F.2d 1576, 1577 (Fed.Cir.1985); Thomas v. General Servs. Admin., 794 F.2d 661, 666 Ordinarily, appellate courts refuse to consider issues not raise......