Cohen v. Dep't of the Army

Docket NumberCH-3443-17-0280-I-1
Decision Date25 May 2023
PartiesJEFFREY MARTIN COHEN, Appellant, v. DEPARTMENT OF THE ARMY, Agency.
CourtMerit Systems Protection Board

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JEFFREY MARTIN COHEN, Appellant,
v.

DEPARTMENT OF THE ARMY, Agency.

No. CH-3443-17-0280-I-1

United States of America Merit Systems Protection Board

May 25, 2023


THIS FINAL ORDER IS NONPRECEDENTIAL [1]

Jeffrey Martin Cohen, Fort Leonard Wood, Missouri, pro se.

Gary P. Chura, Fort Leonard Wood, Missouri, 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 his 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

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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).

BACKGROUND

¶2 On March 23, 2017, the appellant filed a Board appeal challenging his September 18, 2016 reassignment from the position of Counseling Psychologist, GS-0180-11 (Step 6), to the term position of Army Substance Abuse Specialist, GS-0101-11 (Step 6). Initial Appeal File (IAF), Tab 1 at 3, 5, 7. The agency reassigned the appellant because it discovered that he was unqualified for the position in which he served, as his master's degree was not in the required field. IAF, Tab 6 at 4, 8.

¶3 When it appeared that the Board may lack jurisdiction over the appeal, the administrative judge issued an order advising the appellant of his burden of proof on jurisdiction and ordering him to file evidence and argument that his appeal was properly before the Board. IAF, Tab 2 at 2-4. Thereafter, the administrative judge issued an order on timeliness, which ordered the appellant to show that his appeal was timely filed or that good cause existed for the 161-day delay. IAF, Tab 3 at 2. The appellant responded to the jurisdiction and timeliness orders. IAF, Tab 4 at 4-5, 7. In particular, he challenged the merits of the reassignment and raised a claim that he was reassigned in retaliation for prior equal employment opportunity (EEO) activity. Id. at 7. He also claimed that good

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cause existed for his untimely filing. Id. at 4-5. Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appellant's appeal, finding that he failed to make a nonfrivolous allegation over which the Board has jurisdiction. IAF, Tab 8, Initial Decision (ID) at 1-2. She did not address the timeliness of the appeal given her finding on jurisdiction. ID at 3-4. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 The Board's jurisdiction is limited to actions made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a); Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). It is well settled that the Board does not have jurisdiction over a reassignment of an employee to a position without a reduction in grade or pay. See Maddox, 759 F.2d at 10. The Board does not have jurisdiction over all actions alleged to be unfair or incorrect. Miller v. Department of Homeland Security, 111 M.S.P.R. 325, 332-33 (2009), aff'd, 361 Fed.Appx. 134 (Fed. Cir. 2010). Additionally, an appellant must prove by preponderant evidence that an appeal is within the Board's jurisdiction.[2] 5 C.F.R. § 1201.56(b)(2)(i)(A). An appellant is entitled to a hearing only after raising nonfrivolous allegations of Board jurisdiction.[3] Hardy v. Merit Systems Protection Board, 13 F.3d 1571, 1575 (Fed. Cir. 1994).

¶5 Here, the administrative judge properly found that the appellant failed to raise a nonfrivolous allegation over which the Board has jurisdiction. ID at 1, 3. Specifically, the appellant did not allege that his reassignment resulted in a

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reduction in grade or pay or any other facts that would bring the appeal within the Board's jurisdiction. PFR File, Tab 4.

¶6 Therefore, we agree with the administrative judge's finding that the appellant failed to raise a nonfrivolous allegation of jurisdiction and that, therefore, he is not entitled to a hearing. Also, absent an otherwise appealable action, the Board lacks jurisdiction over his claim of EEO retaliation. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff'd, 681 F.2d 867 (D.C. Cir. 1982). Accordingly, we affirm the initial decision.

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...

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