Nigg v. Merit Systems Protection Bd., 02-3230.

• Citation: 321 F.3d 1381
• Decision Date: 10 March 2003
• Docket Number: No. 02-3230.,02-3230.
• Parties: Robert J. NIGG, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and United States Postal Service, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

321 F.3d 1381

Robert J. NIGG, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and United States Postal Service, Intervenor.

No. 02-3230.

United States Court of Appeals, Federal Circuit.

March 10, 2003.

Robert J. Nigg, of Chino, CA, pro se.

Raymond W. Angelo, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief were Martha B. Schneider, Acting General Counsel; and Stephanie M. Conley, Reviewing Attorney.

Patricia M. McCarthy, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for intervenor. On the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; Robert E. Kirschman Jr., Assistant Director; and Erin E. Powell, Trial Attorney.

Before CLEVENGER, BRYSON, and PROST, Circuit Judges.

BRYSON, Circuit Judge.

Petitioner Robert Nigg works for the United States Postal Service as a postal inspector. When the Postal Service ruled him ineligible to receive law enforcement availability pay and suspended his receipt of such pay for a four-week period, he appealed the decertification and suspension decision to the Merit Systems Protection Board. The Board dismissed Mr. Nigg's appeal for lack of jurisdiction. We agree with the Board's legal analysis and affirm its dismissal order.

I

By statute, compensation and benefits for postal inspectors are required to be "maintained on a standard of comparability" to the compensation and benefits paid for comparable levels of work in the executive branch of the government outside of the Postal Service. 39 U.S.C. § 1003(c). One benefit enjoyed by similarly situated executive branch employees outside the Postal Service is law enforcement availability pay pursuant to the Law Enforcement Availability Pay Act ("LEA Pay Act"), 5 U.S.C. § 5545a. The LEA Pay Act provides premium pay to criminal investigators who are required to be available for unscheduled duty in excess of a 40-hour work week. See id. § 5545a(b). Criminal investigators must work a certain number of overtime hours each year to be certified as eligible for the extra pay. See id. § 5545a(d), (e)(1). Denial of certification that results in an involuntary reduction in pay is considered a "reduction in pay" within the meaning of 5 U.S.C. § 7512(4). See 5 U.S.C. § 5545a(e)(2). Accordingly, the Merit Systems Protection Board has jurisdiction to hear claims concerning denials of eligibility certification under the LEA Pay Act. Martinez v. Merit Sys. Prot. Bd., 126 F.3d 1480, 1482 (Fed.Cir.1997).

Pursuant to 39 U.S.C. § 1003(c), the Postal Service has implemented a compensation system for postal inspectors comparable to the law enforcement availability pay system provided by the LEA Pay Act. See United States Postal Service All Divisions Letter No. 97-12 (July 29, 1997). Like executive branch employees who are covered by the LEA Pay Act, postal inspectors are required to work a certain number of overtime hours each year to be certified as eligible for premium pay.

In January of 2001 the Postal Service decertified Mr. Nigg as eligible for availability pay and suspended him from receiving availability pay for a four-week period because during the previous year he had failed to work the minimum number of overtime hours required for availability pay certification. He sought to appeal the decertification and suspension to the Merit Systems Protection Board. The administrative judge who was assigned to the case noted that because Mr. Nigg was a Postal Service employee, the Board would have jurisdiction to decide his appeal only if he fell within one of the classes of Postal Service employees entitled by statute to appeal to the Board. Accordingly, the administrative judge advised Mr. Nigg that in order to establish Board jurisdiction he had to show that he had completed one continuous year of service in his position and that he was either a preference-eligible employee, a management or supervisory employee, or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity. See 39 U.S.C. § 1005(a)(4)(A)(i), (ii); Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.Cir.1998).

In his response to the administrative judge's order, Mr. Nigg conceded that he was neither a preference-eligible employee nor a supervisor. He argued, however, that the Board had jurisdiction to entertain his appeal because he was a manager and because he was engaged in confidential personnel work. The administrative judge disagreed and ruled that Mr. Nigg had failed to establish that he fell within one of the statutory classes of Postal Service employees who are entitled to appeal to the Board. The administrative judge therefore dismissed Mr. Nigg's appeal for lack of jurisdiction.

Mr. Nigg petitioned for review by the full Board. The Board denied the petition, but reopened the appeal on its own motion. The Board did not address the administrative judge's ruling that Mr. Nigg was not an employee entitled to redress from the Board, but disposed of the appeal by holding that the substance of Mr. Nigg's claim is outside the Board's jurisdiction. The Board first held that, because the LEA Pay Act does not apply to the Postal Service, the provision of that statute making denial of certification for law enforcement availability pay appealable to the Board does not apply to postal inspectors and thus does not give them Board appeal rights. The Board then held that the decertification and suspension of Mr. Nigg's entitlement to availability pay did not constitute a "reduction in pay" and is therefore not appealable to the Board as an "adverse action" under 5 U.S.C. § 7512(4).

II

In support of his contention that the Board has jurisdiction over his appeal, Mr. Nigg points out that the Postal Service has a mandate from Congress under 39 U.S.C. § 1003(c) to provide postal inspectors with compensation comparable to federal criminal investigators. According to Mr. Nigg, that statute requires that the Postal Service availability pay system conform in all respects to the availability pay system created for other executive branch employees pursuant to the LEA Pay Act. Because the LEA Pay Act gives the Board jurisdiction over certification denial appeals brought by other federal investigators, Mr. Nigg argues that 39 U.S.C. § 1003(c) requires the Board to take jurisdiction over similar complaints brought by postal inspectors.

The Board correctly held that the LEA Pay Act does not apply to the Postal Service. The provisions of Title 5 do not apply to the Postal Service unless Congress has specifically so provided. See 39 U.S.C. § 410; see also Kane v. Merit Sys. Prot. Bd., 210 F.3d 1379, 1381 (Fed.Cir.2000); Bacashihua v. Merit Sys. Prot. Bd., 811 F.2d 1498, 1501 (Fed.Cir.1987). Section 5545a is not one of the exceptional provisions that Congress had made applicable to the Postal Service. See 39 U.S.C. § 410(b). Therefore, section 5545a(e)(2) does not give the Board jurisdiction to entertain appeals from postal inspectors who have been denied availability pay.

We decline Mr. Nigg's invitation to find that Congress intended to give the Board jurisdiction by making the appeal provision of the LEA Pay Act applicable to postal inspectors through 39 U.S.C. § 1003. While 39 U.S.C. § 1003(c) refers to a "standard of comparability" between postal inspectors and other criminal investigators, the statutory language refers only to compensation and benefits. The statute does not suggest that Congress intended that general expression of purpose to confer on Postal Service employees all of the same legal remedies and appeal rights enjoyed by other executive branch employees.

In fact, the history and structure of the LEA Pay Act manifest a contrary congressional intention. This court's precedent has long distinguished between "basic pay" and "premium pay," such as overtime or night differential; we have consistently held that a denial of premium pay does not constitute a reduction in pay that is appealable to the Board. See Mattern v....