Saunders v. Merit Systems Protection Bd.

Decision Date27 March 1985
Docket NumberNo. 84-1721,84-1721
Citation757 F.2d 1288
PartiesDonald H. SAUNDERS, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal
CourtU.S. Court of Appeals — Federal Circuit

Richard L. Friedman, Bethesda, Md., argued for petitioner.

Lawrence Shearer, Merit Systems Protection Board, Washington, D.C., argued for respondent. With him on the brief were Evangeline W. Swift, Gen. Counsel and Mary L. Jennings, Washington, D.C., Associate Gen. Counsel for Litigation.

Before RICH, DAVIS, and NEWMAN, Circuit Judges.

RICH, Circuit Judge.

Donald H. Saunders (Saunders) appeals the final order of the Merit Systems Protection Board (board), No. DC34438410280, 22 M.S.P.R. 656, dismissing Saunders' appeal for lack of jurisdiction. We affirm.

Background

Saunders has been employed since November, 1979, by the Veterans Administration (VA) as an Outreach Specialist, GS-102-9, helping Vietnam veterans in returning to productive civilian lives. In January, 1982, Saunders and another Outreach Specialist in his office, Harold Vaughan, were recommended for promotion. Vaughan was promoted to GS-11, but Saunders was not.

Saunders requested a review of the decision by the VA, which resulted in his being reclassified as a Social Services Assistant, GS-186-9. Saunders then appealed his reclassification to the Office of Personnel Management (OPM). The OPM then issued a Classification Appeal decision, which again found that Saunders' position should remain at a GS-9 level, but should be classified in the GS-102 series.

January 28, 1984, Saunders filed a petition for appeal with the board. March 5, 1984, the presiding official dismissed Saunders' appeal for lack of jurisdiction, finding that the board had no jurisdiction over actions or decisions involving the proper classification of positions. April 9, 1984, Saunders petitioned the board for review of the presiding official's decision. July 5, 1984, the board denied Saunders' petition. Saunders then appealed the board's dismissal of his petition to this court.

OPINION

The jurisdiction of the board is limited to those matters specifically delineated by Congress or granted to it by way of regulatory authority exercised by the OPM. Madsen v. Veterans Administration, 754 F.2d 343, 344 (Fed.Cir.1985); Cowan v. United States, 710 F.2d 803, 805 (Fed.Cir.1983). The board has not been granted appellate jurisdiction over cases concerning the proper classification of a position, either by statute or regulation. Accordingly, the board correctly dismissed Saunders' petition.

Saunders also argues that the VA and the OPM committed prohibited personnel practices under 5 U.S.C. Sec. 2302 by failing to make a position-to-position comparison to establish his correct pay grades, and that this confers appellate jurisdiction on the board in his classification appeal. The board does not have appellate jurisdiction to consider such allegations of prohibited personnel practices. Section 2302(b) is not an independent source of appellate jurisdiction and does not itself authorize an appeal. Wren v. Department of the Army, 2 MSPB 174, 175, 2 M.S.P.R. ---- (1980).

Conclusion

The appellate jurisdiction of the board is limited to those matters specifically conferred upon it by statute or regulation. There is no statute or regulation which confers appellate jurisdiction over classification appeals on the board. The decision of the board, dismissing Saunders' petition for review of his classification appeal, is therefore affirmed.

AFFIRMED.

DAVIS, Circuit Judge, with whom PAULINE NEWMAN, Circuit Judge, joins, concurri...

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