Schaffer v. Merit Systems Protection Bd.

• Decision Date: 04 January 1985
• Docket Number: No. 84-1021,84-1021
• Citation: 751 F.2d 1250
• Parties: Genevieve SCHAFFER, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1250

751 F.2d 1250

Genevieve SCHAFFER, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Appeal No. 84-1021.

United States Court of Appeals, Federal Circuit.

Jan. 4, 1985.

Courts Oulahan, Washington, D.C., argued, for petitioner.

David Kane, Merit Systems Protection Bd., Washington, D.C., argued, for respondent. With him on the brief were Alan F. Greenwald, Deputy Gen. Counsel and Mary L. Jennings, Associate Gen. Counsel for Litigation, Washington, D.C.

Before FRIEDMAN, MILLER and NIES, Circuit Judges.

FRIEDMAN, Circuit Judge.

This is an appeal from a decision of the Merit Systems Protection Board (Board) dismissing the petitioner's appeal from the action of the Department of the Interior in downwardly reclassifying the position the petitioner held with that agency. We affirm.

I

On April 1, 1982, the Department of the Interior informed the petitioner that "as a result of an evaluation of your position and comparison with appropriate Office of Personnel Management Classification Standards," her position with the National Park Service would be reclassified from grade GS-13 to grade GS-11, effective April 18, 1982. The notice stated that the petitioner could appeal her reclassification within the Department or to the Office of Personnel Management (OPM) and that if she chose the former route, she could later appeal to the OPM. The notice further stated that the petitioner was entitled for two years to retain the grade and pay levels of her old position.

The petitioner appealed her reclassification to the Secretary of the Interior. While that appeal was pending, the office to which the petitioner was assigned was abolished. Pursuant to the ensuing reduction in force, the petitioner was removed from the federal service on August 27, 1982. The Secretary then terminated the appeal on the ground that the petitioner "is no longer in the position which was the subject of the appeal." The petitioner appealed to OPM which, on November 8 1982, rejected the appeal on the same ground. OPM refused to reconsider its decision in a letter the petitioner received on December 7, 1982.

On December 27, 1982, the petitioner appealed to the Board. On February 17, 1983, the presiding official of the Board issued an order noting (1) that although appeals to the Board were required to "be filed ... within 20 calendar days after the effective date of the action appealed," the petitioner's appeal was filed "almost nine months after the effective date," and (2) that the petitioner had "the burden of proving that the action appealed is within the Board's jurisdiction." The presiding official gave the petitioner until March 8, 1983, "to submit any evidence &/or argument she wishes to have considered in this matter." The petitioner did not respond.

In her initial decision, the presiding official dismissed the appeal "for lack of jurisdiction and timeliness."

The petitioner filed with the presiding official a "MOTION TO AMEND INITIAL DECISION." She argued that her appeal to the Board was timely because filed within 20 days of receipt of the OPM letter denying reconsideration of its original rejection of the appeal. She requested the presiding official to amend her decision "by striking therefrom untimeliness as a reason for that Decision."

Since the presiding official had no authority to entertain such a motion, she forwarded it to the Board, which treated it as a petition for review of the initial decision. The Board denied the petition for review in an order containing the following explanation:

Having fully considered the appellant's petition for review of the initial decision issued on May 6, 1983, and finding that it does not meet the criteria for review set forth at 5 C.F.R. Sec. 1201.115, the Board hereby DENIES the petition.

The Board's order denying review further stated that "[t]he initial decision shall become final five (5) days from the date of this order. 5 C.F.R. Sec. 1201.113(b)." This regulation provides:

Petition for review denied. If the Board denies all petitions for review, the initial decision shall become final five days after issuance of the last denial.

The petitioner also appealed to the Board her removal pursuant to the reduction in force. The presiding official upheld that action, and the Board denied review. Schaffer & Barnhart v. Department of the Interior, Docket Nos. PH03518310045 and PH03518310052, August 13, 1984. The petitioner has pending before this court an appeal from that decision of the Board. No. 85-786 (filed Nov. 20, 1984).

II

A. The Board correctly held that it had no jurisdiction over the petitioner's appeal. Under 5 U.S.C. Sec. 5366(b)(1) (1982), an employee's right to appeal a reclassification to OPM does not authorize an appeal where the employee has an "entitlement" to retain for two years the grade and pay of the position formerly occupied. This provision also precludes appeal to the Board of an agency reclassification decision "where pay and grade retention are available." Atwell v. Merit Systems Protection Board, 670 F.2d 272, 282 (D.C.Cir.1981). Accord, Knepp v. Department of the Navy, 709 F.2d 37 (9th Cir.1983).

In connection with her reclassification from grade GS-13 to grade GS-11, the petitioner was entitled to retain her grade GS-13 level and its pay for two years. The Board thus had no jurisdiction over her appeal challenging the reclassification. The Board has only that jurisdiction that the pertinent statutes and regulations give it. Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1426, 1427 (Fed.Cir.1984); Thomas v. United States, 709 F.2d 48, 49 (Fed.Cir.1983). The petitioner has not cited any "law, rule or regulation," 5 U.S.C. Secs. 1205(a)(1), 7701(a) (1982), giving the Board jurisdiction over appeals from reclassification decisions of the kind here involved, and we are aware of none.

The petitioner contends, however, that because her employment was terminated approximately four-and-one-half months after her reclassification through the reduction in force, the Board had jurisdiction over her appeal since she did not retain the grade and pay of her earlier position for two years. The jurisdiction of the Board, however, depends upon whether the employee had an "entitlement" to grade and pay retention, not upon how long she received those emoluments. In other words, the Board's jurisdiction is determined on the basis of the rights the petitioner received when her reclassification was effective and not upon what subsequently happened.

The petitioner's status as a grade GS-13 was terminated in less than two years not because she was denied the right to that status in connection with her reclassification, but because a different event--the reduction in force--terminated her status as an employee. As the petitioner conceded at oral argument, the validity of the reduction in force is not before us in this appeal. That is an issue in the other case that challenges the reduction in force. See p. 1252, supra.

The petitioner urges that her reclassification was effected in contemplation and as part of the reduction in force, and that the Board therefore had jurisdiction over her appeal under 5 U.S.C. Sec. 5366(a)(2)(B) (1982), which permits employee appeals of "any reduction-in-force action." The record, however, does not support the factual predicate of this argument that the reclassification was inseparable from the reduction in force.

B. The Board also correctly dismissed the appeal on the alternative ground that the appeal to the Board was untimely because it was filed more than eight months after the reclassification.

Although the Board's regulations require a notice of appeal to be filed within 20 days of the effective date of the contested action (5 C.F.R. Sec. 1201.22(b) (1984)), which here was April 18, 1982, the petitioner did not file her appeal until December 7, 1982, almost eight months later.

The petitioner contends that her attempts to appeal, first to the Secretary, and then to OPM, tolled the time for appeal. We have...