Wilson v. Merit Systems Protection Bd.

• Decision Date: 31 December 1986
• Docket Number: No. 86-1143,86-1143
• Citation: 807 F.2d 1577
• Parties: Jefferson WILSON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1577

807 F.2d 1577

Jefferson WILSON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Appeal No. 86-1143.

United States Court of Appeals, Federal Circuit.

Dec. 31, 1986.

Felix Stuckey, Stuckey & Johnson, Oakland, Cal., argued for petitioner. With him on the brief was Pamela Y. Price, of counsel.

Rita S. Arendal, Merit Systems Protection Bd., Washington, D.C., argued for respondent. With her on the brief were Llewellyn M. Fisher, Acting General Counsel, Mary L. Jennings, Associate General Counsel for Litigation, and Marsha E. Mouyal, Reviewer for Litigation.

Before FRIEDMAN, DAVIS, and SMITH, Circuit Judges.

FRIEDMAN, Circuit Judge.

The petitioner challenges the decision of the Merit Systems Protection Board (Board), 30 M.S.P.R. 54, that dismissed his appeal from his reassignment within the Postal Service because the reassignment was neither a reduction in grade nor a reduction in pay over which the Board had jurisdiction. We affirm.

I

The petitioner has been employed continuously since 1952 by the Post Office Department and its successor, the United States Postal Service. In August 1980, the petitioner was assigned to the position of Sectional Center Manager/Postmaster (Category VI) for the San Francisco Management Section Post Office. As Postmaster of San Francisco, the petitioner was classified as a Postal Career Executive Grade I and received a salary of $62,225.

Effective July 20, 1985, the petitioner was reassigned to the position of Sectional Center Manager/Postmaster (Category IV) for the Bakersfield, California Management Section/Post Office. In Bakersfield, as in San Francisco, the petitioner was classified as a Postal Career Executive Grade I and received the same salary of $62,225.

The petitioner appealed his reassignment to the Board. He described the reassignment as a reduction in grade and pay, alleged that the reassignment was based, in part, on age and race discrimination, and challenged the procedures through which the reassignment was made.

The regional director of the Board notified the petitioner that it appeared "questionable" whether the Board had jurisdiction over his appeal. He gave the petitioner the opportunity to submit additional evidence and argument on the jurisdictional issue. In response, the petitioner acknowledged that he was classified as a Postal Career Executive Grade I in both San Francisco and in Bakersfield, and that his annual salary of $62,225 was the same in both positions. The petitioner contended, however, that because his position title was changed from Sectional Center Manager/Postmaster (Category VI) to Sectional Center Manager/Postmaster (Category IV), the reassignment constituted a reduction in grade.

In support of this contention, the petitioner submitted a declaration from Kellsey Minor, a former specialist in compensation and job evaluation in the Postal Service, who stated that "in his opinion" the reassignment constituted a reduction in grade. The petitioner also pointed to the differences in level of responsibility between the Category VI position in San Francisco and the Category IV position in Bakersfield. In San Francisco, the petitioner was responsible for more than 9,000 Postal employees and administered a payroll of approximately $275 million. In Bakersfield, in contrast, the petitioner was responsible for less than 2,000 employees and administered a payroll of approximately $50 million.

The Postal Service moved to dismiss the petitioner's appeal for lack of jurisdiction, arguing that the petitioner had been reduced neither in grade nor in pay. The Postal Service submitted a declaration from Malcolm J. MacGregor, a manager in the compensation division of the Postal Service, stating that the petitioner had remained a Postal Service Career Executive Grade I employee with a salary of $62,225 before and after the reassignment. This declaration was supported by a government form used to document personnel action (Form 50) showing that the petitioner's grade and salary levels were the same in both assignments.

After reviewing the evidence, the Board, without a hearing, dismissed the appeal for lack of jurisdiction. The Board held that the petitioner had not been reduced in grade or pay through the reassignment. Although the Board acknowledged that the reassignment was a reduction in responsibility, it ruled that a mere reduction in responsibility, without a concurrent reduction

in grade or pay, was not appealable to the Board. Moreover, the Board noted that although the petitioner's reassignment might in the future result in a reduction in grade or pay, "the possibility of that future occurrence, and the reduced prospects for future career advancement, are not matters appealable to the Board."

II

A. The Board has "only that jurisdiction conferred upon it by Congress." See Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1426 (Fed.Cir.1984); Thomas v. United States, 709 F.2d 48, 49 (Fed.Cir.1983). Accordingly, the Board has authority to hear appeals only from the types of actions specifically enumerated by law, rule, or regulation. 5 U.S.C. Sec. 7701(a) (1982); see Rose v. Department of Health and Human Services, 721 F.2d 355, 356 (Fed.Cir.1983).

The petitioner in the present case is a preference eligible employee of the Postal Service. See 5 U.S.C. Sec. 2108(3) (1982). Under 5 U.S.C. sections 7511(a)(1)(B), 7512(3) and (4), and 7513(d), a preference eligible employee may appeal to the Board from "a reduction in grade" and "a reduction in pay." Reassignments that do not reduce an employee's grade or pay are not appealable to the Board. See Jacob v. Department of Justice, 22 M.S.P.R. 277 (1984); Brown v. Department of Justice, 20 M.S.P.R. 524 (1984).

Although the petitioner acknowledges that he was classified as a Postal Career Executive Grade I and received a salary of $62,225 before and after the reassignment from San Francisco to Bakersfield, he contends that the reassignment nonetheless constituted a reduction in grade and pay for two reasons: (1) it reduced his responsibility, and (2) it reduced his pay because he will receive a smaller yearly bonus in Bakersfield than he would have received in San Francisco. In addition, the petitioner challenges the Board's failure to hold a hearing on the question whether the Board had jurisdiction over his appeal.

B. Reduction in Grade.

1. Before exploring the question whether the petitioner has been reduced in grade, it is necessary to describe the system under which the grades of executives in the Postal Service are determined. The Postal Reorganization Act of 1970, Pub.L. No. 91-375, 84 Stat. 719 (codified as amended at 39 U.S.C. Sec. 101 et seq. (1982)), established the Postal Service as an "independent establishment of the executive branch." 39 U.S.C. Sec. 201 (1982). This Act evidenced "the Congressional determination that postal personnel matters in general, and employee compensation in particular, should be set by the Postal Service and not the Congress." See Sprague v. United States, 677 F.2d 865, 866 (Ct.Cl.1982).

The Postal Service now is an independent organization that is subject to only limited application of federal employment laws. 39 U.S.C. Sec. 410(a) (1982); see Bredehorst v. United States, 677 F.2d 87, 88-89 (Ct.Cl.1982). Pursuant to the authority granted to it by Congress, the Postal Service has created the Postal Career Executive Service for its upper level management positions. Like the Senior Executive Service, a system Congress provided in the Civil Service Reform Act of 1978 for certain senior employees in the executive branch, the Postal Career Executive Service is designed to promote flexibility in executive assignments to enable the agency to accomplish its mission in an effective and expeditious manner. See 5 U.S.C. Sec. 3131 (1982) (the purpose of the Senior Executive Service is "to ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality.").

In order to promote needed flexibility in executive assignments, the Postal Career Executive Service consists of only two grade levels, grades I and II. See "Postal Career Executive Service (PCES)," 6 Postal Employee & Labor Relations Manual 380 (May 20, 1981). Grade II includes the highest ranking officials in the Postal Service, such as the Postmaster General, the General Within Grades I and II, positions are not classified by grade. According to the Postal Service's Employee and Labor Relations Manual:

Counsel, and the Chief Inspector. Grade I includes, but is not limited to, all Sectional Center Managers/Postmasters.

Positions in the [Postal Career Executive Service] are in two levels: [Postal Career Executive Service] I and [Postal Career Executive Service] II. Within each of these levels, positions and executives in the [Postal Career Executive Service] are gradeless. This gradeless system allows management the flexibility to best match an executive's ability or potential with the Postal Service's staffing needs.

Id. (emphasis in original).

2. The petitioner was classified as a Postal Career Executive Grade I both before and after the reassignment from San Francisco to Bakersfield. The petitioner contends, however, that the reassignment resulted in a reduction in grade because it changed his status from Category VI in San Francisco to Category IV in Bakersfield.

The terms Category VI and Category IV incorporated in the position title of Postmaster refer to the rankings of the sectional centers rather than to the grade of the managers in charge of them. The categories are based on a variety of factors, such as the size of the post office, the size of the population served, and the revenues received. Although the petitioner's position title was changed from Postmaster (Category VI) in San Francisco to Postmaster (Category IV) in Bakersfield, he was a Grade I Postal...