U.S. Merit Systems Protection Board 
Case Report for July 27, 2012

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Appellant:  James A. Penna
Agency:  United States Postal Service
Decision Number:  2012 MSPB 90
Docket Numbers:  DA-0353-10-0415-I-1, DA-3443-11-0501-I-1
Issuance Date:  July 20, 2012
Appeal Type:  Restoration to Duty
Action Type:  After Recovery from Compensable Injury

Restoration - Partial Recovery from Compensable Injury
Collateral Estoppel (Issue Preclusion)

    The appellant petitioned for review of two initial decisions, both involving the agency's alleged wrongful denial of restoration following partial recovery from a work-related injury.  After suffering a work-related injury in March 2009, the appellant accepted a limited duty job assignment in November 2009.  In April 2010, the agency discontinued this  assignment, notifying him that a search of the local commuting area failed to identify any operationally necessary tasks within his medical restrictions.  In his first (0415) appeal to the Board, the appellant claimed that the agency had arbitrarily and capriciously denied him restoration as a partially recovered employee.  The administrative judge found that the appellant established jurisdiction but, after holding a hearing, found that the appellant failed to prove by preponderant evidence that the agency acted arbitrarily and capriciously.  The judge found that the agency showed that it conducted a search for operationally necessary tasks within the local commuting area, and rejected the appellant's claims of disability discrimination, age discrimination, and harmful error.  In a subsequent (0501) appeal relating to the same alleged denial of restoration, the appellant alleged that the agency failed to comply with the ADA Amendments Act of 2008, an Executive Order, various EEOC regulations, that it committed harmful procedural error and prohibited personnel practices, and that it discriminated against him on the bases of disability and age.  The administrative judge dismissed this second appeal for lack of jurisdiction, noting that the appellant's previous appeal was pending before the Board on review and dealt specifically with the appellant's claim that the agency failed to restore him.  The judge further found that none of the appellant's additional claims provided an independent source of Board jurisdiction.  

Holdings:  The Board dismissed both appeals for lack of jurisdiction:

1.  The appellant failed to prove in the 0415 appeal that the agency arbitrarily and capriciously denied him restoration as an employee who has partially recovered from a compensable injury.  

a.  Following the court's decision in Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097 (Fed. Cir. 2011), and the Board's decision in Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012), whether an agency's denial of restoration to a partially recovered employee must be proved by preponderant evidence, both as a jurisdictional issue and as a merits issue.  

b.  The Board agreed with the judge that there was no indication in the record that the agency's job search was geographically inadequate.  

c.  The following line of inquiry from Latham is the relevant framework for analyzing this appeal:  (1) Are the tasks of the appellant's former modified assignment still being performed by other employees? (2) If so, did those employees lack sufficient work prior to absorbing the appellant’s modified duties? (3) If so, did the reassignment of that work violate any other law, rule, or regulation?

d.  Although it was undisputed that the duties of the appellant's modified assignment are still being performed by other employees, the appellant did not assert that those who absorbed his former duties did not previously lack sufficient work, e.g., that they were not previously underburdened or that they are now forced to work overtime to perform the additional duties returned to their job assignments.  While the agency did not present evidence or testimony establishing that those who absorbed the appellant’s previously assigned duties lacked sufficient work before absorbing those duties, it is the appellant who carries the burden of proof in a partial recovery restoration appeal.  Because the appellant did not meet this burden, the 0415 appeal must be dismissed for lack of jurisdiction.

2.  The appellant failed to establish jurisdiction over the 0501 appeal.

a.  Despite the appellant's assertions to the contrary, his claims in the 0501 appeal are also based on the agency's underlying decision to discontinue his limited duty assignment.  Because the appellant failed to prove in his 0415 appeal that the agency's action was arbitrary and capricious, he is collaterally estopped from proving the same matter in this appeal.  

b.  In the absence of an otherwise appealable action, the Board lacks jurisdiction to consider the appellant's claims of disability and age discrimination, as well as his claims of harmful error and prohibited personnel practices.

Appellant:  Walter J. Quinlan, et al.
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 91
Docket Numbers:  DC-0752-11-0269-I-1, DC-0752-11-0270-I-1, DC-0752-11-0271-I-1
Issuance Date:  July 26, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade

Reduction in Grade

    The appellants petitioned for review of the initial decision that sustained the agency's decision to reduce their pay bands as a consequence of the downward classification of their positions and found that the appellants failed to prove their affirmative defenses.  The appellants occupied SF-1801-L positions at the Transportation Security Administration (TSA).  The agency initiated a review of their position classifications and reduced them to SF-301-K positions due to a downward classification of their positions.  The agency granted them pay retention.  On appeal to the Board, the appellants argued that the downgrade was an appealable adverse action because they did not receive grade retention benefits.  They further argued that the agency's reclassification was not in accordance with law and that the Board had jurisdiction to review the merits of the classification decision.  They also raised claims of a denial of due process, age and sex discrimination, and reprisal for protected EEO activity.  The administrative judge found that:  The appellants' challenge to the merits of the classification decision was not within the Board's jurisdiction; the appellants had a limited right to challenge their reduction in grade because they were not eligible for grade retention; the appeals were governed by the Aviation and Transportation Security Act (ATSA), and the agency had complied with the TSA Management Directive and accompanying Handbook in effecting the reduction in the appellants' pay band; the appellants failed to establish that they had been denied due process or any of their other affirmative defenses.  

Holdings:  The Board affirmed the initial decision and sustained the agency's actions:

1.  The Board has jurisdiction over the appellants' reduction in grade appeals.

a.  Employees who are assigned to positions that are reclassified downward and who receive the benefits of grade and pay retention under 5 U.S.C. 5362 and 5363 may not appeal to the Board.  The Board does have jurisdiction, however, when an employee was downgraded as a result of a position classification and was not eligible for grade retention under chapter 53.  

b.  Under the ATSA, TSA employees are covered by the personnel management system applicable to employees of the Federal Aviation Administration.  With the exception of specifically enumerated sections, most of title 5 does not apply, including chaptes 51 and 53 concerning the classification of positions and grade and pay retention.  However, the Board has found jurisdiction over reductions in grade because the law provides that a TSA employee may appeal to the Board from "any action that was appealable to the Board under any law, rule, or regulation as of March 31, 1996," and a reduction in grade that did not include grade retention was appeable to the Board on that date.

2.  The administrative judge correctly determined that the agency's action was in accordance with law.

a.  The Board rejected the appellants' argument that it has the authority to review the merits of the classification decision because they are covered by title 5.  It is well established that the Board does not have jurisdiction over the merits of a classification decision.  That the appellants lack any other forum for contesting the merits of the reclassification decision does not mean the Board is authorized to review the merits.

b.  The judge correctly examined the agency's adherence to its internal management directives to determine that the agency's actions were in accordance with law.

c.  The appellants received due process of law in the reclassification proceeding.  

3.  The appellants did not prove their retaliation claims.  

4.  The appellants' challenges to the judge's credibility determinations are without merit.


Petitioner:  Frank Rocha
Respondents:  Merit Systems Protection Board & Department of State
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2012-3087
Issuance Date:  July 24, 2012

Timeliness - PFR

    Rocha appealed a final Board order dismissing his petition for review as untimely filed.  The agency terminated Rocha's employment when his excepted service appointment in the Federal Career Intern Program (FCIP) expired.  On appeal to the Board, the administrative judge concluded that the Board lacked jurisdiction and issued an initial decision dismissing the appeal on that basis.  Rocha was informed that the initial decision would become final on December 15, 2010, unless a petition for review was filed by that date.  The initial decision was served on Rocha by email because he had consented to electronic filing.  Rocha filed a petition for review with the Board in June 2011, more than 5 months after the deadline.  The Board informed Rocha that it would consider the merits of his petition only if he established good cause for his untimely filing.  In response, Rocha asserted that he "never received any notification, electronically or otherwise to the fact that [his] case had been dismissed."  The Board found that Rocha failed to establish good cause for his untimely filing and dismissed the petition on that basis.

Holding:  The court affirmed the Board's decision:

1.  Whether the regulatory time limit for an appeal should be waived based upon a showing of good cause is a matter committed to the Board's discretion and the court will not substitute its judgment for that of the Board.  

2.  Although Rocha claims that he did not receive the judge's initial decision, the record shows that the decision was sent to the email address he provided to the Board when he filed his appeal.  As a registered e-filer, Rocha consented to accept all documents issued by the Board in electronic form, and he was required by regulation to monitor his case online to insure that he received all case-related documents.  5 C.F.R. 1201.14(e)(1) and (j)(3).  

3.  The Board correctly determined that it would have had no jurisdiction over Rocha's appeal even if his petition for review had been timely filed.  The State Department's decision not to convert Rocha's appointment to a competitive service position was not an adverse action appealable to the Board .

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the followings cases:

McGee v. Department of Agriculture, No. 2012-3071 (July 20, 2012) (MSPB Docket No. AT-1221-10-0202-C-1) (affirming the Board's decision, which denied McGee's petition for enforcment of a settlement agreement that resolved a Board appeal)

Jones v. Merit Systems Protection Board, No. 2012-3085 (July 24, 2012) (MSPB Docket No. CH-4324-10-1024-I-1) (affirming the Board's decision, which dismissed Jones's petition for review as untimely filed)

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