U.S. Court of Appeals, Federal Circuit
February 08, 1999
PEDRO VELA, PETITIONER,
DEPARTMENT OF THE NAVY, RESPONDENT.
Before Schall, Circuit Judge, Smith, Senior Circuit Judge, and Bryson, Circuit Judge.
The opinion of the court was delivered by: Per Curiam.
Pedro Vela petitions for review of the final decision of the Merit Systems Protection Board (Board) that dismissed for lack of jurisdiction his appeal of his demotion by the Morale, Welfare, and Recreation Department at the Naval Air Station in Kingsville, Texas (MWR). Vela v. Department of the Navy, Docket No. DC-0752-98-0014-I-1. The January 23, 1998 initial decision of the Administrative Judge (AJ) became the final decision of the Board on June 25, 1998, when the Board denied Mr. Vela's petition for review. We affirm.
Mr. Vela was employed as a chef by the MWR. On August 25, 1997, he was demoted from that position to the position of cook. The Board dismissed Mr. Vela's appeal of his demotion after it concluded that it lacked jurisdiction because he was an employee of a non-appropriated funds instrumentality (NAFI).
The scope of our review of a decision of the Board is limited. Specifically, we must affirm the decision unless we find it to be "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence . . . ." 5 U.S.C. § 7703(c); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986), cert. denied, 479 U.S. 1037 (1987). At the same time, the jurisdiction of the Board is not plenary, but is limited to that jurisdiction conferred by law, rule or regulation. See 5 U.S.C. § 7701(a); 5 C.F.R. § 1201.3(a); Manning v. Merit Sys. Protection Bd., 742 F.2d 1424, 1426 (Fed. Cir. 1984).
Mr. Vela argues that the Board erred in dismissing his appeal for lack of jurisdiction. He contends that he is an "employee" under 5 U.S.C. § 7511 and that therefore the Board has jurisdiction to hear his appeal pursuant to 5 U.S.C. § 7701. We disagree.
The Board has jurisdiction to hear appeals from "employees" pursuant to 5 U.S.C. § 7701(a) (`[a]n employee . . . may submit an appeal to the [Board] from any action which is appealable to the Board under any law, rule, or regulation"). In addition, pursuant to 5 U.S.C. § 7513(d) "employees" have the right to appeal adverse actions taken against them. Under 5 U.S.C. § 7511 an "employee" is defined as an individual in the "competitive service."
Employees of NAFIs are excluded from the definition of "employee" under Title V of the United States Code. *fn1 Section 2105(c) of Title V provides that "an employee paid from nonappropriated funds [of the armed services for activities] conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of . . . laws administered by the Office of Personnel Management," absent certain exceptions not applicable here. The definition of employee under 5 U.S.C. § 7511 does not modify this exclusion, as it defines "employees" in terms of "competitive service." The term "competitive service" is used throughout Title V but is not used in connection with employees of NAFIs. See Perez v. Army, 680 F.2d 779, 785-787 (D.C. Cir. 1982) (holding that the removal of a NAFI employee is not appealable to the Board). The Board did not err in dismissing Mr. Vela's appeal for lack of jurisdiction.
Each party shall bear its own costs.