U.S. Court of Appeals, Federal Circuit
March 16, 1999
KURT J. SPITZBARTH, PETITIONER,
UNITED STATES POSTAL SERVICE, RESPONDENT.
Before Plager, Circuit Judge, Smith, Senior Circuit Judge, and Rader, Circuit Judge.
The opinion of the court was delivered by: Per Curiam.
Kurt J. Spitzbarth appeals the decision of the Merit Systems Protection Board ("Board"), No. NY-0752-97-0585-I-1, dismissing his appeal for lack of jurisdiction, on the basis that Spitzbarth's reassignment by the United States Postal Service ("USPS" or "agency") was voluntary. We affirm.
Spitzbarth was a Systems Liaison Specialist at the USPS's Postal Data Center in Wilkes-Barre, Pennsylvania. In 1995, the USPS decided to transfer the customer support functions of the Wilkes-Barre facility to Minneapolis, Minnesota. Affected employees in Wilkes-Barre, including Spitzbarth, were given the options of following their work to Minnesota or requesting reassignment in the local commuting area. Pursuant to a Memorandum of Understanding (MOU) reached with the relevant union, the grade and pay of locally reassigned employees were to be protected for one year (later extended to two years).
Spitzbarth requested local reassignment. On August 3, 1995, the USPS approved his request and assigned him as a Machine Distribution Clerk, PS 5, in Wilkes-Barre. On August 19, 1995, Spitzbarth was reassigned to River Edge, New Jersey, as a Distribution Window Clerk, PS 5. Spitzbarth was subsequently promoted to a supervisory level, EAS 16, in the USPS's New Jersey International and Bulk Mail Center.
Pursuant to the MOU, Spitzbarth's salary was maintained at the protected rate for two years, but on August 16, 1997, his salary decreased from $58,134 (the protected rate) to $49,495 (the maximum salary for his EAS 16 position). Spitzbarth appealed the alleged reduction in pay to the Board.
On October 17, 1997, the Board's Administrative Judge ordered Spitzbarth to show cause why the appeal should not be dismissed for lack of jurisdiction, since Spitzbarth's reassignment, with the resulting pay decrease, appeared to be voluntary. After considering the parties' submissions and holding a telephonic conference, the AJ found that Spitzbarth's reassignment had been voluntary and dismissed the appeal.
The AJ's initial decision became final when the full Board denied Spitzbarth's petition for review on September 25, 1998. Spitzbarth timely appealed to this court.
Standard of Review
The jurisdiction of the Board is limited by statute. The Board has authority to hear appeals only from the types of actions specifically enumerated by law, rule, or regulation. See 5 U.S.C. § 7701(a) (1994). Voluntary actions are not appealable. Latham v. United States Postal Service, 909 F.2d 500, 502 (Fed. Cir. 1990). The petitioner has the burden of establishing by a preponderance of the evidence that the Board has jurisdiction. See 5 CFR § 1201.56(a)(2)(i) (1998).
This court reviews the Board's ultimate Conclusion on the jurisdiction issue independently and without deference, because the Board's jurisdiction is a question of law. King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996). In other respects, including the underlying factual findings, we review the Board's decision under the statutory standard to determine if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986). Whether an employee accepted reassignment voluntarily is a question of fact. See McGucken v. United States, 407 F.2d 1349, 1351 (Ct. Cl. 1969). Therefore, the Board's finding that Spitzbarth's reassignment was voluntary will be upheld if supported by substantial evidence.
Jurisdiction of the Board
Voluntary actions cannot be appealed to the Board. Latham v. USPS, 909 F.2d at 502. Employee-initiated actions, such as a request for reassignment in a local commuting area, are presumed to be voluntary. See Covington v. Department of Health and Human Servs., 750 F.2d 937, 941 (Fed. Cir. 1984). A petitioner can rebut this presumption by showing that the action was obtained through agency duress or misinformation. See id. at 942 (action taken by employee may be "involuntary if it is obtained by agency misinformation or deception").
The sole ground of jurisdiction put forward by Spitzbarth on appeal is that his reassignment was involuntary because the agency misrepresented the "local commuting area" to which he would be reassigned. Spitzbarth argues that the USPS misled him into believing that he would be reassigned to northern New Jersey but actually reassigned him to Wilkes-Barre.
Spitzbarth's argument fails for two reasons. First, this argument was apparently not made to the Board and therefore was not considered below. The Board's initial decision states that Spitzbarth
"argued that his transfer was not voluntary because the agency's own regulations were not followed. ... He next contended that because his position was abolished, he should have received indefinite saved grade and pay. ... The appellant further argued that the agency never clarified its position and he assumed that he had indefinite saved grade and pay. ... He also argued that since he has been reassigned to an EAS position, he is no longer a member of the [union's] bargaining unit and the MOU should not have been applied to him."
The AJ considered and rejected each of the above arguments. The AJ also concluded that Spitzbarth "ha[d] failed to make a non-frivolous allegation that he was misinformed by the agency or that he was a subject of duress." Since Spitzbarth's argument that he was misled into believing that he would be reassigned to New Jersey, not Wilkes-Barre, was not presented below, we need not consider it for the first time on appeal. See Synan v. Merit Sys. Protection Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985).
Second, even assuming that this argument was presented below, and simply ignored in the initial decision, the evidence of record contradicts Spitzbarth's position. The record shows that Spitzbarth was reassigned to a postal facility in New Jersey only two weeks after the agency approved his request for local reassignment. The evidence therefore does not support Spitzbarth's position that the agency duped him into accepting local reassignment by misrepresenting the local area to which he would be reassigned.
The Board's Conclusion-that Spitzbarth's decrease in pay resulted from his voluntary decision to accept local reassignment-is supported by substantial evidence and the Board's decision is therefore affirmed.