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Riojas v. Merit Systems Protection Board

U.S. Court of Appeals, Federal Circuit


September 15, 1999

REYNALDO RIOJAS, PETITIONER,
v.
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.

Before Rader, Circuit Judge, Skelton and Archer, Senior Circuit Judges.

PER CURIAM.

Reynaldo Riojas appeals a January 22, 1999 order of the Merit Systems Protection Board (Board) dismissing his appeal for lack of jurisdiction. Because Mr. Riojas has not shown that his claim falls within the Board's jurisdiction, this court affirms.

I.

Mr. Riojas was an Aircraft Engine Mechanic with the Department of the Air Force (Air Force). On March 24, 1994, Mr. Riojas was detailed as an Aircraft Engine Mechanic Supervisor, WS-8602-10. The supervisor position was a more senior position than the mechanic position, ordinarily justifying increased pay and a higher grade. For approximately two years after Mr. Riojas began serving in the supervisor role, he received neither pay nor grade commensurate with his assignment.

On January 3, 1996, Mr. Riojas filed a grievance with the Air Force requesting backpay and experience credit for his service as a supervisor. On May 20, 1998, the arbitrator who heard the case dismissed the grievance for lack of jurisdiction. On June 15, 1998, Mr. Riojas filed an appeal with the Board complaining of the Air Force's failure to give him backpay, credit him with supervisory experience, and advise him of the appropriate procedure to redress his grievances. The Board advised the parties that it might not have jurisdiction to hear the case and thereafter held a show cause hearing on the issue of jurisdiction. During the show cause hearing Mr. Riojas stated that although two years late, he had received the claimed backpay and experience credit. Mr. Riojas also stated that he was not appealing the decision of the arbitrator. Instead, Mr. Riojas stated that he was appealing the Air Force's failure to give him timely experience credit, resulting in his failure to obtain any of four positions for which he had applied in the interim. The Board dismissed Mr. Riojas' appeal because it found that the Board had no jurisdiction to hear claims that Mr. Riojas had been improperly classified as a mechanic during the aforementioned two-year period.

II.

This court affirms Board decisions unless found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, procedurally defective, or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994).

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) (1994); 5 C.F.R. § 1201.3(a) (1998); Manning v. MSPB, 742 F.2d 1424, 1426 (Fed. Cir. 1984). The Board has jurisdiction over an adverse action resulting in a reduction in grade or pay, and over demotions. However, the Board does not have jurisdiction over claims of failure to properly credit an employee with job experience. See 5 C.F.R. § 1201.3(a) (1998).

In his brief before this court, Mr. Riojas disputes the decision of the arbitrator, which was not, according to Mr. Riojas during the show cause hearing, the subject of the appeal to the Board. Instead, it is only the Board's determination that it lacks jurisdiction which we can review here.

Because Mr. Riojas has already received his backpay and his experience credit, logically, he can only be seeking recourse for the delay in crediting him with experience earned while performing in a supervisor's capacity. Mr. Riojas has failed to identify, and this court is not aware of any statute providing jurisdiction to the Board to review such a complaint.

Alternatively, Mr. Riojas could theoretically attack specific decisions not to hire him for certain positions. However, as the Board points out in its August 25, 1998 Initial Decision, such an attack must be filed as a complaint with the Office of Special Counsel prior to filing an appeal with the Board. See 5 U.S.C. § 1214. Because Mr. Riojas was not subjected to personnel actions which are enumerated in 5 U.S.C. § 7512 (1996) or 5 C.F.R. § 1201.3, we find that the Board does not have jurisdiction over his claim. We therefore affirm.

19990915


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