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Bodansky v. Merit Systems Protection Board

November 16, 1999


Before Michel, Plager, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.


Harry Bodansky, a former employee of the United States Department of Commerce, seeks review of the decision of the Merit Systems Protection Board, Docket No. DC-3443-98-0451-I-1, dismissing his appeal. We affirm.


Mr. Bodansky retired from the Commerce Department in 1995 as part of an agency "buyout" program. Three years later, he filed an appeal with the Merit Systems Protection Board in which he sought an order directing that a notice of proposed removal be expunged from his official personnel file and that the last performance rating he received before his retirement be modified.

In an acknowledgment order entered on April 17, 1998, the administrative Judge assigned to Mr. Bodansky's case noted that his appeal presented a jurisdictional issue and directed that within 15 days he file evidence and argument to prove that his case was within the Board's jurisdiction. In response to that order, Mr. Bodansky submitted a letter in which he asserted that the Merit Systems Protection Board had jurisdiction over his appeal pursuant to 5 U.S.C. § 7701(a). He contended that the Board had jurisdiction because the two agency actions on which his appeal was premised -- the agency's failure to withdraw its proposed removal action and its refusal to rate him as "fully successful" for the fiscal year ending September 30, 1994 -- had "adverse personal and financial consequences" for him. He added that he intended to offer "extensive additional documentation" that would "support other issues, such as deliberate discrimination in order to undermine my place in the immediate organization and failure by higher management to implement an urgent transfer to resolve a well-known difficult interpersonal relationship between appellant and his superior, for consideration in connection with the appeal." No such documentation was filed during the 15-day period set forth in the administrative Judge's acknowledgment order.

On May 20, 1998, the administrative Judge issued an initial decision dismissing Mr. Bodansky's appeal for lack of jurisdiction. The administrative Judge noted that the Board has no jurisdiction to entertain appeals regarding performance ratings and no jurisdiction over the contents of an employee's official personnel file. The administrative Judge explained that if Mr. Bodansky had been removed from the federal service, he might have had appeal rights to contest that action, but that the Board lacks jurisdiction to review either proposed actions that were not effected or the inclusion of particular matters in an employee's official personnel file.

On Mr. Bodansky's petition for review of the initial decision, the Board declined to review the administrative Judge's initial decision. The Board noted that there was a question as to the timeliness of Mr. Bodansky's appeal but declined to decide that issue because Mr. Bodansky's petition failed to satisfy the criteria for review set forth in 5 C.F.R. § 1201.115.


The administrative Judge correctly ruled that Mr. Bodansky's appeal does not raise any issue that is within the Board's jurisdiction. The Board is a forum of limited jurisdiction; only certain agency actions, designated by statute or regulation, fall within the Board's jurisdiction. See Cowan v. United States, 710 F.2d 803, 805 (Fed. Cir. 1983). Mr. Bodansky's request for an order expunging the proposed notice of removal from his personnel file is not among the designated agency actions for which an appeal can be taken to the Board. See Cruz v. Department of the Navy, 934 F.2d 1240, 1243 (Fed. Cir. 1991) (en banc). Likewise, the Board has no jurisdiction over an employee's challenge to a performance evaluation that is not linked to an appealable action. See Manley v. Department of the Air Force, 91 F.3d 117, 119 (Fed. Cir. 1996). To the extent that Mr. Bodansky sought to assert a claim of discrimination by the agency in his April 27, 1998, response to the administrative Judge's acknowledgment order, that claim, too, is not appealable to the Board, because the Board lacks jurisdiction over a claim of discrimination that is not made in connection with an appealable action. See Cruz, 934 F.2d at 1245.

Mr. Bodansky characterizes the question of jurisdiction as a "procedural technicalit[y]" and a "procedural obstacle[ ]" in the way of a decision on the merits of the case. He asserts that the Board should have entertained the case because the agency's conduct in connection with the proposed removal action and the performance rating was wrong and has caused him professional harm and financial loss. Contrary to Mr. Bodansky's assertion, however, a claim of agency misconduct and consequent reputational and financial harm is not sufficient to give the Board jurisdiction if the conduct in question is not a type of agency action that is otherwise within the Board's jurisdiction. Moreover, the jurisdiction of a tribunal is not a mere "technicality" and "procedural obstacle," but defines the legal power of the tribunal to act. Because the agency actions at issue in this case are not within the Board's authority to review, the Board was correct to dismiss the appeal without reaching the merits of Mr. Bodansky's claims.

In addition to challenging the Board's jurisdictional ruling, Mr. Bodansky objects to the administrative Judge's ruling on several procedural grounds. The procedures employed by the administrative Judge were unobjectionable, however. The administrative Judge noted the jurisdictional problem in the case, gave Mr. Bodansky an opportunity to respond, and then, after Mr. Bodansky had filed his response, issued a ruling on the jurisdictional issue that rendered any further action in the case unnecessary. The actions of the administrative Judge to which Mr. Bodansky objects did not violate his rights, and in any event he has failed to show that absent any of the asserted procedural errors he would have been able to satisfy the Board that it had jurisdiction in his case.


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