                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CATHERINE M. HUTH,                              DOCKET NUMBER
                   Appellant,                        CH-3443-15-0223-I-1

                  v.

     DEPARTMENT OF                                   DATE: June 9, 2015
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           David A. Bassi, Oberlin, Ohio, for the appellant.

           Virginia C. Costello, Esquire, Des Plaines, Illinois, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed this appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).
¶2        The appellant sought to appeal the agency’s denial of a performance-based
     salary increase under the Core Compensation Plan (CCP) applicable to her
     management support analyst position under the Performance Management System
     (PMS) of the agency’s Federal Aviation Administration (FAA). Initial Appeal
     File (IAF), Tab 1. The administrative judge informed the appellant that the Board
     did not appear to have jurisdiction over this action and she ordered the appellant
     to file evidence and argument in support of her burden to establish jurisdiction
     over her appeal.   IAF, Tab 2.    The appellant responded to the administrative
     judge’s order and the agency moved to dismiss the appeal for lack of jurisdiction.
     IAF, Tabs 3, 8. The appellant responded in opposition to the agency’s motion.
     IAF, Tab 9.
¶3        After considering the parties’ submissions, the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID).
     In her initial decision, the administrative judge aptly explained that Congress
     directed the FAA to develop and implement its PMS, which, among other things,
     replaced the traditional General Schedule (GS) pay system with the CCP. ID
     at 2-3. Because the appellant is not covered by the GS pay system, and her pay
                                                                                      3

     plan does not entitle her to within-grade increases but instead allows for
     performance-based increases, the denial of which is outside the Board’s authority
     to review, we agree with the administrative judge’s determination to dismiss the
     appeal for lack of jurisdiction without holding a hearing.
¶4        With her petition for review, the appellant includes a 2002 news story
     concerning the success of FAA information technology workers before the
     Federal Labor Relations Authority (FLRA), and she asks questions about the
     substance of the agency’s decisions under the CCP. Petition for Review (PFR)
     File, Tab 1. The agency responds that the appellant’s petition for review does not
     meet the Board’s criteria for review. PFR File, Tab 3.
¶5        The Board will not consider an argument raised for the first time in a
     petition for review absent a showing that it is based on new and material evidence
     not previously available despite the party’s due diligence. Banks v. Department
     of the Air Force, 4 M.S.P.R. 268, 271 (1980).       The news story the appellant
     provides on review is dated long before the record closed and, even though the
     decisions of the FLRA may provide the Board with guidance in certain contexts,
     they are not binding on the Board.        Berkner v. Department of Commerce,
     116 M.S.P.R. 277, ¶ 8 (2011). Ultimately, the appellant identifies no authority
     under which the Board may take jurisdiction over her appeal.          Instead, she
     respectfully accepts that her appeal is likely not within the Board’s jurisdiction,
     acknowledging that, if the FLRA precedent does not change the result in her
     appeal, “then it makes sense for me to withdraw the appeal.” Id. at 4. Although
     the appellant does not provide a copy of the FLRA case at issue, it does not
     involve the Board’s jurisdiction over the FAA’s PMS or CCP, so it does not
     affect the outcome of this appeal. Accordingly, we DENY the appellant’s petition
     for review.
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                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono for       information     regarding    pro    bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
                                                                                5

provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
