                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LEE RONSO,                                      DOCKET NUMBER
                         Appellant,                  AT-3443-14-0157-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 25, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lee Ronso, Cantonment, Florida, pro se.

           Douglas T. Frydenlund, Portsmouth, Virginia, and Nikcy Clervil,
             Jacksonville, Florida, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed for lack of jurisdiction his appeal of the agency’s failure to compensate
     him for his time “on-call.” Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial

     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     decision is based on an erroneous interpretation of statute or 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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant sought to appeal the agency’s failure to pay him for time he
     was on-call, allegedly in violation of Title 38 guidelines.     Initial Appeal File
     (IAF), Tab 1 at 4-5.       According to the appellant, another employee was
     compensated for the same on-call work. Id. The administrative judge ordered the
     appellant to produce evidence and argument to prove that the Board had
     jurisdiction over his appeal. IAF, Tab 2 at 2, Tab 3. In its narrative response, the
     agency argued that the appellant had not met his burden to prove jurisdiction and
     further asserted that the appellant was properly excluded from on-call pay. IAF,
     Tab 7 at 4-5. The appellant responded to the agency’s submission but did not
     address the Board’s jurisdiction. IAF, Tabs 8, 9. Instead, he argued that he was
     entitled to on-call pay because he was a licensed marriage and family counselor
     who was required to be on call and asserted that the agency paid a lump sum to a
     psychologist who performed on-call duties.           IAF, Tab 9 at 4-5.         The
     administrative judge dismissed the appeal for lack of jurisdiction, finding that the
                                                                                                 3

     appellant did not suffer a reduction in pay that is appealable to the Board. 2 IAF,
     Tab 10, Initial Decision (ID) at 2.
¶3           The appellant has filed a timely petition for review in which he contends the
     Board has jurisdiction because he is alleging inequitable pay. Petition for Review
     (PFR) File, Tab 1 at 5, Tab 5 at 4-5. He also seeks to submit new documents on
     review. PFR File, Tab 5 at 5, 7-9. The agency has responded to the petition for
     review, and the appellant has replied. PFR File, Tabs 4, 5.
¶4           We agree with the administrative judge that we lack jurisdiction to
     adjudicate on-call pay. ID at 2. The Board’s jurisdiction is not plenary; it is
     limited to those matters over which it has been given jurisdiction by law, rule, or
     regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir.
     1985). Thus, it follows that the Board does not have jurisdiction over all matters
     alleged to be unfair or incorrect. Johnson v. U.S. Postal Service, 67 M.S.P.R.
     573, 577 (1995). Although the Board generally has jurisdiction over appeals of
     reductions in pay, its jurisdiction is limited to reductions in “the rate of basic pay
     fixed by law or administrative action for the position held by the employee, that
     is, the rate of pay before any deductions and exclusive of additional pay of any
     kind.”     Vega v. U.S. Postal Service, 108 M.S.P.R. 221, ¶ 11 (2008) (quoting
     5 C.F.R. § 752.402); see U.S.C. §§ 7511(a)(4) (defining “pay” for purposes of a
     chapter 75 adverse action appeal), 7512(4) (listing “a reduction in pay” among
     those adverse actions covered under chapter 75 of Title 5), 7513(d) (providing
     that a covered employee subject to an adverse action has the right to appeal to the
     Board). The Board and the courts have interpreted the term “rate of basic pay”
     restrictively because Congress intended adverse action rights, such as the right to
     appeal a reduction in pay, to be given a narrow construction.                  Gaydar v.
     Department of the Navy, 121 M.S.P.R. 357, ¶ 6 (2014). Thus, a reduction in pay
     does not include premium pay such as the “on-call” pay the appellant claims he

     2
         The appellant did not request a hearing, and none was held. IAF, Tab 1 at 2; ID at 1.
                                                                                       4

     should receive. See Spinks v. U.S. Postal Service, 621 F.2d 987, 988-89 (9th Cir.
     1980) (finding that a loss in premium pay for working at night was not an
     appealable reduction in pay).      Therefore, the appellant has not suffered a
     reduction in pay that is appealable to the Board.
¶5        On review, the appellant repeats his argument, made below, that he is being
     treated unfairly because he is being paid under Title 5, rather than Title 38. PFR
     File, Tab 1 at 5-7; IAF, Tab 1 at 5, Tab 9 at 4-5. However, the Board does not
     have jurisdiction over the pay provisions of Title 38.     See generally 5 C.F.R.
     §§ 1201.2-1201.3 (listing those claims over which the Board has original and
     appellate jurisdiction). Although the appellant argues that the Board should hear
     his claim because he is not covered by a collective bargaining agreement, the lack
     of a grievance remedy does not vest the Board with jurisdiction. 3 PFR File, Tab 1
     at 5; IAF, Tab 8 at 3; see Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 11
     (2009) (the Board lacks jurisdiction over claims regarding the operation of the
     grievance process under a collective bargaining agreement).
¶6        On review, the appellant argues, for the first time, that his allegedly unfair
     treatment is motivated by religious discrimination. PFR File, Tab 5 at 5. The
     Board generally 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); 5 C.F.R. § 1201.115(d). Here, the
     appellant has not shown that his claim of religious discrimination is based on new
     evidence.   In any event, the Board has no jurisdiction over appeals based on
     alleged religious discrimination, unless such allegation is raised in conjunction
     with a matter otherwise within the Board’s jurisdiction. Shepard v. U.S.
     Department of Agriculture, 2 M.S.P.R. 528, 529-30 (1980) (citing 5 U.S.C.

     3
       The agency asserted below that the appellant was, in fact, covered by a collective
     bargaining agreement. IAF, Tab 7 at 10. Because such coverage is not relevant to our
     jurisdictional holding here, we need not resolve this factual dispute.
                                                                                          5

     § 7702(a)(1) (providing that the Board has jurisdiction over Title VII-type
     discrimination and reprisal claims raised in the context of an appealable action)).
     Therefore, the appellant’s late-raised claim of religious discrimination does not
     establish Board jurisdiction over his appeal. 4
¶7         Also for the first time on review, the appellant provides an exchange of
     emails that he asserts “could not be wholly retrieved and were not available when
     the record was closed.” PFR File, Tab 5 at 5, 7-9. Under 5 C.F.R. § 1201.115,
     the Board will not consider evidence submitted for the first time with the petition
     for review absent a showing that it was unavailable before the record was closed
     despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.
     211, 214 (1980). To constitute new evidence, the information contained in the
     documents, not just the documents themselves, must have been unavailable
     despite due diligence. 5 C.F.R. § 1201.115(d). Further, the Board will not grant
     a petition for review based on new evidence absent a showing that it is of
     sufficient weight to warrant an outcome different from that of the initial decision.
     Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
¶8         The record on jurisdiction closed in January 2014. IAF, Tab 3 at 2. The
     emails themselves are dated almost 7 months earlier. PFR File, Tab 5 at 7-9.
     Although an inquiry from the appellant initiated the email string, he was not
     listed as a recipient on the response and may not have received the response when
     it was originally generated. Id. However, even assuming he only acquired the
     emails shortly before submitting them to the Board, the appellant still has not
     explained why the underlying information was not available, nor does he discuss


     4
       Likewise, the appellant’s claims that the failure to pay him for his on-call time was
     procedural error or “not in accordance with law” are not independent bases for Board
     jurisdiction. See PFR File, Tab 1 at 5; see 5 U.S.C. § 7701(c)(2)(A), (C) (providing
     that an appealable action may not be sustained if the employee or applicant shows
     harmful procedural error, or that the decision was not in accordance with law); Hurston
     v. Department of the Army, 113 M.S.P.R. 34, ¶ 11 (2010) (the Board has no independent
     jurisdiction over a claims of discrimination and harmful error).
                                                                                        6

     his diligence in trying to obtain this information. Therefore, we cannot find that
     the information is new.      Further, the exchange does not warrant an outcome
     different from that of the initial decision. The emails contain a discussion of
     whether marriage and family counselors are eligible for on-call pay under Title
     38. Because, as discussed above, the eligibility for on-call pay under Title 38 is
     not within the Board’s jurisdiction, this allegedly new information is not material.
¶9         Accordingly, we affirm the administrative judge’s dismissal for lack of
     jurisdiction.

                      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.
                                                                                7

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services 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.
