                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROMERO HONGA, JR.,                              DOCKET NUMBER
                 Appellant,                          DE-0351-16-0072-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: May 6, 2016
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Romero Honga, Jr., Peridot, Arizona, pro se.

           Naomi L. White, Phoenix, Arizona, 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 his reduction in force (RIF) appeal for lack of jurisdiction because a
     negotiated grievance procedure was the exclusive remedy available to him.
     Generally, we grant petitions such as this one only when: the initial decision


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     contains erroneous findings of material fact; the initial 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 administrative 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, 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        Effective February 17, 2015, the agency appointed the appellant to an
     excepted-service Custodial Worker position at the agency’s Indian Health
     Service, Phoenix Area Indian Health Service, San Carlos Service Unit. Initial
     Appeal File (IAF), Tab 6 at 12. The appellant’s Federal position was abolished in
     July 2015; however, the San Carlos Apache Tribe took over operations of the
     San Carlos Hospital pursuant to an Indian Self-Determination and Education
     Assistance Act of 1975 contract.     Id. at 22-24.    The appellant entered into a
     Special   Purpose   Assignment     Agreement       under   the   authority   of   the
     Intergovernmental Personnel Act (IPA), by which he was detailed to a Custodial
     Worker position with the tribal organization for a 2-year period while still
     remaining a Federal employee.      Id. at 23-28.     By signing the agreement, the
     appellant certified, among other things, that he had been informed that his
     assignment could be terminated at any time by the tribal organization and that he
     understood that he may be subject to RIF procedures at the end of his assignment
                                                                                     3

     unless he accepted a direct hire position with the tribal organization or
     reassignment to an agency position.      Id. at 25-28.   The tribal organization
     terminated the appellant’s assignment on September 2, 2015, and the agency
     separated him from Federal service by a RIF effective November 1, 2015. Id.
     at 13-14, 30, 32.
¶3         The appellant appealed his separation to the Board, arguing that the tribal
     organization had no reason to terminate him from his job. IAF, Tab 2 at 2. The
     agency moved to dismiss the appeal for lack of jurisdiction, arguing that: (1) the
     Board could not review the tribal organization’s decision to terminate the IPA
     assignment because the Board does not have jurisdiction over the actions of a
     tribal organization; and (2) the Board could not adjudicate issues related to the
     agency’s RIF action because the negotiated grievance procedure was the
     exclusive remedy available under the collective bargaining agreement (CBA)
     where, as here, the appellant had not raised a claim of discrimination prohibited
     by 5 U.S.C. § 2302(b)(1). IAF, Tab 6 at 7‑9. The administrative judge notified
     the appellant of his jurisdictional burden and afforded him an opportunity to
     respond to the agency’s motion to dismiss.       IAF, Tab 7.    In response, the
     appellant stated that the tribal organization had no reason to separate him and
     requested a hearing. IAF, Tab 8. In an initial decision, the administrative judge
     found that the appellant was not entitled to a hearing because he failed to make a
     nonfrivolous allegation of jurisdiction. The administrative judge dismissed the
     appeal for lack of jurisdiction for the reasons proffered by the agency.     IAF,
     Tab 10, Initial Decision (ID).
¶4         In response to the question on the petition for review form asking the
     appellant whether there were any other reasons why the initial decision was
     wrong, he hand wrote, “Yes,” then, “sex [harassment] and [threatened]
     2 co-worker[s].” Petition for Review (PFR) File, Tab 1 at 2. The agency has
     submitted a response in opposition to the appellant’s petition for review. PFR
     File, Tab 3.
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     The administrative judge correctly determined that the Board lacks jurisdiction
     over the tribal organization’s decision to terminate the appellant’s assignment.
¶5          The Board’s jurisdiction 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).     The appellant’s IPA assignment was
     terminated by the San Carlos Apache Healthcare Corporation pursuant to the
     terms of the Special Purpose Assignment Agreement. IAF, Tab 6 at 23-28, 30.
     The San Carlos Apache Healthcare Corporation is not a Federal agency and,
     therefore, is not part of the Federal Government subject by statute to competitive
     or excepted service requirements.      See 5 U.S.C. § 3371(2)‑(3); Blackhat v.
     Department of Health & Human Services, 117 M.S.P.R. 552, ¶ 5 (2012).
     Accordingly, we find that the administrative judge correctly determined that the
     Board lacks jurisdiction to      review   the San Carlos Apache        Healthcare
     Corporation’s decision to terminate the appellant’s IPA assignment. ID at 3.
     The administrative judge correctly determined that the Board lacks jurisdiction
     over this appeal because the negotiated grievance procedure is the exclusive
     remedy available to the appellant to challenge the RIF action.
¶6          If an employee is covered by a CBA that does not exclude RIF actions, then
     the negotiated grievance procedures set forth in the CBA are generally the
     exclusive procedures for resolving RIF actions that would otherwise be
     appealable to the Board.       Blackhat, 117 M.S.P.R. 552, ¶ 6; see 5 U.S.C.
     § 7121(a); 5 C.F.R. § 1201.3(c)(1). An aggrieved employee who alleges that he
     has been affected by discrimination prohibited under 5 U.S.C. § 2302(b)(1),
     however, may elect to file an appeal with the Board concerning an action
     otherwise exclusively covered by the negotiated grievance procedures of the
     CBA.     Blackhat, 117 M.S.P.R. 552, ¶ 6 n.3; see 5 U.S.C. § 7121(d); 5 C.F.R.
     § 1201.3(c)(1)(i).
¶7          Here, as the administrative judge correctly determined, the appellant was
     covered by a CBA, which did not exclude RIF actions, and he did not raise any
     claim of discrimination in connection with his appeal of the RIF action. ID at 6;
                                                                                      5

     see IAF, Tab 2, Tab 6 at 16, Tab 8. Thus, we find no error in the administrative
     judge’s finding that the Board lacks jurisdiction over the RIF action because the
     CBA was the exclusive remedy available to the appellant.      ID at 6. We further
     find no error in the administrative judge’s determination that the appellant failed
     to make a nonfrivolous allegation of jurisdiction as to entitle him to a hearing.
     See Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344 (Fed.
     Cir. 2006).
¶8        For the first time on review, the appellant appears to raise of claim of
     discrimination in connection with the RIF action.          PFR File, Tab 1 at 2.
     However, the appellant was properly informed of his jurisdictional burden below
     and was afforded an opportunity to raise any claims of discrimination at that time,
     but did not do so.    IAF, Tabs 7-8; see Burgess v. Merit Systems Protection
     Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (explaining that an appellant must
     receive explicit information on what is required to establish an appealable
     jurisdictional issue). Moreover, the appellant’s vague statement that the initial
     decision was wrong because of “sex [harassment] and [threatened] 2 co‑
     worker[s]” fails to present any meaningful argument for our review. Finally, the
     appellant has not alleged that he previously lacked sufficient knowledge to
     suspect that discrimination occurred. Consequently, the appellant’s allegations of
     discrimination on review do not provide a basis for the Board’s jurisdiction over
     this appeal.   See Weslowski v. Department of the Army, 80 M.S.P.R. 585,
     ¶¶ 11-14 (finding that the appellant’s allegations of discrimination raised for the
     first time on review did not provide a basis for Board jurisdiction over his appeal
     from his RIF separation where he had sufficient information to reasonably suspect
     that his separation might be discriminatory), aff’d, 217 F.3d 854 (Fed. Cir. 1999)
     (Table).
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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 U.S.
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 U.S. 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 U.S. 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 U.S. 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
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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.
