                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BARRY AHURUONYE,                                DOCKET NUMBER
                 Appellant,                          DC-531D-15-0242-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: June 29, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Barry Ahuruonye, Hyattsville, Maryland, pro se.

           Josh C. Hildreth, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal of the agency action denying his within-grade increase
     (WIGI) for lack of jurisdiction. For the reasons discussed below, we GRANT the
     appellant’s petition for review, REVERSE the initial decision, and REMAND the



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     case to the Washington Regional Office for further adjudication in accordance
     with this Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant is a Grants Management Specialist, GS-12, step 3.          Initial
     Appeal File (IAF), Tab 21 at 61. On November 28, 2014, the agency issued him a
     performance appraisal for Fiscal Year 2014, rating his overall performance as
     unsatisfactory. Id. at 22. On December 11, 2014, he filed an appeal with the
     Board asserting that the agency denied him a WIGI because he was due to receive
     a WIGI to step 4 by December 2, 2014, and he had not yet received any increase
     in pay.   IAF, Tab 1 at 5, Tab 36 at 4.       He raised an affirmative defense of
     whistleblower reprisal and declined a hearing. IAF, Tab 1 at 2, 5, Tab 15 at 3.
¶3         On January 8, 2015, the agency moved to dismiss the appeal on the ground
     that it was premature because the agency “ha[d] not yet made a determination
     regarding Appellant’s level of competence.” IAF, Tab 5 at 4-6. It asserted that it
     was not required to make such a determination until May 23, 2015, because its
     last determination that the appellant was not performing at an acceptable level of
     competence (ALOC) occurred on May 23, 2014. Id. at 4.
¶4         Then, on January 20, 2015, while the appeal was still pending below, the
     appellant’s supervisor emailed him a letter “officially notify[ing]” him that his
     WIGI to step 4 was denied. 2 IAF, Tab 21 at 63. The letter advised the appellant
     of his right to request reconsideration of the decision within 15 days of his receipt
     of the notice. Id. The appellant responded on January 21, 2015, acknowledging
     receipt of the email and stating, “this matter is being appealed at MSPB.” Id. at
     64.   He took no further action to request reconsideration of the WIGI denial.




     2
       On review, the appellant appears to assert that the administrative judge ordered the
     agency to issue him a WIGI denial letter. See Petition for Review (PFR) File, Tab 1 at
     13. There is no such evidence in the record.
                                                                                               3

     See id. at 65. Thus, in its March 5, 2015 close of record submission, 3 the agency
     moved to dismiss the appeal on the ground that the Board lacked jurisdiction over
     the appeal because the appellant failed to seek reconsideration of the January 20,
     2015 denial notice. Id. at 4-7.
¶5          The administrative judge issued an initial decision dismissing the appeal for
     lack of jurisdiction.    IAF, Tab 39, Initial Decision (ID).         She found that the
     appeal was prematurely filed, but that it ripened while pending. ID at 1. She
     concluded, however, that the Board lacked jurisdiction over the appeal because
     the appellant failed to show that he requested reconsideration of the January 20,
     2015 WIGI denial notice. ID at 2-3.
¶6          The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. He argues that, as of December 2, 2014, the agency had effectively
     denied his WIGI because he did not receive an increase in pay; and that the
     agency acted improperly by issuing the denial notice on January 20, 2015, rather
     than notifying him in advance of its decision to deny his WIGI. Id. at 11-13. The
     agency has filed a response, and the appellant has filed a reply. 4 PFR File, Tabs
     3-4.


     3
       The appellant argues that the admin istrative judge should not have permitted the
     agency to raise the issue of jurisdiction in its close of record submission because the
     agency failed to timely raise an objection regarding jurisd iction in response to the
     prehearing conference summary. PFR File, Tab 1 at 5, 10. We discern no error because
     the issue of jurisdiction is always before the Board and may be raised by either party or
     sua sponte by the Board at any time. Poole v. Department of the Army, 117 M.S.P.R.
     516, ¶ 9 (2012).
     4
       The appellant also asserts that the administrative judge erred by denying his motion to
     compel the agency to produce the documentation, which he contends would have shown
     the actual date of the WIGI denial. PFR File, Tab 1 at 5. We find that this issue is now
     moot in light of our finding of jurisd iction. He also argues that the admin istrative judge
     erred by not sanctioning the agency for failing to submit an agency file. Id. at 9. He
     does not explain how the agency’s failure to submit an agency file harmed him. See
     Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (an administrative
     judge’s procedural error is of no legal consequence unless it is shown to have adversely
     affected a party’s substantive rights). Moreover, we discern no harm because the
     agency filed a motion to dismiss, as well as a detailed close of record submission with
                                                                                        4

     The appellant was due to receive his WIGI to step 4 on November 30, 2014.
¶7        On April 4, 2014, an initial decision in a prior Board appeal ordering the
     agency to grant the appellant a WIGI to step 2 retroactive to December 2, 2012,
     became the Board’s final decision when neither party filed a petition for review.
     MSPB Docket No. DC-531D-13-1273-I-1, Initial Decision (Feb. 28, 2014);
     see 5 C.F.R. § 1201.113. The appellant therefore was due to receive his WIGI to
     step 3 on December 1, 2013. See 5 U.S.C. § 5335 (a)(1). On May 23, 2014, the
     agency informed him of its decision to deny his WIGI to step 3. IAF, Tab 21
     at 19. The appellant filed an appeal with the Board regarding the agency’s denial
     of his WIGI to step 3 and, on December 29, 2014, the Board reversed the action
     and ordered the agency to retroactively grant him his WIGI to step 3. MSPB
     Docket No. DC-531D-14-0587-I-1, Remand Order (Dec. 29, 2014). The agency
     subsequently granted the step 3 WIGI retroactive to December 1, 2013. IAF, Tab
     21 at 61. We therefore find that the appellant was due to receive his WIGI to step
     4 52 weeks later on November 30, 2014. See 5 U.S.C. § 5335(a)(1).
¶8        We reject the agency’s assertion that it believed the appellant was not due
     to receive his WIGI to step 4 until May 23, 2015, because it did not inform him
     until May 23, 2014, of its decision to deny his WIGI to step 3. See PFR File, Tab
     1 at 5. The agency is not permitted to extend the appellant’s due date for a WIGI
     simply by delaying in informing him of its decision to deny it.        Notably, the
     agency does not claim that it properly delayed making an ALOC determination
     pursuant to 5 C.F.R. § 531.409(c)(1). Rather, it cites 5 C.F.R. § 531.411, which
     relates to granting a WIGI after it has been withheld, and involves preparing a
     new rating of record and making a new ALOC determination. IAF, Tab 21 at 5.
     Section 531.411 does not support the agency’s position, but rather makes clear
     that, when an agency withholds a scheduled WIGI, it “shall determine whether
     the employee’s performance is at an acceptable level of competence after no more

     numerous exhibits, both of which addressed the issues in this appeal and to which the
     appellant submitted responses. IAF, Tabs 5, 7, 21-24.
                                                                                         5

      than 52 calendar weeks following the original eligibility date for the within-grade
      increase.” (emphasis added).

      The Board has jurisdiction over the instant appeal.
¶9           An agency is required to make an ALOC determination as of the date a
      WIGI is due, and a failure to comply with this requirement is tantamount to a
      WIGI      denial.        Martinesi     v.    Equal     Employment      Opportunity
      Commission, 24 M.S.P.R. 276, 280 (1984); see 5 U.S.C. § 5335(c).                 The
      appellant’s WIGI to step 4 was scheduled for November 30, 2014. There is no
      dispute that the agency did not make an ALOC determination prior to that date or
      for nearly 2 months thereafter. See IAF, Tab 5 at 4. We therefore find that the
      agency denied the appellant’s WIGI, effective November 30, 2014.
¶10          An employee ordinarily is not entitled to appeal the denial of a WIGI to the
      Board unless he has first timely sought and received a reconsideration decision
      from the agency. 5 U.S.C. § 5335(c). However, if an agency fails to comply with
      the statutory requirement that it inform an employee of his right to
      reconsideration of the WIGI denial, that failure is sufficient to allow the Board to
      assume jurisdiction and to adjudicate the appeal on its merits.            Martinesi,
      24 M.S.P.R. at 280. In the instant case, the agency failed to notify the appellant
      of his right to request reconsideration on November 30, 2014, the date his WIGI
      was denied. We find that this is sufficient for us to assume jurisdiction. That the
      appellant failed to respond to the agency’s belated notification of the right to
      request reconsideration does not relieve us of jurisdiction.         Cf. Hagan v.
      Department of the Army, 99 M.S.P.R. 313, ¶ 6 (2005) (the Board’s jurisdiction is
      determined by the nature of an agency’s action when an appeal is filed).
¶11          Based on the foregoing, we must remand this appeal for further
      adjudication. Although we find that the appellant was denied a scheduled WIGI,
      we make no finding as to whether that denial was otherwise proper.             In his
      petition for review, the appellant makes numerous arguments regarding the merits
                                                                                        6

of his appeal and his whistleblower affirmative defense. 5 PFR File, Tab 1 at
17-29. Those issues will be addressed on remand.

                                        ORDER
      For the reasons discussed above, we REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.




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




5
  The appellant contends that the administrative judge erred by rejecting evidence
regarding the validity of his performance plan on the ground that it was untimely filed.
PFR File, Tab 1 at 5. The appellant has not identified with specificity the evidence he
attempted to introduce and proffers no argument that the allegedly rejected evidence
was timely filed. The record does indicate that the administrative judge rejected
evidence the appellant submitted on timeliness grounds, but does not identify the
specific evidence. IAF, Tab 31 at 1. To the extent that this is the order to wh ich the
appellant is referring, we note that he filed a pleading, contained in the record, wherein
he argued that his performance standards were invalid. IAF, Tab 32 at 7-8. In sum, we
see no indication that evidence was improperly rejected and, in any event, the appellant
has not been precluded from advancing the argument at issue.
