                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIAM OWENS, JR.,                             DOCKET NUMBER
                 Appellant,                          DC-3443-16-0461-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 22, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           William Owens, Jr., Dudley, North Carolina, pro se.

           Aisha Z. Mahmood, Cherry Point, North Carolina, 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 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
     regulation or the erroneous application of the law to the facts of the case; the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                                      BACKGROUND
¶2        The appellant filed an appeal alleging that the agency engaged in a
     prohibited personnel practice when it failed to issue a Request for Personnel
     Action (RPA) authorizing him to receive increased compensation for performing
     a higher-level position on a temporary basis. The appellant asserted that this was
     a violation of 5 U.S.C. § 2302(b)(12). Initial Appeal File (IAF), Tab 1. Because
     it appeared that the Board lacked jurisdiction over this appeal, the administrative
     judge ordered the appellant to submit evidence and argument to show why the
     appeal should not be dismissed. IAF, Tab 2. The appellant did not respond. The
     agency subsequently filed a motion to dismiss for lack of jurisdiction.        IAF,
     Tab 5.
¶3        The administrative judge dismissed the appeal for lack of jurisdiction. IAF,
     Tab 6, Initial Decision (ID) at 1. The administrative judge found no evidence
     showing that the appellant was formally appointed to a higher-graded position
     with increased compensation and, thus, the administrative judge found that the
     appellant failed to establish that he was subjected to any reduction in grade or
     pay. ID at 2. The administrative judge found further that, absent an otherwise
     appealable action, the Board lacks jurisdiction over an employee’s allegation of a
                                                                                        3

     prohibited personnel practice under 5 U.S.C. § 2302(b). Similarly, regarding the
     appellant’s allegation that a female employee subsequently performed the same
     position on a temporary basis and that the agency issued an RPA to authorize
     increased compensation for her, the administrative judge found that the Board has
     no jurisdiction over allegations of discrimination absent an otherwise appealable
     action. ID at 3.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶4         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). Here, the applicable law and
     the record evidence support the administrative judge’s findings that the appellant
     was not formally appointed to the higher-graded position and he only is entitled
     to the pay and benefits of the position to which he is officially appointed, and that
     he has not shown that he suffered a reduction in grade or pay while on detail to
     the temporary position.    Rojas v. U.S. Postal Service, 70 M.S.P.R. 400, 405
     (1996) (finding that an employee is only entitled to the rights and benefits of the
     position to which he is officially appointed; by its nature, a detail is temporary
     and involves no formal appointment), overruled on other grounds by Fernandez
     v. Department of Justice, 105 M.S.P.R. 443, ¶ 5 n.1 (2007).
¶5         Furthermore, allegations of prohibited personnel practices do not otherwise
     provide an independent basis for Board jurisdiction.          Pridgen v. Office of
     Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012).               Thus, absent an
     otherwise appealable action, the Board does not have jurisdiction to review the
     appellant’s claims of prohibited personnel practices or discrimination. Saunders
     v. Merit Systems Protection Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985); Wren v.
     Department of the Army, 2 M.S.P.R. 1, 2 (1980) (explaining that prohibited
     personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
     Board jurisdiction), aff’d, 681 F.2d 867, 871‑73 (D.C. Cir. 1982).
                                                                                      4

¶6         The appellant alleges on review that he has new documentation
     substantiating his claim that the agency violated 5 U.S.C. § 2302(b)(12), and he
     has included numerous documents with his petition for review.         Petition for
     Review File, Tab 1.       However, the appellant has provided no argument
     challenging the administrative judge’s jurisdictional findings in the initial
     decision. Nor has he provided any explanation of the documents included with
     his submission. Id. Rather, the appellant merely asserts that he has submitted
     additional evidence that was not available when he first filed his appeal, and that
     he had no access to his Government account until he returned from travel on
     April 28, 2016. Id. The documents submitted on review include numerous emails
     and documentation dated January 2016 or before, which appear to reflect that the
     appellant was detailed to the higher-graded position and that the agency may have
     attempted, or was attempting, to compensate him with an award for periods when
     he was detailed to the higher-graded position. Id.
¶7         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
     and material evidence, the information contained in the documents, not just the
     documents themselves, must have been unavailable despite due diligence when
     the record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554,
     564 (1989). 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         Here, the appellant filed his appeal on March 31, 2016, and the
     administrative judge issued a show cause order on April 4, 2016, to which the
     appellant did not respond. Although the appellant now asserts on review that the
     documents he attached to his petition were not available when he filed his appeal,
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the documents are not new as they are dated prior to the filing of his appeal and
his travel, and he has not shown that they were unavailable despite his due
diligence. Moreover, the documents submitted by the appellant are not material
as they do not challenge any of the administrative judge’s findings on the
jurisdictional issues. Rather, all of the documents submitted on review address
the merits of his appeal. Thus, we have not considered them. Accordingly, we
find that the administrative judge correctly dismissed this appeal 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 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
                                                                                 6

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 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:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
