Tanya Jarvis Pickron v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TANYA JARVIS PICKRON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1569
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-3443-23-0418-I-1.
______________________
Decided: December 3, 2024
______________________
TANYA JARVIS PICKRON, Houston, TX, pro se.
CONSTANCE E. TRAVANTY, Office of the General
Counsel, United States Merit Systems Protection Board,
Washington, DC, for respondent. Also represented by
ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH.
______________________
Before PROST, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.
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JARVIS PICKRON v. MSPB 2
Tanya Jarvis appeals an order of the Merit Systems
Protection Board (“MSPB”) dismissing her appeal for lack
of jurisdiction. Jarvis v. Dep’t of Veterans Affs., No. DA-
3443-23-0418-I-1, S.A. 1–131 (M.S.P.B. Nov. 8, 2023)
(“Decision”). For the following reasons, we affirm.
BACKGROUND
Ms. Jarvis was employed as a Supervisory Medical
Supply Technician at the Department of Veterans Affairs
(“VA”) Houston Healthcare System. S.A. 65. As part of
this position, she would sometimes work on-call shifts.
Employees on the on-call shift “provide[d] coverage during
both regular duty hours and after hours, weekends and
holidays” to maintain coverage for direct care to patients.
S.A. 57. During the scheduled on-call duty, the VA told
Ms. Jarvis that she would “receive ten percent of [her]
applicable overtime rate for any scheduled on-call duty”
per the rate set forth in 38 U.S.C. § 7457. S.A. 63. The
VA later suspended Ms. Jarvis’s on-call duty and pay.
Ms. Jarvis filed an appeal before the MSPB
challenging the removal of her on-call pay. She alleged
that her on-call pay was improperly cancelled, that the
reasons for cancelling her on-call pay were discriminatory,
and that she was entitled to back pay from 2010 to 2018.
S.A. 39. The Administrative Judge (“AJ”) noted a
probable lack of jurisdiction and ordered Ms. Jarvis to file
supplemental evidence and argument establishing that
the MSPB had jurisdiction over her appeal. S.A. 42–50.
After receiving Ms. Jarvis’s response, the AJ dismissed
her appeal for lack of jurisdiction, concluding that “an
agency’s termination, reduction [of,] or refusal to grant
premium pay does not constitute a reduction in pay action
appealable to the [MSPB].” Decision, at S.A. 3. The AJ
1 “S.A.” refers to the supplemental appendix
submitted with the government’s informal brief.
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JARVIS PICKRON v. MSPB 3
also did not consider Ms. Jarvis’s discrimination claim
due to the lack of an appealable action. Decision, at
S.A. 4.
Ms. Jarvis did not file a petition for review to the full
MSPB, so the AJ’s decision became final. Ms. Jarvis
timely appealed to this court.
DISCUSSION
We must assure ourselves of our appellate jurisdiction
in every case. Telcomm Tech. Servs., Inc. v. Siemens
Rolm Commc’ns, Inc., 295 F.3d 1249, 1251 (Fed. Cir.
2002). Typically, the determination of jurisdiction
precedes our examination of the merits. See Sinochem
Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422,
431 (2007). This case, however, presents an odd situation:
whether we have appellate jurisdiction and whether the
MSPB properly dismissed Ms. Jarvis’s appeal turn on the
same question. We thus address both questions together.
We review the MSPB’s jurisdictional determinations
de novo. Palmer v. MSPB, 550 F.3d 1380, 1382 (Fed. Cir.
2008). Factual findings underlying the MSPB’s
jurisdictional determinations are reviewed for substantial
evidence. Bledsoe v. MSPB, 659 F.3d 1097, 1101 (Fed. Cir.
2011).
We have appellate jurisdiction over “an appeal from a
final order or final decision of the [MSPB], pursuant to
sections 7703(b)(1) and 7703(d) of title 5.” 28 U.S.C.
§ 1295(a)(9). “Section 7703(b)(1) gives the basic rule:
‘Except as provided in paragraph (2) of this subsection, a
petition to review a . . . final decision of the [MSPB] shall
be filed in the United States Court of Appeals for the
Federal Circuit.’” Kloeckner v. Solis, 568 U.S. 41, 45
(2012) (quoting 5 U.S.C. § 7703(b)(1)). An exception
exists, however, for “[c]ases of discrimination subject to
the provisions of section 7702” of title 5. 5 U.S.C.
§ 7703(b)(2). Those cases are ones where the employee
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JARVIS PICKRON v. MSPB 4
“has been affected by an action which the employee or
applicant may appeal to the [MSPB],” id. § 7702(a)(1)(A),
and “alleges that a basis for the action was discrimination
prohibited by” various other federal laws, id.
§ 7702(a)(1)(B). Cases alleging both an appealable action
and discrimination are called mixed cases. Kloeckner, 568
U.S. at 44–45. Judicial review in mixed cases must be
sought through a lawsuit in federal district court, not by
appeal to the Federal Circuit. Perry v. MSPB, 582 U.S.
420, 430–31 (2017). But “[s]ome adverse personnel
actions may not be appealed to the [MSPB] and therefore
do not create mixed cases.” Ash v. OPM, 25 F.4th 1009,
1011 (Fed. Cir. 2022). Determining whether a given case
is a mixed case, and thus whether we have jurisdiction,
requires determining whether the employee alleges an
adverse action that can be appealed to the MSPB.
Jurisdiction to appeal to the MSPB exists, as relevant
here, for “[a]n employee against whom an action is taken.”
5 U.S.C. § 7513(d). Some appealable actions are listed in
§ 7512. If an adverse action in § 7512 is taken against an
employee, she “is entitled to appeal to the [MSPB] under
section 7701 of this title”—one of the prerequisites for us
to exercise appellate jurisdiction in this case. Id.
§ 7513(d). The inquiry, then, into whether we have
appellate jurisdiction and into whether the AJ correctly
concluded that Ms. Jarvis did not make a non-frivolous
allegation of MSPB jurisdiction requires answering the
same question: Did Ms. Jarvis allege an action
appealable to the MSPB?
Ms. Jarvis alleges that she experienced an appealable
“reduction in pay” when her on-call pay was reduced. Id.
§ 7512(4). Pay, as used in this provision, is “the rate of
basic pay fixed by law or administrative action for the
position held by an employee.” Id. § 7511(a)(4) (emphasis
added). Thus, not all kinds of pay reductions are
appealable to the MSPB—only reductions in “basic pay.”
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JARVIS PICKRON v. MSPB 5
We have held that “a reduction in premium pay” is not
a reduction in basic pay. Nigg v. MSPB, 321 F.3d 1381,
1385 (Fed. Cir. 2003). On-call pay is one of these kinds of
premium pay. At the VA, on-call pay is set at 10 percent
of the hourly rate for excess service provided. 38 U.S.C.
§ 7453(h); see also id. § 7457(a). Two statutory
subsections even refer to on-call pay as “premium pay.”
Id. § 7457(b)(2), (c)(2). Thus, a reduction in on-call pay
does not count as a “reduction in pay” under § 7511(a)(4)
because on-call pay is not basic pay. Cf. Athey v. United
States, 908 F.3d 696, 707 (Fed. Cir. 2018) (concluding that
on-call pay under § 7543 is not “additional pay” under the
Lump Sum Pay Act). We thus must conclude that Ms.
Jarvis cannot appeal her reduction in on-call pay to the
MSPB.
Since reduction in on-call pay is not appealable to the
MSPB, we affirm the AJ’s determination that the MSPB
lacks jurisdiction over Ms. Jarvis’s appeal. See Nigg, 321
F.3d at 1384.
CONCLUSION
We have considered Ms. Jarvis’s remaining arguments
and find them unpersuasive. For the foregoing reasons,
we affirm the MSPB’s determination that it lacked
jurisdiction over Ms. Jarvis’s claims.
AFFIRMED
COSTS
No costs.
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