UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DIANE WALSH,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-3443-15-0829-I-1

DATE: May 13, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Philip Barton, Oceanside, California, for the appellant.

Jennifer Gazzo, Esquire, Camp Pendleton, California, 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 for lack of jurisdiction her appeal challenging the expiration of her 

grade retention that resulted from an earlier reclassification of her position. 

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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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).

¶2 Effective February 17, 2008, when the appellant’s Supervisory 

Environmental Protection Specialist, GS-13, position was converted under the 

National Security Personnel System (NSPS), she was reassigned to the same 

position but at a YC-02 level. Initial Appeal File (IAF), Tab 4 at 33. On 

September 27, 2009, with the repeal of the NSPS, the appellant was reassigned 

back to the General Schedule as an Environmental Protection Specialist, GS-13, 

id. at 30, based on a reorganization that resulted in the removal of her supervisory 

duties, id. at 31-32. The administrative judge dismissed for lack of jurisdiction 

the appellant’s appeal of her 2009 reassignment, finding that she was not reduced 

in grade or pay. Walsh v. Department of the Navy, MSPB Docket No. SF-3443-

09-0976-I-1, Initial Decision at 1-4 (Dec. 14, 2009). The full Board denied the 

appellant’s petition for review of that decision. Walsh v. Department of the Navy, 

MSPB Docket No. SF-3443-09-0976-I-1, Final Order (Apr. 13, 2010).

¶3 On July 23, 2013, the appellant was notified that the removal of her 

supervisory duties in 2009 had the effect of changing the classification of her 

position from GS-13 to GS-12, but that no such change was made at that time due 

to an oversight. She was advised that the classification action would be effective 
3

on August 11, 2013, and that she would be eligible for grade retention at the 

GS-13 level for a period of 2 years. IAF, Tab 1 at 9-11, Tab 4 at 13. On August 

10, 2015, the agency notified the appellant that her grade retention had ended. 

IAF, Tab 4 at 12.

¶4 On appeal, the appellant argued that she was about to suffer a reduction in 

pay because she would not receive a step increase for which she shortly would 

have been eligible, had she remained a GS-13. IAF, Tab 1 at 6. She challenged 

the reclassification of her position that allegedly occurred in 2013, and asked the 

Board to “follow this downgrade back to 2009.” She claimed that, during her

earlier appeal, the agency misled the Board as to the effect the action would have 

on her grade and pay, id., and she requested a hearing, id. at 2.

¶5 The administrative judge issued an acknowledgment order advising the 

appellant that the Board may lack jurisdiction over her challenge to the 

reclassification of her position in August 2013, and directing her to file evidence 

and argument to prove that the action is within the Board’s jurisdiction. IAF,

Tab 2. The agency moved that the appeal be dismissed for lack of jurisdiction. 

IAF, Tab 4.

¶6 In an initial decision based on the written record, the administrative judge

found that a demotion resulting from a reclassification that entitles the employee 

to limited retained grade and pay under 5 U.S.C. §§ 5362 and 5363 is not 

appealable as an adverse action under 5 U.S.C. chapter 75. Accordingly, she 

dismissed the appeal for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID) 

at 1, 3.

¶7 The appellant has filed a petition for review, Petition for Review (PFR) 

File, Tabs 1-10, the agency has responded in opposition, PFR File, Tab 12, and 

the appellant has replied thereto, PFR File, Tab 13.

¶8 On review, the appellant challenges the administrative judge’s statement 

that she did not respond to the September 9, 2015 acknowledgment order. The 

appellant claims that she did not receive the order until December 30, 2015, after 
4

the initial decision was issued, and that therefore she was denied the right to 

respond. PFR File, Tab 1 at 9-10. However, she makes no such claim that her 

representative also failed to receive the order. In any event, the Board’s 

Document Recipients Log Report 2 shows that the September 9, 2015 order was 

distributed to the appellant and to her designated representative on that date at 

7:11:59 p.m. The appellant also claims that she did not receive an email alerting 

her that the order had been issued, PFR File, Tab 1 at 8-10, although she similarly 

makes no such suggestion that her representative did not receive email 

notification. Again, the Log Report shows that email notification was sent 

without error to the appellant and her representative. The appellant does not 

dispute that she timely received the agency’s response to her appeal.

3

 Instead she 

argues that the “Narrative” did not refer to it as being a response to the 

administrative judge’s order, and thus did not alert her to the fact that such an

order had been issued, and that therefore she did not respond to it. Id. On the 

contrary, the Narrative Response of the agency’s pleading indicates that the 

submission includes “the requested materials,” IAF, Tab 5 at 5, and concludes by 

requesting that the appeal be dismissed for lack of jurisdiction, id. at 9. The 

Board’s regulations provide that any objection to a written motion must be filed 

within 10 days from the date of service of the motion. 5 C.F.R. § 1201.55(b); see 

IAF, Tab 2 at 5.

¶9 For all of these reasons, we find that the appellant’s failure to respond 

below either to the administrative judge’s acknowledgment order or to the 

agency’s motion to dismiss the appeal for lack of jurisdiction generally precludes 

her from raising any new claims on petition for review. Banks v. Department of 

 2 Both the appellant and her representative registered as e-filers. IAF, Tab 1 at 2, 3.

3 In fact, on review, the appellant apologizes for not responding to the agency’s motion 

when it was made, citing “[i]nexperience, the need to use the Appellant and her 

Representative’s very-limited time resources parsimoniously . . ., and the assumption 

that the Appellant’s Claim itself was sufficient to defeat the Agency’s position” as “the 

regretted rationale for this.” PFR File, Tab 1 at 5.
5

the Air Force, 4 M.S.P.R. 268, 271 (1980) (holding that the Board 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). 

¶10 Nonetheless, we have reviewed the appellant’s challenges to the initial 

decision and discern no basis upon which to disturb it. As noted, on July 23, 

2013, the appellant was advised that her position was to be reclassified and that 

she would be entitled to grade and pay retention for 2 years. Employees whose 

positions are reclassified to a lower grade and who are eligible to and receive 

grade and pay retention benefits pursuant to 5 U.S.C. §§ 5362 and 5363 are 

precluded from bringing an adverse action appeal to the Board from either the 

reclassification4 or the reduction in grade or pay. A demotion resulting from a 

reclassification that entitles an employee to limited retained grade and pay under 

5 U.S.C. chapter 53 is not appealable to the Board as an adverse action under 

5 U.S.C. chapter 75. Atwell v. Department of the Army, 2 M.S.P.R. 484, 490 

(1980), aff’d, 670 F.2d 272 (D.C. Cir. 1981).

¶11 The true basis of the appellant’s claim is that her 2009 reassignment led to 

the improper reclassification of her position and that her current appeal is based 

“at its heart” on what was an adverse action that now provides the Board with 

jurisdiction. PFR File, Tab 1 at 6-8, Tab 13 at 7. She asserts that the agency 

removed her supervisory duties because of allegations of wrongdoing on her part 

that were based on false accusations and known to be such at the time, that the 

agency misled the Board during her first appeal by claiming that she did not, and 

 4 The agency advised the appellant that she could appeal the classification of her 

downgraded position, IAF, Tab 1 at 10-11, but she does not allege, nor is there any 

indication, that she did so. In any event, such appeals are resolved by employing 

agencies through their own regulations and by the Office of Personnel Management 

through its regulations, and the Board has no jurisdiction to review directly the 

classification of the appellant’s position. Beaudette v. Department of the Treasury, 

100 M.S.P.R. 353, ¶ 12 (2005).
6

would not, suffer a grade or pay reduction, and that that misrepresentation is 

causally linked to this appeal. As such, she requests that the Board reopen the 

2009 appeal and join it for adjudication with the current appeal. PFR File, Tab 1 

at 6-8.

¶12 The Board only exercises its discretion to reopen in unusual or 

extraordinary circumstances, such as when a change in the law results in a 

conflict between the holding in a decision and controlling precedent or statute, 

misrepresentation or fraud is discovered after the issuance of the initial decision, 

or the interests of justice warrant a different outcome based on the weight of the 

evidence. Lugo v. Department of the Navy, 96 M.S.P.R. 95, ¶ 6 (2004), aff’d, 

128 F. App’x 145 (Fed. Cir. 2005); Anthony v. Office of Personnel Management, 

70 M.S.P.R. 214, 219 (1996); Moriarty v. Rhode Island Air National Guard, 

56 M.S.P.R. 144, 148 (1992). Although the appellant claims that, during the first 

appeal, the agency misrepresented the effect the reassignment action would have 

on her grade and pay over time, the subject of that appeal was whether the 

appellant suffered a reduction in grade or pay when she was reassigned from her 

position under the NSPS to her GS-13 position. The administrative judge found 

that she did not nonfrivolously allege that she was reduced in grade or suffered a 

loss in basic pay and that the Board therefore lacked jurisdiction over her appeal,

Walsh v. Department of the Navy, MSPB Docket No. SF-3443-09-0976-I-1, Initial 

Decision at 3 (Dec. 14, 2009), and, as noted, that decision became a final decision 

of the Board. To the extent the appellant argues that the agency engaged in fraud 

or misrepresentation when it claimed that the reclassification of her position was 

the result of her reassignment rather than alleged misconduct on her part, she was 

aware of this claim and in fact raised it during adjudication of her first appeal. 

Id. We find therefore that the appellant has failed to show misrepresentation or 

fraud discovered after issuance of the initial decision. 

¶13 Moreover, in considering whether to exercise its discretion to reopen an 

appeal, the Board must balance the desirability of finality against the public 
7

interest in reaching the correct result. Lugo, 96 M.S.P.R. 95, ¶ 6. The Board’s 

authority to reopen an appeal under 5 C.F.R. § 1201.118 thus is limited by the 

requirement that such authority be exercised “within a short period of time,” 

which is usually measured in weeks, not years. Miller v. Department of the Army, 

113 M.S.P.R. 572, ¶ 10 (2010). The Board’s final decision in the appellant’s first 

appeal was issued 6 years ago. For these reasons, we deny the appellant’s request 

to reopen her prior appeal. 5

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 

 5 With her petition for review, the appellant has submitted numerous documents, 

including the initial decision and final Board order in her earlier case, PFR File, Tabs 

2-3, to which the Board otherwise has access. An August 19, 2009 document regarding 

her 2009 reassignment, PFR File, Tab 4, is part of the record below, IAF, Tab 4 at 31, 

and therefore is not new evidence. Meier v. Department of the Interior, 3 M.S.P.R. 

247, 256 (1980). A position description from 2009, PFR File, Tab 5, and another 

internal agency document from 2009, PFR File, Tab 6, are neither new nor material. 

And an undated cover sheet, PFR File, Tab 7, and discovery documents from the 

appellant’s earlier appeal, PFR File, Tabs 8-10, are not shown to be new or material. 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); Russo v. Veterans 

Administration, 3 M.S.P.R. 345, 349 (1980). Therefore, we have not considered these 

documents.
8

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. 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 

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board