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Moreno v. Merit Systems Protection Board

March 1, 1984; As Amended March 2, 1984.

RICHARD V. MORENO, PETITIONER,
v.
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT



Appealed from Merit Systems Protection Board.

Markey, Chief Judge, Baldwin, Circuit Judge, and Cowen, Senior Circuit Judge.

Baldwin

BALDWIN, Circuit Judge.

The decision of the Merit Systems Protection Board (board) dated July 29, 1982 dismissing petitioner's appeal from the withholding of a within-grade salary increase by the Department of Health and Human Services (agency) for lack of jurisdiction is affirmed.

The agency refused to give petitioner a within-grade salary increase in 1981. Petitioner sought review of that agency action by the board. The board held it lacked jurisdiction over petitioner's appeal because the collective bargaining agreement for petitioner's bargaining unit makes the agency's grievance process the only avenue of review. We agree.

The appellate jurisdiction of the board is set forth at 5 CFR § 1201.3(a) (1982) as follows:

§ 1201.3 Appellate jurisdiction: Definition and application.

(a) Appellate jurisdiction generally. The Board has appellate jurisdiction over cases specified in the Act where there have been prior actions within an agency. This includes certain decisions of the Office of Personnel Management relating to retirement and insurance benefits. This appellate jurisdiction includes:

(1) Removal or reduction-in-grade of competitive or preference eligible employees;

(2) Denial of within-grade step increases ;

(3) Actions based upon removal, suspension for more than 14 days, reduction-in-grade or pay, or furlough for 30 days or less;

(4) Certain actions relating to the Senior Executive Service;

(5) Actions otherwise appealable to the Board involving an allegation ...


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