Michael C. Phillips v. Merit Systems Protection Board

Note: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2006-3401

MICHAEL C. PHILLIPS,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD

Respondent.

Michael C. Phillips, of Atmore, Alabama, pro se.

Sara B. Rearden, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel,
and Raymond W. Angelo, Acting Associate General Counsel. Of counsel was
Thomas N. Auble.

Appealed from: United States Merit Systems Protection Board
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2006-3401

MICHAEL C. PHILLIPS,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

___________________________

DECIDED: April 6, 2007
___________________________

Before MICHEL, Chief Judge, DYK, Circuit Judge, and GARBIS, Senior District Judge * .

PER CURIAM.

Michael C. Phillips (“Phillips”) appeals from the decision of the Merit Systems

Protection Board (“Board”) in AT0752060274-I-1 dismissing for lack of jurisdiction his

appeal challenging the reduction in the number of hours he was assigned to work. We

affirm.

BACKGROUND

Phillips worked as a Part-Time Custodial Laborer at the Atmore, Alabama post

office. He was apparently assigned to work 16 hours per week, but on December 6,

2005, his hours were cut to an unspecified amount. His rate of pay and grade were not

reduced. On January 17, 2006, Phillips sent a letter to the Board’s Atlanta office

*
Honorable Marvin Garbis, Senior District Judge, United States District
Court for the District of Maryland, sitting by designation.
requesting assistance, which the Board construed as an appeal from the reduction in

his hours of work. On February 15, 2006, the United States Postal Service (“Agency”)

moved to dismiss his appeal for lack of jurisdiction. In an April 6, 2006, initial decision,

the Administrative Judge dismissed Phillips’s appeal for lack of jurisdiction, and the full

Board denied Phillips’s petition for review on July 13, 2006. A timely appeal to this court

followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

The Board’s decision must be affirmed unless it is found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2006); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480,

1483 (Fed. Cir. 1998).

The Board “has jurisdiction of only those actions made appealable by statute or

regulation.” Van Werry v. Merit Sys. Prot. Bd., 995 F.2d 1048, 1050 (Fed. Cir. 1993).

Phillips challenges the reduction in the number of hours he was assigned to work.

Unlike reductions in grade and reductions in pay, reductions in the number of hours

worked are not adverse actions under 5 U.S.C. § 7512, nor does any other provision of

law make them appealable actions. See Wood v. Merit Sys. Prot. Bd., 938 F.2d 1280,

1282 (Fed. Cir. 1991) (affirming dismissal for lack of jurisdiction where employee

challenged Postal Service’s reduction in the number of hours she worked, without

affecting the amount she was paid per hour, thereby reducing her annual salary).

Although Phillips alleges that his “paycheck was reduced by approximately 35% per pay

period,” pay is defined in the statute as “the rate of basic pay fixed by law or

2006-3401
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administrative action for the position held by an employee,” 5 U.S.C. § 7511(a)(4), and it

is undisputed that Phillips’s basic rate of pay (i.e., the amount of money he makes per

hour worked) and grade have not changed. Thus, the reduction in the amount of money

in his paycheck is solely the result of the reduction in the number of hours he has been

assigned to work and is not appealable. See Wood, 938 F.2d at 1282. We affirm the

Board’s dismissal of the appeal for lack of jurisdiction.

No costs.

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