Manning v. Merit Systems Protection Bd.

44 Citing cases

  1. Wilson v. Merit Systems Protection Bd.

    807 F.2d 1577 (Fed. Cir. 1986)   Cited 13 times
    Relying on agency evidence in concluding that employee had not been reduced in grade

    A. The Board has "only that jurisdiction conferred upon it by Congress." See Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1426 (Fed. Cir. 1984); Thomas v. United States, 709 F.2d 48, 49 (Fed. Cir. 1983). Accordingly, the Board has authority to hear appeals only from the types of actions specifically enumerated by law, rule, or regulation. 5 U.S.C. § 7701(a) (1982); see Rose v. Department of Health and Human Services, 721 F.2d 355, 356 (Fed. Cir. 1983).

  2. Hall v. Merit Sys. Prot. Bd.

    600 F. App'x 769 (Fed. Cir. 2015)

    "[A]llegations of a reassignment without change of grade or pay do not provide a basis for [Board] jurisdiction." Carley v. Dep't of the Army, 413 F.3d 1354, 1357 (Fed. Cir. 2005) (quoting Manning v. Merit Sys. Prot. Bd., 742 F.2d 1424, 1427 (Fed. Cir. 1984)). III.

  3. Carley v. Department of the Army

    413 F.3d 1354 (Fed. Cir. 2005)   Cited 12 times

    We have held as a general proposition that reassignment or transfer, absent an underlying action over which the Board has jurisdiction, does not provide the Board with jurisdiction.See Brewer v. Am. Battle Monuments Comm'n, 779 F.2d 663, 664 (Fed. Cir. 1985); Manning v. Merit Sys. Prot. Bd., 742 F.2d 1424, 1427 (Fed. Cir. 1984); Thomas v. United States, 709 F.2d 48, 50 (Fed. Cir. 1983). This court has been clear: "[A]llegations of a reassignment without change of grade or pay do not provide a basis for MSPB jurisdiction."

  4. Waldau v. Merit Systems Protection Bd.

    19 F.3d 1395 (Fed. Cir. 1994)   Cited 22 times
    Describing NLRB management criteria

    There is no statutory authority requiring the MSPB to hold a hearing on the threshold issue of jurisdiction. Manning v. Merit Sys. Protection Bd., 742 F.2d 1424, 1427 (Fed. Cir. 1984). In Manning, however, this court noted that a "case may arise where the MSPB should hold an evidentiary hearing on jurisdiction."

  5. Sannier v. Merit Systems Protection Bd.

    931 F.2d 856 (Fed. Cir. 1991)   Cited 5 times
    In Sannier, we said that removal under section 7521 encompasses cumulative administrative action or active intervention that prevents the impartial exercise of judicial function and that has a pernicious effect on qualified judicial independence. 931 F.2d at 858 (quoting Doyle, 29 M.S.P.R. at 175).

    However, the Board is not required to hold a hearing when facts giving rise to jurisdiction are not properly alleged, even though, as here, its existence may be asserted. Rose v. Department of Health and Human Servs., 721 F.2d 355, 357 (Fed. Cir. 1983) (no statutory right to a hearing on jurisdiction under similar statute defining MSPB jurisdiction); accord Manning v. Merit Sys. Protection Bd., 742 F.2d 1424, 1427-28 (Fed. Cir. 1984) (right to hearing applies "only after jurisdiction has been properly invoked"). This court did note in Manning, however, that the Board may hold a hearing if non-frivolous jurisdictional allegations are made and cannot be decided on written submissions alone.

  6. Dumas v. Merit Systems Protection Bd.

    789 F.2d 892 (Fed. Cir. 1986)   Cited 25 times
    Holding that a non-frivolous allegation of Board jurisdiction is one which, if true, would establish a prima facie case that the Board has jurisdiction over the matter at issue

    Such an allegation can, we agree with the agency, be disposed of summarily on a documentary record in appropriate cases. See Manning v. Merit Systems Protection Board, 742 F.2d 1424 (Fed. Cir. 1984). But, if the alleged facts are sufficient to support a prima facie case of involuntariness, the issue can not be summarily determined adversely; the petitioner is entitled to an evidentiary hearing on the issue, as discussed in Manning, 742 F.2d at 1428:

  7. Carey v. Merit Systems Protection Bd.

    768 F.2d 1338 (Fed. Cir. 1985)   Cited 1 times

    Accordingly, Carey has failed to carry his burden to establish the jurisdiction of the board. See, e.g., Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985); Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1427 (Fed. Cir. 1984). His appeal as to the conduct of HHS and OPM was correctly dismissed.

  8. Coleman v. Napolitano

    65 F. Supp. 3d 99 (D.D.C. 2014)   Cited 9 times
    Holding that a district court had jurisdiction to hear plaintiff's due process claim where Board review was unavailable under the CSRA

    Recently, in Davis v. Billington, 51 F.Supp.3d 97, 108–09, 2014 WL 2882679, at *5 (D.D.C. June 25, 2014), another Judge on this Court engaged in this necessary analysis, in accordance with Webster and Elgin, and found that the CSRA does not meet the heightened showing and allowed judicial review of the plaintiff's constitutional claim. The defendant also argues that United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) and Manning v. MSPB, 742 F.2d 1424 (Fed.Cir.1984), foreclose the plaintiff's claim but both of these cases are inapposite. In Fausto, 484 U.S. at 455, 108 S.Ct. 668, the Supreme Court found that the CSRA's exclusion of a class of employees from Chapter 75 of the CSRA, precluded the respondent from bringing a statutory, not, as here, a constitutional, challenge.

  9. Elgin v. Dep't of the Treasury

    567 U.S. 1 (2012)   Cited 288 times   8 Legal Analyses
    Holding that Congress provided "meaningful review" in authorizing the Federal Circuit "to consider and decide petitioners' constitutional claims"

    To the contrary, in Briggs v. MSPB, 331 F.3d 1307, 1312–1313 (2003), the Federal Circuit concluded that it could determine the constitutionality of a statute upon which an employee's removal was based, notwithstanding the MSPB's professed lack of authority to decide the question. See Schmittling v. Department of Army, 219 F.3d 1332, 1336 (C.A.Fed.2000) (remanding for MSPB to determine if employee suffered a prohibited personnel action within the scope of its jurisdiction); Perez v. MSPB, 931 F.2d 853, 855 (C.A.Fed.1991) (action against employee was not suspension within MSPB's jurisdiction); Manning v. MSPB, 742 F.2d 1424, 1425–1427 (C.A.Fed.1984) (reassignment of employee was not an adverse action within MSPB's jurisdiction); Rosano v. Department of Navy, 699 F.2d 1315 (C.A.Fed.1983) (refusal to prorate employee's health insurance premiums was not an adverse action within MSPB's jurisdiction). It is not unusual for an appellate court reviewing the decision of an administrative agency to consider a constitutional challenge to a federal statute that the agency concluded it lacked authority to decide.

  10. Elgin v. Dep't of Treasury

    132 S. Ct. 2126 (2012)

    See 28 U.S.C. § 636(b)(1)(A)–(B); United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). See Schmittling v. Department of Army, 219 F.3d 1332, 1336 (C.A.Fed.2000) (remanding for MSPB to determine if employee suffered a prohibited personnel action within the scope of its jurisdiction); Perez v. MSPB, 931 F.2d 853, 855 (C.A.Fed.1991) (action against employee was not suspension within MSPB's jurisdiction); Manning v. MSPB, 742 F.2d 1424, 1425–1427 (C.A.Fed.1984) (reassignment of employee was not an adverse action within MSPB's jurisdiction); Rosano v. Department of Navy, 699 F.2d 1315 (C.A.Fed.1983) (refusal to prorate employee's health insurance premiums was not an adverse action within MSPB's jurisdiction). It is not unusual for an appellate court reviewing the decision of an administrative agency to consider a constitutional challenge to a federal statute that the agency concluded it lacked authority to decide.