Ralph Knepp, Elvis Cannon, Richard Gerow, Larry Groves, Mervin Lee, Daniel McLaughlin and Marvin Richardson v. Department of the Navy

Petitioners are federal civil service employees whose positions were downgraded as a result of a reclassification authorized by 5 U.S.C. § 5107 (Supp. V 1981). Each petitioner was granted grade and pay retention benefits under 5 U.S.C. §§ 5362 and 5363 (Supp. V 1981). Employees covered by these sections retain their former grade for two years following reclassification and at the end of those two years retain the basic pay of the higher grade position.

Each petitioner appealed the downgrading of his position to the Merit Systems Protection Board (MSPB) under 5 U.S.C. § 7513 (d). Relying on Atwell v. MSPB, 670 F.2d 272 (D.C.Cir.1981), the MSPB dismissed the appeals for lack of subject matter jurisdiction. We affirm.

At issue are two arguably inconsistent provisions of the Civil Service Reform Act of 1978 ( 5 U.S.C. § 5101 et seq. (Supp. V 1981)): 5 U.S.C. § 5366 and 5 U.S.C. § 7512 (Supp. V 1981).

The relevant part of section 5366(b)(1) provides that “any action which is the basis of an individual’s entitlement to [grade and pay retention] benefits” is not appealable to the MSPB. The relevant part of section 7512 provides that adverse actions, including a reduction in grade, are…