Opinion

Michael P Gilroy v. Department of Health and Human Services

Court: Merit Systems Protection Board
Filed: Jan 28, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.8%

holding that basic rate of pay means “the amount of money [an employee] makes per hour worked” and finding that “reductions in the number of hours worked are not adverse actions under 5 U.S.C. § 7512”

How later courts described this case

holding that basic rate of pay means “the amount of money [an employee] makes per hour worked” and finding that “reductions in the number of hours worked are not adverse actions under 5 U.S.C. § 7512”
explaining that “[s]ince Wood continued to receive the same basic hourly rate of pay after the reclassification of the Penrod Post Office, Wood did not suffer a reduction in pay within the meaning of 5 U.S.C. § 7512(4)”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL P. GILROY, DOCKET NUMBER

Appellant, DC-3443-22-0569-I-1

DEPARTMENT OF HEALTH AND DATE: January 28, 2025

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Renn Fowler , Esquire, Silver Spring, Maryland, for the appellant.

Elbridge Smith , Esquire, Honolulu, Hawaii, for the appellant.

Jennifer Smith , Esquire, and Simone Jenkins , Esquire, Washington, D.C.,

for the agency.

BEFORE

Cathy A. Harris, Chairman*

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

*The Board members voted on this decision before January 20, 2025.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his reduction in pay appeal for lack of jurisdiction. Generally, we

grant petitions such as this one only in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

on an 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. 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.

However, we VACATE the initial decision but still DISMISS the appeal for lack

of jurisdiction for the reasons set forth in this Final Order. We FIND that the

appellant failed to make a nonfrivolous allegation that he suffered a reduction in

pay.

DISCUSSION OF ARGUMENTS ON REVIEW

Legal standard

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden

of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R.

§ 1201.56(b)(2)(i)(A). However, once the appellant presents nonfrivolous

allegations of Board jurisdiction, he is entitled to a hearing. Carey v. Department

of Health and Human Services, 112 M.S.P.R. 106, ¶ 6 (2009). A nonfrivolous

allegation is an assertion that, if proven, could establish the matter at issue.

5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous

when, under oath or penalty of perjury, an individual makes an allegation that is

more than conclusory, is plausible on its face, and is material to the legal issues

in the appeal. Id.

A reduction in pay is appealable to the Board under 5 U.S.C. §§ 7512(4)

and 7513(d). For adverse action purposes, pay means “the rate of basic pay fixed

by law or administrative action for the position held by an employee.” 5 U.S.C.

§ 7511(a)(4); 5 C.F.R. § 752.402. Thus, a reduction in pay is appealable only

when “the rate of basic pay fixed by law or administrative action for the position

held by an employee” decreases. Gaydar v. Department of the Navy,

121 M.S.P.R. 357, ¶ 6 (2014); see Wood v. Merit Systems Protection Board,

938 F.2d 1280, 1282 (Fed. Cir. 1991) (explaining that “[s]ince Wood continued to

receive the same basic hourly rate of pay after the reclassification of the Penrod

Post Office, Wood did not suffer a reduction in pay within the meaning of

5 U.S.C. § 7512(4)”). The Board and the courts have interpreted the term “rate of

basic pay” restrictively because Congress intended adverse action rights, such as

the right to appeal a reduction in pay, to be given a narrow construction. Gaydar,

121 M.S.P.R. 357, ¶ 6.

The appellant failed to nonfrivolously allege that the Board has jurisdiction over

this reduction in pay appeal. 2

On review, the appellant asserts that, as a GS-13 series 0081 Firefighter

with a 40-hour-plus tour, his “rate of basic pay” was “fixed by” 5 U.S.C. § 5545b,

which discusses pay for firefighters. Petition for Review (PFR) File, Tab 1

In his petition for review, the appellant asserts that he was prejudiced in his ability to

brief the jurisdictional issue and to submit evidence before the administrative judge.

Petition for Review File, Tab 1 at 6-8. We find that the appellant was not prejudiced

because he was given a full opportunity to brief the jurisdictional issue on review. We

also find that any additional evidence that he would have submitted does not change the

outcome on the jurisdictional issue.

at 11-13. Neither the Board nor the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit) have analyzed 5 U.S.C. § 5545b or its applicability in an

adverse action appeal involving a reduction of pay.

Section 5545b was created by the Federal Firefighters Overtime Pay

Reform Act, which was part of the Omnibus Consolidated and Emergency

Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat 2681,

§ 628 (Oct. 21, 1998). This section applies to an employee whose position is

classified in the Firefighter occupation in conformance with the GS-0081

standard, and whose normal work schedule, as in effect throughout the year,

consists of regular tours of duty that averaged at least 106 hours per biweekly pay

period. 5 U.S.C. § 5545b(a); see 5 C.F.R. § 550.1302.

The Office of Personnel Management (OPM) explained that, under the law

and regulations formerly in effect, firefighters were “entitled to the same rate of

basic pay that applied to General Schedule employees with a 40-hour workweek”

and they “generally received standby duty pay . . . to compensate them for their

extended tours of duty.” Firefighter Pay, 63 Fed. Reg. 64589-01, 64589

(Nov. 23, 1998) (Interim Rule). OPM explained that standby duty pay was “a

special form of premium pay designed to compensate employees who have

regularly scheduled workweeks that are much longer than the normal 40-hour

workweek and include substantial time during which employees are in a standby

status.” Id. Standby duty pay was paid as a percentage of basic pay and was

considered basic pay for retirement purposes. Id.

OPM stated that 5 U.S.C. § 5545b significantly changed how firefighter

pay was computed. Id. OPM described several of these changes as follows:

(1) it eliminated standby duty pay and paid firefighters on an hourly rate basis,

which simplified the pay computation; (2) it required that the applicable General

Schedule annual rate of basic pay be divided by a 2,756-hour factor to derive the

“firefighter hourly rate”; (3) it provided special pay computations for firefighters

whose regular tour of duty included a basic 40-hour workweek; and (4) it barred

payment of any other premium pay, including night pay, Sunday pay, holiday pay,

and hazardous duty pay. Id. at 64589-64590.

In pertinent part, 5 U.S.C. § 5545b sets forth two frameworks for

computing an hourly rate based on whether the firefighter’s tour of duty was

“24-hour shifts” or “a basic 40-hour workweek.” 5 U.S.C. §§ 5545b(b)(1), (c)(1).

The appellant asserts that he worked a 40-hour weekly tour plus additional

non-overtime hours, and thus, the framework in 5 U.S.C. § 5545b(c)(1) applies to

this matter. PFR File, Tab 1 at 10-13. This provision states:

If the regular tour of duty of a firefighter subject to this section

includes a basic 40-hour workweek . . . [5 U.S.C. § 5504(b) 3 ] shall

be applied as follows in computing pay--

(A) the provisions of such section shall apply to the hours within the

basic 40-hour workweek;

(B) for hours outside the basic 40-hour workweek, such section shall

be deemed to require that the hourly rate[ 4 ] be derived by dividing

the annual rate by 2756; and

rate shall be based on subparagraphs (A) and (B), as each applies to

the hours involved.

5 U.S.C. § 5545b(c)(1).

The appellant alleged that, while a Supervisory Firefighter, pursuant to

section 5545b(c)(1)(A), his hourly rate for the basic 40-hour workweek was

$52.89, and pursuant to section 5545b(c)(1)(B), his hourly rate for his

non-overtime hours outside of the basic 40-hour workweek (the firefighter hourly

rate) was $40.05. Initial Appeal File (IAF), Tab 9 at 7-8, 20. The appellant

The statute at 5 U.S.C. § 5504(b)(1) explains how to convert an annual rate of basic

pay to a basic hourly, daily, weekly, or biweekly rate. In pertinent part, it explains that,

to derive an hourly rate, the annual rate of basic pay has to be divided by 2,087.

5 U.S.C. § 5504(b)(1). To derive a biweekly rate, the hourly rate has to be multiplied

by 80. 5 U.S.C. § 5504(b)(3).

It appears that Congress intended for section 5545b(c)(1)(B) to mean an “hourly rate

of basic pay” because section 5545b(d)(2), among other things, limits the overtime

hourly rate of pay for a firefighter to an amount equal to one and one-half times the

“firefighter’s hourly rate of basic pay under section . . . (c)(1)(B) of this section.”

further alleged that, after his reassignment to the Emergency Management

Specialist position, his hourly rate was $52.89, and his adjusted basic pay in both

positions was $110,384.00. Id. at 10, 23-24.

However, the appellant asserts that further calculations are warranted.

Relying on 5 U.S.C. § 5545b and 5 C.F.R. § 550.1303, which discusses hourly

rates of basic pay, he presents the following calculations to support his claim that

he suffered a $26,701.00 reduction in pay: 5

$52.89 (his hourly rate as a Supervisory Firefighter for the basic

40-hour workweek) * 80 hours/pay period = $4,231.20

$40.05 (his hourly rate as a Supervisory Firefighter for the

nonovertime hours outside of the basic 40-hour workweek) * 26

hours/pay period = $1,041.30

$4,231.20 + $1,041.30 = $5,272.50 (his biweekly “base pay” in the

Supervisory Firefighter position)

$5,272.50 * 26 pay periods = $137,085.00 (his base pay in the

Supervisory Firefighter position expressed on an annual basis)

$137,085.00 - $110,384.00 (his base pay after the reassignment) =

$26,701.00 reduction in pay

PFR File, Tab 1 at 12-13.

We are not persuaded that the appellant’s calculations constitute a

nonfrivolous allegation of a reduction in rate of basic pay for purposes of

establishing jurisdiction under 5 U.S.C. chapter 75. Importantly, 5 U.S.C.

§ 5545b(c)(2) identifies the limited circumstances under which the basic pay of a

firefighter includes the regular hourly rate and the firefighter hourly rate.

Initially, the appellant included 6 overtime hours per pay period in his calculations

and asserted that he suffered a $34,351.24 reduction in pay following his reassignment.

IAF, Tab 9 at 8-10. In a subsequent submission, he provided two sets of calculations,

with and without overtime hours because “5 [C.F.R. §] 550.1305 appears to exclude

[overtime hours].” IAF, Tab 23 at 6-7. On review, the appellant clarifies that “no

overtime is claimed here.” PFR File, Tab 1 at 10. Because the appellant no longer

relies on overtime hours to support his claim of an appealable reduction in pay, we do

not include any overtime hours in our calculations or analysis.

It states that, for purposes of 5 U.S.C. §§ 5595(c), 5941, 8331(3), and 8704(c), 6

and as OPM may by regulation prescribe, “the basic pay of a firefighter subject to

[section 5545b(c)] shall include . . . an amount computed under paragraph [(c)](1)

(A) for the hours within the basic 40-hour workweek[] and an amount equal to the

firefighter’s basic hourly rate (as computed under paragraph [(c)](1)(B)) for all

hours outside the basic 40-hour workweek that are within such firefighter’s

regular tour of duty (including overtime hours).” None of these circumstances

are applicable to this matter.

We find it appropriate to apply the maxim of statutory interpretation

expressio unius est exclusio alterius, meaning “the expression of one thing is the

exclusion of the other.” Richardson v. Department of Veterans Affairs,

2023 MSPB 1, ¶ 19. Under this maxim, when Congress has enumerated specific

things to which a statute applies, it should not be assumed that other things that

could have been listed were meant to be included; rather, the specific mention of

certain things implies the exclusion of others. Id. The statute at 5 U.S.C. § 7512

is not mentioned in 5 U.S.C. § 5545b(c). Therefore, 5 U.S.C. § 5545b—by its

own language—precludes the interpretation that the appellant advocates.

Even if we consider the appellant’s reliance on 5 C.F.R. § 550.1303,

PFR File, Tab 1 at 12, a different outcome is not warranted. In 5 C.F.R.

§ 550.1303(b), the regulation explains how to calculate the hourly rate of basic

pay using the dual divisors discussed above in 5 U.S.C. § 5545b(c)(1)(A) and (B).

The regulation at 5 C.F.R. § 550.1303(c) states, in relevant part, that a

firefighter’s “biweekly rate of basic pay must be computed using the applicable

rates” described in paragraph (b). This language, standing alone, tends to support

the appellant’s calculations. However, we cannot read this language in a vacuum.

Indeed, as noted above, 5 U.S.C. § 5545b(c)(2) expressly excludes from basic pay

These categories include severance pay, allowances based on living costs and

conditions of environment, civil service retirement benefits, and group life insurance,

respectively.

the calculations provided by the appellant except for certain circumstances that

are not applicable here.

Moreover, the regulation at 5 C.F.R. § 550.1305(d) is also problematic for

the appellant’s argument. It states that, for firefighters compensated under

section 550.1303(b), such as the appellant, “pay for nonovertime hours within the

regular tour of duty, but outside of the basic 40-hour workweek, is basic pay only

for the purposes listed in paragraph (a),” 7 and for other purposes, such as

firefighter overtime pay and biweekly and annual caps on premium pay. 5 C.F.R.

§ 550.1305(d). None of these circumstances are applicable to this matter. 8

Notably, OPM stated in its Final Rule that it added the word “only” in 5 C.F.R.

§ 550.1305(a) “to emphasize that this definition of basic pay is to be used solely

for the listed purposes.” Firefighter Pay, 67 Fed. Reg. 15463-01, 15464

(Apr. 2, 2002) (Final Rule).

Ultimately, the appellant’s own allegations and documentation show that he

received more total take home pay as a Supervisory Firefighter because he

worked 26 more hours per biweekly pay period. Compare IAF, Tab 9 at 20-21

(showing that the appellant worked 106 hours (excluding overtime) in a biweekly

period as a Supervisory Firefighter), with id. at 24 (showing that the appellant

Paragraph (a) sets forth the following purposes: retirement deductions and benefits

under 5 U.S.C. chapters 83 and 84, life insurance premiums and benefits under 5 U.S.C.

chapter 87, severance pay under 5 U.S.C. § 5595, cost-of-living allowances and post

differentials under 5 U.S.C. § 5941, and advances in pay under 5 U.S.C. § 5524a.

The appellant makes the following arguments on review regarding 5 C.F.R.

§ 550.1305: (1) subsection (a) can be misread to say that the base pay methodology in

section 5545b(c)(1) applies only for the listed purposes in section 5545b(c)(2) (such as

retirement, severance, etc.); and (2) the regulation contradicts the plain language of

5 U.S.C. § 5545b, and the regulation should not trump the statute. PFR File, Tab 1

at 17-20. These arguments are not persuasive. First, 5 C.F.R. § 550.1305(a) discusses

the purposes for when “[t]he sum of pay for nonovertime hours that are part of a

firefighter’s regular tour of duty (as computed under § 550.1303) and the straight-time

portion of overtime pay for hours in a firefighter’s regular tour of duty is treated as

basic pay.” As noted at supra n.7, none of these purposes involve 5 U.S.C. chapter 75

adverse actions. Second, we disagree with the appellant’s premise that there is any

conflict between the regulation and 5 U.S.C. § 5545b.

worked 80 hours in a biweekly period as an Emergency Management Specialist).

The Federal Circuit has held, in the context of U.S. Postal Service employees,

that reductions resulting from fewer total regular hours worked do not establish

jurisdiction over a claim of a reduction in pay. See Wood, 938 F.2d at 1281-82

(finding that, even though Ms. Wood’s “annual equivalent salary” in her part -time

Postmaster position decreased by $6,660.00, she did not suffer an appealable

reduction in pay under 5 U.S.C. § 7512 because she “continued to receive the

same basic hourly rate of pay after the reclassification”); see also

Phillips v. Merit Systems Protection Board, 228 F. App’x 978, 979

(Fed. Cir. 2007) (holding that basic rate of pay means “the amount of money [an

employee] makes per hour worked” and finding that “reductions in the number of

hours worked are not adverse actions under 5 U.S.C. § 7512”). 9 The appellant’s

reliance on 5 U.S.C. § 5545b and the relevant regulations do not persuade us that

firefighters should be treated differently for adverse action and reduction in pay

purposes. 10

Finally, for the reasons described herein, we decline the appellant’s request

for regulation review of 5 C.F.R. § 550.1305, pursuant to 5 U.S.C. §§ 1204(a)(4)

and (f)(1). PFR File, Tab 1 at 21.

NOTICE OF APPEAL RIGHTS 11

This is the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You

may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the

The Board may rely on nonprecedential decisions of the Federal Circuit when we find

their reasoning persuasive, as we do here. Covington v. Department of the Interior,

2023 MSPB 5, ¶ 19 n.5.

Indeed, OPM noted in its Final Rule that the “law and regulations provide no

authority to continue pay for a firefighter’s regular tour when he or she is moved to a

work schedule with lesser hours.” Firefighter Pay, 67 Fed. Reg. at 15464.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

nature of your claims determines the time limit for seeking such review and the

appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the

following summary of available appeal rights, the Merit Systems Protection

Board does not provide legal advice on which option is most appropriate for your

situation and the rights described below do not represent a statement of how

courts will rule regarding which cases fall within their jurisdiction. If you wish

to seek review of this final decision, you should immediately review the law

applicable to your claims and carefully follow all filing time limits and

requirements. Failure to file within the applicable time limit may result in the

dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 12 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the