The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REGGIE L. EAKINS, JR., DOCKET NUMBER
Appellant, SF-0752-16-0714-I-1
v.
DEPARTMENT OF ENERGY, DATE: March 30, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Reggie L. Eakins, Jr., Benton City, Washington, pro se.
Anissa Siefken and Marla K. Marvin, Richland, Washington, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of the agency’s cancellation of his promotion 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. Except as expressly MODIFIED by
this Final Order to clarify that the appellant failed to prove by preponderant
evidence that his promotion was approved by an authorized appointing official
aware he was making the promotion, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, a GS-13 General Engineer with the agency’s Office of River
Protection, applied for a GS-14 Nuclear Engineer position with the agency’s
Richland Operation Office in May 2016. Initial Appeal File (IAF), Tab 1 at 7 -8;
Tab 5 at 39-56. Although the position was listed as a GS-13/14 position with a
promotion potential to GS-14, the appellant indicated in his application that he
only wished to be considered for the position at the GS-14 level. IAF, Tab 5
at 37, 39, 51-56. The appellant was selected for the position, and it was offered
3
and he accepted it on June 15, 2016, with an effective date of June 26, 2016.
IAF, Tab 1 at 10-11.
¶3 The agency issued two Standard Form (SF) 50s dated June 26, 2016, one
promoting the appellant to the GS-14 Nuclear Engineer position, and the second
cancelling that promotion. Id. at 7-8. Both had the same effective date, with the
cancellation SF-50 indicating in the Remarks section that it was due to
“Administrative Error.” Id. The agency’s Human Resources Office contacted the
appellant by telephone on July 12, 2016, and by letter on July 15, 2016, and
informed him that the agency canceled the promotion because his application was
erroneously accepted, given that he was not sufficiently qualified to complete the
duties of the position at the GS-14 level. IAF, Tab 1 at 5; Tab 5 at 15-16. The
appellant filed the instant appeal on August 25, 2016, alleging that he suffered a
demotion or a reduction in grade or pay as a result of the agency’s decision
rescinding his promotion. IAF, Tab 1.
¶4 The administrative judge issued an initial decision that dismissed the appeal
for lack of Board jurisdiction. IAF, Tab 7, Initial Decision (ID). The
administrative judge found that an authorized official actually appointed the
appellant to the promotion position and that the appellant took action denoting his
acceptance of the position. ID at 7 (citing Levy v. Department of Labor,
118 M.S.P.R. 619, ¶¶ 7, 10 (2012)). However, he found that, based on the totality
of the circumstances, the appellant failed to show by preponderant evidence 3 that
3
The administrative judge correctly observed that an appellant chall enging an adverse
action (here, the alleged reduction in grade or pay) is ordinarily required to make
nonfrivolous allegations of jurisdiction over his appeal to proceed to a jurisdictional
hearing, at which he must prove Board jurisdiction by a prepondera nce of the evidence.
ID at 6 n.4 (citing Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
(Fed. Cir. 2006)). However, because the appellant waived his right to a hearing, the
administrative judge directly proceeded to the ultimate jurisdictional question–that is,
whether the appellant proved, by preponderant evidence, that the Board has jurisdiction
over his appeal. Id. We find no error with the administrative judge’s determination in
this regard.
4
the promotion became effective prior to being cancelled. ID at 7. He noted that
both the promotion SF-50 and the cancellation SF-50 had effective dates of
June 26, 2016, and that aside from the appellant’s self-reported statement that he
completed self-study training courses without receiving instructions to do so,
there was no evidence that the appellant: received an orientation, a performance
plan, a new office, or reporting instructions; assumed the duties of the Nuclear
Engineer position; received pay at the GS-14 level; or performed any other duties
in the promotion position. ID at 8-9. Accordingly, the administrative judge
found that the agency properly revoked or cancelled the appellant ’s promotion
before he entered on duty or performed in the position. ID at 9-10. He also
found that the agency cancelled the promotion immediately, effectuating a
cancellation SF-50 the same day as the effective date of the promotion SF-50,
even though the appellant was not notified until more than 2 weeks later. ID
at 10.
¶5 The appellant filed a petition for review, and the agency filed a response.
Petition for Review (PFR) File, Tabs 1, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On review, the appellant challenges the decision below, arguing that his
promotion to the GS-14 position was effectuated 3 weeks prior to being
cancelled. PFR File, Tab 1 at 4-5. He argues that, despite sharing the same
effective date with the promotion SF-50, the cancellation SF-50 was not actually
completed until some point after he received verbal and writte n notification of the
cancellation on July 12, 2016, and July 15, 2016, respectively, and was later
“backdated” to the June 26, 2016 effective date. Id. at 4. To support his
contention, the appellant submits webpage screenshots from a number of agency
personnel management systems that he claims show that his promotion was still
in effect up to 3 weeks after the effective date of the promotion and cancellation
SF-50s. Id. at 4, 6-10; PFR File, Tab 10 at 9-14.
5
¶7 On May 5, 2017, the Clerk of the Board issued an order instructing the
parties to submit additional evidence and argument addressing whether the
promotion in question was properly revoked before it became effective. PFR
File, Tab 8. Specifically, the order directed the parties to provide evidence
concerning whether the selecting official (SO) knew that he was promoting the
appellant to the GS-14 position, and when, exactly, the promotion was cancelled.
Id. at 3-6. The order further instructed the parties to submit all documents and
communications related to the GS-14 promotion, as well as additional sworn
affidavits from the individuals responsible for effectuating the promotion and
cancellation. Id. at 4-5. The appellant and the agency both submitted evidence
and argument, which we have considered. PFR File, Tabs 9-12.
¶8 The Board has jurisdiction to review an appeal of a reduction in grade or
pay. See 5 U.S.C. § 7512. A cancellation of an effected promotion constitutes an
appealable reduction in grade. Levy, 118 M.S.P.R. 619, ¶ 6. If the promotion to a
higher grade was not effected, however, there was not an app ealable reduction in
grade or pay. Id.; Clark v. Department of the Interior, 68 M.S.P.R. 453, 457
(1995). To establish jurisdiction over an appeal from the cancellation of a
promotion as a reduction in grade, the appellant must show that: (1) the
promotion actually occurred; that is, it was approved by an authorized appointing
official aware that he or she was making the promotion; (2) the appellant took
some action denoting acceptance of the promotion; and (3) the promotion was not
revoked before it became effective. 4 Levy, 118 M.S.P.R. 619, ¶ 10.
¶9 As noted, the administrative judge determined, based on the record before
him, that the appellant satisfied the first two elements set forth in Levy. ID at 7.
On review, in response to the Clerk of the Board’s order, the agency furnished
4
The appellant also must show that he meets the statutory definition of an employee
with Board appeal rights. See 5 U.S.C. §§ 7511(a)(1), 7513(d), and 7701. That issue is
not in dispute in this case. ID at 7.
6
additional evidence and argument regarding whether the SO knew that he was
promoting the appellant to the GS-14 level when the promotion was offered. The
agency submitted a declaration from the SO responsible for interviewing and
hiring the applicants for the GS-13/14 Nuclear Engineer position. PFR File,
Tab 12 at 30-37. The SO declared that when he selected the appellant it was
never his intention to promote him to the GS-14 level. Id. at 31, ¶ 5. Instead, the
SO declared that he intended to hire the appellant at the GS-13 level, with the
expectation that he would be promoted to the GS-14 level only after completing a
series of necessary technical trainings over a period of approximately 18 months.
Id.
¶10 The SO further declared that he first informed the appellant that he was
under consideration only for the position at the GS-13 level during the interview,
at which he told the appellant that, if hired, he would receive specialized training
as a GS-13 for 18 months, at the end of which he could be promoted to the GS -14
level. Id. at 31-32, ¶¶ 8-9, 41. The SO corroborated this by providing a copy of
the interview questions asked of the appellant, including a question concerning
whether the appellant had any concern about the time and effort it would take to
qualify for promotion. Id. at 41. The SO also contacted the other hiring panel
members by email, who confirmed that it was mentioned during the interview that
the appellant would need to first serve at the GS-13 level before promotion, even
though the appellant expressed some interest in being con sidered for the GS-14
position. Id. at 46-54.
¶11 According to the SO’s declaration, following receipt of the certificates of
eligibles for the GS-13/14 Nuclear Engineer position, the SO received email
instructions for how to create a profile and access the agency’s hiring system
software, which he was unfamiliar with and had not previously used. Id.
at 32-33, ¶¶ 14-15. After accessing the hiring system software, the SO saw a
screen indicating that he could “select” candidates under the certificate of
eligibles for the position, which was identified on the screen as “Grade 13, 14.”
7
Id. at 33, ¶ 17. The SO selected the appellant for the position, completing his role
in the hiring process. Id. at 33, ¶¶ 17, 19. What was not readily discernible to
the SO, however, was the fact that, although the screen identified the position as
“Grade 13, 14,” the appellant had limited his application to consideration at the
GS-14 level only, and so the SO’s selection unwittingly resulted in promoting the
appellant to the GS-14 level, instead of laterally hiring him at the GS-13 level
with promotion potential to the GS-14 level, as the SO intended. Id. at 33, ¶¶ 17,
56.
¶12 According to a declaration made under penalty of perjury by an agency
Human Resources (HR) Specialist, she received a notification informing her of
the SO’s selection. PFR File, Tab 11 at 6, ¶ 10. On June 15, 2016, the HR
Specialist emailed the appellant a job offer at the GS-14 level, and the appellant
replied, accepting the offer the same day. Id. at 6, ¶ 12, 20-21. The HR
Specialist then emailed the SO informing him that the appellant had accepted the
position at the GS-14 level. Id. at 6, ¶ 13. The SO replied within 26 minutes,
indicating that the promotion was a mistake because the appellant was not
qualified at the GS-14 level and expressing that he had intended to hire the
appellant as a GS-13 with promotion potential to the GS-14 level. See id.
at 23-24.
¶13 On June 22, 2016–4 days before the effective date of the promotion–the SO
submitted a formal request to reconsider the agency’s qualification decision
regarding the appellant. PFR File, Tab 12 at 61-65. In his request, the SO
reiterated that he had promoted the appellant to the GS-14 position in error and
had intended to hire him at the GS-13 level with promotion potential to GS-14.
Id. at 62. On June 24, 2016, the Acting Director of the agency’s HR Office
replied indicating that he would not be able to process the reconsideration request
before the effective date of the promotion and that the promotion would need to
be placed on hold in the interim. Id. at 25-26. On July 8, 2016, the agency
decided that the appellant should not have been referred on the GS -14 certificate
8
of eligibles, and the agency rescinded the offer and cancelled the competitive
service certificate. Id. at 28-29. The agency subsequently informed the appellant
of the rescission by phone on July 12th and by letter on July 15th. Id. at 80-81,
¶¶ 10, 14; IAF, Tab 1 at 12.
¶14 The Board’s decision in Hoever v. Department of the Navy, 115 M.S.P.R.
487 (2011), offers some instructive guidance applicable to the instant case. In
Hoever, the administrative judge reversed the agency’s action cancelling the
appellant’s promotion and a 10% raise in favor of a 6.43% raise and promotion,
finding that the appellant suffered a reduction in pay as a result of the
cancellation. Hoever, 115 M.S.P.R. 487, ¶¶ 2-5. Reversing the administrative
judge, the Board found that the 10% raise was not “approved by an authorized
appointing official aware that he or she was making the promotion or
appointment,” even though a “recommending official” authorized the offer and an
HR Specialist conveyed it to the appellant, who accepted it. Id., ¶¶ 9, 15-17.
¶15 The Board in Hoever initially acknowledged that it examines the totality of
the circumstances surrounding an appointment to determine whether the requisite
“last act” of an official with appointment power had taken place, for the
appointment to be considered effective. Id., ¶ 8. The Board determined that the
10% raise had not been approved because that agency’s promotion process
required that higher-level officials in two different departments must sign off on
the promotion for it to become effective. Id., ¶¶ 9-12, 17-18. Because the
promotion was never approved, the appellant did not suffer an appealable
reduction in pay when his erroneous 10% raise was cancelled, and his salary was
reset to the 5% increase (and eventually, to the 6.43% increase) level. Id., ¶ 18.
¶16 As described in the agency’s sworn declarations, the SO in the instant case
selected the appellant using the agency’s hiring system software. PFR File,
Tab 12 at 33, ¶¶ 17, 19. The selection notification was then transmitted to an HR
Specialist responsible for contacting the selected candidate to offer the position.
PFR File, Tab 11 at 6, ¶ 2. Because the SO averred that he did not intend to
9
promote the appellant to the GS-14 position and was not even aware that he was
doing so when he conveyed the selection to the HR Specialist using the agency’s
hiring system software, the appellant’s promotion was never “approved by an
authorized appointing official aware that he [] was making the promotion. ” Levy,
118 M.S.P.R. 619, ¶ 7; see Clark, 68 M.S.P.R. at 457. As a result, based on the
totality of the circumstances, the requisite “last act” to complete the appellant’s
promotion to the GS-14 position never occurred and never became effective, even
if the offer was later mistakenly conveyed to the appellant by the HR Specialist.
See Hoever, 115 M.S.P.R. 487, ¶¶ 9, 15-17; Scott v. Department of the Navy,
8 M.S.P.R. 282, 287 (1981).
¶17 As such, we modify the initial decision to find that the appell ant failed to
prove, by preponderant evidence, that the Board has jurisdiction over his appeal
as a reduction in grade or pay, because he has not demonstrated that the
promotion actually occurred; that is, it was approved by an authorized appointing
official aware that he was making the promotion. Levy, 118 M.S.P.R. 619, ¶ 10.
Alternatively, although we are modifying the initial decision to find that the
Board lacks jurisdiction over the appeal for the reasons provided, we still affirm
the administrative judge’s jurisdictional finding that the record reflects that the
agency properly canceled or revoked that appellant’s promotion before he ever
entered on duty or performed in the position. ID at 9-10; IAF, Tabs 1, 5-6; see
National Treasury Employees Union v. Reagan, 663 F.2d 239, 252 (D.C. Cir.
1981).
¶18 Accordingly, we deny the petition for review and affirm the initial decision
as modified.
10
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes 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 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).
5
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.
11
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. ____ , 137 S. Ct. 1975 (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
12
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
13
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. 6 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
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
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.