Opinion

Denise Saunders v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Jun 27, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.6%

stating that an appealable reduction in pay occurs only when there is an “ascertainable lowering” of an employee’s pay at the time of the action

How later courts described this case

stating that an appealable reduction in pay occurs only when there is an “ascertainable lowering” of an employee’s pay at the time of the action

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENISE SAUNDERS, DOCKET NUMBER

Appellant, AT-3443-17-0289-I-1

DEPARTMENT OF THE TREASURY, DATE: June 27, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Denise Saunders, Lawrenceville, Georgia, pro se.

Andrew M. Greene, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed her appeal alleging a reduction in grade or pay 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 to

clarify and augment the analysis of the jurisdictional issue, we AFFIRM the

initial decision.

BACKGROUND

¶2 In 2012, the appellant received a temporary promotion from her

permanently assigned position as a Lead Tax Examining Technician, GS-8,

step 7, with an adjusted basic salary of $53,865, to a Supervisory Tax Examining

Assistant position, Internal Revenue Service (IR) Payband level 8, with an

adjusted basic salary of $58,174. Initial Appeal File (IAF), Tab 6 at 8. The

agency extended her temporary promotion several times and gave her several

performance-based salary increases (PBIs), resulting in an adjusted basic salary

of $63,454 as of January 11, 2015. Id. at 9-14. On December 27, 2015, she

received another temporary promotion, i.e., a “stacked promotion,” to a

Department Manager position in the IR Payband with an adjusted basic salary of

$68,530. 2 Id. at 15. On January 10, 2016, while the appellant was still on her

According to the agency’s IRS Payband System Pay Administrative Guidance

(IR Guidance), a “stacked promotion occurs when an employee already on a temporary

promotion is placed, without a break in service, on a second temporary promotion to a

position with a higher maximum rate than the first temporary promotion, prior to the

not-to-exceed (NTE) date of the first temporary promotion.” IAF, Tab 6 at 20, 29.

stacked promotion, the agency awarded her a 7.7% PBI, which increased her

adjusted basic pay to $73,985. Id. at 16. On April 17, 2016, the appellant’s

stacked temporary promotion ended, and the agency administratively returned her

to her permanently assigned position as a Lead Tax Examining Technician , GS-8,

step 8, with an adjusted basic pay of $57,177, before immediately placing her on

another temporary promotion to the position of Supervisory Tax Examining

Assistant, IR-08, with an adjusted basic pay of $63,608. 3 Id. at 17-19. On

August 7, 2016, the agency permanently promoted her to the position of

Supervisory Tax Examining Assistant, IR-08. Id. at 46.

¶3 In February 2017, the appellant appealed an alleged reduction in pay or

grade to the Board, alleging that she suffered a loss of $6,000 in annual salary

due to a “pay setting error” when, upon the termination of her stacked temporary

promotion to a Department Manager position, the agency set her pay without

properly accounting for the 7.7% PBI she received while serving as Department

Manager. 4 IAF, Tab 1 at 3, 5. In an acknowledgment order, the administrative

judge notified the appellant that the Board may not have jurisdiction over her

appeal of a pay-setting error and ordered her to file evidence and argument

amounting to a nonfrivolous allegation of jurisdiction. IAF, Tab 2. In response,

the appellant explained that, upon further research, she realized that the $6,000

loss in salary she was appealing was not due to a pay-setting error, but occurred

because of agency rules governing pay setting upon the termination of stacked

promotions. IAF, Tab 8 at 4. She argued that the agency was negligent in failing

The IR Guidance provides that an employee on a stacked promotion who is being

returned to a temporary promotion that she previously held in a series of temporary

promotions is first returned to her permanent position of record and then promoted to

the temporary promotion position. Id. at 29-30.

It appears that the appellant’s February 2017 appeal of the agency’s April 2016 action

may be untimely filed. See 5 C.F.R. § 1201.22(b). In light of our finding that the

Board does not have jurisdiction over this appeal, however, we need not reach the

timeliness issue. See Alston v. Social Security Administration, 95 M.S.P.R. 252, ¶ 29

(2003), aff’d, 134 F. App’x 440 (Fed. Cir. 2005).

to inform her that she could lose money by taking the temporary promotion, that

she did not agree to such terms, and that the agency’s action was unfair . Id.

at 4-5. She further asserted that the agency has since changed its policy. Id. at 5.

The agency moved to dismiss the appeal for lack of jurisdiction, arguing that the

appellant did not suffer an appealable reduction in pay. IAF, Tabs 3, 6, 9.

¶4 Without holding the appellant’s requested hearing, the administrative judge

dismissed the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID).

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

has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The Board does not have jurisdiction over all matters involving Federal

employees that are alleged to be unfair or incorrect; rather, it 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);

Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 577 (1995). Under chapter 75

of Title 5, the Board has jurisdiction to review specified adverse action s taken

against covered employees, including reductions in grade or pay. See 5 U.S.C.

§ 7512(3)-(4). If the employee makes a nonfrivolous allegation of jurisdiction,

i.e., an allegation that, if proven, could establish the Board’s jurisdiction, she is

entitled to a hearing at which she must prove jurisdiction by a preponderance of

the evidence. 5 Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344

(Fed. Cir. 2006) (en banc).

¶6 As noted above, the appellant alleged that the agency unfai rly set her pay

upon the termination of her temporary promotion by failing to properly credit her

with the 7.7% PBI she received while serving on a stacked temporary detail as a

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficie nt to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

Department Manager, which caused a $6,000 loss in annual salary. IAF, Tabs 1,

8. In the initial decision, the administrative judge found that the appellant’s

dispute with the method used by the agency to calculate her pay following the

termination of her stacked promotion did not constitute an appealable reduction in

pay under 5 U.S.C. § 7512(4). ID at 3. On review, the appellant argues again

that the agency failed to inform her that taking the temporary detail would harm

her financially, she is entitled to the 7.7% PBI that she earned while she was on

the Department Manager detail, the agency made mistakes in processing the

paperwork, and the agency’s action is unfair. PFR File, Tab 1 at 3 -5.

¶7 In the context of a reduction in pay under chapter 75, “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). The right to appeal a reduction in pay has

been narrowly construed and requires that the appellant show a demonstrable loss,

such as an actual reduction in pay, to establish jurisdiction. See Chaney v.

Veterans Administration, 906 F.2d 697, 698 (Fed. Cir. 1990) (stating that an

appealable reduction in pay occurs only when there is an “ascertainable lowering”

of an employee’s pay at the time of the action). “Grade” in this context means “a

level of classification under a position classification system.” 5 U.S.C.

§ 7511(a)(3). Here, the appellant has not alleged, and the record does not show,

that the agency reduced her rate of pay or grade in her permanently assigned

position following her temporary promotions. 6 IAF, Tabs 1, 8; PFR File, Tab 1.

Absent any loss in grade or actual reduction in pay, the Board lacks jurisdiction

As noted above, prior to her temporary promotions, the agency employed the appellant

as a Lead Tax Examining Technician, GS-8, step 7, with an adjusted basic salary of

$53,865. IAF, Tab 6 at 8. Upon the termination of her stacked promotion on April 17,

2016, the agency administratively returned her to her permanently assigned position as

a Lead Tax Examining Technician, GS-8, step 8, with an adjusted basic pay of $57,177,

which included the within-grade increase for which she became eligible on July 12,

2015, and the 1% General Schedule increase that became effective in January 2016. Id.

at 17-18.

over the appellant’s challenge to her salary following the termination of her

temporary promotions. See 5 U.S.C. § 7512(3)-(4).

¶8 In addition, the Board lacks jurisdiction to consider an “[a]ction that

terminates a temporary or term promotion and returns the employee to the

position from which temporarily promoted, or to a different position of equivalent

grade and pay, if the agency informed the employee that it was to be of limited

duration.” 5 C.F.R. § 752.401(b)(12); see 5 C.F.R. § 335.102(f) (stating that an

agency may make time-limited promotions but must give the employee advance

written notice of the conditions of the temporary promotion, including, among

other things, that she may be returned to her former position at any time and that

such return may not be appealed to the Board under chapter 75). Here, the record

reflects that, following the termination of the appellant’s stacked promotion, the

agency administratively returned her to her permanently assigned position at the

same grade level she previously held without any loss in pay. IAF, Tab 6 at 8,

17. While the appellant alleges that the agency failed to inform her of the

financial effect of the temporary promotions, she does not allege that the agency

failed to inform her that her promotions were time limited , and the Standard

Form 50s documenting her temporary promotions clearly indicate that they were

temporary. Id. at 8, 10, 12, 14-15. Therefore, we find that the Board lacks

jurisdiction to consider the agency’s action returning the appellant to her

permanently assigned position at the same grade level previously held following

the termination of her stacked promotion. See 5 C.F.R. §§ 335.102(f),

752.401(b)(12).

¶9 Lastly, because the Board lacks jurisdiction over this appeal, it cannot

consider the appellant’s claims that she was harmed by the agency’s handling of

her temporary promotions. See Daneshpayeh v. Department of the Air Force,

57 M.S.P.R. 672, 682 n.9 (1993) (stating that the Board lacks jurisdiction over

allegations of harmful error absent an otherwise appealable action), aff’d, 17 F.3d

1444 (Fed. Cir. 1994) (Table).

NOTICE OF APPEAL RIGHTS 7

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).

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.

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 att orney 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. 8 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