The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIFFANY LEVY, DOCKET NUMBER
Appellant, DC-0752-18-0038-I-1
v.
SECURITIES AND EXCHANGE DATE: September 5, 2023
COMMISSION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Peter Broida, Esquire, Arlington, Virginia, for the appellant.
Daniel L. Garry, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the Washington Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2 The essential undisputed facts are as follows. In February 2017, the
appellant and the agency entered into a settlement agreement resolving an equal
employment opportunity (EEO) complaint that the appellant had filed against the
agency, under which the agency agreed to increase the appellant’s salary,
effective January 1, 2017. Initial Appeal File (IAF), Tab 1 at 11-14. On
October 3, 2017, the agency notified the appellant that it had incorrectly
processed her salary increase when it implemented the terms of the settlement
agreement. Id. at 9. As a result, the agency informed her that it had erroneously
overpaid her beyond what was provided for in the settlement agreement and that
it would be taking action to correct its “administrative error.” Id.
¶3 On October 16, 2017, the appellant filed a Board appeal alleging that she
had suffered a reduction in pay as a result of the agency’s October 3, 2017 letter.
IAF, Tab 1 at 6. She further alleged that the action violated the settlement
agreement and constituted retaliation for her EEO activity. Id. The agency
moved to dismiss the appeal as premature and for lack of jurisdiction, asserting
that no action had yet been taken regarding the appellant’s salary. IAF, Tab 4.
The agency further noted that on October 25, 2017, it had issued the appellant a
Notice of Proposed Reduction in Salary and provided her with due process rights.
Id. at 5, 7-10. The administrative judge issued an order indicating that the Board
may lack jurisdiction over the appeal as a reduction in pay and ordering the
appellant to file evidence and argument demonstrating that the Board has
jurisdiction over the appeal. IAF, Tab 5. In response, the appellant argued that
the Board has jurisdiction over the appeal as a reduction in pay based on the
agency’s October 3, 2017 letter, which she contended amounted to a final
decision. IAF, Tab 6 at 4.
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¶4 Thereafter, the administrative judge issued an order indicating that it
appeared that the Board may lack jurisdiction over the appeal to the extent the
appellant was seeking to enforce the terms of the February 2017 settlement
agreement, which was reached outside of the Board’s proceedings and not entered
into the Board’s record for enforcement purposes. IAF, Tab 8. The jurisdictional
order afforded the parties an opportunity to address this issu e. Id. In response,
the appellant reiterated her argument that the Board has jur isdiction over her
appeal as a reduction in pay based on the agency’s October 3, 2017 letter. IAF,
Tab 9.
¶5 Without holding the appellant’s requested hearing, the administra tive judge
issued an initial decision, dismissing the appeal for lack of jurisdiction. IAF,
Tab 12, Initial Decision (ID). The administrative judge construed the appeal not
as a reduction in pay, but rather as an attempt to enforce the terms of the
settlement agreement. ID at 6-7. Consequently, he found that the Board lacks
jurisdiction to consider such a claim because it lacks the authority to enforce
and/or interpret a settlement agreement that was not entered into the Board’s
record for enforcement purposes. ID at 6.
¶6 The appellant has filed a petition for review in which she disputes the
administrative judge’s finding that her appeal amounted to an effort to enforce the
settlement agreement instead of an appealable reduction in pay. Petition for
Review (PFR) File, Tab 1. The agency has opposed the appellant’s petition, and
the appellant has filed a reply. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by statute or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985); see 5 U.S.C. §§ 7512-7513. The
appellant bears the burden of proving jurisdiction by preponderant evidenc e.
5 C.F.R. § 1201.56(b)(2)(i)(A). If the appellant makes a nonfrivolous allegation
4
that the matter is within the Board’s jurisdiction, she is entitled to a hearing at
which she must prove jurisdiction. Garcia v. Department of Homeland Security,
437 F.3d 1322, 1344 (Fed. Cir. 2006). A nonfrivolous allegation is an assertion
that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). In
determining whether an appellant has made a nonfrivolous allegation of
jurisdiction entitling her to a hearing, the administrative judge may consider the
agency's documentary submissions; however, to the extent that the agency's
evidence constitutes mere factual contradiction of an appellant's otherwise
adequate prima facie showing of jurisdiction, the administr ative judge may not
weigh evidence and resolve conflicting assertions of the parties, and the agency's
evidence may not be dispositive. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,
329 (1994).
¶8 Generally, the Board has jurisdiction to review actions involving reductions
in pay. 5 U.S.C. § 7512(4); Arrington v. Department of the Navy, 117 M.S.P.R.
301, ¶ 8 (2012). If the agency reduced the appellant's pay to correct what it
believed was a pay-setting error, then the agency bears the burden of showing that
it set her pay at a rate contrary to law or regulation. Kile v. Department of the Air
Force, 104 M.S.P.R. 49, ¶ 17 (2006). An appellant should not be forced to prove
that the agency did not make a pay-setting error because the agency is in a much
better position to know why it originally set her pay as it did and what later led it
to conclude that it made an error. Id.
¶9 Here, the administrative judge did not construe the appeal as a reduction in
pay, despite the appellant’s allegation that the Board ha s jurisdiction over the
appeal as a reduction in pay based on the agency’s October 3, 2017 letter. IAF,
Tab 6 at 4. We therefore consider this jurisdictional issue now. The agency’s
October 3, 2017 letter stated clearly that it would be taking action to correct its
error setting the appellant’s salary. IAF, Tab 1 at 9. Although the agency
subsequently issued an October 25, 2017 Notice of Proposed Reduction in Salary,
5
there is no evidence indicating that the agency rescinded the October 3, 2017
letter or expunged it from the appellant’s files.
¶10 Accordingly, we find that the appellant nonfrivolously alleged that the
agency reduced her pay based on the October 3, 2017 letter. To the extent the
agency reduced the appellant's pay to correct what it believ ed was a pay-setting
error, further development of the record is needed on this issue. The appellant is
therefore entitled to a jurisdictional hearing. Garcia, 437 F.3d at 1344. On
remand, the appellant must prove by preponderant evidence the matters th at she
has nonfrivolously alleged.
ORDER
¶11 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.