Opinion

Inez Kelly v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Apr 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

INEZ KELLY, DOCKET NUMBER

Appellant, AT-0752-18-0382-I-1

DEPARTMENT OF THE NAVY, DATE: April 25, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Inez Kelly , Orlando, Florida, pro se.

Michael L. Torres , Esquire, Orlando, Florida, for the agency.

BEFORE

Cathy A Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed for lack of jurisdiction her appeal that the agency subjected her to a

reduction in grade or pay. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

supplement and clarify the nature of the action at issue, we AFFIRM the initial

decision.

BACKGROUND

The appellant was employed under a Science and Technology Reinvention

Laboratory (STRL) Personnel Management Demonstration Project during the time

relevant to this appeal. She initially held the position of Supervisory General

Engineer, NM-05, in the competitive service at a basic pay rate of $112,319 in

Orlando, Florida. Initial Appeal File (IAF), Tab 4 at 11-12. On March 23, 2015,

the agency selected the appellant for a temporary detail assignment as a General

Engineer (Scientific Advisor), DP-05, also in the competitive service, for

U.S. Naval Forces Central Command, Fifth Fleet, in Manama, Bahrain, effective

November 1, 2015. Id. at 19-21, 22-29. The appellant’s basic pay rate of

$117,935 was set in accordance with the STRL performance plan. IAF, Tab 4

at 11-12, Tab 5 at 30-31. The agency extended the appellant’s temporary

assignment in Bahrain to January 25, 2018, by which point her basic pay rate had

increased to $133,736. IAF, Tab 4 at 11, 22-23, Tab 5 at 45-64.

On January 25, 2018, the agency returned the appellant to her position as a

Supervisory General Engineer, NM-05, at a basic pay rate of $116,181. 2

IAF, Tab 4 at 10, Tab 5 at 91-92.

The appellant filed an appeal with the Board alleging that the agency

“committed a prohibited personnel practice by violating the merit system

principles” when it reduced her basic pay by over 13%. IAF, Tab 1 at 3.

She indicated that she did not want a hearing. Id. at 2. The agency moved to

dismiss the appeal for lack of jurisdiction, arguing that the appellant did not

suffer an appealable reduction in pay. IAF, Tab 4. The appellant asserted that,

because the regulations cited by the agency apply to a temporary promotion,

which is not the action at issue, the Board has jurisdiction over her appeal.

IAF, Tab 5 at 6-7. In an Order to Show Cause, the administrative judge notified

the appellant that the Board may not have jurisdiction over her appeal and

ordered her to file evidence and argument showing that the Board has

jurisdiction. IAF, Tab 6 at 1-2. In her response, the appellant directed the

administrative judge to her earlier submission. IAF, Tab 7 at 4.

Based on the written record, the administrative judge dismissed the appeal,

finding that the Board lacks jurisdiction to consider the appellant’s claims

because she failed to show that she suffered a reduction in grade or pay within the

meaning of 5 U.S.C. § 7512. IAF, Tab 8, Initial Decision (ID) at 1, 4. In so

doing, the administrative judge cited to 5 C.F.R. § 752.401(b)(12) and 5 C.F.R.

§ 335.102(f)(1), which exclude from Board jurisdiction actions that terminate

temporary or term promotions. ID at 3-4. The administrative judge further found

that, absent an otherwise appealable action, the Board lacks jurisdiction over the

appellant’s allegations of discrimination and prohibited personnel practices.

ID at 5.

Upon her return to her permanent position, the appellant actually received an increase

in pay. While the re-addition of locality pay resulted in a higher adjusted basic pay of

$134,038, it is not the proper point of reference. IAF, Tab 5 at 72; see Campbell v.

Department of Veterans Affairs, 93 M.S.P.R. 70, ¶ 6 (2002) (stating that, for purposes

of determining whether an employee has suffered a reduction in pay, locality pay is not

considered part of an employee’s basic pay).

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

Petition for Review (PFR) File, Tab 1. The agency has responded in opposition

to the petition for review, and the appellant has replied. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s overseas assignment as a DP-05 General Engineer

(Scientific Advisor) was a reassignment.

The appellant disputes the nature of the action at issue, alleging that her

overseas assignment as a DP-05 General Engineer (Scientific Advisor) was a

temporary reassignment, not a temporary promotion, as characterized by the

agency and the administrative judge. PFR File, Tab 1 at 5, Tab 4 at 5.

The appellant’s Standard Form 50 (SF-50) reflects that the action was taken

pursuant to 5 C.F.R. § 335.102, which addresses an agency’s authority to

promote, demote, or reassign an employee. IAF, Tab 4 at 11.

The agency argues that the legal authority cited on the appellant’s SF -50

authorizes its action to make a time-limited promotion to fill a temporary position

for a specified period. IAF, Tab 4 at 7-8; see 5 C.F.R. § 335.102(f).

Under 5 C.F.R. § 335.102(f)(1), “[an] employee may be returned at any time to

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

equivalent grade and pay, and the return is not subject to the procedures in parts

351, 432, 752, or 771 of this chapter.” The Board lacks jurisdiction over such an

action, if the agency informed the employee that the promotion was to be limited

duration. ID at 3; see 5 C.F.R. § 752.401(b)(12).

The fact that the agency may have characterized the appellant’s overseas

assignment as a temporary promotion is not dispositive of whether a temporary

promotion actually occurred. It is the actual nature of the action appealed, not the

agency’s characterization of it, which determines whether the Board has

jurisdiction over that action. Robinson v. U.S. Postal Service, 63 M.S.P.R. 307,

327 (1994); see Russell v. Department of the Navy, 6 M.S.P.R. 698, 704 (1981)

(observing that the Board is not obligated to accept the assertion of a party as to

the nature of a personnel action, but may make its own independent determination

regarding that matter).

Here, the appellant’s overseas assignment as a DP-05 General Engineer

(Scientific Advisor) is not that of a temporary promotion, even as contemplated

by the agency. The appellant’s SF-52s, SF-50s, and STRL Pay Setting

Worksheet, dated September 17, 2015, show that the agency designated the action

as a “reassignment.” 3 IAF, Tab 5 at 30-31, 33-34, 38, 41, 42, 68-69, 72.

In addition, the agency refers to the action as a “detail assignment” throughout

the memorandum of agreement, dated August 28, 2015, thereby reinforcing its

classification as such. IAF, Tab 4 at 24-28.

Pursuant to the regulations governing the STRL Demonstration Project,

a reassignment, which is the action that best describes the appellant’s situation, is

the movement of an employee “to a different position or set of duties within

his/her pay band or to a position in a comparable pay band, or from a

non-demonstration project position to a demonstration project position at a

comparable level of work, on either a temporary or permanent basis.” IAF, Tab 5

at 27; see STRL Personnel Management Demonstration Project, Department of

Navy, Naval Air System Command, Naval Air Warfare Center, Aircrafts Division

(NAWCAD) and Naval Air Warfare Center, Weapons Division (NAWCWD),

76 Fed. Reg. 8530, 8549 (Feb. 14, 2011). 4 By contrast, a promotion is the

The agency’s characterization of the action is not consistent, as evinced by a singular

reference to the action as a temporary promotion to a GS-15 (or equivalent) pay band in

the memorandum of agreement. IAF, Tab 4 at 25. Nonetheless, the record evidence

and the legal authority support a finding that the nature of the action is a reassignment.

Section 342(b) of the National Defense Authorization Act (NDAA) for Fiscal Year

(FY) 1995 authorizes the Secretary of Defense to conduct personnel demonstration

projects at Department of Defense laboratories designated as STRLs. 76 Fed. Reg.

at 8530. The NAWCAD and NAWCWD are listed in subsection 1105(a) of NDAA for

FY 2010 as newly designated STRLs. Id. The appellant is employed within the Naval

Air Warfare Center, Training Systems Division (NAWCTSD). IAF, Tab 4 at 11. The

agency clarified, however, that it set the appellant’s pay in the STRL Demonstration

Project in accordance with the referenced Federal Register Notice. IAF, Tab 5 at 30;

see 76 Fed. Reg. 8530.

movement of an employee to a higher pay band in the same or different

occupational family. Id.; see IAF, Tab 5 at 27. Here, the appellant was moved to

a position within the same pay band in a different occupational family. IAF,

Tab 5 at 30, 33. Her permanent position is in Band V of the Supervision and

Management occupational family (NM Pay Plan) and her temporary position was

in Band V of the Scientific and Engineering occupational family (DP Pay Plan).

Id. at 24-25, 30, 33.

Within the STRL Demonstration Project, the agency has “greater

managerial control over personnel functions through a more responsive and

flexible personnel system.” 76 Fed. Reg. at 8536. The appellant’s managers

adopted the flexibility of the STRL Demonstration Project to increase the

appellant’s pay by up to and including 5%—the designated maximum for a

reassignment within her pay band. IAF, Tab 5 at 30-31; see 76 Fed. Reg. at 8534,

8551. There is no indication in the record that the agency implemented the pay

setting guidelines for a promotion to a higher pay band, which states that “the

minimum base pay increase . . . [is] 6% or the minimum base pay rate of the new

pay band, whichever is greater.” 76 Fed. Reg. at 8550.

The appellant has not suffered an appealable reduction in pay or pay band.

The nature of the action at issue is a temporary reassignment. In order for

a reassignment to fall within the Board’s jurisdiction under 5 U.S.C. chapter 75, it

must result in a reduction in grade or a reduction in pay. Loggins v. U.S. Postal

Service, 112 M.S.P.R. 471, ¶ 10 (2009); Marcheggiani v. Department of Defense,

90 M.S.P.R. 212, ¶ 7 (2001).

The appellant’s movement within the STRL Demonstration Project, namely

her return to her NM-05 position upon the expiration of her reassignment in the

DP-05 position, does not constitute an appealable reduction in grade. 5 IAF, Tab 5

The appellant has not alleged that she suffered a reduction in grade due to a lowering

of her “virtual” General Schedule (GS) grade. She acknowledges that she was

temporarily reassigned to the DP-05 position (GS-15 equivalent) and then returned to

the NM-05 position (GS-14 equivalent) she initially held. IAF, Tab 5 at 11.

at 72, 91. Grade means “a level of classification under a position classification

system.” 5 U.S.C. § 7511(a)(3). For purposes of the STRL Demonstration

Project, the term “grade” is replaced with “pay band.” 6 76 Fed. Reg.

at 8558, 8561.

As her reassignment was temporary in nature, the appellant retained her

permanent position with its pay band level throughout the events at issue in this

appeal. The appellant remained within the STRL Demonstration Project; the

agency did not move the appellant across or between position classification

systems. Even if there was evidence to the contrary, we are not persuaded that a

reduction in pay band occurred. Cf. Arrington v. Department of the Navy,

117 M.S.P.R. 301, ¶ 12 (2012) (finding no reduction in grade occurred based

solely on the appellant’s conversion from a YC-2 position within the NSPS to a

GS-13 position); 76 Fed. Reg. at 8561 (stating that, within the STRL

Demonstration Project, a reduction in pay band is not an adverse action if it

results from the employee’s rate of base pay being exceeded by the minimum rate

of base pay for her pay band).

The agency’s adjustment of her basic pay rate at the time she returned to

her NM-05 position does not constitute an appealable reduction in pay. IAF,

Tab 5 at 72, 91. The right to appeal a reduction in pay has been narrowly

construed and requires 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) (explaining that an appealable reduction in pay occurs only

when there is an ascertainable lowering of the employee’s pay at the time of the

Any “virtual” GS grade associated with the positions the appellant held plays no role in

determining whether she suffered a reduction in grade. See Ellis v. Department of the

Navy, 117 M.S.P.R. 511, ¶ 8 (2012).

In the STRL Demonstration Project, there are several occupational families with pay

bands designed to facilitate pay progression. 76 Fed. Reg. at 8537. Pay bands replace

individual grades. Id. at 8538. Each occupational family is divided into three to six

pay bands with each pay band covering the same basic pay rate range that would be

covered by one or more GS grades. Id.

action). Pay is defined as 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 appellant argues that she is entitled to the higher basic pay rate of the

DP-05 position to which she was temporarily reassigned, 7 given that

“the [a]gency illegally eliminated the step increases with pay awarded for

performance” in the STRL Demonstration Project. PFR File, Tab 1 at 6-7, Tab 4

at 5; IAF, Tab 5 at 14-17. An agency’s failure to increase an employee’s pay is

not an appealable reduction in pay. Gaydar v. Department of the Navy,

121 M.S.P.R. 357, ¶ 7 (2014).

To the extent that the temporary reassignment may be considered a detail, 8

as described in the memorandum of agreement dated August 28, 2015, we are not

persuaded that the appellant’s detail to the DP-05 position and her return to her

NM-05 position, with its accompanying variations in basic pay rate, are within

the Board’s jurisdiction. IAF, Tab 4 at 24-28. A detail by its very nature is

temporary and involves no formal appointment; the employee continues to be the

The appellant opines that the agency should have set her basic pay rate at $133,736, as

required by 5 C.F.R. §§ 531.205, 531.213, and 76 Fed. Reg. 8530, or $127,359, as

required by STRL Implementing & Operating Procedures. PFR File, Tab 1 at 6-8,

Tab 4 at 5-6. The record shows no action on the part of the agency to make changes to

her basic pay rate in the context of 5 C.F.R. § 531.205 (an official worksite change

action) or 5 C.F.R. § 531.213 (a lateral change in position). The agency’s readjustment

of the appellant’s basic pay rate merely reflected the reversion of her pay to that of her

NM-05 position upon the expiration of her reassignment to the DP -05 position, during

which she received a higher basic pay rate, as a result of salary adjustments, step

increases, and performance based pay increases. IAF, Tab 5 at 45-64, 91-92. Because

the Board lacks jurisdiction over the appeal, it need not address the issue of whether the

agency complied with the referenced pay setting guidelines.

The STRL Demonstration Project provides the NAWCAD and NAWCWD an

Expanded Detail and Temporary Promotion Authority “(1) to effect details up to one

year to specified positions at the same or similar level; and (2) to effect details or

temporary promotions to a higher pay band position up to one year within a 24-month

period without competition.” 76 Fed. Reg. at 8550. The memorandum of agreement,

however, states that the expected duration for the detail was 24 months and it may be

extended to no longer than 30 months. IAF, Tab 4 at 24. Thus, the detail does not

appear to fall within the said parameters; however, the appellant, as a NAWCTSD

employee, may not be subject to the time limitation of a detail under the expanded

authority. Id.

incumbent of the position from which she was detailed. Rogers v. Department of

the Army, 88 M.S.P.R. 610, ¶ 8 (2001); Chambers v. U.S. Postal Service,

77 M.S.P.R. 337, 343-44 (1998). Thus, the appellant officially remained the

incumbent of the NM-05 position while she was detailed to the DP-05 position.

Because the appellant’s position of record and basic pay rate did not change with

her detail, she did not suffer an appealable reduction in pay or pay band when her

detail concluded and she stopped receiving additional compensation above her

basic pay rate.

We find that the Board lacks jurisdiction to consider the agency’s action in

returning the appellant to the position she previously held at the same pay and

pay band when her temporary reassignment concluded. Accordingly, the

administrative judge properly dismissed the appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 9

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.

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.

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. 10 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).

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.

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