UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEROME WADDELL LACY, SR., DOCKET NUMBER
Appellant, DC-0752-14-0119-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 30, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jerome Waddell Lacy, Sr., Waynesboro, Virginia, pro se.
Michael E. Hokenson, Fort Belvoir, Virginia, and William J. Dobosh, Jr.,
Charlottesville, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged reduction in grade and pay appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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. See
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, and based on the
following points and authorities, 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant was a GG-13, step 6 Intelligence Specialist for the agency in
Seoul, South Korea. Initial Appeal File (IAF), Tab 13 at 89. In early 2008, he
applied and was selected for two different Intelligence Specialist positions in the
United States—a GG-13 position in Washington, D.C., and a GG-12 position in
Charlottesville, Virginia. Id. at 91. The appellant accepted the GG-12 position in
Charlottesville, effective June 2, 2008. Id. at 89. Although the appellant came
into his new position at step 10, the highest step on the GG pay scale, this change
in positions still resulted in a loss of basic pay, from $80,065 to $75,025. 2 Id. at
89, 93.
2
It appears that the GG pay scale uses the same rates as the GS pay scale. IAF, Tab 13
at 4 n.1. We assume for purposes of this decision that the appellant’s $9,888 locality
adjustment was not part of his basic pay under 5 U.S.C. § 7511(a)(4). Cf. Kile v.
Department of the Air Force, 104 M.S.P.R. 49, ¶¶ 12-14 (2006) (remanding for the
parties to submit evidence and argument as to whether locality pay is part of basic pay
for purposes of 5 U.S.C. chapter 75).
3
¶3 On April 8, 2012, the agency promoted the appellant from GG-12, step 10
back to GG-13, step 6, raising his basic pay from $78,355 to $83,619. 3 Id. at 83.
The appellant then began seeking, through requests to management and through
the equal employment opportunity process, retroactive pay from the agency based
on his “highest previous rate” for the period that he was a GG-12. 4 IAF, Tab 1 at
10-17, Tab 13 at 21-81.
¶4 On November 7, 2013, the appellant filed the instant appeal and did not
request a hearing. 5 IAF, Tab 1 at 3. He appeared to argue that the agency should
have determined his pay as a GG-12 based on his highest previous rate as a
GG-13. Id. at 6. After the parties filed evidence and argument, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 19, Initial Decision (ID) at 1, 4. She construed the appeal
as one concerning and apparent reduction in grade and pay, but found that the
only time that the appellant was reduced in grade or pay was when he voluntarily
accepted the GG-12 position in order to move from South Korea to
Charlottesville. ID at 2-4. She concluded that the Board lacks jurisdiction over
such voluntary actions and that the Board otherwise lacks jurisdiction over the
agency’s highest previous rate policy. ID at 4.
¶5 The appellant has filed a petition for review, arguing that the initial
decision is faulty because it took more than 120 days for the administrative judge
to issue it. Petition for Review (PFR) File, Tab 1 at 3. He also has submitted an
3
In the interim between these grade changes, the agency moved the appellant’s pay
method category from steps to pay bands and back to steps again. IAF, Tab 13 at 85,
87. The appellant did not lose pay during either of these changes, and these events do
not appear to be material to the issues in this appeal. Id.
4
The Office of Personnel Management’s regulations address the concept of “highest
previous rate.” 5 C.F.R. § 532.405. Under that section, an agency may use an
employee’s highest previous rate of pay in setting his current pay upon a change of
positions.
5
Because this appeal is dismissed for lack of jurisdiction, we do not reach the
timeliness issue. See Tardio v. Department of Justice, 112 M.S.P.R. 371, ¶ 30 (2009).
4
excerpt from a document by the National Academy of Public Administration
criticizing the agency’s lack of a formal highest-previous-rate policy. Id. at 4.
He argues that this document establishes the Board’s jurisdiction over the appeal.
Id. The agency has filed a response. PFR File, Tab 3.
¶6 Regarding the length of time that it took for the administrative judge to
issue an initial decision, we find that this, in itself, does not establish that she
decided the case incorrectly or that there is otherwise any basis to grant the
petition for review under 5 C.F.R. § 1201.115.
¶7 Regarding the document by the National Academy of Public
Administration, the Board does not have jurisdiction over all matters regarding a
federal employee that are allegedly unfair or incorrect; rather, the Board’s
jurisdiction is limited to matters over which it has been given jurisdiction by
statute or regulation. Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 577
(1995). Although this report may be critical of the agency’s lack of a
highest-previous-rate policy, and although the report may have been authorized
by the National Defense Authorization Act, it is still not a statute or regulation
conferring jurisdiction on the Board over any sort of appeal.
¶8 We also agree with the administrative judge that the Board lacks
jurisdiction over this appeal as a constructive adverse action because the
appellant failed to show that his reduction in grade and pay was involuntary. 6 ID
at 4. It appears that the agency had some sort of highest-previous-rate policy in
place when the appellant accepted the GG-12 position in 2008 but abandoned that
policy prior to his promotion in 2012. IAF, Tab 13 at 75-76, 78. The appellant
appears to allege that his acceptance of the GG-12 position was involuntary
6
The administrative judge did not notify the appellant of how to establish jurisdiction
over a constructive adverse action, but the agency’s submissions provided the appellant
accurate and complete information on his jurisdictional burden. IAF, Tab 13 at 9-14;
see Gonzalez v. U.S. Postal Service, 77 M.S.P.R. 382, 386 (1998).
5
because the agency failed to inform him that it intended to do away with the
highest-previous-rate policy. IAF, Tab 13 at 75-76, 78, Tab 14 at 3.
¶9 To establish jurisdiction over a constructive adverse action, an appellant
must show that (1) he lacked a meaningful choice in his facially voluntary
decision, and (2) this was because of the agency’s improper actions. Bean v. U.S.
Postal Service, 120 M.S.P.R. 397, ¶ 11 (2013). A decision based on
misinformation or lack of information may satisfy this standard. See Covington v.
Department of Health & Human Services, 750 F.2d 937, 943 (Fed. Cir. 1984).
¶10 In this case, the appellant has not explained what the agency’s
highest-previous-rate policy was, and he has not explained how he believes that it
should have applied to his particular situation. It is therefore unclear whether the
appellant could actually have benefitted from that policy had the agency retained
it. Thus, we have no basis for finding that the appellant reasonably relied on the
continued existence of the highest-previous-rate policy in accepting the GG-12
position. Cf. Gibeault v. Department of the Treasury, 114 M.S.P.R. 664, ¶ 8
(2010) (an employee-initiated action is considered involuntary if it resulted from
the employee’s reasonable reliance on the agency’s misleading statements or from
the agency’s failure to provide the employee with adequate information on which
to make an informed choice). We find the appellant has failed to prove that he
lacked a meaningful choice in accepting the GG-12 position in 2008.
¶11 In any event, the appellant has not shown that the agency knew that it would
abolish its highest-previous-rate policy at the time that he accepted the GG-12
position. Furthermore, even if the agency had plans at that time to do away with
its highest-previous-rate policy, there is no evidence that any responsible agency
official knew or should have known that the appellant was relying on the
continued existence of that policy in accepting the GG-12 position. Thus, the
appellant has not shown that the agency had any duty to inform him about
potential future changes to its highest-previous-rate policy. Cf. Barthel v.
Department of the Army, 38 M.S.P.R. 245, 253 (1988) (an agency must provide
6
information that is not only correct in nature but adequate in scope to allow an
employee to make an informed decision; this includes an obligation to correct any
erroneous information that an agency has reason to know an employee is relying
on). Nor has the appellant shown that the agency provided him affirmatively
misleading information on the matter. Cf. Covington, 750 F.2d at 942 (an
employee’s reasonable reliance upon an agency’s affirmatively misleading
statements renders his decision involuntary). We therefore find that the appellant
has failed to prove that his mistaken belief about the continued viability of the
highest-previous-rate policy was due to any improper agency action.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
7
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.