Steven T. Baseden v. Department of the Navy ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN T. BASEDEN, DOCKET NUMBER
Appellant, SF-3443-16-0190-I-1
v.
DEPARTMENT OF THE NAVY, DATE: December 21, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven T. Baseden, APO, APO/FPO Pacific, pro se.
Kevin E. Bolin and Wayne Randolph Wright, FPO, APO/FPO Pacific, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his 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 erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. We MODIFY the initial decision to
further explain the reasons that the Board lacks jurisdiction over this appeal.
Except as expressly MODIFIED by this Final Order, we AFFIRM the initial
decision.
BACKGROUND
¶2 In this appeal, the appellant alleged that the agency unlawfully reduced his
grade and pay while he awaited Government transportation and travelled to his
new duty station following his selection for promotion from the GS-12 Civil
Engineer position in Guantanamo Bay, Cuba, to the GS-13 Supervisory Civil
Engineer position in Misawa, Japan. Initial Appeal File (IAF), Tab 1 at 3, 5, Tab
5 at 4. Specifically, he claimed that on October 15, 2015, while in Cuba, he
received orders to report, on or about that same date, to his new duty station in
Japan. IAF, Tab 1 at 5, Tab 5 at 4. On October 27, 2015, he left Cuba for the
United States. IAF, Tab 1 at 5, Tab 4 at 5. He stated that he took leave (“comp
time earned”) from October 27 through November 1, 2015, while he was in the
United States. IAF, Tab 1 at 5. For the period from November 2 through 15,
2015, he described himself as “[a]waiting for gov plane transportation per DoD
travel office ticketing.” Id. He claimed to have arrived at his new duty station on
November 16, 2015. Id. He asserted that, “[f]or the pay period ending
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14NOV15, my grade was reduced from GS-13 to GS-12 and my pay was reduced
to $0.” Id.¶3 In a jurisdictional order, the administrative judge explained what was
required to nonfrivolously allege a reduction of pay or grade claim and directed
the appellant to file evidence and argument to prove that his appeal was within
the Board’s jurisdiction. IAF, Tab 3. In his jurisdictional response, the appellant
characterized his claim as that he was constructively suspended for 15 days, from
November 1 through 15, 2015, and constructively demoted for 20 days, from
October 27 through November 15, 2015, after his permanent change of station
(PCS) travel orders were retroactively modified. IAF, Tab 5. In its jurisdictional
response, the agency argued that, even if the appellant had been constructively
suspended, the suspension did not last for more than 14 days because the
appellant received travel benefits for November 13 through 15, 2015, and thus
was in a paid, on-duty status on those days. IAF, Tab 10 at 4. The agency further
argued that the appellant was not reduced in grade because the offer letter and the
Standard Form 50 documenting his promotion both state that his promotion would
be effective on November 15, 2015. Id. at 5.
¶4 After considering the jurisdictional responses, the administrative judge
dismissed the appeal for lack of jurisdiction without holding a hearing. IAF,
Tab 12, Initial Decision (ID) at 1. The administrative judge reasoned that the
appellant had failed to nonfrivolously allege that he had been subjected to an
appealable suspension lasting more than 14 days because 2 of the 15 days during
the alleged suspension period were days that he was not regularly scheduled to
work. ID at 4-5. The administrative judge further found that the appellant had
failed to nonfrivolously allege that he had been reduced in grade because an
agency’s delay in effecting a promotion is not an action that is reviewable by the
Board under any law, rule, or regulation. ID at 5-6.
¶5 The appellant has filed a petition for review, asserting that the
administrative judge erred by analyzing the appeal as a constructive suspension
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claim instead of a claim for compensatory time off for travel. Petition for Review
(PFR) File, Tab 1 at 4-5. He submitted alleged new evidence, including a leave
and earnings statement for the pay period ending on January 9, 2016 . Id. at 4, 10.
The agency has opposed the petition for review, stating that the appellant was not
entitled to compensatory time off for travel because PCS travel is excluded from
eligibility by regulation. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant failed to nonfrivolously allege that he was subjected to an
appealable suspension or constructive suspension.
¶6 Suspending a Federal employee for more than 14 days is an action that is
appealable to the Board. 5 U.S.C. §§ 7512(2), 7513(d). A “suspension” is
defined as “the placing of an employee, for disciplinary reasons, in a temporary
status without duties and pay.” 5 U.S.C. §§ 7501(2), 7511(a)(2). The term
“constructive suspension” is properly reserved for appeals , such as this one, in
which an appellant alleges that leave appearing to be voluntary was not. Martin
v. U.S. Postal Service, 123 M.S.P.R. 189, ¶ 9 (2016); see Rosario-Fabregas v.
Merit Systems Protection Board, 833 F.3d 1342, 1345-46 (Fed. Cir. 2016). To
establish jurisdiction over a constructive suspension for leave that appears to b e
voluntary, the appellant must prove the following by preponderant evidence: 2
(1) he lacked a meaningful choice in the matter; and (2) it was the agency’s
wrongful actions that deprived him of that choice. Romero v. U.S. Postal Service,
121 M.S.P.R. 606, ¶ 8 (2014); see Rosario-Fabregas, 833 F.3d at 1346-47
(finding that the Board’s standard for establishing jurisdiction in constructive
suspension cases, as forth in Romero, is appropriate). If the appellant makes a
nonfrivolous allegation of jurisdiction, then he is entitled to a jurisdictional
hearing. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344 (Fed.
2
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
Cir. 2006) (en banc). A nonfrivolous allegation of Board jurisdiction is an
allegation of fact that, if proven, could establish that the Board has jurisdiction
over the matter at issue. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,
329 (1994); 5 C.F.R. § 1201.4(s). For the following reasons, we find that the
appellant has failed to nonfrivolously allege that his absence from work was
involuntary because it was caused by improper agency action.
¶7 It is undisputed that the appellant received his final job offer on October 15,
2015, and within a few hours expressed his plan to depart Cuba on October 27,
2015. IAF, Tab 9 at 15. It is further undisputed that the appellant chose to leave
Cuba that day, despite having been told not to begin travelling to his new duty
station until November 15, 2015. Id. at 14. The appellant’s theory of the case is
based on his belief that he was on a “government required” layover in Seattle
awaiting transportation from November 1 through 15, 2015, PFR File, Tab 1 at 5,
but we find that he failed to make a nonfrivolous allegation of facts that , if
proven, could support this assertion, see Manning v. Merit Systems Protection
Board, 742 F.2d 1424, 1427-28 (Fed. Cir. 1984). The unrebutted documentary
evidence shows that, prior to leaving Cuba, the appellant was instructed to ensure
that his “fly out” date to Japan was November 15, 2015. IAF, Tab 9 at 14. The
record reflects that the appellant took leave en route, which resulted in him
arriving in Seattle an entire pay period prior to the first available flight to Japan .
IAF, Tab 1 at 5, Tab 6 at 17-19. The appellant has failed to make a nonfrivolous
allegation that the agency initiated his absence from work or deprived him of a
meaningful choice about when to leave Cuba. Thus, we find that he was neither
suspended nor constructively suspended. See Romero, 121 M.S.P.R. 606, ¶ 8;
Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014). 3
3
Because we find that the appellant was not suspended, we do not reach the question of
whether the alleged period of suspension would have satisfied the additional
jurisdictional requirement that it lasted for more than 14 days. See 5 U.S.C. § 7512(2).
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¶8 For the first time on review, the appellant references 5 U.S.C. § 5550b and
argues that he was denied compensatory time off for travel. PFR File,
Tab 1 at 4‑6. The Board generally will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence.
Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 11 (2016); 5 C.F.R.
§ 1201.115(d). The appellant has not made such a showing here. He claims that
his new argument is based on a leave and earnings statement that was mailed to
him on January 26, 2016, which shows he did not earn compensatory time off for
travel for his trip from Cuba to Japan. PFR File, Tab 1 at 4. This leave and
earnings statement was not available prior to the close of the record below.
However, to constitute new evidence, the information contained in the document,
not just the document itself, must have been unavailable despite due diligence
when the record closed. 5 C.F.R. § 1201.115(d). Whether the appellant was
given compensatory time off for travel during the relevant time period could have
been ascertained prior to the close of the record, and thus we find that this is not
information that was previously unavailable.
¶9 In any event, the information submitted is immaterial to the jurisdictional
issues in this appeal. Failure to provide compensatory time off for travel is not an
action that is appealable to the Board. See 5 U.S.C. §§ 7512, 7513(d); 5 C.F.R.
§ 1201.3. Moreover, as stated by the agency, the appellant has failed to make a
nonfrivolous allegation that he was entitled to compensatory time off for travel
pursuant to a PCS. PFR File, Tab 3; see 5 C.F.R. § 550.1404(b)(1) (“Travel time
in connection with an employee’s permanent change of station is not time in a
travel status.”).
The appellant failed to nonfrivolously allege that he was subjected to an actual or
constructive reduction in grade or pay.
¶10 The administrative judge appropriately found that the Board lacks
jurisdiction over this appeal because the appellant failed to nonfrivolously allege
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that he suffered an appealable reduction in pay or grade. ID at 5-6. The Board
generally has jurisdiction to review an employee’s appeal of a reduction in grade
or pay. 5 U.S.C. §§ 7512, 7513(d). In this context, “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). The appellant has not alleged
that his rate of pay was reduced. Rather, he alleges that he was not paid at all for
a pay period when the agency placed him on leave without pay. Because the
appellant has not made any allegation concerning his rate of pay during this pay
period, he has not nonfrivolously alleged that he was subjected to a reduction in
pay.
¶11 The term “grade” is defined as a level of classification under a position
classification system. 5 U.S.C. § 7511(a)(3). The appellant relies on his travel
orders and travel voucher as the evidence to support his claim that he should have
been promoted earlier. IAF, Tab 5 at 5, 7, 17. Neither document indicates the
effective date of the appellant’s promotion. 4 In contrast, the agency submitted
multiple documents stating that the appellant’s promotion would be effective on
November 15, 2015. IAF, Tab 10 at 11-12, 14. There is no evidence indicating
that anyone with the authority to promote the appellant intended for his
promotion to take place on October 27, 2015, as argued by the appellant.
PFR File, Tab 1 at 7.
¶12 An employee is deemed to have suffered a constructive demotion when he
was reassigned from a position that, due to new classification standards or a
4
The travel voucher was completed in December 2015, after the effective date of the
appellant’s promotion to GS-13. IAF, Tab 17.
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correction of a classification error, was worth a higher grade, and he was
reassigned to a position classified at a lower-grade level. Beaudette v.
Department of the Treasury, 100 M.S.P.R. 353, ¶ 13 (2005). The appellant has
not alleged that the position he transferred from was reclassified to a higher
grade, therefore he has not nonfrivolously alleged that he suffered a constructive
demotion.
¶13 For the foregoing reasons, we affirm the initial decision, which dismissed
this appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request review of this final decision by the U.S. 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.
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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 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
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.