Stone v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEVEN J. STONE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3139
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-3443-14-0560-I-1.
______________________
Decided: December 10, 2015
______________________
STEVEN J. STONE, Calgary, Alberta, Canada, pro se.
LINDSEY SCHRECKENGOST, Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before DYK, O’MALLEY, and STOLL, Circuit Judges.
2 STONE v. MSPB
PER CURIAM.
Mr. Stone appeals the final decision of the Merit Sys-
tems Protection Board (“Board”) dismissing his appeal for
lack of jurisdiction. Because Mr. Stone has failed to
satisfy his burden of proving that the Board had jurisdic-
tion over his appeal, we affirm.
BACKGROUND
Mr. Stone served as an Immigration Inspector with
the Immigration and Naturalization Service (“Agency”) in
Edmonton, Canada starting in 1984. In 1986, he began
receiving foreign quarters allowance (“FQA”) under 5
U.S.C. § 5922, which authorizes payment to United States
citizens for the annual cost of suitable housing abroad. In
2000, the Agency notified Mr. Stone that he was subject to
the Agency’s overseas rotation policy and would eventual-
ly be rotated to the United States.
Mr. Stone filed a grievance with the Agency, which in
2000 determined that as a “local hire” in 1984, Mr. Stone
would not be subject to the overseas rotation policy. As a
result of Mr. Stone’s classification as a local hire, the
Agency terminated all entitlements, including FQA.
Mr. Stone, however, mistakenly received FQA payments
until October 2001, when the Agency notified him that his
salary would be offset to collect the $30,323.72 overpay-
ment. 1
Mr. Stone appealed to the Board for reinstatement of
his FQA and reimbursement of his garnished salary.
Because the dispute did not constitute an appealable
“reduction in pay,” the Board ultimately dismissed
Mr. Stone’s appeal for lack of jurisdiction.
1 A later decision held that Mr. Stone and other
similarly situated employees could be subject to the
rotation policy at a later date, but this does not affect his
entitlement to the FQA at issue.
STONE v. MSPB 3
Mr. Stone appealed to this court, and we have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Whether the Board has jurisdiction to hear an appeal
is a question of law we review de novo. Whiteman v. Dep’t
of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012).
Mr. Stone bears the burden of proving Board jurisdiction
by a preponderance of evidence. Fields v. Dep’t of Justice,
452 F.3d 1297, 1302 (Fed. Cir. 2006); 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
The Board’s jurisdiction is “strictly defined and con-
fined by statute and regulation” to appeals of decisions
involving “adverse actions.” Bolton v. Merit Sys. Prot.
Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). The Board has
jurisdiction to review the adverse action of an employee’s
“reduction in pay.” 5 U.S.C. § 7512(4). Pay is defined as
“the rate of basic pay fixed by law or administrative
action for the position held by [the] employee.” Pann v.
Dep’t of Navy, 265 F.3d 1346, 1348 (Fed. Cir. 2001) (citing
5 U.S.C. § 7511(a)(4)). Basic pay, in turn, means “the rate
of pay fixed for the position held by the employee before
any deductions and exclusive of additional pay of any
kind.” Id. (emphasis added) (internal quotation marks
and citation omitted); see also 5 C.F.R. § 531.203.
Because Mr. Stone’s alleged loss of FQA pay is “addi-
tional pay” not subject to MSPB review, the Board correct-
ly held that it lacked jurisdiction over Mr. Stone’s appeal.
See 5 C.F.R. § 531.203. Moreover, Mr. Stone’s FQA was
not “fixed by law or administrative action” as proscribed
by 5 U.S.C. § 7511(a)(4)—it was discretionary. See 5
U.S.C. § 5922(a) (“allowances . . . authorized by this
subchapter may be granted to an employee officially
stationed in a foreign area” (emphasis added)); see also
Roberts v. United States, 104 Fed. Cl. 598, 602 (2012),
aff’d, 745 F.3d 1158 (Fed. Cir. 2014) (“[O]verseas allow-
ances and differentials are not automatic salary supple-
4 STONE v. MSPB
ments, nor are they entitlements. . . . Individuals shall
not automatically be granted these benefits simply be-
cause they meet eligibility requirements.”) (internal
quotation marks and citation omitted). Accordingly,
Mr. Stone’s loss of FQA is not an appealable “reduction in
pay” under 5 U.S.C. § 7511(a)(4), and the Board did not
err in dismissing his appeal for lack of jurisdiction. The
Board also lacked jurisdiction to review the Agency’s debt
collection procedure.
CONCLUSION
We affirm the Board’s decision dismissing Mr. Stone’s
appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.