                           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                THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
