                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                      3

     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
                                                                                         4

     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).
                                                                                         6

¶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
                                                                                        7

      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.
                                                                                        8

      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.
                                                                                  9

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.
