                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES NUGENT,                                   DOCKET NUMBERS
                         Appellant,                  AT-0752-14-0261-I-1
                                                     AT-0752-14-0726-I-1
                  v.

     DEPARTMENT OF LABOR,
                 Agency.                             DATE: December 1, 2014



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           James Nugent, Alpharetta, Georgia, pro se.

           Kristina Harrell, Esquire, Atlanta, Georgia, 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 joined appeals of his reduction in grade and pay 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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an 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 served as a GS-14 Supervisory Manpower Development
     Specialist. MSPB Docket No. AT-0752-14-0261-I-1, Initial Appeal File (IAF),
     Tab 10 at 18. The appellant submitted a reasonable accommodation request for a
     reassignment to a different position in late 2012, and, after communicating with
     several agency officials about the parameters of his request, including the level of
     position for which he wished to be considered and the geographic area to be
     searched, the appellant applied for and received a noncompetitive appointment to
     a GS-13 Apprenticeship and Training Representative position outside of the
     reasonable accommodation process. Id. at 32, 34. Based on the appellant’s “own
     review of personnel regulations,” he believed he was entitled to retained pay upon
     his transfer to the GS-13 position, IAF, Tab 5 at 15, and, prior to accepting this
     position, he explained to an agency equal employment opportunity (EEO)
     employee that he would “attempt to independently reason with [agency] officials
     on pay retention as the move is due to my medical condition,” id. at 20. Upon his
     transfer to the lower-graded position, the appellant’s salary was reduced by
     approximately $6,700. IAF, Tab 10 at 35.
                                                                                           3

¶3           After accepting the Apprenticeship and Training Representative position,
     the appellant inquired into whether he was entitled to retained pay. Id. at 36-39.
     Although the agency initially offered conflicting statements as to whether the
     appellant was entitled to retained pay, IAF, Tab 6 at 4, Tab 10 at 39, 2 the agency
     ultimately determined that he did not qualify for pay retention, and the appellant
     filed     the   instant   Board     appeal     alleging    a    reduction     in    pay
     citing 5 C.F.R. § 536.103, IAF, Tab 1.       During the course of the proceedings
     below, the administrative judge determined that the appellant was also alleging
     that he suffered an involuntary reduction in grade and pay when he accepted the
     GS-13 position, and he docketed the appellant’s allegations as a separate appeal
     and joined the appeals. IAF, Tab 20. The administrative judge then issued an
     initial decision dismissing the appeals for lack of jurisdiction, finding that the
     appellant voluntarily accepted the GS-13 position, that the agency did not cause
     the appellant to accept this position by creating intolerable working conditions,
     and that he failed to demonstrate that he was wrongly denied pay retention under
     5 C.F.R. Part 536. ID at 11, 17. The appellant has filed a petition for review
     challenging the administrative judge’s conduct during the course of the hearing.
     Petition for Review (PFR) File, Tab 1. The agency has not filed a response.
¶4           We have considered the appellant’s arguments on review and find that they
     present no basis to disturb the administrative judge’s initial decision.            An
     administrative judge has broad discretion to regulate the course of the
     proceedings below and to conduct hearings, and we find no error in the
     administrative judge’s conduct. See Thomas v. U.S. Postal Service, 116 M.S.P.R.
     453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b).             We note, moreover, that the
     administrative judge’s decision to docket a separate appeal based on the


     2
      As the administrative judge properly noted, all of these statements were made after the
     appellant accepted the reassignment to the lower-graded position and could not have
     served as a basis for the appellant’s decision to accept the lower-graded position. IAF,
     Tab 21, Initial Decision (ID) at 4.
                                                                                          4

     appellant’s allegations of a possible separate appealable action is consistent with
     the Board’s practice of not holding the pleadings and statements of pro se
     litigants to the same standards as applied to attorneys. See Walters v. U.S. Postal
     Service, 65 M.S.P.R. 115, 119 (1994). The administrative judge’s decision thus
     reflects consideration of the appellant’s rights and did not harm or prejudice the
     appellant. Additionally, to the extent the appellant’s argument on review implies
     that the administrative judge was biased, we find no evidence in the record which
     could overcome the presumption of honesty and integrity which accompanies
     administrative adjudicators. See Fox v. Department of the Army, 120 M.S.P.R.
     529, ¶ 46 (2014).
¶5        Although the appellant does not specifically challenge the administrative
     judge’s   jurisdictional   dismissal   of   his   appeals,   we   have   reviewed   the
     administrative judge’s initial decision and find no error warranting reversal. The
     record reflects that the appellant submitted a reasonable accommodation request
     for a reassignment to another position and that he declined to be considered either
     for positions below a certain level or for positions outside of his local commuting
     area. IAF, Tab 5 at 10-11. The record further reflects that after his “own review
     of personnel regulations,” the appellant concluded he would be entitled to
     retained pay if he accepted a lower-graded position, and he voluntarily accepted
     the lower-graded position without any assurance or representation from the
     agency that he was entitled to retained pay. Id. at 15, 20. The Board does not
     have jurisdiction over voluntary reductions in grade or pay. Harris v. Department
     of Veterans Affairs, 114 M.S.P.R. 239, ¶ 8 (2010).
¶6        This case, moreover, is dissimilar from instances where the agency provided
     incorrect advice to the employee which he relied upon to his detriment in making
     his decision, see, e.g., Salazar v. Department of the Army, 115 M.S.P.R. 296,
     ¶¶ 9, 12 (2010). We find no basis to conclude that the agency’s EEO official, to
     whom the appellant expressed his opinion, should have known that the appellant
     was not entitled to retained pay and had a duty to correct his misapprehension.
                                                                                       5

     See Drummonds v. Department of Veterans Affairs, 58 M.S.P.R. 579, 584 (1993)
     (the agency had a duty to correct the appellant’s mistaken belief contained in a
     letter of resignation that he could resign and simultaneously challenge a
     demotion).   Additionally, we find no evidence in the record that the agency
     created intolerable working conditions such that the appellant had no choice but
     to accept the transfer to the lower-graded position. See Peoples v. Department of
     the Navy, 83 M.S.P.R. 216, ¶ 8 (1999); ID at 9 (explaining that the appellant only
     complained of general incivility).
¶7        We further agree with the administrative judge’s findings that the appellant
     failed to nonfrivolously allege that he was wrongly denied retained pay under
     5 C.F.R. Part 536 and that the agency’s actions therefore did not result in an
     appealable reduction in pay.    See 5 U.S.C. § 7512(4) (reduction in pay is an
     appealable adverse action under chapter 75); Broderick v. Department of the
     Treasury, 52 M.S.P.R. 254, 258 (1992) (the right to appeal a reduction in pay has
     been narrowly construed). As explained by the administrative judge, the Office
     of   Personnel   Management’s        (OPM’s)   regulations   outline   the   limited
     circumstances under which an agency either must or may provide an employee
     with retained pay. See 5 C.F.R. §§ 536.301-536.302; ID at 11-13. We agree that,
     under the facts of this case, the appellant’s acceptance of a lower-graded position
     falls outside of both the mandatory and permissive pay retention categories, and
     we find that there was no legal authority for the agency to provide the appellant
     with retained pay. We note, moreover, that OPM’s regulations expressly preclude
     an agency from offering retained pay to an employee who is reduced in pay at the
     employee’s request. See 5 C.F.R. § 536.102(b)(1); see also 5 C.F.R. § 536.103
     (defining “at the employee’s request” as a request “that is initiated by the
     employee for his or her benefit, convenience, or personal advantage”). Consistent
     with our decision above, we find that the appellant’s voluntary acceptance of the
     lower-graded position also supports a finding that the appellant was reduced in
     pay at his request. See ID at 14 & n.5.
                                                                                       6

¶8        For the aforementioned reasons, we find that the administrative judge
     properly dismissed the appellant’s appeals of his reduction in grade and pay for
     lack of jurisdiction.   The appellant’s petition for review is DENIED and the
     administrative judge’s initial decision is AFFIRMED.

                      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.
     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.
                                                                            7

     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.
