              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
               is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit


                                        04-3291



                                EDMUND J. BECKMAN,

                                                       Petitioner,

                                           v.

                       DEPARTMENT OF VETERANS AFFAIRS,

                                                       Respondent.



                           __________________________

                           DECIDED: May 20, 2005
                           __________________________



Before NEWMAN, LOURIE, and LINN, Circuit Judges.

PER CURIAM.



       Edmund J. Beckman petitions for review of the decision of the Merit Systems

Protection Board, Docket No. CH0351030262-I-1, dismissing his appeal for lack of

jurisdiction. We affirm.

                                    BACKGROUND




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       Mr. Beckman was employed as a GS-6 firefighter at the VA Medical Center in Hines,

Illinois until June 2002, when he was reassigned to the position of GS-6 pharmacy

technician. The reassignment was made necessary by the abolition of his firefighter

position when the Agency contracted with the local community to provide firefighting

services to the Medical Center. The reassignment resulted in a reduction in Mr. Beckman's

total pay, due to the differences in work schedules and overtime entitlements between

those of firefighters and pharmacy technicians.

       Mr. Beckman appealed the reassignment to the Board, alleging that his loss of pay

was a demotion as the result of a reduction in force, for which the Agency had not followed

the necessary procedures. The Administrative Judge ruled that Mr. Beckman had not been

demoted, but had merely been reassigned from one GS-6 position to another. The AJ

dismissed the case for lack of jurisdiction, and the full Board declined review.

                                      DISCUSSION

       We review Board decisions to determine whether they are "(1) arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law; (2) obtained without

procedures required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence."   5 U.S.C. §7703(c).       The Board's decision on a question of

jurisdiction is a matter of law that we review de novo.

       The Board's jurisdiction is set by statute and regulation. See Maddox v. Merit Sys.

Prot. Bd., 759 F.2d 9, 10 (Fed. Cir. 1985). Mr. Beckman argues that the Board has

jurisdiction over his appeal pursuant to 5 C.F.R. §351.901, which provides:

       An employee who has been furloughed for more than 30 days, separated, or
       demoted by a reduction in force action may appeal to the Merit Systems
       Protection Board.


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The parties agree that the only relevant question in this case is whether Mr. Beckman has

been "demoted," as that term is defined in 5 C.F.R. §210.102:

       (b)(4) Demotion means a change of an employee, while serving continuously
       within the same agency:
               (i) To a lower grade when both the old and the new positions
               are under the General Schedule or under the same type
               graded wage schedule; or
               (ii) To a position with a lower rate of pay when both the old and
               the new positions are under the same type ungraded wage
               schedule, or are in different pay method categories.

The Board ruled that in terms of these definitions Mr. Beckman was not demoted.

       Mr. Beckman urges us to apply subsection (b)(4)(ii) to his situation and argues that

since his new position is at "a lower rate of pay," it constitutes a demotion. It is not disputed

that he received a decrease in total pay after the reassignment, and that the reason for the

decrease was the absence of overtime pay at the firefighters' rate. He argues that

subsection (b)(4)(ii) applies because his past and present GS-6 positions are in different

pay method categories, and points to 5 U.S.C. §5545(b) as support. Section 5545(b)

provides:

       Pay for firefighters
       (a) This section applies to an employee whose position is classified in the
       firefighter occupation in conformance with the GS-081 standard published by
       the Office of Personnel Management, and whose normal work schedule, as
       in effect throughout the year, consists of regular tours of duty which average
       at least 106 hours per biweekly pay period.
       (b)(1) If the regular tour of duty of a firefighter subject to this section
       generally consists of 24-hour shifts, rather than a basic 40-hour workweek
       (as determined under regulations prescribed by the Office of Personnel
       Management), section 5504(b) shall be applied as follows in computing
       pay --
               (A) paragraph (1) of such section shall be deemed to require that the
       annual rate be divided by 2756 to derive the hourly rate; and
               (B) the computation of such firefighter's daily, weekly, or biweekly rate
       shall be based on the hourly rate under subparagraph (A);


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     (2) For the purpose of sections 5595(c), 5941, 8331(3), and 8704(c), and for
     such other purposes as may be expressly provided for by law or as the Office
     of Personnel Management may by regulation prescribe, the basic pay of a
     firefighter subject to this subsection shall include an amount equal to the
     firefighter's basic hourly rate (as computed under paragraph (1)(A)) for all
     hours in such firefighter's regular tour of duty (including overtime hours).
     (c)(1) If the regular tour of duty of a firefighter subject to this section includes
     a basic 40-hour workweek (as determined under regulations prescribed by
     the Office of Personnel Management), section 5504(b) shall be applied as
     follows in computing pay --
              (A) the provisions of such section shall apply to the hours within the
     basic 40-hour workweek;
              (B) for hours outside the basic 40-hour workweek, such section shall
     be deemed to require that the hourly rate be derived by dividing the annual
     rate by 2756; and
              (C) the computation of such firefighter's daily, weekly, or biweekly rate
     shall be based on subparagraphs (A) and (B), as each applies to the hours
     involved.
     (2) For purposes of sections 5595(c), 5941, 8331(3), and 8704(c), and for
     such other purposes as may be expressly provided for by law or as the Office
     of Personnel Management may by regulation prescribe, the basic pay of a
     firefighter subject to this subsection shall include --
              (A) an amount computed under paragraph (1)(A) for the hours within
     the basic 40-hour workweek; and
              (B) an amount equal to the firefighter's basic hourly rate (as computed
     under paragraph (1)(B)) for all hours outside the basic 40-hour workweek that
     are within such firefighter's regular tour of duty (including overtime hours).
     (d)(1) A firefighter who is subject to this section shall receive overtime pay in
     accordance with section 5542, but shall not receive premium pay provided by
     other provisions of this subchapter.
     (2) For the purpose of applying section 7(k) of the Fair Labor Standards Act
     of 1938 to a firefighter who is subject to this section, no violation referred to in
     such section 7(k) shall be deemed to have occurred if the requirements of
     section 5542(a) are met, applying section 5542(a) as provided in subsection
     (f) of that section: Provided, That the overtime hourly rate of pay for such
     firefighter shall in all cases be an amount equal to one and one-half times the
     firefighter's hourly rate of basic pay under subsection (b)(1)(A) or (c)(1)(B) of
     this section, as applicable.
     (3) The Office of Personnel Management may prescribe regulations, with
     respect to firefighters subject to this section, that would permit an agency to
     reduce or eliminate the variation in the amount of firefighters' biweekly pay
     caused by work scheduling cycles that result in varying hours in the regular
     tours of duty from pay period to pay period. Under such regulations, the pay
     that a firefighter would otherwise receive for regular tours of duty over the
     work scheduling cycle shall, to the extent practicable, remain unaffected.


04-3291                                       4
       (4) Notwithstanding section 8114(e)(1), overtime pay for a firefighter subject
       to this section for hours in a regular tour of duty shall be included in any
       computation of pay under section 8114.


       Mr. Beckman points out that the firefighters pay structure produced regular GS-6 pay

at a higher rate than for the GS-6 pharmacy technician, for federal firefighters normally are

on the job for longer hours than most federal employees. He points out that since 1999, 5

U.S.C. §5545(b) re-characterized regularly scheduled overtime and stand-by pay for federal

firefighters as basic pay rather than premium pay, and that this enactment established a

higher base pay for a GS-6 firefighter.

       However, as the MSPB correctly found, this adjustment did not remove federal

firefighters from the General Schedule.       The MSPB correctly ruled that subsection

210.102(b)(4)(i) governs changes when both the old and new positions are under the

General Schedule or same type of schedule, whereas §210.102(b)(4)(ii) applies to

ungraded or different pay methods.        Subsection 210.102(b)(4)(i) requires that for a

demotion, the new position must be at a lower GS grade than the position from which the

employee was transferred. In Mr. Beckman's case, however, both positions are at grade

GS-6; thus by statute there has been no demotion, for it has not been shown that both

positions are in an ungraded wage schedule or are in different pay method categories. For

an employee under the General Schedule, a demotion is not caused by a transfer to a

General Schedule position at the same grade that does not incur regular overtime pay,

when the basic pay of the firefighters' position, although incurring regular overtime, was

also based on the standard 40-hour workweek. Mr. Beckman has not shown that he is

outside of this category. See Nigg v. Merit Systems Protection Board,, 321 F.3d 1381,



04-3291                                      5
1384 (Fed. Cir. 2003 ) ("This court's precedent has long distinguished between 'basic pay'

and 'premium pay,' such as overtime or night differential; we have consistently held that a

denial of premium pay does not constitute a reduction in pay that is appealable to the

Board."); Triponi v. United States, 633 F.2d 933, 935-36 (Ct. Cl. 1980) ("Since premium pay

under section 5545(c)(2) is additional compensation for overtime duty, it falls outside of the

definitions of pay referred to above, and its loss would therefore not mean a 'reduction' in

pay.") (footnote omitted).

       The decision of the Board is affirmed. Each party shall bear its costs.




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