                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JEROME WADDELL LACY, SR.,                       DOCKET NUMBER
                 Appellant,                          DC-1221-15-0902-W-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: April 18, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jerome Waddell Lacy, Sr., Waynesboro, Virginia, pro se.

           Michael E. Hokenson, Esquire, Fort Belvoir, Virginia, 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 individual right of action (IRA) 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 regulation or the erroneous application of

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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, 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 7 at 85. In early 2008, he
     applied for, was selected for, and accepted a GG-12 position in Charlottesville,
     Virginia. Id. at 85, 87. Although the appellant came into his new position at the
     step 10 level, the highest step on the GG pay scale, this change in positions still
     resulted in a loss of pay, from $80,065 to $75,025. Id. at 85, 89.
¶3         On July 19, 2009, the agency changed the appellant’s pay method category
     from grades and steps to pay bands under the Defense Civilian Intelligence
     Personnel System (DCIPS). Id. at 83. This action did not alter the appellant’s
     rate of pay. 2 Id. Later that year, the appellant began seeking, through requests to
     management, correspondence with his congressional representative, and the equal
     employment opportunity process, retroactive pay from the agency based on his
     “highest previous rate.” 3 IAF, Tab 1 at 10-11, Tab 4 at 5-14, Tab 7 at 17-74. All


     2
       On March 25, 2012, the agency changed the appellant’s pay method category back to
     grades and steps. IAF, Tab 6 at 81. This action similarly did not affect his rate of pay.
     Id.
     3
       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
                                                                                      3

     of these efforts were unsuccessful. Id. The appellant also filed a Board appeal
     about the matter, which the Board construed as a constructive reduction in grade
     and pay appeal and dismissed for lack of jurisdiction. Lacy v. Department of the
     Army, MSPB Docket No. DC-0752-14-0119-I-1, Final Order (Sept. 30, 2014).
¶4         Subsequently, the appellant filed a whistleblower complaint with the Office
     of Special Counsel (OSC), claiming that the agency’s refusal to award him
     retroactive pay based on his highest previous rate was in retaliation for protected
     whistleblowing. IAF, Tab 1 at 12-19. OSC closed the appellant’s file without
     taking corrective action, and the appellant filed the instant IRA appeal.     IAF,
     Tab 1 at 4-6, 22. He did not request a hearing. Id. at 3. After the administrative
     judge issued a jurisdictional order, and the parties filed evidence and argument on
     the issue, IAF, Tabs 4-14, the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction, IAF, Tab 16, Initial Decision (ID)
     at 1, 8. He found that the appellant failed to make a nonfrivolous allegation that
     the denial of higher pay was a personnel action, that he made a protected
     disclosure, or that any disclosure was a contributing factor in the agency’s
     decision. ID at 5-8.
¶5         The appellant has filed a petition for review, disputing some of the
     administrative judge’s findings. Petition for Review (PFR) File, Tab 1 at 3-4.
     The agency has filed a response, PFR File, Tab 4 at 4-10, and the appellant has
     filed a reply, PFR File, Tab 5 at 4-6.
¶6         To establish jurisdiction over an IRA appeal concerning whistleblower
     disclosures, an appellant must exhaust his administrative remedies before OSC
     and make nonfrivolous allegations that:       (1) he engaged in whistleblowing
     activity by making a protected disclosure; and (2) the disclosure was a
     contributing factor in the agency’s decision to take or fail to take a personnel



     employee’s highest previous rate of pay in setting his current pay upon a change of
     positions.
                                                                                       4

     action. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.
     2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 12 (2002).
¶7          As an initial matter, we address the several documents that the appellant has
     filed along with his petition for review and his reply to the agency’s response.
     We find that these documents provide no basis to disturb the initial decision
     because they are neither new nor material.        Cf. 5 C.F.R. § 1201.115(d) (The
     Board may grant a petition for review if it contains new and material evidence).
     This evidence is not new because it all predates the initial decision, and it was
     either contained in the record below or lacks an explanation of why it was
     previously unavailable despite the appellant’s due diligence. PFR File, Tab 1
     at 5-6, Tab 4 at 11-28; see Meier v. Department of the Interior, 3 M.S.P.R. 247,
     256 (1980) (explaining that evidence that is already a part of the record is not
     new); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (holding that
     the Board will not consider evidence submitted for the first time with the petition
     for review absent a showing that it was unavailable before the record was closed
     despite the party’s due diligence). This evidence is also not material because the
     appellant has not explained why he believes that it warrants an outcome different
     from     that   of    the   initial   decision.      See    Russo     v.   Veterans
     Administration, 3 M.S.P.R. 345, 349 (1980).
¶8          Turning to the appellant’s arguments, he appears to             dispute the
     administrative judge’s finding that his disclosure was not protected. PFR File,
     Tab 1 at 3-4. According to the appellant, his protected disclosures consisted of
     letters that he wrote to his congressional representative in October 2009 and
     January 2010, the National Academy of Public Administration in June 2010, and
     the Agency’s Defense Civilian Intelligence Personnel System Evaluation Team in
     November 2011, as well as a video teleconference with a Pentagon official on
     February 17, 2010. IAF, Tab 12 at 4-5. As the appellant describes them, these
     disclosures pointed out a deficiency in the agency’s implementation of DCIPS to
                                                                                       5

      the extent that the agency implemented DCIPS without including a highest
      previous rate policy. PFR File, Tab 1 at 3-4; IAF, Tab 12 at 4-5.
¶9          We agree with the administrative judge, however, that the appellant failed
      to make a nonfrivolous allegation that he reasonably believed that these
      disclosures evidenced any of the categories of wrongdoing in 5 U.S.C.
      § 2302(b)(8)(A). ID at 5-6. The appellant argues that the agency violated a law,
      rule, or regulation by unilaterally eliminating a highest previous rate policy that
      OPM established for the entire Federal workforce.       PFR File, Tab 1 at 3-4.
      However, OPM’s regulations do not require agencies to afford their employees
      highest previous rate compensation. Rather, they allow agencies to do so at their
      option, stating that an agency “may” fix the pay of an employee who has been
      reduced in grade at his highest previous rate. 5 C.F.R. § 532.405. As noted by
      the administrative judge, the appellant’s allegations indicate that he was aware
      that the provision for which he was advocating was not required by law or
      regulation. ID at 7; IAF, Tab 13. The appellant has provided no basis on review
      for disturbing the administrative judge’s finding that a person in the appellant’s
      position would not reasonably conclude that he disclosed evidence of a violation
      of law, rule, or regulation.
¶10         The appellant also asserts that the agency’s failure to include a highest
      previous rate policy with DCIPS constituted gross mismanagement, a gross waste
      of funds, and an abuse of authority. PFR File, Tab 1 at 3. We disagree. “Gross
      mismanagement” requires that a claimed error in the agency’s adoption of or
      adherence to a policy be a matter that is not debatable among reasonable people.
      White v. Department of the Air Force, 391 F.3d 1377, 1383 (Fed. Cir. 2004). We
      agree with the administrative judge that the appellant failed to make a
      nonfrivolous allegation that the policy dispute rose to that level. ID at 7; see
      Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015). Likewise, a
      “gross waste of funds” is a more than debatable expenditure that is significantly
      out of proportion to the benefit reasonably expected to accrue to the Government.
                                                                                          6

      Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85 (1996). The appellant
      has not explained how the agency’s failure to adopt a highest previous rate policy
      for DCIPS would constitute a gross waste of funds, especially considering that
      declining to pay employees at their highest previous rate would actually appear to
      save the agency money.          Finally, an “abuse of authority” is an arbitrary or
      capricious exercise of power by a Federal official or employee that adversely
      affects the rights of any person or results in personal gain or advantage to himself
      or   to     other   preferred    persons.         Murphy   v.   Department    of   the
      Treasury, 86 M.S.P.R. 131, ¶ 6 (2000). We find that the appellant’s debatable
      disagreements with the agency’s policy decisions do not constitute nonfrivolous
      allegations of an abuse of authority.              See Mc Corcle v. Department of
      Agriculture, 98 M.S.P.R. 363, ¶ 24 (2005).
¶11           Finally, the appellant does not appear to dispute the administrative judge’s
      finding that, even if he made a protected disclosure and the agency’s failure to
      pay him at the highest previous rate was a personnel action, he failed to make a
      nonfrivolous allegation of the contributing factor element. ID at 7-8. For the
      reasons explained in the initial decision, we agree with the administrative judge.
      ID at 7-8; see Mason v. Department of Homeland Security, 116 M.S.P.R. 135,
      ¶ 27 (2011) (finding that a disclosure made after a personnel action could not
      have been a contributing factor in the action). We acknowledge that the appellant
      continued to request and the agency continued to deny his requests for highest
      previous rate compensation even after he made the disclosures at issue. However,
      we find that the agency’s subsequent refusal to change the decision that it reached
      before the appellant made his disclosures does not affect the contributing factor
      analysis.    Cf. Horton v. Department of the Navy, 66 F.3d 279, 284 (Fed. Cir.
      1995) (determining that a disclosure is not a contributing factor in a personnel
      action if the decision on the action was made before the disclosure, even if the
      action was not implemented until after the disclosure), superseded by statute on
      other     grounds    as    stated    in     Day     v.   Department   of     Homeland
                                                                                           7

      Security, 119 M.S.P.R. 589, ¶¶ 14, 18 (2013) (addressing what constitutes a
      protected disclosure); Charest v. Federal Emergency Management Agency, 54
      M.S.P.R. 436, 440-41 (1992) (explaining that persisting in discipline decided
      upon before learning of protected disclosures does not, by itself, transform the
      discipline into a prohibited personnel practice).
¶12         As a result, we affirm the initial decision.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit.
            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 want to request review of the Board’s decision concerning your
      claims   of    prohibited   personnel   practices    under   5   U.S.C.   § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
      the Board’s disposition of any other claims of prohibited personnel practices, you
      may request review of this final decision by the U.S. Court of Appeals for the
      Federal Circuit or any court of appeals of competent jurisdiction. The court of
      appeals must receive your petition for review within 60 days after the date of this
      order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
      to file, be very careful to file on time. You may choose to request review of the
      Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
      court of appeals of competent jurisdiction, but not both. Once you choose to seek
      review in one court of appeals, you may be precluded from seeking review in any
      other court.
                                                                                  8

      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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your 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:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
