U.S. Merit Systems Protection Board 
Case Report for October 26, 2012

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Appellant:  Gary M. Solamon
Agency:  Department of Commerce
Decision Number:  2012 MSPB 117
Docket Number:  DC-0752-11-0807-I-1
Issuance Date:  October 23, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Pay

 - Reduction in Pay
 - Constructive Demotion

    The appellant petitioned for review of an initial decision that dismissed his reduction in pay appeal for lack of jurisdiction.  The appellant is an employee of the agency's Bureau of Economic Analysis (BEA).  In 2005, he was reassigned from a nonsupervisory position to a supervisory position.  In April 2011, he was reassigned back to his nonsupervisory position, resulting in a decrease in pay.  The BEA's personnel and pay practices are governed by an alternative personnel management system knnown as the Commerce Alternative Personnel System (CAPS), which was first authorized and approved by the Office of Personnel Management (OPM) in 1997 as a demonstration project under 5 U.S.C. 4703, which Congress later extended indefinitely.  Under CAPS, employees in supervisory positions are eligible to receive additional supervisory performance pay, which is considered a part of basic pay.  Under CAPS, the payment of supervisory performance pay is not considered a promotion or a competitive action, and the discontinuation of the employee's supervisory duties, and the resulting "cancellation of supervisory pay does not constitute an adverse action, and there is no right of appeal under 5 U.S.C. Chapter 75."  CAPS thus requires a partial waiver of 5 U.S.C. 7512(4), which would otherwise cover any reduction in basic pay as an appealable adverse action.  

     On appeal, the administrative judge found that the appellant failed to make a nonfrivolous allegation that he had been subjected to an appealable reduction in pay and dismissed the appeal for lack of jurisdiction.  On review, the appellant reiterated his argument that he had been subjected to an appealable reduction in pay.  The Board requested OPM to provide an advisory opinion on several matters, including whether the Board has jurisdiction under 5 U.S.C. 7512(4) to review the appellant's reduction in pay, and whether 5 U.S.C. 4703 authorizes the exclusion of the appellant's reduction in pay from Board jurisdiction.  OPM answered these questions "no" and "yes" respectively.  

Holdings:  The Board affirmed the initial decision, but forwarded to the regional office the appellant's claims of a constructive demotion for docketing as a new appeal:  

1.  The Board agreed with OPM that the partial waiver of 7512(4) is lawful under 4703.  Because OPM lawfully waived 7512(4) to the extent that it would otherwise cover the cancellation of supervisory performance pay under CAPS, and because Congress has since expressly approved CAPS in its entirety, the appellant's loss of supervisory performance pay is not appealable to the Board.

2.  In his initial appeal and on review, the appellant asserted that, after his reassignment back to a nonsupervisory position, the agency redistributed some of the supervisory duties he had performed and upgraded the supervisory position to a higher pay band.  The Board found that these assertions could constitute a constructive demotion claim cognizable under 5 U.S.C. 7512(3).  It remanded that claim to the regional office for docketing as a separate appeal.  

Appellant:  Kathy L. Davis
Agency:  United States Postal Service
Decision Number:  2012 MSPB 118
Docket Numbers:  DA-0752-10-0393-I-1 and DA-3443-11-0487-I-1
Issuance Date:  October 24, 2012

Restoration to Duty
 - Partial Recovery from Compensable Injury
Res Judicata - Collateral Estoppel

    The appellant petitioned for review of initial decisions that dismissed her appeals alleging that the agency improperly denied her restoration after partial recovery from a compensable injury.  The appellant suffered a compensable injury in 1995 while serving as a Mail Processing Clerk.  She thereafter worked in a series of modified assignments, most recently in a rehabilitation assignment performing various duties pertaining to Post Office Box mail, Accountable mail, and Postage Due mail.  In April 2010, as part of its now discontinued National Reassessment Process, the agency notified the appellant that there were no operationally necessary tasks within her local commuting area that she could perform within her medical restrictions and that she was not to return to work unless the agency informed her that work within her medical restrictions had been identified.  The appellant filed an appeal alleging that the agency's action constituted an arbitrary and capricious denial of restoration and that the denial was the result of disability discrimination, age discrimination, and harmful procedural error.  The administrative judge found that the appellant failed to prove that the denial of restoration was arbitrary and capricious, and that the appellant failed to prove any of her other claims.  While the appellant's petition for review of that decision was pending before the Board, she filed a second appeal making the same claims as in the first appeal.  The judge dismissed the second appeal for lack of jurisdiction, finding that the appellant was collaterally estopped from relitigating whether the agency arbitrarily and capriciously denied her restoration.

Holdings:  The Board reversed the first initial decision, finding that the appellant established that the agency arbitrarily and capriciously denied her restoration, and vacated the second initial decision to dismiss the second appeal as barred under the doctrine of res judicata:

The appellant established that the agency arbitrarily and capriciously denied her restoration.

a.  The case is governed by the principles announced in Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012).  The dispositive issue, for both jurisdictional and merits purposes, is whether the appellant proved by preponderant evidence that the agency arbitrarily and capriciously denied her restoration.

b.  Per Latham, the agency could discontinue a modified assignment consisting of tasks within the employee’s medical restrictions only if the duties of that assignment no longer need to be performed by anyone or those duties need to be transferred to other employees in order to provide them with sufficient work, and the transfer of work does not violate any other law, rule, or regulation, including any contractual provision limiting the agency’s authority to assign work.

c.  The appellant presented preponderant evidence below, and reasserted on review, that the tasks she performed as part of her modified assignment are now being performed by other employees on an overtime basis and by managers.  The agency failed to rebut this evidence.

d.  Although Latham was not issued until after the initial decision was issued, the agency could reasonably be expected on review to attempt to rebut the appellant's evidence that the tasks making up her modified duty assignment were being performed by other employees on an overtime basis and by management.  Accordingly, there is no need to remand the appeal to the regional office to afford the agency an additional opportunity to present rebuttal evidence.

2.  The Board affirmed the judge's findings that the appellant failed to prove her claims of discrimination and harmful procedural error.

3.  The proper basis for dismissing the second appeal is res judicata, not collateral estoppel.

a.  Collateral estoppel (issue preclusion) bars the relitigation of issues that have previously been fully litigated and made part of a final judgment.  This doctrine did not apply to the appellant's second appeal because a final judgment had not been issued in the first appeal; it was pending before the Board on petition for review.

b.  Res judicata (claim preclusion) prevents parties from litigating claims that were brought or could have been brought in a prior action.  Now that the Board has issued a final decision in the first appeal, res judicata precludes the appellant from litigating the same claims in the second appeal.  


The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the followings case:

McCarthy v. International Boundary & Water Commission, No. 2011-3239 (Oct. 15, 2012) MSPB Docket Nos. DA-1221-09-0725-W-1 and DA-1221-10-0078-W-1) (affirming the Board's decision, which found that the agency did not violate the Whistleblower Protection Act)

U.S. Merit Systems Protection Board | Case Reports