Pann v. Dept of Navy, 00-3405

• Decision Date: 17 September 2001
• Docket Number: No. 00-3405,00-3405
• Citation: 265 F.3d 1346
• Parties: (Fed. Cir. 2001) CRAIG PANN, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

Page 1346

265 F.3d 1346 (Fed. Cir. 2001)

CRAIG PANN, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent.

No. 00-3405

United States Court of Appeals for the Federal Circuit

September 17, 2001

Appealed from: Merit Systems Protection Board

Charles E. Moore, Law Offices of Sean D. Simpson, of San Diego, California, argued for petitioner.

Monica J. Palko, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; and Mark A. Melnick, Assistant Director.

Before NEWMAN, BRYSON, and DYK, Circuit Judges.

BRYSON, Circuit Judge.

Craig Pann is currently employed as a Rigger (Land), WG-10, step 5, with the Department of the Navy. He contested the Navy's decision to reassign him from the position of Rigger (Diver), WG-10, step 5, to his current position, and he now appeals from an order of the Merit Systems Protection Board dismissing his appeal for lack of jurisdiction. Because Mr. Pann did not suffer any reduction in grade or basic pay, his reassignment from the position of Rigger (Diver) to the position of Rigger (Land) was not an adverse agency action within the meaning of 5 U.S.C. 7512, and his appeal was therefore not within the jurisdiction of the Merit Systems Protection Board. We uphold the Board's dismissal of his appeal.

I

Mr. Pann served as a diver in the U.S. Navy from 1983 to 1989. After leaving military service, the Navy hired him as a civilian employee. He served in the position of Rigger (Diver), and achieved a grade of WG-10, step 5, prior to his reassignment. For shifts in which he performed diving duties as part of his Rigger (Diver) position, Mr. Pann received "dive pay" in place of his usual hourly rate of pay. By regulation, "dive pay" is 175 percent of the locality WG-10, step 2, rate of pay and is paid to an employee in the Rigger (Diver) position for all payable hours of the shift in which the employee dives. 5 C.F.R. 532.281(b).

As a result of a dispute over Mr. Pann's taking an emergency leave of absence, the agency issued a notice of proposed termination and reassigned Mr. Pann from the position of Rigger (Diver) to the position of Rigger (Land). Although Mr. Pann received the same hourly rate of pay in the Rigger (Land) position that he had received in the Rigger (Diver) position, he did not qualify for dive pay in the Rigger (Land) position because diving was not among the duties of that job.

The agency did not sustain Mr. Pann's proposed termination, and Mr. Pann thereafter asked to be returned to his former Rigger (Diver) position. His request was denied, and Mr. Pann appealed to the Board, contending that his transfer to the position of Rigger (Land) constituted an impermissible demotion.

The administrative judge who was assigned to the case first dismissed Mr. Pann's appeal without a jurisdictional hearing on the ground that the Navy had taken no adverse action against Mr. Pann that was appealable to the Board. On Mr. Pann's petition for review, the full Board remanded the case to the administrative judge for a jurisdictional hearing on the ground that Mr. Pann had made a non-frivolous allegation that his rate of basic pay was reduced as a result of the reassignment-an allegation which, if proved, would establish Board jurisdiction. After a jurisdictional hearing, the administrative judge again dismissed Mr. Pann's appeal. The administrative judge found that Mr. Pann had not proved by a preponderance of the evidence that his rate of basic pay was reduced as a result of the reassignment. The full Board denied Mr. Pann's petition for review of that decision, and this appeal followed.

II

The question whether the Board has jurisdiction over this case calls for a straightforward application of the pertinent statutes and regulations. The Board has jurisdiction over certain specified agency actions. 5 U.S.C. 7512. In order for a reassignment to fall within the Board's jurisdiction, it must result in a reduction in grade or a reduction in pay. 5 U.S.C. 7512(3), (4). There is no dispute that Mr. Pann did not suffer a reduction in grade; accordingly, the Board has jurisdiction only if the transfer to the position of Rigger (Land) resulted in a reduction in pay.

The term "pay" as used in the subchapter of Title 5 of the United States Code that deals with adverse agency actions is defined as "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). "Basic pay" means the rate of pay fixed for the position held by the employee "before any deductions and exclusive of additional pay of any kind." 5 C.F.R. 531.202. "Additional pay" includes items such as availability pay, overtime pay, or premium pay, which are not regarded as part of an employee's "basic pay" as that term is used in the Board's jurisdictional statute. See Triponi v. United States, 633 F.2d 933 (Ct. Cl. 1980) (premium pay for administratively uncontrollable overtime pay is not basic pay); Luciano v. Dep't of the Treasury, 74 M.S.P.R. 441 (1997) (availability pay is not basic pay). Accordingly, if the dive pay earned by employees in the position of Rigger (Diver) is additional pay, rather than basic pay, the Board lacks jurisdiction over Mr. Pann's appeal, even though the practical effect of Mr. Pann's reassignment may have been to...