Stone v. Merit Sys. Prot. Bd., 2015-3139
| Decision Date | 10 December 2015 |
| Docket Number | 2015-3139 |
| Parties | STEVEN J. STONE, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential.
Petition for review of the Merit Systems Protection Board in No. DA-3443-14-0560-I-1.
STEVEN J. STONE, Calgary, Alberta, Canada, pro se.
LINDSEY SCHRECKENGOST, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by BRYAN G. POLISUK.
Before DYK, O'MALLEY, and STOLL, Circuit Judges.
Mr. Stone appeals the final decision of the Merit Systems Protection Board ("Board") dismissing his appeal for lack of jurisdiction. Because Mr. Stone has failed to satisfy his burden of proving that the Board had jurisdiction over his appeal, we affirm.
Mr. Stone served as an Immigration Inspector with the Immigration and Naturalization Service ("Agency") in Edmonton, Canada starting in 1984. In 1986, he began receiving foreign quarters allowance ("FQA") under 5 U.S.C. § 5922, which authorizes payment to United States citizens for the annual cost of suitable housing abroad. In 2000, the Agency notified Mr. Stone that he was subject to the Agency's overseas rotation policy and would eventually be rotated to the United States.
Mr. Stone filed a grievance with the Agency, which in 2000 determined that as a "local hire" in 1984, Mr. Stone would not be subject to the overseas rotation policy. As a result of Mr. Stone's classification as a local hire, the Agency terminated all entitlements, including FQA. Mr. Stone, however, mistakenly received FQA payments until October 2001, when the Agency notified him that his salary would be offset to collect the $30,323.72 overpay-ment.1
Mr. Stone appealed to the Board for reinstatement of his FQA and reimbursement of his garnished salary. Because the dispute did not constitute an appealable "reduction in pay," the Board ultimately dismissed Mr. Stone's appeal for lack of jurisdiction.
Mr. Stone appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
Whether the Board has jurisdiction to hear an appeal is a question of law we review de novo. Whiteman v. Dep't of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). Mr. Stone bears the burden of proving Board jurisdiction by a preponderance of evidence. Fields v. Dep't of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006); 5 C.F.R. § 1201.56(b)(2)(i)(A).
The Board's jurisdiction is "strictly defined and confined by statute and regulation" to appeals of decisions involving "adverse actions." Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). The Board has jurisdiction to review the adverse action of an employee's "reduction in pay." 5 U.S.C. § 7512(4). Pay is defined as "the rate of basic pay fixed by law or administrative action for the position held by [the] employee." Pann v. Dep't of Navy, 265 F.3d 1346, 1348 (Fed. Cir. 2001) (citing 5 U.S.C. § 7511(a)(4)). Basic pay, in turn, means "the rate of pay fixed for the position held by the employee before any deductions and exclusive of additional pay of any kind." Id. (emphasis added) (internal quotation marks and citation omitted); see also 5 C.F.R. § 531.203.
Because Mr. Stone's alleged loss of FQA pay is "additional pay" not subject to MSPB review, the Board correctly held that it lacked jurisdiction over Mr. Stone's appeal. See 5 C.F.R. § 531.203. Moreover, Mr. Stone's FQA was not "fixed by law or administrative action" as proscribed by 5 U.S.C. § 7511(a)(4)—it was discretionary. See 5 U.S.C. § 5922(a) (); see also Roberts v. United States, 104 Fed. Cl. 598, 602 (2012), aff'd, 745 F.3d 1158 (Fed. Cir. 2014) ( ) (internal quotation marks and citation omitted). Accordingly, Mr. Stone's loss of FQA is not an appealable ...
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