Steven T. Baseden v. Department of the Navy
Background
- Appellant Steven T. Baseden appealed the agency’s alleged reduction in grade/pay after his PCS from GS-12 in Guantanamo Bay to a GS-13 supervisory position in Misawa, Japan, claiming he was placed on leave/awaiting government transportation from Oct 27–Nov 15, 2015 and arrived Nov 16, 2015.
- He alleged a constructive suspension (Nov 1–15, 2015) and constructive demotion (Oct 27–Nov 15, 2015) following retroactive modification of PCS travel orders; he also asserted his pay was reduced to $0 for a pay period ending Nov 14, 2015.
- Agency evidence showed the formal promotion effective date was Nov 15, 2015, and that the appellant voluntarily departed Cuba on Oct 27 despite being instructed to ensure a Nov 15 fly-out date; he took leave en route and arrived in Seattle earlier than the first available flight to Japan.
- The administrative judge dismissed the appeal for lack of Board jurisdiction after finding the appellant failed to nonfrivolously allege (1) an appealable suspension lasting more than 14 days and (2) a reduction in grade or pay reviewable by the Board.
- On petition for review, appellant raised a compensatory time-off-for-travel claim under 5 U.S.C. § 5550b for the first time and submitted a January 2016 leave-and-earnings statement; the Board declined to consider the new argument as jurisdictionally dispositive and noted PCS travel is excluded from travel-status compensatory time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant nonfrivolously alleged an appealable suspension or constructive suspension | Baseden: his leave/awaiting-transport period was effectively agency-initiated and involuntary (constructive suspension) | Agency: appellant voluntarily left Cuba early and took leave; he was not forced into an unpaid status by agency action | Held: No nonfrivolous allegation; evidence shows appellant chose to depart and took leave, so no suspension/constructive suspension jurisdiction |
| Whether appellant was entitled to compensatory time off for travel (5 U.S.C. § 5550b) | Baseden: denied compensatory travel time for his travel from Cuba to Japan | Agency: compensatory time for travel does not cover PCS travel; appellant was not eligible | Held: Board will not consider this new argument on review; in any event PCS travel excluded, so immaterial to jurisdiction |
| Whether appellant nonfrivolously alleged an appealable reduction in pay | Baseden: agency placed him on leave without pay for a pay period (effectively reduced pay to $0) | Agency: appeal requires an ascertainable reduction in rate of basic pay; appellant made no allegation his rate was lowered | Held: No nonfrivolous allegation of reduction in pay because appellant did not allege or show a reduction in his rate of basic pay |
| Whether appellant nonfrivolously alleged a reduction in grade or constructive demotion | Baseden: travel orders/travel voucher show promotion should have been effective earlier | Agency: promotion documents show effective date Nov 15, 2015; no evidence that promotion was intended earlier or that prior position was reclassified | Held: No nonfrivolous allegation of reduction in grade or constructive demotion; promotion effective Nov 15 and no reclassification alleged |
Key Cases Cited
- Rosario-Fabregas v. Merit Systems Protection Board, 833 F.3d 1342 (Fed. Cir.) (standard for constructive suspension jurisdiction)
- Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed. Cir.) (right to jurisdictional hearing where nonfrivolous jurisdictional allegations made)
- Manning v. Merit Systems Protection Board, 742 F.2d 1424 (Fed. Cir.) (requiring factual support for involuntariness assertions)
- Chaney v. Veterans Administration, 906 F.2d 697 (Fed. Cir.) (appealable reduction in pay requires ascertainable lowering of rate of pay)
- Romero v. U.S. Postal Service, 121 M.S.P.R. 606 (M.S.P.B.) (constructive suspension requires lack of meaningful choice and agency wrongful action)
- Beaudette v. Department of the Treasury, 100 M.S.P.R. 353 (M.S.P.B.) (constructive demotion definition)