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 Number 129 June 1999 This report covers selected decisions and other actions of the Federal Labor Relations Authority (Authority or FLRA) under the Federal Service Labor-Management Relations Statute (FSLMRS), the Merit Systems Protection Board (Board or MSPB), the courts, and other authorities whose actions affect Federal employee and labor-management relations. Selection is based generally on whether a case creates or modifies precedent or provides insights that are of interest to a wider spectrum of agency management than only the parties to the cases themselves. FLRA DECISIONS CLASSIFICATION OF NON-EXISTENT POSITIONS ... STAFFING PATTERNS. In a split decision, Member Cabaniss dissenting, FLRA holds that a proposal prescribing the grades of proposed positions is not removed from the scope of bargaining by § 7103(a)(14)(B), but instead deals with section 7106(b)(1) permissibly negotiable staffing patterns. National Association of Government Employees, Local R3-76 and Defense Logistics Agency, Defense Automated Printing Service, Philadelphia, PA, 0-NG-2442, May 28, 1999, 55 FLRA No. 88. PERFORMANCE AWARDS ... 10-YEAR PAST PRACTICE. The Authority turned down agency exceptions to an award in which the arbitrator found that the agency violated the collective bargaining agreement when, without giving notice to the union at the regional level, it reduced the percentage of annual salary as awards for outstanding and highly successful ratings. General Services Administration and American Federation of Government Employees, Local 2431, 0-AR-3093, May 28, 1999, 55 FLRA No. 84. INDIRECT EFFECTS OF OVERTIME ASSIGNMENT PROPOSAL ON NON-UNIT EMPLOYEES. A proposal requiring that the involuntary assignment of overtime be equally shared between unit and non-unit employees is a mandatory subject of bargaining. Association of Civilian Technicians, Granite State Chapter and National Guard Bureau, New Hampshire Air National Guard, 0-NG-2347, May 27, 1999, 55 FLRA No. 79. FLEXIPLACE ... MAINTAINING PAST PRACTICES DURING FSIP PROCEEDINGS. In a split decision, Member Cabaniss dissenting, the Authority holds that the agency violated its § 7116(a)(5) duty to bargain when it changed a past practice related to employee flexiplace requests after the services of the Impasses Panel were invoked. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals, WA-CA-80032, May 7, 1999, 55 FLRA No. 74. PERFORMANCE ... NUMBER OF OVERALL PERFORMANCE RATING LEVELS NOT A SECTION 7106(b)(1) MATTER. A proposal prescribing 4 overall rating levels "impermissibly affects" management's section 7106(a)(2)(A) and (B) rights to direct employees and assign work. The Authority rejects the union assertion that the proposal deals with section 7106(b)(1) methods and means. American Federation of Government Employees, Council of GSA Locals, Council 236 and General Services Administration, 0-NG-2387-001, April 30, 1999, 55 FLRA No. 73. SETTLEMENT AGREEMENT. Where an appellant breached provision of a settlement in which she agreed to resign, the agency is entitled to treat the agreement as her resignation and place appropriate papers in her personnel folder. Anderson v. Environmental Protection Agency, DC0752980040-X-1, April 28, 1999. ADMINISTRATIVE LAW JUDGE ... JURISDICTION. In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies all administrative adjudicators. There must be a substantial showing of personal bias to disqualify a hearing officer. The mere fact that an administrative judge has ruled against a party in the past cannot be a basis for a claim of personal bias. Clint Washington v. Department of the Interior, DE0752980430-I-1, February 26, 1999. WHISTLEBLOWING ... CONSEQUENTIAL DAMAGES. A prior retaliatory action is not rendered moot on the basis that the employee has voluntarily removed himself or herself from the perceived harassment. Therefore, an award for consequential damages may still be warranted. Monna Porter v. Treasury, DA1221980056-W-1, February 2, 1999. JURISDICTION AND PROCEDURES. In cases where there is a reduction in the rate of basic pay, once the appellant has shown that his or her pay was reduced without adverse action procedures, the burden is on the agency to show that the prior rate of basic pay was contrary to law or regulation. Royster v. Department of Defense DC0752980086-I-1, December 1, 1998. FLRA DECISIONS 55 FLRA No. 88 National Association of Government Employees, Local R3-76 and Defense Logistics Agency, Defense Automated Printing Service, Philadelphia, PA, 0-NG-2442, May 28, 1999, 55 FLRA No. 88. Holding In a split decision, Member Cabaniss dissenting, FLRA holds that a proposal prescribing the grades of proposed positions is not removed from the scope of bargaining by § 7103(a)(14)(B), but instead deals with § 7106(b)(1) permissibly negotiable staffing patterns. Summary In response to an agency restructuring plan involving, among other things, the reclassifying of wage-grade positions to general schedule positions, the union advanced a proposal that pre-scribed the grades (which would be one level higher than the current grades of the current staff), as well as the numbers and types of staffing for various shifts. For example, the following is the first item on a list of seven such items that are organized by work area and shift:
When the agency claimed that the proposal dealt with classification within the meaning of section 7103(a)(14)(B) and therefore was nonnegotiable, the union filed a negotiability appeal with the Authority, claiming, among other things, that the proposal dealt with a section 7106(b)(1) matter. In a split decision, Member Cabaniss dissenting, the Authority rejected the agency's claim that the proposal was a prohibited subject of bargaining because it dealt with classification matters. This conclusion was based on FLRA's adoption of an interpretation of the proposal advanced by the union: namely, that it was the union's intent "to define the number of positions under each work area and define the work performed for each position by assigning the position a title and grade." After adopting this interpretation, FLRA distinguished this case from its precedent as follows: In Point Mugu, the proposal required the agency to "reclassify" particular positions. Point Mugu, 45 FLRA at 803. In NUSC Newport, the proposal mandated that the agency "extend" the "career ladder of an individual assuming the position of the president of [the union]" to a higher grade. NUSC Newport, 42 FLRA at 1287. The proposal here, in contrast, does not require the agency to reclassify existing, already-classified positions. [Emphasis added.] Given this interpretation and distinction, the majority concluded that the proposal "would not require the agency to classify or reclassify particular existing positions, and would not require the placement of incumbent employees into the positions established in the proposal." In her dissent, Member Cabaniss--citing Fort Polk, 53 FLRA No. 143, Panama Canal Commission, 51 FLRA No. 32, Point Mugu Navy Air Warfare Center 45 FLRA No. 72, and March AFB, 13 FLRA No. 44--concluded that there was no duty to bargain on the proposal because it concerns classification matters. She said that "[t]he majority's rationale, as to why the present situation is distinguishable from some of the noted precedent, appears to be based upon distinctions that support no substantive differences as to the outcome mandated by its own case law." Comments It isn't clear why the majority and Member Cabaniss are in disagreement. Nowhere in the majority's opinion do they refer to the dissent of Member Cabaniss and explain why her reasoning was unpersuasive. (Compare, e.g., with footnotes 4 and 5 in 55 FLRA No. 74.) Although the majority comments on the Point Mugu and NUSC Newport cases (raised by the agency), it says nothing about the Fort Polk and March AFB cases cited by Member Cabaniss. But, on the other hand, neither is Member Cabaniss's remark about "distinctions that support no substantive differences" particularly edifying. What distinctions? What substantive differences? It seems to us--and we here warn the reader that we may be reading into this decision something that isn't clearly there--that this case deals with an attempt, at least by the majority, to reconcile section 7103(a)(14)(B) with section 7106(b)(1). The former excludes "matters . . . relating to the classification of any position" and the latter permits bargaining on "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty." The majority seems to be narrowing the meaning to be assigned to § 7103(a)(14)(C) in order to give meaning to section 7106(b)(1). That is, the majority appears to be saying, in effect, that for a 7106(b)(1) proposal to concern a classification matter under 7103(a)(14)(B), it must either prescribe the classification for "existing, already-classified positions" or "require the placement of incumbent employees into the positions established in the proposal." Before getting to the section 7106(b)(1) issue, the Authority rejected the union's claim that the proposal dealt with a mandatory subject of bargaining under section 7106(b)(3), finding instead that the proposal excessively interfered with the right to determine an agency's organization. "Although [said FLRA] the proposal would afford unit employees some benefits, in terms of increased placement and promotional opportunities, these benefits would result from severe restrictions on the Agency's ability to establish an organizational structure that meets its needs." 55 FLRA No. 84 General Services Administration and American Federation of Government Employees, Local 2431, 0-AR-3093, May 28, 1999, 55 FLRA No.84. Holding The Authority turned down agency exceptions to an award in which the arbitrator found that the agency violated the collective bargaining agreement (CBA) when, without giving notice to the union at the regional level, it reduced the percentage of annual salary as awards for outstanding and highly successful ratings and ordered back pay. Summary For ten years the agency gave performance awards of 2% of basic salary to employees rated "outstanding" and 1% to employees rated "highly successful." However, in June 1997 it reduced those rates to 1% and .5%, respectively. The change was grieved and referred to arbitration, where the arbitrator, although noting that the CBA gave management authority to set the amount of performance awards on an annual basis, nonetheless found a violation of the agreement and ordered back pay. In his view, the agreement, which also contained provisions on past practices and which required notice of proposed changes in "personnel policies, practices and working conditions," had to be interpreted as a whole. The arbitrator consequently found that the CBA as a whole requires negotiations over a decision to change a past practice. For violating this contractual requirement, and noting that the record did not indicate that money wasn't available for bonuses at the old, higher rate, he ordered that the affected employees be made whole. The agency filed essence, Back Pay Act, and fair hearing exceptions. FLRA rejected the claim that the award didn't draw its essence from the CBA. "Given the past practice, which is not disputed, the Arbitrator's interpretation of the CBA as a whole is plausible and can rationally be derived from the agreement." FLRA also rejected the agency's claim that the award violated the Back Pay Act. Deferring to the arbitrator's interpretation of the agreement and his factual finding of a past practice, it found a connection between the unjustified or unwarranted personnel action (the violation of the CBA) and the loss of pay (lowered annual performance awards). It also rejected the agency's claim that the arbitrator didn't conduct a fair hearing. The Agency's contention that the evidence does not support a finding that the performance awards were reduced in retaliation for lack of cooperation by the Union in bargaining, even if correct, would not establish the absence of a fair hearing. A finding of retaliation is not the basis of the award, and is not necessary to the Arbitrator's finding that the Agency violated the CBA. Therefore, there can be no showing of prejudice to the Agency, so as to affect the fairness of the proceeding. The FLRA accordingly denied the agency's exceptions. 55 FLRA No. 79 Association of Civilian Technicians, Granite State Chapter and National Guard Bureau, New Hampshire Air National Guard, 0-NG-2347, May 27, 1999, 55 FLRA No. 79. Holding A proposal requiring that the involuntary assignment of overtime be equally shared between unit and non-unit employees is a mandatory subject of bargaining. Summary The disputed proposal reads, in relevant part, as follows: The employer shall not, in any calendar year, assign to a bargaining unit employee on an involuntary basis more work outside the normal duty hours than is assigned on an involuntary basis to any available and similarly qualified person not in the bargaining unit, except that inequality unavoidable due to work not being equally divisible among available qualified persons shall be allowed. The bargaining unit consists of military technicians. The non-unit employees to which the above refers are "Active Guard/Reserve" or "AGR" personnel--i.e., "full time military members of the National Guard who perform many duties similar to those of the military technician workforce." FLRA noted that it has held that a proposal that directly determines (or has a direct effect on or regulates) the conditions of employment of non-unit employees is outside the scope of mandatory bargaining. But it distinguishes between proposals that "directly determine" and proposals that only "affect" the conditions of employment of non-unit personnel. "That a proposal has an indirect effect on non-unit employees may relate to its reasonableness or merits, but does not render the proposal outside the duty to bargain." FLRA went on to reject the agency's claim that the disputed proposal would regulate the assignment of overtime work to non-unit personnel. [N]othing on the face of the proposal indicates a direct effect on non-unit personnel.The Union's proposal would only require the Agency to assign bargaining unit members the same or less involuntary overtime than it assigned to non-bargaining unit persons. It would not directly determine the amount of involuntary overtime that non-unit personnel (the AGR members) would be required to perform. Although the proposal may well result in additional overtime work for AGR members, that effect is not enough to lead to the conclusion that the proposal directly determines the conditions of employment of non-unit personnel. (Emphasis added.) Comment FLRA compared the disputed proposal on the assignment of involuntary overtime with earlier cases dealing with the assignment of parking spaces (53 FLRA at 1338-39) and a proposal designating the location of a restaurant (54 FLRA at 1381-82). The proposals in both those cases were found to be mandatory subjects of bargaining even though they affected the conditions of employment of non-unit employees In responding to the agency's contention that the proposal didn't satisfy the requirements of the "vitally affects" test, FLRA noted that the "vitally affects" test applies only to proposals that directly determine` the conditions of employment of non-unit personnel. Since the proposal at issue had an indirect, rather than direct, effect on non-unit employees, there was no need to apply the "vitally affects" test. 55 FLRA No. 4 Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals, WA-CA-80032, May 7, 1999, 55 FLRA No. 74. Holding In a split decision, Member Cabaniss dissenting, the Authority held that the agency violated its § 7116(a)(5) duty to bargain when it changed a past practice of considering employee flexiplace requests after the services of the Impasses Panel had been invoked. Summary The agency had a past practice of considering attorney requests for flexiplace arrangements. (Over a 2-year period it had considered 9 such requests.) However, it refused to consider 3 requests that were made after the union invoked Impasses Panel assistance on, among other things, a flexiplace proposal, indicating that it would not act on any flexiplace requests until the flexiplace issue that was before the Impasses Panel was resolved. A ULP complaint followed. In a split decision (Member Cabaniss dissenting), the Authority found that the employer's refusal to consider flexiplace requests after the services of the Impasses Panel were invoked was a violation of § 7116(a)(5)--i.e., a change in a condition of employment (which includes past practices) without completing bargaining. In reaching this conclusion the majority emphasized that the employer was charged with failing to maintain the status quo, not with respect to the factors it considered in determining whether or not to approve the requests, but rather with respect to considering the requests at all. "Thus," said FLRA, "whether the Respondent retained discretion with regard to the factors used to consider the requests is not dispositive." In her dissent, Member Cabaniss said that she could not "agree that a past practice can be created where, as here, the agency has total discretion to act however it wishes. . . . Until the flexiplace negotiations between the parties in this case were completed, the Agency retained complete discretion to grant or deny flexiplace requests as it saw fit." In footnote 4 the majority said it didn't "understand the dissent's reliance on the doctrine of sole and exclusive discretion." The majority went on to note that the "sole and exclusive discretion" doctrine is relevant to negotiability disputes, not to unilateral changes in conditions of employment--which was the issue here. 55 FLRA No. 73 American Federation of Government Employees, Council of GSA Locals, Council 236 and General Services Administration, 0-NG-2387-001, April 30, 1999, 55 FLRA No. 73. Holding A proposal prescribing 4 overall rating levels "impermissibly affects" management's section 7106(a)(2)(A) and (B) rights to direct employees and assign work. The Authority rejects the union's assertion that the proposal deals with section 7106(b)(1) methods and means. Summary The proposal in dispute reads as follows: The measures of rating for over-all performance shall be one (1) of the (4) ratings defined below. The rating shall be: Because there was no evidence that the union had asked for an allegation of non-negotiability from the agency concerning the third sentence, FLRA dismissed that sentence. With respect to the remainder of the proposal, the agency, citing FLRA precedent, claimed that FLRA has consistently held that proposals establishing the number of levels for summary performance ratings, and the designation of those levels, are nonnegotiable. The union countered by claiming that inasmuch as revised OPM performance regulations permitted agencies to establish a range of 2 to 5 summary rating levels, the number of levels is negotiable. FLRA found that the proposal affects management's rights to direct and assign work. Noting that the union didn't claim that the proposal was either a 7106(b)(2) procedure or a 7106(b)(3) appropriate arrangement, it concluded that "the proposal impermissibly affects management's rights" and is therefore "outside the duty to bargain." FLRA then turned to the union's claim that the proposal dealt with section 7106(b)(1) methods and means, in which the union emphasized that the proposal is a "measure" used to accomplish the agency's work. (The union also said that the agency had agreed to bargain over section 7106(b)(1) subjects and noted that OPM, in revising its regulations, urged agencies to develop their performance appraisal systems in partnership with employee unions.) The Authority noted that it has held that "methods" refers to "how an agency performs its work." "Means," on the other hand, "refers to what an agency uses to perform its work." Applying these definitions to the first two sentences of the proposal, the Authority found that they did not deal with methods and means. [T]he Union does not explain how the proposal is encompassed within the Authority's definition of the terms "methods" and "means." Proposals concerning the number and designation of rating levels do not concern how an agency performs its work or what an agency uses to accomplish its work. Rather, such proposals concern how an agency evaluates the manner in which its employees perform the work to which they have been assigned. The Authority has consistently held that an agency's determinations as to performance standards and rating levels concern the work objectives for employees. [Bureau of Public Debt, 3 FLRA 769, 776 cited.] An agency's determination of the methods and means of performing work, on the other hand, concerns how employees do their work and what they will use to accomplish those objectives. FLRA accordingly held that the proposal is outside the duty to bargain. Comments In 54 FLRA No. 136, reported in Significant Cases No. 127, the Authority held that section 7106(b)(1)'s reference to methods and means did not encompass the right to contract out because contracting out deals with WHO will do the work, not with the WAY in which the work will be done. In the case at bar, it holds that neither does it encompass management's rights (i.e., the rights to direct employees and to assign work) to determine the number and the designation of overall performance rating levels. FLRA found it unnecessary to apply the second prong of the two-prong "methods and means" test. The second prong--which was developed and applied well before the D.C. Circuit, in Montana Air National Guard v. FLRA, 22 F.3d 1150 (1994), held that all of section 7106(b)'s subsections were exceptions to management's section 7106(a) rights--requires a showing that the method or means is directly related to the accomplishment of the agency's mission and that the proposal "would directly interfere with the mission-related purpose for which the methods or means was adopted." In footnote 10 in the case at bar, the Authority reminds us that the current methods-and-means test "may no longer be appropriate in cases where the union, rather than the agency, contends that the proposal concerns methods and means." (Emphasis added.) Merit Systems Protection Board (MSPB) Decisions SETTLEMENT AGREEMENT Sonia G. Anderson v. Environmental Protection Agency, DC0752980040-X-1, April 28, 1999. Holding Where an appellant breached provision of a settlement in which she agreed to resign, the agency is entitled to treat the agreement as her resignation and place appropriate papers in her personnel folder. Summary During the course of a hearing the parties entered into an oral settlement agreement. In the agreement, the agency promised to reinstate the appellant in a leave without pay status for 90 days, and to remove all references to the removal action from the appellant's personnel file. The appellant promised to withdraw her appeal and to submit her resignation for medical reasons. In addition, the appellant agreed to submit a disability retirement application to the Office of Personnel Management and the agency agreed to complete the supervisory portions of the application. The administrative judge(AJ) accepted the agreement into the record for enforcement purposes and dismissed the appeal as settled. In June 1998, the agency filed a petition to enforce the agreement, claiming that the appellant had not submitted a completed disability application to the agency or to OPM and had not submitted her resignation. When the employee failed to respond to this petition, the AJ found that the appellant must submit her resignation to the agency in order to comply with the alleged that the settlement agreement was invalid and should not be enforced because it was "forced" on the appellant by the AJ. The appellant claimed that she did not wish to retire on disability, but instead wanted to return to work. The Board concluded that the appellant's unsupported assertion did not meet the burden of proving that she was coerced by the AJ. Moreover, if the appellant wanted to challenge the validity of the agreement, the appropriate method would have been through a petition for review, which she did not file despite the fact that she was informed of her right to do so in the initial decision. When one party breaches a settlement agreement, the other party has the option of enforcing the terms of the settlement or rescinding the settlement and going forward with the original claim. In this case, the agency requested that the Board order the appellant to comply with the terms of the agreement. Accordingly, the appellant was ordered by the Board to submit to the agency and the Board a written statement resigning from her position for medical reasons, effective the date of the removal. The Board concluded that if the appellant failed to submit such a writing, the Board may authorize the agency, upon notification of the Board and the appellant, to consider the settlement agreement to be the appellant's resignation and on that basis to place appropriate papers effectuating the resignation in the appellant's official personnel file. ADMINISTRATIVE LAW JUDGE...JURISDICTION Clint Washington v. Department of the Interior, DE0752980430-I-1, February 26, 1999. Holding In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies all administrative adjudicators. There must be a substantial showing of personal bias to disqualify a hearing officer. The mere fact that an administrative judge has ruled against a party in the past cannot be a basis for a claim of personal bias. Summary Note: The instant appeal in this case was brought when the appellant was removed on a charge of "violent off-duty misconduct," which is entirely unrelated to the interlocutory ruling that now brought it before the Board. The appellant's counsel requested that the administrative judge recuse himself from ruling on this and all other cases in which the appellant's counsel, his associate, or their law firm serves as an appellant's representative before the Merit Systems Protection Board's Denver Field Office. The basis of that request was an Unfair Labor Practice charge the attorney had filed against the administrative judge because of a ruling he made in another case. The counsel asserted that his pending litigation against the administrative judge could cause appellants who were his clients to question the administrative judge's impartiality. The administrative judge declined the request and certified to the Board for interlocutory review the issue of the propriety of his ruling. The Board, supported by extensive court decisions, has held that in making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies all administrative adjudicators. There must be a substantial showing of bias to disqualify a hearing officer. In Oliver v. Department of Transportation, 1 MSPR. 382 (1980), the Board first applied those holdings to its interlocutory review of the issue, and it has continued to apply that presumption in all cases to the present. Also, citing re Drexel Burnham Lambert, Inc., 861 F.2d 1307 (2d Cir. 1988), the Board stated that courts have consistently held that litigants are entitled to an unbiased judge, not one of their choosing, and that a "judge is as much obligated not to recuse himself when it is not called for as he is obliged to when it is." In reviewing this case, the Board concluded that the counsel's motion was based solely on the fact that he and his law firm had filed and were pursuing an Unfair Labor Practice charge against the AJ, at which he expected to be a witness. He did not claim that the AJ had ruled improperly against the instant appellant, or even that he held any animosity toward him. Nor did he assert that any statement or action by the judge in this or other cases indicated any degree of animosity against him, his law firm, or its representation of appellants in general. The Board found no approaching circumstances that would require the administrative judge's recusal. The bare claim asserted by the appellant that the judge may be biased by counsel's activity in a separate case, involving a different appellant and a different agency, was unsupported by any hint that the judge acted or ruled inappropriately in this case or otherwise displayed any evidence or bias against the appellant or his counsel, was simply insufficient to rebut the presumption of honesty and integrity that accompanies this, and all, of the Board's administrative judges. The Board also found too for the same reasons, that any risk of the appearance of a conflict of interest is not enough, alone, under these circumstances to warrant a different result. Accordingly, the Board affirmed the administrative judge's determination declining the suggestion of recusal and returned the appeal to him for adjudication. WHISTLEBLOWING . . . CONSEQUENTIAL DAMAGES Monna Porter v. Treasury, DA1221980056-W-1, February 2, 1999. Holding A prior retaliatory action is not rendered moot on the basis that the employee has voluntarily removed himself or herself from the perceived harassment. Therefore, an award for consequential damages may still be warranted. Summary The employee, an Investigative Assistant, filed an individual right of action (IRA) appeal alleging that she was detailed in retaliation of her disclosure that her supervisor ignored a backup request from an agent, thereby placing the agent in danger. During this detail, the employee requested and was later granted a reassignment. This reassignment formed the basis for the agency's motion to dismiss the employee's appeal as moot. In agreeing with the agency's motion, the administrative judge (AJ) concluded that since her detail was terminated, the issues concerning her detail were moot and denied the employee's request for corrective action. The employee filed a petition for review arguing that the AJ denied her a hearing and erroneously denied her request for corrective action without ruling on her claim for damages and attorney fees. On review, the full Merit Systems Protection Board (Board) held that the fact that the employee voluntarily removed herself from the detail did not render her pending complaint moot. Further-more, the Board also held that pursuant to Title 5 USC § 1221, the Board may order the payment of medical costs, travel expenses and reasonable and foreseeable consequential damages (including attorney fees and costs). Since the employee was granted a reassignment while her appeal was pending, the Board could not order the agency to return the employee, to the position she would have been in had the prohibited personnel practice had not happened. However, fore-seeable consequential damages in the form of attorney fees and costs still remained a viable form of corrective action. Furthermore, in the employee's petition, she argued that her reassignment and accompanying damages were related to the alleged retaliatory detail. Therefore, applying Special Counsel v. Department of Treasury, 71 MSPR 661, consequential damages would still be considered possible. The Board remanded the appeal, concluding that the employee's IRA appeal was not rendered moot because her detail was terminated and that the AJ erroneously dismissed her case without affording her the opportunity for an adjudication on the merits or the opportunity to make a limited evidentiary showing on damages. JURISDICTION AND PROCEDURES Royster v. Department of Defense, DC0752980086-I-1, December 1, 1998. Holding In cases where there is a reduction in the rate of basic pay, once the appellant has shown that his or her pay was reduced without adverse action procedures, the burden is on the agency to show that the prior rate of basic pay was contrary to law or regulation. Summary On February 28, 1993, the appellant laterally transferred from the Internal Revenue Service as a GM-Telecommunications Specialist to the Department of Defense(DOD) Information Systems Agency as a GM-Computer Scientist. Upon transfer, DOD inadvertently reflected the wrong salary on his appointment SF-50 and overpaid him for several years. But in 1997 the error was discovered in an agency-wide audit. The agency then reduced his salary to correct the error, and he appealed the action reducing his basic pay without adverse action procedures. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the action was excluded from coverage, since the agency had simply acted to correct its earlier mistake in paying him at a rate contrary to regulation. Upon review, the Board referred the parties to its recently issued Lomax v. Department of Defense, CH3443970763-I-1, June 17, 1998, which held that an appellant makes a prima facie showing of jurisdiction by establishing that his rate of basic pay was reduced and that if the agency reduced the appellant's pay to correct what it believed was an error in setting pay, then the agency bears the burden of showing that it set the appellant's pay at a rate contrary to law or regulation. Thus, for the case at hand, once the appellant showed that his basic pay was reduced without adverse action procedures, the burden was on the agency to show that the prior rate was contrary to law or regulation. Noting that the administrative judge at the time did not have benefit of Lomax, the Board held that the agency representative's assertions, and copies of SF-50s, standing alone, did not meet that burden and remanded the case to the regional office for further jurisdiction. Upon remand, if the agency is able to prove that the higher rate inadvertently paid the appellant was actually contrary to law or regulation, the administrative judge is to consider the appellant's argument that the regulation at section 752.401(b)(15) of 5 CFR excepting such actions from adverse action coverage "is invalid as contrary to law." Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930.
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