Cook v. Department of the Air Force , 251 F. App'x 675 ( 2007 )

Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3137
JEROME T. COOK,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
Daniel Minahan, Minahan and Shapiro, P.C., of Lakewood, Colorado, for
petitioner.
Steven M. Mager, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, and
Todd M. Hughes, Deputy Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3137
JEROME T. COOK,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
DECIDED: October 19, 2007
__________________________
Before LOURIE, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
Jerome T. Cook appeals a November 30, 2006 decision of the Merit Systems
Protection Board (“MSPB”) dismissing, for lack of jurisdiction, Cook’s appeal of a pay
determination by the Department of the Air Force (“Air Force”). Cook v. Dep’t of the Air
Force, No. DE3443060352-I-1 (Nov. 30, 2006). Because the MSPB’s decision is fully
supported by substantial evidence, in accordance with law, and not procedurally
defective, arbitrary, or capricious, we affirm.
I. BACKGROUND
Mr. Cook was employed as a mechanic leader, WL-10, at Schriever Air Force
Base near Colorado Springs, Colorado. In 2002, enticed by a higher hourly pay rate
given to workers there, Mr. Cook applied for and was selected for a transfer to Eielson
Air Force Base in Alaska. As a condition of his transfer, Mr. Cook was given the option
of returning to his position in Colorado after serving at least three, but no more than five,
years in Alaska. Based on rules in place at the time of the transfer, agency personnel
informed Mr. Cook that if he elected to return to his position in Colorado within the
three-to-five year window, he would be allowed to continue receiving the higher hourly
pay rate afforded the position in Alaska.
After serving three years in Alaska, Mr. Cook decided to return to his position in
Colorado. In June 2005, Mr. Cook spoke with Anna Pascua, a Human Relations
Specialist at Schriever Air Force Base. Ms. Pascua informed Mr. Cook that her
understanding was that he would retain his higher hourly pay rate upon transferring, but
that she was not responsible for setting his pay. Instead, the Air Force Personnel
Center (“AFPC”) would determine how his pay was set once his reassignment was
processed.
Without confirming with the AFPC or other agency personnel officials that he
would retain the pay rate of his position in Alaska, Mr. Cook formally requested
reassignment and returned to his previous position in Colorado in March 2006. At that
time, the Air Force informed him that due to changes required by Federal Workforce
Flexibility Act of 2004, Public Law 108-511 (October 30, 2004), he would not be
retaining the higher pay rate of his position in Alaska.
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Mr. Cook filed an appeal with the MSPB alleging that he had been subject to an
adverse action under 5 U.S.C. § 7512 without being afforded minimal procedural due
process. Mr. Cook sought cancellation of his reassignment to Colorado and
reinstatement to his position in Alaska with back pay and other related benefits.
In an initial decision dated November 30, 2006, the MSPB held that Mr. Cook
had not been subjected to a “reduction in pay” as defined by government regulations
and that Mr. Cook’s reliance on Ms. Pascua’s representation that he would retain the
higher hourly pay rate afforded his position in Alaska was unreasonable. Id. The
MSPB, therefore, dismissed his appeal for lack of jurisdiction. Cook v. Dep’t of the Air
Force, No. DE3443060352-I-1 (Nov. 30, 2006). The initial decision became the final
decision on January 4, 2007. Cook v. Dep’t of the Air Force, No. DE3443060352-I-1
(Jan. 4, 2007). Mr. Cook appeals to this court. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
II. DISCUSSION
Our review of the Board’s decision is limited by statute. See 5 U.S.C. § 7703(c).
We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” Id. The petitioner bears the burden of establishing error in the
Board’s decision. See, e.g., Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140
(Fed. Cir. 1986).
Whether the MSPB possesses jurisdiction to adjudicate a particular appeal is a
question of law this court reviews de novo. Hayes v. U.S. Postal Serv., 390 F.3d 1373,
2007-3137 3
1376 (Fed. Cir. 2004). The petitioner, however, bears the burden of establishing the
board’s jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(I);
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1333-34, 1338-39 (Fed. Cir. 2006)
(en banc).
On appeal, Mr. Cook argues that the MSPB misinterpreted his appeal as an
appeal of a reduction in pay. In fact, Mr. Cook states that he “is not appealing the
Agency’s pay-setting, nor [does he believe he is] entitled to retain the pay of the Alaska
position now that he has been reassigned back to Colorado.” Petr.’s Br. 12. Instead,
Mr. Cook argues that his “reassignment to Colorado coupled with the unexpected and
drastic reduction in his wages constitutes [an] adverse action appealable to the MSPB.”
Id.Section 7512 of United States Code Title 5, however, only lists five adverse
actions appealable to the MSPB: (1) removals; (2) suspensions for more than fourteen
days; (3) reductions in grade; (4) reductions in pay; and (5) furloughs of thirty days or
less. Mr. Cook has not been removed from his position, suspended, had his grade
reduced, or been furloughed. Accordingly, we fail to see what adverse action under
§ 7512 that Mr. Cook could have possibly been subjected to other than a reduction in
pay. In this case, however, the reduction in Mr. Cook’s pay was due to the fact that
continuing to pay Mr. Cook the higher pay rate afforded his position in Alaska would
have been contrary to law. Such an action is not appealable. 5 C.F.R.
§ 752.401(b)(15).
Nonetheless, Mr. Cook argues that his reassignment to Colorado and the
accompanying reduction in pay were involuntary due to the erroneous information he
2007-3137 4
received from Ms. Pascua. According to Mr. Cook, “ignorance of the consequences of
giving up one’s tenured federal position to take another position with the same agency[,
where that ignorance is attributable to the agency,] creates an adverse action
appealable to the MSPB” under § 7512. Petr.’s Br. 17.
Mr. Cook’s statement of the law, however, takes an overly broad view of § 7512.
If an “adverse action” is not specified in § 7512, it is not an adverse action appealable to
the MSPB. As stated above, Mr. Cook has not be removed, suspended, furloughed, or
had his grade reduced, and Mr. Cook’s reduction in pay was due to the fact that
maintaining his previous pay rate would have been contrary to law. Accordingly,
whether Mr. Cook’s reassignment was involuntarily is irrelevant.
However, even assuming Mr. Cook’s statement of the law is correct, the board’s
conclusion that it was unreasonable for Mr. Cook to rely on Ms. Pascua’s erroneous
representation, thus negating any involuntariness on his part, is supported by
substantial evidence. Substantial evidence does not require a preponderance of the
evidence. Instead, substantial evidence is that which a reasonable person, considering
the record as a whole, might accept as adequate to support a conclusion. Giove v.
Dep’t of Transp., 230 F.3d 1333, 1338 (Fed. Cir. 2000). Although Ms. Pascua informed
Mr. Cook that her understanding was that he would retain his higher pay rate upon
returning to Colorado, she explicitly told him that she was not responsible for setting his
pay rate. Given the nine months that elapsed between Ms. Pascua’s statement and Mr.
Cook’s reassignment to Colorado, the MSPB’s determination that it was unreasonable
for Mr. Cook to rely on Ms. Pascua’s representation is supported by substantial
evidence.
2007-3137 5
III. CONCLUSION
Because the MSPB’s decision is fully supported by substantial evidence, in
accordance with law, and not procedurally defective, arbitrary, or capricious, we affirm.
No costs.
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