Search:

Custom Search
Photo of Susan Smith

Reassignment Does Not Automatically Create a Right to Appeal

By Susan Smith

Monday, January 26, 2009

You can have daily headlines from FedSmith.com delivered right to your desktop each business morning. The service is free and you don't get junk e-mail as the price of your subscription. Just visit our newsletter page to sign up!

Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.

The appeals court has ruled that reassignment of an Internal Revenue Service employee from a Supervisory Revenue Agent (IR-05) to an Internal Revenue Agency (GS-13) did not amount to an appealable demotion. (Phillips v. Merit Systems Protection Board, C.A.F.C. No. 2008-3251 (nonprecedential), 1/14/09)

Following this reassignment, Phillips appealed to the Merit Systems Protection Board, arguing that it was an involuntary demotion. The agency moved to dismiss for lack of jurisdiction since Phillips' reassignment was voluntary and did not result in a reduction in pay or grade. Without holding a jurisdiction hearing, the MSPB agreed and dismissed the appeal. (Opinion p. 2)

The federal appeals court now agrees with the Board. The court points out the Board jurisdiction will only result where there is a reduction in grade or pay. In this case the Board determined that neither action occurred. The court agrees with this determination. (p. 3)

The court cites the Board's finding that Phillips' Notification of Personnel Action form shows that her salary actually went up (about $900 per year) when she was reassigned to the GS-13 position. Also, the maximum pay rate for both the positions was the same. Under these circumstances there is no reduction in pay or grade. (p. 3)

Phillips argued to the court that her previous position better placed her to qualify for future promotions to senior management jobs, and that adds up to a reduction in grade. The court opined that this does not make the action appealable to the board "even assuming that her new position involves less responsibility and less potential for future advancement." (p. 4)

Again pointing out that the maximum pay rate for both positions is exactly the same, the test is at the time of the reassignment, and not based on speculation as to potential for future promotions. As the court stated, "Phillips's allegations, even if true, do not suffice to establish an ascertainable reduction in pay or grade at the time of her reassignment." (p. 4)

The end result is that the agency can reassign—regardless as to whether it's voluntary or involuntary—under these circumstances and there is no appeal to the Board.
 

© 2009 FedSmith Inc. All rights reserved. This article may not be reproduced without express written consent of FedSmith Inc.

Add a Comment about this Article

** All fields are required.
Note: Your comments will not show up right away. FedSmith.com selects the most insightful comments from our readers for posting. If selected, your comments will show up in the comments section after they have been reviewed and approved. See our terms of use for more information.

Readers' Comments

  • I'm being reassigned this Friday. Today my desk is at the front door reception area, the only non-emergency exit, and I see and hear almost all that goes on in a room of 100 people. On Friday, I'll literally move to the back door, behind a wall with only 5 co-workers. It's considered the same job, p...
    Posted: March 4, 2009 9:30 AM
  • True....but you have to have that element of "discrimination" in there...and you probably know, it's hard to prove unless you have direct evidence, i.e., the manager was on record saying, "you're too old," or "I don't like women" and so forth. You get the gist, it's like one in a hundred million c...
    Posted: January 27, 2009 2:20 PM
  • You wrote: "The end result is that the agency can reassign—regardless as to whether it's voluntary or involuntary—under these circumstances and there is no appeal to the Board." True. However, an involuntary transfer for discriminatory (or arguably discriminatory) reasons can give rise to an appe...
    Posted: January 26, 2009 12:22 PM

View All Comments »

MORE BY SUSAN SMITH

Contact Susan Smith or read more articles on the author's page.