Reassignment Does Not Automatically Create a Right to Appeal

Can an agency reassign a federal employee to a position the employee considers less desirable without giving an employee the right to appeal? In this case, the MSPB and the Court gave a clear answer.

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 (Phillips v. Merit Systems Protection Board, C.A.F.C. No. 2008-3251 (nonprecedential), 1/14/09)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.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.