Albert E. Bivings v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3293
ALBERT E. BIVINGS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF THE ARMY,
Intervenor.
Albert E. Bivings, of Peachtree City, Georgia, pro se.
Michael A. Carney, General Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Calvin M. Morrow, Acting Assistant General Counsel for
Litigation.
Lauren S. Moore, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, for intervenor. With her on the brief were Gregory G. Katsas,
Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr.,
Assistant Director.
Appealed from: Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3293
ALBERT E. BIVINGS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF THE ARMY,
Intervenor.
Petition for review from the Merit Systems Protection Board in AT0752080060-I-1.
___________________________
DECIDED: December 5, 2008
___________________________
Before NEWMAN, PLAGER, and DYK, Circuit Judges.
PER CURIAM.
Albert E. Bivings (“Bivings”) petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) dismissing his appeal for lack of jurisdiction.
Bivings v. Dep’t of the Army, AT0752080060-I-1 (M.S.P.B. May 16, 2008) (“Final
Decision”). We affirm.
BACKGROUND
Bivings was employed by the Department of the Army (“the agency”) as a GS-13
Wildlife Biologist. On January 21, 2007 he was converted from the GS-level based

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employment rating system to the Department of Defense’s (“DOD”) National Security
Personnel System (“NSPS”).
On August 14, 2007, Bivings attended a retirement seminar. One thing this
seminar addressed was that, even though the NSPS merit rating period ended in
September, bonuses could only be received by those employees still employed in
February of the following year. Bivings emailed the agency’s Human Resources
department about this requirement on August 16, 2007, and was told that employees
who retired prior to the first pay period of 2008 would not be eligible to receive a
performance payout.
On October 2, 2007, Bivings voluntarily retired from the agency, and the agency
did not pay Bivings a performance-based payout in January 2008. Bivings filed an
appeal with the Board. Bivings argued that the refusal to grant him his January 2008
payout was arbitrary and capricious.
On February 8, 2008, the administrative judge (“AJ”) issued an Initial Decision
dismissing the appeal for lack of jurisdiction on the ground that Bivings was seeking to
receive a bonus and such acts did not constitute a “reduction in pay” under the Board’s
jurisdiction. The Initial Decision became the final decision of the Board when the Board
denied Bivings’s petition for review. Final Decision, slip op. at 1-2.
We have jurisdiction over Bivings’s petition pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Pursuant to 5 U.S.C. § 7703(c), we must affirm a decision of the Board unless we
find it to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required by law, rule, or
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regulation having been followed; or (3) unsupported by substantial evidence. See
Kewley v. Dep't of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
Whether the Board has jurisdiction to adjudicate an appeal is a question of law, which
this Court reviews de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir.
1995). The appellant has the burden of establishing the Board’s jurisdiction. 5 C.F.R.
§ 1201.56(a)(2)(i).
The Board has jurisdiction to review a “reduction in pay.” 5 U.S.C. § 7512(4).
“Pay” is defined as “the rate of basic pay fixed by law or administrative action for the
position held by the employee.” 5 U.S.C. § 7511(a)(4). “By statute . . . the term
‘reduction in pay’ refers to a reduction in basic pay, not a reduction in premium pay.”
Nigg v. Merit Sys. Protection Bd., 321 F.3d 1381, 1385 (Fed. Cir. 2003). Therefore,
“bonus or premium pay is not part of basic pay and . . . the loss of or reduction in such
pay is not appealable to the Board as a reduction in pay.” Riojas v. U.S. Postal Serv.,
88 M.S.P.R. 230, 233 (M.S.P.B. 2001).
The DOD NSPS performance payouts come from a pay pool consisting of three
sources: (1) basic pay funds that were historically used on within-grade increases,
quality-step increases, and promotions between General Schedule grade levels that no
longer exist under NSPS; (2) government-wide general pay increases; and (3) bonus
pay. See Subchapter 1930.9.3.1 of DOD manual 1400.25-M. Under the pay pool
approach, Bivings might have expected two types of payments from the pool: first, an
increase in basic pay for the future and, second, a bonus for past performance.
Because Bivings retired before the January NSPS performance payouts, he had no
basis to claim increased basic pay. His only claim, therefore, is that he should have
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received a payment for past performance. Bivings argues that this performance payout
is not a bonus, but part of basic pay under the new NSPS system.
Subchapter 1930.9.4 of DOD manual 1400.25-M makes clear that, apart from
salary increases, NSPS payments are “bonuses.” 5 C.F.R. § 9901.342. The January
performance-based payouts sought by Bivings are defined as “increases to base
salaries, bonuses, or a combination of the two.” Id. Since Bivings could not receive
salary increases, the only payments he would have been entitled to would be bonuses.
As the Board has no jurisdiction to review the denial of bonus pay, the Board had no
jurisdiction to review the denial of Bivings’s January 2008 performance-based payout.
For the foregoing reasons, the decision of the Board is affirmed.
COSTS
No costs.

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