Thomas L. Caven v. Merit Systems Protection Board

United States Court of Appeals for the Federal Circuit
04-3105
THOMAS L. CAVEN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Lawrence A. Berger, Mahon & Berger, of Garden City, New York, for petitioner.
Calvin M. Morrow, Attorney, Merit Systems Protection Board, of Washington, DC,
for respondent. With him on the brief were Martha B. Schneider, General Counsel, and
Stephanie M. Conley, Reviewing Attorney.
Appealed from: United States Merit Systems Protection Board

-- 1 of 8 --

United States Court of Appeals for the Federal Circuit
04-3105
THOMAS L. CAVEN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________________
DECIDED: December 16, 2004
______________________________
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON,
Circuit Judge.
FRIEDMAN, Senior Circuit Judge.
This appeal challenges the decision of the Merit Systems Protection Board
(“Board”) dismissing, for lack of jurisdiction, an appeal from an agency’s denial of
“availability pay.” Caven v. Dep’t of Transp., No. SE-0752-02-0194-I-1 (M.S.P.B. Oct.
31, 2003) (“Final Order”). This is a form of premium pay for law enforcement officers
designed to provide compensation for unscheduled overtime work that the employee
performs or is available to perform. We agree with the Board that in the circumstances
of this case it lacked jurisdiction, and therefore affirm.
I
The petitioner Thomas L. Caven began to work for the Department of
Transportation (“Department”) in 1991 as a criminal investigator of aviation offenses.

-- 2 of 8 --

He continued in that capacity until 2002, when the Department converted his position
from criminal investigator to security specialist.
Law enforcement officers receive additional pay and may retire earlier than other
government employees. See Bingaman v. Dep’t of the Treasury, 127 F.3d 1431, 1433-
34 (Fed. Cir. 1997). Both the governing statute and the applicable regulations provide
explicit standards for determining law enforcement officer (LEO) status. Id. at 1434.
In 1994 Congress enacted the Law Enforcement Availability Pay Act of 1994
(“1994 Act”), Pub. L. No. 103-329, § 633, 108 Stat. 2425 (1994) (codified as amended
at 5 U.S.C. § 5545a (1998)), “to provide premium pay to criminal investigators to ensure
the availability of criminal investigators for unscheduled duty in excess of a 40 hour
week based on the needs of the employing agency.” 5 U.S.C. § 5545a(b). Shortly
thereafter, the Department informed its employees that criminal investigators in Caven’s
classification were not entitled to “availability pay” because they did not meet the
eligibility criteria for law enforcement officer status.
Caven nevertheless applied to the Department for law enforcement officer status.
The Department denied his request, but on appeal the Board held that he was entitled
to such status and ordered the Department to grant him “law enforcement officer
retirement coverage.” On the basis of that decision, Caven then requested the
Department to reconsider the question of availability pay and grant it to him.
After some delay in replying, the Department in June 2002 denied Caven
availability pay because he did not meet two of the statutory requirements for such pay:
(1) working a minimum number of hours of unscheduled overtime and (2) certification by
a superior that he had met the requirements for such pay.
04-3105 2

-- 3 of 8 --

Caven appealed to the Board the Department’s failure to give him retroactive
availability pay, which he sought for the period between the effective date of the 1994
Act in that year and 2002, when he ceased to serve as a criminal investigator. The
Board dismissed the appeal for lack of jurisdiction. Caven v. Dep’t of Transp., No. SE-
0752-02-0194-I-1 (M.S.P.B. June 10, 2003) (“Initial Decision”).
In the initial decision, which became final when the Board denied review, the
Board’s administrative judge stated that there was “nothing in the [1994 Act] or in the
Board’s regulations that would give [Caven] the right to appeal the denial of [availability]
pay to the Board.” Id. at 5; see Final Order at 2. The Board held that although the
governing statute “states that an ‘[i]nvoluntary reduction in pay resulting from a denial of
certification . . . shall be a reduction in pay for purposes of section 7512(4) of this title[,]’”
the Board’s refusal to certify Caven for availability pay “did not lead to either a reduction
in the appellant’s pay or a suspension of his availability pay.” Initial Decision at 6.
II
As the Board stated in this case, “Congress has clearly granted to the Board
jurisdiction to review agency denials of requests for LEO retirement credit. See 5
U.S.C. §§ 8347(d)(1), and 8461(e)(1) (West 1996).” Initial Decision at 5; see Elias v.
Dep’t of Def., 114 F.3d 1164, 1166-67 (Fed. Cir. 1997) (agency decision concerning law
enforcement officer service credit is appealable and is within the Board’s jurisdiction).
In reviewing denials of certification for availability pay, however, the Board’s jurisdiction
is far more limited. As the Board correctly indicated, it has such jurisdiction only if the
denial of certification results in a “reduction in the [employee’s] pay, or the suspension
of his availability pay.” Initial Decision at 6.
04-3105 3

-- 4 of 8 --

Under the 1994 Act, a “criminal investigator” defined as a “law enforcement
officer” under 5 U.S.C. § 5545a(a)(2) is entitled to availability pay if the unscheduled
overtime he works or is available to work equals or exceeds specified amounts. 5
U.S.C. § 5545a(d). Subsection (e)(1) states:
Each criminal investigator receiving availability pay
under this section and the appropriate supervisory officer, to
be designated by the head of the agency, shall make an
annual certification to the head of the agency that the
investigator has met, and is expected to meet, the
requirements of subsection (d).
Id. § 5545a(e)(1). Subsection (e)(2) then provides:
Involuntary reduction in pay resulting from a denial of
certification under paragraph (1) shall be a reduction in pay
for purposes of section 7512(4) of this title.
Id. § 5545a(e)(2). Section 7512(4), read in conjunction with section 7513(d), gives the
Board jurisdiction over appeals by any employee who has been subjected to “a
reduction in pay.”
The criminal investigator’s certification to which section 5545a(e)(1) refers is that
of an investigator “receiving availability pay.” An “[i]nvoluntary reduction in pay” that
triggers Board jurisdiction is one “resulting from a denial of [such] certification.”
§ 5545a(e)(2). In other words, the Board’s jurisdiction over denial of availability pay is
limited to cases in which the certification terminates such pay that a criminal investigator
was receiving. It does not extend to denials of certification that prospectively deny
employees availability pay that they have not been receiving, but to which they claim
entitlement.
Applying these provisions, the Board correctly held that it had no jurisdiction in
Caven’s case. Since Caven never had received availability pay, the Department’s
04-3105 4

-- 5 of 8 --

denial of certification for such pay was not a “reduction in pay.” It was a refusal to
increase pay, not a reduction of it – a quite different concept.
Caven contends, however, that his pay was in effect constructively reduced when
the Department refused to increase it by denying him availability pay. He argues that
because the Board held that he was entitled to retroactive law enforcement officer
status, if he had been given such status in 1994 (as he asserts he should have been),
he would necessarily also have been given availability pay from that time; therefore, his
pay was reduced when the Department refused to certify him for availability pay.
The argument rests on a fallacious assumption: that law enforcement officers
automatically are entitled to assistance pay. The latter pay is not automatic, however,
but requires compliance with the requirements of section 5545a, which include
certification by both the law enforcement officer and his superior that the officer has met
the statutory requirements. Moreover, a law enforcement officer may be denied
availability pay for reasons other than a lack of certification. See Martinez v. Merit Sys.
Prot. Bd., 126 F.3d 1480, 1482 (Fed. Cir. 1997) (loss of availability pay due to
reassignment to non-criminal investigator position was not the result of a denial of
certification and therefore was not appealable to the Board under § 5545a(e)(2)).
Finally, the argument is contrary to the well-settled principle that the denial of a
promotion that would have provided additional pay is not an appealable reduction in
pay. See Donovan v. United States, 580 F.2d 1203, 1207-08 (3d Cir. 1978) (wrongful
delay in promotion raised claim that plaintiff should have been paid at a higher rate, and
was not a reduction in pay remediable under the Back Pay Act); see also Chaney v.
Veterans Admin., 906 F.2d 697, 698 (Fed. Cir. 1990) (a reduction in pay occurs only
04-3105 5

-- 6 of 8 --

when there is an ascertainable lowering of the employee’s pay at the time of the action).
Moreover, “a denial of premium pay does not constitute a reduction in pay that is
appealable to the Board.” Nigg v. Merit Sys. Prot. Bd., 321 F.3d 1381, 1384 (Fed. Cir.
2003) (citing Mattern v. Dep’t of the Treasury, 291 F.3d 1366, 1370 (Fed. Cir. 2002)).
Caven’s argument is similar to one the Supreme Court rejected in United States
v. Testan, 424 U.S. 392 (1976). There, government employees who contended that
they should have been classified at a higher grade sued in the Court of Claims to
recover, through retroactive reclassification of their positions, the difference in pay
between the grade they held and the higher grade. In holding that the Court of Claims
had no jurisdiction over the suit, the Supreme Court stated:
There is no claim here that either respondent has been
denied the benefit of the position to which he was appointed.
The claim, instead, is that each has been denied the benefit
of a position to which he should have been, but was not,
appointed. The established rule is that one is not entitled to
the benefit of a position until he has been duly appointed to
it.
Id. at 402.
Similarly, here, Caven seeks “availability pay” that he had not received but that
he contends he should have been given, and the Board lacks jurisdiction over his claim.
The Board’s jurisdiction is limited to actions made appealable to the Board by a
law, rule or regulation. 5 U.S.C. § 7701(a); see Minor v. Merit Sys. Prot. Bd., 819 F.2d
280, 282 (Fed. Cir. 1987). Here, Congress has limited the Board’s jurisdiction over
appeals relating to denials of assistance pay to cases of denial of certification for such
pay for employees who had previously been receiving it. Caven does not fall within that
class, and the Board therefore correctly held that it had no jurisdiction over his appeal.
04-3105 6

-- 7 of 8 --

CONCLUSION
The decision of the Merit Systems Protection Board dismissing Caven’s appeal
for lack of jurisdiction is
AFFIRMED.
04-3105 7

-- 8 of 8 --