UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

REGGIE L. EAKINS, JR.,

Appellant,

v.

DEPARTMENT OF ENERGY,

Agency.

DOCKET NUMBER

SF-0752-16-0714-I-1

DATE: March 30, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Reggie L. Eakins, Jr., Benton City, Washington, pro se.

Anissa Siefken and Marla K. Marvin, Richland, Washington, for the 

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his appeal of the agency’s cancellation of his promotion for lack of 

jurisdiction. Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of material fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

or the erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision 

were not consistent with required procedures or involved an abuse of discretion, 

and the resulting error affected the outcome of the case; or new and material 

evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review. Except as expressly MODIFIED by 

this Final Order to clarify that the appellant failed to prove by preponderant 

evidence that his promotion was approved by an authorized appointing official 

aware he was making the promotion, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant, a GS-13 General Engineer with the agency’s Office of River 

Protection, applied for a GS-14 Nuclear Engineer position with the agency’s 

Richland Operation Office in May 2016. Initial Appeal File (IAF), Tab 1 at 7-8; 

Tab 5 at 39-56. Although the position was listed as a GS-13/14 position with a 

promotion potential to GS-14, the appellant indicated in his application that he 

only wished to be considered for the position at the GS-14 level. IAF, Tab 5 

at 37, 39, 51-56. The appellant was selected for the position, and it was offered 
3

and he accepted it on June 15, 2016, with an effective date of June 26, 2016. 

IAF, Tab 1 at 10-11. 

¶3 The agency issued two Standard Form (SF) 50s dated June 26, 2016, one 

promoting the appellant to the GS-14 Nuclear Engineer position, and the second 

cancelling that promotion. Id. at 7-8. Both had the same effective date, with the 

cancellation SF-50 indicating in the Remarks section that it was due to 

“Administrative Error.” Id. The agency’s Human Resources Office contacted the 

appellant by telephone on July 12, 2016, and by letter on July 15, 2016, and 

informed him that the agency canceled the promotion because his application was 

erroneously accepted, given that he was not sufficiently qualified to complete the 

duties of the position at the GS-14 level. IAF, Tab 1 at 5; Tab 5 at 15-16. The 

appellant filed the instant appeal on August 25, 2016, alleging that he suffered a 

demotion or a reduction in grade or pay as a result of the agency’s decision 

rescinding his promotion. IAF, Tab 1. 

¶4 The administrative judge issued an initial decision that dismissed the appeal 

for lack of Board jurisdiction. IAF, Tab 7, Initial Decision (ID). The 

administrative judge found that an authorized official actually appointed the 

appellant to the promotion position and that the appellant took action denoting his 

acceptance of the position. ID at 7 (citing Levy v. Department of Labor, 

118 M.S.P.R. 619, ¶¶ 7, 10 (2012)). However, he found that, based on the totality 

of the circumstances, the appellant failed to show by preponderant evidence3that 

 

3

The administrative judge correctly observed that an appellant chall enging an adverse 

action (here, the alleged reduction in grade or pay) is ordinarily required to make 

nonfrivolous allegations of jurisdiction over his appeal to proceed to a jurisdictional 

hearing, at which he must prove Board jurisdiction by a preponderance of the evidence. 

ID at 6 n.4 (citing Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344 

(Fed. Cir. 2006)). However, because the appellant waived his right to a hearing, the 

administrative judge directly proceeded to the ultimate jurisdictional question–that is, 

whether the appellant proved, by preponderant evidence, that the Board has jurisdiction 

over his appeal. Id. We find no error with the administrative judge’s determination in 

this regard. 
4

the promotion became effective prior to being cancelled. ID at 7. He noted that 

both the promotion SF-50 and the cancellation SF-50 had effective dates of 

June 26, 2016, and that aside from the appellant’s self-reported statement that he 

completed self-study training courses without receiving instructions to do so, 

there was no evidence that the appellant: received an orientation, a performance 

plan, a new office, or reporting instructions; assumed the duties of the Nuclear 

Engineer position; received pay at the GS-14 level; or performed any other duties 

in the promotion position. ID at 8-9. Accordingly, the administrative judge 

found that the agency properly revoked or cancelled the appellant’s promotion 

before he entered on duty or performed in the position. ID at 9-10. He also 

found that the agency cancelled the promotion immediately, effectuating a 

cancellation SF-50 the same day as the effective date of the promotion SF-50, 

even though the appellant was not notified until more than 2 weeks later. ID 

at 10. 

¶5 The appellant filed a petition for review, and the agency filed a response. 

Petition for Review (PFR) File, Tabs 1, 5. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 On review, the appellant challenges the decision below, arguing that his 

promotion to the GS-14 position was effectuated 3 weeks prior to being 

cancelled. PFR File, Tab 1 at 4-5. He argues that, despite sharing the same 

effective date with the promotion SF-50, the cancellation SF-50 was not actually 

completed until some point after he received verbal and written notification of the 

cancellation on July 12, 2016, and July 15, 2016, respectively, and was later 

“backdated” to the June 26, 2016 effective date. Id. at 4. To support his 

contention, the appellant submits webpage screenshots from a number of agency 

personnel management systems that he claims show that his promotion was still 

in effect up to 3 weeks after the effective date of the promotion and cancellation 

SF-50s. Id. at 4, 6-10; PFR File, Tab 10 at 9-14. 
5

¶7 On May 5, 2017, the Clerk of the Board issued an order instructing the 

parties to submit additional evidence and argument addressing whether the 

promotion in question was properly revoked before it became effective. PFR 

File, Tab 8. Specifically, the order directed the parties to provide evidence 

concerning whether the selecting official (SO) knew that he was promoting the 

appellant to the GS-14 position, and when, exactly, the promotion was cancelled. 

Id. at 3-6. The order further instructed the parties to submit all documents and 

communications related to the GS-14 promotion, as well as additional sworn 

affidavits from the individuals responsible for effectuating the promotion and 

cancellation. Id. at 4-5. The appellant and the agency both submitted evidence 

and argument, which we have considered. PFR File, Tabs 9-12.

¶8 The Board has jurisdiction to review an appeal of a reduction in grade or 

pay. See 5 U.S.C. § 7512. A cancellation of an effected promotion constitutes an 

appealable reduction in grade. Levy, 118 M.S.P.R. 619, ¶ 6. If the promotion to a 

higher grade was not effected, however, there was not an appealable reduction in 

grade or pay. Id.; Clark v. Department of the Interior, 68 M.S.P.R. 453, 457 

(1995). To establish jurisdiction over an appeal from the cancellation of a 

promotion as a reduction in grade, the appellant must show that: (1) the 

promotion actually occurred; that is, it was approved by an authorized appointing 

official aware that he or she was making the promotion; (2) the appellant took 

some action denoting acceptance of the promotion; and (3) the promotion was not 

revoked before it became effective.4 Levy, 118 M.S.P.R. 619, ¶ 10.

¶9 As noted, the administrative judge determined, based on the record before 

him, that the appellant satisfied the first two elements set forth in Levy. ID at 7. 

On review, in response to the Clerk of the Board’s order, the agency furnished

 

4

The appellant also must show that he meets the statutory definition of an employee 

with Board appeal rights. See 5 U.S.C. §§ 7511(a)(1), 7513(d), and 7701. That issue is 

not in dispute in this case. ID at 7.
6

additional evidence and argument regarding whether the SO knew that he was 

promoting the appellant to the GS-14 level when the promotion was offered. The 

agency submitted a declaration from the SO responsible for interviewing and 

hiring the applicants for the GS-13/14 Nuclear Engineer position. PFR File, 

Tab 12 at 30-37. The SO declared that when he selected the appellant it was

never his intention to promote him to the GS-14 level. Id. at 31, ¶ 5. Instead, the 

SO declared that he intended to hire the appellant at the GS-13 level, with the 

expectation that he would be promoted to the GS-14 level only after completing a 

series of necessary technical trainings over a period of approximately 18 months. 

Id. 

¶10 The SO further declared that he first informed the appellant that he was 

under consideration only for the position at the GS-13 level during the interview, 

at which he told the appellant that, if hired, he would receive specialized training 

as a GS-13 for 18 months, at the end of which he could be promoted to the GS-14 

level. Id. at 31-32, ¶¶ 8-9, 41. The SO corroborated this by providing a copy of 

the interview questions asked of the appellant, including a question concerning 

whether the appellant had any concern about the time and effort it would take to 

qualify for promotion. Id. at 41. The SO also contacted the other hiring panel 

members by email, who confirmed that it was mentioned during the interview that 

the appellant would need to first serve at the GS-13 level before promotion, even 

though the appellant expressed some interest in being considered for the GS-14 

position. Id. at 46-54.

¶11 According to the SO’s declaration, following receipt of the certificates of 

eligibles for the GS-13/14 Nuclear Engineer position, the SO received email 

instructions for how to create a profile and access the agency’s hiring system

software, which he was unfamiliar with and had not previously used. Id.

at 32-33, ¶¶ 14-15. After accessing the hiring system software, the SO saw a 

screen indicating that he could “select” candidates under the certificate of 

eligibles for the position, which was identified on the screen as “Grade 13, 14.” 
7

Id. at 33, ¶ 17. The SO selected the appellant for the position, completing his role 

in the hiring process. Id. at 33, ¶¶ 17, 19. What was not readily discernible to 

the SO, however, was the fact that, although the screen identified the position as 

“Grade 13, 14,” the appellant had limited his application to consideration at the 

GS-14 level only, and so the SO’s selection unwittingly resulted in promoting the 

appellant to the GS-14 level, instead of laterally hiring him at the GS-13 level 

with promotion potential to the GS-14 level, as the SO intended. Id. at 33, ¶¶ 17, 

56.

¶12 According to a declaration made under penalty of perjury by an agency

Human Resources (HR) Specialist, she received a notification informing her of 

the SO’s selection. PFR File, Tab 11 at 6, ¶ 10. On June 15, 2016, the HR 

Specialist emailed the appellant a job offer at the GS-14 level, and the appellant 

replied, accepting the offer the same day. Id. at 6, ¶ 12, 20-21. The HR 

Specialist then emailed the SO informing him that the appellant had accepted the 

position at the GS-14 level. Id. at 6, ¶ 13. The SO replied within 26 minutes, 

indicating that the promotion was a mistake because the appellant was not 

qualified at the GS-14 level and expressing that he had intended to hire the 

appellant as a GS-13 with promotion potential to the GS-14 level. See id.

at 23-24.

¶13 On June 22, 2016–4 days before the effective date of the promotion–the SO 

submitted a formal request to reconsider the agency’s qualification decision

regarding the appellant. PFR File, Tab 12 at 61-65. In his request, the SO 

reiterated that he had promoted the appellant to the GS-14 position in error and 

had intended to hire him at the GS-13 level with promotion potential to GS-14. 

Id. at 62. On June 24, 2016, the Acting Director of the agency’s HR Office 

replied indicating that he would not be able to process the reconsideration request 

before the effective date of the promotion and that the promotion would need to 

be placed on hold in the interim. Id. at 25-26. On July 8, 2016, the agency 

decided that the appellant should not have been referred on the GS-14 certificate
8

of eligibles, and the agency rescinded the offer and cancelled the competitive 

service certificate. Id. at 28-29. The agency subsequently informed the appellant

of the rescission by phone on July 12th and by letter on July 15th. Id. at 80-81, 

¶¶ 10, 14; IAF, Tab 1 at 12. 

¶14 The Board’s decision in Hoever v. Department of the Navy, 115 M.S.P.R. 

487 (2011), offers some instructive guidance applicable to the instant case. In 

Hoever, the administrative judge reversed the agency’s action cancelling the 

appellant’s promotion and a 10% raise in favor of a 6.43% raise and promotion, 

finding that the appellant suffered a reduction in pay as a result of the 

cancellation. Hoever, 115 M.S.P.R. 487, ¶¶ 2-5. Reversing the administrative 

judge, the Board found that the 10% raise was not “approved by an authorized 

appointing official aware that he or she was making the promotion or 

appointment,” even though a “recommending official” authorized the offer and an 

HR Specialist conveyed it to the appellant, who accepted it. Id., ¶¶ 9, 15-17. 

¶15 The Board in Hoever initially acknowledged that it examines the totality of 

the circumstances surrounding an appointment to determine whether the requisite 

“last act” of an official with appointment power had taken place, for the

appointment to be considered effective. Id., ¶ 8. The Board determined that the 

10% raise had not been approved because that agency’s promotion process 

required that higher-level officials in two different departments must sign off on 

the promotion for it to become effective. Id., ¶¶ 9-12, 17-18. Because the 

promotion was never approved, the appellant did not suffer an appealable 

reduction in pay when his erroneous 10% raise was cancelled, and his salary was 

reset to the 5% increase (and eventually, to the 6.43% increase) level. Id., ¶ 18.

¶16 As described in the agency’s sworn declarations, the SO in the instant case 

selected the appellant using the agency’s hiring system software. PFR File, 

Tab 12 at 33, ¶¶ 17, 19. The selection notification was then transmitted to an HR 

Specialist responsible for contacting the selected candidate to offer the position. 

PFR File, Tab 11 at 6, ¶ 2. Because the SO averred that he did not intend to 
9

promote the appellant to the GS-14 position and was not even aware that he was 

doing so when he conveyed the selection to the HR Specialist using the agency’s 

hiring system software, the appellant’s promotion was never “approved by an 

authorized appointing official aware that he [] was making the promotion. ” Levy, 

118 M.S.P.R. 619, ¶ 7; see Clark, 68 M.S.P.R. at 457. As a result, based on the 

totality of the circumstances, the requisite “last act” to complete the appellant’s 

promotion to the GS-14 position never occurred and never became effective, even 

if the offer was later mistakenly conveyed to the appellant by the HR Specialist. 

See Hoever, 115 M.S.P.R. 487, ¶¶ 9, 15-17; Scott v. Department of the Navy, 

8 M.S.P.R. 282, 287 (1981). 

¶17 As such, we modify the initial decision to find that the appellant failed to 

prove, by preponderant evidence, that the Board has jurisdiction over his appeal 

as a reduction in grade or pay, because he has not demonstrated that the 

promotion actually occurred; that is, it was approved by an authorized appointing 

official aware that he was making the promotion. Levy, 118 M.S.P.R. 619, ¶ 10. 

Alternatively, although we are modifying the initial decision to find that the 

Board lacks jurisdiction over the appeal for the reasons provided, we still affirm 

the administrative judge’s jurisdictional finding that the record reflects that the 

agency properly canceled or revoked that appellant’s promotion before he ever 

entered on duty or performed in the position. ID at 9-10; IAF, Tabs 1, 5-6; see 

National Treasury Employees Union v. Reagan, 663 F.2d 239, 252 (D.C. Cir. 

1981). 

¶18 Accordingly, we deny the petition for review and affirm the initial decision 

as modified.
10

NOTICE OF APPEAL RIGHTS5

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 

5

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
11

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 
12

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
13

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.6 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

 

6

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
14

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board