UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DENNIS W. OLIVAREZ,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

NY-3443-15-0193-I-1

DATE: September 3, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Dennis W. Olivarez, Manorville, New York, pro se.

Anthony V. Merlino, Esquire, New York, New York, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only when: 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. See 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, and based on the following points and authorities, 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 and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 The appellant was reassigned to a position in which he no longer supervised 

mail handlers as a result of a settlement agreement between the agency and the 

National Postal Mail Handlers Union. Initial Appeal File (IAF), Tabs 1, 5. The 

appellant filed an appeal alleging that, as a result of the reassignment he may be 

denied the opportunity to receive a pay raise under the agency’s pay for 

performance policy. Id. He also alleged that, in taking the action, the agency 

denied him constitutionally required due process. IAF, Tab 1. 

¶3 Without holding a hearing, the administrative judge issued an initial 

decision finding that the appellant failed to make a nonfrivolous allegation of 

Board jurisdiction. IAF, Tab 6, Initial Decision (ID) at 4. He found that the 

Board’s jurisdiction generally does not extend to a reassignment where there has 

been no reduction in grade or basic rate of pay. ID at 3-4. He found that a 

possible loss of a pay performance award does not constitute an appealable 

reduction in the basic rate of pay. ID at 4. He also found that, absent an 

appealable action, the Board does not have jurisdiction over the appellant’s claim 

of a due process violation. ID at 4-5.

¶4 In his petition for review, the appellant reiterates the arguments that he 

made below and asserts that, due to the reassignment, he also is losing some night 
3

differential pay, some Sunday premium pay, and, because he worked 6 days each 

week in his former position, an extra day’s pay each week. Petition for Review 

File, Tab 1.

¶5 The Board has jurisdiction over an appeal of a “reduction in pay” 

under 5 U.S.C. § 7512(4). 5 U.S.C. §§ 7513(d), 7701. For purposes of section 

7512(4), the term “pay” is defined as “the rate of basic pay fixed by law or 

administrative action for the position held by an employee.” 5 U.S.C. § 

7511(a)(4). It is well settled that a bonus or premium pay is not part of basic pay 

and that the loss of or reduction in such pay is not appealable to the Board as a 

reduction in pay. See Riojas v. U.S. Postal Service, 88 M.S.P.R. 230, ¶ 7 (2001). 

¶6 The appellant has not alleged that his current pay is not at the same rate as 

it was before his reassignment, precluding a finding that his pay has been 

reduced. In addition, the appellant’s complaint that his reassignment deprives 

him of the possible future benefit of a pay raise under the agency’s pay for 

performance policy fails to raise a nonfrivolous allegation of Board jurisdiction. 

See Peele v. Department of Health & Human Services, 6 M.S.P.R. 296, 299 

(1981). Similarly, to the extent that a pay raise under the agency’s pay for 

performance policy is in the nature of a bonus or premium pay, his complaint also 

fails to raise a nonfrivolous allegation of jurisdiction. See Riojas, 88 M.S.P.R. 

230, ¶ 7. 

¶7 The appellant alleges for the first time on petition for review that, due to the 

reassignment, he also is losing some night differential pay, some Sunday premium 

pay, and, because he worked 6 days each week in his former position, an extra 

day’s pay each week. Generally, the Board will not consider an argument raised 

for the first time in a petition for review absent a showing that it is based on new 

and material evidence not previously available despite the party’s due diligence. 

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). However, 

because the appellant’s assertions relate to the issue of the Board’s jurisdiction

over his appeal, we address them. See Ney v. Department of 
4

Commerce, 115 M.S.P.R. 204, ¶ 7 (2010) (the issue of the Board’s jurisdiction is 

always before the Board and may be raised sua sponte by the Board at any time). 

¶8 As noted, there is no evidence that, as a result of his reassignment, the 

appellant suffered any reduction in his basic rate of pay. The Board has held that

reassignments, with no reduction in grade or basic rate of pay, are not appealable 

to the Board as reductions in pay, even if such assignments may result in loss of 

holiday pay, shift differentials, and other premium pay. See Fair v. Department 

of Transportation, 4 M.S.P.R. 493, 495-96 (1981). Accordingly, the appellant 

has failed to raise, either below or on review, specific factual allegations that, if 

proven, would show that he has suffered any loss of basic pay. We therefore 

concur in the administrative judge’s dismissal of this matter for lack of 

jurisdiction, without a hearing. See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 

325, 329 (1994) (holding that an appellant is entitled to a jurisdictional hearing if 

he makes specific allegations of fact that, if proven, could establish a prima facie 

showing of Board jurisdiction). Further, because the Board lacks jurisdiction 

over the appeal, we also lack jurisdiction to hear the appellant’s claim that the 

agency violated his due process rights. See Burnett v. U.S. Postal 

Service, 104 M.S.P.R. 308, ¶ 15 (2006); Smith v. U.S. Postal Service, 81 M.S.P.R. 

92, ¶ 11 (1999).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439
5

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information 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, and 11.

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

United States 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 Merit Systems Protection Board neither endorses the services
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provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board