UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

OMAR ALSOOFI,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

CH-0752-17-0193-I-1

DATE: February 28, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Omar Alsoofi, Dearborn, Michigan, pro se.

Joshua A. Dombrow, Esquire, and Pamela D. Langston-Cox, Esquire,

Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed his reduction in grade and pay claims 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;

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The essential undisputed facts, as set forth by the administrative judge in 

the initial decision, are as follows: The appellant was employed as a GS-11, 

Step 4 Revenue Officer in Detroit, Michigan. Initial Appeal File (IAF), Tab 26, 

Initial Decision (ID) at 2. Effective July 1, 2012, he accepted a position as a 

GL-09, Step 10 Criminal Investigator. 2 Id. He reported for training in Georgia

for his new Criminal Investigator position. Id. On November 29, 2012, the 

agency removed the appellant from training after he failed three examinati ons in 

violation of its “three strikes” rule. Id. Following the appellant’s removal from 

training, the agency afforded him the option to resign, face a proposed removal, 

or return to his former position as a Revenue Officer. Id. From November 29, 

2012, to March 10, 2013, the appellant retained his Criminal Investigator title, 

but reported to an office in Pontiac, Michigan, for an interim placement away 

from the training facility in Georgia. Id. The appellant declined to resign, and 

 

2

The initial decision mistakenly identifies the appellant’s Criminal Investigator 

position as a GS-09 instead of a GL-09. Compare ID at 2, with IAF, Tab 10 at 36-42.
3

the agency transferred him back to his former Revenue Officer position, effective 

March 10, 2013, in lieu of removing him. Id. 

¶3 The appellant filed a Board appeal alleging that his involuntary transfer 

from the Criminal Investigator position to his former Revenue Officer position 

was a reduction in grade and pay. IAF, Tabs 1, 11. He contended that he 

suffered a reduction in pay because his rate of basic pay was reduced and he lost 

Law Enforcement Availability Pay (LEAP). Id. He also argued that his locality 

pay was incorrectly calculated during his interim placement from November 29,

2012, to March 10, 2013, and had the agency properly afforded him locality pay 

for the Detroit area, his transfer back to his Revenue Officer position would have 

resulted in a decrease in pay. IAF, Tab 21 at 3, Tab 23 at 3. Finally, he argued 

that the agency’s decision to remove him from training was discriminatory. IAF, 

Tab 1, Tab 10 at 45. 

¶4 Without holding the appellant’s requested hearing, the administrative judge 

issued an initial decision, dismissing the appeal for lack of jurisdiction. ID

at 5-8. The administrative judge found that the appellant did not suffer a 

reduction in grade because his Standard Form 50 (SF-50) indicated that his 

acceptance of the Criminal Investigator position was a “change to lower grade, 

level, or band” and, thus, his return to his Revenue Officer position from the 

Criminal Investigator position amounted to a grade increase. ID at 5. The 

administrative judge further found that the appellant did not suffer a reduction in 

pay when he was involuntarily transferred back to his Revenue Officer position 

because his adjusted basic pay increased from $63,259 to $68,640. ID at 5-6. 

She also found that LEAP or availability pay is not part of basic pay and the loss 

of such pay is not appealable to the Board. ID at 5. Finally, she rejected the 

appellant’s argument that he would have suffered a reduction in pay from $68,738 

to $68,640 had the agency properly afforded him locality pay for the Detroit area 

after he was removed from his Criminal Investigator training. ID at 6-7. She also 
4

found that, absent an otherwise appealable action, the Board lacks juris diction to 

consider the appellant’s discrimination claim. ID at 7-8.

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has opposed the appellant’s petition, and the appellant 

has filed a reply. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 On review, the appellant reiterates his argument below that the agency 

incorrectly assigned his locality pay and, but for that mistake, his involuntary 

transfer from his Criminal Investigator position to his Revenue Officer position 

would have amounted to a reduction in pay. PFR File, Tab 1 at 4-5. Such an 

argument, however, is unavailing. The right to appeal reductions in pay to the 

Board has been narrowly construed and requires the appellant to show a 

demonstrable loss, such as an actual reduction in pay, to establish jurisdiction. 

See Broderick v. Department of the Treasury, 52 M.S.P.R. 254, 258 (1992); see 

also Chaney v. Veterans Administration, 906 F.2d 697, 698 (Fed. Cir. 1990) 

(finding that an appealable reduction in pay occurs only when there is an 

ascertainable lowering of the employee’s pay at the time of the action). Here, it 

is undisputed that the appellant’s adjusted basic pay increased from $63,259 to 

$68,640 as a result of his involuntary transfer back to his Revenue Officer 

position. We find, therefore, that the appellant has not made a nonfrivolous 

allegation that he suffered a reduction in pay and, thus, the administrative judge 

properly dismissed the appeal without a hearing. Cf. Caven v. Merit Systems 

Protection Board, 392 F.3d 1378, 1381-82 (Fed. Cir. 2004) (finding that the 

denial of a promotion that would have resulted in an increase in pay is not an 

appealable reduction in pay). 

¶7 The appellant also argues for the first time on review that he suffered a 

reduction in pay when (1) the agency reduced his pay by $5 a day in supplemental 

pay after he was removed from Criminal Investigator training in Georgia; and 
5

(2) his pay for pay period 4 of 2013 was reduced from $68,640 to $63,259. PFR

File, Tab 1 at 4. We decline to consider such arguments in the first instance 

because they do not appear to be based on new information to the extent they 

relate to events that occurred in 2012 and 2013, and the appellant has not 

explained why he could not have raised them below. See Banks v. Department of 

the Air Force, 4 M.S.P.R. 268, 271 (1980) (stating that 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); Avansino v. U.S. Postal Service, 3 M.S.P.R. 

211, 214 (1980) (stating that the Board will not consider evidence submitted for 

the first time with a petition for review absent a showing that it was unavailable 

before the record was closed despite the party’s due diligence). 

¶8 Accordingly, we affirm the initial decision. 

NOTICE OF APPEAL RIGHTS3

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. 

 

3

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.
6

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). 

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 
7

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 

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: 
8

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 

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.4The 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). 

 

4

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. 
9

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 

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