UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DENISE SAUNDERS,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

AT-3443-17-0289-I-1

DATE: June 27, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Denise Saunders, Lawrenceville, Georgia, pro se.

Andrew M. Greene, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed her appeal alleging a reduction in grade or pay 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 to 

clarify and augment the analysis of the jurisdictional issue, we AFFIRM the 

initial decision.

BACKGROUND

¶2 In 2012, the appellant received a temporary promotion from her 

permanently assigned position as a Lead Tax Examining Technician, GS-8, 

step 7, with an adjusted basic salary of $53,865, to a Supervisory Tax Examining 

Assistant position, Internal Revenue Service (IR) Payband level 8, with an 

adjusted basic salary of $58,174. Initial Appeal File (IAF), Tab 6 at 8. The 

agency extended her temporary promotion several times and gave her several 

performance-based salary increases (PBIs), resulting in an adjusted basic salary 

of $63,454 as of January 11, 2015. Id. at 9-14. On December 27, 2015, she 

received another temporary promotion, i.e., a “stacked promotion,” to a 

Department Manager position in the IR Payband with an adjusted basic salary of 

$68,530.

2

 Id. at 15. On January 10, 2016, while the appellant was still on her 

 

2 According to the agency’s IRS Payband System Pay Administrative Guidance

(IR Guidance), a “stacked promotion occurs when an employee already on a temporary 

promotion is placed, without a break in service, on a second temporary promotion to a 

position with a higher maximum rate than the first temporary promotion, prior to the 

not-to-exceed (NTE) date of the first temporary promotion.” IAF, Tab 6 at 20, 29. 
3

stacked promotion, the agency awarded her a 7.7% PBI, which increased her 

adjusted basic pay to $73,985. Id. at 16. On April 17, 2016, the appellant’s 

stacked temporary promotion ended, and the agency administratively returned her 

to her permanently assigned position as a Lead Tax Examining Technician, GS-8, 

step 8, with an adjusted basic pay of $57,177, before immediately placing her on 

another temporary promotion to the position of Supervisory Tax Examining 

Assistant, IR-08, with an adjusted basic pay of $63,608.

3

 Id. at 17-19. On 

August 7, 2016, the agency permanently promoted her to the position of 

Supervisory Tax Examining Assistant, IR-08. Id. at 46. 

¶3 In February 2017, the appellant appealed an alleged reduction in pay or 

grade to the Board, alleging that she suffered a loss of $6,000 in annual salary 

due to a “pay setting error” when, upon the termination of her stacked temporary 

promotion to a Department Manager position, the agency set her pay without 

properly accounting for the 7.7% PBI she received while serving as Department 

Manager.4IAF, Tab 1 at 3, 5. In an acknowledgment order, the administrative 

judge notified the appellant that the Board may not have jurisdiction over her 

appeal of a pay-setting error and ordered her to file evidence and argument 

amounting to a nonfrivolous allegation of jurisdiction. IAF, Tab 2. In response, 

the appellant explained that, upon further research, she realized that the $6,000 

loss in salary she was appealing was not due to a pay-setting error, but occurred 

because of agency rules governing pay setting upon the termination of stacked

promotions. IAF, Tab 8 at 4. She argued that the agency was negligent in failing 

 

3

The IR Guidance provides that an employee on a stacked promotion who is being 

returned to a temporary promotion that she previously held in a series of temporary 

promotions is first returned to her permanent position of record and then promoted to 

the temporary promotion position. Id. at 29-30. 

4

It appears that the appellant’s February 2017 appeal of the agency’s April 2016 action 

may be untimely filed. See 5 C.F.R. § 1201.22(b). In light of our finding that the 

Board does not have jurisdiction over this appeal, however, we need not reach the 

timeliness issue. See Alston v. Social Security Administration, 95 M.S.P.R. 252, ¶ 29 

(2003), aff’d, 134 F. App’x 440 (Fed. Cir. 2005). 
4

to inform her that she could lose money by taking the temporary promotion, that 

she did not agree to such terms, and that the agency’s action was unfair. Id.

at 4-5. She further asserted that the agency has since changed its policy. Id. at 5. 

The agency moved to dismiss the appeal for lack of jurisdiction, arguing that the 

appellant did not suffer an appealable reduction in pay. IAF, Tabs 3, 6, 9. 

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

dismissed the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID). 

The appellant has filed a petition for review of the initial decision, and the agency 

has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The Board does not have jurisdiction over all matters involving Federal 

employees that are alleged to be unfair or incorrect; rather, it is limited to those 

matters over which it has been given jurisdiction by law, rule, or regulation. 

Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985); 

Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 577 (1995). Under chapter 75 

of Title 5, the Board has jurisdiction to review specified adverse actions taken 

against covered employees, including reductions in grade or pay. See 5 U.S.C. 

§ 7512(3)-(4). If the employee makes a nonfrivolous allegation of jurisdiction, 

i.e., an allegation that, if proven, could establish the Board’s jurisdiction, she is 

entitled to a hearing at which she must prove jurisdiction by a preponderance of 

the evidence.5 Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344 

(Fed. Cir. 2006) (en banc). 

¶6 As noted above, the appellant alleged that the agency unfairly set her pay 

upon the termination of her temporary promotion by failing to properly credit her 

with the 7.7% PBI she received while serving on a stacked temporary detail as a 

 

5 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5

Department Manager, which caused a $6,000 loss in annual salary. IAF, Tabs 1,

8. In the initial decision, the administrative judge found that the appellant’s

dispute with the method used by the agency to calculate her pay following the 

termination of her stacked promotion did not constitute an appealable reduction in 

pay under 5 U.S.C. § 7512(4). ID at 3. On review, the appellant argues again 

that the agency failed to inform her that taking the temporary detail would harm 

her financially, she is entitled to the 7.7% PBI that she earned while she was on 

the Department Manager detail, the agency made mistakes in processing the 

paperwork, and the agency’s action is unfair. PFR File, Tab 1 at 3-5. 

¶7 In the context of a reduction in pay under chapter 75, “pay” means “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). The right to appeal a reduction in pay has 

been narrowly construed and requires that the appellant show a demonstrable loss, 

such as an actual reduction in pay, to establish jurisdiction. See Chaney v. 

Veterans Administration, 906 F.2d 697, 698 (Fed. Cir. 1990) (stating that an 

appealable reduction in pay occurs only when there is an “ascertainable lowering” 

of an employee’s pay at the time of the action). “Grade” in this context means “a 

level of classification under a position classification system.” 5 U.S.C. 

§ 7511(a)(3). Here, the appellant has not alleged, and the record does not show, 

that the agency reduced her rate of pay or grade in her permanently assigned

position following her temporary promotions. 6 IAF, Tabs 1, 8; PFR File, Tab 1. 

Absent any loss in grade or actual reduction in pay, the Board lacks jurisdiction 

 

6 As noted above, prior to her temporary promotions, the agency employed the appellant 

as a Lead Tax Examining Technician, GS-8, step 7, with an adjusted basic salary of 

$53,865. IAF, Tab 6 at 8. Upon the termination of her stacked promotion on April 17,

2016, the agency administratively returned her to her permanently assigned position as 

a Lead Tax Examining Technician, GS-8, step 8, with an adjusted basic pay of $57,177, 

which included the within-grade increase for which she became eligible on July 12, 

2015, and the 1% General Schedule increase that became effective in January 2016. Id. 

at 17-18.
6

over the appellant’s challenge to her salary following the termination of her 

temporary promotions. See 5 U.S.C. § 7512(3)-(4).

¶8 In addition, the Board lacks jurisdiction to consider an “[a]ction that 

terminates a temporary or term promotion and returns the employee to the 

position from which temporarily promoted, or to a different position of equivalent 

grade and pay, if the agency informed the employee that it was to be of limited 

duration.” 5 C.F.R. § 752.401(b)(12); see 5 C.F.R. § 335.102(f) (stating that an 

agency may make time-limited promotions but must give the employee advance 

written notice of the conditions of the temporary promotion, including, among 

other things, that she may be returned to her former position at any time and that 

such return may not be appealed to the Board under chapter 75). Here, the record 

reflects that, following the termination of the appellant’s stacked promotion, the 

agency administratively returned her to her permanently assigned position at the 

same grade level she previously held without any loss in pay. IAF, Tab 6 at 8, 

17. While the appellant alleges that the agency failed to inform her of the 

financial effect of the temporary promotions, she does not allege that the agency 

failed to inform her that her promotions were time limited, and the Standard 

Form 50s documenting her temporary promotions clearly indicate that they were

temporary. Id. at 8, 10, 12, 14-15. Therefore, we find that the Board lacks

jurisdiction to consider the agency’s action returning the appellant to her 

permanently assigned position at the same grade level previously held following 

the termination of her stacked promotion. See 5 C.F.R. §§ 335.102(f), 

752.401(b)(12). 

¶9 Lastly, because the Board lacks jurisdiction over this appeal, it cannot 

consider the appellant’s claims that she was harmed by the agency’s handling of 

her temporary promotions. See Daneshpayeh v. Department of the Air Force, 

57 M.S.P.R. 672, 682 n.9 (1993) (stating that the Board lacks jurisdiction over 

allegations of harmful error absent an otherwise appealable action), aff’d, 17 F.3d 

1444 (Fed. Cir. 1994) (Table).
7

NOTICE OF APPEAL RIGHTS7

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). 

 

7

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.
8

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. 420 (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 
9

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 
10

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. 8 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 

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

 

8

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. 
11

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