FAQ: Can I Appeal the Loss of AUO?
“The Agency announced it is taking away my AUO. They are cutting my pay. Can I appeal their decision?”
It is important to note that loss of AUO, for any reason, is not an appealable action.
A reduction in regular rates of basic pay is an appealable action under 5 U.S.C. chapter 75. For purposes of chapter 75, 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). Chapter 75’s implementing regulations explain pay means the rate of pay before any deductions and exclusive of additional pay of any kind. 5 C.F.R. § 752.402(f) Moreover, 5 C.F.R. § 530.309(d) expressly provides that the reduction or termination of a special rate (i.e. AUO) is not an adverse action under 5 C.F.R. part 752.
As recently as 2010 (see, Gustavo Salazar v. DHS; MSPB), the MSPB determined that “an agency did not take an appealable reduction in pay action when it terminated the appellant’s entitlement to AUO” . See Triponi v. United States, 633 F.2d 933, 224 Ct.Cl. 503 (1980); Fair v. Department of Transportation, 4 M.S.P.R. 493, 495 (1981).
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