FAQ: Can I Appeal the Loss of AUO?

Question

“The Agency announced it is taking away my AUO.  They are cutting my pay.  Can I appeal their decision?”

Answer

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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