Lionel A. Nicholas v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LIONEL A. NICHOLAS, DOCKET NUMBER
Appellant, DC-3443-15-1020-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 21, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lionel A. Nicholas, APO, AE, pro se.
David H. Roberts, Esquire, APO, AE, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. 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, 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 appellant appealed the agency’s decision to deny his request to assign
his position a higher grade of pay, which he described as a “denial of increase of
duty promotion.” He argued that he asked the agency to conduct a desk audit of
his position, so that it could be evaluated to determine if he were performing
duties at a higher grade level, but the agency refused. Initial Appeal File (IAF),
Tab 1 at 6.
¶3 In an acknowledgment order, the administrative judge explained that the
Board may not have jurisdiction over the appellant’s claim, explained what was
required to establish the Board’s jurisdiction over a denial of a promotion, and
ordered the appellant to file evidence and argument to prove that his claim was
within the Board’s jurisdiction. IAF, Tab 2 at 2. The appellant filed a response
detailing the nature of his duties and responsibilities in support of his claim that
his position is not properly graded. IAF, Tab 3. The administrative judge issued
a decision, without holding a hearing, dismissing the appeal for lack of
jurisdiction. IAF, Tab 5, Initial Decision (ID).
¶4 The appellant has filed a petition for review, making similar arguments
concerning the nature of his duties and responsibilities that support his request for
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an accretion of duties promotion. Petition for Review (PFR) File, Tab 1. The
agency has filed a reply in opposition to the appellant’s petition. PFR File,
Tab 4.
ANALYSIS
The Board lacks jurisdiction over the appellant’s claim that he is entitled to a
promotion due to an accretion of duties.
¶5 The Board’s jurisdiction 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). The Board does not have
jurisdiction over all matters alleged to be incorrect. Roberts v. Department of the
Army, 168 F.3d 22, 24 (Fed. Cir. 1999). As the administrative judge correctly
found, and with exceptions not applicable here, the appellant’s claims regarding
nonpromotion issues are not per se appealable to the Board. See Walters v. U.S.
Postal Service, 65 M.S.P.R. 115, 118 (1994); ID at 2. We find no reason to
disturb the initial decision on that basis.
The Board lacks jurisdiction over the appellant’s possible improper
classification claim.
¶6 Similarly, the Board does not have jurisdiction over cases concerning the
proper classification of a position. Saunders v. Merit Systems Protection
Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985); Pavlopoulos v. Office of Personnel
Management, 58 M.S.P.R. 620, 626 (1993). Thus, to the extent that the appellant
may be raising an improper classification claim, we find that the Board would
lack jurisdiction over the appeal on that basis.
The Board lacks jurisdiction over the appellant’s possible “employment
practices” claim.
¶7 To the extent that the appellant is arguing that he was subjected to an
improper employment practice, we find that he failed to identify any
“employment practice” appealable under 5 C.F.R. part 300, subpart A,
i.e., 5 C.F.R. §§ 300.101-300.104.
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¶8 Under 5 C.F.R. § 300.104(a), “[a] candidate who believes that an
employment practice which was applied to him or her by the Office of Personnel
Management [OPM] violates a basic requirement in § 300.103 is entitled to
appeal to the Merit Systems Protection Board under the provisions of its
regulations.” Bush v. Office of Personnel Management, 315 F.3d 1358, 1360
(Fed. Cir. 2003). For an action to be an appealable employment practice, it must
constitute an “employment practice” within the meaning of 5 C.F.R. part 300,
subpart A, and meet the requirements of 5 C.F.R. § 300.103. Maule v. Office of
Personnel Management, 40 M.S.P.R. 388, 393, aff’d, 892 F.2d 1050 (Fed. Cir.
1989) (Table).
¶9 For purposes of part 300, subpart A, of 5 C.F.R., “employment practices”
are those practices “that affect the recruitment, measurement, ranking, and
selection of individuals for initial appointment and competitive promotion in the
competitive service.” 5 C.F.R. § 300.101. Because the appellant has not shown
how any alleged improprieties in the supposed reclassification of his position
relate to an “initial appointment” or a “competitive promotion,” he has failed to
show that the purported reclassification involved any appealable employment
practice. See Kelly v. Office of Personnel Management, 53 M.S.P.R. 511, 516
(1992) (finding that, to be appealable, an employment practice must concern “an
applicant’s selection for an initial appointment or [a] competitive promotion[ ]”);
see also 5 C.F.R. § 300.104(a) (granting Board appeal rights to a “candidate”
for employment).
The appellant failed to raise a nonfrivolous allegation that he was
constructively demoted.
¶10 To receive a jurisdictional hearing on a claim of constructive demotion, an
appellant must nonfrivolously allege that: (1) he was reassigned without loss of
grade or pay; (2) his former position was upgraded; (3) the upgrading was due to
issuance of a new classification standard or correction of a classification error;
and (4) he met the legal and qualification requirements for promotion to the
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upgraded position. Marcheggiani v. Department of Defense, 90 M.S.P.R. 212, ¶ 7
(2001); Manlogon v. Environmental Protection Agency, 87 M.S.P.R. 653, ¶ 12
(2001).
¶11 Here, the appellant has failed to establish a fundamental predicate for a
possible constructive demotion claim because he has not established that he was
reassigned. See 5 U.S.C. § 7512(3); see also Artmann v. Department of the
Interior, 926 F.2d 1120, 1123 (1991) (“The employee’s grade therefore was
reduced when the employee was reassigned at the same grade because, had the
position been properly classified at the higher grade, that reassignment would
have reduced the grade.”); Russell v. Department of the Navy, 6 M.S.P.R. 698,
700-01, 704-11 (1981).
¶12 Therefore, to the extent that the appellant may be arguing that he was
constructively demoted, we find that he has failed to raise a nonfrivolous
allegation of such a claim. See Walker v. Department of the Navy, 106 F.3d 1582,
1584 (Fed. Cir. 1997) (holding that a normally nonappealable reassignment may
constitute an appealable constructive demotion).
¶13 Accordingly, we affirm the administrative judge’s decision to dismiss the
appeal for lack of jurisdiction. 2
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
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The administrative judge did not provide the appellant with notice regarding how he
could establish jurisdiction over an employment practices claim or on a claim of
constructive demotion. Ordinarily, an appellant must receive explicit information on
what is required to establish an appealable jurisdictional issue. Burgess v. Merit
Systems Protection Board, 758 F.2d 641, 643‑44 (Fed. Cir. 1985). Here, however, the
appellant’s vague assertions did not trigger a duty on the part of the administrative
judge to provide him with his burdens of proof over this claim.
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 U.S. 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 U.S. 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 Appellant,” 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 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 appellant before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
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FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.