UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KERWIN M. SMITH, DOCKET NUMBER
Appellant, CH-531D-16-0196-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 14, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leonard Mungo, Esquire, Detroit, Michigan, for the appellant.
David M. Burns, Esquire, Washington, D.C., 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 for lack of jurisdiction his appeal alleging that the agency denied him a
within‑grade increase (WIGI). Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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. 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. Except as expressly MODIFIED by this Final Order to find
that the Board lacks jurisdiction over the appellant’s claims regarding his
demotion from his Supervisory Physical Security Specialist position during his
probationary period, we AFFIRM the initial decision.
BACKGROUND
¶2 While serving as a GS‑12 Physical Security Specialist with the agency, the
appellant received a WIGI from GS‑12 step 2 to GS‑12 step 3, effective April 22,
2012. Initial Appeal File (IAF), Tab 6 at 10. Approximately 3 months later,
effective July 15, 2012, the agency promoted the appellant to a GS‑13 step 1
Supervisory Physical Security Specialist, subject to completion of a 1‑year
probationary period. Id. at 11. Less than a year later, effective June 30, 2013,
the agency demoted the appellant during his probationary period to a
nonsupervisory GS‑12 step 4 Physical Security Specialist position. IAF, Tab 1
at 6‑7, Tab 6 at 12‑13.
¶3 On January 17, 2016, approximately 2½ years after his demotion, the
appellant filed a Board appeal alleging that the agency denied him a WIGI on
June 27, 2013, the date that the agency notified him of the demotion. IAF, Tab 1
3
at 5‑6. The agency filed a motion to dismiss the appeal for lack of jurisdiction,
arguing that the appellant failed to raise a nonfrivolous allegation that he was
denied a WIGI. 2 IAF, Tab 6 at 4‑9. Among other things, the agency argued that
it demoted the appellant to the Physical Security Specialist position at the same
grade level and step that he would have held if he had not been promoted to the
Supervisory Physical Security Specialist position. Id. at 7‑8.
¶4 The administrative judge issued an order, which provided the appellant with
notice of his jurisdictional burden regarding his claim that he was denied a WIGI,
and ordered the appellant to submit evidence and argument regarding the Board’s
jurisdiction over his appeal. IAF, Tab 8. In response the appellant alleged,
among other things, that the agency denied him a WIGI when it demoted him
from the Supervisory Physical Security Specialist position, and “illegally denied
[him] his right to complete his 52 weeks of service as a GS‑13 Step 1 . . . .” IAF,
Tab 11 at 1; see IAF, Tab 9 at 2. He further alleged that he had filed an equal
employment opportunity (EEO) complaint alleging that the agency discriminated
against him based on race when it demoted him. 3 IAF, Tab 9 at 2‑3.
¶5 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. 4 IAF,
Tab 14, Initial Decision (ID); IAF, Tab 1 at 2. She found that the appellant failed
to raise a nonfrivolous allegation that the agency denied him a WIGI. ID at 3‑4.
2
The agency also moved to dismiss the appeal on the ground that it was untimely filed
without good cause shown for the delay. IAF, Tab 13.
3
The appellant contended that the agency had not issued a final agency decision on that
EEO complaint within 120 days. IAF, Tab 9 at 2.
4
The administrative judge declined to address whether the appeal was timely filed,
having dismissed the appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision at 4;
see Jafri v. Department of the Treasury, 68 M.S.P.R. 216, 221 (1995) (finding that,
when an appeal was properly dismissed for lack of jurisdiction, an administrative judge
correctly declined to address whether the appeal was timely filed), aff’d, 78 F.3d 604
(Fed. Cir. 1996) (Table).
4
She further found that, absent an otherwise appealable action, the Board lacked
jurisdiction to review the appellant’s claims that the agency discriminated against
him based on race. ID at 4.
¶6 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition to the petition for review. Petition for
Review (PFR) File, Tabs 1‑2.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 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). Thus, it follows that the
Board does not have jurisdiction over all matters involving Federal employees
that are alleged to be unfair or incorrect. Johnson v. U.S. Postal
Service, 67 M.S.P.R. 573, 577 (1995). An appellant who makes a nonfrivolous
allegation of jurisdiction is entitled to a hearing at which he then 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); see 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
¶8 Here, the administrative judge correctly found that the appellant failed to
raise a nonfrivolous allegation that the agency denied him a WIGI. ID at 3‑4. A
General Schedule employee who is paid at less than the maximum rate of the
5
Nonfrivolous allegations of jurisdiction are allegations of fact that, if proven, could
establish a prima facie case that the Board has jurisdiction over the matter at issue.
Lara v. Department of Homeland Security, 101 M.S.P.R. 190, ¶ 7 (2006); see 5 C.F.R.
§ 1201.4(s) (defining a nonfrivolous allegation as “an assertion that, if proven, could
establish the matter at issue”). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that: (1) is
more than conclusory; (2) is plausible on its face; and (3) is material to the legal issues
in the appeal. 5 C.F.R. § 1201.4(s). Vague, conclusory, or unsupported allegations,
such as those that essentially repeat the applicable legal standard, are pro forma and
insufficient to meet the nonfrivolous standard. See Clark v. U.S. Postal Service,
123 M.S.P.R. 466, ¶¶ 6‑10 (2016); Fleming v. Department of Labor, 97 M.S.P.R. 341,
¶¶ 15‑16 (2004).
5
grade of his position, such as the appellant, is entitled to a WIGI if his
performance is at an acceptable level of competence (ALOC), he has completed
the required waiting period, and he has not received an equivalent increase in pay
from any cause during that period. 5 U.S.C. § 5335(a); 5 C.F.R. § 531.404. As a
GS‑13 Step 1 employee, the appellant was required to complete a 52‑week
waiting period to be eligible for a WIGI in the Supervisory Physical Security
Specialist position. 5 U.S.C. § 5335(a)(1); 5 C.F.R. §§ 531.404(b),
531.405(a)(1)(i). The agency provided evidence that it demoted the appellant
from the Supervisory Physical Security Specialist position effective June 30,
2013, less than 52 weeks after it promoted him to that position on July 12, 2015,
and the appellant did not dispute the accuracy of those dates. IAF, Tab 6
at 11-13. Thus, the undisputed evidence reflects that the appellant was not
eligible for a WIGI in the Supervisory Physical Security Specialist position.
See 5 U.S.C. § 5335(a)(1); 5 C.F.R. §§ 531.404(b), 531.405(a)(1)(i).
¶9 Moreover, the administrative judge correctly found that the appellant failed
to raise a nonfrivolous allegation that the agency denied him a WIGI when it
placed him in the GS‑12 step 4 Physical Security Specialist position pursuant to
his demotion. ID at 3‑4. Pursuant to 5 C.F.R. § 531.215(d), when an employee
promoted to a supervisory or managerial position in the competitive service
does not satisfactorily complete a probationary period and is returned to a
position at the lower grade held before the promotion, the agency “must set the
employee’s payable rate of basic pay upon return to the lower grade as if the
employee had not been promoted to the supervisory or managerial position . . . .”
Section 531.215(d) further provides that “time served following the promotion
may be creditable service towards GS within-grade increases in the lower grade.”
¶10 The agency provided evidence that, as a GS‑12 Physical Security
Specialist, the appellant received a WIGI from step 2 to step 3, effective April 22,
2012, and he did not dispute the accuracy of that date. IAF, Tab 6 at 10.
6
Pursuant to applicable law governing waiting periods for WIGIs, the appellant
would have been eligible to receive a WIGI to a GS‑12 step 4 on or about
April 22, 2013, and would not have been eligible for another WIGI to step 5 until
104 weeks thereafter. 5 U.S.C. §§ 5335(a)(1), (2); 5 C.F.R. §§ 531.404(b),
531.405(a)(1)(i), (ii). Therefore, because the undisputed evidence reflects that
the agency demoted the appellant to the same grade and step (GS‑12 Step 4) that
he would have held if he had not been promoted to the Supervisory Physical
Security Specialist position, and gave him credit for time served in the
Supervisory Physical Security Specialist position, we agree with the
administrative judge that the appellant failed to raise a nonfrivolous allegation
that the agency denied him a WIGI. ID at 3‑4.
¶11 On review, as he did below, the appellant contends that the Board has
jurisdiction over his appeal because the agency failed to notify him of his right to
seek reconsideration of its denial of his WIGI. PFR File, Tab 1 at 4‑7; IAF,
Tab 1 at 5. We find this argument unpersuasive. When an agency determines
that a WIGI should be withheld because an employee is not performing at an
ALOC, the employee is entitled to written notification of that determination and
an opportunity for reconsideration of the determination by the agency under
regulations prescribed by the Office of Personnel Management. 5 U.S.C.
§ 5335(c); 5 C.F.R. § 531.409(e). Although the Board’s jurisdiction to review the
denial of a WIGI generally attaches only after the agency has issued a
reconsideration decision, see, e.g., Goines v. Merit Systems Protection
Board, 258 F.3d 1289, 1292‑93 (Fed. Cir. 2001), the Board has found that it also
has jurisdiction over an appeal absent a reconsideration decision if an agency fails
to comply with the requirement that it inform an employee of his right to
reconsideration, see, e.g., Martinesi v. Equal Employment Opportunity
Commission, 24 M.S.P.R. 276, 280 (1984); Phillips v. Veterans
Administration, 21 M.S.P.R. 409, 412 (1984). Here, however, the appellant failed
7
to raise a nonfrivolous allegation that the agency denied him a WIGI based on a
determination that he was not performing at an ALOC, or for any other reason.
ID at 3‑4. Therefore, he failed to raise a nonfrivolous allegation that the agency
was obligated to notify him of his right to seek reconsideration of the denial of a
WIGI. See 5 U.S.C. § 5335(c); 5 C.F.R. § 531.409(e).
¶12 On review, as he did below, the appellant also raises arguments regarding
his demotion from the Supervisory Physical Security Specialist position. PFR
File, Tab 1 at 5; IAF, Tab 9 at 2‑3, Tab 11 at 1. Indeed, it appears that many of
the appellant’s arguments below regarding the alleged denial of a WIGI are, in
essence, an indirect challenge to his demotion. IAF, Tab 9 at 1‑3; Tab 11 at 1.
An individual in the competitive service who has been promoted to a supervisory
position and who does not satisfactorily complete the probationary period for that
position, like the appellant, “has no appeal right,” unless he nonfrivolously
alleges that the action “was based on partisan political affiliation or marital
status.” 6 Burton v. Department of the Air Force, 118 M.S.P.R. 210, ¶ 7
(2012); 5 C.F.R. § 315.908. The appellant has not alleged, either below or on
review, that his demotion from the Supervisory Physical Security Specialist
during his probationary period was based on his partisan political affiliation or
marital status. IAF, Tabs 1, 4, 9, 11; PFR File, Tab 1. Accordingly, we modify
6
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). The administrative judge did not notify the appellant
how he could establish jurisdiction over his demotion from the Supervisory Physical
Security Specialist position. ID; IAF, Tab 8. However, the agency’s pleadings below
provided the requisite notice, affording the appellant an opportunity to meet his burden
on review. IAF, Tab 6 at 9 n.2, Tab 13 at 7; see Easterling v. U.S. Postal Service,
110 M.S.P.R. 41, ¶ 11 (2008) (finding that an administrative judge’s failure to provide
an appellant with proper Burgess notice can be cured if the agency’s pleadings contain
the notice that was lacking, or if the initial decision puts the appellant on notice of what
he must do to establish jurisdiction, thus affording him the opportunity to meet his
jurisdictional burden on review).
8
the initial decision to find that the Board lacks jurisdiction over the appellant’s
claims regarding his demotion.
¶13 Finally, the administrative judge correctly found that, absent an otherwise
appealable action, the Board lacks jurisdiction to review the appellant’s claims of
discrimination based on race. ID at 4; see Pridgen v. Office of Management and
Budget, 117 M.S.P.R. 665, ¶ 7 (2012) (finding that the Board does not have
jurisdiction over discrimination claims absent an otherwise appealable action);
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding that prohibited
personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
Board jurisdiction), aff’d, 681 F.2d 867 (D.C. Cir. 1982).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 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:
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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
9
Dec. 27, 2012). You may read this law as well as other sections of the
United States 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 Appellants,” 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 appellants 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.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.