NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LEONARD P. MACHULAS,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
2011-3161
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. PH3443110068-I-1.
___________________________
Decided: December 12, 2011
___________________________
LEONARD P. MACHULAS, of Bloomingdale, Georgia, pro
se.
RUSSELL J. UPTON, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and KIRK MANHARDT,
Assistant Director.
__________________________
MACHULAS v. AIR FORCE 2
Before NEWMAN, PLAGER, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Leonard P. Machulas seeks review of an order of the
Merit System Protection Board dismissing his claims on
the ground that they were beyond the jurisdiction of the
Board or, in one case, barred by res judicata. We affirm.
BACKGROUND
Mr. Machulas worked as an Aircraft Mechanic Fore-
man at McGuire Air Force base in New Jersey. His
position was classified as Air Reserve Technician (“ART”),
a civilian job that is filled by a member of the active
reserves. Although the ART position was a WS-08 level
position, for a brief period of time Mr. Machulas was
detailed to a WS-11 supervisory position. During that
period, he competed for a permanent WS-11 position but
was unsuccessful. Afterward, he was reassigned to a non-
ART Aircraft Mechanic Foreman position because, accord-
ing to the Air Force, the position of ART Aircraft Me-
chanic Foreman was abolished as part of a base
reorganization. Shortly thereafter, on September 3, 1994,
Mr. Machulas retired.
Mr. Machulas filed an appeal with the Board in which
he alleged that the Air Force had engaged in prohibited
personnel practices under 5 U.S.C. § 2302(b)(12) when it
(1) failed to pay him at a higher grade during his detail to
the supervisory position, (2) terminated his enlistment
early, and (3) denied him two weeks of active duty and a
promotion to the E-8 level. He also alleged that the
failure of the Air Force to place him into an ART position
following his detail violated the Uniform Services Em-
3 MACHULAS v. AIR FORCE
ployment and Reemployment Rights Act (“USERRA”), 38
U.S.C. § 4311.
The administrative judge who was assigned to Mr.
Machulas’s case ruled that the Board lacked jurisdiction
to consider the alleged prohibited personnel practices.
The administrative judge held that the USERRA claim
was barred by res judicata, since that claim had previ-
ously been adjudicated by the Board. The full Board
denied review, and Mr. Machulas now seeks review by
this court.
DISCUSSION
The Board correctly held that it lacked jurisdiction to
review the prohibited personnel practices alleged by Mr.
Machulas. “The jurisdiction of the [Board] is not plenary
but is limited to those actions which are made appealable
to it by law, rule, or regulation.” Maddox v. Merit Sys.
Prot. Bd., 759 F.2d 9, 10 (Fed. Cir. 1985); see also Garcia
v. Dep’t of Homeland Sec., 437 F.3d 1322, 1327 (Fed. Cir.
2006) (en banc). The Board’s jurisdiction to hear appeals
from adverse actions by an agency against an employee is
limited by statute to “(1) a removal; (2) a suspension for
more than 14 days; (3) a reduction in grade; (4) a reduc-
tion in pay; and (5) a furlough of 30 days or less.” 5
U.S.C. § 7512; Garcia, 437 F.3d at 1327.
Mr. Machulas’s claims do not fit into any of those
categories. Because his detail to a supervisory role was
informal, his official grade and pay were never changed.
Similarly, the non-ART position to which Mr. Machulas
was reassigned following his detail was at the same grade
and pay as his previous ART position. Therefore, his
allegations fall outside the jurisdiction of the Board. See
Maddox, 759 F.2d at 10 (explaining that “[s]ince the
MACHULAS v. AIR FORCE 4
reassignment did not reduce [petitioner’s] grade or pay,
section 7512 does not confer the requisite authority to
hear the appeal on any of the grounds relied on by [him]”).
Mr. Machulas’s claim regarding the failure to promote
him is not within the Board’s jurisdiction, see Prewitt v.
Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998),
and his claims of termination of his enlistment and denial
of active duty status relate to his military status and as
such are also outside the Board’s jurisdiction, see Zim-
merman v. Dep’t of the Army, 755 F.2d 156, 157 (Fed. Cir.
1985).
To the extent Mr. Machulas suggests that the Board
could exercise jurisdiction over his claims by treating his
action as an individual right of action (“IRA”) appeal, that
suggestion is without merit. The Board has jurisdiction
over an IRA appeal when an employee suffers an adverse
personnel action in reprisal for making protected disclo-
sures under 5 U.S.C. § 2302(b)(8). The record before us
contains no non-frivolous showing that Mr. Machulas
made any such protected disclosure or was subject to an
adverse personnel action in retaliation for such a disclo-
sure. 1
1 Mr. Machulas asserts that he was not selected for
the WS-11 position on account of his age and that he was
subject to retaliation for complaining about that act of
discrimination. We lack jurisdiction to consider this
claim. Section 7702 of Title 5 excludes from this court’s
jurisdiction so-called “mixed” cases, i.e., cases containing
both an action appealable to the Board and an allegation
of certain types of discrimination. Williams v. Dep’t of the
Army, 715 F.2d 1485, 1486-87 (Fed. Cir. 1983) (en banc).
Mr. Machulas’s claim of age discrimination, which falls
under the aegis of the Age Discrimination in Employment
Act, 29 U.S.C. § 633a(a), is one such type of discrimina-
tion claim excluded by section 7702. See 5 U.S.C.
§ 7702(a)(1)(B)(iv).
5 MACHULAS v. AIR FORCE
As for Mr. Machulas’s USERRA claim, he has not
pointed to any error in the Board’s conclusion that his
claim is barred by res judicata. When a final judgment on
the merits has been rendered, res judicata bars any
subsequent action between the same parties involving the
same claim. Carson v. Dep’t of Energy, 398 F.3d 1369,
1375 (Fed. Cir. 2005). Here, Mr. Machulas’s USERRA
claim was adjudicated on the merits in a prior proceeding.
See Machulas v. Dep’t of the Air Force, 407 F. App’x 465
(Fed. Cir. 2011) (per curiam). Accordingly, he is barred
from re-raising that claim now.
Finally, there is no force to Mr. Machulas’s argument
that the administrative judge erred by denying him a
hearing on his various claims. Because the right to a
hearing is based on 5 U.S.C. § 7701, that right only at-
taches after a claimant makes a non-frivolous allegation
of Board jurisdiction. See Garcia, 437 F.3d at 1344. Mr.
Machulas has not met that requirement and therefore
was not improperly denied a hearing on his claims.
No costs.
AFFIRMED