UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JULIA A. HOLLAND,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

DC-3443-14-0014-I-1

DATE: September 15, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Christopher Holland, Vienna, Virginia, for the appellant.

Kerry E. Creighton, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her involuntary reassignment 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous interpretation of statute or regulation or the erroneous application of 

the law to the facts of the case; the 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, and based on the 

following points and authorities, 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. We MODIFY the initial decision to 

clarify that the Board lacks jurisdiction over the appeal because the appellant did 

not make a nonfrivolous allegation that she lost pay or grade as a result of the 

reassignment. Except as expressly modified by this Final Order, we AFFIRM the 

initial decision. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant filed a Board appeal, claiming that the agency’s “involuntary 

‘management-directed employee reassignment,’” from a GS-07 Secretary position 

at Wolf Trap National Park for the Performing Arts to a GS-07 Secretary position 

at National Capital Parks-East (NACE), was improper. Initial Appeal File (IAF), 

Tab 1. She raised affirmative defenses of age discrimination, harmful procedural 

error, prohibited personnel practices and abuse of authority. See id. She also 

alleged that she was “effectively demoted” from her GS-07 position. See IAF, 

Tab 4 at 1. The administrative judge issued an initial decision that dismissed the 

appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID). In pertinent 

part, the administrative judge found that the appellant did not make a 

nonfrivolous allegation of jurisdiction because she did not “demonstrate” that she 

lost pay or grade in the reassignment, and she concluded that the Board does not 
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have independent jurisdiction over the appellant’s affirmative defenses. ID 

at 2-3. 

¶3 The appellant filed a petition for review, the agency filed a response, and 

the appellant filed a reply. Petition for Review (PFR) File, Tabs 1, 3-4. On 

review, the appellant reiterates that she “effectively ‘lost grade’” through this 

directed reassignment, and she asserts that she still does not have a position 

description for the GS-07 position at NACE. PFR File, Tab 1 at 1-2. She further 

asserts that the Board’s decision in Miller v. Department of the 

Interior, 119 M.S.P.R. 438, aff’d as modified, 120 M.S.P.R. 426 (2013), has 

relevant principles for this appeal. See PFR File, Tab 1 at 3. In this regard, she 

seems to be arguing the merits of the agency’s decision to direct her 

reassignment, purportedly due to budgetary shortfalls and a need for her skills at 

another location. See id. The appellant further states that she and a GS-11 

colleague, who also received a reassignment order, construed their receipt of the 

orders as attempts to coerce their retirements because they involved “dangerously 

burdensome commutes,” and she notes that her colleague recently retired. See id.

¶4 The Board’s jurisdiction is not plenary; it 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 has 

jurisdiction over a removal, a suspension for more than 14 days, a reduction in 

grade or pay, and a furlough of 30 days or less. 5 U.S.C. §§ 7512, 7513(d). The 

appellant bears the burden of establishing jurisdiction over an appeal. 5 C.F.R. 

§ 1201.56(a)(2)(i). If the appellant makes a nonfrivolous allegation of fact that, 

if proven, would establish the Board’s jurisdiction, then she is entitled to a 

hearing at which time she must prove jurisdiction. Garcia v. Department of 

Homeland Security, 437 F.3d 1322, 1330 (Fed. Cir. 2006); Ferdon v. U.S. Postal 

Service, 60 M.S.P.R. 325, 329 (1994). 

¶5 The appellant alluded to a reduction in grade when she asserted that a 

GS-07 Secretary position did not exist within NACE when she received her 
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reassignment order or after she had been reassigned and only a GS-06 position 

“was known to have existed” within NACE. IAF, Tab 4 at 1. In support of this 

assertion, she provided an “Opportunities for Voluntary Reassignment” handout, 

which identified several vacancies, including a vacancy for a GS-06 

Administrative Assistant position, during the May-June 2013 timeframe. Id.

at 2-4. 

¶6 We are not persuaded that the appellant’s allegations constitute a 

nonfrivolous allegation of Board jurisdiction. Importantly, the appellant 

acknowledges on review that she was reassigned “to another GS-7 pay-grade 

position.” PFR File, Tab 1 at 3. Moreover, the fact that, nearly 4 months prior to 

the effective date of the appellant’s reassignment, there was a vacant GS-06 

Administrative Assistant position within NACE does not constitute a nonfrivolous 

allegation that she lost pay or grade once she was reassigned to NACE.

2

 

¶7 We have considered the appellant’s argument that the principles articulated 

in Miller are applicable and her assertion in her reply brief that the agency cannot 

meet its burden. PFR File, Tab 1 at 3, Tab 4 at 1. In Miller, 119 M.S.P.R. 438, 

¶¶ 3, 7, 9-11, the agency removed the appellant for failing to accept a 

management-directed reassignment to fill a newly-created position. The Board 

held that the agency must establish by preponderant evidence that the geographic 

reassignment was properly ordered due to bona fide management considerations 

in the interest of promoting the efficiency of the service. The Board concluded 

that the agency did not meet its burden in this regard, and it reversed the removal 

action. As the appellant appears to concede, Miller is distinguishable from this 

case because Ms. Miller was removed for failing to accept a directed 

 2 In the initial decision, the administrative judge concluded that the appellant failed to 

make a nonfrivolous allegation of jurisdiction because, among other things, the 

appellant did not “demonstrate” that she lost pay or grade in the reassignment. See ID 

at 3. We modify the initial decision to clarify that the Board lacks jurisdiction over the 

appeal because the appellant did not make a nonfrivolous allegation that she lost pay or 

grade. See Garcia, 473 F.3d at 1330.
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reassignment, whereas, here, there is no adverse action giving rise to the Board’s 

jurisdiction. See PFR File, Tab 1 at 3. Compare Miller, 119 M.S.P.R. 438, ¶ 3, 

with IAF, Tab 4 at 1. Because of the different procedural posture of these 

matters, it is not appropriate to hold the agency to the burden of proof articulated 

in Miller. See PFR File, Tab 4 at 1. Rather, the appellant bears the burden to 

prove that the Board has jurisdiction over this appeal, and she failed to make a 

nonfrivolous allegation in this regard.

¶8 Regarding the appellant’s assertion that she was coerced to retire, we note 

that a nonfrivolous allegation of coercion may satisfy an appellant’s initial 

jurisdictional burden in an involuntary retirement appeal. See, e.g., Carey v. 

Department of Health & Human Services, 112 M.S.P.R. 106, ¶¶ 5-7 (2009);

Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶¶ 23-29 (2004). Here, 

however, there is no evidence that the appellant retired or otherwise was 

separated from the federal service. Therefore, we need not consider this 

argument on review.

¶9 In light of our disposition, we also agree with the administrative judge that 

the Board lacks jurisdiction to review the appellant’s affirmative defenses. See 

Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (stating 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, 871-73 (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 the United States Court of Appeals for the Federal Circuit to review this 

final decision. You must submit your request to the court at the following 

address: 
6

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. 

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 your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems
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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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board