NOTE: This disposition is nonprecedential.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 Litigation 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 Foreman 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 nonART Aircraft Mechanic Foreman position because, according to the Air Force, the position of ART Aircraft Mechanic 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 previously 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 reduction 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 Zimmerman 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 disclosures 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 disclosure.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 discrimination 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 attaches 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