UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KERWIN M. SMITH,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

CH-531D-16-0196-I-1

DATE: September 14, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 21⁄2 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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board