UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

KERWIN M. SMITH, Appellant,

v.
DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER CH

- 531D

- 16

- 0196

- I

- 1

DATE: September 14, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1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 ha s 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and adminis trative judges are not required to follow or distinguish them in any future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 t he 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 cas e; 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 t he petition for review. Therefore, we DENY the petition for review

. Except as express ly 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 Speci alist 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,

e ffective 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, e ffective 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 2 1⁄2 years after his demotion, the appellant file d a Board appeal alleging that the a gency denied him a WIGI on
June 27, 2013, the date that the agency notified him of the demotion. IAF, Tab 13

at 5

‐ 6. The agency filed a motion to dismiss the appeal for lack of jur isdiction
, 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 submi t evidence and argument regarding the Board’s jurisdiction over his appeal. IAF, Tab 8. In response the appellant alleged
, among other things, that th e agency denied him a WIGI when it demoted him
from the Supervisory Physical Security Specialist position, and “illegally denied [hi m] his right to complete his 52 weeks of service as a GS

‐ 1 3 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 W ithout holding the appellant ’ s requested hearing , t he administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction

. 4 IAF,
Tab 14, Initial De cision (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, havin g 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 ARGUME NTS 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
G eneral Schedule employee who is paid at less than the maximum rate of the

5 Non frivolous allegations of jurisdi ction 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 r epeat 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 th e 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 agenc y 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 satisfactori ly 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 super visory or managerial position . . . .”
Section 531.215(d) further provides that “time served following the promotion may be creditable service towards GS with in

- 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 , 201 2, and he did not dispute the accuracy of that date

. I AF, Tab 6 at 10.6

P ursuant 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 be en 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)

. The refore, because the undisputed evidence reflects that the agency demoted the appellant to the same grade and step (GS

‐ 1 2 Step 4) that
he would have held if he had not been promoted to the Supervisory Physical Security Specialist position
, and gav e him credit for time serv ed 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 cont ends 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 th e determination by the agency unde r regulations prescribed by the Office of Personnel Management. 5 U.S.C. § 5335 (c) ; 5 C.F.R. § 5 31.409 (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 , 1 2 92

‐ 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 failed7

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 reconsid eration 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

essen ce, 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 Ai r 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 jurisdicti onal issue. Burgess v. Merit Systems Protection Board
, 758 F. 2d 641 , 643

‐ 44 (Fed. Cir. 1985). The administrative judge did not notify the appel lant 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 th e appellant on notice of what he must do to establish jurisdiction, thus affording him the opportunity to me et 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 APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS The initial decision, as supplemented by this Final O rder, 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 d ecision by the U

. S

. Court of Appeals for the Federal Circuit. You must submit your reques t 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 o n 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 Feder al 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.us courts.gov . Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Pract ice , 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 Cir cuit, 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 Protec tion Board neither endorses the services provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board