N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ RICHIE LEON HALL, Petitioner

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent

______________________

2014

- 3170

______________________ Petition for review of the Merit Systems Protection Board in No. DC

- 3443

- 14

- 0725 -I- 1.

______________________

Decided: February 5, 2015

______________________

R ICHIE L. H ALL , Brooklyn, NY , pro se.

K ATRINA L EDERER , Office of the General Counsel, Merit Systems Protection Board, Washington, DC , for respondent

. Also represented by B RYAN G. P OLISUK

.

______________________

Before P ROST , Chief Judge

, B RYSON and W ALLACH , Circuit Judges.HALL v. MSPB 2

P ER C URIAM

. Petitioner Richie Leon Hall appeals the June 26, 2014, decision of the Merit Systems Protection Board (“Board”) dismissing his petition for review for lack of jurisdiction. See Hall v. Office of Pers

. Mgmt

. , No. DC

3443

- 14

- 0725 -I- 1 ( M.S.P.B. June 26, 2014) (Resp’t’s App. 1– 9) (“Initial Decision”). For the reasons set forth below, this court affirms.

B ACKGROUND Mr. Hall, a civilian, was first employed as a Traffic Management Specialist , a temporary position, with the United Stat es Army Transportation Brigade of the D epartment of Defense (“Agency”) at Camp Arifjan, Kuwait. Subsequently, Mr. Hall was voluntarily reassigned to a permanent position at the same camp as a Transportation Planning Specialist

. As part of his reassignment, Mr. Hall requested a Living Quarter Allowance (“LQA”) and other related benefits, which the Agency denied, finding he was ineligible for a LQA, and therefore not e ntitled to the other benefits.
Mr. Hall appealed the Agency’s d ecision denying be nefits to the Office of Personnel Management (“OPM”). On September 26, 2013, the OPM upheld the denial of ben efits. Mr. Hall appealed to the Board o n May 18, 2014

. “Because it appeared that the Board might not have jurisdiction over the appeal,” in its order acknowledging Mr. Hall’s appeal, it gave him an opportunity to submit evidence establishing jurisdiction. Ini tial Decision

, at 3. It also explained the “nature of the jurisdictional issue” and his burden of proof. Id

. After receiving Mr. Hall’s reply, the Board dismissed his petition for review for lack of jurisdiction on June 26, 2014

. The Board’s I nitial D ecision became final on July 31, 2014

. Mr. Hall appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) ( 2012).HALL v. MSPB 3

D ISCUSSION

I. Standard of Review

This court’s “ scope of

. . . review of [B] oard decisions is limited to whether they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsuppor ted by substanti al evidence. ” Forest v. Merit Sys. Prot. Bd.

, 47 F.3d 409, 410 (Fed. Cir. 1995) (citing 5 U.S.C. § 7703(c) (1988)). T he issue of Board jurisdiction is a question of law this court reviews de novo

. Johnston v. Merit Sys. Prot. Bd. , 518 F.3d 905, 909 (Fed . Cir. 2008)

. T his court is bound by the Board’s jurisdictional factual findings “u nless those findings are not supported by substantial evidence.” Bolton v. Merit Sys. Prot. Bd. , 154 F.3d 1313, 1316 (Fed. Cir. 1998).
II. Legal Framework

Mr. Hall bears the burden of demonstrating Board j urisdiction by a preponderance of evidence. Fields v. Dep ’ t of Justice , 452 F.3d 1297, 1302 (Fed. Cir. 2006); 5 C.F.R. § 1201.56(a)(2)(i) (2013). T he Board ’ s jurisdiction is “strictly defined and con fined by statute and regulation” to appeals of decisions involving “adverse actions.” Bo lton
, 154 F.3d at 1316. Such actions are (1) removal s; (2) suspension s for more than fourteen days; (3) reduction s in grade ; (4) reduction s in pay; and (5) furlough s of thirty days or less. 5 U.S.C. § 7512(1)

– (5) (2012). “ [A] llegations of a reassignment without change of grade or pay do not provide a basis for [Board] jurisdiction .” Carley v. Dep ’ t of the Army

, 413 F.3d 1354, 1357 (Fed. Cir. 2005) ( quoting Manning v. Merit Sys. Prot. Bd. , 742 F.2d 1424, 1427 (Fed. Cir. 1984)).HALL v. MSPB 4

III. The Board Properly Held It Lacked Jurisdiction Because Mr. Hall Did Not Satisfy His Burden to Establish Board Jurisdiction
The Board correctly held the OPM’s refusal to grant a LQA and related benefits after Mr. Hall’s reassignment was not an “adverse action” for purposes of establishing its jurisdiction under 5 U.S.C. § 7512(1)

– (5)

. 1 As the Board found, this case does not involve a removal, a suspen sion for more than fourteen days, a reduction in grade, or a furlough of thirty days or less. Thus, the issue is whether the denial of Mr. Hall’s request for LQA and related benefits amounts to a reduction in pay under the jurisdictional statute. The Board properly found it did not.

Mr. Hall was v oluntar il y r eassigned from a temporary
to a permanent position , and his appeal is based on the OPM’s denial of his request for benefits he believes should have accompanied the new position. Thus, as the Board found, “ it appears that [Mr. Hall] accepted a promotion, but the agency benefits are not what he anticipated.” Initial Decision

, at 4. T here is no evidence Mr. Hall received the requested benefits in his previous position, and a denial of a request for benefits upon accepting a

new position does not amount to a reduction in pay. Thus, as the Board properly concluded, “[t]he determin a1 Although the Board did not address it, to the extent Mr. Hall argued his claim was for “‘a breach of contract of government,’” Initial Decision

, at 3 (citation omitted) , it is possible that jurisdiction would be proper before the United States Court of Fed eral Claims. See 28 U.S.C. § 1491 ; see also Ransom v. United States , 900 F.2d 242, 244 (Fed. Cir. 1990) (“To maintain a cause of action pursuant to the Tucker Act that is based on a contract, the contract must be between the plaintiff and the go vernment a nd entitle the plaintiff to money damages.”).HALL v. MSPB 5

tion of . . . benefits . . . fails to meet the definition of an adverse action for purposes of Board jurisdiction.” Id.

A reassignment without change i n pay does not pr ovide a basis for Board jurisdiction. Manning

, 742 F.2d at 1427. Here, t he reassignment did not result in the redu ction of pay because “pay” “means the rate of basic pay fixed by law or administrative action for the position held by an e mployee.” 5 U.S.C. § 7511 (a)(4) . In Mr. Hall ’ s case, a LQA was not “fixed by law or administrative action”; it was discretionary. See U.S. Dep ’ t. of State, Dep’ t of State Standardizing Regulations (DSSR) §§ 031.11, 031.112 (2009) (stating quarters allow ances

“ may ” be granted to employees); see also Roberts v. United States , 104 Fed. Cl. 598, 602 (2012), aff ’d

, 745 F.3d 1158 (Fed. Cir. 2014) ( “[O] verseas allowances and differentials are not automatic salary supplements, nor are they entitle ments. . . . Individuals shall not automatically be granted these benefits simply because they meet eligibi lity requirements.”) (internal quotation marks and citation omitted)

. Mr. Hall has failed to meet his burden of demonstra ting the Board has jurisdiction over this case

. S ee Fields

, 452 F.3d at 1302 . Indeed, as the Board concluded, Mr. Hall did not cite any law or provide evidence “ assert[ing] that he was subjected to an action over which the Board has jurisdiction. ” Ini tial Decision

, at 5. In the absence of

suc h evidence, the Board properly held it lacked jurisdi ction.

C ONCLUSION For the reasons set forth above, the decision of the Board is

AFFIRMED