                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MILES E. MCCORD, JR.,                           DOCKET NUMBER
                   Appellant,                        DC-0752-14-0284-I-1

                  v.

     DEPARTMENT OF COMMERCE,                         DATE: December 16, 2014
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Brook L. Beesley, Alameda, California, for the appellant.

           Johahna Johnson, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal of an alleged reduction in pay and constructive demotion for
     lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     petition for review and REMAND the case to the Washington Regional Office for
     further adjudication in accordance with this Order.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶2           Effective March 1, 2010, the agency appointed the appellant to a
     supervisory Health Physicist position, ZP-IV, within the agency’s National
     Institute of Standards and Technology (NIST). Initial Appeal File (IAF), Tab 4 at
     53.     The appellant’s position was covered by NIST’s Alternative Personnel
     Management System (APMS). See 62 Fed. Reg. 203, 54,606-07 (Oct. 21, 1997),
     available at IAF, Tab 4 at 41-51. Under the APMS, the appellant was entitled to
     receive a supervisory pay differential when supervising at least three employees.
     See 62 Fed. Reg. at 54,609. As the appellant acknowledged in a statement that he
     signed on the date of his appointment, the APMS specifies that this differential
     will    be   cancelled   when   an   employee’s   supervisory responsibilities   are
     discontinued. Id. at 54,609; IAF, Tab 4 at 56. The APMS further specifies that
     the “granting of a differential is not considered a promotion or a competitive
     action” and the “cancellation of a supervisory differential does not constitute an
     adverse action and there is no right of appeal under 5 U.S.C. Chapter 75.”
     62 Fed. Reg. at 54,609.     Effective March 25, 2012, the agency reassigned the
     appellant to a nonsupervisory Health Physicist position. IAF, Tab 4 at 58, 60. He
     remained at the same pay band but no longer received the supervisory
     differential. Id.
¶3           On January 1, 2014, the appellant filed an appeal with the Board. IAF, Tab
     1.     He appeared to allege that his reassignment to a nonsupervisory position
     constituted a constructive demotion and that the associated discontinuation of his
     supervisory differential constituted an appealable reduction in pay.      Id.; IAF,
     Tab 6 at 3-4. He requested a hearing. IAF, Tab 1 at 2.
¶4           The agency filed a motion to dismiss the appeal for lack of jurisdiction or,
     in the alternative, as untimely filed. IAF, Tab 4. As to jurisdiction, the agency
                                                                                         3

     argued that: (1) pursuant to its APMS, the discontinuation of a supervisory
     differential is not appealable to the Board; and (2) the appellant failed to
     nonfrivolously allege that he was constructively demoted because he did not
     allege that he was reassigned from a position that was worth a higher grade based
     on a new classification standard or a classification error. 2      Id. at 6-10.   The
     agency argued that the appellant’s appeal was untimely filed because he was
     required to file it within 30 days of the effective date of his reassignment but did
     not do so until nearly 2 years later and that he failed to show good cause for his
     filing delay.   Id. at 10-11.    The agency also moved to stay discovery and
     submission of the agency file, pending a ruling on its motion. IAF, Tab 5 at 4-5.
     The appellant objected to the agency’s stay motion. Id. at 5.
¶5         The administrative judge granted the agency’s stay motion over the
     appellant’s objection and thereafter issued an initial decision, without holding the
     requested hearing, granting the agency’s motion to dismiss the appeal for lack of
     jurisdiction. IAF, Tab 7, Tab 9, Initial Decision (ID). He found, based on the
     APMS, that the cancellation of the appellant’s supervisory differential did not
     constitute an appealable reduction in pay. ID at 5-7. He further found that the
     appellant failed to make a nonfrivolous allegation of Board jurisdiction over his
     constructive demotion claim. ID at 7-8. Because he dismissed the appeal for lack
     of jurisdiction, he did not resolve the timeliness issue. ID at 9 n.5.
¶6         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. He argues that: (1) he nonfrivolously alleged that his reassignment
     constituted a constructive demotion; and (2) the administrative judge erred in
     denying his request to conduct discovery relevant to jurisdiction prior to




     2
       The agency also argued that the Board lacks jurisdiction over reassignments that do
     not result in a reduction in grade or pay, including those that result in the loss of
     premium pay. IAF, Tab 4 at 8-9.
                                                                                            4

     dismissing his appeal on jurisdictional grounds. 3 Id. The agency filed a response
     in opposition and the appellant submitted a reply. 4 PFR File, Tabs 3-4.

     The administrative judge should have allowed the parties to conduct discovery
     prior to dismissing the appeal on jurisdictional grounds.
¶7         The appellant argues that it was error for the administrative judge to dismiss
     his appeal without permitting discovery regarding jurisdiction. PFR File, Tab 1
     at 2. For the reasons set forth below, we agree.
¶8         In order to establish Board jurisdiction over a constructive demotion claim,
     an appellant must prove by preponderant evidence that he: (1) was reassigned
     from a position which, due to issuance of a new classification standard or
     correction of a classification error, was worth a higher grade; (2) met the legal
     and qualification requirements for promotion to the higher grade; and (3) was
     permanently reassigned to a position classified at a grade level lower than the
     grade level to which he would otherwise have been promoted.                    Bobie v.
     Department of the Army, 105 M.S.P.R. 592, ¶ 6 (2007); see Abbott v. U.S. Postal
     Service, 121 M.S.P.R. 294, ¶ 8 (2014) (in a constructive adverse action appeal,
     the appellant bears the burden of establishing Board jurisdiction by preponderant
     evidence). In this case, the appellant submitted a declaration under penalty of


     3
        The appellant does not challenge the administrative judge’s finding that his
     reassignment did not constitute an appealable reduction in pay. See generally PFR File,
     Tab 1. We discern no basis to disturb the initial decision as to this issue.
     4
       In his reply, the appellant claims that he did not receive proper notice of how to
     establish Board jurisdiction over a constructive demotion claim. PFR File, Tab 4 at
     2-3. As an initial matter, the appellant failed to raise this claim in his petition for
     review, and the Board’s regulations specify that a reply may not raise new allegations
     of error. See 5 C.F.R. § 1201.114(a)(4). Notwithstanding, we note that we find this
     argument to be wholly without merit. The appellant received proper jurisdictional
     notice both in the agency’s motion to dismiss and in the initial decision. See ID at 7-8;
     see also IAF, Tab 4 at 9; cf. Melendez v. Department of Homeland Security,
     112 M.S.P.R. 51, ¶ 9 (2009) (an administrative judge’s failure to provide proper
     jurisdictional notice can be cured if the agency’s pleadings or the initial decision
     contain proper notice, thus affording the appellant the opportunity to meet his
     jurisdictional burden on review).
                                                                                              5

     perjury, wherein he claimed that the agency redistributed his supervisory
     responsibilities amongst seven employees and “upgraded [his] former supervisory
     position and duties due to an apparent classification issue” after reassigning him.
     IAF, Tab 6 at 3-5.         He asserted that he met the legal and qualification
     requirements for the upgraded position. Id. at 4. He referenced the Standard
     Form (SF) 50 documenting his reassignment to a nonsupervisory position, which
     indicated that the “change [was] a result of a position review.” 5 Id. at 3-4; IAF,
     Tab 4 at 58.
¶9         Although the aforementioned allegations, if proven, could establish Board
     jurisdiction, we find that the appellant has not presented preponderant evidence to
     support them. However, an appellant is entitled to request discovery of relevant
     materials to help him meet his burden of establishing the Board’s jurisdiction.
     Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 9
     (2007). The appellant explained below that he could not provide any additional
     information regarding jurisdiction because the agency had not yet responded to
     his discovery requests. IAF, Tab 6 at 1. He submitted a copy of his discovery
     requests, some of which appear to relate to the jurisdictional issue in this appeal. 6
     IAF, Tab 8 at 4-8. Specifically, Interrogatory 7 requested position descriptions
     for the supervisory and nonsupervisory Health Physicist positions.               Id. at 7.
     Requests for Admission 5-7 asked the agency to admit that: (1) shortly after the
     appellant’s reassignment, it redistributed his supervisory responsibilities and


     5
       The nature of the agency’s action is not clear from the SF-50. The SF-50 cites the
     authority for the action as 5 C.F.R. § 335.102. IAF, Tab 4 at 58. It also states
     “RECLASS,” which the appellant believes refers to a reclassification, and references “a
     position review.” Id.; see IAF, Tab 6 at 3-4. However, 5 C.F.R. § 335.102 does not
     relate to position classification.     See Grubb v. Department of the Interior,
     73 M.S.P.R. 296, 298 (1997).
     6
       It appears that the appellant timely initiated discovery. The deadline for the parties to
     do so was February 10, 2014. See IAF, Tab 2 at 4-5; see also 5 C.F.R. §§ 1201.23,
     1201.73(d). The appellant’s discovery requests are dated January 28, 2014. IAF, Tab 8
     at 4. The agency has not disputed that his requests were served on that date.
                                                                                         6

      “upgraded and elevated” his former supervisory position into two supervisory
      positions; and (2) he met all the qualification requirements for the new
      supervisory positions and higher supervisory pay.        Id. at 8.    Based on the
      foregoing, while we recognize that administrative judges have wide discretion
      over matters pertaining to discovery, we find in this instance that the
      administrative judge should not have dismissed this appeal on jurisdictional
      grounds without permitting the appellant to engage in discovery.                 See
      Parker, 106 M.S.P.R. 329, ¶ 9; see also 5 C.F.R. § 1201.41(b)(4). Therefore, we
      must remand this appeal.

      On remand, the appellant must first receive an additional opportunity to establish
      that his appeal was timely filed or that good cause exists for the delay.
¶10         The agency argued below that the appellant’s appeal was untimely filed
      because he did not file it within 30 days of the reassignment and that he failed to
      show good cause for the untimely filing.       IAF, Tab 4 at 10-11; see 5 C.F.R.
      § 1201.22(b). The appellant argued that he was unaware that the circumstances
      surrounding his reassignment could constitute an appealable constructive
      demotion because the letter informing him of the reassignment stated that, under
      the APMS, “[t]he removal of a supervisory differential does not constitute a
      demotion or a reduction in pay under 5 U.S.C. Chapter 75” and that therefore he
      did not have a right of appeal. IAF, Tab 1 at 3, Tab 6 at 4; see IAF, Tab 4 at 60.
      He claimed that he did not learn of his potential right of appeal until he retained a
      representative in an unrelated employment matter in December 2013 and noted
      that his appeal was filed shortly thereafter. IAF, Tab 6 at 4.
¶11         We cannot resolve the timeliness issue because we find that the appellant
      did not receive clear notice of the precise timeliness issue as to his constructive
      demotion claim. See White v. U.S. Postal Service, 114 M.S.P.R. 386, ¶ 18 (2010)
      (an appellant is entitled to clear notice of the precise timeliness issue and a full
      and fair opportunity to litigate it).       Although both the agency and the
      administrative judge indicated that the appellant was required to file his appeal
                                                                                 7

within 30 days of his reassignment, his constructive demotion argument is based
on actions he alleges the agency took after his reassignment. Because we do not
know if the agency upgraded the appellant’s former position and redistributed his
duties and, if it did, when it took such actions and exactly when the appellant
learned of these actions, we cannot determine whether good cause exists for his
filing delay.   See Ellis v. Department of the Navy, 80 M.S.P.R. 321, 324-25
(1998); see also Sarter v. U.S. Postal Service, 69 M.S.P.R. 335, 338 (1996).
Moreover, to the extent that the appellant is arguing that there is good cause for
his untimely filing because the agency failed to notify him of his Board appeal
rights, we note that he was not informed below that, where an agency takes a
facially unappealable action such as a reassignment, it has no obligation to
provide such notice unless the employee communicates by word or deed that he
considers the reassignment to be an adverse action. See Beaudette v. Department
of the Treasury, 100 M.S.P.R. 353, ¶ 15 (2005); see also Subranni v. U.S. Postal
Service, 67 M.S.P.R. 604, 606 (1995), aff’d, 78 F.3d 603 (Fed. Cir. 1996).

                                     ORDER
     For the reasons discussed above, we REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge should first determine whether the
appellant’s appeal was timely filed or, if not, whether good cause exists for the
delay. Prior to making this determination, the administrative judge shall offer the
parties the opportunity to conduct discovery limited to the issue of timeliness. If
the administrative judge resolves the timeliness issue in the appellant’s favor,
then he should proceed to address the issue of the Board’s jurisdiction over the
                                                                              8

appellant’s constructive demotion claim, after allowing the parties to engage in
discovery regarding jurisdiction.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
