                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CALVIN HICKS,                                   DOCKET NUMBER
                         Appellant,                  SF-3443-15-0074-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: May 8, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Dwight A. Suggs, Sr., Los Angeles, California, for the appellant.

           Evan Stein, Los Angeles, California, 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 his appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to the facts of the case; the
     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, and based on the following points and authorities, 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 and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).
¶2        The appellant, a Housekeeper Aid Leader, ML-3566-03, filed an appeal
     alleging that the agency manipulated his contract position description so that he
     performs the duties of two positions but is only paid for one. The appellant also
     asserted that the agency committed prohibited personnel practices, and that it
     violated both the collective bargaining agreement and the No Fear Act. Initial
     Appeal File (IAF), Tabs 1, 7. Without holding a hearing, the administrative judge
     found that, while the appellant is dissatisfied with additional duties the agency
     has assigned him and he does not agree with his position description, he failed to
     make a nonfrivolous allegation that his grade or pay have been reduced, or that he
     has been suspended without pay or removed. Initial Decision (ID) at 3-4. The
     administrative judge found further that the Board may not address the appellant’s
     remaining allegations without an otherwise appealable action. Accordingly, the
     administrative judge dismissed the appeal for lack of jurisdiction. See ID at 3-4.
¶3        On review, the appellant essentially reasserts the arguments he raised
     below.   Petition for Review (PFR) File, Tabs 1-2.      Specifically, the appellant
     claims that he was performing two jobs but only being paid for one and that the
     agency failed to reclassify his position.    However, the Board’s jurisdiction is
                                                                                         3

     limited to only 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). Similarly, the Board does not have jurisdiction over all actions
     that are alleged to be incorrect, but rather it only has jurisdiction that is provided
     in pertinent statutes and regulations. See Weaver v. Department of Agriculture,
     55 M.S.P.R. 569, 573 (1992); see also Marren v. Department of Justice,
     49 M.S.P.R. 45, 51 (1991). Specifically, Congress provided that an employee, as
     defined in 5 U.S.C. § 7511, against whom certain adverse actions are taken, has
     the right to invoke the Board’s jurisdiction under 5 U.S.C. § 7701, 5 U.S.C.
     § 7513(d). Such appealable adverse actions include a suspension for more than
     14 days, removals, reduction in pay, and reductions in grade. 5 U.S.C. § 7512.
     Here, the administrative judge correctly found that, while the appellant is
     unhappy with the additional duties the agency has assigned him and he disagrees
     with his position description, he has not made a nonfrivolous allegation that his
     grade or pay has been reduced, or that he has been suspended without pay or
     removed. Thus, the Board lacks jurisdiction over these claims.
¶4         To the extent the appellant also reasserts his allegations that the agency
     committed prohibited personnel practices, failed to follow agency regulations and
     the collective bargaining agreement, and violated the No Fear Act, because the
     Board does not have jurisdiction over the underlying claim, the Board also has no
     jurisdiction to adjudicate these remaining claims. See Wren v. Department of the
     Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982)
     (5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction); see also
     Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (in the absence of an
     otherwise appealable action, the Board lacked jurisdiction over claims of harmful
     error, prohibited personnel practices, and the agency’s alleged failure to comply
     with regulations).
¶5         Finally, the appellant argues that the administrative judge erred by failing to
     grant his hearing request. PFR File, Tab 2. However, an appellant is entitled to a
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jurisdictional hearing only where he makes a nonfrivolous allegation that the
Board has jurisdiction over his appeal. See Smirne v. Department of the Army,
115 M.S.P.R. 51, ¶ 8 (2010); see also Yiying Liu v. Department of Agriculture,
106 M.S.P.R. 178, ¶ 8 (2007). In this case, the administrative judge correctly
found that the appellant failed to raise a nonfrivolous allegation of jurisdiction,
and thus, that he was not entitled to a hearing. Accordingly, we conclude that the
appellant has shown no error in the administrative judge’s dismissal of his appeal
for lack of jurisdiction.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States 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.
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.
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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
United States 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
