                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL A. CURRIE, JR.,                         DOCKET NUMBER
                   Appellant,                        PH-315I-16-0106-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: July 1, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Michael A. Currie, Jr., Newport, Rhode Island, pro se.

           Matthew J. Gowan, North Chicago, Illinois, 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
     regulation or the erroneous application of the law to the facts of the case; 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.       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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        Effective December 28, 2014, the agency promoted the appellant to a GS-9
     Supervisory Medical Technician position. Initial Appeal File (IAF), Tab 7 at 48.
     The Standard Form 50 (SF-50) documenting the appointment indicated that the
     appointment was subject to a 1-year supervisory probationary period beginning
     December 15, 2014.     Id.   On November 10, 2015, the agency reassigned the
     appellant from his GS-9 supervisory position to a GS-7 nonsupervisory position
     for failure to satisfactorily complete the supervisory probationary period.
     Id. at 12, 14. The appellant timely appealed the reassignment to the Board. IAF,
     Tab 1. He did not request a hearing. Id. at 2. After notifying the appellant of his
     jurisdictional burden, the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction.    IAF, Tab 2 at 2, Tab 8, Initial
     Decision (ID).    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, 3.
¶3        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).        The appellant bears the
                                                                                          3

     burden of demonstrating by preponderant evidence that the Board has jurisdiction
     over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶4         Under 5 U.S.C. § 3321, an individual serving in an initial appointment as a
     supervisor or manager in the competitive service is required to serve a
     probationary period. Burton v. Department of the Air Force, 118 M.S.P.R. 210,
     ¶ 7 (2012). An individual in the competitive service who has been promoted to a
     supervisory position and who does not satisfactorily complete the probationary
     period, like the appellant, “shall be returned to a position of no lower grade and
     pay than the position from which the individual was . . . promoted.” 5 U.S.C.
     § 3321(b); Burton, 118 M.S.P.R. 210, ¶ 7; 5 C.F.R. § 315.907(a).            Here, the
     agency reassigned the appellant to a GS-7, step 5, nonsupervisory position for
     failure to satisfactorily complete his supervisory probationary period, returning
     him to the same grade and step as in the position he held prior to his promotion. 2
     IAF, Tab 7 at 12, 15, 51.
¶5         Under these circumstances, an employee “has no appeal right” unless he
     nonfrivolously alleges that the action “was based on partisan political affiliation
     or marital status.”   Burton, 118 M.S.P.R. 210, ¶ 7; 5 C.F.R. § 315.908.           The
     appellant has not alleged that the agency reassigned him on the basis of partisan
     political reasons or marital status.      IAF, Tabs 1, 6; PFR File, Tab 1; ID at 4.
     Thus, as the administrative judge correctly determined, the Board lacks
     jurisdiction over this appeal. ID at 5.
¶6         On review, the appellant appears to argue that he has the right to appeal his
     reassignment to the Board because he qualifies as an “employee” under 5 U.S.C.


     2
       Although the record contains an SF-50 showing that the appellant occupied a GS-7,
     step 4, nonsupervisory Medical Technician position as of March 29, 2013, IAF,
     Tab 7 at 51, the record does not contain an SF-50 showing the appellant’s grade and pay
     immediately preceding his promotion to the supervisory position, id. at 48-49. The
     demotion letter states, however, that the appellant was promoted from a GS-7, step 5,
     nonsupervisory Medical Technician position into the supervisory position. IAF, Tab 7
     at 15. The appellant has not disputed this assertion. IAF, Tabs 1, 6; PFR File, Tab 1.
                                                                                  4

§ 7511(a)(1) and because the agency’s evidence in support of his demotion was
“falsified and exaggerated.” PFR File, Tab 1 at 4. These contentions, however,
are inapposite to the jurisdictional issue in this appeal and provide no basis to
disturb the initial decision.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      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. 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. 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. 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.
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      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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
