                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     NAHEEMAKIL L. PRYOR,                            DOCKET NUMBER
                  Appellant,                         AT-3443-14-0899-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 29, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Naheemakil L. Pryor, Columbia, South Carolina, pro se.


                                           BEFORE

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


                                       FINAL ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal of his position classification 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                                      BACKGROUND
¶2        The agency hired the appellant for the position of GS-3 File Clerk. See
     Initial Appeal File (IAF), Tab 1 at 9-13.      The appellant, who had previously
     worked in the same position for unpaid work experience in the Vocational
     Rehabilitation Program, disputed the grade rating because his supervisor had
     recommended a GS-5 rating for the position description.        See id. at 17.    The
     appellant sought internal review and reclassification, maintaining that the
     position should carry a GS-5 rating.       Id. at 17-28.    The Human Resources
     Specialist who classified the position informed the appellant that the duties and
     responsibilities described in the position description supported classification as a
     GS-3 but not as a GS-5 and that a grade recommendation by a supervisor
     constitutes a mere recommendation. Id. at 21. The Human Resources Specialist
     notified the appellant of the formal classification appeal procedure, including a
     direct appeal to the Office of Personnel Management (OPM). Id.
¶3        The appellant filed an appeal with the Board, alleging that the agency had
     given him “the incorrect GS rating upon being hired.”            Id. at 2-4.     The
     administrative judge ordered the appellant to file evidence and argument that the
                                                                                         3

     Board has jurisdiction to review the action being appealed. IAF, Tab 2 at 2. The
     appellant filed an untimely response that the administrative judge did not consider
     in her analysis of the appeal. IAF, Tab 3, Tab 4, Initial Decision (ID) at 2 n.*. In
     an initial decision issued on the written record, the administrative judge
     dismissed the appeal for lack of jurisdiction, finding that the appellant sought to
     appeal the classification of his position and that well-settled precedent holds that
     the Board lacks jurisdiction to review such classifications. ID at 1-2. On review,
     the appellant has made no argument but instead has refiled “all of the documents
     submitted initially” in his appeal. Petition for Review (PFR) File, Tab 1.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶4           The Board’s jurisdiction is not plenary; it 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 Board has not
     been granted jurisdiction over cases concerning the proper classification of a
     position, either by statute or regulation. Saunders v. Merit Systems Protection
     Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985). The appellant bears the burden of
     proof     of   establishing   Board   jurisdiction   by   a   preponderance   of   the
     evidence. 5 C.F.R. § 1201.56(a)(2)(i). An appellant is entitled to a hearing if he
     raises a nonfrivolous allegation of Board jurisdiction over his appeal.            See
     Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 6 (2013).
¶5           The administrative judge correctly held that the appellant failed to make a
     nonfrivolous allegation of Board jurisdiction. While the appellant indicated on
     his appeal form that he was appealing a “reduction in grade, pay, or band,” his
     written statements and evidence submitted indicate that he is contesting the
     classification of the position he accepted and occupies. IAF, Tab 1 at 3-4, 9-28.
     Although given notice of the jurisdictional issue by the administrative judge, the
     appellant has failed to make any specific allegation of Board jurisdiction over his
     appeal of the position classification. See IAF, Tab 2 at 2, Tab 3; PFR File, Tab 1.
                                                                                     4

     The appellant’s untimely response made only a blanket assertion of Board
     jurisdiction under 5 U.S.C. § 2301, without any pertinent argument or evidence.
     IAF, Tab 3 at 2-7. An allegation of a violation of the merit systems principles
     under 5 U.S.C. § 2301 is not an independent source of Board jurisdiction. D’Leo
     v. Department of the Navy, 53 M.S.P.R. 44, 48 (1992).
¶6        While the record indicates that the agency’s Human Resources Specialist
     notified the appellant of the formal classification appeal procedure, there is no
     evidence that the appellant pursued an appeal with OPM directly or through the
     agency procedure.    IAF, Tab 1 at 21; see Pierce v. Merit Systems Protection
     Board, 242 F.3d 1373, 1376 (Fed. Cir. 2001) (an appellant seeking to contest
     classification should have sought relief from OPM). Thus, we conclude that the
     appellant has failed to adequately allege any appeal rights before the Board and
     has not shown error in the administrative judge’s finding that the Board lacks
     jurisdiction over the present appeal.

                     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).
                                                                                  5

     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.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
