                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                    2007-3327


                              HYLAND W. BENNETT,

                                                          Petitioner,

                                         v.


                     MERIT SYSTEMS PROTECTION BOARD,

                                                          Respondent.


      Hyland W. Bennett, of Colorado Springs, Colorado, pro se.

      Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B.
Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.

Appealed from: Merit Systems Protection Board
                         NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit

                                         2007-3327

                                    HYLAND BENNETT

                                                         Petitioner,

                                             v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                         Respondent.

Petition for review of the Merit Systems Protection Board in DE-3443-07-0054-I-1.

                             ___________________________

                               DECIDED: March 10, 2008
                             ___________________________


 Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and YOUNG, District Judge. *

 PER CURIAM.

        Petitioner Hyland Bennett seeks review of a final decision of the Merit Systems

 Protection Board (“MSPB” or “Board”) that dismissed his appeal of an alleged

 constructive demotion for lack of jurisdiction. Because Bennett has not alleged facts

 sufficient to support a nonfrivolous claim for constructive demotion, we affirm.

        The jurisdiction of the MSPB is not plenary, but rather is limited to those matters

 over which it has jurisdiction “under any law, rule, or regulation.” 5 U.S.C. § 7701(a);

 Minor v. Merit Sys. Protection Bd., 819 F.2d 280, 282 (Fed. Cir. 1987). By law, the


        *
                Honorable William G. Young, District Judge, United States District Court
 for the District of Massachusetts, sitting by designation.
MSPB’s jurisdiction is limited to appeals of certain enumerated adverse actions,

including removals, suspensions for more than 14 days, reductions in grade, reductions

in pay, and furloughs of 30 days or less. 5 U.S.C. § 7512. The petitioner bears the

burden of establishing jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i); Garcia

v. Dep’t of Homeland Security, 437 F.3d 1322, 1325 (Fed. Cir. 2006) (en banc). “We

review decisions of the Board regarding its own jurisdiction without deference.”

McCormick v. Dep’t of the Air Force, 307 F.3d 1339, 1340 (Fed. Cir. 2002).

       Generally, the MSPB lacks jurisdiction to review a reassignment of an employee

who does not suffer a loss of grade or pay. Walker v. Department of the Navy, 106 F.3d

1582, 1584 (Fed. Cir. 1997). However, where the practical effect of a reassignment is

to deny the employee a promotion he would have received if he had not been

transferred, then the transfer constitutes a “constructive demotion” which is appealable

to the MSPB. Elmore v. Dep’t of Transp., 421 F.3d 1339, 1342 (Fed. Cir. 2005). “To

establish a constructive demotion claim, the employee must demonstrate that (i) the

employee was reassigned from a position which, due to the issuance of a new

classification standard or correction of classification error, is entitled to a higher grade,

and (ii) the employee meets the legal and qualification requirements for promotion to the

higher grade.” Walker, 106 F.3d at 1584.

       In this case, Mr. Bennett does not allege that he was reassigned from a position

that was entitled to a higher grade—either due to the issuance of new classification

standard or the correction of a classification error. Rather, Mr. Bennett claims that he

should have been promoted because he performed duties similar to several of his

coworkers who were promoted.          Mr. Bennett has therefore failed to allege facts




2007-3327                                    2
sufficient to support a nonfrivolous claim for constructive demotion. Accordingly, we

affirm the decision of the MSPB dismissing his appeal for lack of jurisdiction.



       No costs.




2007-3327                                    3
