                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LIONEL A. NICHOLAS,                             DOCKET NUMBER
                   Appellant,                        DC-3443-15-1020-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: March 21, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lionel A. Nicholas, APO, AE, pro se.

           David H. Roberts, Esquire, APO, AE, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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, 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 appellant appealed the agency’s decision to deny his request to assign
     his position a higher grade of pay, which he described as a “denial of increase of
     duty promotion.” He argued that he asked the agency to conduct a desk audit of
     his position, so that it could be evaluated to determine if he were performing
     duties at a higher grade level, but the agency refused. Initial Appeal File (IAF),
     Tab 1 at 6.
¶3         In an acknowledgment order, the administrative judge explained that the
     Board may not have jurisdiction over the appellant’s claim, explained what was
     required to establish the Board’s jurisdiction over a denial of a promotion, and
     ordered the appellant to file evidence and argument to prove that his claim was
     within the Board’s jurisdiction. IAF, Tab 2 at 2. The appellant filed a response
     detailing the nature of his duties and responsibilities in support of his claim that
     his position is not properly graded. IAF, Tab 3. The administrative judge issued
     a decision, without holding a hearing, dismissing the appeal for lack of
     jurisdiction. IAF, Tab 5, Initial Decision (ID).
¶4         The appellant has filed a petition for review, making similar arguments
     concerning the nature of his duties and responsibilities that support his request for
                                                                                              3

     an accretion of duties promotion. Petition for Review (PFR) File, Tab 1. The
     agency has filed a reply in opposition to the appellant’s petition.              PFR File,
     Tab 4.

                                            ANALYSIS
     The Board lacks jurisdiction over the appellant’s claim that he is entitled to a
     promotion due to an accretion of duties.
¶5         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 Board does not have
     jurisdiction over all matters alleged to be incorrect. Roberts v. Department of the
     Army, 168 F.3d 22, 24 (Fed. Cir. 1999). As the administrative judge correctly
     found, and with exceptions not applicable here, the appellant’s claims regarding
     nonpromotion issues are not per se appealable to the Board. See Walters v. U.S.
     Postal Service, 65 M.S.P.R. 115, 118 (1994); ID at 2.            We find no reason to
     disturb the initial decision on that basis.
     The Board lacks         jurisdiction   over     the   appellant’s     possible    improper
     classification claim.
¶6         Similarly, the Board does not have jurisdiction over cases concerning the
     proper classification of a position.          Saunders v. Merit Systems Protection
     Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985); Pavlopoulos v. Office of Personnel
     Management, 58 M.S.P.R. 620, 626 (1993). Thus, to the extent that the appellant
     may be raising an improper classification claim, we find that the Board would
     lack jurisdiction over the appeal on that basis.
     The Board lacks jurisdiction over the appellant’s possible “employment
     practices” claim.
¶7         To the extent that the appellant is arguing that he was subjected to an
     improper employment practice, we find that he failed to identify any
     “employment      practice”   appealable       under   5 C.F.R.      part 300,    subpart A,
     i.e., 5 C.F.R. §§ 300.101-300.104.
                                                                                          4

¶8         Under 5 C.F.R. § 300.104(a), “[a] candidate who believes that an
      employment practice which was applied to him or her by the Office of Personnel
      Management [OPM] violates a basic requirement in § 300.103 is entitled to
      appeal to the Merit Systems Protection Board under the provisions of its
      regulations.”    Bush v. Office of Personnel Management, 315 F.3d 1358, 1360
      (Fed. Cir. 2003). For an action to be an appealable employment practice, it must
      constitute an “employment practice” within the meaning of 5 C.F.R. part 300,
      subpart A, and meet the requirements of 5 C.F.R. § 300.103. Maule v. Office of
      Personnel Management, 40 M.S.P.R. 388, 393, aff’d, 892 F.2d 1050 (Fed. Cir.
      1989) (Table).
¶9         For purposes of part 300, subpart A, of 5 C.F.R., “employment practices”
      are those practices “that affect the recruitment, measurement, ranking, and
      selection of individuals for initial appointment and competitive promotion in the
      competitive service.” 5 C.F.R. § 300.101. Because the appellant has not shown
      how any alleged improprieties in the supposed reclassification of his position
      relate to an “initial appointment” or a “competitive promotion,” he has failed to
      show that the purported reclassification involved any appealable employment
      practice. See Kelly v. Office of Personnel Management, 53 M.S.P.R. 511, 516
      (1992) (finding that, to be appealable, an employment practice must concern “an
      applicant’s selection for an initial appointment or [a] competitive promotion[ ]”);
      see also 5 C.F.R. § 300.104(a) (granting Board appeal rights to a “candidate”
      for employment).
      The appellant failed to       raise   a   nonfrivolous   allegation   that   he   was
      constructively demoted.
¶10        To receive a jurisdictional hearing on a claim of constructive demotion, an
      appellant must nonfrivolously allege that: (1) he was reassigned without loss of
      grade or pay; (2) his former position was upgraded; (3) the upgrading was due to
      issuance of a new classification standard or correction of a classification error;
      and (4) he met the legal and qualification requirements for promotion to the
                                                                                         5

      upgraded position. Marcheggiani v. Department of Defense, 90 M.S.P.R. 212, ¶ 7
      (2001); Manlogon v. Environmental Protection Agency, 87 M.S.P.R. 653, ¶ 12
      (2001).
¶11         Here, the appellant has failed to establish a fundamental predicate for a
      possible constructive demotion claim because he has not established that he was
      reassigned.   See 5 U.S.C. § 7512(3); see also Artmann v. Department of the
      Interior, 926 F.2d 1120, 1123 (1991) (“The employee’s grade therefore was
      reduced when the employee was reassigned at the same grade because, had the
      position been properly classified at the higher grade, that reassignment would
      have reduced the grade.”); Russell v. Department of the Navy, 6 M.S.P.R. 698,
      700-01, 704-11 (1981).
¶12         Therefore, to the extent that the appellant may be arguing that he was
      constructively demoted, we find that he has failed to raise a nonfrivolous
      allegation of such a claim. See Walker v. Department of the Navy, 106 F.3d 1582,
      1584 (Fed. Cir. 1997) (holding that a normally nonappealable reassignment may
      constitute an appealable constructive demotion).
¶13         Accordingly, we affirm the administrative judge’s decision to dismiss the
      appeal for lack of jurisdiction. 2

                       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:


      2
        The administrative judge did not provide the appellant with notice regarding how he
      could establish jurisdiction over an employment practices claim or on a claim of
      constructive demotion. Ordinarily, an appellant must receive explicit information on
      what is required to establish an appealable jurisdictional issue. Burgess v. Merit
      Systems Protection Board, 758 F.2d 641, 643‑44 (Fed. Cir. 1985). Here, however, the
      appellant’s vague assertions did not trigger a duty on the part of the administrative
      judge to provide him with his burdens of proof over this claim.
                                                                                  6

                          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 U.S. 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 U.S. 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 Appellant,” 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 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 appellant 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.
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FOR THE BOARD:     ______________________________
                   William D. Spencer
                   Clerk of the Board
Washington, D.C.
