                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KERWIN M. SMITH,                                DOCKET NUMBER
                   Appellant,                        CH-531D-16-0196-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 14, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Leonard Mungo, Esquire, Detroit, Michigan, for the appellant.

           David M. Burns, Esquire, Washington, D.C., 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 for lack of jurisdiction his appeal alleging that the agency denied him a
     within‑grade increase (WIGI).      Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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. Except as expressly MODIFIED by this Final Order to find
     that the Board lacks jurisdiction over the appellant’s claims regarding his
     demotion from his Supervisory Physical Security Specialist position during his
     probationary period, we AFFIRM the initial decision.

                                      BACKGROUND
¶2           While serving as a GS‑12 Physical Security Specialist with the agency, the
     appellant received a WIGI from GS‑12 step 2 to GS‑12 step 3, effective April 22,
     2012.    Initial Appeal File (IAF), Tab 6 at 10.   Approximately 3 months later,
     effective July 15, 2012, the agency promoted the appellant to a GS‑13 step 1
     Supervisory Physical Security Specialist, subject to completion of a 1‑year
     probationary period. Id. at 11. Less than a year later, effective June 30, 2013,
     the agency demoted the appellant during his probationary period to a
     nonsupervisory GS‑12 step 4 Physical Security Specialist position. IAF, Tab 1
     at 6‑7, Tab 6 at 12‑13.
¶3           On January 17, 2016, approximately 2½ years after his demotion, the
     appellant filed a Board appeal alleging that the agency denied him a WIGI on
     June 27, 2013, the date that the agency notified him of the demotion. IAF, Tab 1
                                                                                            3

     at 5‑6. The agency filed a motion to dismiss the appeal for lack of jurisdiction,
     arguing that the appellant failed to raise a nonfrivolous allegation that he was
     denied a WIGI. 2 IAF, Tab 6 at 4‑9. Among other things, the agency argued that
     it demoted the appellant to the Physical Security Specialist position at the same
     grade level and step that he would have held if he had not been promoted to the
     Supervisory Physical Security Specialist position. Id. at 7‑8.
¶4         The administrative judge issued an order, which provided the appellant with
     notice of his jurisdictional burden regarding his claim that he was denied a WIGI,
     and ordered the appellant to submit evidence and argument regarding the Board’s
     jurisdiction over his appeal.     IAF, Tab 8.     In response the appellant alleged,
     among other things, that the agency denied him a WIGI when it demoted him
     from the Supervisory Physical Security Specialist position, and “illegally denied
     [him] his right to complete his 52 weeks of service as a GS‑13 Step 1 . . . .” IAF,
     Tab 11 at 1; see IAF, Tab 9 at 2. He further alleged that he had filed an equal
     employment opportunity (EEO) complaint alleging that the agency discriminated
     against him based on race when it demoted him. 3 IAF, Tab 9 at 2‑3.
¶5         Without holding the appellant’s requested hearing, the administrative judge
     issued an initial decision dismissing the appeal for lack of jurisdiction. 4 IAF,
     Tab 14, Initial Decision (ID); IAF, Tab 1 at 2. She found that the appellant failed
     to raise a nonfrivolous allegation that the agency denied him a WIGI. ID at 3‑4.


     2
      The agency also moved to dismiss the appeal on the ground that it was untimely filed
     without good cause shown for the delay. IAF, Tab 13.
     3
      The appellant contended that the agency had not issued a final agency decision on that
     EEO complaint within 120 days. IAF, Tab 9 at 2.
     4
       The administrative judge declined to address whether the appeal was timely filed,
     having dismissed the appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision at 4;
     see Jafri v. Department of the Treasury, 68 M.S.P.R. 216, 221 (1995) (finding that,
     when an appeal was properly dismissed for lack of jurisdiction, an administrative judge
     correctly declined to address whether the appeal was timely filed), aff’d, 78 F.3d 604
     (Fed. Cir. 1996) (Table).
                                                                                              4

     She further found that, absent an otherwise appealable action, the Board lacked
     jurisdiction to review the appellant’s claims that the agency discriminated against
     him based on race. ID at 4.
¶6         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 1‑2.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶7         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).            Thus, it follows that the
     Board does not have jurisdiction over all matters involving Federal employees
     that are alleged to be unfair or incorrect.                  Johnson v. U.S. Postal
     Service, 67 M.S.P.R. 573, 577 (1995). An appellant who makes a nonfrivolous
     allegation of jurisdiction is entitled to a hearing at which he then must prove
     jurisdiction by a preponderance of the evidence. 5           Garcia v. Department of
     Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc); see 5 C.F.R.
     § 1201.56(b)(2)(i)(A).
¶8         Here, the administrative judge correctly found that the appellant failed to
     raise a nonfrivolous allegation that the agency denied him a WIGI. ID at 3‑4. A
     General Schedule employee who is paid at less than the maximum rate of the

     5
       Nonfrivolous allegations of jurisdiction are allegations of fact that, if proven, could
     establish a prima facie case that the Board has jurisdiction over the matter at issue.
     Lara v. Department of Homeland Security, 101 M.S.P.R. 190, ¶ 7 (2006); see 5 C.F.R.
     § 1201.4(s) (defining a nonfrivolous allegation as “an assertion that, if proven, could
     establish the matter at issue”). An allegation generally will be considered nonfrivolous
     when, under oath or penalty of perjury, an individual makes an allegation that: (1) is
     more than conclusory; (2) is plausible on its face; and (3) is material to the legal issues
     in the appeal. 5 C.F.R. § 1201.4(s). Vague, conclusory, or unsupported allegations,
     such as those that essentially repeat the applicable legal standard, are pro forma and
     insufficient to meet the nonfrivolous standard. See Clark v. U.S. Postal Service,
     123 M.S.P.R. 466, ¶¶ 6‑10 (2016); Fleming v. Department of Labor, 97 M.S.P.R. 341,
     ¶¶ 15‑16 (2004).
                                                                                        5

      grade of his position, such as the appellant, is entitled to a WIGI if his
      performance is at an acceptable level of competence (ALOC), he has completed
      the required waiting period, and he has not received an equivalent increase in pay
      from any cause during that period. 5 U.S.C. § 5335(a); 5 C.F.R. § 531.404. As a
      GS‑13 Step 1 employee, the appellant was required to complete a 52‑week
      waiting period to be eligible for a WIGI in the Supervisory Physical Security
      Specialist    position.     5 U.S.C.    § 5335(a)(1);    5 C.F.R.    §§ 531.404(b),
      531.405(a)(1)(i).   The agency provided evidence that it demoted the appellant
      from the Supervisory Physical Security Specialist position effective June 30,
      2013, less than 52 weeks after it promoted him to that position on July 12, 2015,
      and the appellant did not dispute the accuracy of those dates.          IAF, Tab 6
      at 11-13.    Thus, the undisputed evidence reflects that the appellant was not
      eligible for a WIGI in the Supervisory Physical Security Specialist position.
      See 5 U.S.C. § 5335(a)(1); 5 C.F.R. §§ 531.404(b), 531.405(a)(1)(i).
¶9          Moreover, the administrative judge correctly found that the appellant failed
      to raise a nonfrivolous allegation that the agency denied him a WIGI when it
      placed him in the GS‑12 step 4 Physical Security Specialist position pursuant to
      his demotion. ID at 3‑4. Pursuant to 5 C.F.R. § 531.215(d), when an employee
      promoted to a supervisory or managerial position in the competitive service
      does not satisfactorily complete a probationary period and is returned to a
      position at the lower grade held before the promotion, the agency “must set the
      employee’s payable rate of basic pay upon return to the lower grade as if the
      employee had not been promoted to the supervisory or managerial position . . . .”
      Section 531.215(d) further provides that “time served following the promotion
      may be creditable service towards GS within-grade increases in the lower grade.”
¶10         The agency provided evidence that, as a GS‑12 Physical Security
      Specialist, the appellant received a WIGI from step 2 to step 3, effective April 22,
      2012, and he did not dispute the accuracy of that date.          IAF, Tab 6 at 10.
                                                                                                     6

      Pursuant to applicable law governing waiting periods for WIGIs, the appellant
      would have been eligible to receive a WIGI to a GS‑12 step 4 on or about
      April 22, 2013, and would not have been eligible for another WIGI to step 5 until
      104 weeks thereafter.       5 U.S.C. §§ 5335(a)(1), (2); 5 C.F.R. §§ 531.404(b),
      531.405(a)(1)(i), (ii). Therefore, because the undisputed evidence reflects that
      the agency demoted the appellant to the same grade and step (GS‑12 Step 4) that
      he would have held if he had not been promoted to the Supervisory Physical
      Security Specialist position, and gave him credit for time served in the
      Supervisory   Physical     Security       Specialist     position,     we   agree      with   the
      administrative judge that the appellant failed to raise a nonfrivolous allegation
      that the agency denied him a WIGI. ID at 3‑4.
¶11        On review, as he did below, the appellant contends that the Board has
      jurisdiction over his appeal because the agency failed to notify him of his right to
      seek reconsideration of its denial of his WIGI.              PFR File, Tab 1 at 4‑7; IAF,
      Tab 1 at 5. We find this argument unpersuasive. When an agency determines
      that a WIGI should be withheld because an employee is not performing at an
      ALOC, the employee is entitled to written notification of that determination and
      an opportunity for reconsideration of the determination by the agency under
      regulations prescribed by the Office of Personnel Management.                           5 U.S.C.
      § 5335(c); 5 C.F.R. § 531.409(e). Although the Board’s jurisdiction to review the
      denial of a WIGI generally attaches only after the agency has issued a
      reconsideration decision, see, e.g., Goines v. Merit Systems Protection
      Board, 258 F.3d 1289, 1292‑93 (Fed. Cir. 2001), the Board has found that it also
      has jurisdiction over an appeal absent a reconsideration decision if an agency fails
      to comply with the requirement that it inform an employee of his right to
      reconsideration,    see,   e.g.,   Martinesi       v.   Equal     Employment         Opportunity
      Commission,        24 M.S.P.R.     276,      280        (1984);      Phillips   v.      Veterans
      Administration, 21 M.S.P.R. 409, 412 (1984). Here, however, the appellant failed
                                                                                                7

      to raise a nonfrivolous allegation that the agency denied him a WIGI based on a
      determination that he was not performing at an ALOC, or for any other reason.
      ID at 3‑4. Therefore, he failed to raise a nonfrivolous allegation that the agency
      was obligated to notify him of his right to seek reconsideration of the denial of a
      WIGI. See 5 U.S.C. § 5335(c); 5 C.F.R. § 531.409(e).
¶12         On review, as he did below, the appellant also raises arguments regarding
      his demotion from the Supervisory Physical Security Specialist position. PFR
      File, Tab 1 at 5; IAF, Tab 9 at 2‑3, Tab 11 at 1. Indeed, it appears that many of
      the appellant’s arguments below regarding the alleged denial of a WIGI are, in
      essence, an indirect challenge to his demotion. IAF, Tab 9 at 1‑3; Tab 11 at 1.
      An individual in the competitive service who has been promoted to a supervisory
      position and who does not satisfactorily complete the probationary period for that
      position, like the appellant, “has no appeal right,” unless he nonfrivolously
      alleges that the action “was based on partisan political affiliation or marital
      status.” 6   Burton v. Department of the Air Force, 118 M.S.P.R. 210, ¶ 7
      (2012); 5 C.F.R. § 315.908. The appellant has not alleged, either below or on
      review, that his demotion from the Supervisory Physical Security Specialist
      during his probationary period was based on his partisan political affiliation or
      marital status. IAF, Tabs 1, 4, 9, 11; PFR File, Tab 1. Accordingly, we modify



      6
        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). The administrative judge did not notify the appellant
      how he could establish jurisdiction over his demotion from the Supervisory Physical
      Security Specialist position. ID; IAF, Tab 8. However, the agency’s pleadings below
      provided the requisite notice, affording the appellant an opportunity to meet his burden
      on review. IAF, Tab 6 at 9 n.2, Tab 13 at 7; see Easterling v. U.S. Postal Service,
      110 M.S.P.R. 41, ¶ 11 (2008) (finding that an administrative judge’s failure to provide
      an appellant with proper Burgess notice can be cured if the agency’s pleadings contain
      the notice that was lacking, or if the initial decision puts the appellant on notice of what
      he must do to establish jurisdiction, thus affording him the opportunity to meet his
      jurisdictional burden on review).
                                                                                        8

      the initial decision to find that the Board lacks jurisdiction over the appellant’s
      claims regarding his demotion.
¶13        Finally, the administrative judge correctly found that, absent an otherwise
      appealable action, the Board lacks jurisdiction to review the appellant’s claims of
      discrimination based on race. ID at 4; see Pridgen v. Office of Management and
      Budget, 117 M.S.P.R. 665, ¶ 7 (2012) (finding that the Board does not have
      jurisdiction over discrimination claims absent an otherwise appealable action);
      Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding that prohibited
      personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
      Board jurisdiction), aff’d, 681 F.2d 867 (D.C. Cir. 1982).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 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.
                                                                                     9

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 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.
