Shik v. Merit Systems Protection Board
662 F. App'x 919
Fed. Cir.2016Background
- Vitaly Shik, a GS-13 Supervisory Mechanical Engineer, was temporarily promoted to a GS-14 Supervisory Commodity Management Specialist from Jan 13, 2013 to May 13, 2013.
- After the temporary promotion ended, Shik returned to his GS-13 position but later alleged he continued to perform GS-14 duties while being paid at GS-13.
- In 2015 Shik appealed to the Merit Systems Protection Board (MSPB), asserting entitlement to GS-14 pay and alternatively asserting a constructive demotion theory.
- The MSPB issued an order to show cause on jurisdiction; Shik responded asserting constructive demotion and pay/ classification claims.
- The MSPB dismissed for lack of jurisdiction: (1) temporary promotion termination is not appealable, (2) classification disputes are outside MSPB appellate jurisdiction, and (3) Shik failed to nonfrivolously allege a constructive demotion (no reclassification or grading change alleged).
- Shik appealed to the Federal Circuit, which affirmed the MSPB dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction to award GS-14 pay for duties performed while appointed to GS-13 | Shik: performed GS-14 duties after temporary promotion ended and thus is entitled to GS-14 pay | MSPB: employee only entitled to pay of position appointed to; Testan bars pay claims absent appointment | Court: No jurisdiction; Testan precludes such pay claim when employee not appointed to higher position |
| Whether MSPB has appellate jurisdiction over classification claims | Shik: his GS-13 position is misclassified given duties performed | MSPB: classification/pay grade challenges are for OPM audits, not MSPB appellate jurisdiction | Court: No jurisdiction; classification disputes lie outside MSPB appellate jurisdiction |
| Whether Shik nonfrivolously alleged a constructive demotion | Shik: constructive demotion theory (performed higher-graded duties) | MSPB: constructive demotion requires reassignment due to new standard or corrected classification error and meeting promotion requirements; Shik alleged none | Court: Held Shik failed to plead elements of constructive demotion; jurisdiction not established |
| Whether overall dismissal was proper (standard of review) | Shik: (implicit) Board erred in dismissing | MSPB: dismissal for lack of jurisdiction proper under applicable law | Court: Affirmed MSPB; reviewed jurisdiction de novo and found dismissal appropriate |
Key Cases Cited
- United States v. Testan, 424 U.S. 392 (1976) (employee entitled only to salary of the position to which appointed)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (standards for dismissal where federal question is insubstantial)
- Oneida Indian Nation of N.Y. v. Cty. of Oneida, 414 U.S. 661 (1974) (insubstantial federal claim standard)
- Walker v. Dep’t of the Navy, 106 F.3d 1582 (Fed. Cir. 1997) (elements required to prove constructive demotion)
- Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288 (Fed. Cir. 1985) (MSPB lacks appellate jurisdiction over position classification issues)