Fedweek Legal

In Scharein v. Merit Systems Protection Board, 2006 WL 2930094 (Fed.Cir. Oct. 2006) (non-precedential), the court, applying well-established case law, discussed the jurisdiction of the Merit Systems Protection Board (MSPB), and reminds of the Board’s limited jurisdiction.


Mr. Scharein was selected to enter the Defense Leadership and Management Program (DLAMP), a training program. As part of the program, Mr. Scharein attended the Air War College (AWC) for one year. While attending the AWC, he received an unfavorable academic rating. As a result of the unfavorable rating, Mr. Scharein was removed from DLAMP and returned him to a different position. After returning, he received a performance appraisal, was denied reinstatement into DLAMP and he did not receive a Contribution Rate Increase (CRI). However, his pay remained at the same level as the previous year. Mr. Scharein appealed to the MSPB which dismissed, for lack of jurisdiction, his appeal regarding his removal from supervisory duties, his disenrollment from the DLAMP, his 2003-2004 performance appraisal, and the denial of a CRI.

On appeal, Mr. Scharein contended, among other things, that the unfavorable appraisal constituted an adverse action and that his position at DLAMP was a permanent position and his reassignment constituted an adverse action. The court found that none of these contentions establish MSPB jurisdiction. The court reiterated that the MSPB has jurisdiction of only those actions made appealable by statute or regulation and that Mr. Scharein’s unfavorable appraisal did not constitute an adverse actions and did not establish jurisdiction.

Mr. Scharein also argued that the denial of CRI is an appealable action; however, the court held it was not. While an employee under the general schedule (GS) system can appeal a denial of a within-grade step increase to the Board, within-grade increases are available only to employees “occupying a permanent position within the scope of the general schedule.” Since Mr. Scharein was not paid under the GS, but rather under a system called “Core Compensation,” he was not eligible for within-grade increases. In addition, the court noted that Mr. Scharein’s position was part of the acquisition demonstration project, which waives employees’ appeal rights for denials of pay increases. Even if a denial of a CRI is equivalent to a denial of a within-grade increase, the court noted, Mr. Scharein has no right to appeal a denial to the Board because that right was waived by the OPM for the demonstration project.

Mr. Scharein also argued that his reassignment from a supervisory position at DLAMP to a non-supervisory position constituted an adverse action. The court noted that the MSPB does not have jurisdiction over reassignments not constituting a reduction in grade or pay, even though the reassignment reduces the employee’s status, duties, or responsibilities. Since Mr. Scharein did not allege a reduction in grade or pay, the Board does not have jurisdiction over his reassignment. Finally, Mr. Scharein’s disenrollment from DLAMP did not constitute a removal, said the court, because his position, although supervisory, was temporary.


This case may be significant because as more employees come under pay for performance and some do not receive periodic pay increases, they may not be eligible to appeal the denial of pay increases to the MSPB.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **


The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to https://www.fedweek.com/pub/index.php.