A. The Board has "only that jurisdiction conferred upon it by Congress." See Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1426 (Fed. Cir. 1984); Thomas v. United States, 709 F.2d 48, 49 (Fed. Cir. 1983). Accordingly, the Board has authority to hear appeals only from the types of actions specifically enumerated by law, rule, or regulation. 5 U.S.C. § 7701(a) (1982); see Rose v. Department of Health and Human Services, 721 F.2d 355, 356 (Fed. Cir. 1983).
"[A]llegations of a reassignment without change of grade or pay do not provide a basis for [Board] jurisdiction." Carley v. Dep't of the Army, 413 F.3d 1354, 1357 (Fed. Cir. 2005) (quoting Manning v. Merit Sys. Prot. Bd., 742 F.2d 1424, 1427 (Fed. Cir. 1984)). III.
We have held as a general proposition that reassignment or transfer, absent an underlying action over which the Board has jurisdiction, does not provide the Board with jurisdiction.See Brewer v. Am. Battle Monuments Comm'n, 779 F.2d 663, 664 (Fed. Cir. 1985); Manning v. Merit Sys. Prot. Bd., 742 F.2d 1424, 1427 (Fed. Cir. 1984); Thomas v. United States, 709 F.2d 48, 50 (Fed. Cir. 1983). This court has been clear: "[A]llegations of a reassignment without change of grade or pay do not provide a basis for MSPB jurisdiction."
There is no statutory authority requiring the MSPB to hold a hearing on the threshold issue of jurisdiction. Manning v. Merit Sys. Protection Bd., 742 F.2d 1424, 1427 (Fed. Cir. 1984). In Manning, however, this court noted that a "case may arise where the MSPB should hold an evidentiary hearing on jurisdiction."
However, the Board is not required to hold a hearing when facts giving rise to jurisdiction are not properly alleged, even though, as here, its existence may be asserted. Rose v. Department of Health and Human Servs., 721 F.2d 355, 357 (Fed. Cir. 1983) (no statutory right to a hearing on jurisdiction under similar statute defining MSPB jurisdiction); accord Manning v. Merit Sys. Protection Bd., 742 F.2d 1424, 1427-28 (Fed. Cir. 1984) (right to hearing applies "only after jurisdiction has been properly invoked"). This court did note in Manning, however, that the Board may hold a hearing if non-frivolous jurisdictional allegations are made and cannot be decided on written submissions alone.
Such an allegation can, we agree with the agency, be disposed of summarily on a documentary record in appropriate cases. See Manning v. Merit Systems Protection Board, 742 F.2d 1424 (Fed. Cir. 1984). But, if the alleged facts are sufficient to support a prima facie case of involuntariness, the issue can not be summarily determined adversely; the petitioner is entitled to an evidentiary hearing on the issue, as discussed in Manning, 742 F.2d at 1428:
Accordingly, Carey has failed to carry his burden to establish the jurisdiction of the board. See, e.g., Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985); Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1427 (Fed. Cir. 1984). His appeal as to the conduct of HHS and OPM was correctly dismissed.
Recently, in Davis v. Billington, 51 F.Supp.3d 97, 108–09, 2014 WL 2882679, at *5 (D.D.C. June 25, 2014), another Judge on this Court engaged in this necessary analysis, in accordance with Webster and Elgin, and found that the CSRA does not meet the heightened showing and allowed judicial review of the plaintiff's constitutional claim. The defendant also argues that United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) and Manning v. MSPB, 742 F.2d 1424 (Fed.Cir.1984), foreclose the plaintiff's claim but both of these cases are inapposite. In Fausto, 484 U.S. at 455, 108 S.Ct. 668, the Supreme Court found that the CSRA's exclusion of a class of employees from Chapter 75 of the CSRA, precluded the respondent from bringing a statutory, not, as here, a constitutional, challenge.
To the contrary, in Briggs v. MSPB, 331 F.3d 1307, 1312–1313 (2003), the Federal Circuit concluded that it could determine the constitutionality of a statute upon which an employee's removal was based, notwithstanding the MSPB's professed lack of authority to decide the question. See Schmittling v. Department of Army, 219 F.3d 1332, 1336 (C.A.Fed.2000) (remanding for MSPB to determine if employee suffered a prohibited personnel action within the scope of its jurisdiction); Perez v. MSPB, 931 F.2d 853, 855 (C.A.Fed.1991) (action against employee was not suspension within MSPB's jurisdiction); Manning v. MSPB, 742 F.2d 1424, 1425–1427 (C.A.Fed.1984) (reassignment of employee was not an adverse action within MSPB's jurisdiction); Rosano v. Department of Navy, 699 F.2d 1315 (C.A.Fed.1983) (refusal to prorate employee's health insurance premiums was not an adverse action within MSPB's jurisdiction). It is not unusual for an appellate court reviewing the decision of an administrative agency to consider a constitutional challenge to a federal statute that the agency concluded it lacked authority to decide.
See 28 U.S.C. § 636(b)(1)(A)–(B); United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). See Schmittling v. Department of Army, 219 F.3d 1332, 1336 (C.A.Fed.2000) (remanding for MSPB to determine if employee suffered a prohibited personnel action within the scope of its jurisdiction); Perez v. MSPB, 931 F.2d 853, 855 (C.A.Fed.1991) (action against employee was not suspension within MSPB's jurisdiction); Manning v. MSPB, 742 F.2d 1424, 1425–1427 (C.A.Fed.1984) (reassignment of employee was not an adverse action within MSPB's jurisdiction); Rosano v. Department of Navy, 699 F.2d 1315 (C.A.Fed.1983) (refusal to prorate employee's health insurance premiums was not an adverse action within MSPB's jurisdiction). It is not unusual for an appellate court reviewing the decision of an administrative agency to consider a constitutional challenge to a federal statute that the agency concluded it lacked authority to decide.