Lawrence Bros. v. Merit Sytems Protection Board ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAWRENCE BROTHERS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF THE ARMY,
Intervenor.
______________________
2012-3180
______________________
Appeal from the Merit Systems Protection Board in
No. SF3151110724-I-1.
______________________
Decided: January 15, 2013
______________________
LAWRENCE BROTHERS, of Petersburg, Virginia, pro se.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
2 LAWRENCE BROTHERS v. MSPB
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
SHELLEY D. WEGER, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for intervenor. With her on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and CLAUDIA
BURKE, Assistant Director, Of counsel was MICHAEL
JAMES CARLSON, U.S. Army Litigation Division, of Fort
Belvoir, Virginia.
______________________
Before NEWMAN, SCHALL, and WALLACH, Circuit Judges.
PER CURIAM.
Lawrence Brothers appeals from the decision of the
Merit System Protection Board (the “Board”) dismissing
his appeal for lack of jurisdiction. 1 Brothers v. Dep’t of the
Army, No. SF-3151-11-0724-I-1 (M.S.P.B. Jun. 21, 2012)
(“Final Decision”). We affirm.
BACKGROUND
On June 6, 2010, Mr. Brothers was promoted from a
Heavy Mobile Equipment Mechanic (WG-5803-10) at Fort
Lee, Virginia, to an Automotive Mechanic Supervisor
(WS-5823-10) at Camp Red Cloud, Korea, subject to the
successful completion of a one-year probationary period
ending June 6, 2011. Prior to his promotion Mr. Brothers
1 An administrative judge (“AJ”) dismissed Mr.
Brothers’s appeal for lack of jurisdiction. Brothers v. Dep’t
of the Army, No. SF-3151-11-0724-I-1 (M.S.P.B. Nov. 7,
2011) (“Initial Decision”). The full Board denied his peti-
tion for review and adopted the initial decision of the AJ
as the Board’s final decision. Both decisions will be
referred to as the decision of the Board.
LAWRENCE BROTHERS v. MSPB 3
had signed a return rights agreement, dated May 10,
2010, which stated:
I understand that in exercising my return
rights, I shall be placed in the position which
I held immediately before my assignment
overseas, if such position exists. If such posi-
tion does not exist, I shall be placed in a po-
sition of equal grade and in the same
geographic area in accordance with the pro-
cedures specified in 10 U.S.C. §1586, section c.
Respondent’s App’x. 49. On May 24, 2011, the Army
issued a memorandum granting approval “to immediately
curtail” Mr. Brothers’s overseas tour for not successfully
completing his probationary period. Respondent’s App’x.
2. Mr. Brothers exercised his return rights, requesting a
report date of July 31, 2011. He continued in his supervi-
sory position at Camp Red Cloud until July 31, 2011,
when he returned to his non-supervisory position at Fort
Lee, Virginia.
On July 17, 2011, Mr. Brothers filed an appeal with
the Board arguing that he had completed his probationary
period as a supervisor and was demoted to a non-
supervisory position without due process. Initially, the
Board advised Mr. Brothers that it may not have jurisdic-
tion over an appeal by an employee who did not satisfac-
torily complete his probationary period. In response, Mr.
Brothers claimed that, based on his earning statements
and forms, he remained in his supervisory position for
more than one year and he was demoted without due
process. The Army responded that the Board lacked
jurisdiction over Mr. Brothers’s appeal because his demo-
tion was voluntary and thus did not constitute an adverse
action subject to the Board’s review. The Army argued
that Mr. Brothers voluntarily exercised his return rights,
agreeing to resume the position he held before his over-
seas assignment. See 5 C.F.R. § 1201.3. The AJ issued an
4 LAWRENCE BROTHERS v. MSPB
order to show cause to establish that his demotion was
within the Board’s jurisdiction, but Mr. Brothers did not
file a response. The AJ dismissed the appeal for lack of
jurisdiction, finding that Mr. Brothers “failed to present
any evidence that his exercise of his return rights was not
. . . voluntary.” Initial Decision at 5.
Mr. Brothers petitioned to the full Board for review,
arguing for the first time that he did not voluntarily
exercise his return rights, but did so only to avoid being
separated. The Board denied the petition for review
because there was no new, previously unavailable evi-
dence, and the AJ made no error affecting the outcome of
the case. In particular, the Board found that it did not
need to address Mr. Brothers’s voluntariness argument
because it had not been raised before the AJ. However,
the Board addressed the argument, stating that choosing
between two unpleasant alternatives does not render an
action involuntary. Thus, the Board concluded that Mr.
Brothers’s appeal was properly dismissed for lack of
jurisdiction. Mr. Brothers filed a timely petition for
review to this court. We have jurisdiction pursuant to 28
U.S.C. §1295(a)(9).
DISCUSSION
The scope of our review in an appeal from the
Board is limited. We must affirm the Board’s decision
unless we find it to be “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2006). This
court reviews the Board’s determinations of jurisdiction
de novo while underlying findings of fact are reviewed for
substantial evidence. Parrott v. Merit Sys. Protection Bd.,
519 F.3d 1328, 1334 (Fed. Cir. 2008). Under the substan-
tial evidence standard, this court reverses the Board’s
decision only “if it is not supported by such relevant
LAWRENCE BROTHERS v. MSPB 5
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Haebe v. Dep’t of Justice, 288
F.3d 1288, 1298 (Fed. Cir. 2002) (internal quotation
omitted).
Mr. Brothers bears the burden of proving by a pre-
ponderance of the evidence that the Board possesses
jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i).
The Board possesses jurisdiction over appeals of an invol-
untary reduction in grade or pay but not over voluntary
actions. See 5 U.S.C. § 7512; Garcia v. Dep’t of Homeland
Sec., 437 F.3d 1322, 1328-29 (Fed. Cir. 2006) (en banc).
This court has recognized that in some circumstances
seemingly voluntary actions may be considered adverse
actions. Id. at 1328. The Board “possesses jurisdiction
over an appeal filed by an employee . . . if the employee
proves, by a preponderance of the evidence, that [his or
her action] was involuntary and thus tantamount to [a
forced enumerated adverse action].” Id. at 1329 (quoting
Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir.
2001)) (alterations in original). The Board determined
that Mr. Brothers was not subject to an adverse employ-
ment action, but rather was voluntarily demoted. The
Board determined that Mr. Brothers failed to provide any
evidence or make a non-frivolous allegation that his
exercise of his return rights was involuntary. See
Coradeschi v. Dep’t of Homeland Sec., 439 F.3d 1329, 1332
(Fed. Cir. 2006) (petitioners must make non-frivolous
allegations to establish that the Board’s exercise of juris-
diction is proper).
On appeal, Mr. Brothers contends that the Board
failed to consider that he was demoted after completion of
his probationary period without due process as set forth
in either 5 U.S.C. § 7513 or 5 U.S.C. § 4303. These stat-
utes provide procedures that an agency must follow when
imposing an adverse action on an employee. The due
process procedures of 5 U.S.C. § 7513 and 5 U.S.C. § 4303,
6 LAWRENCE BROTHERS v. MSPB
however, do not apply to voluntary personnel actions.
Garcia, 437 F.3d at 1328-29. Therefore, the operative
question is not whether Mr. Brothers had completed his
probationary period and therefore was an employee with
adverse action rights, but rather, whether he voluntarily
requested to exercise his return rights. The Board rea-
soned that “although an action initiated by an employee
in response to a threatened involuntary personnel action
is considered involuntary if the employee shows that the
agency knew or believed that the threatened action could
not be substantiated, the appellant has made no such
showing here.” Final Decision at 2. Moreover, the Board
determined that Mr. Brothers had failed to show that the
action was taken under duress or in reliance upon misin-
formation. Id. at 3.
In his supplemental brief, Mr. Brothers contends
that because he was presented with a memorandum
curtailing his overseas tour, he was forced to either exer-
cise his return rights, “register for Priority Placement[,] or
risk being separated.” Supplemental Br. at 7. However,
even if Mr. Brothers was required to elect between demo-
tion and removal, that choice does not render his decision
involuntary. Cf. Terban v. Dep’t of Energy, 216 F.3d 1021,
1026 (Fed. Cir. 2000) (“[A] choice is not involuntary
simply because an employee is faced with an inherently
unpleasant situation or his choice is limited to two un-
pleasant alternatives.”); Schultz v. U.S. Navy, 810 F.2d
1133, 1136 (Fed. Cir. 1987) (“[W]here an employee is faced
merely with the unpleasant alternatives of resigning or
being subject to removal for cause, such limited choices do
not make the resulting resignation an involuntary act.”)
As a result, substantial evidence supports the Board’s
determination that Mr. Brothers voluntarily exercised his
return rights. See Garcia, 437 F.3d at 1332. Accordingly,
Mr. Brothers’s demotion was not an adverse action ap-
pealable to the Board. 5 C.F.R. § 1201.3.
LAWRENCE BROTHERS v. MSPB 7
CONCLUSION
For the foregoing reasons, we affirm the final deci-
sion of the Board that it lacked jurisdiction over Mr.
Brothers’s appeal.
AFFIRMED
No costs.