The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES H. HARTMAN, III, DOCKET NUMBER
Appellant, DE-3443-23-0264-I-1
v.
DEPARTMENT OF DATE: August 27, 2024
TRANSPORTATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James H. Hartman , III , Mesa, Arizona, pro se.
Lindsay M. Nakamura , El Segundo, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the field office for further adjudication in accordance with
this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant has been employed with the Federal Aviation Administration
since 2008, when he was hired as an FV-0343-H Management and Program
Analyst for the Aviation Weather Office in Washington, D.C. Initial Appeal File
(IAF), Tab 1 at 5, 129. In 2014, he accepted his current position as an
FV-0343-G Management Program Analyst for the Quality Control Group in
Pheonix, Arizona, which is a lower-graded position than his former position. Id.
at 5, 130; IAF, Tab 14 at 4. In his Board appeal, he alleged that he accepted the
2014 “demotion” because he was informed by the facility manager that there
would be promotional potential for him at that facility, “but that was not the
case.” IAF, Tab 1 at 5. He contended that he has since been denied advancement
opportunities because of age, race, and sex discrimination. Id. at 5-6.
¶3 The administrative judge notified the appellant that the Board may not have
jurisdiction over his claim, which he construed as a request for pay grade and
salary increase. IAF, Tab 3 at 1. He afforded the appellant an opportunity to
provide evidence and argument that his appeal is within the Board’s jurisdiction,
but he did not provide the appellant with explicit information on what was
required to establish the Board’s jurisdiction over an involuntary or constructive
demotion claim. Id. at 1-3. Both parties responded to the administrative judge’s
jurisdictional order. IAF, Tabs 12, 86, 87. The appellant asserted, among other
things, that he accepted the demotion based on “false indications of promotion
opportunities,” IAF, Tab 87 at 5, and that his demotion and reduction in grade
clearly fell within the purview of the Board’s jurisdiction, id. at 4.
¶4 Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 88, Initial Decision (ID).
He found that the appellant’s use of the term “demotion” was conclusory and pro
forma and thus did not constitute nonfrivolous allegations of Board jurisdiction.
ID at 2 n.3. He further found that, in the absence of an otherwise appealable
3
action, the Board lacks jurisdiction over the appellant’s discrimination claims. ID
at 3.
¶5 The appellant has filed a petition for review, asserting that the
administrative judge did not adequately consider his claim of an “unwilling
demotion.” Petition for Review (PFR) File, Tab 6 at 5. He argues that he was
“subtly coerced/compelled to accept an unwilling demotion based on false
promises of promotion opportunities.” Id. The agency has responded in
opposition to the appellant’s petition for review, contending that the appellant
raised a claim of coerced demotion for the first time on review and is precluded
from doing so absent a showing that the argument was previously unavailable.
PFR File, Tab 9 at 7-8. The appellant has replied to the agency’s response. PFR
File, Tab 10.
ANALYSIS
¶6 An employee’s acceptance of a lower-graded position is generally
considered to be voluntary and not subject to the Board’s jurisdiction. Reed v.
U.S. Postal Service, 99 M.S.P.R. 453, ¶ 12 (2005), aff’d, 198 F. App’x 966 (Fed.
Cir. 2006). However, an appellant may show that such an action was involuntary,
and thus subject to the Board’s jurisdiction, by presenting sufficient evidence to
establish that the action was obtained through duress or coercion or showing that
a reasonable person would have been misled by the agency. Id.; see also
McGarigle v. U.S. Postal Service, 36 M.S.P.R. 610, 615 (1988) (stating that an
appellant’s reassignment could be involuntary if the agency made misleading
statements upon which the employee reasonably relied to his detriment in
requesting the reassignment). A jurisdictional hearing is required only if the
employee makes a nonfrivolous allegation that, if proved, would establish Board
jurisdiction. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed.
Cir. 1985). However, before an appeal may be dismissed for lack of jurisdiction
4
without a hearing, an appellant must be apprised of what he must allege to
establish Board jurisdiction over his appeal. Id. at 643-44.
¶7 Although, here, the appellant did not explicitly use the terms “constructive
demotion” or “involuntary demotion” in his pleadings, he raised allegations of
misleading statements by the agency alluding to an involuntary demotion. IAF,
Tab 1 at 5-6, Tab 87 at 5-6. Furthermore, he reraises and further clarifies his
claim of an “unwilling demotion” based on “coercion” or “false promises” on
review. PFR File, Tab 6 at 5. We note that the appellant is pro se before the
Board and, as such, is not expected to frame issues with the precision of a
common law pleading. See Roche v. U.S. Postal Service, 828 F.2d 1555, 1558
(Fed. Cir. 1987); see also Lewis v. U.S. Postal Service, 82 M.S.P.R. 254, ¶ 5
(1999). Based on his pleadings before the administrative judge, we find that the
appellant was entitled to notice of the requirements for establishing the Board’s
jurisdiction over his alleged involuntary demotion. See Burgess, 758 F.2d 641,
643-44. Because the appellant did not receive proper Burgess notice, nor was this
defect cured by the agency’s pleadings or the initial decision, we must remand the
appeal to afford the appellant an opportunity to establish jurisdiction based on an
adequate jurisdictional notice. See, e.g., Lewis, 82 M.S.P.R. 254, ¶ 11; Milam v.
Department of Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005).
¶8 If the appellant establishes on remand the Board’s jurisdiction over his
alleged involuntary demotion, the appellant will also bear the burden of proof
regarding timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B); see Popham v. U.S. Postal
Service, 50 M.S.P.R. 193, 196-97 (1991) (holding that the existence of Board
5
jurisdiction is the threshold issue in adjudicating an appeal). 2 It appears that the
appellant’s involuntary demotion claim was not timely filed, as he alleged that his
involuntary demotion occurred in July 2014, and he did not file his appeal until
June 6, 2023. IAF, Tab 1 at 1, 5; see 5 C.F.R. § 1201.22(b). However, even if an
appeal is untimely filed, the Board may hear the appeal if the appellant
establishes a good cause for the delay. 5 C.F.R. § 1201.22(c); Higgins v. U.S.
Postal Service, 84 M.S.P.R. 64, ¶ 7 (1999). On remand, if the appellant
establishes the Board’s jurisdiction, the administrative judge should also advise
the appellant of what is required to establish that his appeal was timely filed or
that good cause existed for the delay and shall afford the parties an opportunity to
offer additional evidence and argument concerning these issues. 3 See Tedesco v.
Department of the Air Force, 90 M.S.P.R. 367, ¶ 11 (2001); Higgins, 84 M.S.P.R.
64, ¶ 7 (1999).
2
Although a jurisdictional determination may not be required when the Board, by
assuming arguendo that it has jurisdiction over an appeal, finds that the appeal can be
properly dismissed on timeliness or other grounds, Popham, 50 M.S.P.R. at 196-97,
such an approach may be inappropriate under the circumstances of this case, see
Ginsiorsky v. U.S. Postal Service, 68 M.S.P.R. 548, 550-51 (1995) (explaining that a
timeliness dismissal is not appropriate when the jurisdictional and timeliness issues are
“inextricably intertwined”; that is, if resolution of the timeliness issue depends on
whether the appellant was subjected to an appealable action); see also Gingrich v. U.S.
Postal Service, 67 M.S.P.R. 583, 584 (1995).
3
If the appellant establishes a factual dispute as to whether there is good cause for an
untimely filing, he is entitled to a timeliness hearing. See Braxton v. Department of the
Treasury, 119 M.S.P.R. 157, ¶ 11 (2013).
6
ORDER
¶9 For the reasons discussed above, we remand this appeal to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.