The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICK COTTON, DOCKET NUMBER
Appellant, DC-3443-15-0660-I-1
v.
DEPARTMENT OF THE NAVY, DATE: November 16, 2015
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Patrick Cotton, Millersville, Maryland, pro se.
Javier L. Martinez, Esquire, and Lauren Leathers, Washington, D.C., for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Order.
BACKGROUND
¶2 Effective April 19, 2015, the agency’s Naval Systems Engineering
Directorate reassigned the appellant from one division to another within the same
facility. Initial Appeal File (IAF), Tab 1 at 7. His position remained that of a
GS-14 Mechanical Engineer with no change in pay. Id. The Standard Form 50
documenting the appellant’s reassignment indicated that he was reassigned
pursuant to a realignment. Id.
¶3 The appellant filed a Board appeal, alleging that he was reassigned after he
interpreted a Naval Sea Systems Command (NAVSEA) parking policy differently
than senior agency leadership, and committed “an administrative error regarding
contractor parking assignments in the Washington Navy Yard.” Id. at 3, 5. The
administrative judge issued an acknowledgment order directing the appellant to
submit evidence and argument establishing that his appeal was within the Board’s
jurisdiction, but did not inform him what was necessary to establish an appealable
jurisdictional issue. IAF, Tab 2 at 2-3. In response, the appellant reiterated his
argument that his reassignment was not effectuated pursuant to a bona fide
realignment, but was instead an adverse action that removed him from a
leadership position and affected his opportunities for advancement. IAF, Tab 3
at 4-5, Tab 15 at 4. He further alleged that he had identified manpower shortages
in his prior division and that the agency had violated merit systems principles,
committed prohibited personnel practices, and failed to comply with 5 U.S.C.
§ 2302(b)(12). IAF, Tab 3 at 5, Tab 13 at 4-5, Tab 15 at 4.
¶4 After considering responses from the appellant and the agency, the
administrative judge dismissed the appeal for lack of jurisdiction without holding
the requested hearing. IAF, Tab 16, Initial Decision (ID); see IAF, Tab 1 at 2,
Tabs 3, 7, 13-15. He found that the Board lacked jurisdiction over the appellant’s
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reassignment because it did not result in a reduction in grade or pay, and the
appellant did not allege that his “former supervisory position was upgraded after
he was realigned.” ID at 4. The administrative judge further found that the
appellant had not alleged that the agency had reassigned him in retaliation for
protected whistleblowing. 2 ID at 4 n.2.
¶5 The appellant has filed a timely petition for review in which he argues,
among other things, that he suffered a constructive demotion and that the agency
retaliated against him for protected whistleblowing. Petition for Review (PFR)
File, Tab 1 at 4-5. The agency has filed a response, and the appellant has replied.
PFR File, Tabs 4, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). As the administrative judge
correctly noted in the initial decision, a reassignment without a loss of grade and
pay generally is not appealable to the Board as an adverse action under 5 U.S.C.
chapter 75. ID at 4; see 5 U.S.C. §§ 7512(3)-(4), 7513; Loggins v. U.S. Postal
Service, 112 M.S.P.R. 471, ¶ 10 (2009) (finding that, for a reassignment to fall
within the Board’s adverse action jurisdiction under 5 U.S.C. chapter 75, it must
result in a reduction in grade or a reduction in pay). Furthermore, the appellant’s
claims of prohibited personnel practices and violations of the merit systems
principles are not themselves independent sources of Board jurisdiction. IAF,
Tab 13 at 4-5, Tab 15 at 4; PFR File, Tab 1 at 4-6, Tab 6 at 6; see Wren v.
2
In so finding, the administrative judge noted that the appellant had cited 5 U.S.C.
§ 2302(b)(12) and stated that “the section cited refers to protection for whistleblowers.”
ID at 4 n.2. However, section 2302(b)(12) does not refer to protection for
whistleblowers, but instead provides that it is a prohibited personnel practice to “take or
fail to take any other personnel action if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or directly concerning, the merit
system principles contained in [5 U.S.C. § 2301].”
4
Department of the Army, 2 M.S.P.R. 1, 2 (1980) (determining that prohibited
personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶7 There are, however, several possible situations in which the Board may
have jurisdiction to consider a challenge to a reassignment, including a
constructive demotion claim and an individual right of action (IRA) appeal. See
Inman v. Department of Veterans Affairs, 112 M.S.P.R. 280, ¶¶ 8, 14 (2009)
(finding that an appellant was entitled to a jurisdictional hearing in an IRA appeal
where he raised a nonfrivolous allegation that an agency laterally reassigned him
in retaliation for protected whistleblowing); Marcheggiani v. Department of
Defense, 90 M.S.P.R. 212, ¶¶ 7-8 (2001) (explaining that the Board may have
jurisdiction to consider a challenge to a reassignment in the context of a
constructive demotion claim).
The appellant may have been attempting to raise a constructive demotion
claim below.
¶8 The appellant contends on review that his former position was upgraded
after his reassignment. 3 PFR File, Tab 1 at 4. While he does not appear to have
3
For the first time on review, the appellant also alleges that he applied for a lateral
transfer and was not selected, which he contends demonstrates that his reassignment
injured his prospects for employment. PFR File, Tab 1 at 5. In support of this
assertion, he submits documentation that was not included in the record below,
consisting of a GS-14 job posting with the agency for which he alleges that he applied
but was not selected. PFR File, Tab 1 at 5, 8, 14, Tab 6 at 6. As the initial decision
notified the appellant, the Board does not have jurisdiction over a reassignment to a
position at the same grade and pay, even if the new position has fewer advancement
opportunities. ID at 4; see Burrell v. Environmental Protection Agency, 81 M.S.P.R.
427, ¶ 12 (1999). Thus, the job posting that the appellant submits in the first instance
on review is not material to the issue of whether the Board has jurisdiction over his
appeal and does not form a basis for reversing the initial decision. See Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision);
5 C.F.R. § 1201.115(d) (same). For the first time in his reply in support of his petition
for review, the appellant also alleges that his nonselection for the position was the
result of “reprisal.” PFR File, Tab 6 at 6. To the extent that he claims that he was not
5
raised this allegation specifically below, he did contend below that he believed
that the agency “removed [him] from a leadership position and . . . significantly
affected [his] ability for advancement in the federal government.” IAF, Tab 3
at 4. An employee may be deemed to have suffered an appealable constructive
demotion when he is permanently reassigned from a position that is later
reclassified upward due to the issuance of a new classification standard or
correction of a classification error, provided that the employee meets the legal
and qualification requirements for the higher-graded position.
Marcheggiani, 90 M.S.P.R. 212, ¶¶ 7-8; Russell v. Department of the
Navy, 6 M.S.P.R. 698, 711 (1981). Thus, it appears that the appellant may have
been attempting to raise a constructive demotion claim below.
¶9 Neither the administrative judge nor the agency’s submissions provided the
appellant with notice on the jurisdictional requirements of a constructive
demotion claim. Under these circumstances, we remand the appeal to afford the
appellant jurisdictional notice and an opportunity to establish jurisdiction over his
constructive demotion claim.
The appellant must receive explicit notice of how to establish Board jurisdiction
over an IRA appeal and notice of his burden of proof on an affirmative defense of
reprisal for whistleblowing.
¶10 The appellant contended below that he was reassigned after he identified
manpower shortages in his prior division. IAF, Tab 3 at 5. The Board has
jurisdiction over an IRA appeal if the appellant exhausts his administrative
remedies before the Office of Special Counsel (OSC) and makes nonfrivolous
allegations that: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8),
or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
selected for the position in retaliation for protected whistleblowing, the appellant may
file an IRA appeal challenging his nonselection after exhausting his administrative
remedies with the Office of Special Counsel. See 5 U.S.C. § 2302(a)(2)(A)(i)
(including a failure to appoint among the personnel actions covered by the
Whistleblower Protection Enhancement Act of 2012).
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(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Congress has defined
the term “personnel action” broadly in 5 U.S.C. § 2302(a)(2)(A) to include not
only adverse actions found in 5 U.S.C. chapter 75 but also other actions,
including lateral reassignments. See 5 U.S.C. § 2302(a)(2)(A)(iv); see also
Inman, 112 M.S.P.R. 280, ¶¶ 8, 14.
¶11 In contrast to an IRA appeal, if an appellant raises whistleblowing as an
affirmative defense in an adverse action appeal, he is not required to demonstrate
exhaustion of administrative remedies before OSC. See Savage v. Department of
the Army, 122 M.S.P.R. 612, ¶ 52 (2015) (noting the absence of this requirement
in a removal appeal). To prevail on an affirmative defense of whistleblower
reprisal, once the agency proves its adverse action appeal by a preponderance of
the evidence, the appellant must demonstrate by preponderant evidence that he
made a protected disclosure or engaged in protected activity and that the
disclosure or activity was a contributing factor in the adverse action. Shibuya v.
Department of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013); see Alarid v.
Department of the Army, 122 M.S.P.R. 600, ¶ 12 (2015) (recognizing that under
the Whistleblower Protection Enhancement Act of 2012, an appellant may raise
an affirmative defense of whistleblower retaliation based on protected activity
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D)).
¶12 We find that, in light of the liberal pleading standard for pro se appellants,
the administrative judge should have interpreted the appellant’s allegation below
that the agency reassigned him after he disclosed manpower shortages as a
potential claim that the reassignment was in retaliation for protected
whistleblowing. See Burwell v. Department of the Army, 78 M.S.P.R. 645, ¶¶ 2,
7-9 (1998) (finding that an appellant’s allegation that he was suspended after
filing a complaint regarding his position downgrade and that OSC referred him to
7
the Board was sufficient to require the administrative judge to provide
jurisdictional notice regarding an IRA appeal); Walters v. U.S. Postal
Service, 65 M.S.P.R. 115, 119 (1994) (holding that a pro se appellant is not
required to plead issues with the precision of an attorney in a judicial
proceeding). However, based upon our review of the appellant’s submissions
below and on review, it is unclear whether he is attempting to raise an affirmative
defense of reprisal for whistleblowing in his constructive demotion appeal or
pursuing an IRA appeal alleging that the agency reassigned him in retaliation for
whistleblowing, regardless of whether he suffered a constructive demotion. IAF,
Tab 3 at 5; PFR File, Tab 1 at 4-5.
¶13 The administrative judge did not inform the appellant of the elements and
burdens of establishing jurisdiction over an IRA appeal. See Burgess v. Merit
Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Furthermore,
the agency’s pleadings did not cure the administrative judge’s failure to provide
notice of what was necessary to establish jurisdiction over an IRA appeal. IAF,
Tab 2 at 2-3, Tabs 7, 12; ID; see Mapstone v. Department of the
Interior, 106 M.S.P.R. 691, ¶ 9 (2007). Although the agency asserted below that
the appellant “has not provided any evidence showing that he has exhausted his
administrative remedies with the Office of Special Counsel,” IAF, Tab 7 at 6, it
did not provide notice regarding any other jurisdictional elements of an IRA
appeal, id. Furthermore, the record below indicates that the appellant was
confused by the agency’s statement regarding exhaustion. IAF, Tab 8 at 143.
The record contains an email in which the appellant asked agency counsel, “you
state . . . that I have not exhausted my administrative remedies with the Office of
Special Counsel . . . . Please explain what you mean by remedies with your
office.” Id.
¶14 The administrative judge also failed to inform the appellant of his burden of
proof on an affirmative defense of reprisal for whistleblowing. See Tierney v.
Department of Justice, 89 M.S.P.R. 354, ¶5 (2001) (holding that an
8
administrative judge also must fully apprise an appellant of his burden of proof
on an affirmative defense of whistleblowing reprisal); see also Wynn v. U.S.
Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010) (finding that when an appellant
raises an affirmative defense in an appeal by alleging facts that reasonably raise
such an affirmative defense, the administrative judge must address the affirmative
defense in any close of record order or prehearing conference summary
and order).
¶15 On remand, the administrative judge shall inform the appellant of the
burdens and elements of proof for establishing jurisdiction over an IRA appeal,
including the means by which the appellant may demonstrate that he has satisfied
the exhaustion requirement. See Hudson v. Department of Veterans
Affairs, 104 M.S.P.R. 283, ¶¶ 7-8 (2006) (remanding an IRA appeal where the
administrative judge failed to advise the appellant of the jurisdictional
requirements of OSC exhaustion and contributing factor). The administrative
judge also shall inform the appellant of his burden of proof on an affirmative
defense of whistleblower reprisal in an adverse action appeal. See
Tierney, 89 M.S.P.R. 354, ¶ 5.
On remand, the administrative judge shall provide the appellant with notice
regarding election of remedies under 5 U.S.C. § 7121(g) and require the appellant
to elect whether to pursue his claims as a constructive demotion appeal under
5 U.S.C. chapter 75 or as an IRA appeal.
¶16 Because the appellant may be attempting to challenge his reassignment
through both an adverse action appeal under 5 U.S.C. chapter 75 and an IRA
appeal, on remand, the administrative judge also must address the issue of
election of remedies under 5 U.S.C. § 7121(g). Under section 7121(g), an
employee who claims to have suffered whistleblowing reprisal regarding an
action may elect to pursue a remedy through one, and only one, of the following
processes: (1) a direct appeal to the Board under 5 U.S.C. § 7701(g); (2) a
negotiated grievance procedure pursuant to 5 U.S.C. § 7121; or (3) a complaint
following the procedures for seeking corrective action from OSC under 5 U.S.C.
9
§§ 1211-1222, i.e., an OSC complaint, potentially to be followed by an IRA
appeal. 5 U.S.C. § 7121(g); see Savage, 122 M.S.P.R. 612, ¶ 17; Agoranos v.
Department of Justice, 119 M.S.P.R. 498, ¶ 14 (2013). Ordinarily, whichever
remedy is sought first by an aggrieved employee is deemed an election of that
procedure and precludes pursuing the matter in either of the other two forums.
Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12 (2013); see
Agoranos, 119 M.S.P.R. 498, ¶ 14; see also Sherman v. Department of Homeland
Security, 122 M.S.P.R. 644, ¶¶ 14-15 (2015) (finding that an employee’s election
under 5 U.S.C. § 7121(g) is binding regardless of the legal theory under which he
challenges the personnel action at issue).
¶17 However, an employee’s election of remedies under 5 U.S.C. § 7121(g)
will not be binding if it is not knowing and informed. Savage, 122 M.S.P.R. 612,
¶ 18; Edwards, 120 M.S.P.R. 307, ¶ 12. When an agency takes an action without
informing the appellant of his procedural options under section 7121(g) and the
preclusive effect of electing one of those options, any subsequent election by the
appellant is not binding. Edwards, 120 M.S.P.R. 307, ¶ 12. This principle
applies equally to alleged constructive adverse actions, such as the appellant’s
alleged constructive demotion. See Savage, 122 M.S.P.R. 612, ¶ 17.
¶18 The record does not indicate that either the agency or the administrative
judge informed the appellant of the possible preclusive effect of filing an OSC
complaint or an adverse action appeal with the Board. 4 IAF, Tab 1 at 7, Tab 2.
Thus, it does not appear that, to date, the appellant has made a knowing and
voluntary election to challenge his reassignment as either a constructive demotion
adverse action appeal or as an IRA appeal by seeking corrective action before
OSC. See Savage, 122 M.S.P.R. 612, ¶ 18; Edwards, 120 M.S.P.R. 307, ¶ 13. On
remand, the administrative judge shall provide the appellant with notice regarding
election of remedies under 5 U.S.C. § 7121(g) and the options of: (1) having his
4
Furthermore, the record contains no evidence that the appellant independently was
aware of the possible preclusive effect of such an action.
10
claim adjudicated as a constructive demotion under 5 U.S.C. chapter 75, treating
his claim of whistleblower reprisal as an affirmative defense; or (2) having his
claims regarding his reassignment adjudicated as an IRA appeal.
¶19 If the appellant elects to pursue his claims as an alleged constructive
demotion under 5 U.S.C. chapter 75, the administrative judge shall afford the
parties an opportunity to submit evidence and argument on the issue of the
Board’s jurisdiction over such an appeal, and hold a jurisdictional hearing, if
appropriate. If the appellant establishes jurisdiction over his constructive
demotion appeal, the administrative judge shall consider the merits of the claim,
and afford the appellant the opportunity to prove his affirmative defense of
whistleblower reprisal.
¶20 Alternatively, if the appellant elects to pursue his claims regarding his
reassignment as an IRA appeal, the administrative judge shall afford the parties
an opportunity to submit evidence and argument on the issue of the Board’s
jurisdiction over such an appeal, including the requirement that the appellant
demonstrate exhaustion of his OSC remedy. If the appellant establishes
jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his
claim, which he must prove by preponderant evidence. Aquino v. Department of
Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014).
ORDER
¶21 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.