Reduction-in-Force – Demotion : Employees were reassigned after their former positions were abolished. The employees argued that the agency’s action constituted an RIF demotion. The MSPB denied the appeal because the employees’ new positions were the same grade and pay level as their old ones. The Court affirmed the MSPB’s decisions, finding that the employees were not demoted because demotion requires reassignment to a position of lower grade or pay. Hayes v. U.S. Postal Service-Fed.Cir.12/8/2004

Summary: Reduction-in-Force (RIF) - MSPB consolidated the appeals of six employees as the employees made similar allegations that they were demoted by USPS a reduction in force (RIF). The MSPB found that the employees either (1) did not have their positions abolished when they bid to and accepted lower-grade jobs, (2) had their jobs abolished but were never assigned to positions at a lower grade than their former positions, or (3) bid to and accepted lower-grade positions after their positions were abolished but without the agency ever having expressly told them that they would not be assigned to positions at their former grade levels. In none of these instances were the employees subject to a RIF demotion appealable to the MSPB under the applicable regulations and case law. Accordingly, the MSPB held that none of the appeals were within the MSPB's jurisdiction and dismissed each of the appeals. more on the issue from APWU

Previous Decision: Burger v USPS  the board held that "even if the appellants bid to lower-level positions, they did so under circumstances clearly indicating that there were no positions at their current grade levels to which they were entitled under the collective bargaining agreement. In other words, the agency's demoting the appellants to lower-graded positions was the functional equivalent of confirming that there were no positions at their former grade levels to which they were entitled."

 Veteran/Preference Eligibles Issues

1.         The appellants make similar allegations that they were demoted in a reduction in force (RIF). The same law applies to all of these appeals. In view of these similarities, the Board finds that consolidating these appeals will expedite their processing and will not adversely affect the interests of the parties. The Board therefore CONSOLIDATES these cases on its own motion. 5 C.F.R. § 1201.36(a)(1) and (b).

 
2.         In Burger v. U.S. Postal Service, MSPB Docket No. DE-0351-00-0167-B-1, the agency has filed a petition for review of a remand initial decision in which the administrative judge found that the appellants’ assignments constituted RIF actions which could not be sustained. For the following reasons, we GRANT the agency’s petition, REVERSE the remand initial decision, and DISMISS the appeals as outside the Board’s jurisdiction.

 
3.         The agency in Albers v. U.S. Postal Service, MSPB Docket No. CH-0351-02-0145-I-1, has petitioned for review of an initial decision in which the administrative judge found that the appellants had been subjected to RIF actions which could not be sustained. For the reasons stated below, we GRANT the agency’s petition, REVERSE the initial decision, and DISMISS the appeals for lack of jurisdiction.

 
4.         The appeal in Shorter v. U.S. Postal Service, MSPB Docket No. AT-0752-02-0103-I-1,is before the Board on the appellant’s petition for review and the agency’s cross petition for review of the initial decision that found jurisdiction over the alleged RIF action, but dismissed the appeal on timeliness grounds. For the reasons that follow, we DENY the appellant’s petition for review, GRANT the agency’s cross petition for review, REVERSE the initial decision, and DISMISS the appeal for lack of jurisdiction.

 
5.         The appellant in Hayes v. U.S. Postal Service, MSPB Docket No. AT-0351-02-0216-I-1, has filed a petition for review of the initial decision that dismissed his appeal for lack of jurisdiction. We DENY the appellant’s petition for failure to meet the Board’s criteria for review. However, for the reasons that are given below, we REOPEN this appeal on the Board’s own motion and AFFIRM the initial decision, as MODIFIED by this Opinion and Order, still DISMISSING the appeal for lack of jurisdiction.

 
6.         The agency has filed a petition for review of the initial decision in Payne v. U.S. Postal Service, MSPB Docket No. AT-0752-01-0920-I-1, in which the administrative judge concluded that the appellant was demoted by RIF. For the reasons discussed below, we GRANT the petition, REVERSE the initial decision, and DISMISS the appeal for lack of jurisdiction.

 
7.         In Comparato v. U.S. Postal Service, MSPB Docket No. CH-0752-02-0580-I-1,the appellant has petitioned for review of the initial decision that dismissed, on jurisdictional grounds, his appeal of an alleged involuntary reduction in grade. We DENY the appellant’s petition for review for failure to meet the Board’s criteria for review. However, we REOPEN the appeal on the Board’s own motion and AFFIRM the initial decision, as MODIFIED by this Opinion and Order, still DISMISSING the appeal for lack of jurisdiction.

BACKGROUND


 
8.         As noted above, all of the appellants contend that they were affected by appealable RIF demotions. The backgrounds in each of the appeals will be discussed separately. First, however, we will set forth the applicable law.

ANALYSIS


I. The Applicable Law
 
9.         Under the regulations at 5 C.F.R. § 351.201(a)(2), an agency is required to use RIF procedures when it "releases a competing employee from his or her competitive level by furlough for more than 30 days, separation, demotion, or reassignment requiring displacement" when the release is due to, among other things, lack of work or a reorganization. See Myers v. Department of the Army, 87 M.S.P.R. 77, ¶ 4 (2000). The regulation at 5 C.F.R. § 351.901 therefore gives the Board jurisdiction only over cases where the employee has been furloughed for more than 30 days, separated or demoted by RIF. A demotion is an assignment to a position at a lower grade than the position occupied before the RIF. SeeRobinson v. U.S. Postal Service, 63 M.S.P.R. 307, 311, 318-23 (1994).

 
10.         The Board's jurisdiction is not plenary. Rather, it is limited to those matters over which the Board has been given jurisdiction by law, rule or regulation. In deciding these cases, we therefore must strictly adhere to the regulatory bases which give us jurisdiction over RIF actions. See Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).

 
11.         An appellant bears the burden of establishing that his appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). Further, he must prove jurisdiction by a preponderance of the evidence, which is the degree of evidence that a reasonable person would consider sufficient to find that the Board more likely than not has jurisdiction over the appeal. Id. § 1201.56(a)(2), (c)(2).

 
12.         The Board’s jurisdiction in a RIF appeal cannot be defeated by the agency’s mere assertion that the employee voluntarily consented to the action. Brown v. U.S. Postal Service, 58 M.S.P.R. 345, 351-52 (1993). Rather, as the United States Court of Appeals for the Federal Circuit held in Harants v. U.S. Postal Service, 130 F.3d 1466 (Fed. Cir. 1997), "[a]n assignment to a lower-grade position constitutes a RIF demotion even when the employee voluntarily applies for or is offered an assignment to that position, as long as the assignment was made after the agency has informed the employee that his original position had been abolished and that he had not been selected for assignment to a position at his former grade level." Id. at 1469 (emphasis in the original and added).

 
13.         Thus, under Harants, an appellant claiming demotion by RIF must establish, by preponderant evidence, that two things happened. First, he must show that he bid to and accepted a lower-grade position after the agency actually informed him that his original position had in fact been abolished. Second, he must prove that his bid to and acceptance of a lower-grade position occurred after the agency expressly notified him that he would not be assigned to a position at the same grade as the position which was abolished.³

 
14.         We will review the instant appeals in light of these legal principles. We begin with the Burger appeals because several of the appellants in the cases now before us rely on Burger. We therefore take this opportunity to clarify the Burger remand opinion to the extent that it may be unclear regarding the test for determining whether we have jurisdiction over alleged RIF demotions.

   

II. The Burger Appeals

    A. Background of the Burger appeals
 

15.         As of 1993, all twelve of the appellants in the Burger consolidation were employed in level PS-6 positions at the agency’s Omaha General Mail Facility. Burger Appeal File, Docket No. DE-0351-00-0167-I-1 (Burger I-1 File), Tab 9, Subtab 4A (parties’ joint stipulations) at 1-2. Eleven of the appellants were employed as Multi-Purpose Letter Sorting Machine (MPLSM) Clerks, while one appellant was employed as a Review Clerk. Id.

 
16.         The agency began eliminating the MPLSM operation in 1993, and it began eliminating Review Clerk positions in 1998. Id. at 1-2; Subtab 4A at 1-2. At some point during the time period 1993-1998, each of the appellants was placed in a level 5 position, and at some point the grade level at which the agency paid each appellant was reduced. Id. at 2; id., e.g., Tab 1, Appeal Form, Block 12 (describing actions being appealed as including "assignments resulting in reduction in grade"); id., Block 30c (referring to "loss of pay and grade retention"). On February 9, 2000, the appellants filed individual, but essentially identical, appeals alleging that they had been demoted in violation of RIF regulations and the Veterans’ Preference Act of 1944. E.g., id., Block 12 & Attachment at 1.⁴

 
17.         The administrative judge assigned to these cases issued separate, but basically identical, initial decisions dismissing the appeals for lack of Board jurisdiction. E.g., id., Tab 16, Burger Initial Decision (ID). On petition for review, the Board vacated the initial decisions and remanded the appeals for further consideration. In its remand opinion, the Board found that the appellants had made nonfrivolous allegations that they had been demoted by RIF, and that seven of them had also made nonfrivolous allegations that they had been subjected to adverse actions. Burger v. U.S. Postal Service, 88 M.S.P.R. 579, ¶¶ 9-10 (2001).⁵

 
18.         The administrative judge found on remand that, although the seven appellants who had alleged that they had been subjected to adverse actions had failed to substantiate those allegations, all twelve appellants had been subjected to appealable RIF demotions⁶ . E.g., Appeal File, Burger v. U.S. Postal Service, Docket No. DE-0351-00-0167-B-1 (Burger B-1 File), Tab 13, Burger Remand Initial Decision (RID) at 2-3; Appeal File, Dodd v. U.S. Postal Service, Docket No. DE-0351-00-0218-B-1, Tab 2, Dodd RID at 4. The administrative judge found that the actions could not be sustained in light of the agency’s failure to provide the appellants with the substantive and procedural rights to which they were entitled under the RIF regulations. E.g., Burger RID at 4. In its petition for review of the remand initial decisions, the agency argues that the appellants’ assignments do not constitute appealable RIF demotions. Petition for Review File, Docket No. DE-0351-00-0167-B-1, Tab 1, Petition for Review (PFR).⁷

   

    B. Analysis of the Burger appeals

1. The Board’s jurisdiction over the claims of an alleged RIF
 

19.         On petition for review, the agency contends that provisions of a collective bargaining agreement (CBA) have divested the Board of jurisdiction over any RIF actions that may have been effected.⁸  PFR at 12-13. In support of this argument, the agency refers to provisions of negotiated agreements between the agency and certain postal unions, and it quotes one of those sections as providing that "unresolved questions may be submitted by the Union to arbitration under the grievance-arbitration procedure." Id. The agency also cites Bonner v. Merit Systems Protection Board, 781 F.2d 202 (Fed. Cir. 1986), for the proposition that the Board has no jurisdiction to review a RIF action that may be the subject of a grievance under a CBA. Id.⁹

 
20.         As Bonner indicates, section 7121 of Title 5 of the United States Code generally provides that matters covered by a negotiated grievance procedure may not be appealed to the Board. See 5 U.S.C. § 7121(a)(1); Bonner, 781 F.2d at 203. Section 7121, however, does not apply to the U.S. Postal Service. Moore v. U.S. Postal Service, 91 M.S.P.R. 277, ¶ 3 n.1 (2002). A showing that the appellants were able to challenge RIF actions under a negotiated grievance procedure therefore would not preclude a finding of Board jurisdiction over such actions. Accordingly, we need not consider this argument further.

 
21.         The agency also alleges that the appellants failed to prove on remand that they had been subjected to appealable RIF actions. PFR at 14-15. We agree.

 
22.         As stated above, the Board previously found that the appellants had made nonfrivolous allegations that they had been subjected to RIF demotions. This finding was based largely on indications that the appellants were not told, when their positions were abolished, that they would be assigned to other positions at their current grade level, and that, even if the appellants had bid for the lower-level positions to which they were assigned, any such bids would have been submitted under circumstances indicating that there were no positions at their current grade level to which they could be assigned. Burger, 88 M.S.P.R. 579, ¶¶ 6-9. Applying Harants, the Board stated that these circumstances indicated that the appellants’ assignments to any level 5 positions for which they had bid might have been RIF demotions. Id. ¶ 9.

 
23.         The Board’s remand opinion in Burger found that the appellants made a nonfrivolous allegation of being demoted by RIF "although the agency’s notices informing [them] that their positions would be abolished did not explicitly state that there were no positions available for them at their current grade level." Id. (emphasis added). Based on this statement, it appears that some of the appellants in these consolidated cases read Burger as suggesting or holding that a RIF demotion can occur even in the absence of an agency notice expressly notifying the employee that he will not be placed in a position at his former grade level. The court in Harants, however, found that an appealable RIF demotion can take place only if the agency has actually informed the employee that he will not be assigned to a position at his former grade level. The Board is bound by our reviewing court’s precedent. Indeed, the Federal Circuit’s jurisdictional test in Harants makes perfect sense. Thus, a change to a lower-grade position is voluntary unless the agency has notified the employee that he will not be assigned to a position at his former grade level. To the extent the remand opinion in Burger can be read as suggesting otherwise, we hereby clarify it.

 
24.         The agency’s notices to the appellants informed them that their bid positions were being abolished and that new bids would be opened. Burger I-1 File, Tab 9, Subtab 4B. The notices further told the appellants that if they declined to bid on new positions or were unsuccessful in obtaining new bid positions, they would each "become an unassigned regular and subject to assignment to a residual vacancy in accordance with Article 37, Section 3.F.10 of the National Agreement." Id. Section 3.F.10 of Article 37 of the National Agreement states that full-time employees not encumbered in a bid duty assignment "shall be assigned in residual assignments in the same or higher salary level for which the employees meet the minimum qualifications." Id. (emphasis added). The record prior to remand also includes a stipulation by the parties that the agency’s notices informed the appellants that their jobs were being abolished, and that "they would become unassigned regular employees at the PS Level 6 pay level." Id., Tab 9, Subtab 4A.

 
25.         The administrative judge’s remand initial decision indicates that he found RIF demotions based solely on the Board’s finding that the appellants made a nonfrivolous allegation that they had been demoted by RIF. RID at 3 (adopting and incorporating the remand Opinion and Order into the initial decision to find that the appellants had shown that they were affected by an appealable RIF demotion). A nonfrivolous allegation of jurisdiction, however, is not the same as proving facts which would establish the Board’s jurisdiction over an appeal. The administrative judge therefore should have based his remand initial decision on the fully developed record. SeeSpithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (an initial decision must, among other things, identify all material issues of fact and law and summarize all of the evidence). We grant the agency’s petition for review to consider all of the evidence submitted in these appeals.

 
26.         With respect to the specific jurisdictional issue on which the Board remanded these cases, the appellants merely rested on the evidence which had been submitted prior to the remand, stating that "[t]here is no need for further evidence." Burger B-1 File, Tab 8, Response at 2.¹⁰   Unlike the appellants, the agency on remand submitted additional evidence in support of its position that the appellants had not been subjected to appealable RIF demotions. Specifically, it submitted a declaration, signed under penalty of perjury, by an official who was a Labor Relations Specialist in the appellants’ district from 1992 to 1998, and who was involved in phasing out the operations in which the appellants were employed. Burger B-1 File, Tab 6, Ex. 2 at 1. According to that declaration, the normal procedure at the relevant time "was to make the individual concerned an unassigned regular with the same grade and pay." Id. at 2 (emphasis added).

 
27.         The official signing the declaration also expressed his belief that, if the appellants were to be assigned to lower-level positions, the notices issued to them on abolishment of their jobs "would have also advised the employee[s] of their salary protection rights." The written notices issued to the appellants do not mention "salary protection rights." The official concluded from the absence of such information in the notices that the appellants "would have been kept within the same grade and pay status." Id. (emphasis added). This suggests that the appellants were in the group of employees who would be assigned to positions at the same grade as their former positions. E.g., Burger I-1 File, Tab 9, Subtab 4B. The official’s declaration is consistent with the reference in the notices to the CBA provision which guaranteed that the appellants would be assigned to positions at the same or higher grade than their former positions.¹¹

 
28.         The Burger appellants did not prove on remand that the Harants’ test for jurisdiction was met. That is, they did not show that they bid to and accepted grade level 5 positions only after the agency expressly told them that they had not been selected for assignment to positions at their former grade level. Harants, 130 F.3d at 1469; see alsoBrown v. U.S. Postal Service, 58 M.S.P.R. 345, 351 (1993), cited in Harants, 130 F.3d at 1469. In the absence of such notice from the agency, the Board has no jurisdiction over any assignments to lower-grade positions for which the appellants voluntarily bid. See Harants, 130 F.3d at 1469.

   

        2. Jurisdiction over the adverse-action claims
 

29.         The administrative judge found that those appellants who claimed to have been subjected to adverse actions had not substantiated their claims. In making this finding, he referred to his conclusion that the appellants’ assignments to level 5 positions were RIF demotions, and he stated that an action could not be both a RIF action and an adverse action. E.g., Dodd RID at 4.

 
30.         Our finding that the appellants were not demoted by RIF eliminates the basis for the administrative judge’s finding that the appellants could not have been subject to adverse actions. However, despite being on notice that the agency filed a petition for review challenging the administrative judge’s finding of RIF jurisdiction, none of the appellants filed a cross petition for review explaining why, if the Board finds no RIF jurisdiction, there is still adverse-action jurisdiction.

 
31.         Perhaps more important, the appellants submitted no evidence on remand that would support a finding that they had been subjected to adverse actions. In fact, they did not even challenge the agency’s suggestions that they voluntarily bid for level 5 positions because they simply did not want to work as unassigned regulars at the PS-6 level. See, e.g., Burger B-1 File, Tab 6 at 11; Thelen I-1 File, Tab 10 at 3. Thus, assuming that cross petitions for review had been filed by the appellants who alleged that the agency took adverse actions, we would find that they failed to substantiate their allegations. Accordingly, those appellants did not show that the Board has jurisdiction over their appeals under the laws and regulations covering adverse actions.

 

  III. The Albers Appellants

    A. Background of the Albers appeals
 

32.         The Albers appellants were employed as Flat Sorter Machine (FSM) Operators, grade level PS-6, in Cincinnati, Ohio. E.g., Albers Appeal File, Tab 1, Appeal Form, Blocks 14, 26. By notices dated July 19, 2000, at least seven of the eight appellants were notified that FSM operator positions in their facility would be abolished effective August 26, 2000, and that they would be "involuntarily reassigned . . . as . . . unassigned full-time regular clerk[s], PS-06, in the Cincinnati Processing and Distribution Center." E.g., id. (attachments to appeal). While the record in the case of the eighth appellant (Ms. Pettit) does not include a copy of this notice, it shows that she was notified of the future abolishment of her position by notice dated March 14, 2000, and that she was told in that notice that she would "become an unencumbered (unassigned) employee" when her position was abolished unless she successfully bid for a vacant position before then. Pettit Appeal File, Tab 18, Ex. 9.

 
33.         After their positions were abolished, five of the appellants bid for and were assigned to lower-grade positions. E.g., id., Tab 7, Ex. E. The remaining three appellants remained on the rolls as "unassigned full-time regular clerk[s]" following the abolishment of their PS-6 FSM Operator positions. E.g., Oeltman Appeal File, Tab 6, Subtab 1 at 2; id., Subtab 4(c) (salary and placement service history).¹²  The appellants have alleged that, as "unassigned regulars," they would have been or were required to perform lower-level work. E.g., id., Tab 7 (Oeltman opposition to agency motion to dismiss) at 2.

 
34.         The appellants asserted that they had been subjected to RIF demotions in violation of their rights under the RIF regulations and the Veterans’ Preference Act. E.g., Albers File, Tab 1, Appeal Form, Blocks 27, 30b, 31b; id., Tab 4 (appellant’s response to acknowledgment order) at 3. While the appeals were pending, the agency cancelled its abolishment of the appellants’ positions, as well as its actions placing the appellants in "unassigned regular" status, and it filed a motion for dismissal of the appeals as moot. E.g., id., Tabs 17, 22.

 
35.         After holding a hearing, the administrative judge assigned to these appeals issued an initial decision finding that the appellants had been subjected to appealable RIF demotions. Id., Tab 30, Initial Decision at 2. He found further that the appeals were not moot because, despite the agency’s cancellation of its actions, the appellants had not been restored to positions substantially similar in scope and status to their former positions. Id. at 2-3. In addition, he found that the actions could not be sustained because the agency had failed to follow any of the requirements of the RIF regulations. Id. at 2. The agency contends on petition for review that the appellants have not been subjected to RIF demotions, and that, in any event, its cancellation of the actions at issue has made the appeals moot.¹³  Petition for Review (PFR) File, Tab 1.

   

    B. Analysis of the Albers appeals
 

36.         The agency has acknowledged that the appellants’ positions were abolished, and that the appellants were placed in "unassigned regular" positions as a result of its decision to replace the flat sorter machine on which they worked with newer equipment. E.g., Albers File, Tab 22, Declaration of J. Marksbury at 1; id., Tab 25 (agency’s motion for certification of interlocutory appeal) at 2. As stated above, five of the Albers appellants bid for their lower-level positions after being told that their PS-6 FSM Operator positions would be abolished. E.g., Albers Appeal File, Tab 5, Subtab 4(k); id., Tab 7, Exs. E, G. Moreover, the notices by which they were told that their positions were being abolished could be regarded as suggesting that they bid on lower-level positions. The notices that were issued to at least seven of the appellants included statements that the appellants would "receive saved grade" if they successfully bid for lower-level positions, and the agency attached to each notice "a copy of the present bid sheet." E.g., id., Tab 5, Subtab 4(k). A notice issued previously to Ms. Pettit informed her that, if she failed to bid successfully on a vacant position by the time her PS-6 FSM Operator position was abolished, she could be "assigned to any residual vacancy." Pettit Appeal File, Tab 18, Ex. 9.

 
37.         As fully discussed in our earlier analysis of Burger, the court’s holding in Harants applies only where the agency expressly informs the employee that he will not be placed in a position at his former grade level. It does not apply where the agency merely refers to the possibility that the employee may wish to seek assignment to a lower-level position, or where it provides an incentive for requesting or accepting a lower-level position. The five appellants who were assigned to lower-level positions do not allege that the agency expressly informed them that they would not be placed in positions at the PS-6 level. Moreover, the record does not indicate that any such information was provided to them. Instead, it shows that the agency informed at least four of the appellants that they would be "reassigned . . . as . . . unassigned full-time regular clerk[s], PS-06," which were assignments at the grade level of their former positions. See, e.g., Albers Appeal File, Tab 5, Subtab 4(k). In addition, even though the agency informed Ms. Pettit that she would "become an unencumbered (unassigned) employee," that notice did not indicate that she would not receive an assignment at her former grade level. See Pettit Appeal File, Tab 18, Ex. 9.

 
38.         Under these circumstances, we find that the subsequent assignments of these five appellants to the lower-level positions for which they had bid do not constitute appealable RIF demotions. Instead, they constitute voluntary assignments over which the Board lacks jurisdiction under the RIF regulations.¹⁴

 
39.         We also see no credible evidence that the other three appellants were ever assigned to lower-level positions, so as even to be able to allege a demotion. Although these appellants seem to have claimed that their work as "unassigned regulars" was at a level lower than PS-6, e.g., Oeltman File, Tab 11 (prehearing submission) at 1, they remained officially assigned to the positions of "unassigned full-time regular clerk, PS-06" in which they were placed after the abolishment of their positions as FSM Operators, PS-6. For this reason, we find that these appellants failed to show that they have been affected by RIF demotions. See Kukish v. U.S. Postal Service, 68 M.S.P.R. 360, 362-63 (1995) (an employee whose official assignment remained that of his former position had not been subjected to a RIF demotion, even though he had assumed the duties of a lower-level position).

 
40. In light of the record in the Albers consolidation, we find that none of the Albers appellants showed that they were affected by actions within the Board’s RIF jurisdiction. Accordingly, we need not address the agency’s argument that its rescission of its decision to abolish the appellants’ positions, and its rescission of the appellants’ assignments to "unassigned regular" positions, has caused these appeals to be moot.

   

IV. The Shorter Appeal

    A. Background of the Shorter appeal
 

41.         The appellant, a preference-eligible veteran, was advised that her PS-6 position as a Multi-Position Letter Sorter Machine (MPLSM) Distribution Clerk was to be abolished. Initial Appeal File (IAF), Tab 16, Ex. A; IAF, Tab 19. She worked as an MPLSM clerk until use of the MPLSM equipment was discontinued in July of 1996, at which time she became an "unassigned regular" with grade and pay at the PS-6 level. In October of that year she applied for and accepted a PS-4 Mail Processor position with saved grade and pay at the PS-6 level. IAF, Tab 19. Approximately one year thereafter the agency terminated the appellant’s saved grade, for the stated reason of her "failure to apply" for a PS-6 position that had become available. Id., Tab 8, Subtab 4A.

 
42.         Over four years later, the appellant filed this appeal, claiming that she had been demoted by RIF when she accepted the PS-4 position in 1996, and that the agency had failed to apprise her of her appeal rights at that time. Id., Tab 1. The appellant withdrew her request for a hearing. Id., Tab 18. The administrative judge found that the appellant had been subject to a RIF and had wrongly been denied notice of her appeal rights, but that she failed to show good cause for her untimely filing. The administrative judge therefore dismissed the appeal on timeliness grounds. Id., Tab 20.

 
43.         The appellant alleges on petition for review that her appeal should not have been dismissed as untimely filed. Petition for Review File (PRF), Tab 1. The agency agrees with the appellant’s assertion, but argues on cross petition for review that the administrative judge should have dismissed the appeal for lack of jurisdiction. Id., Tab 3.

 

      B. Analysis of the Shorter appeal
 

44.         The "existence of Board jurisdiction is the threshold issue in adjudicating an appeal" and ordinarily should be determined before reaching the issue of timeliness. Popham v. U.S. Postal Service, 50 M.S.P.R. 193, 197-98 (1991). The Board may dispose of an appeal as untimely where the record is fully developed on that issue, and "the Board arguably may have jurisdiction." Id. at 197. For the following reasons, we find that this appeal is clearly beyond the Board’s jurisdiction. Accordingly, we do not address the timeliness matter.

 
45.         As discussed above, the Board’s remand opinion in Burger stated that the Burger appellants had made nonfrivolous allegations that they had been subjected to RIF demotions on the basis that they had bid on lower-level positions "under circumstances clearly indicating that there were no positions at their current grade levels to which they were entitled under the collective bargaining agreement." 88 M.S.P.R. 579, ¶ 9. The administrative judge in Shorter found the situation sufficiently similar to Burger to conclude that Ms. Shorter was demoted by RIF. The agency argues on review that Burger does not control, and that pursuant to a collectively-bargained memorandum of understanding (MOU) the appellant did not have to bid on the PS-4 position in October of 1996, following the July 5, 1996 elimination of her PS-6 position and her having become an "unassigned regular."

 
46.         The August 23, 1996 MOU, which explicitly governed the rights of preference eligibles affected by the elimination of MPLSM Clerk positions, provides in relevant part as follows: "Preference eligibles and non-preference eligibles are not required to bid lower level duty assignments" (§ 3) (emphasis in original); "[t]he provisions of Article 37 [of the national collective bargaining agreement] and local [MOU] that provide for time limits for assigning employees . . . into duty assignments will not apply for purposes of this agreement" (§ 8); "[w]hen filling lower level residual clerk craft duty assignments . . ., unencumbered preference eligible employees will be passed over for the purpose of involuntary assignment to lower level" (§ 13); and "if involuntary reassignments pursuant to [other contractual provisions] are necessary, preference eligible employees will be given priority placement in residual vacancies in the same level and will be passed over when making reassignments to lower level vacancies" (§ 15). IAF, Tab 8, Subtab 4D.¹⁵

 
47.         The agency argued below, as it does on review, that under the MOU a preference eligible MPLSM Clerk such as the appellant was not obligated to bid on a lower-level vacancy, and would not have been involuntarily assigned to a lower-level vacancy. Instead, according to the agency, such an employee would indefinitely remain an unencumbered regular at the same grade and pay as her former position until such time as a vacancy arose at her former grade level. Id., Tab 7 at 2; PRF, Tab 3 at 3.

 
48.         The agency’s argument is supported by the plain language of the MOU. Moreover, the appellant has never disputed the existence of the MOU or the agency’s interpretation of it, nor does she claim in her opposition to the agency’s cross petition for review that the administrative judge erred in finding that she "was not required under the [MOU] to bid on lower duty assignments." IAF, Tab 20 at 5. Rather, the appellant’s only argument is that "she was informed that her pay level would be reduced to a level 4, if she did not bid on reassignment to a level 4 position," and that she therefore bid on the level 4 position "under threat of pay loss." Id., Tab 16 at 3 (copy resubmitted at PRF, Tab 5). This argument is an unsworn assertion made by the appellant’s representative in a pleading, and as such, it is not evidence. See Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995).

 
49.         The August 23, 1996 MOU excerpted above makes the administrative judge’s reliance on Burger misplaced. In Burger, the Board merely concluded that the appellants had made nonfrivolous allegations that they were subjected to appealable RIF demotions following elimination of their positions beginning in 1993. The Burger decision states that the appellants bid on and accepted lower-level assignments "under circumstances clearly indicating that there were no positions at their current grade levels to which they were entitled under the collective bargaining agreement," specifically, Article 37 of the national agreement. 88 M.S.P.R. 579, ¶ 9. As explained above, the Board’s remand decision in Burger appears to have relied on a section of the national agreement that was not implicated by the actions taken in Burger. Moreover, section 8 of the August 23, 1996 MOU, which is the provision at issue in Ms. Shorter’s appeal, specifically provides that "Article 37 . . . time limits for assigning employees . . . into duty assignments will not apply for purposes of this agreement." IAF, Tab 8, Subtab 4D (emphasis added). Thus, the circumstances in Ms. Shorter’s appeal are clearly different from those present in the Burger appeals.¹⁶

 
50.         The appellant says that she is a union official, PRF, Tab 1 at 8, so we would expect her to have known about the MOU. Even if she was not a union official in 1996, like all employees she would be presumed to have been aware of her rights under the MOU at the relevant time. See Gamble v. U.S. Postal Service, 48 M.S.P.R. 228, 231 (1991). Further, the appellant does not claim that she was unaware of the MOU. In addition, even if we assume that the appellant did not know about the MOU when she bid on the PS-4 position in October 1996, this was just 2-1/2 months after she became an unassigned regular. There is no evidence that the appellant reasonably believed that in just 2-1/2 months her time as an unassigned regular had run out and that she had to take a lower-level position. Accord Soler-Minardo v. Department of Defense, 92 M.S.P.R. 100, ¶¶ 7, 10 (2002) (change to lower grade found voluntary where, among other things, the agency did not place unreasonable time constraints on the employee to make a decision), review dismissed, 53 Fed. Appx. 545 (Fed. Cir. 2002).

 
51.         Based on the foregoing, we conclude that the appellant was not demoted by RIF when she bid on and accepted the PS-4 position following elimination of her PS-6 position, because she did these things without ever having been told by the agency that she had not been or would not be selected for a position at the PS-6 level. See Harants, 130 F.3d at 1469. In this connection, it is important to note that the appellant was fully apprised that she bears the burden of proving by preponderant evidence that she was demoted by RIF, she was provided with citations to authorities explaining what a RIF demotion is, and she was given an opportunity to submit evidence to show that she was demoted. IAF, Tab 18 at 2-3.

 
52.         Given the unambiguous provisions of the MOU that a preference eligible whose MPLSM position was eliminated was not required to bid on a lower-level position, the appellant’s unsubstantiated allegations fall far short of establishing by preponderant evidence that she was demoted by RIF.

 

  V. The Hayes Appeal

    A. Background of the Hayes appeal
 

53.         On January 8, 2002, the appellant, a preference eligible, filed an appeal alleging that the agency had abolished his grade-level 5 Flat Sorting Machine (FSM) Operator position and placed him in a position where management could change his hours and days off. Initial Appeal File (IAF), Tab 1. According to the appellant, he was forced to bid on lower-level assignments because of that action. Id. He requested a hearing. Id.

 
54.         With his appeal, the appellant enclosed a December 13, 2000 memorandum from the agency advising him that, in accordance with a recently-signed Memorandum of Understanding (MOU) between local management and the American Postal Workers Union (APWU), effective December 9, 2000, he had become an unencumbered regular Level 5 FSM Operator with a designated schedule. The memorandum further stated that, as a preference eligible, the appellant would retain his former grade and not be required to bid on posted duty assignments at his former wage level unless he chose to bid to a posted duty assignment at a lower wage level. Id. In response to the administrative judge’s jurisdictional order, id. at Tab 2, the appellant cited to the Board’s opinion in Burger v. U.S. Postal Service, 88 M.S.P.R. 579 (2001), repeating his claim that his decision to bid on lower-level positions was not voluntary since he was informed that, unless he did so, he would be forced to remain in an unassigned position with less job security, less opportunity for advancement, and less pay, id. at Tab 4.

 
55.         In its motion to dismiss, the agency argued that the appellant’s placement as an unassigned regular was not a matter within the Board’s jurisdiction because it was not accompanied by a reduction in grade or pay. Id. at Tab 6. The agency further asserted that the appellant’s "contemporaneous (to this appeal)" January 12, 2002 reduction in grade due to his bid to a Level 4 Mail Processor slot also was not a matter within the Board’s jurisdiction. Id.

 
56.         The administrative judge granted the agency’s motion, and, in an initial decision based on the written record, dismissed the appeal for lack of jurisdiction. The administrative judge found that, at the time the appellant filed his appeal, he was a Level 5 FSM Operator; that, although he may have performed the duties of a lower-graded position, he remained under the same position description as before; and that, unlike the situation in Burger, there was no indication that his current assignment involved a permanent position change or a reduction in grade or pay. ID at 3. Acknowledging that, after the appellant filed his appeal, he successfully bid to the lower-graded position of Level 4 Mail Processor, the administrative judge considered, but rejected, the appellant’s claim that the bid was involuntary. Id. at 3-4. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction. In view of this disposition, the administrative judge did not address the timeliness of the appeal. Id. at 4 n.3. The appellant has asked the Board to review the administrative judge’s decision. Petition for Review File, Tab 1.

   

    B. Analysis of the Hayes appeal
 

57.         The allegations in the appellant’s petition for review concern two actions. The first action occurred on December 9, 2000, when the appellant became an unassigned regular. We deny, for failure to meet the Board’s criteria for review, that portion of the appellant’s petition for review in which he argues that the administrative judge erred in finding that he failed to make a nonfrivolous allegation of Board jurisdiction as to that action. The administrative judge correctly found that, at the time the appellant filed his appeal, he occupied the position of Level 5 FSM Operator, and that, even though he may have performed the duties of a lower-graded position, he did not allege, nor did the record reflect, that the agency assigned him to a position graded lower than his former position. In this regard, the administrative judge properly found that the appellant did not raise a nonfrivolous allegation that he suffered a RIF demotion when he was made a Level 5 unassigned regular. SeeRobinson, 63 M.S.P.R. at 318-20 (the issue of whether a demotion has occurred is to be resolved with reference to the relative grades or pay level); see also Kukish, 68 M.S.P.R. at 363 (detailing an employee to lower-grade duties does not constitute an appealable RIF demotion as long as the employee remains officially assigned to his former, higher-grade position).

 
58.         The second action the appellant addresses in his petition for review is the one that occurred on January 12, 2002, when he successfully bid to a Level 4 Mail Processor job. The administrative judge reasoned that the appellant had a choice either to wait for the agency to assign him to some other position or to bid to one, even at a lower grade, and that, in choosing the latter option, the appellant made a voluntary decision. ID at 3-4. The appellant argues on petition for review, as he did below, that under the Board’s remand decision in Burger, he suffered an appealable RIF demotion when he successfully bid to the Level 4 Mail Processor position. IAF, Tab 7; PFR File, Tab 1. We reopen this appeal to further address this claim.

 
59.         In our above analysis of both the Burger and the Albers consolidations, we clarified the Board’s remand opinion in Burger to say, consistent with Harants, that a RIF demotion can take place only when an assignment to a lower-graded position occurs after the agency actually tells the appellant that his position has been abolished and that he has not been selected for assignment to a position at his former grade level. The agency argues that, even if Burger can be read as the appellant reads it, this case is distinguishable from Burger because of an April 2, 2001 nationally-applicable MOU reached between the agency and the APWU that supplemented the earlier-referenced local MOU. IAF, Tab 6, Attachment 1.

 
60.         The April 2, 2001 MOU provides that no preference-eligible FSM Operator whose bid position is abolished will be involuntarily placed into a lower-graded position. Rather, the MOU states that preference eligibles are entitled to "same level" placement into available jobs, even if those jobs are made available by the forced reduction of non-preference eligibles. Id. §§ A.4.d.,e.; B.1.b.5.,6.; B.2.e.4.-7.; C.5.a.,b. The preamble to the April 2, 2001 MOU provides that "if a conflict arises between this MOU and Article 12 or 37 of the National Agreement, this MOU will be followed, unless subsequent changes are mutually agreed to by the parties." Id., Tab 6, Attachment 1.

 
61.         The agency contended below, as it does on review, that, under the April 2, 2001 MOU, a preference-eligible FSM Operator such as the appellant was not obligated to bid to a lower-level vacancy, and would not have been involuntarily assigned to a lower-level vacancy. Instead, such an employee would indefinitely remain an unencumbered regular in a position with the same grade and pay as his former position until such time as a vacancy arose at his former grade level. Id., Tab 6; PFR File, Tab 3. The agency avers that, even though the appellant received the benefit of this contractual protection against forced demotion, he chose to voluntarily bid to a Level 4 Mail Processor position, effective January 12, 2002, and, therefore, did not make a nonfrivolous allegation that he suffered a RIF demotion when he bid.

 
62.         The agency’s argument is supported by the plain language of the MOU. The appellant has not challenged the existence of the MOU or the agency’s interpretation of it. Instead, he claims only that he "was informed that unless he bid on lower level positions, he would be forced to remain on an unassigned position with less job security, less opportunity for advancement, and less pay." IAF, Tab 4. This allegation is merely an unsworn assertion by the appellant’s representative in a pleading. It therefore is not evidence. Hendricks, 69 M.S.P.R. at 168.

 
63.         The appellant does not claim that he was unaware of the April 2, 2001 MOU. In any event, like all employees, he would be presumed to have been aware of his rights under the MOU at the relevant time. See Gamble, 48 M.S.P.R. at 231.

 
64.         In view of the record, we find that the appellant failed to make a nonfrivolous allegation that he suffered a RIF demotion when he bid to and accepted a PS-4 position following elimination of his Level 5 position, because he did so without ever being told by the agency that he would not be placed in a Level 5 position. The appellant therefore has not established the Board’s jurisdiction over his appeal.

   

VI. The Payne appeal

    A. Background of the Payne appeal
 

65.         The agency advised the appellant, a preference eligible, that his PS-6 position as a Multi-Position Letter Sorter Machine (MPLSM) Operator was to be abolished on September 13, 1997. It further advised him that he had successfully bid on a PS-5 position as a Distribution Clerk, and that, effective on that same day, he would be placed in the position with saved grade and pay at the PS-6 level. On March 14, 1998, the agency ended the appellant’s saved grade because he had failed to bid or apply for all of the positions in his former wage level that had become available. Initial Appeal File (IAF), Tab 4, Agency Response and Motion to Dismiss (Response) at 1-3; Subtabs 4A-4B, 4D-4F.

 
66.         Over three years later, the appellant filed this appeal, contesting his reduction in grade and pay and claiming that he had recently discovered that he was entitled to grade and pay protection. He requested a hearing. Id., Tab 1.

 
67.         The administrative judge assigned to this case issued an initial decision finding that the appeal was "timely" because the appellant was not provided with notice of appeal rights. Initial Decision at 1 n.1. The administrative judge did not hold a hearing upon finding that the appellant had been demoted by RIF without the benefit of procedural due process, and that the appellant had not raised any affirmative defenses in his appeal. Id. at 2-4 & n.2. On petition for review, the agency argues that the administrative judge should have dismissed the appeal for lack of jurisdiction. Petition for Review File, Tab 1.

 

      B. Analysis of the Payne appeal
 

68.         The agency argues that, pursuant to a collectively-bargained memorandum of understanding (MOU), the appellant did not have to bid on the PS-5 position when his PS-6 position was eliminated, but instead could have remained as an unencumbered PS-6 employee. PFR at 6-7; IAF, Tab 4, Response at 4-6. We find it unnecessary to refer to the MOU to decide this case, but rather look to the court’s decision in Harants.

 
69.         As explained above, the court in Harants stated that an employee-initiated request for a lower-graded position constitutes a RIF demotion only where, after the employee’s job is abolished, the agency expressly informs him that he will not be placed in a position at his former grade level. Our analysis in the Albers consolidation explains that the Harants standard for a RIF demotion is not met where the agency merely refers to the possibility that the employee may wish to seek assignment to a lower-level position, or where it provides an incentive for requesting or accepting a lower-level position. Here, the appellant has not even argued that the agency told him at any time that his grade and pay level would be reduced to a level 5 if he did not bid on reassignment to a level 5 position.

 
70.         The appellant did not make any allegation, nonfrivolous or otherwise, that he bid on and accepted the lower-graded PS-5 position after being told by the agency that he would not be selected for a position at the PS-6 level. See Harants, 130 F.3d at 1469. In that connection, the agency’s response and motion to dismiss the appeal fully apprised the appellant of the jurisdictional issues in this case. IAF, Tab 4, Response at 3-8. Thus, the administrative judge’s failure to provide a jurisdictional notice did not prejudice the appellant’s substantive rights. See, e.g., Collins v. Department of Justice, 70 M.S.P.R. 334, 338 (1996). Moreover, because the appellant failed to make a nonfrivolous allegation of jurisdiction, he is not entitled to a hearing. See, e.g., Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994).

 
71.         In conclusion, we find that the appellant failed make any allegations which, if proven, would show that the agency demoted him by RIF.¹⁷  His appeal therefore is not within the Board’s jurisdiction.

   

VII. The Comparato Appeal

    A. Background of the Comparato appeal
 

72.         The appellant was a Level 6 Multiposition Letter Sorter Machine (MPLSM) Clerk. The record shows that, in 1996, the agency undertook a nationwide effort to eliminate MPLSM operations in order to move mail processing to predominantly automated processes. Initial Appeal File (IAF), Tab 9, Subtab 4n. A number of plants, including the Youngstown facility at which the appellant was employed, were transitioning to fully-automated operations. This transition involved getting rid of all of the MPLSM equipment and eventually "reverting" or abolishing the positions associated with them. On August 7, 1996, all the MPLSM Clerk positions at the Youngstown plant were abolished. Id., Tab 9, Subtabs 4o and 4p. Prior to that time, the appellant had successfully bid to a Level 5 Distribution Clerk position. Id., Tab 9, Subtabs 4q and 4r.

 
73.         In his June 17, 2002, appeal, the appellant alleged that he had been "forced," on May 24, 1996, to bid to the lower-graded position in order to retain his schedule and days off which he deemed "best for [him] and [his] family." Id., Tab 1. He acknowledged that a Level 6 position had been available to him but that he did not accept it because it required additional training that he feared he might not pass, it had different days off, and his hands were bothering him after 12 years on the LSM. He stated that after he successfully bid to the Level 5 job and then failed to seek assignment to a Level 6 job, he lost his saved grade, effective March 15, 1997, consistent with Article 4.3 of the National Agreement. The appellant waived a hearing, id., and did not, following receipt of the Board’s acknowledgment order, id. at Tab 2, thereafter timely request one.¹⁸

 
74.         The agency filed two motions to dismiss, one based on timeliness, id., Tab 6, and the other based on jurisdiction, id., Tab 9. In the latter motion, the agency argued that the appellant’s decision to bid on the Level 5 position was voluntary, that the agency neither misled nor coerced him, and that he suffered no adverse action. Id. The administrative judge afforded the appellant an additional opportunity to demonstrate the involuntariness of his bid to the lower-graded position. Id., Tab 11. In response, the appellant argued that preference-eligible employees, like he, were not advised that they could remain in their Level 6 positions indefinitely, and that the agency demonstrated an "Improper RIF" over which the Board has jurisdiction under its decision in "Berger" (presumably Burger v. U.S. Postal Service, 88 M.S.P.R. 579 (2001)). Id., Tab 12. The appellant alleged that he was not aware that if he did not bid to the Level 5 position, he would have remained in a Level 6 assignment indefinitely. Id., Tab 14.

 
75.         In her initial decision, the administrative judge found that the appellant’s decision to bid to the Level 5 position was voluntary, and that it was not rendered otherwise because of agency misinformation. Specifically, she found that the appellant: (1) did not show that he requested information about what would happen to him if he chose not to bid on the lower-grade position; (2) did not establish that the agency knew the answer to that question at the pertinent time and had a duty to tell him; or (3) did not show that any information provided by the agency was incorrect. Initial Decision at 2-3. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction, without addressing the timeliness of the appeal. Id. at 4 & n.1.

 
76.         In his petition for review, the appellant argues that he should be entitled to saved grade indefinitely. He asserts that the administrative judge did not consider the pleadings he submitted. He also reiterates his claim that the agency violated his RIF rights and effected an adverse action against him. Petition for Review File, Tab 1.

 

      B. Analysis of the Comparato appeal
 

77.         We discern no error in the administrative judge’s finding that the appellant failed to establish Board jurisdiction over his appeal as an adverse action. The appellant has not shown that the agency failed to give him information necessary to his decision to bid to the lower-graded position or that he was deceived or misled by any erroneous statements by the agency. Cf. Covington v. Department of Health & Human Services, 750 F.2d 937, 942 (Fed. Cir. 1984) (removals or retirements based on misinformation are involuntary). Moreover, the reasons proffered by the appellant for accepting the Level 5 position were personal to him and, as such, are insufficient to prove that his acceptance of that position constituted an involuntary adverse action. See, e.g., Pappacoda v. U.S. Postal Service, 69 M.S.P.R. 12, 16-17 (1995) (the appellant’s belief that his family responsibilities required him to remain in his current location did not prove that his acceptance of a lower-graded position was involuntary). We reopen this appeal, however, to address the other allegation the appellant raised below, that is, his claim that the agency’s action constituted an appealable RIF demotion. IAF, Tabs 12 and 14.

 
78.         The appellant argues that, prior to the eventual abolishment of the MPLSM operation, the agency did not notify preference-eligible employees in the MPLSM section that, if they remained in the Level 6 positions to which the agency would assign them, they would retain their grade indefinitely. Id., Tab 14. In this regard, we perceive the appellant to be referring to particular provisions of the collectively-bargained August 23, 1996 Memorandum of Understanding (MOU) which was expressly intended to govern the rights of preference eligibles affected by the elimination of MPLSM positions. Id., Tab 9, Subtabs 4h and 4n. The relevant provisions of that MOU are quoted in our analysis of the Shorter appeal. See supra ¶ 47.

 
79.         The appellant’s argument is misplaced because, at the time he bid to the Level 5 position, the agency and the union had not yet entered into the MOU. Thus, the provisions upon which he relies, and of which he claims the agency had a duty to advise him, were not in effect when the appellant decided to bid to a Level 5 job. Nor does the Board’s holding in Burger, as clarified above, otherwise support the appellant’s position that he has suffered a RIF demotion.

 
80.         At the time the appellant bid to the Level 5 position, his position had not been abolished. IAF, Tab 9, Subtabs 4g and 4k. Thus, the first condition set forth in Harants for a RIF demotion had not been met at the time that the appellant chose to bid on and accept the Level 5 position.

 
81.         Further, there is no evidence showing that, even if the appellant’s position had been abolished, the agency informed him that he would not be placed in a position at his former grade level. In fact, the record is devoid of any notice issued by the agency specifically to the appellant explaining what would happen to him if and when his position was abolished. See, e.g., IAF, Tab 9, Subtab 4k. The second condition set forth in Harants for a RIF demotion also is not present.

 
82.         In sum, the appellant has not established the Board’s jurisdiction over this action either as an adverse action or as a RIF demotion. Because we have concluded that his initial assignment to the Level 5 position was not appealable, we do not consider the propriety of his later loss of saved grade, which is not within the Board’s jurisdiction under any law, rule or regulation. See 5 C.F.R. § 1201.3.

 

  VIII. Conclusion
 

83.         The appellants in these consolidated cases either (1) did not have their positions abolished when they bid to and accepted lower-grade jobs, (2) had their jobs abolished but were never assigned to positions at a lower grade than their former positions, or (3) bid to and accepted lower-grade positions after their positions were abolished but without the agency ever having expressly told them that they would not be assigned to positions at their former grade levels. In none of these instances were the appellants subject to a RIF demotion appealable to the Board under the applicable regulations and case law. Accordingly, none of these appeals is within the Board’s jurisdiction.

 

ORDER




84.         For the reasons given above, all of these appeals are dismissed for lack of jurisdiction. This is the final decision of the Merit Systems Protection Board in these appeals. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).

        You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address:

The court must receive your request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

        If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read this law as well as review the Board’s regulations and other related material at our web site, http://www.mspb.gov.
 

¹  The names and docket numbers of the other appeals in the Burger group of cases are listed in the attached Appendix A.

²  The names and docket numbers of the other appeals in the Albers group of cases are listed in the attached Appendix B.

³  In the portion of Harants quoted above, the court stated that where these two things occur and the employee is assigned to a lower-grade position, there is a RIF demotion "even when the employee voluntarily applies for . . . that position." 130 F.3d at 1469 (emphasis added). We read that statement as meaning that an employee’s assignment to a lower-grade position cannot be voluntary, even though it appears to be so, if his bid to and acceptance of the lower-grade position was made after the agency abolished his former position and after the agency expressly told him that he was not selected for a position at his former grade level. To read the court’s statement in any another way would mean that an employee’s acceptance of a lower-grade position would be a RIF demotion no matter the circumstances and no matter how voluntary. Such an interpretation would give no effect to the two conditions which the court stated had to take place before there could be a finding of a RIF demotion. This reading of Harants is confirmed by the Federal Circuit’s decision in Knight v. Department of Defense, No. 02-3368 (June 19, 2003).

According to the court in Knight, the record showed that "the agency lowered Knight’s grade from GS-11 to GS-5," with a commensurate cut in pay. Id. at 3. Applying a regulation which is not at issue in these cases, 5 C.F.R. § 351.201(b), the court stated that the agency offered Ms. Knight a lower-grade position and told her that it would separate her by RIF if she declined the offer. Id. at 7-8. Under the facts as the Knight court construed them to be, the two-part Harants test was met, namely, the agency had abolished Ms. Knight’s position and it had expressly informed her that she would not be assigned to a position at her former grade level by virtue of its statement to her that she would be separated by RIF. Thus, Knight’s acceptance of the lower-grade job was within the Board’s jurisdiction as a RIF demotion despite her alleged "voluntary" application for the lower-grade position. Id. at 8.

⁴  The appellants raised claims of sex and race discrimination in their appeals. E.g., Burger I-1 File, Tab 1, Attachment at 1. On remand, they withdrew these claims. Appeal File, Burger v. U.S. Postal Service, DE-0351-00-0167-B-1 (Burger B-1 File), Tab 8 at 1.

⁵  The Board also instructed the administrative judge to determine on remand whether any of the appellants was raising a claim under the Veterans Employment Opportunities Act of 1998. Burger, 88 M.S.P.R. 579, ¶ 12. Only one of the appellants indicated on remand that he was raising such a claim, and the administrative judge indicated that the matter was not subject to review because it had not been the subject of a complaint filed with the Department of Labor. Burger B-1 File, Tab 10 at 1; Thelen Remand Initial Decision at 4-5. This appellant has not challenged the administrative judge’s disposition of the claim, and we therefore do not address it here.

⁶  The Board noted in its prior decision on these appeals that the appellants had agreed to forego the hearing they previously had requested, but it stated that the administrative judge could, in his discretion, hold a hearing on remand if the appellants renewed their request for such a proceeding. Burger, 88 M.S.P.R. 579, ¶ 13 n.3. On remand, the appellants indicated that they did not wish to have a hearing. Burger B-1 File, Tab 4 at 1.

⁷  The agency also argues that the administrative judge erred in declining to address its claim that the appeals were untimely filed. PFR at 5-8. In light of our finding on the jurisdictional issue, we need not address this argument.

⁸  The Board’s jurisdiction over RIF appeals filed by employees of the U.S. Postal Service also is limited to appeals filed by preference eligibles. a Postal Service employee who is not a preference eligible may not appeal, either under adverse action laws and regulations or under the RIF regulations, his assignment to a lower-grade position during a reorganization. Marcoux v. U.S. Postal Service, 63 M.S.P.R. 373, 380 (1994). The appellants have asserted without contradiction that they are preference eligibles. E.g., Burger I-1 File, Tab 1, Appeal Form, Block 17.

⁹  In addition, the agency cites Monk v. Department of the Navy, 68 M.S.P.R. 560, 562-64 (1995). PFR at 13. That case, however, is not relevant to the present appeals. The cited part of Monk concerns a CBA provision that required the agency to negotiate with the union regarding the filling of vacancies during a RIF. Monk, 68 M.S.P.R. at 562-63. It does not concern any jurisdictional issue.

¹⁰  The only evidence the appellants presented on remand consists of documents related to their seniority and preference eligibility, and to positions and assignments for which they apparently believe they did not receive adequate consideration. Burger B-1 File, Tab 10, Attachments A, B, C; cf. Burger B-1 File, Tab 5 (document describing relief to which appellants believed they were entitled). Such evidence might be relevant to the merits of a RIF appeal, but it does not pertain to the jurisdictional question.

¹¹  The Board’s remand opinion indicates that the written notices received by the appellants referred to a provision of the CBA that permitted assignments to lower-grade positions with "rate ‘protection.’" Burger, 88 M.S.P.R. 579, ¶ 9. The notices, however, make no mention of Section 37.3.F.11 of the CBA, which governs "rate protection." Burger I-1 File, Tab 9, Subtab 4D.

¹²  One of these three appellants was assigned to a "limited duty" assignment on or about October 15, 2001. Doherty Appeal File, Tab 9, Declaration of J. Justice at 1-2. This assignment was temporary and was taken as a result of that appellant’s on-the-job injury. Id.

¹³  Each of the appellants claims to be a preference eligible. E.g., Albers File, Tab 1, Appeal Form, Block 17. Although the agency questioned these claims below, the administrative judge ruled in the appellants’ favor, and the agency does not appear to object to this ruling. Id., Tabs 10, 11.

¹⁴  The appellants alleged below that their decision to bid on lower-level positions "was based on duress, intimidation and coercion," and they seem to have argued that the actions therefore would constitute adverse actions if they did not constitute RIF demotions. E.g., Albers File, Tab 4 at 3-4. In support of their claim that the bids were involuntary, they assert that, in the absence of such bids, each appellant "would be forced to remain on an unassigned position with less job security, less opportunity for advancement, and less pay." E.g., id., Tab 4 at 4. The fact that an employee must choose between unpleasant alternatives, however, does not render the employee’s selection of one of those alternatives involuntary. Soler-Minardo v. Department of Defense, 92 M.S.P.R. 100, ¶ 5, review dismissed, 53 Fed. Appx. 545 (Fed. Cir. 2002). The appellants accordingly have failed to make a nonfrivolous allegation that the Board has jurisdiction over these cases under adverse action law and regulations.

¹⁵  Indeed, according to the agency a preference eligible could accept assignment to a lower-level vacancy and continue to receive saved grade and pay so long as he or she bid on any subsequent vacancy at his or her former level. IAF, Tab 7 at 2. It appears that the appellant was afforded saved grade and pay after accepting the PS-4 position, and lost her saved grade when she did not bid on a subsequent vacancy at the PS-6 level. Because we conclude that the appellant’s initial assignment to the PS-4 position was not appealable, we do not consider the propriety of the later loss of saved grade, which is not appealable to the Board under any law, rule or regulation. 5 C.F.R. § 1201.3.

¹⁶  The Burger decision does not mention the August 23, 1996 MOU, although it must be noted that the Burger remand decision was not based on a fully-developed record. Furthermore, it appears that at least some actions in Burger took place before the August 23, 1996 MOU was negotiated, and that some of the appellants in Burger may not have been in the MPLSM positions covered by the MOU. These are additional reasons why the remand opinion in Burger decision does not control the outcome here.

¹⁷  According to the agency, a preference eligible could accept assignment to a lower-level vacancy and continue to receive saved grade and pay so long as he bid on any subsequent vacancy at his former level. IAF, Tab 4, Response at 2. The appellant was afforded saved grade and pay after accepting the PS-5 position, and lost his saved grade only after he failed to bid on a subsequent vacancy at the PS-6 level. Because we conclude that the appellant’s initial assignment to the PS-5 position was not appealable, we do not consider the propriety of the later loss of saved grade, which is not appealable to the Board under any law, rule or regulation. See 5 C.F.R. § 1201.3.

^{18  The appellant’s newly-designated representative requested a hearing after the time afforded him to do so had lapsed. IAF, Tab 7. The AJ denied the request. Id., Tab 11. On petition for review, the appellant has not challenged that ruling}

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