                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ANDY L. SMITH,                                  DOCKET NUMBER
                         Appellant,                  DA-0351-13-0595-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: April 14, 2015
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Andy L. Smith, Tyler, Texas, pro se.

           Elaine K. Champi, Esquire, Washington, D.C., for the agency.

           Steven E. Coney, Dallas, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The agency has filed a petition for review of the initial decision, which
     found that it had improperly demoted the appellant without using required
     reduction in force (RIF) procedures.        For the reasons discussed below, we


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     GRANT the agency’s petition for review, REVERSE the initial decision, and
     DISMISS the appeal for lack of jurisdiction.

                                      BACKGROUND
¶2         The events leading up to the filing of this appeal are undisputed.        The
     appellant was employed as a PS-4 Laborer Custodial at the agency’s East Texas
     Processing and Distribution Center (P&DC) in Tyler, Texas. Initial Appeal File
     (IAF), Tab 7 at 51-52.    On May 15, 2013, the agency announced that it was
     closing that facility and that the duty assignments at that facility were being
     abolished.   Id. at 40.   On June 25, 2013, the agency directed the appellant,
     starting July 1, 2013, to report to the Tyler Main Office to board a
     postal-provided van to ride to the Shreveport, Louisiana P&DC to work
     temporary assignments until a permanent position was identified. Id. at 33-34.
     The appellant worked a full-time schedule at the Shreveport P&DC, with
     approximately 4 hours each day traveling to and from the facility and 4 hours
     spent doing custodial work at the facility. IAF, Tab 35, Initial Decision (ID) at 3.
     While performing custodial work at the Shreveport P&DC, the appellant’s official
     position of record remained PS-4 Laborer Custodial at the East Texas P&DC, and
     he was paid as a PS-4 Laborer Custodial, even though that facility had closed. ID
     at 8, 11.
¶3         The dispositive issue in the case is whether the agency was obligated to use
     the RIF procedures set forth in 5 C.F.R. part 351, which are required when an
     agency “releases a competing employee from his or her competitive level by . . .
     demotion, . . . when the release is required because of” certain conditions, such
     as lack of work, shortage of funds, insufficient personnel ceiling, or
     reorganization. 5 C.F.R. § 351.201(a)(2). A “demotion” is defined as a change
     of an employee, while serving continuously within the same agency, to a lower
     grade or to a position with a lower rate of pay. 5 C.F.R. § 210.102(a)(4). In
     concluding that the appellant had been separated from his competitive level by
                                                                                           3

     demotion, the administrative judge found that the appellant: (1) was “released
     from his position” at the East Texas P&DC when that facility was closed and all
     the positions therein abolished; and (2) was assigned only to and only performed
     PS-3 Custodian duties at the Shreveport P&DC and thereby suffered a demotion,
     despite the fact that he was paid as a PS-4 Laborer Custodial.
¶4         In a timely-filed petition for review, the agency contends that the
     administrative judge erred in finding that the appellant was released from his
     PS-4 position at the East Texas P&DC through demotion. Petition for Review
     (PFR) File, Tab 1. 2 The appellant timely responded; he also filed a petition for
     enforcement of the interim relief ordered by the administrative judge. PFR File,
     Tabs 2, 9. 3

                                          ANALYSIS
     The administrative judge erred in finding that the appellant established
     jurisdiction over a RIF appeal.
¶5         The agency argues, among other things, that the administrative judge erred
     in distinguishing this case from Dixon v. U.S. Postal Service, 64 M.S.P.R. 445
     (1994), aff’d sub nom. Scorcia v. U.S. Postal Service, 77 F.3d 503 (Fed. Cir.
     1996) (Table), in which the Board held that the agency was not required to use
     RIF procedures. In Dixon, the Postal Service abolished certain positions as part


     2
       The agency subsequently filed a motion to dismiss the appeal as moot, in which it
     presented evidence that, effective June 14, 2014, the appellant was reassigned to a
     full-time PS-4 Laborer Custodial position at the Longview, Texas Post Office. PFR
     File, Tab 10. Because of our determination that the administrative judge erred in
     findin g that the appellant was released from his competitive level by demotion, we need
     not determine whether the appeal is moot.
     3
       On June 10, 2014, the appellant filed a “Motion for Leave to Add Additional Pleading
     to His Response.” PFR File, Tab 7. The appellant’s motion appears to relate to his
     allegations that the agency representatives violated the law and certain witnesses may
     have provided “incredible testimony” at the hearing. I d. Because we dismiss the
     appeal for lack of jurisdiction, we DENY the appellant’s motion, as the additional
     pleading, and his arguments contained therein, are not material to the outcome of the
     case.
                                                                                       4

     of a nationwide restructuring, and the affected employees were temporarily
     assigned to agency Placement Centers where they were to obtain other positions
     within the agency. Dixon, 64 M.S.P.R. at 447. During this time, their grade and
     pay remained the same, and the agency did not issue any documentation reflecting
     a change in the appellants’ tenure groups.          Id.   Subsequently, some of the
     employees were detailed from the Placement Centers to other positions within the
     agency, still retaining the same pay, grade, and tenure. Id. The Board held that
     the Dixon appellants were not entitled to the substantive protections of part 351
     because a detail by its very nature is temporary and involves no formal
     appointment since the employee continues to be the incumbent of the position
     from which he was detailed.      Id. at 450.   In rejecting the Dixon appellants’
     argument that they were constructively separated from their permanent positions,
     the Board observed that their retention rights had not been denigrated compared
     to other employees because the agency has not determined the retention rights of
     anyone affected by the restructuring. Id. at 451.
¶6        The administrative judge found the instant case distinguishable from Dixon
     in that the record did not indicate that the facility in which the Dixon appellants
     worked had been closed or that they had been detailed to facilities 100 miles
     away. ID at 9-10. She also noted that the Board emphasized in Dixon that the
     agency “intends to permanently reassign the appellants.”           ID at 10.    The
     administrative judge did not explain the legal significance of the East Texas
     P&DC closing and we see no meaningful distinction. The legally relevant point
     in both cases is that the employees’ positions were abolished.        Similarly, the
     administrative judge did not explain why the distance between the East Texas
     P&DC and the Shreveport P&DC was legally significant, and we see no legal
     relevance. As for the agency’s intent to permanently reassign the appellant to
     another facility, that does not distinguish the two cases; here, the agency
                                                                                             5

     unequivocally stated its intent to permanently reassign the appellant to another
     facility. IAF, Tab 7 at 28-30. 4
¶7         The applicability of Dixon was reinforced by a subsequent decision of the
     Board’s reviewing court. Hayes v. U.S. Postal Service, 390 F.3d 1373 (Fed. Cir.
     2004), involved postal employees whose jobs had been abolished because of
     technological advances and were reassigned indefinitely as unassigned regular
     clerks. Hayes, 390 F.3d at 1374-75. The court cited Dixon approvingly for the
     proposition that assignment to a temporary “detail” does not constitute a RIF
     demotion. Id. at 1377. In finding that a RIF demotion had not occurred, the court
     noted that the petitioners had not alleged that the agency informed them that they
     would not be reassigned to a position at the same level; instead, they were
     “merely informed” that their positions were being abolished and given a
     temporary assignment.       Id. at 1378 (quoting Marcino v. U.S. Postal Service,
     344 F.3d 1199, 1204 (Fed. Cir. 2003)).
¶8         Having determined that the appellant was not released from his competitive
     level, we find that it is legally irrelevant whether the duties the appellant
     performed while working at the Shreveport D&PC were more in the nature of a
     PS-3 Custodian or a PS-4 Laborer Custodial. We note, however, that a reduction
     in an employee’s duties and responsibilities, by itself, does not constitute a RIF
     demotion. Hayes, 390 F.3d at 1379. We further note that the agency submitted
     evidence that the duties of the PS-4 Laborer Custodial position include all of the


     4
       In concluding that the appellant’s assignment to the Shreveport P&DC was a
     permanent demotion, the administrative judge ignored the fact that the appellant had
     been detailed to two other locations prior to the issuance of the initial decision: to the
     North Texas P&DC effective December 2, 2013, and subsequently to the Tyler, Texas
     Post Office. IAF, Tab 28 at 5, Tab 22 at 20; PFR File, Tab 4 at 99 (hearing testimony
     of District Complement Coordinator). In addition, as noted above, the agency has
     submitted evidence that it has permanently reassigned the appellant to a PS-4 position
     at the Longview, Texas Post Office. All of these actions belie the administrative
     judge’s conclusion that assigning the appellant duties at the Shreveport P&DC was a
     permanent reassignment rather than a temporary detail.
                                                                                           6

      duties of the PS-3 Custodian position. IAF, Tab 22 at 306-07; PFR File, Tab 4,
      Hearing Transcript at 75, 86-87, 126, 131-34, 143-44.
      The agency complied with its interim relief obligations.
¶9         Having found that the agency had released the appellant from his
      competitive level by demotion, and that it erred in failing to follow the RIF
      procedures set forth in 5 C.F.R. part 351, the administrative judge ordered the
      agency to comply with the required RIF procedures.             ID at 12.   She further
      ordered that, should the agency petition for review of the initial decision, it must
      provide   interim     relief   to   the   appellant   in   accordance   with   5 U.S.C.
      § 7701(b)(2)(A). ID at 12. With its petition for review, the agency provided a
      certification of compliance with the interim relief order, which included a letter
      to the appellant explaining that: it was arguing in its petition for review that the
      administrative judge lacked the authority to order the agency to conduct a RIF;
      the agency had made a determination that it would be unduly disruptive to restore
      him during the interim relief period; and that it had continuously maintained him
      in its personnel/payroll systems as a permanent full-time PS-4/ Laborer Custodial
      in the regular workforce at the East Texas P&DC, and would continue to do so.
      PFR File, Tab 1 at 29-32. The appellant filed a motion to enforce the interim
      relief order, in which he complained that he had not been deemed eligible for
      overtime while detailed to work in Longview and Tyler, Texas. PFR File, Tab 9.
¶10        The Board’s regulations do not provide for petitions for enforcement of
      interim relief orders; such petitions apply only to final Board decisions. 5 C.F.R.
      § 1201.182(a).      The Board’s regulations, however, do allow an appellant to
      challenge an agency’s certification that it has provided interim relief, and the
      Board may dismiss a petition for review if it finds the agency to be in
      noncompliance with its interim relief obligations. 5 C.F.R. § 1201.116(b), (e).
      The Board’s authority in such cases is limited to determining whether the agency
      made an undue disruption determination and whether the appellant is receiving
      appropriate pay and benefits.        McDonald v. Department of Veterans Affairs,
                                                                                  7

86 M.S.P.R. 539, ¶ 7 (2000).       Here, it is undisputed that the agency made an
undue disruption determination and that the appellant has been paid and provided
benefits as a PS-4 Laborer Custodial at all times pertinent to this appeal. We
further note that the Board has held that it cannot demand that an agency conduct
a RIF as a final remedy. See Manescalchi v. U.S. Postal Service, 74 M.S.P.R.
479, 484 (1997). Therefore, it would be improper for us to order the agency to
conduct a RIF as interim relief.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). 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) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,    http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
                                                                                8

Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
