                           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                  THIS ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                              3

     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).
                                                                                            6

      (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.
