                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RONALD COGAN,                                   DOCKET NUMBER
                 Appellant,                          CH-0752-14-0197-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 6, 2014
                   Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Ronald Cogan, Canton, Ohio, pro se.

           James E. Campion, Jr., Esquire, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal of his reduction in grade for lack of jurisdiction. For the
     reasons discussed below, we GRANT the appellant’s petition for review,



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     VACATE the initial decision, and REMAND the case to the regional office for
     further adjudication in accordance with this Order.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant, a preference-eligible veteran, worked as a Building
     Equipment Mechanic, PS-9, at the agency’s Processing and Distribution Facility
     in Canton, Ohio.      Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 16.             In
     September 2013, the appellant transferred to the position of Building
     Maintenance Custodian at the agency’s Post Office in Brunswick, Ohio, with
     saved grade and the same rate of pay. IAF, Tab 7 at 15. The transfer was due to
     the agency’s Area Mail Processing consolidation.             Id. at 15, 41-43.      The
     appellant initiated a Board appeal challenging his placement, alleging a
     reduction in pay or grade and failure to restore/reemploy/reinstate or improper
     restoration/reemployment/reinstatement. IAF, Tab 1 at 3. The administrative
     judge issued an acknowledgment order directing the appellant to file evidence
     and argument to show that the Board had jurisdiction over the appeal.               IAF,
     Tab 2 at 2. The appellant responded to the order and alleged the agency had
     engaged in an improper reduction in force (RIF).            IAF, Tab 4 at 3-4.      The
     administrative judge then issued a show cause order directing the appellant to
     again provide evidence and argument to show that the Board had jurisdiction
     over the appeal. IAF, Tab 10 at 2. The appellant responded to the order and
     argued that he had been reduced in grade because the new position was a level
     five when he had previously been a level nine. 2 IAF, Tab 11 at 5.
¶3         The administrative judge issued an initial decision that dismissed the appeal
     for lack of jurisdiction without holding the requested hearing.           IAF, Tab 14,


     2
       The appellant appears to have mistakenly referenced the position as a level four in his
     response. The position description submitted by the appellant and the appellant’s
     petition for review both refer to the position as being a level five. IAF, Tab 11 at 6-8;
     Petition for Review (PFR) File, Tab 1 at 4. For the sake of consistency, we will rely on
     the designation in the position description.
                                                                                     3

     Initial Decision (ID) at 1, 3. She found that the appellant had not been reduced
     in pay or grade because the agency had provided him with both saved pay and
     saved grade. ID at 3. She also found that, because the appellant did not suffer a
     reduction in pay or grade, the Board lacked jurisdiction over his reassignment
     appeal. ID at 2-3. The appellant has filed a timely petition for review. PFR
     File, Tab 1. The agency has responded in opposition to the appellant’s petition
     for review. PFR File, Tabs 3 and 5.
     The appeal must be remanded to provide the appellant with notice of how he can
     establish jurisdiction over an alleged RIF action.
¶4         The Board does not have jurisdiction over all matters involving a federal
     employee that are allegedly unfair or incorrect.       Miller v. Department of
     Homeland Security, 111 M.S.P.R. 325, ¶ 14 (2009), aff’d, 361 F. App’x 134
     (Fed. Cir. 2010). The Board’s jurisdiction is not plenary; it 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). The
     appellant bears the burden of showing that the Board has jurisdiction over his
     appeal. 5 C.F.R. § 1201.56(a)(2)(i).
¶5        In response to the administrative judge’s acknowledgment order, the
     appellant alleged that the reassignment was an improper RIF assignment under
     the collective bargaining agreement (CBA) between the agency and the
     American Postal Workers Union. IAF, Tab 4 at 3-4. Under these circumstances,
     the administrative judge should have advised the appellant of how to establish
     Board jurisdiction over a RIF appeal. When the Board’s jurisdiction is in doubt,
     an appellant must receive explicit information on what is required to establish an
     appealable   jurisdictional   issue.   Alvarez   v   Department    of   Homeland
     Security, 112 M.S.P.R. 434, ¶ 9 (2009) (citing Burgess v. Merit Systems
     Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985)).
¶6         A RIF is an administrative procedure by which agencies eliminate jobs for
     certain listed reasons, including lack of work or reorganization, and release
                                                                                           4

     employees from their competitive levels by furlough of more than 30 days,
     separation, demotion, or reassignment requiring displacement.                  5 C.F.R.
     § 351.201(a)(2); Burger v. U.S. Postal Service, 93 M.S.P.R. 582, ¶ 9 (2003),
     aff’d, 390 F.3d 1373 (Fed. Cir. 2004). The Postal Service must follow the RIF
     regulations set out in 5 C.F.R. part 351 when it releases a preference-eligible
     employee from his original position to a lower-grade position for a reason
     covered by the RIF regulations. 3 Buckheit v. U.S. Postal Service, 107 M.S.P.R.
     52, ¶ 11, n.5 (2007); Brown v. U.S. Postal Service, 58 M.S.P.R. 345, 347-48
     (1993). Even placement of an employee in an indefinite saved pay and saved
     grade status will require compliance with the RIF regulations if the new position
     is at a lower-grade level. Adams v. U.S. Postal Service, 77 M.S.P.R. 368, 370
     (1998).
¶7         Here, the appellant has alleged that he was subject to a RIF. IAF, Tab 4
     at 3-4. Thus, to be entitled to a jurisdictional hearing over his RIF claim, the
     appellant must make a nonfrivolous allegation that he was subjected to an
     appealable RIF in the form of a demotion, separation, or furlough for more than
     30 days. Harrell v U.S. Postal Service, 112 M.S.P.R. 492, ¶ 11 (2009); Adams v.
     Department of Defense, 96 M.S.P.R. 325, ¶ 9 (2004); 5 C.F.R. § 351.901.
     Further, the appellant must show that his reassignment was involuntary. 4


     3
       The parties agree that the appellant is a preference-eligible employee. IAF, Tab 1
     at 1, Tab 7 at 4.
     4
       The agency alleges that the appellant’s reassignment was voluntary because it
     occurred after he was reassured that he would not be involuntarily reassigned to a
     lower-level position. IAF, Tab 13 at 4. However, the Postal Service (PS) Form 50
     documenting the transfer reflected an involuntary reassignment. IAF, Tab 7 at 4, 15.
     An appellant claiming an involuntary demotion by RIF must establish, by preponderant
     evidence, that two things happened. Burger, 93 M.S.P.R. 582, ¶ 13. 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. Id. 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. Id.
                                                                                       5

     Burger, 93 M.S.P.R. 582, ¶ 13.       On remand, the administrative judge should
     advise the appellant of his jurisdictional burden regarding a RIF appeal and
     provide him the opportunity to submit evidence and argument on this issue.
     The appeal must be remanded for a determination of whether the appellant
     waived his Board appeal rights in his reassignment letter.
¶8        The agency argued that the appellant waived his Board appeal rights. IAF,
     Tab 13 at 4-5.     The agency submitted a copy of the letter, titled “Veteran
     Preference Waiver Letter,” that states that, as “a preference eligible employee”
     and in accordance with the CBA, he could only be assigned into vacancies at the
     same level as his former position.        The letter also includes the following
     statement:
                  Prior to voluntarily signing this form, I hereby state that I have
                  read, and completely understand the conditions set forth in this
                  letter. I am mentally and physically fit so as to be able to
                  understand the terms and conditions of this letter. In addition,
                  I understand that I am freely waiving my rights to Merit
                  [Systems] Protection Board for any claims resulting from my
                  position being abolished; and my being placed into a lower
                  level position was based on my personal preference of choice.
                  I freely sign this letter of selection without reservation, and
                  recognize that this selection is being made without duress, or
                  coercion on the part of anyone.

     Id. at 7. Although it is not clear, it appears the appellant may have signed this
     letter to get a preferential bid on an assignment. The administrative judge did
     not address this letter in her decision or advise the appellant that he may have
     waived his Board appeal rights, and how he could challenge such a waiver.
¶9        The Board has acknowledged that an employee can waive his right to appeal
     in certain circumstances, most often in a settlement agreement.           Cooper v.
     Department of Veterans Affairs, 117 M.S.P.R. 611, ¶ 6 (2012), aff’d, 515 F.
     App’x 897 (Fed. Cir. 2013).       The Board will consider an agreement reached
     outside of Board proceedings to determine its effect on the Board appeal and any
     waiver of Board appeal rights. See Lee v. U.S. Postal Service, 111 M.S.P.R. 551,
                                                                                   6

  ¶ 4 (2009) (settlement agreement reached to resolve equal employment
  opportunity complaint waived appellant’s right to bring appeal over same matters
  to the Board), aff’d, 367 F. App’x 137 (2010). When an individual is already
  employed by the agency and had the right to appeal to the Board, he must receive
  bargained-for consideration from the agency for the waiver of appeal rights to be
  a   valid,     enforceable     contract.    Thompson   v.   Department     of   the
  Treasury, 100 M.S.P.R. 545, ¶ 9 (2005) (citing Hughes v. Social Security
  Administration, 99 M.S.P.R. 67, ¶ 7 (2005)); see generally Blum v. United
  States, 120 Ct. Cl. 232 (1951) (the court reviewed whether it was appropriate for
  an employee who, in order to avoid resigning, agreed to separate from the agency
  pursuant to a RIF and thereby waive his rights under the Veterans’ Preference
  Act).
¶10       An appellant may challenge the enforceability of a waiver of Board appeal
  rights.    Lee, 111 M.S.P.R. 551, ¶ 4.       The waiver of appeal rights will be
  enforceable if its terms are comprehensive, freely made, and fair, and the
  execution of the waiver did not result from agency duress or bad faith.         Id.
  Because the administrative judge failed to adjudicate the agency’s claim of
  waiver, this issue must be remanded. The administrative judge must provide the
  appellant with notice on how he may challenge the enforceability of a waiver of
  Board appeal rights.         On remand, the parties should address not only the
  enforceability of the waiver, but also the issue of what consideration, if any, the
  appellant received for his waiver.         If the appellant makes a nonfrivolous
  allegation that the waiver is invalid or unenforceable, then he is entitled to a
  jurisdictional hearing on this issue.
  The administrative judge properly found that the appellant did not suffer an
  appealable chapter 75 adverse action.
¶11       The administrative judge found that the appellant had not suffered a
  reduction in pay or grade when he took the new position with retained grade and
  no loss of pay.      ID at 3.     Therefore, she concluded that the Board lacked
                                                                                    7

  jurisdiction over the appeal. ID at 3. The appellant argues on review that he was
  subjected to a reduction in grade because he was involuntarily reassigned to a
  lower-level position. PFR File, Tab 1 at 4.
¶12    The Board generally has jurisdiction to review an appeal of a reduction in
  grade   or      pay.    Simmons    v.   Department     of   Housing     &     Urban
  Development, 120 M.S.P.R. 489, ¶ 5 (2014); see 5 U.S.C. § 7512(3)-(4). The
  term grade is defined as “a level of classification under a position classification
  system.” 5 U.S.C. § 7511(a)(3). The Board has previously found that it does not
  have jurisdiction over appeals when an employee is reassigned with retained
  grade. Pascarella v. Consumer Product Safety Commission, 13 M.S.P.R. 48, 49
  (1982). Here, the appellant’s PS Form 50 reflects that his new position is subject
  to saved grade, and he retained the same grade and step as his prior position.
  IAF, Tab 7 at 15-16. The appellant argues that he has been reduced to a grade
  five position from a grade nine position, but the PS Form 50 that reflects no
  reduction in grade occurred.    PFR File, Tab 4 at 3; IAF, Tab 7 at 15.         The
  appellant has not made a nonfrivolous allegation that he suffered an appealable
  reduction in grade.
¶13    For adverse action purposes, pay means “the rate of basic pay fixed by law
  or administrative action for the position held by an employee.”             5 U.S.C.
  § 7511(a)(4).     Thus, a reduction in pay is appealable only when this rate
  decreases. Gaydar v. Department of the Navy, 121 M.S.P.R. 357, ¶ 6 (2014).
  There is no indication that the appellant’s pay has been reduced or will be
  reduced in the future. Contrary to the appellant’s claim, he actually received a
  pay increase on November 16, 2013. IAF, Tab 7 at 15. Therefore, the appellant
  has not demonstrated that he suffered an appealable reduction in pay.
¶14    Because we are remanding the case for further jurisdictional proceedings,
  the administrative judge must issue a new initial decision addressing whether the
  appellant was subject to an involuntary appealable RIF action when he was
  reassigned to his present position and whether he waived his Board appeal rights
                                                                                8

regarding that reassignment. On remand, if the administrative judge determines
the appellant was not subject to a RIF, then she may incorporate her original
findings that the Board lacked jurisdiction over the appeal under chapter 75
because the appellant did not suffer an appealable reduction in grade or pay.

                                    ORDER
     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.
