                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-1458


THOMAS F. SWEENEY,

                    Petitioner - Appellant,

             v.

MERIT SYSTEMS PROTECTION BOARD,

                    Respondent - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:17-cv-00926-CMH-IDD)


Argued: May 9, 2019                                               Decided: June 14, 2019


Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: William Paul Bray, OTEY SMITH & QUARLES, Williamsburg, Virginia,
for Appellant. Dennis Carl Barghaan, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Matthew W. Smith,
OTEY SMITH & QUARLES, Williamsburg, Virginia, for Appellant. G. Zachary
Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Thomas F. Sweeney (“Appellant”) filed a “mixed case” appeal with the Merit

Systems Protection Board (“Appellee” or “MSPB”), i.e., a discrimination claim coupled

with a challenge to a personnel action decision. Specifically, Appellant alleged that the

Federal Aviation Administration (“FAA”) discriminated against him on the basis of

gender and improperly forced him to accept a reassignment that resulted in a reduction in

grade and pay.

      The MSPB, however, concluded that it lacked jurisdiction to entertain Appellant’s

claims because Appellant voluntarily accepted the reassignment. Appellant then filed a

complaint in the district court seeking review only of the MSPB’s decision that it lacked

jurisdiction. The district court granted the MSPB’s motion to dismiss the complaint. In

this appeal, Appellant argues that the district court erred by: (1) failing to convert

MSPB’s motion to dismiss to a motion for summary judgment; and (2) failing to

recognize that genuine issues of material fact remain on the jurisdictional issue. As

explained below, we reject these arguments and affirm.

                                           I.

                                           A.

                                  Factual Background

      On August 5, 2009, Appellant began working for the FAA as a developmental air

traffic control specialist (“ATCS”). A developmental ATCS must successfully complete

extensive training before becoming a certified professional controller (“CPC”). Pursuant

to FAA policy, in order to remain employed with the FAA as an air traffic controller, an

                                           2
individual must satisfactorily complete the FAA’s training program, become a CPC, and

obtain “facility or area certification” at the facility to which the individual is assigned.

J.A. 130. 1 But, if a developmental ATCS demonstrates an “[i]nability to successfully

complete an air traffic control training program,” FAA officials may ask a training review

board to make a recommendation to the facility’s air traffic manager whether to terminate

that controller’s training program. Id. at 129–30.

       After completing an initial training period, in December 2009 Appellant reported

to the Washington Air Route Traffic Control Center in Leesburg, Virginia (the

“Washington Center”). In December 2012, during Appellant’s time at the Washington

Center, FAA officials identified deficiencies in his work performance and placed him in

an additional remedial training program. They then suspended his training on February

22, 2013. On April 11, 2013, a training review board concluded that he was not likely to

obtain facility or area certification at the Washington Center. The training review board

recommended that Appellant’s training be discontinued.

       As a result, the Air Traffic Manager, Steven Stooksberry, sent Appellant a

memorandum titled “Discontinuation of Training” dated April 15, 2013.              J.A. 67.

Stooksberry wrote, “This memorandum is notification that your training is being

terminated due to unsatisfactory performance . . . .” Id. The memorandum informed

Appellant of the training review board’s recommendation, and Stooksberry’s


       1
           Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.


                                              3
determination that Appellant “ha[d] been offered every opportunity to succeed in the

ATCS Training Program and that [Appellant had] not demonstrated that [he] possess[ed]

the knowledge, skills, and abilities required to safely perform the duties of a CPC” at the

Washington Center. Id. “Therefore,” Stooksberry wrote, “it is my decision that your

training be discontinued.”    Id.   The memorandum also provided Appellant with an

opportunity to respond within seven days, and noted that in the event Appellant failed to

respond, “the appropriate action (position change or separation) shall be initiated.” Id.

       On April 23, 2013, Appellant responded to Stooksberry’s memo. Appellant’s

response did not challenge the discontinuation of Appellant’s training at the Washington

Center. Instead, Appellant requested that the FAA “recommend [him] for continued

employment and placement at a lower level FAA Air Traffic Control Facility.” J.A. 148.

He added, “I believe I can be a CPC at a different facility.” Id. On May 13, 2013,

Stooksberry sent Appellant a memo stating, “[I]t is my final determination that your

training at [the Washington Center] be terminated.” Id. at 104.

       When an ATCS has been unsuccessful in completing training at a particular

facility, the FAA’s National Employee Services Team recommends to senior

management whether to offer that ATCS reassignment at a different facility. An ATCS

who accepts reassignment is provided with a “clean slate” with respect to his training,

and thus, he may reapply for a position at a higher level facility in the future. J.A. 131.

But if the ATCS does not accept the reassignment, the FAA may “initiate proper

separation activities,” id.; i.e., propose the individual’s removal from federal service.



                                             4
However, the individual has an opportunity to respond to the removal determination

before the FAA issues a final employment decision.

         Pursuant to this policy, in another memorandum dated November 29, 2013 (the

“Reassignment Memo”), the FAA offered to reassign Appellant to a position as an air

traffic control specialist at Harrisburg International Airport, a lower-level facility. The

Reassignment Memo stated that the reassignment would be at Appellant’s own expense,

and that if he “decline[d] . . . this offer, there is no assurance that any other offer will be

forthcoming.” J.A. 64. Additionally, the Reassignment Memo stated that if Appellant

did “not accept this reassignment” to Harrisburg, his “removal from [his] ATCS position

and from the Federal Service will be proposed.” Id. at 65. Finally, the Reassignment

Memo stated: “I fully understand this process and consider it to be for my personal

benefit and . . . the Agency has not exercised any pressure on me.” Id. Appellant

accepted all of the terms of the Reassignment Memo by signing it on December 3, 2013.

Appellant then transferred from the Washington Center to the Harrisburg International

Airport, where he remained employed as an ATCS when this case was filed in district

court.

                                              B.

                                     Procedural History

                                              1.

                                Appellant’s FAA Complaint

         Appellant, proceeding pro se, filed a complaint with the FAA alleging that the

termination of his training and his subsequent transfer were the result of unlawful gender

                                              5
discrimination.   See 29 C.F.R. § 1614.302(a)(1).      The FAA was then obligated to

investigate Appellant’s allegations of employment discrimination and issue a final agency

decision (“FAD”). See id. § 1614.302(d); see also id. § 1614.101–110.

       On July 28, 2014, the FAA completed its investigation of Appellant’s complaint

and subsequently issued its FAD. The FAD concluded that Appellant had established a

prima facie case of gender discrimination, but that he failed to produce sufficient

evidence of pretext; thus, the agency made an overall finding of no discrimination.

                                            2.

                                   MSPB Proceedings

       Appellant, still pro se, filed a mixed case appeal with the MSPB on October 15,

2014, which, in addition to review of his discrimination allegations, sought review of the

FAA’s termination of his training and subsequent transfer to Harrisburg.

       On October 23, 2014, an MSPB Administrative Judge (“AJ”) issued an order to

show cause requiring Appellant to address whether the MSPB could exercise jurisdiction

over his case. The AJ explained that “[t]he [MSPB] does not have jurisdiction over all

actions that are alleged to be incorrect but only those actions in which jurisdiction is

provided by pertinent statutes and regulations,” and “[i]t is the appellant’s burden to

establish that the [MSPB] has jurisdiction over this appeal.” J.A. 31.

       On November 2, 2014, Appellant responded to the order and asserted that the

Harrisburg reassignment resulted in a reduction in grade and pay, and he explained that

the Reassignment Memo “stated if I did not accept the offer of assignment [to

Harrisburg], my involuntary removal from my ATCS position and Federal Service will

                                             6
be proposed.” J.A. 44 (emphasis supplied). On December 4, 2014, the AJ issued a

supplemental order to show cause that “afford[ed] him another opportunity to submit

evidence and argument to show cause why this appeal should not be dismissed.” Id. at

52.   This order advised Appellant that although the MSPB typically possessed

jurisdiction over reassignments that were accompanied by a reduction in grade and/or

pay, reassignment must have been “involuntary” for jurisdiction to attach. Id. at 53. The

order informed Appellant that it was “incumbent on [him] to establish that his acceptance

of the agency’s offer rendered the assignment . . . involuntary because it was the result of

duress, coercion, or misrepresentation by the agency.” Id. at 54–55. In his response,

filed December 14, 2014, Appellant noted that “[i]t is obvious that if I did not accept my

reassignment I would have been removed from service.” Id. at 61.

       On April 12, 2016, the AJ issued her decision, concluding that the MSPB lacked

jurisdiction to consider Appellant’s case. Specifically, the AJ held that the MSPB could

not exercise jurisdiction over Appellant’s reassignment to Harrisburg because there was

no evidence that in agreeing to the reassignment, Appellant was deprived of the “freedom

of choice.” J.A. 170. The AJ noted that Appellant “accepted the reassignment,” and the

FAA’s explanation that his removal from employment would be proposed if he declined

the reassignment did not render that assignment involuntary:

              [T]he fact remains that [Appellant] had an option in that he
              could have declined [reassignment] and then challenged the
              removal action. The fact that he accepted the reassignment in
              lieu of removal does not make his reassignment involuntary
              because he had the option to face removal and exercise his
              appeal rights to the E[qual] E[mployment] O[pportunity]
              C[ommission] and/or the MSPB. While this is admittedly an

                                             7
              unpleasant choice to face, it is well established that the fact
              that an employee is faced with unpleasant alternatives does
              not in and of itself render the situation improperly coercive.

Id. at 171.

       Appellant filed a petition for review of the AJ’s decision with the full MSPB. On

September 23, 2016, the MSPB issued a final order that affirmed the AJ’s decision,

explaining that it lacked jurisdiction over Appellant’s reassignment to Harrisburg because

“[a] choice between unpleasant alternatives does not render a decision to accept the

agency’s proposal involuntary.” J.A. 211. 2

                                              3.

                                 District Court Proceedings

       Appellant filed a petition for review of the MSPB’s final order in the Federal

Circuit. However, as a result of the Supreme Court’s intervening decision in Perry v.

MSPB, 137 S. Ct. 1975 (2017) (holding that if the MSPB dismisses a mixed case on

jurisdictional grounds, the district court, not the Federal Circuit, is the proper forum for

judicial review), Appellant’s petition was transferred to the United States District Court

for the Eastern District of Virginia.




       2
         Both the AJ and the MSPB rejected Appellant’s argument that the May 13, 2013
termination of his training violated due process, and that termination was an adverse
action over which the MSPB possessed jurisdiction. See J.A. 168, 211–13. Although not
specifically raised in this appeal, we agree with the AJ and MSPB that, absent
circumstances not present in this case, denial of training is not within the MSPB’s
jurisdiction. See 5 C.F.R. § 1201.3(a).


                                              8
       The district court ordered Appellant to file a formal complaint, and he did so on

December 18, 2017. Although Appellant premised the district court’s jurisdiction in part

on Title VII of the Civil Rights Act of 1964, the complaint did not present a cause of

action under Title VII or otherwise seek the district court’s adjudication of his gender

discrimination allegations. The complaint only sought judicial review of the MSPB’s

conclusion that it lacked jurisdiction to entertain his mixed case.

       On February 5, 2018, the MSPB moved to dismiss the complaint and attached the

Administrative Record from the MSPB proceedings. The MSPB also provided Appellant

with notice that its motion was dispositive and informed him of his right to file a response

to the motion. However, Appellant did not file a response.

       On March 13, 2018, the district court granted the MSPB’s motion and dismissed

the complaint. In doing so, the district court concluded that the MSPB lacked jurisdiction

to consider any employment decision that involved any “voluntary action by the

employee,” J.A. 290 (quoting 5 C.F.R. § 752.401(b)(9)), and that the MSPB had correctly

concluded that Appellant’s reassignment to Harrisburg was such a voluntary action.

       On April 6, 2018, Appellant filed a motion for reconsideration of the district

court’s dismissal order. Appellant asserted that he had not filed a response to the

MSPB’s motion to dismiss because the legal argument that he would have articulated in

such a response was already set forth in his complaint; accordingly, his response “would

have been a ‘cut and paste’ [which would] be irrelevant and a waste of this Court’s time.”

J.A. 294. Appellant challenged neither the accuracy of the Administrative Record, nor

the district court’s use of the Administrative Record in resolving the MSPB’s motion to

                                              9
dismiss. The district court denied Appellant’s motion for reconsideration, and this appeal

followed.

       We possess jurisdiction pursuant to 28 U.S.C. § 1291, and we review the grant of

a motion to dismiss de novo. See ACA Fin. Guar. Corp. v. City of Buena Vista, 917 F.3d

206, 211 (4th Cir. 2019).

                                              II.

                                              A.

                     Failure to Convert to Summary Judgment Motion

       Appellant first contends that the district court erred by failing to convert MSPB’s

motion to dismiss into a motion for summary judgment. Specifically, he claims the

district court was required to do so under Federal Rule of Civil Procedure 12(d) when it

reviewed material outside the pleadings, namely, the MSPB Administrative Record. 3

       Even if the district court erred in this regard, “[a] district court’s failure to comply

with the procedural safeguards of Rule 12(d) does not constitute reversible error if it did

not prejudice the parties.” Russell v. Harman Int’l Indus., Inc., 773 F.3d 253, 255 (D.C.

Cir. 2014) (emphasis in original).




       3
         Rule 12(d) provides, “If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R.
Civ. Proc. 12(d).


                                              10
       For his part, Appellant asserts four reasons that the error was not harmless:

              (1) “Rule 12(d) requires that [Appellant] be given a
              reasonable opportunity to submit ‘all the material that is
              relevant to the motion’ of which he was deprived”;

              (2) “Rule 56(c) and (e) afford [Appellant] important
              protections by requiring the moving party to clearly identify
              the basis for summary judgment and the materials in the
              record supporting such a motion”;

              (3) “Rule 56(d) protects [Appellant] from summary judgment
              based on facts not available to him at the time the motion is
              considered”; and

              (4) “[T]he district court’s own Local Rules contain
              requirements for summary judgment motions that enhance the
              protections of Rule 56. [Appellant] was afforded none of
              these protections in the proceedings below.”

Appellant’s Br. 3 (citation omitted). None of these arguments demonstrate that Appellant

was prejudiced by the district court treating the MSPB’s motion as one to dismiss rather

than one for summary judgment.

       As to his first argument, Appellant was not deprived of a reasonable opportunity to

submit “all the material that is relevant to the motion” for two reasons. Appellant’s Br. 3.

First, Appellant would not have been permitted to introduce additional material in any

event because the jurisdictional claim was governed solely by the Administrative Record.

See Rana v. United States, 812 F.2d 887, 888–89 n.1 (4th Cir. 1987); Rockwell v. Dep’t

of Transp., 789 F.2d 908, 913 (Fed. Cir. 1986) (per curiam). Second, to the extent

Appellant wished to argue that there were genuine disputes of material fact precluding

summary judgment (or any other argument, for that matter), he had an opportunity to do

so -- by filing a response to the motion. He elected not to. And, of note, Appellant does

                                            11
not assert that he was unaware of his right to file a response. To the contrary, Appellant

states that he chose not to file a response because any argument that he would have

presented was already in his complaint.

       As for Appellant’s second and fourth arguments, he asserts that the district court’s

failure to convert the motion prejudiced him because he was deprived of various

procedural benefits under Rule 56 and the district court’s own local rules.              See

Appellant’s Br. 3, 8–10. But Appellant fails to demonstrate how this prejudiced him.

Significantly, Appellant does not allege that the district court’s strict compliance with all

applicable rules would have changed Appellant’s behavior in any way. And, even on

appeal with the benefit of counsel, Appellant fails to identify any material dispute of fact

that would have precluded summary judgment. Instead, he attempts to rehash the facts

underlying his gender discrimination claim, which he abandoned in the district court.

Finally, a district court’s alleged failure to comply with its own local rules is not a basis

for reversal by an appellate court, particularly where Appellant has not identified any

basis for prejudice.

       As to Appellant’s third argument, the MSPB attached the Administrative Record

to its motion; therefore, the motion was not granted “based on facts not available to

[Appellant] at the time the motion [was] considered.”         Appellant’s Br. 3.     Indeed,

Appellant does not identify what those facts might be and did not challenge the use of the

Administrative Record in district court.

       To be sure, Appellant was a pro se litigant, and as a result, the district court must

read the pleadings liberally in his favor. See Kerr v. Marshall Univ. Bd. of Governors,

                                             12
824 F.3d 62, 72 (4th Cir. 2016). But the court cannot prosecute Appellant’s claim for

him.   Where Appellant (1) declined to file a response to the motion to dismiss or

challenge the district court’s consideration of the Administrative Record; (2) does not

allege that strict compliance with the summary judgment procedural requirements would

have changed his decision not to respond to the motion; and (3) cannot, even with the

benefit of appellate counsel, point to particular disputed facts that would have precluded

summary judgment, we cannot conclude Appellant was prejudiced by any error on the

district court’s part, regardless of his pro se status.

       For these reasons, assuming the district court should have converted the motion to

dismiss to one for summary judgment, any error was harmless.

                                               B.

                               Genuine Issues of Material Fact

       We next address whether the MSPB was correct in deciding as a matter of law that

Appellant’s reassignment was a product of Appellant’s voluntary choice, thereby

depriving it of jurisdiction. Appellant contends this was improper because genuine issues

of material fact remain on this issue.

                                                1.

                                   The MSPB’s Jurisdiction

       The MSPB has jurisdiction to adjudicate challenges to certain adverse

employment actions taken by a federal agency against its employees. See 5 U.S.C.

§ 7701(a); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1327 (Fed. Cir. 2006) (en

banc). As relevant here, when a federal employee suffers an employment action that he

                                               13
or she believes to be unwarranted, and that the MSPB has jurisdiction to review, the

employee can challenge the action through an “appeal” to the MSPB.

       The MSPB possesses jurisdiction to consider “any action which is appealable to

the [MSPB] under any law, rule or regulation.” 5 U.S.C. § 7701(a). However, “[t]he

jurisdiction of the MSPB is not plenary, but is limited to those areas specifically granted

by statute or regulation. . . . In other words, jurisdiction for the [MSPB] to hear a

particular type of action must be granted by some law, rule or regulation.” Garcia, 437

F.3d at 1327 (quoting Antolin v. Dep’t of Justice, 895 F.2d 1395, 1396 (Fed. Cir. 1989)

(internal quotation marks omitted)).

       Pursuant to 5 U.S.C. § 7513(d), the MSPB has jurisdiction to hear appeals over

certain enumerated adverse actions taken by an agency against an employee.             The

enumerated adverse actions are: (1) a removal; (2) a suspension for more than 14 days;

(3) a reduction in grade; (4) a reduction in pay; and (5) a furlough of 30 days or less. See

5 U.S.C. § 7512.

       However, the MSPB does not have jurisdiction to review voluntary actions by the

employee. See 5 C.F.R. § 752.401(b)(9); Garcia, 437 F.3d at 1328 (“Nothing in 5 U.S.C.

§ 7512, which enumerates specific adverse actions over which the [MSPB] has

jurisdiction, extends the [MSPB’s] jurisdiction to facially voluntary acts.”). Accordingly,

an employee who voluntarily accepts a reduction in grade or pay (which are otherwise

reviewable adverse actions) has no right to appeal to the MSPB. See id. There is an

exception to this general rule, however, “if the employee proves, by a preponderance of

the evidence, that his or her action was involuntary and thus tantamount to a forced

                                            14
enumerated adverse action.”      Id. at 1329 (alterations and internal quotation marks

omitted).

                                            2.

                                    Voluntary Action

       To establish that a seemingly voluntary action was nonetheless involuntary, an

employee must show by a preponderance of the evidence that (1) the agency “effectively

imposed” the terms of the action; (2) the employee “had no realistic alternative” but to

take the action; and (3) the action was “the result of improper acts by the agency.”

Garcia, 437 F.3d at 1329 (internal quotation marks omitted). The test is an objective one

that is based on the totality of the circumstances, and the “employee must establish that a

reasonable employee confronted with the same circumstances would feel coerced into”

taking the action. Id. (internal quotation marks omitted).

       We conclude the district court was correct in deciding that Appellant cannot meet

this standard. Although Appellant had to choose between the unattractive options of

participating in termination proceedings or being reassigned to Harrisburg, he was still

presented with a choice. Both the Federal Circuit and the MSPB have repeatedly held

that “the fact that an employee is faced with an unpleasant situation or that his choice is

limited to two unattractive options does not make the employee’s decision any less

voluntary.” Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996); see also

Gaudette v. Dep’t of Trans., 832 F.2d 1256, 1259 (Fed. Cir. 1987) (concluding an air

traffic controller’s reassignment was voluntary in similar circumstances, explaining the

fact that “the employee would prefer to stay in the position from which he or she faces

                                            15
possible removal and dislikes taking a pay-cut does not make their decision to accept the

offer of a lower-grade position legally involuntary”); Loggins v. U.S. Postal Serv., 112

M.S.P.R. 471, 476 (2009) (“An employee’s acceptance of a lower-graded position is

generally considered to be voluntary and not subject to the Board’s jurisdiction.”); Reed

v. U.S. Postal Serv., 99 M.S.P.R. 453, 460 (2005) (same), aff’d, 198 F. App’x 966 (Fed.

Cir. 2006). Similarly, the Federal Circuit has held that a federal employee who, like here,

accepts reassignment to a lesser position in lieu of facing proposed removal cannot

demonstrate that the reassignment is “involuntary” so as to vest the MSPB with

jurisdiction. See Daniel v. MSPB, 534 F. App’x 937, 941 (Fed. Cir. 2013). Accordingly,

Appellant has not shown that the FAA effectively imposed the Harrisburg reassignment

on him or that he had no realistic alternative (as opposed to no attractive alternative)

other than to accept the reassignment.

       Nor did the reassignment result from improper acts by the FAA.              Indeed,

Appellant signed the Reassignment Memo, which stated, “I fully understand this process

and consider it to be for my personal benefit and . . . the Agency has not exercised any

pressure on me.” J.A. 65. The district court correctly determined that Appellant’s

reassignment was voluntary as a matter of law, and thus, the MSPB properly dismissed

Appellant’s case for lack of jurisdiction.

                                             III.

       For the foregoing reasons, we affirm the district court.

                                                                              AFFIRMED



                                             16
