                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES DAVID JOHNSON, JR,                        DOCKET NUMBER
                   Appellant,                        PH-3443-14-0812-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 8, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           James David Johnson, Jr., Tappahannock, Virginia, pro se.

           Steven Lippman, Washington Navy Yard, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed for lack of jurisdiction his appeal concerning an alleged constructive
     reduction in grade and pay. Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.            5 C.F.R.
     § 1201.113(b).
¶2         Effective January 28, 2013, the agency promoted the appellant from a
     GS-07 Firefighter (Basic Life Support/Hazmat Technician) position in Dahlgren,
     Virginia, to a GS-08 Firefighter (Intermediate Life Support) position in Indian
     Head, Maryland.    Initial Appeal File (IAF), Tab 8 at 14.      As a condition of
     employment in that position, the appellant was required to maintain a state or
     national “Intermediate Life Support (EMT-1) certification.”       Id. at 17.   The
     appellant only holds such a certification from the state of Virginia; he does not
     hold a national certification or a certification from the state of Maryland. IAF,
     Tab 5 at 4.
¶3         Upon the appellant’s promotion, the agency instructed him that he would
     need to obtain a national certification within 1 year. IAF, Tab 10 at 7-8. The
     appellant took the national certification test multiple times, but was unable to
     pass. Id. at 5, 8. On February 17, 2014, the appellant’s supervisor called him at
     home and asked that, in light of his failure to obtain a national certification for
     over a year since his promotion, the appellant send an email requesting to be
                                                                                         3

     placed back in his former position. 2 Id. 7. The following day, the appellant sent
     his supervisor an email that read as follows:
           Chief,
           As I have made you aware I did not pass the Paramedic test and now
           have to go back through some education I apology [sic] to the
           department for my failure, especially too [sic] Chief [M.] and
           yourself, and I will go back and finish this. You two were my best
           best supporters and I am ashamed that I let you down.
           With that, for now I ask to be placed back as a fireman, until I reach
           my goal, then I hope again to move back to a Paramedic slot.
     IAF, Tab 8 at 25.
¶4         Effective April 6, 2014, the agency reduced the appellant in grade from
     GS-08 to GS-07. Id. at 26. The appellant’s rate of basic pay also was reduced.
     Id. The Standard Form 50 documenting the reduction in grade and pay noted that
     the action was at the appellant’s request. Id.
¶5         On July 23, 2014, the appellant filed a Board appeal challenging his
     reduction in grade and pay and requesting a hearing. IAF, Tab 1 at 3-4. The
     administrative judge notified the appellant that the Board might not have
     jurisdiction over the appeal because the reduction in grade and pay appeared to be
     voluntary.     IAF, Tab 2 at 2.    He ordered the appellant to file evidence and
     argument showing that these personnel actions were involuntary due to duress,
     coercion, or misrepresentation. Id. After the parties filed evidence and argument
     on the issue, the administrative judge issued an initial decision dismissing the
     appeal for lack of jurisdiction without a hearing because the appellant failed to
     make a nonfrivolous allegation that his reduction in grade and pay was
     involuntary. IAF, Tab 16, Initial Decision (ID). The administrative judge noted
     that there was a timeliness issue, but having dismissed the appeal for lack of
     jurisdiction, he declined to reach it. ID at 6.


     2
       Intermediate Life Support certification is not a requirement for the GS-07 position.
     IAF, Tab 8 at 28-31.
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¶6         The appellant has filed a petition for review, arguing that his reduction in
     grade and pay was involuntary due to misinformation and duress, and because the
     agency failed to allow him to withdraw his request. Petition for Review (PFR)
     File, Tab 1 at 4-5. The appellant also argues that the agency failed to follow the
     procedures of 5 C.F.R. § 511.701.        Id. at 5.     He further argues that the
     administrative judge misled him into believing that there would be a hearing. Id.
     at 3, 5-6. The agency has filed a response to the petition for review, PFR File,
     Tab 3, and the appellant has filed a reply to the agency’s response, PFR File,
     Tab 4.
¶7         The Board lacks jurisdiction over appeals of employees’ voluntary actions.
     O’Clery v. U.S. Postal Service, 67 M.S.P.R. 300, 302 (1995), aff’d, 95 F.3d 1166
     (Fed. Cir. 1996) (Table); 5 C.F.R. § 752.401(b)(9). However, employee-initiated
     actions that appear voluntary on their face are not always so. Bean v. U.S. Postal
     Service, 120 M.S.P.R. 397, ¶ 7 (2013). For instance, even if an employee applies
     for and accepts a reduction in grade or pay, that action may nevertheless be
     appealable under 5 U.S.C. chapter 75 if the employee can show that the agency
     improperly deprived him of any meaningful choice in the matter. E.g., Jones v.
     Department of Agriculture, 117 M.S.P.R. 276, ¶ 15 (2012); Goodwin v.
     Department of Transportation, 106 M.S.P.R. 520, ¶ 15 (2007).
¶8         On review, the appellant argues that his reduction in grade and pay was
     involuntary under several theories.      First, he argues that his request for a
     reduction in grade and pay was based on misinformation because he actually met
     the requirements of the GS-08 position through his Virginia Intermediate Life
     Support certification. PFR File, Tab 1 at 4-5, Tab 4 at 5-6. Specifically, he
     argues that the agency allows other individuals to remain in that position without
     either national certification or certification from the jurisdiction in which they are
     stationed, PFR File, Tab 1 at 4, Tab 4 at 6, that the agency sent an email
     congratulating him on his promotion even though it knew he only had a Virginia
     certification at the time, PFR File, Tab 4 at 5-6; IAF, Tab 4 at 22, and that the
                                                                                         5

      vacancy announcement did not state that a Maryland or national certification was
      required, PFR File, Tab 1 at 4-5; IAF, Tab 8 at 20-23.
¶9         Regarding the other employees whom the agency supposedly allows to work
      without certification from the appropriate state or national registry, the appellant
      has not identified who these employees are or what positions they encumber.
      Regarding the email congratulating the appellant on his appointment, we see
      nothing in that email inconsistent with a requirement that the appellant hold an
      Intermediate Life Support certification proper to the jurisdiction in which he
      would be working. IAF, Tab 4 at 22. Rather, it is consistent with the agency’s
      instruction that the appellant would need to obtain such certification within 1 year
      of his promotion.    IAF, Tab 10 at 8.     Regarding the vacancy announcement,
      although the announcement itself does not reflect the need for an Intermediate
      Life Support certification, it refers the reader to the Office of Personnel
      Management’s Qualification Standards web page for further information. IAF,
      Tab 8 at 21. The Qualification Standards web page in turn refers the reader to the
      Department of Defense Fire and Emergency Services Program Manual, DoD
      6055.06-M. Classification & Qualifications, Office of Personnel Management,
      https://www.opm.gov/policy-data-oversight/classification-qualifications/general-
      schedule-qualification-standards/0000/fire-protection-and-prevention-series-0081/
      (last visited Sept. 3, 2015).       This Manual reflects that the Firefighter
      (Intermediate Life Support) position requires an Emergency Medical Technician –
      Intermediate certification, which “must be issued by the State or national
      registry.” DoD6055.06-M at 14 & n.3 (Feb. 2006), available at http://www.dtic.
      mil/whs/directives/ corres/pdf/605506m.pdf. For the reasons stated in the initial
      decision, we agree with the administrative judge that the appellant failed to make
      nonfrivolous allegations of involuntariness as to these claims. ID at 5-6.
¶10        The appellant also argues that he was under duress when he requested the
      reduction in grade and pay because his supervisor told him that “if he did not take
      the downgrade, he would be out of a job.” PFR File, Tab 1 at 4. The appellant
                                                                                           6

      further argues that he was on extended sick leave and taking pain medication
      during this time. PFR File, Tab 4 at 6. However, the fact that an appellant is
      presented with a choice between two unpleasant alternatives does not render his
      decision involuntary.      Bahrke v. U.S. Postal Service, 98 M.S.P.R. 513, ¶ 12
      (2005).      As explained above, the appellant’s supervisor was correct that the
      appellant lacked the proper certification to remain in the GS-08 position.
      Therefore, the choice between accepting a return to the GS-07 position and facing
      removal was not a choice between false alternatives. Cf. Gutierrez v. U.S. Postal
      Service, 90 M.S.P.R. 604, ¶ 9 (2002) (recognizing that a choice between false
      alternatives can support a finding that a decision was involuntary). There is no
      indication that the appellant’s supervisor knew or believed that the appellant’s
      removal could not be substantiated or that an arguable basis for removal did not
      exist.     See Sullivan v. Department of Veterans Affairs, 79 M.S.P.R. 81, ¶ 85
      (1998).      We also agree with the administrative judge that, for the reasons
      explained in the initial decision, the appellant failed to make a nonfrivolous
      allegation that his reduction in grade and pay was involuntary due to the
      medication that he was on at the time.           ID at 4-5.     This is especially so
      considering that the reduction in grade and pay did not go into effect until nearly
      2 months later.
¶11            In this regard, the appellant argues that the agency failed to notify him that
      he could withdraw his request. PFR File, Tab 1 at 4-5, Tab 4 at 7-8. He argues
      that a case named “Freedom v. Department of Justice” supports his position. PFR
      File, Tab 1 at 5, Tab 4 at 7. The appellant does not give a full citation to the case
      to which he is referring, and we were unable to find a Board or Federal Circuit
      case with the same or similar caption.          In any event, the appellant has not
      identified any law, rule, or regulation that would require the agency to inform him
      that he could withdraw his request for a reduction in grade and pay prior to its
      effective date. Notably, the appellant did not actually request a withdrawal. Cf.
      Loredo v. Department of the Treasury, 118 M.S.P.R. 686, ¶ 10 (2012) (an
                                                                                         7

      agency’s refusal to honor an attempted withdrawal of a request for reduction in
      grade and pay may provide a basis for finding a constructive adverse action
      within the Board’s jurisdiction).
¶12         The appellant further argues that the agency failed to follow the procedural
      requirements of 5 C.F.R. § 511.701 in effecting his reduction in grade and pay.
      PFR File, Tab 1 at 5, Tab 4 at 7-9.       However, it is not clear to us how the
      agency’s alleged failure to follow this regulation could have rendered the
      appellant’s reduction in grade and pay involuntary.            We agree with the
      administrative judge that it appears to be an allegation of harmful procedural
      error, which we need not reach in light of the dismissal for lack of jurisdiction.
      ID at 6.   Moreover, it does not appear to us that 5 C.F.R. § 511.701 applies to
      this case because that regulation pertains to classification actions, and there is no
      indication that either of the appellant’s positions were subjected to a
      classification action during the relevant time period.
¶13         Finally, the appellant argues that the administrative judge misled him into
      believing that there would be a hearing in this appeal. PFR File, Tab 1 at 3, 5-6,
      Tab 4 at 8.     We agree with the appellant that the administrative judge’s
      October 16, 2014 order suspending case processing could have lead a reasonable
      person to believe that a hearing would be held.          IAF, Tab 14.     The order
      instructed the parties “to prepare for a jurisdictional hearing in this matter
      pertaining to the voluntariness of the appellant’s demotion and the timeliness of
      his appeal of that action.” Id. It also promised a scheduling order at the end of
      the suspension period, but a scheduling order was never issued. Id. Nevertheless,
      we find that the appellant was not harmed by this procedural error because the
      record on jurisdiction had already closed according to the terms of the
      acknowledgment order.      IAF, Tab 2 at 2; see Karapinka v. Department of
      Energy, 6 M.S.P.R. 124, 127 (1981) (an administrative judge’s procedural error
      is of no legal consequence unless it is shown to have adversely affected a party’s
      substantive rights).    In other words, the jurisdictional record was already
                                                                                  8

complete, and the appellant did not rely to his detriment on the suspension order
by foregoing the timely submission of information that could have established his
right    to   a   jurisdictional   hearing.    Cf.   Jarrard   v.   Department    of
Justice, 113 M.S.P.R. 502, ¶ 11 (2010) (the administrative judge committed
harmful procedural error when she failed to issue a close of the record order prior
to issuing an initial decision without a hearing because it was not clear to the
parties that they would have no further opportunity to develop the record). The
acknowledgment order accurately informed the appellant that he would only be
afforded a hearing if he made a nonfrivolous allegation of Board jurisdiction by
the close of the record date. IAF, Tab 2 at 2. We agree with the administrative
judge that he failed to do so.

                  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.
                                                                                 9

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
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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono for       information    regarding    pro    bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.
