UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

FRANK J. SILVA, 

Appellant, 

v. 

DEPARTMENT OF JUSTICE, 

Agency. 

DOCKET NUMBER 

AT-0752-15-0028-I-1 

DATE: June 5, 2015 

THIS FINAL ORDER IS NONPRECEDENTIAL*

Frank J. Silva, Yazoo City, Mississippi, pro se. 

Jenifer Grundy Hollett, Esquire, Washington, 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 his involuntary demotion appeal for lack of jurisdiction. 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 erroneous application of the law to 

 

*

 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 The appellant worked for the agency’s Bureau of Prisons (BOP) from 1987 

to 1992 and beginning again in 1997. See Initial Appeal File (IAF), Tab 1 at 14. 

In June 2011, he accepted a position as a GS-13 Complex Captain at the BOP 

facility in Yazoo City, Mississippi. See id., IAF, Tab 7 at 52. Approximately 4 

months later, the appellant requested reassignment to the GS-12 Unit Manager 

position at the same facility. IAF, Tab 7 at 112. The agency approved and 

effectuated that request. Id. at 114. 

¶3 In January 2012, the appellant filed a discrimination complaint with the 

agency. Id. at 52-53. After investigating his allegations, in August 2014, the 

agency issued a final decision, concluding that the appellant was neither 

subjected to a hostile work environment nor constructively demoted to the GS-12 

Unit Manager position based on race. Id. at 13, 24-40. 

¶4 In September 2014, the appellant filed the instant Board appeal. IAF, 

Tab 1. The administrative judge dismissed the appeal without holding the 

requested hearing. IAF, Tab 12, Initial Decision (ID); see IAF, Tab 1 at 2 

(hearing request). The administrative judge concluded that the appellant was not 

entitled to a hearing on jurisdiction because he failed to present a nonfrivolous 

allegation that his demotion was involuntary. ID at 7. 
3

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 3. The agency has filed a response, to which the appellant has replied. 

PFR File, Tabs 5, 9. 

The administrative judge properly dismissed the appeal for lack of jurisdiction. 

¶6 The appellant disputes the administrative judge’s conclusion that his 

demotion was voluntary and outside the Board’s jurisdiction. PFR File, Tab 3 at 

15-32. We find no merit to his arguments. 

¶7 The Board lacks jurisdiction over appeals of employees’ voluntary actions. 

Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 7 (2013). However, the Board 

has always recognized that employee-initiated actions that appear voluntary on 

their face are not always so. Id. The Board may have jurisdiction over such 

actions under 5 U.S.C. chapter 75 as “constructive” adverse actions. Bean, 

120 M.S.P.R. 397, ¶ 7. For example, even if an employee applies for and accepts 

a reduction in grade, that action may nevertheless be appealable to the Board if 

the employee can show that the agency deprived him of any meaningful choice in 

the matter. Id. (citing 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 One way of overcoming the presumption of voluntariness is by showing that 

a requested action was the product of coercion by the agency. See Staats v. U.S. 

Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). However, “the doctrine of 

coercive involuntariness is a narrow one.” Id. “[T]he 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.” Id. In 

addition, the test for involuntariness is an objective one, requiring that a 

reasonable employee in the same circumstances would have felt coerced into 

acting similarly. See generally Conforto v. Merit Systems Protection Board, 
4

713 F.3d 1111, 1121 (Fed. Cir. 2013) (noting that the standard is an objective one 

in the context of an alleged resignation). 

¶9 Jurisdiction is established in constructive adverse action appeals by 

showing: (1) the employee lacked a meaningful choice in the matter; and (2) it 

was the agency’s wrongful actions that deprived the employee of that choice. 

Bean, 120 M.S.P.R. 397, ¶¶ 8-11. If an appellant makes a nonfrivolous allegation 

casting doubt on the voluntariness of his action, he is entitled to a hearing at 

which he must prove jurisdiction by a preponderance of the evidence. See Harris 

v. Department of Veterans Affairs, 114 M.S.P.R. 239, ¶ 9 (2010). To meet the 

nonfrivolous standard, an appellant need only plead allegations of fact that, if 

proven, could show jurisdiction. Id. However, merely pro forma allegations are 

insufficient to meet the standard. Id. 

¶10 In determining whether the appellant has made the requisite nonfrivolous 

allegation, the administrative judge may consider the agency’s documentary 

submissions. Id. Yet, to the extent that the agency’s evidence constitutes mere 

factual contradiction of the appellant’s otherwise adequate prima facie showing of 

jurisdiction, the administrative judge may not weigh evidence and resolve 

conflicting assertions of the parties, and the agency’s evidence may not be 

dispositive. Id. 

¶11 Here, the appellant’s initial pleading implicated coercion, alleging that his 

demotion was involuntary due to the agency’s “constant harassment and berating” 

of him over the 4 months leading up to his request for a reduction in grade 

because he is not an African American. IAF, Tab 1 at 3. With the allegation, the 

appellant included the final agency decision on his complaint of discrimination 

finding that the record did not support his claim that he was subjected to a hostile 

work environment or constructively demoted because of his race. Id. at 12-29. 

¶12 The agency disputed the appellant’s allegations and submitted the 

statements made by relevant parties during the aforementioned discrimination 

investigation. IAF, Tab 7. Subsequently, the administrative judge informed the 
5

appellant of the applicable standards for a constructive adverse action appeal and 

ordered him to file evidence and argument to meet his burden. IAF, Tab 8. In 

response, the appellant claimed that one supervisor warned him of possible 

discipline or demotion if he continued to make mistakes, and another supervisor 

asked him if he had ever considered taking a demotion, suggesting it might be 

better for him. IAF, Tab 10 at 2-3. The appellant indicated that he feared what 

might happen if he did not take the reduction in grade. Id. at 3. He described his 

interactions with supervisors as including “constant and daily barrages and 

ranting . . . with the constant threat of demotion” to the Unit Manager position he 

ultimately requested. Id. 

¶13 Considering the evidence before him, the administrative judge concluded 

that, even if the events transpired exactly as the appellant alleged, such facts did 

not amount to nonfrivolous allegations of involuntariness. ID at 5-6. Instead, the 

administrative judge found that the allegations described, at most, unpleasant 

circumstances. ID at 6. We agree. 

¶14 The appellant argues that the administrative judge failed to consider his 

claims of discrimination and reprisal as affirmative defenses. PFR File, Tab 3 

at 15. However, when discrimination and reprisal are alleged in connection with 

a determination of voluntariness, it is well settled that such allegations may only 

be addressed insofar as they relate to the issue of voluntariness. Markon v. 

Department of State, 71 M.S.P.R. 574, 578 (1996). The administrative judge 

noted that standard in his show cause order, IAF, Tab 8 at 3, and properly applied 

it in concluding that the appellant failed to nonfrivolously allege that his 

demotion was involuntary, ID at 4-6. 

¶15 Next, the appellant alleges that the administrative judge’s decision contains 

erroneous findings of material facts. PFR File, Tab 3 at 17. Specifically, he 

disputes the administrative judge’s notation that, before coming to the Board, the 

appellant filed a formal equal employment opportunity complaint and the agency 

concluded that no discrimination had occurred. Id. We are unable to discern any 
6

error in the fact the appellant has identified as incorrect. Compare id. 

(referencing ID at 2 (noting that the agency issued a final decision on the 

appellant’s discrimination complaint finding no discrimination)), with IAF, Tab 1 

at 12-29 (the final agency decision, finding no discrimination). Moreover, even if 

the notation did include an error, it is of no consequence. See 5 C.F.R. 

§ 1201.115(a) (the Board may grant a petition for review for a factual error of 

sufficient weight to warrant an outcome different from that of the initial 

decision). We find that the fact at issue here was merely background information, 

provided in the decision as part of an introduction to the case. See ID at 2. 

¶16 Finally, the appellant’s petition generally recounts allegations of what he 

found to be difficult or unpleasant working conditions leading up to his request 

for a demotion. PFR File, Tab 3 at 16-32. He suggests that the administrative 

judge failed to consider the totality of the circumstances and erroneously accepted 

the agency’s witness statements as fact. Id. at 16, 20. We disagree. 

¶17 As discussed above, although the appellant alleged that his demotion was 

involuntary, the information he provided merely describes a stressful and 

unpleasant situation, in which he felt unfairly criticized and worried that he might 

be subjected to future discipline. See IAF, Tab 1, Tab 10 at 2-3. We agree with 

the administrative judge’s conclusion that those claims, even if true, are not the 

type that would cause a reasonable employee in the same circumstances to feel 

forced into requesting a demotion. See ID at 6; see generally Miller v. 

Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (an employee is not 

guaranteed a working environment free of stress, unfair criticism, or unpleasant 

working conditions). Therefore, the appellant’s claims do not amount to 

nonfrivolous allegations of involuntariness. Compare Baldwin v. Department of 

Veterans Affairs, 109 M.S.P.R. 392, ¶¶ 18-20 (2008) (appellant’s allegations that 

the agency unjustifiably threatened him with discipline and conducted 

unwarranted investigations targeting him did not amount to nonfrivolous 

allegations that he was coerced into resigning), with Harris, 114 M.S.P.R. 239, ¶ 
7

11 (appellant was entitled to a jurisdictional hearing based upon an allegation that 

she accepted a reduction in grade under the threat of a removal action that the 

agency knew or should have known could not be substantiated); Swinford v. 

Department of Transportation, 107 M.S.P.R. 433, ¶ 15 (2007) (appellant was 

entitled to a jurisdictional hearing based upon an allegation that he retired only 

after his supervisor threatened to abolish his job, threatened to make things 

difficult if he did not retire, placed him on a performance improvement plan 2 

weeks after becoming eligible for retirement, and denied his requested sick 

leave). 

¶18 In reasserting that his demotion was involuntary, the appellant has 

submitted a large amount of evidence that he did not submit below. See PFR File,

Tab 3, Subtabs A-O. Generally, the Board will not consider evidence submitted 

for the first time with the petition for review, absent a showing that it was 

unavailable before the record was closed despite the party’s due diligence. 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. 

§ 1201.115. The Board, however, may consider such evidence if it implicates the 

Board’s jurisdiction and warrants an outcome different from that of the initial 

decision. Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013). 

After reviewing the appellant’s evidence, we find nothing that warrants a 

different outcome. The evidence fails to establish that his requested demotion 

was involuntary or even nonfrivolously alleges the same. See, e.g., PFR File, Tab 

3, Subtab A (the Equal Employment Opportunity Commission’s dismissal of the 

appellant’s complaint), Subtab B (correspondence regarding the exchange of 

pleadings between the appellant, the agency, and the administrative judge), 

Subtab C (documents related to the appellant’s 2011 promotion), Subtab D 

(organizational charts and position descriptions), Subtab E (salary tables), Subtab 

F (forms documenting the appellant’s demotion), Subtab G (information about 

Pacific Islanders). Accordingly, we find that dismissal for lack of jurisdiction, 

without a hearing, remains appropriate. 
8

The administrative judge did not exhibit any bias or prejudice against the 

appellant. 

¶19 The appellant alleges that the administrative judge was biased against him. 

PFR File, Tab 3 at 11-14. We disagree. 

¶20 There is a presumption of honesty and integrity on the part of 

administrative judges that can only be overcome by a substantial showing of 

personal bias, and the Board will not infer bias based on an administrative judge’s 

rulings on issues. Williams v. U.S. Postal Service, 87 M.S.P.R. 313, ¶ 12 (2000). 

In addition, an administrative judge’s conduct during the course of a Board 

proceeding warrants a new adjudication only if the administrative judge’s 

comments or actions evidence a deep-seated favoritism or antagonism that would 

make fair judgment impossible. Simpkins v. Office of Personnel Management, 

113 M.S.P.R. 411, ¶ 5 (2010). 

¶21 Among other things, the appellant alleges that the administrative judge’s 

bias is evidenced by his acceptance of the agency’s untimely jurisdictional reply. 

PFR File, Tab 3 at 11-14; see IAF, Tab 8 at 1-4 (jurisdictional order setting 

December 2, 2014, as the deadline for filing the agency’s response), Tab 11 

(agency’s response dated December 4, 2014). He also alleges that the 

administrative judge characterized him as “not being cooperative” regarding the 

exchange of pleadings. PFR File, Tab 3 at 12. We find that, even if accepted as 

true, the appellant’s allegations fail to overcome the presumption of honesty and 

integrity afforded administrative judges. 

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: 

 
9

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 

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 appeal to 

the 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
10

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: 

Washington, D.C. 

______________________________ 

William D. Spencer 

Clerk of the Board