UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANDY L. SMITH,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

DA-0351-13-0595-I-1

DATE: April 14, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Andy L. Smith, Tyler, Texas, pro se.

Elaine K. Champi, Esquire, Washington, D.C., for the agency.

Steven E. Coney, Dallas, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which

found that it had improperly demoted the appellant without using required 

reduction in force (RIF) procedures. For the reasons discussed below, we 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

GRANT the agency’s petition for review, REVERSE the initial decision, and 

DISMISS the appeal for lack of jurisdiction. 

BACKGROUND

¶2 The events leading up to the filing of this appeal are undisputed. The 

appellant was employed as a PS-4 Laborer Custodial at the agency’s East Texas 

Processing and Distribution Center (P&DC) in Tyler, Texas. Initial Appeal File 

(IAF), Tab 7 at 51-52. On May 15, 2013, the agency announced that it was 

closing that facility and that the duty assignments at that facility were being 

abolished. Id. at 40. On June 25, 2013, the agency directed the appellant, 

starting July 1, 2013, to report to the Tyler Main Office to board a 

postal-provided van to ride to the Shreveport, Louisiana P&DC to work 

temporary assignments until a permanent position was identified. Id. at 33-34. 

The appellant worked a full-time schedule at the Shreveport P&DC, with 

approximately 4 hours each day traveling to and from the facility and 4 hours 

spent doing custodial work at the facility. IAF, Tab 35, Initial Decision (ID) at 3. 

While performing custodial work at the Shreveport P&DC, the appellant’s official 

position of record remained PS-4 Laborer Custodial at the East Texas P&DC, and 

he was paid as a PS-4 Laborer Custodial, even though that facility had closed. ID 

at 8, 11. 

¶3 The dispositive issue in the case is whether the agency was obligated to use 

the RIF procedures set forth in 5 C.F.R. part 351, which are required when an

agency “releases a competing employee from his or her competitive level by . . .

demotion, . . . when the release is required because of” certain conditions, such 

as lack of work, shortage of funds, insufficient personnel ceiling, or

reorganization. 5 C.F.R. § 351.201(a)(2). A “demotion” is defined as a change 

of an employee, while serving continuously within the same agency, to a lower 

grade or to a position with a lower rate of pay. 5 C.F.R. § 210.102(a)(4). In 

concluding that the appellant had been separated from his competitive level by 
3

demotion, the administrative judge found that the appellant: (1) was “released 

from his position” at the East Texas P&DC when that facility was closed and all 

the positions therein abolished; and (2) was assigned only to and only performed 

PS-3 Custodian duties at the Shreveport P&DC and thereby suffered a demotion, 

despite the fact that he was paid as a PS-4 Laborer Custodial. 

¶4 In a timely-filed petition for review, the agency contends that the 

administrative judge erred in finding that the appellant was released from his 

PS-4 position at the East Texas P&DC through demotion. Petition for Review 

(PFR) File, Tab 1.

2

 The appellant timely responded; he also filed a petition for 

enforcement of the interim relief ordered by the administrative judge. PFR File, 

Tabs 2, 9.

3

 

ANALYSIS

The administrative judge erred in finding that the appellant established 

jurisdiction over a RIF appeal. 

¶5 The agency argues, among other things, that the administrative judge erred 

in distinguishing this case from Dixon v. U.S. Postal Service, 64 M.S.P.R. 445

(1994), aff’d sub nom. Scorcia v. U.S. Postal Service, 77 F.3d 503 (Fed. Cir. 

1996) (Table), in which the Board held that the agency was not required to use 

RIF procedures. In Dixon, the Postal Service abolished certain positions as part 

 2 The agency subsequently filed a motion to dismiss the appeal as moot, in which it 

presented evidence that, effective June 14, 2014, the appellant was reassigned to a 

full-time PS-4 Laborer Custodial position at the Longview, Texas Post Office. PFR 

File, Tab 10. Because of our determination that the administrative judge erred in 

finding that the appellant was released from his competitive level by demotion, we need 

not determine whether the appeal is moot. 

3 On June 10, 2014, the appellant filed a “Motion for Leave to Add Additional Pleading 

to His Response.” PFR File, Tab 7. The appellant’s motion appears to relate to his 

allegations that the agency representatives violated the law and certain witnesses may 

have provided “incredible testimony” at the hearing. Id. Because we dismiss the 

appeal for lack of jurisdiction, we DENY the appellant’s motion, as the additional 

pleading, and his arguments contained therein, are not material to the outcome of the 

case.
4

of a nationwide restructuring, and the affected employees were temporarily 

assigned to agency Placement Centers where they were to obtain other positions 

within the agency. Dixon, 64 M.S.P.R. at 447. During this time, their grade and 

pay remained the same, and the agency did not issue any documentation reflecting 

a change in the appellants’ tenure groups. Id. Subsequently, some of the 

employees were detailed from the Placement Centers to other positions within the 

agency, still retaining the same pay, grade, and tenure. Id. The Board held that 

the Dixon appellants were not entitled to the substantive protections of part 351

because a detail by its very nature is temporary and involves no formal 

appointment since the employee continues to be the incumbent of the position 

from which he was detailed. Id. at 450. In rejecting the Dixon appellants’

argument that they were constructively separated from their permanent positions,

the Board observed that their retention rights had not been denigrated compared 

to other employees because the agency has not determined the retention rights of 

anyone affected by the restructuring. Id. at 451. 

¶6 The administrative judge found the instant case distinguishable from Dixon

in that the record did not indicate that the facility in which the Dixon appellants 

worked had been closed or that they had been detailed to facilities 100 miles 

away. ID at 9-10. She also noted that the Board emphasized in Dixon that the 

agency “intends to permanently reassign the appellants.” ID at 10. The 

administrative judge did not explain the legal significance of the East Texas 

P&DC closing and we see no meaningful distinction. The legally relevant point 

in both cases is that the employees’ positions were abolished. Similarly, the 

administrative judge did not explain why the distance between the East Texas 

P&DC and the Shreveport P&DC was legally significant, and we see no legal 

relevance. As for the agency’s intent to permanently reassign the appellant to 

another facility, that does not distinguish the two cases; here, the agency 
5

unequivocally stated its intent to permanently reassign the appellant to another 

facility. IAF, Tab 7 at 28-30.4

 

¶7 The applicability of Dixon was reinforced by a subsequent decision of the 

Board’s reviewing court. Hayes v. U.S. Postal Service, 390 F.3d 1373 (Fed. Cir. 

2004), involved postal employees whose jobs had been abolished because of 

technological advances and were reassigned indefinitely as unassigned regular 

clerks. Hayes, 390 F.3d at 1374-75. The court cited Dixon approvingly for the 

proposition that assignment to a temporary “detail” does not constitute a RIF 

demotion. Id. at 1377. In finding that a RIF demotion had not occurred, the court 

noted that the petitioners had not alleged that the agency informed them that they 

would not be reassigned to a position at the same level; instead, they were 

“merely informed” that their positions were being abolished and given a 

temporary assignment. Id. at 1378 (quoting Marcino v. U.S. Postal Service, 

344 F.3d 1199, 1204 (Fed. Cir. 2003)). 

¶8 Having determined that the appellant was not released from his competitive 

level, we find that it is legally irrelevant whether the duties the appellant 

performed while working at the Shreveport D&PC were more in the nature of a 

PS-3 Custodian or a PS-4 Laborer Custodial. We note, however, that a reduction 

in an employee’s duties and responsibilities, by itself, does not constitute a RIF 

demotion. Hayes, 390 F.3d at 1379. We further note that the agency submitted 

evidence that the duties of the PS-4 Laborer Custodial position include all of the 

 4 In concluding that the appellant’s assignment to the Shreveport P&DC was a 

permanent demotion, the administrative judge ignored the fact that the appellant had 

been detailed to two other locations prior to the issuance of the initial decision: to the

North Texas P&DC effective December 2, 2013, and subsequently to the Tyler, Texas 

Post Office. IAF, Tab 28 at 5, Tab 22 at 20; PFR File, Tab 4 at 99 (hearing testimony

of District Complement Coordinator). In addition, as noted above, the agency has 

submitted evidence that it has permanently reassigned the appellant to a PS-4 position 

at the Longview, Texas Post Office. All of these actions belie the administrative 

judge’s conclusion that assigning the appellant duties at the Shreveport P&DC was a 

permanent reassignment rather than a temporary detail. 
6

duties of the PS-3 Custodian position. IAF, Tab 22 at 306-07; PFR File, Tab 4,

Hearing Transcript at 75, 86-87, 126, 131-34, 143-44. 

The agency complied with its interim relief obligations. 

¶9 Having found that the agency had released the appellant from his 

competitive level by demotion, and that it erred in failing to follow the RIF 

procedures set forth in 5 C.F.R. part 351, the administrative judge ordered the 

agency to comply with the required RIF procedures. ID at 12. She further 

ordered that, should the agency petition for review of the initial decision, it must 

provide interim relief to the appellant in accordance with 5 U.S.C. 

§ 7701(b)(2)(A). ID at 12. With its petition for review, the agency provided a 

certification of compliance with the interim relief order, which included a letter 

to the appellant explaining that: it was arguing in its petition for review that the 

administrative judge lacked the authority to order the agency to conduct a RIF; 

the agency had made a determination that it would be unduly disruptive to restore 

him during the interim relief period; and that it had continuously maintained him 

in its personnel/payroll systems as a permanent full-time PS-4/ Laborer Custodial 

in the regular workforce at the East Texas P&DC, and would continue to do so. 

PFR File, Tab 1 at 29-32. The appellant filed a motion to enforce the interim 

relief order, in which he complained that he had not been deemed eligible for 

overtime while detailed to work in Longview and Tyler, Texas. PFR File, Tab 9. 

¶10 The Board’s regulations do not provide for petitions for enforcement of 

interim relief orders; such petitions apply only to final Board decisions. 5 C.F.R. 

§ 1201.182(a). The Board’s regulations, however, do allow an appellant to 

challenge an agency’s certification that it has provided interim relief, and the 

Board may dismiss a petition for review if it finds the agency to be in 

noncompliance with its interim relief obligations. 5 C.F.R. § 1201.116(b), (e).

The Board’s authority in such cases is limited to determining whether the agency 

made an undue disruption determination and whether the appellant is receiving 

appropriate pay and benefits. McDonald v. Department of Veterans Affairs, 
7

86 M.S.P.R. 539, ¶ 7 (2000). Here, it is undisputed that the agency made an 

undue disruption determination and that the appellant has been paid and provided 

benefits as a PS-4 Laborer Custodial at all times pertinent to this appeal. We 

further note that the Board has held that it cannot demand that an agency conduct 

a RIF as a final remedy. See Manescalchi v. U.S. Postal Service, 74 M.S.P.R. 

479, 484 (1997). Therefore, it would be improper for us to order the agency to 

conduct a RIF as interim relief. 

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. 

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 
8

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 court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board