## United States Court of Appeals for the Federal Circuit

03-3326, 04-3005 ROBERT E. HAYES, VINCENT T. AL BERS, JR., ANDREW H. CONOVER, LAWRENCE M. DOHERTY, RONALD K. HEABERLIN, WILLIE L. LAMB, WALTER L. MOORE, JR., BERNARD G. OELTMAN, and GERALDINE PETTIT, Petitioners,

v. UNITED STATES POSTAL SERVICE, Respondent.

Anton G. Hajjar , O’Donnell, Schwartz & Anders on, P.C., of Washington, DC, argued for petitioners. Steven M. Mager , Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justic e, of Washington, DC, argued for respondent. On the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, Todd M. Hughes , Assistant Director, and Kelly B. Weiss , Attorney. Of counsel on the brief was Christopher J. Burton , Attorney, Commercial and Appella te Litigation, United States Postal Service, of Washi ngton, DC. Of counsel was John S. Groat , Attorney, Civil Division. Appealed from: Un ited States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit
03-3326, 04-3005 ROBERT E. HAYES, VINCENT T. AL BERS, JR., ANDREW H. CONOVER, LAWRENCE M. DOHERTY, RONALD K. HEABERLIN, WILLIE L. LAMB, WALTER L. MOORE, JR., BERNARD G. OELTMAN, and GERALDINE PETTIT, Petitioners, v. UNITED STATES POSTAL SERVICE, Respondent.

__________________ _________ DECIDED: December 8, 2004

__________________ _________ Before MICHEL, CLEVENGER, and BRYSON, Circuit Judges

. MICHEL, Circuit Judge

. Vincent Albers, Jr., A ndrew Conover, Lawrence Doherty, Ronald Heaberlin, Willie Lamb, Walter Moore, Jr., Bernard Oeltman, and Geraldine Pettit (collectively, the “Albers petitioners”), as well as Robert Hayes, petition for judi cial review of the decision of the Merit Systems Protection Board (“B oard”) dismissing their appeals for lack of jurisdiction. Burger v. United St ates Postal Serv. , 93 M.S.P.R. 582 (2003). In Burger , the Board dismissed the c onsolidated appeals of a number of petitioners, including those of the Albers petiti oners and Hayes, for lack of jurisdiction based on the determination that reduction-in-force (“RIF”) demotions did not occur. Id. at 594-97 (Albers petitioners); id. at 601-04 (Hayes). Petitioners timely petitioned to this Court, and their petition was submitted for decisi on following oral argument on October 5, 2004. Because none of the petitioners su ffered a RIF demotion, we affirm.I. Backgro und
A. The Albers petitioner s were employed as level 6 flat sorter machine (“FSM”) operators for the United States Postal Service (“USPS”) in Cincinnati, Ohio. They performed a number of duties, including oper ating FSM 881 series machines. The FSM 881 series machines require the mail to be “schemed.” When scheming the mail, an operator remembers a large number of alphabetical and geogr aphi cal groupings and keys these groupings into the mail sorting ma chine at appropriate times. Scheming wa s the “primary reason” that the positions he ld by the Albers petit ioners were graded at level 6. In or before Augus t, 2000, the USPS replaced the FSM 881 series machines at the Cincin nati, Ohio facilit y with automated flat sorti ng machin e (“AFSM”) 100 series machines, which do not require scheming. The Albers petitioners were notified on Ju ly 19, 2000, that (1) their positio ns would be abolis hed on August 26, 2000; (2) they would receive “saved grade” if they successfully bid on a lower-grade pos ition; and (3) they would each be reas signed “as

an unass i gned full-time regular cl erk, PS-06” if they did not succes s fully bid on another position before August 26, 2000. 1 The July 19 letter uses the phrase “unassigned fulltime regular clerk, PS -06. ” Other documents use other terms, such as “Unassigned Regular status,” “unassigned regular,” “level 6 unass i gned FSM Operator position,”

1 Both sides agree that the Albers petit ioners each received the July 19 notice. The government further claims that the Albers pet itioners each receiv ed a notic e mailed on March 14, 2000, stati ng that (1) their positions would be abolished, (2) they could attempt to become a “successful bi dder on a vacant bid, ” and (3) they wou l d become an “unencumbered (unassigned) empl oyee, unless [they were] a successfu l bidder on a vacant bid before that time.” Be cause the content of t he March 14 notice is not materially different from the July 19 notice, we need not a ddress the government’s claim.
03-3326, 04-3005 2“unassigned regular clerk, ” and “unencumbered employees.” We use the term unassigned regular clerk to maintain consist ency throughout this opinion. Each of the Albers petitioners, exc ept Conover, was reassigned a s an unassigned regular clerk. Conover transitioned direct ly from a l e vel 6 FSM operator position to a level 4 m a il pr ocess o r position on or about August 26, 2000. Fur t hermore, each of the Albers petitioners, except Doher ty, Heaberlin, and Oelt man, successfully bid for a lower-grade position. Doherty, Heaberlin, and Oeltma n continued to work as unassigned regular cler ks without bidding on lo wer-grade positions. The Albers petitioners appealed to the B oard, claiming that they had suffered a RIF demotion. 2 The administrative judge who made t he Board’s initial decis ion agreed, determining that the Albers petitioners h ad been assigned to lower-grade pos itions because they were required to “operate a ‘100’ machine that does not require keying duties or s c heme knowledge but instead r equires employees to manually prepare and load mail into a machine that performs t hese functions.” The full Board reversed, reasoning that the Albers pet itioners were not demoted because a position as an unassigned regular c l erk is a position at the same grade and pay lev e l. Burger , 93 M.S.P.R. at 596-97 (determining that the July 19 notic e dem onst r ates that petitioners were infor m ed that assignment s as “‘unassi gned full-time regular clerk[s], PS-06’” constitute “ assignment s at the grade leve l of their former position ” (alteration in original, emphasis added)). For the Al bers petitioners who bid on lower-grade positions, the Board gave an additional reas on why these petitioners had not suf f ered a RIF demotion,

2 During litigation before the adminis trative judge, the USPS rescinded its abolishment of the Alber s petitioners’ positions. This litigation-induced rescission does not affect the determination in this case whether they were demoted in the time period before the rescission and, therefore, does not moot their petitions.
03-3326, 04-3005 3namely, that they had not rece ived notice “that they would not be placed in positions at the PS-6 level” before they successfu lly bid on the lower-grade positions. Id. at 596. The Albers petitioners timely pet itioned this Court for revi ew of the Board’s decision.
B. The facts of Hayes’ case are quite sim ilar to those of the Albers petitioners. Hayes wor k ed as a level 5 FSM operator in M anasota, Florida. On Decemb er 13, 2000, Hayes rec e ived notic e that (1) his pos ition was abolished, (2) he could bid on other positions and would receive sav ed gr ade if he did so, and (3) he had become an “unencumbered regular.” Hayes was inform ed that as an unencum bered regular, he would retain “saved-grade” and that his “Fo rm 50 [would] not be chang e d from [his] current level as an unencumbered flat sorter operator.” Hayes suc c e ssfully bid for, and was assigned to, a level 4 mail processor position with saved grade on January 12,
2002. Hayes appealed to the Board, c l aimi ng that he had s u ffered a RIF demotion. The administrative judge who made the Board’s initial det ermination rejected Haye s’ appeal for lack of jurisdiction on t w o grounds. The administrative judge first determined that Hayes’ reassignment as an unassigned regular cler k wa s merely a temporary detail and also determined that Hayes had not receiv ed notic e that he would not be placed i n a position at his former gr ade level before he bid for a lower-grade position. The full Board agreed and dis m issed Hayes’ appea l for lack of jurisdiction. Burger , 93 M.S.P.R. at 601-04 (reasoning t hat “[t]he administrative judge cor r ectly found that, at the time the appellant filed his appeal, he occupied the posi tion of Level 5 FSM Operator, and that, even though he may have perform ed the duties of a lower-gr aded position, he did not

03-3326, 04-3005 4allege, nor did the record reflect, that the agency as signed him to a position graded lower than his former position” and that his bid for a lower-g rade position was voluntary). II. Discussion
A. Whether the Board has jurisdiction is a question of law we review without deference. Torain v. United St ates Postal Serv. , 83 F.3d 1420, 1422 (Fed. Cir. 1996). The Board can have jurisdiction if and only if the petitioner ma kes non-frivolous allegations that satisfy t he elements of the claim. Spencer v. Dep’t of the Navy , 327 F.3d 1354, 1356 (Fed. Cir. 2003). Even then, an eviden tiary hearing on jurisdiction may be needed. Furthermore, the Board’s jurisdicti on is lim ited to those “actions for whic h the right to appeal is spec ifically granted by law, rule, or regulation.” Torain , 83 F.3d at 1422. The Board’s jurisdiction over RIF- related appeals is pr ovided in 5 C.F.R. § 351.901, which states that “[ a]n employee who has been furloughed for more than 30 days, separated, or demoted by a reducti on in force action may appeal to the Merit Systems Protection Board.” Only dem otion is at issue in this ca se. Demotio n is defin ed in 5 C.F.R. § 210.102(b)(4) in pertinent part as: a change of an employee, while serv ing continuous ly within the same agency: (i) To a lower grade when both t he old and new pos i tions are under the General Schedu le or under the same type graded wage schedule; or (ii) To a position with a lower rate of pay when both the old and new positions are under the same type ungraded wage sc hedule, or are in different pay method categories.

03-3326, 04-3005 5Id. (emphases added)

. 3 In general, voluntary changes in employment do not c onstitute RIF demotions. See Torain , 83 F.3d at 1423. In Harants v. United States Postal Service , this Court established an exception to the general rule , holding that “an assignment to a lower

grade pos ition constitutes a RI F demotion even when the em ployee voluntarily applie s for or is offered an as signment to that pos ition, as long as the assignment was made after the agency had informed the employee that his original pos ition had been abolished and that he had not been selec t ed for an assignment to a pos i tion at his former grade level.” 130 F.3d 1466, 1469 (Fed. Cir. 1997) (emphasis omitted). In Knight v. Department of Defense , 332 F. 3d 1362 (Fed. Cir. 2003), we justified the Harants exception by reference to 5 C.F.R. § 351.201(b), which provides that RIF regulations must be follow ed if an employ ee has been “reached for release from a competitive level.” The Knight court held that a federal employee had been reached for release when she received notic e “that her position had been i dentified for abolis hment” and that s he would be separated becaus e t here wer e no positions for which she was qualified that were vacant or for which she had higher retent ion standing than the incumbent. Knig ht , 332 F.3d at 1364, 1369. The Board has also determined that assig n ment to a t e mporary “detail” does not constitute a RIF demotion. Dixon v. United States Postal Serv. , 64 M.S.P.R. 445 (1994), aff’d sub nom. , Scorcia v. United States Postal Serv. , 77 F.3d 503 (Fed. Cir. 1996) (Table). In Dixon , the Board reasoned that “[a] detail by its very nature is

3 For simplic ity, we will refer in this opinion to a demotion as a change o f employment to a position with a lower grade or p a y, even t hough whether a RIF demotion occurred is analyzed by reference to grade if the agency uses a graded wage schedule or by pay if the agency does not use a graded wage schedule.
03-3326, 04-3005 6temporary and inv o lv es no formal appoint ment since the employee continues to be the incumbent of the position from which he was detailed.” 64 M.S.P.R. at 450. We have j u risdiction under 28 U.S.C. § 1295(a )(9). Our standard of review is governed by 5 U.S.C. § 7703( c), which states that the Federal Circ u it shall rev i ew the record and hold unlaw ful and set aside any agenc y action, findings, or conclusions found to be-- (1) arbitrary, capricious, an abuse of discretion, or otherwise no t in accordanc e with law; (2) obtained without procedures requir ed by law, rule, or regulation having been followed; or (3) unsupported by substantial ev idence . . . . Id.
B. This Court’s decision in Marcino v. United States Postal Service , 344 F.3d 1199 (Fed. Cir. 2003), is based on facts nearly identic al to those in the present case. The Marcino court summarized the following facts: The petitioner is an employee of t he United States Postal Service (“the agency”). In 1997, the petitioner wa s s e rving as a flat sorter machine operator at grade lev e l 6 when the agency notified hi m by letter that his position would be abolis hed effect ive March 29, 1997, but he would nonetheles s retain his seniority and coul d “ b id on any existing v a cancies for which [he was] eligib le to bid.” The letter further stated that if the petitioner were unsuccessful in biddi ng for a new position, he would become an “Unassigned Regular Clerk ,” effective March 29, 1997. On March 29, 1997, the agency conv erted the petitioner to an unassigned regular clerk with a sav ed grade level 6. The petitioner subsequently bid for a position as a fl at sorter machine operator at grade level 5 and accepted this position on October 10, 1997. Id. at 1200 (alteration in original). Marcino appealed to the Board. Id. The administrative judge dismissed the appeal for lack of jurisdiction, determining that the Harants / Knight exception did not

03-3326, 04-3005 7apply because Marcino voluntarily bid for a lower-grade pos ition without having been informed that he had not been selected for assi gnment to a position at his former grade level. Id. at 1201. The administr ative judge’s decision became final when two Board members could not reach a dec ision on Marc ino’s petition for full Board review. Id. at 1201-02. This Court affirmed the admin istrative judge’s determin a ti on. We first noted that Marcino had failed t o support his jurisdictiona l allegations with affidavits or other evidenc e. Id. at 1204. We further held that Marci no’s allegations were not sufficient to sustain jurisdiction, even if the allegations were supported by competent evidence, stating: The petitioner has not a lleged that the agency info rmed him that he would not be reas signed to a position at the sa me grade level or that there were no pos itions available at his gra de lev e l, a s was the case in Ha rants and Knig ht . Had that been the case, it woul d hav e bee n futile for the pe titioner to await his actual separation, and hi s acceptance of the level 5 position would hav e been involunt ary or, put differently , he would have been reached for release before he applied for the level 5 position. Instead, the petitioner in the present ca se, like the petitioner in To ra i n , was merely informed that his pos ition was bein g abolis hed. T he petitioner was then converted to an unas signed regular cler k with a sav ed grade level. T h e petitioner had the option of await i ng an appealab le adverse action either an actual r eduction in grade or being informed by the agency t hat there were no alternative level 6 pos it ions available. Yet, as in To ra i n , the petitioner “simply acc epted an alternat ive employment opt ion” by bidding for and accepting a position as a level 5 sorter. Id. The facts of this case are nearly identical to those of Marcino . Marcino held t he same position, level 6 FSM operator, that all but one of petitione rs held, with Hayes holding a level 5 FSM operator position. Just like Marcino, petitioners’ positions wer e abolished. The written notice re ceived by Marcino is materi ally indistinguis hable from

03-3326, 04-3005 8the written notice rec e ived by petitioners. Marcino was reassigned as an unassigned regular cler k, and all petitioners, except for Conover, likewise spent at least some time working as an unass i gned regular clerk. Afte r working as an unassigne d regular clerk, Marcino successfully bid to a lower-grade posit ion wit h saved grade and pay. Similarly, all petitioners, except Doherty , Heaberlin, and Oeltman, succe ssfully bid to lower-grade positions. Petitioners attempt to draw four fact ual distinctions between this case and Marcino , none of which is material. 4 First, petitioners contend that they, but not the petitioner in Marcino , were required to perform the duties of lower-grade positions as unassigned regular clerks. There is nothing in Marcino , howev er, to suggest that the substantive duties perform ed by the petitioner in Marcino while working as an unassigned regular clerk materially differ from the duties performed by petitioners in this case while working as unassi gned regular clerks. Furthermore, under Federal Circuit pr ecedent, a reduction in an employee’s duties and responsibilities, by itself, does not constitute a RIF demotion. Wilson v. Merit Sys. Prot. Bd. , 807 F.2d 1577, 1580 (Fed. Cir. 1986). In Wilso n , the petitioner argued that his reassignment from a position in San Franc isco, Ca lifornia to a position in Bakersfield, California constituted a RIF demotion because his responsib ilities were reduced. In San Francisco, he “was responsi ble for more than 9,000 Post al employ ees and administered a payroll of a pproximately $275 million,” wh ereas in Bak e rsfield, he

4 Petitioners also contend that Marcino does not govern this case because whether their bids for employment were vo luntary “is not an issue presented in this case.” This argument is easily rejected because the Board explicitly held that it did not have jurisdiction because petitioners’ bids “constitute voluntary assignments over whic h the Board lacks jurisdiction un der the RIF regulations.” Burger , 93 M.S.P.R. at 596 (emphasis added).
03-3326, 04-3005 9“was responsible for less than 2,000 employees and administered a payroll o f approximately $50 million.” Id. at 1578. The Wilso n court rejected the petitioner’s argument, hold i ng tha t “[a] reduction in resp onsib ility without a co nc urrent reduction in grade or pay, howev er, is not appealable to the Board.” Id. at 15 80. Thus, petitioners ’ argument that their duties were reduced is ir relevant. Second, petitioners c ontend that Marcino is distinguishable because the USPS, in this case, “relies on the demonstrably fals e premise that, by withhold i ng iss uance of a Form 50 formally reassigning” petitioners to lower-lev el positions commensurate with the lower-level duties they were require d to perform as unassigned regular clerk s , petitioners remained in positio ns at the same grade and pay and, therefore, were not RIF demoted. Petitioners conte nd, as to t he Albers petitioner s, for example, that “the Postal Ser v ice seeks to circumvent the law by deno minating the Albers Petitioners Level 6 F S M Operators, even though they hav e no FSM machine to operate.” We disagree with petitioners’ view of the facts of this cas e

. As unassigned re gular clerk s , petitioners were no longer requir ed to scheme the mai l but continued to be assigned to other duties within the standard position description of the positions they occupied before the AFSM machines we re introduced. For example, the local memorandum of understanding provided to Hayes explains this well: As unencumbered FSM Operators, they may be assigned work within the position description of their bid. They may perform all the duties that they performed before they became unencumber ed. Specifically, they can be assigned to the FSM-1000 and FSM-881, manual distribution or other duties that they normally perform. (Emphasis added.) Thus, becaus e petitioners have failed to demonstrate that they performed duties inconsistent wi th the position to whic h they were officia lly assigne d ,

03-3326, 04-3005 10we find unpersuasive petitioners ’ factual claim that the US PS was required to “formally reassign[]” them to lower-grade positions. Fu rthermore, in addition to advancing a faulty factual premise, petitioners have provided no legal argument, much less authority, as to why a failure formally to so reassign them would be actionable, espec ially given the straightforward holding in Wilso n that a mere change in dutie s or responsibilities does not constitute a RIF demotion. In this case, we take no view on that legal issue. Third, several petitioners di stinguish their cases fro m Marcino based on the length of time spent working as unassigned regular clerks. These petitioners argue that the length of time they spent working as un assigned regular cler ks was sufficiently long to constitute a RIF demotion. The petitioner in Marcino worked for approximately si x and a half months as an unas s i gned regular clerk. Marcino , 344 F.3d at 1200. In this case, only Albers and Conover spent less time than that as unassigned regular clerks. Although we discuss timing in both Marcino and Torain , in ne ither case did we suggest that an employee need wait only for a limited period of time while working as a n unassigned regular c l erk. Further, Marcino ’s language referring to waiting appears to be based entirely on language from Torain

. Compare Marcino , 344 F.3d at 1204 (“The petitioner had the option of awaiting an appealable adverse ac tion eit her an actual reduction in grade or being info rmed by the agency that there were no alternative level 6 positions available.”) (emphasis added), with Torain , 83 F.3d at 1423 (“Torain simply accepted an alternative employment option in lieu of waiting for eventual reassignm ent.”) (emphasis added). Nor does the language of 5 C.F. R. § 210.102(b)(4) support an argument that timing spent wo rking as an unassigned regular clerk is relevant. I n stead, section 210.102(b)(4) limi ts demotions to cha nges of an employee

03-3326, 04-3005 11“[t]o a lower grade” or “[t]o a posit ion with a lower rate of pay,” without discuss ing timing at all. Petitioners rely on Dixon in contending that timing is important, but their reliance

on Dixon is misplaced. Dixon involved a USPS restructurin g in which the petition e rs “were detailed, i.e., temporar ily assigned to agency Placement Centers where they wer e to obtain other positions wit hin the agency.” 64 M.S.P.R. at 447. Petitioners ’ reassignm ents in this case as unassigned regular clerks, howev er, are not temporary details. Although som e aspects of the una ssigned regular clerk position m a y perhaps make an unassigned regular clerk’s schedul e and daily duties less predictable than those of an assigned r egular employee, that does not mean that an unassigned regular clerk position is merely a temporary detail. Accor d ingly, petitioners have failed t o demonstrate the relevance of the length of time duri ng which they worked as unassigned regular clerks to their contention that a RIF demotion occurred. Fourth, the petitioners who bid f o r lowe r-grade positions als o contend that their cases are disti nguishable from Marcino because they received non-written information sufficient under the Harants / Knig ht exc eption to demonstrate that they suffered a RIF demotion. 5 These petitioners cit e evidenc e that they were made unassigned regular clerks and that the collectiv e bargaining agreement contains a statement that employees whose jobs are eliminated “sha ll receiv e saved grade.” These facts, however, do not materially di stinguish their cases from Marcino . On the con t rary, the opinion in Marcino explic itly recites that the petit ioner was made “an unassigned regular

5 These petitioners concede that the wri tten notification they received did not explic itly state that t hey had not been s e lected for positions at the same grade and pay.
03-3326, 04-3005 12clerk with a saved gr ade lev e l 6.” Marcino , 344 F.3d at 1200. Additionally, thes e petitioners cite evidence that they were not placed in r e sidual lev e l 6 assignments while working as unassigned regular c l erks and that all the level 6 F S M operat or positions at the local fa cility were abolished. These fac t s also do not disting u ish these petitioners ’ cases from Marcino , which states, “The agency conceded that at the time the petitioner accepted his lev e l 5 position, ‘ all Level 6 positions wer e being abolis hed or r e verted due to automati on and mechanization changes.’” Id. (emphasis added). Because petitioners have failed to distinguish Marcino , we are bound by its holding. Accordingly, the Board properly determined that it did not have jurisdiction because petitioners did not suffer RIF demotions. We note that petitioners also take issue with the Board’s findi ng that “unassigned regular clerk” is a position at the same grade and pay as petitioners’ FSM operator positions. Petitioner s argue t hat a change in des ignation to “unassig n ed regular” is merely a change in t he employ ee’s status within a position but does not change his position. More specifically , an employee has both a positi on and a status as either assigned or unassigned in a dut y assignment. A pos ition is a for m ally described set of duties found in a standard posit ion descript i on, whereas a duty assignment is a set of duties within a position to be performed at specific times. Being changed from assigned to unassigned status, therefore, involv es the elimination of a specific duty assignment , but not a change in their positions. We need not determine, however, whet her this finding is supported b y substantial evidence because even if we adopt petitioners’ view of the facts, we must affirm the Board’s decision. Under the Board’s theory, petitioners were not demoted

03-3326, 04-3005 13because “unassigned regular cler k” is a position at the same gr ade and pay as their former positions. Under petitioners’ theory, their positions were not changed. But if their positions were not changed, they we re not dem oted, because demotion requires reassignm ent to a position wit h lower grade or pay. Accordingly, any error in the Board’s finding would be harmless. III. Conclusion In sum, because petitioners have failed to distinguish Marcino , which binds us to hold that petitioners did not suffer RIF demotions, and have not otherwise dem onstrated that the Board’s decision was not in accordan ce with the law or supported by substantial evidenc e, we affirm.
AFFIRMED

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