NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LAWRENCE BROTHERS,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent,

 

AND

DEPARTMENT OF THE ARMY,

Intervenor.

______________________ 

2012-3180

______________________ 

Appeal from the Merit Systems Protection Board in 

No. SF3151110724-I-1.

______________________ 

Decided: January 15, 2013 

______________________ 

LAWRENCE BROTHERS, of Petersburg, Virginia, pro se. 

KATHERINE M. SMITH, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With her on the brief were JAMES M.
2 LAWRENCE BROTHERS v. MSPB

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

SHELLEY D. WEGER, Attorney, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for intervenor. With her on 

the brief were STUART F. DELERY, Acting Assistant Attorney General, JEANNE E. DAVIDSON, Director, and CLAUDIA 

BURKE, Assistant Director, Of counsel was MICHAEL 

JAMES CARLSON, U.S. Army Litigation Division, of Fort 

Belvoir, Virginia. 

______________________ 

Before NEWMAN, SCHALL, and WALLACH, Circuit Judges.

PER CURIAM.

Lawrence Brothers appeals from the decision of the 

Merit System Protection Board (the “Board”) dismissing 

his appeal for lack of jurisdiction.1 Brothers v. Dep’t of the 

Army, No. SF-3151-11-0724-I-1 (M.S.P.B. Jun. 21, 2012) 

(“Final Decision”). We affirm. 

BACKGROUND

On June 6, 2010, Mr. Brothers was promoted from a 

Heavy Mobile Equipment Mechanic (WG-5803-10) at Fort 

Lee, Virginia, to an Automotive Mechanic Supervisor 

(WS-5823-10) at Camp Red Cloud, Korea, subject to the 

successful completion of a one-year probationary period 

ending June 6, 2011. Prior to his promotion Mr. Brothers 

1 An administrative judge (“AJ”) dismissed Mr. 

Brothers’s appeal for lack of jurisdiction. Brothers v. Dep’t 

of the Army, No. SF-3151-11-0724-I-1 (M.S.P.B. Nov. 7, 

2011) (“Initial Decision”). The full Board denied his petition for review and adopted the initial decision of the AJ 

as the Board’s final decision. Both decisions will be 

referred to as the decision of the Board. 

 
 LAWRENCE BROTHERS v. MSPB 3

had signed a return rights agreement, dated May 10, 

2010, which stated: 

I understand that in exercising my return 

rights, I shall be placed in the position which 

I held immediately before my assignment 

overseas, if such position exists. If such position does not exist, I shall be placed in a position of equal grade and in the same 

geographic area in accordance with the procedures specified in 10 U.S.C. §1586, section c.

Respondent’s App’x. 49. On May 24, 2011, the Army 

issued a memorandum granting approval “to immediately 

curtail” Mr. Brothers’s overseas tour for not successfully 

completing his probationary period. Respondent’s App’x. 

2. Mr. Brothers exercised his return rights, requesting a 

report date of July 31, 2011. He continued in his supervisory position at Camp Red Cloud until July 31, 2011, 

when he returned to his non-supervisory position at Fort 

Lee, Virginia. 

On July 17, 2011, Mr. Brothers filed an appeal with 

the Board arguing that he had completed his probationary 

period as a supervisor and was demoted to a nonsupervisory position without due process. Initially, the 

Board advised Mr. Brothers that it may not have jurisdiction over an appeal by an employee who did not satisfactorily complete his probationary period. In response, Mr. 

Brothers claimed that, based on his earning statements 

and forms, he remained in his supervisory position for 

more than one year and he was demoted without due 

process. The Army responded that the Board lacked 

jurisdiction over Mr. Brothers’s appeal because his demotion was voluntary and thus did not constitute an adverse 

action subject to the Board’s review. The Army argued 

that Mr. Brothers voluntarily exercised his return rights, 

agreeing to resume the position he held before his overseas assignment. See 5 C.F.R. § 1201.3. The AJ issued an 
4 LAWRENCE BROTHERS v. MSPB

order to show cause to establish that his demotion was 

within the Board’s jurisdiction, but Mr. Brothers did not 

file a response. The AJ dismissed the appeal for lack of 

jurisdiction, finding that Mr. Brothers “failed to present 

any evidence that his exercise of his return rights was not 

. . . voluntary.” Initial Decision at 5. 

Mr. Brothers petitioned to the full Board for review, 

arguing for the first time that he did not voluntarily 

exercise his return rights, but did so only to avoid being 

separated. The Board denied the petition for review 

because there was no new, previously unavailable evidence, and the AJ made no error affecting the outcome of 

the case. In particular, the Board found that it did not 

need to address Mr. Brothers’s voluntariness argument 

because it had not been raised before the AJ. However, 

the Board addressed the argument, stating that choosing 

between two unpleasant alternatives does not render an 

action involuntary. Thus, the Board concluded that Mr. 

Brothers’s appeal was properly dismissed for lack of 

jurisdiction. Mr. Brothers filed a timely petition for 

review to this court. We have jurisdiction pursuant to 28 

U.S.C. §1295(a)(9).

DISCUSSION

The scope of our review in an appeal from the 

Board is limited. We must affirm the Board’s decision 

unless we find it to be “(1) arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law; (2)

obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c) (2006). This 

court reviews the Board’s determinations of jurisdiction 

de novo while underlying findings of fact are reviewed for 

substantial evidence. Parrott v. Merit Sys. Protection Bd., 

519 F.3d 1328, 1334 (Fed. Cir. 2008). Under the substantial evidence standard, this court reverses the Board’s 

decision only “if it is not supported by such relevant 
 LAWRENCE BROTHERS v. MSPB 5

evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Haebe v. Dep’t of Justice, 288 

F.3d 1288, 1298 (Fed. Cir. 2002) (internal quotation 

omitted). 

Mr. Brothers bears the burden of proving by a preponderance of the evidence that the Board possesses 

jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i). 

The Board possesses jurisdiction over appeals of an involuntary reduction in grade or pay but not over voluntary 

actions. See 5 U.S.C. § 7512; Garcia v. Dep’t of Homeland 

Sec., 437 F.3d 1322, 1328-29 (Fed. Cir. 2006) (en banc). 

This court has recognized that in some circumstances 

seemingly voluntary actions may be considered adverse 

actions. Id. at 1328. The Board “possesses jurisdiction 

over an appeal filed by an employee . . . if the employee 

proves, by a preponderance of the evidence, that [his or 

her action] was involuntary and thus tantamount to [a 

forced enumerated adverse action].” Id. at 1329 (quoting 

Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 

2001)) (alterations in original). The Board determined 

that Mr. Brothers was not subject to an adverse employment action, but rather was voluntarily demoted. The 

Board determined that Mr. Brothers failed to provide any 

evidence or make a non-frivolous allegation that his 

exercise of his return rights was involuntary. See 

Coradeschi v. Dep’t of Homeland Sec., 439 F.3d 1329, 1332 

(Fed. Cir. 2006) (petitioners must make non-frivolous 

allegations to establish that the Board’s exercise of jurisdiction is proper).

On appeal, Mr. Brothers contends that the Board 

failed to consider that he was demoted after completion of 

his probationary period without due process as set forth 

in either 5 U.S.C. § 7513 or 5 U.S.C. § 4303. These statutes provide procedures that an agency must follow when 

imposing an adverse action on an employee. The due 

process procedures of 5 U.S.C. § 7513 and 5 U.S.C. § 4303, 
6 LAWRENCE BROTHERS v. MSPB

however, do not apply to voluntary personnel actions. 

Garcia, 437 F.3d at 1328-29. Therefore, the operative 

question is not whether Mr. Brothers had completed his 

probationary period and therefore was an employee with 

adverse action rights, but rather, whether he voluntarily 

requested to exercise his return rights. The Board reasoned that “although an action initiated by an employee

in response to a threatened involuntary personnel action 

is considered involuntary if the employee shows that the 

agency knew or believed that the threatened action could 

not be substantiated, the appellant has made no such 

showing here.” Final Decision at 2. Moreover, the Board 

determined that Mr. Brothers had failed to show that the 

action was taken under duress or in reliance upon misinformation. Id. at 3. 

In his supplemental brief, Mr. Brothers contends 

that because he was presented with a memorandum

curtailing his overseas tour, he was forced to either exercise his return rights, “register for Priority Placement[,] or 

risk being separated.” Supplemental Br. at 7. However, 

even if Mr. Brothers was required to elect between demotion and removal, that choice does not render his decision 

involuntary. Cf. Terban v. Dep’t of Energy, 216 F.3d 1021, 

1026 (Fed. Cir. 2000) (“[A] choice is not involuntary 

simply because an employee is faced with an inherently 

unpleasant situation or his choice is limited to two unpleasant alternatives.”); Schultz v. U.S. Navy, 810 F.2d 

1133, 1136 (Fed. Cir. 1987) (“[W]here an employee is faced 

merely with the unpleasant alternatives of resigning or 

being subject to removal for cause, such limited choices do 

not make the resulting resignation an involuntary act.”) 

As a result, substantial evidence supports the Board’s 

determination that Mr. Brothers voluntarily exercised his 

return rights. See Garcia, 437 F.3d at 1332. Accordingly, 

Mr. Brothers’s demotion was not an adverse action appealable to the Board. 5 C.F.R. § 1201.3. 
 LAWRENCE BROTHERS v. MSPB 7

CONCLUSION

For the foregoing reasons, we affirm the final decision of the Board that it lacked jurisdiction over Mr. 

Brothers’s appeal.

AFFIRMED

No costs.