NOTE: This disposition is nonprecedential. 

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 

 

2007-3208 

MARILYN R. LEIBOWITZ, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Marilyn R. Leibowitz, of Plainview, New York, pro se. 

Jeffrey A. Gauger, Attorney, United States Merit Systems Protection Board, of 

Washington, DC, for respondent. With him on the brief were B. Chad Bungard, General 

Counsel, and Rosa M. Koppel, Deputy General Counsel. 

Appealed from: United States Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-3208 

MARILYN R. LEIBOWITZ, 

 Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

 Respondent. 

____________________________ 

DECIDED: October 5, 2007 

____________________________ 

 

Before LOURIE, GAJARSA, and PROST, Circuit Judges. 

PER CURIAM. 

DECISION 

 Marilyn R. Leibowitz appeals from the decision of the Merit Systems Protection 

Board (“the Board”) dismissing for lack of jurisdiction her appeal from a reduction in 

grade. Leibowitz v. Dep’t of the Treasury, NY-0351-06-0274-I-1 (M.S.P.B. Mar. 5, 

2007) (initial decision dated Oct. 31, 2006). Because the Board’s decision was 

supported by substantial evidence and in accordance with law, we affirm. 

BACKGROUND 

 Leibowitz was previously employed as a Territory Manager, GS-15, in Brooklyn, 

New York, for the Business/Self-Employed Division, Taxpayer Education and 
Communications (“TEC”) organization of the Internal Revenue Service, Department of 

the Treasury (“the agency”). During a restructuring of TEC in 2003, the number of 

territories within the organization was reduced from seventy-six to forty-eight. 

Leibowitz’s Territory Manager position was selected for elimination due to the 

consolidation. 

The agency informed Leibowitz on October 21, 2003, that her position was being 

eliminated and that she had until July 1, 2004, to find a new position. She was sixty-two 

years old at that time. Leibowitz filed an equal employment opportunity complaint 

alleging that age discrimination had been a factor in the elimination of her position, but 

she received an unfavorable determination on that claim on May 25, 2006. She also 

applied for two other GS-15 positions in her commuting area but was not selected. 

Having been unable to find a position at the same level in the same area, 

Leibowitz signed a Change to Lower Grade Statement (“the CLGS”) on February 16, 

2004. Leibowitz later rejected the offer of a $25,000 Voluntary Separation Incentive 

Payout made by the agency on April 1, 2004. Leibowitz was then transferred to the 

position of Management and Program Analyst, GS-13, on May 16, 2004, but retained 

her GS-15 pay. The Notification of Personnel Action for the transfer states that the 

transfer was at her request. Also, her complaint statement indicates that Leibowitz took 

the lower grade with salary retention because she had been unable to locate a GS-15 

position in her commuting area and feared that she would be terminated if she refused 

to accept the alternate position that would be assigned to her by the agency if she did 

not find a position on her own before July 1, 2004. She retired eight months after 

2007-3208 -2- 
starting her new job because, as the Administrative Judge (“AJ”) stated, she was 

disillusioned by the loss of her prior position. 

In his Initial Decision on the agency’s motion to dismiss the appeal for lack of 

jurisdiction, the AJ concluded that the Board did not have jurisdiction to hear Leibowitz’s 

appeal concerning alleged discrimination and her reduction in grade because the 

change in grade was voluntary and a discrimination claim could only be heard in 

connection with a claim over which the Board had jurisdiction. The AJ’s ID became the 

final decision of the Board. See 5 C.F.R. § 1201.113. Leibowitz timely appealed to this 

court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION 

On appeal, Leibowitz argues that the Board failed to address the evidence 

supporting her age discrimination claim and that this was error because the alleged 

discrimination caused her to take a position at a lower grade. She also argues that the 

agency failed to advise her regarding her rights if she did not sign the CLGS. In 

response, the government argues that the Board only has jurisdiction over a limited set 

of adverse actions affecting employees and that the Board correctly concluded that it 

did not have jurisdiction over a reduction in grade undertaken voluntarily. The 

government did not respond to Leibowitz’s allegation that she was not informed of her 

rights because she first raised that argument in her reply brief. 

We agree with the Board that the AJ’s decision was supported by substantial 

evidence and in accordance with law. The scope of our review in an appeal from a 

decision of the Board is limited. We must affirm the Board’s decision unless it was “(1) 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) 

2007-3208 -3- 
obtained without procedures required by law, rule, or regulation having been followed; 

or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit 

Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). 

In order for the Board to decide an issue of discrimination, it must have been the 

basis of “an action which the employee or applicant may appeal to the [Board].” See 5 

U.S.C. § 7702(a); Garcia v. DHS, 437 F.3d 1322, 1325 (Fed. Cir. 2006) (en banc). A 

reduction in grade may be appealed to the Board, 5 U.S.C. § 7512, but the adverse 

action must have been involuntary, see Garcia, 437 F.3d at 1328. “Under our 

precedent, the Board does not have jurisdiction if an employee bids for a lower grade 

position, unless the agency induced the employee to bid for the lower grade job by 

informing [her] (1) that [her] position had been abolished and (2) that [she] would not be 

reassigned to a position at the same grade level.” Marcino v. USPS, 344 F.3d 1199, 

1203 (Fed. Cir. 2003). Application for and acceptance of a lower grade position does 

not deprive the Board of jurisdiction so long as the application and acceptance are 

made after the agency informs the employee that she will not be reassigned. Id. As 

this court has explained: 

[coercive involuntariness] does not apply to a case in which an employee 

decides to resign or retire because he does not want to accept a new 

assignment, a transfer, or other measures that the agency is authorized to 

adopt, even if those measures make continuation in the job so unpleasant 

for the employee that he feels that he has no realistic option but to leave. 

As this court has explained, the 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. 

Garcia, 437 F.3d at 1329 (quoting Staats v. USPS, 99 F.3d 1120, 1124 (Fed. Cir. 

1996)). 

2007-3208 -4- 
2007-3208 -5- 

While the agency had clearly informed Leibowitz that her position was being 

abolished, Leibowitz did not allege that the agency had informed her that she would not 

be reassigned. Instead, the record indicates that, faced with the possibility that she 

would be terminated if she refused a reassignment outside her current area of 

residence, Leibowitz voluntarily chose to accept a reduction in grade with salary 

retention for a position in her commuting area. A voluntary reduction in grade is not an 

adverse employment action that may be appealed to the Board, and the Board could 

not therefore reach the underlying allegation of discrimination. The AJ also found that 

Leibowitz had made no allegation that she was misled by the agency, and she does not 

specify any such action or omission by the agency in her appeal. 

Because the Board did not arbitrarily apply the jurisdictional requirements for an 

appeal of an adverse employee action, we affirm its decision.