UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTHONY W. BROUSSARD,

Appellant,

v. 

UNITED STATES POSTAL SERVICE,

Agency. 

DOCKET NUMBER

AT-0351-15-0673-I-1

DATE: August 26, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Anthony W. Broussard, Columbia, South Carolina, pro se. 

Greg Allan Ribreau, Charlotte, North Carolina, 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 alleged involuntary reduction-in-grade 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

of the law to the facts of the case; the administrative 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, 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). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was employed as an EAS-21 Vehicle Maintenance Facility 

(VMF) Manager at the Columbia, South Carolina VMF. Initial Appeal File 

(IAF), Tab 1 at 7, Tab 9 at 68. During the first week of May 2015, the agency

announced that it would be restructuring its VMF organization and that a

reduction in force (RIF) might be necessary. IAF, Tab 9 at 48-49, 51-52, 58, 

70-99. The appellant’s position was one of the positions proposed to be 

eliminated. Id. at 89. On May 22, 2015, the appellant requested a 

noncompetitive reassignment to the posted EAS‐19 VMF Manager position at the 

Columbia, South Carolina VMF. Id. at 68. Effective May 30, 2015, the agency 

processed the appellant’s noncompetitive placement in the EAS-19 VMF Manager

position. 2

 Id. at 66. 

¶3 On July 6, 2015, the appellant appealed the reduction in grade to the Board

and requested a hearing. IAF, Tab 1. The administrative judge informed the 

 2 Although the appellant was reassigned to the lower-graded position, he received saved 

grade and pay for 2 years. IAF, Tab 9 at 64, 66, 91. Thus, his Postal Service Form 50 

reflects that he occupies an EAS-21 level position. Id. at 64, 66. 
3

appellant that an employee’s acceptance of a lower-graded position generally is 

considered to be voluntary and not subject to the Board’s jurisdiction, and 

ordered the appellant to submit evidence and argument establishing Board 

jurisdiction over his appeal. IAF, Tab 10. In response, the appellant contended 

that his acceptance of the lower-graded position was involuntary because he was 

forced to choose between accepting a reduction in grade or facing a “RIF that 

affected only [his] position in [his] very limited career field . . . with no chance of 

placement for over a hundred miles, and with an inevitable dismissal from the 

Postal Service.” IAF, Tab 15 at 1-2. He also asserted that his decision to request 

a reassignment to a lower-graded position was based on erroneous or misleading 

information by agency management. Id.; IAF, Tab 19 at 1‐3. Without holding 

the requested hearing, the administrative judge dismissed the appeal for lack of 

jurisdiction, finding that the appellant failed to establish that his acceptance of 

the lower‐graded position constituted an appealable involuntary reduction in 

grade. IAF, Tab 21, Initial Decision (ID). 

¶4 The appellant has filed a petition for review of the initial decision, and the 

agency has responded in opposition to his petition for review. Petition for

Review (PFR) File, Tabs 1, 3. 

¶5 To constitute an appealable action, a reduction in grade or pay must be 

involuntary. Goodwin v. Department of Transportation, 106 M.S.P.R. 520, ¶ 12 

(2007). The Board will grant a hearing to determine whether an appellant 

involuntarily accepted a lower-graded position only if the appellant 

nonfrivolously alleges that his acceptance was the result of duress, coercion, or 

misrepresentation by the agency. See id. Nonfrivolous allegations of Board 

jurisdiction are allegations of fact that, if proven, could establish a prima facie 

case that the Board has jurisdiction over the matter at issue. Id. To meet the 

nonfrivolous standard, an appellant need only plead allegations of fact that, if 
4

proven, could show jurisdiction, though mere pro forma allegations are 

insufficient to satisfy the nonfrivolous standard. Id. 

¶6 As noted above, one way of overcoming the presumption of voluntariness is 

by showing that the appellant’s acceptance of the lower-graded position was the 

product of coercion by the agency. See Staats v. U.S. Postal Service, 99 F.3d 

1120, 1124 (Fed. Cir. 1996) (discussing the standard in the context of an alleged 

involuntary resignation or retirement). To establish involuntariness on the basis 

of coercion, an employee must show that the agency effectively imposed the 

terms of the employee’s acceptance of the lower-graded position, that the 

employee had no realistic alternative but to accept the lower-graded position, and 

that his acceptance was the result of improper acts by the agency. See id. 

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, 713 F.3d 1111, 1121 (Fed. Cir. 2013). 

¶7 The appellant argues on review that, due to the agency’s “decision to 

severely limit the competitive area” and its “callous disregard” of Office of 

Personnel Management (OPM) guidelines, he had “no reasonable choice other 

than to take a downgrade, or be released from service on the date specified in the 

agency’s General RIF notice.” PFR File, Tab 1 at 4-5. He further argues that 

“being forced to ‘compete’ for a similar level position hundreds of miles out of 

state and at great personal expense . . . is also not a ‘reasonable’ option in 

accordance with OPM guidelines.” Id. at 6. As the administrative judge correctly 

determined, however, the appellant has failed to allege facts that, if proven, 

would establish that the agency acted improperly in setting the competitive area 

for the RIF. ID at 5‐6. Furthermore, as stated above, a choice between 
5

unpleasant alternatives does not render an employee’s choice any less 

involuntary. Staats, 99 F.3d at 1124; Soler‐Minardo v. Department of 

Defense, 92 M.S.P.R. 100, ¶ 9 (2002) (finding that the fact that the appellant was 

faced with either a demotion or a possible removal did not render her acceptance 

of the agency’s proposal involuntary). Here, the fact that the appellant chose to 

accept the lower-graded position to avoid the potential impact of a RIF does not 

render his decision to accept the lower-graded position prior to the RIF period 

involuntary. See Staats, 99 F.3d at 1124. 

¶8 An employee also may rebut the presumption of voluntariness by showing 

that his acceptance of the lower-graded position resulted from reasonable reliance

on the agency’s misinformation. Herrin v. Department of the 

Air Force, 95 M.S.P.R. 536, ¶ 10 (2004). A reduction in grade will be considered 

involuntary if the employee materially relied on the agency’s misinformation, to 

his detriment, based on an objective evaluation of the surrounding 

circumstances. Id. 

¶9 The appellant asserted below that his decision to request a reassignment to a 

lower‐graded position was based on erroneous or misleading information because 

a senior management official assured him that he would be promoted to a 

higher-graded position and that accepting the lower-graded position was merely a 

formality to allow him to stay on the agency rolls while the selections for the 

higher-graded positions were finalized. IAF, Tab 19 at 1-3. The administrative 

judge found, however, that the appellant failed to nonfrivolously allege that his 

acceptance of the lower-graded position was involuntary due to misinformation 

because he did not allege that the agency ever informed him that his chances for 

receiving a promotion following the reorganization were contingent upon his 

acceptance of a lower-graded position or that he would be separated if he 

remained in his former position rather than accepting the lower-graded position. 

ID at 6. The administrative judge also found that, even if the appellant had 
6

remained in his former position and had been released from his competitive level 

during the RIF, he would have had reassignment rights that might have resulted in 

his being reassigned to a position that would have allowed him to remain on the 

agency’s rolls to compete for the higher-graded positions. Id. Additionally, the 

administrative judge noted that, by the appellant’s own admission, the agency 

offered the appellant one of the higher-graded positions resulting from the 

reorganization, but he rejected the offer because he refused to relocate from 

South Carolina to Gaithersburg, Maryland. ID at 6; see IAF, Tab 19 at 2. 

¶10 The appellant argues on review that the administrative judge erred in 

finding that his acceptance of the lower-graded position was not involuntary due 

to misinformation because the RIF timeline indicated that employees in his 

position would be released by a specific date if they did not find a new position 

by then, and because, as a retired military veteran, he was not entitled to RIF 

protections and had no reassignment rights.

3

 PFR File, Tab 1 at 6. As the 

administrative judge noted, however, the appellant admitted that the agency 

offered him one of the EAS-25 positions, which he declined. ID at 6; see IAF,

Tab 19 at 2. Thus, even if, as the appellant alleged, the agency assured him that 

he would receive a promotion after he accepted the lower-graded position, he has 

failed to nonfrivolously allege that the agency provided him incorrect information 

 3 The appellant submitted a copy of the June 2, 2015 General RIF Notice, which was not 

entered into the record below, showing that he was not eligible for veterans’ preference 

rights for RIF purposes. PFR File, Tab 1 at 13. The appellant explained that he did not 

submit this document below because he was “under the assumptions that the Board was 

fully aware of the appellant’s RIF status, to include rights, and protections, or in the 

case of a ‘retired’ Veteran, the lack of RIF protections,” and asked that the document be 

entered into the record. Id. at 6-7. 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. 
7

because the agency in fact offered him a promotion less than 2 months after he 

requested reassignment to the lower-graded position. 4

 IAF, Tab 9 at 66. 

Moreover, the appellant’s contentions on review provide no basis to disturb the 

administrative judge’s findings that the appellant has not nonfrivolously alleged 

that he reasonably relied on the agency’s misinformation to his detriment. Even 

if his contentions on review are true—namely, that employees in his position 

would be released by a specific date if they did not find a new position by then 

and that he was not entitled to RIF protections or reassignment rights—he has 

failed to nonfrivolously allege that he is in a worse position than he would have 

been absent the agency’s alleged misinformation regarding when he would 

receive a promotion. 5

 PFR File, Tab 1. Thus, we agree with the administrative 

judge that the appellant’s acceptance of the lower‐graded position was not 

involuntary based on misinformation. 

¶11 An appellant’s acceptance of a lower-graded position also may be 

considered involuntary if he did not have sufficient time to reflect about his

alternative course of action before he was required to make his decision. 

Soler‐Minardo, 92 M.S.P.R. 100, ¶ 7. Unreasonable time constraints have been 

found to constitute coercion. Id. The appellant appears to argue that the agency 

imposed an unreasonable time constraint of 21 days on him to either accept a 

lower-graded position or to be separated from service. PFR File, Tab 1 at 7. 

 4 Although the agency offered the appellant an EAS-25 position in Gaithersburg, 

Maryland, in July 2015, the appellant alleged that, when he applied for it, it was 

“posted as Domiciled within the Area selected.” IAF, Tab 19 at 2. He stated that he 

later learned that “the requirements of the job changed after [it was] posted” and he 

would be required to relocate if he accepted the position. Id.; see IAF, Tab 19,

Subtab E. The appellant has not nonfrivolously alleged, however, that agency 

management assured him that he would receive a higher-graded position at any 

particular duty station. IAF, Tab 15 at 1-2, Tab 19 at 1-3. 

5 The RIF timeline provided by the appellant reflects that the deadline to accept a 

reclassification downgrade with 2-year saved pay was June 5, 2015. IAF, Tab 19,

Subtab A. 
8

Even if the appellant’s factual assertion is true, however, a 21-day period to 

consider his alternative course of action before he was required to make his 

decision is not an unreasonable time constraint. See, e.g., SolerMinardo, 92 M.S.P.R. 100, ¶ 10 (finding that a 10‐day period to decide between 

accepting a demotion or facing possible removal was not an unreasonable 

time constraint). 

¶12 Finally, the appellant appears to argue on review that the administrative 

judge erred by failing to address his contention that the agency violated OPM’s 

guidelines, which require Federal agencies to “make every effort to find similar 

leve[l] employment within commuting distance when Agency reorganizations are 

made.” PFR File, Tab 1 at 8-9. Contrary to the appellant’s assertion, the 

administrative judge considered the appellant’s argument to the extent it 

pertained to the dispositive jurisdictional issue, i.e., whether the agency acted 

improperly as to render his acceptance of the lower-graded position involuntary. 

ID at 5. As discussed above, the administrative judge correctly determined that 

the appellant failed to nonfrivolously allege that his acceptance of the 

lower-graded position was involuntary, and therefore, the Board lacks jurisdiction 

over his appeal. ID at 5-6. We find that, absent an appealable action, the Board 

lacks jurisdiction to consider the appellant’s challenges to the agency’s 

reorganization. See Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 

(Fed. Cir. 1985) (explaining that the Board’s jurisdiction is limited to those 

matters over which it has been given jurisdiction by law, rule, or regulation). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

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 an appeal to 

the U.S. 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.

______________________________

Jennifer Everling

Acting Clerk of the Board