NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AVON JARRETT SPEARMAN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3053
______________________
Petition for review of the Merit Systems Protection
Board in No. DC0752120306-I-1.
______________________
Decided: August 8, 2013
______________________
AVON JARRETT SPEARMAN, of Gwynn Oak, Maryland,
pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, United States Merit Systems Protection
Board, of Washington, DC, for respondent. With her on
the brief were BRYAN G. POLISUK, General Counsel, and
KEISHA DAWN BELL, Deputy General Counsel. Of counsel
was MICHAEL A. CARNEY, General Counsel.
______________________
Before LOURIE, MAYER, and O’MALLEY, Circuit Judges.
2 AVON SPEARMAN v. MSPB
PER CURIAM.
Avon Jarrett Spearman seeks review of a final order
of the Merit Systems Protection Board (“board”), see
Spearman v. Dep’t of the Treasury, 118 M.S.P.R. 639
(2012), that denied his petition for review of an initial
decision dismissing his appeal for lack of jurisdiction, see
Spearman v. Dep’t of the Treasury, No. DC0752120306-I-
1, 2012 MSPB LEXIS 2202 (Apr. 11, 2012) (“Initial Deci-
sion”). We affirm.
I. BACKGROUND
Spearman was employed as a GS-12 Information
Technology Specialist with the Internal Revenue Service
(“IRS”). On June 29, 2011, he pled guilty, in state court,
to charges of passing a forged public document. Three
weeks later, the IRS notified Spearman that it proposed
to remove him based upon three charges: (1) conduct
unbecoming an IRS employee; (2) making false state-
ments in a matter of official interest; and (3) failure to pay
federal income taxes in a timely manner.
After considering Spearman’s written reply to the
proposed removal notice, the IRS sustained the charges
against him and notified him that he would be removed
from his position effective August 23, 2011. Spearman
then emailed his supervisor and requested that he be
allowed to resign from his position with the agency. The
IRS accepted his resignation, and he resigned from his
position effective August 26, 2011.
On February 13, 2012, Spearman filed an appeal with
the board. An administrative judge subsequently issued
an acknowledgement order advising Spearman that the
board might not have jurisdiction over his appeal because
his resignation was presumed to be voluntary and volun-
tary resignations are not appealable to the board. See
Initial Decision, 2012 MSPB LEXIS 2202, at *6. Spear-
man responded with a written submission in which he
stated that he “was forced to be removed from service for
allegedly ongoing conduct related issues,” and that his
AVON SPEARMAN v. MSPB 3
supervisors had informed him that he “had no appeal
rights after [his] resignation.” Spearman further asserted
that he had been “taken advantage of” due to a “learning
disability.”
On April 11, 2012, the administrative judge issued an
initial decision dismissing Spearman’s appeal for lack of
jurisdiction. The judge determined that Spearman had
failed to overcome the presumption that his resignation
had been voluntary, noting that he had “identified no
circumstances surrounding his decision to resign that
might reflect any deprivation of free choice on his part.”
Id. at *8. The judge explained that although a resigna-
tion will be deemed involuntary if an employee can show
that an agency had no reasonable basis for proposing his
removal, id. at *6, “[t]he record contain[ed] nothing to
even suggest that the agency’s reasons for [Spearman’s]
removal could not be substantiated,” id. at *8.
On November 1, 2012, the board denied Spearman’s
petition for review of the administrative judge’s initial
decision. He then filed a timely appeal with this court.
II. DISCUSSION
We must affirm a board decision unless it is: “(1) arbi-
trary, 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); Terban v. Dep’t of Energy, 216 F.3d 1021, 1024
(Fed. Cir. 2000). We review de novo the question of
whether the board has jurisdiction over an appeal. Fields
v. Dep’t of Justice, 452 F.3d 1297, 1301 (Fed. Cir. 2006).
“The board’s jurisdiction is not plenary, but is limited
to those matters over which it has been granted jurisdic-
tion by law, rule or regulation.” Johnston v. Merit Sys.
Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). It was
Spearman’s burden to establish, by a preponderance of
the evidence, that the board had jurisdiction over his
appeal. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
4 AVON SPEARMAN v. MSPB
1344 (Fed. Cir. 2006) (en banc); see also 5 C.F.R.
§ 1201.56(a)(2)(i).
The board has no jurisdiction over voluntary resigna-
tions. See Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328,
1332 (Fed. Cir. 2008). A decision to resign, moreover, is
presumed to be voluntary. Shoaf v. Dep’t of Agric., 260
F.3d 1336, 1340-41 (Fed. Cir. 2001). It is only in situa-
tions where an employee can show that his resignation
“was involuntary and thus tantamount to forced removal”
that the board can exercise jurisdiction over his appeal.
Id. at 1341 (footnote omitted); see Staats v. U.S. Postal
Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996).
Where, as here, an employee resigns in order to avoid
removal, the resignation will generally be deemed volun-
tary. See Parrott, 519 F.3d at 1334-35. “Our case law is
settled that where an employee is faced with the unpleas-
ant alternative of resigning or being subjected to an
adverse action, the resulting resignation cannot be con-
sidered an involuntary retirement unless the employee
shows that the agency lacked reasonable grounds for
threatening to take the adverse action.” Terban, 216 F.3d
at 1026. Here, the record contains ample evidence show-
ing that the IRS had reasonable grounds to remove
Spearman from his position. Spearman does not dispute
that he pled guilty, in state court, to charges of passing a
forged document. The record shows, moreover, that he
failed to pay his 2007 federal income taxes in a timely
manner. Under such circumstances, the board correctly
determined that the IRS had a reasonable basis for pro-
posing Spearman’s removal and that his resignation was
therefore not involuntary. See Initial Decision, 2012
MSPB LEXIS 2202, at *8; see also Conforto v. Merit Sys.
Prot. Bd., 713 F.3d 1111, 1123 (Fed. Cir. 2013) (conclud-
ing that a retirement was not involuntary where it was
not the result of “improper acts” by the agency); Schultz v.
U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987) (empha-
sizing that a threat of adverse action is coercive only if it
cannot be substantiated).
AVON SPEARMAN v. MSPB 5
On appeal, Spearman asserts that his resignation was
involuntary because the IRS “forced” him to resign from
his position. In support, he alleges that after the agency
decided to remove him, his third-level supervisor, Craig
Drake, called him and proposed an “alternative solution.”
Spearman alleges that Drake offered to allow him to
resign in lieu of being removed, and informed him that by
resigning he would be able to retain the funds he had
accumulated in his Thrift Savings Plan account. Spear-
man further alleges that Craig told him that he would
receive a letter thanking him for his service to the agency
if he elected to resign from his position. Even assuming
that Craig made these statements, however, it would not
establish that the board had jurisdiction over Spearman’s
appeal. An agency does not engage in “coercive conduct”
when it offers an employee facing removal the option of
resigning from the federal service. Parrott, 519 F.3d at
1334 (concluding that a resignation was not involuntary
where an agency gave an employee the option to resign
“for personal reasons” in lieu of being removed from his
position); see also Terban, 216 F.3d at 1026 (emphasizing
that “a choice is not involuntary simply because an em-
ployee is faced with an inherently unpleasant situation or
his choice is limited to two unpleasant alternatives”).
Thus, that Craig may have offered Spearman the oppor-
tunity to resign in lieu of being removed—and pointed out
the advantages of doing so—would not establish that his
resignation was involuntary.
We have considered the additional arguments made
by Spearman, but do not find them persuasive. We there-
fore affirm the decision of the Merit Systems Protection
Board dismissing his appeal for lack of jurisdiction.
AFFIRMED