Apodaca v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
__________________________

ANTONIO M. APODACA
Petitioner,

v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________

2009-3293
__________________________

Petition for review of the Merit Systems Protection
Board in AT0752090223-I-1.
____________________________

Decided: June 10, 2010
____________________________

ANTONIO M. APODACA, of Miami, Florida, pro se.

JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
APODACA v. MSPB 2

Before LOURIE, FRIEDMAN and MOORE, Circuit Judges.
PER CURIAM.

Antonio Apodaca appeals from the final decision of
the Merit Systems Protection Board (the “Board”) dis-
missing his appeal for lack of jurisdiction. Apodaca v.
Dep’t of Homeland Sec., No. AT-0752-09-0223-I-1
(M.S.P.B. July 24, 2009) (“Final Order”). Because the
Board’s decision that Apodaca retired voluntarily is
supported by substantial evidence, we affirm.

BACKGROUND

Apodaca was employed by the Department of Home-
land Security as a Deputy Comptroller for the Coast
Guard’s Integrated Support Command (“ISC”) in Miami,
Florida. In November 2008, Apodaca’s supervisor and the
Comptroller for ISC, Anthony Alarid, ordered Apodaca to
move his office from its current location to a location
adjacent to Alarid’s office. Alarid set a deadline of De-
cember 1, 2008 for Apodaca to change his office. Apodaca
refused to change offices, informing Alarid that he would
rather retire than change his office. Apodaca then told
Alarid that he would retire effective January 3, 2009.
However, following further discussions between the two,
Apodaca told Alarid that he would retire on November 30,
and that November 20 would be his last day at work as he
intended to take leave thereafter. Alarid informed his
Command Staff Advisor (“CSA”) of Apodaca’s intentions
by e-mail.

On November 20, 2008, Apodaca cleaned his office,
shredded his personal writing pads, and disposed of files
stored in his office. That afternoon, Alarid collected Apo-
daca’s government identification badge and office keys
3 APODACA v. MSPB

from him. On December 1, 2008, Apodaca submitted his
retirement request form SF-52 to ISC, denoting an effec-
tive retirement date of November 30, 2008. On the SF-52,
Apodaca stated the reason for his retirement as the
“imposition of constructive discharge conditions by the
management.”

On December 30, 2008, Apodaca filed an appeal to the
Merit Systems Protection Board, claiming that his re-
tirement was involuntary. On March 9, 2009, the as-
signed administrative judge held a jurisdictional hearing
in Miami, Florida, at which both Alarid and Apodaca
testified as to the circumstances surrounding Apodaca’s
retirement. The administrative judge found that Apodaca
had retired voluntarily and dismissed the appeal for lack
of jurisdiction. The Board denied Apodaca’s petition for
review of the initial decision on July 24, 2009, and the
administrative judge’s decision became the final decision
of the Board. Apodaca timely appealed the Board’s final
decision 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’s
decision is limited. We can only set aside the Board’s
decision if it was “(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) (2000); see
Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed.
Cir. 2003). We review the Board’s jurisdiction without
deference. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998). However, “we are bound by the
AJ’s factual determinations unless those findings are not
APODACA v. MSPB 4

supported by substantial evidence.” Id. Substantial
evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” McEn-
tee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir.
2005) (quotation marks omitted).

Apodaca challenges the Board’s decision that he failed
to prove by a preponderance of the evidence his allega-
tions of coercion and duress by the agency so as to allow
the Board to exercise jurisdiction over his appeal. He
argues that his statements declaring his intentions to
retire were mere contemplations of retirement. He argues
that his responses to Alarid’s order to move his office were
unrelated to the events that occurred on November 20,
2008, leading up to his retirement. He contends that on
that day he was performing routine cleaning of his office
and preparing to take leave when Alarid confiscated his
badge and keys, thereby constructively discharging him.
He further contends that he did not return to work at any
time after that date because of the “malicious and unpro-
fessional manner” in which he had been treated. He
contends that the reason for submitting an SF-52 on
December 2, with an effective date of November 30, was
that he wanted to “mitigate his damages.” Moreover, he
argues, the agency failed to follow checkout procedures
required to terminate an employee. According to Apo-
daca, his retirement was forced upon him by the actions of
his supervisor and was not voluntary. Therefore, he
argues, the administrative judge and the Board erred in
dismissing his claim for lack of jurisdiction.

The Board responds that there is no evidence that the
agency imposed the terms of Apodaca’s retirement. It
argues that Apodaca was in control of his retirement
decision at all times, repeatedly rejecting his supervisor’s
preferences in the matter and deciding himself both his
5 APODACA v. MSPB

retirement date as well his last day at the office. The
Board argues that contrary to Apodaca’s assertions,
Alarid pleaded with him not to retire or to at least stay
till January 2009 in order to allow the process of hiring a
replacement to be commenced. However, the Board
points out, Apodaca refused to assist his supervisor in any
way or change his retirement date. The Board notes that
on November 20, Apodaca cleaned out his office. The
Board contends that Alarid asked him for his badge and
keys per the CSA’s guidance and because he understood
from Apodaca’s prior statements that Apodaca was not
returning to the facility after that date. The Board fur-
ther points out that Apodaca submitted his retirement
request voluntarily, at a time of his own choosing, and
with an effective date that he had previously mentioned
to his supervisor. The Board also notes that Apodaca
never attempted to return to work. Under these facts,
the Board argues, Apodaca cannot show that his retire-
ment was a product of coercion by the agency or was
otherwise involuntary. The Board urges us to affirm its
dismissal of Apodaca’s claim for lack of jurisdiction.

We conclude that the Board permissibly dismissed
Apodaca’s appeal for lack of jurisdiction. A decision to
resign or retire is presumed to be voluntary. Staats v.
U.S. Postal Serv., 99 F.3d 1120, 1123 (Fed. Cir. 1996). In
order to overcome the presumption of voluntariness, a
petitioner must make a non-frivolous allegation that the
resignation or retirement was the product of misinforma-
tion, deception, or coercion by the agency. Schultz v. Dep’t
of the Navy, 810 F.2d 1133, 1135 (Fed. Cir. 1987). To
establish involuntariness on the basis of coercion or
duress, a petitioner must show that (1) the agency effec-
tively dictated the terms of his retirement, (2) he had no
realistic alternative but to retire, and (3) his retirement
was the result of improper actions by the agency. Garcia
APODACA v. MSPB 6

v. Dep’t of Homeland Sec., 437 F.3d 1322, 1329 (Fed. Cir.
2006) (en banc). The test is an objective rather than
subjective one; an employee’s subjective feelings are
irrelevant. Middleton v. Dep’t of Defense, 185 F.3d 1374,
1379 (Fed. Cir. 1999).

On appeal, Apodaca primarily argues that, in finding
the agency’s actions justified, the administrative judge
improperly relied on his statements to his supervisor
leading up to November 20, 2008. He argues that his
statements of his intention to retire were mere contem-
plations, pertaining to what he terms the “Exchange
Office Situation” and were irrelevant to his “Constructive
Discharge Claim.” We are not persuaded by Apodaca’s
logic. Apodaca’s actions and words clearly demonstrated
that he did intend to retire and that his last day at the
facility was November 20, 2008. His supervisor relied on
his statements. The administrative judge was entitled to
find Alarid’s testimony credible. The e-mails exchanged
between Alarid and his CSA support the administrative
judge’s finding, which was based on substantial evidence.
The judge noted that Alarid’s testimony was also consis-
tent with other facts such as Apodaca cleaning his office,
packing his personal items and circling dates on his
calendar. Under such belief, it was proper for Alarid to
ask Apodaca to submit an SF-52. As a departing em-
ployee’s supervisor, Alarid was also required collect
Apodaca’s badge and keys. We agree with the Board that
Alarid’s actions were reasonable under the circumstances.

The administrative judge also reasoned that had Apo-
daca believed that he had been involuntarily discharged,
he could have easily refused to submit an SF-52. Apo-
daca’s argument that he submitted his retirement request
and did not return to work because of the hostile manner
in which he had been treated is not sufficient to satisfy
7 APODACA v. MSPB

the demanding legal standard of proving that the agency
coerced him to absent himself from work. See Garcia, 437
F.3d at 1329 (“[T]he doctrine of coercive involuntariness is
a narrow one[,] requiring that the employee satisfy a
demanding legal standard.” (quotation marks omitted)).
We find nothing in the evidence presented below to dem-
onstrate that Apodaca was coerced into retirement. On
the contrary, we agree with the Board that Apodaca was
at all times in control of his retirement decision. The
administrative judge found that the petitioner refused to
accept any of his supervisor’s suggestions with regard to
his retirement and dictated the schedule of his departure.
We agree with the administrative judge’s findings and
conclude that none of Apodaca’s allegations are such that,
if proven, would establish that a reasonable employee
confronted with the same circumstances would feel co-
erced into retiring. See Middleton, 185 F.3d at 1379.

The Board’s finding that Apodaca’s retirement was
voluntary is supported by substantial evidence. We have
considered Apodaca’s remaining arguments and find them
unpersuasive. Accordingly, we affirm the Board’s deci-
sion that it lacked jurisdiction over Apodaca’s appeal.

AFFIRMED

COSTS

No costs.