UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL DUTY, DOCKET NUMBER
Appellant, SF-3443-15-0750-I-1
v.
DEPARTMENT OF THE NAVY, DATE: June 17, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shawn Rowan, Bremerton, Washington, for the appellant.
Matthew D. Dunand, Bremerton, Washington, 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 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 of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 In this appeal, the appellant raised two claims: that (1) the agency violated
the Veterans Employment Opportunities Act of 1998 (VEOA) when it failed to
select him for four different positions since February 2014; and (2) it
involuntarily separated him in September 1994 following an injury. Initial
Appeal File (IAF), Tabs 1, 8. The agency moved to dismiss the appeal for lack of
jurisdiction and argued that the appeal was either untimely filed or barred by the
equitable defense of laches. IAF, Tab 6. The administrative judge gave the
appellant notice of the elements and burdens of establishing jurisdiction over his
appeal and the parties responded. IAF, Tabs 9, 12-14. Without holding the
requested hearing, the administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to exhaust his administrative
remedies under VEOA with the Department of Labor and that he failed to make a
nonfrivolous allegation of fact that, if proven, would establish that his resignation
was involuntary. IAF, Tab 15, Initial Decision (ID).
¶3 In his petition for review, the appellant only addresses his involuntary
resignation claim, reiterating the arguments he made below and contending that
both the agency and the administrative judge based their decisions on hearsay.
Petition for Review (PFR) File, Tab 1. He does not challenge the dismissal of his
VEOA claim. He contends that the agency misinformed him about the choices he
3
faced following an on-the-job injury and that it coerced him into signing his
resignation paperwork because he had to make a decision on the spot. Id. at 1.
The appellant further argues that he only intended to take a temporary medical
leave because the agency would not help him with his injury. 2 Id. He also asserts
that the agency lacked reasonable grounds for threatening to take an adverse
action against him. Id. at 6. With his petition for review, the appellant includes
several documents which he claims discredit the agency’s allegations against him
and evidence a hostile work environment. Id. at 3-4, 11-18. 3 The agency
responds in opposition. PFR File, Tab 3.
¶4 Employee-initiated actions, such as a resignation, are presumed to be
voluntary, and thus outside the Board’s jurisdiction. Staats v. U.S. Postal
Service, 99 F.3d 1120, 1123-24 (Fed. Cir. 1996). However, an appellant may
overcome the presumption by showing that: (1) his resignation was the product
of misinformation or deception by the agency; or (2) his resignation was the
product of coercion by the agency. Id. at 1124. The test for involuntariness is an
objective one, requiring the appellant to show that a reasonable employee in the
same circumstances would have felt coerced into resigning or retiring.
Conforto v. Merit Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir.
2013). An appellant is only entitled to a jurisdictional hearing over an alleged
involuntary resignation if he makes a nonfrivolous allegation casting doubt on the
presumption of voluntariness. Burgess v. Merit Systems Protection Board,
2
The appellant asserted that he filed an injury claim that the Office of Workers’
Compensation Programs denied. IAF, Tab 1 at 3, Tab 12 at 2-7. The administrative
judge correctly noted that, without a compensable injury, an employee has no right to
restoration under 5 C.F.R. § 353.301.
3
Under 5 C.F.R. § 1201.115, 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). The appellant makes no such showing. In any
event, the documents fail to assist the appellant in meeting his jurisdictional burden to
make a nonfrivolous allegation that his resignation was involuntary. PFR File, Tab 1
at 11-18.
4
758 F.2d 641, 643 (Fed. Cir. 1985). Nonfrivolous allegations of Board
jurisdiction are allegations of fact which, if proven, could establish a prima facie
case that the Board has jurisdiction over the matter at issue. Id.
¶5 We agree with the administrative judge that, even if the appellant could
prove the facts he alleged, he has failed to make the requisite nonfrivolous
allegation that his resignation was involuntary. ID at 7. The injury the appellant
cites occurred in November 1992, nearly 2 years before his resignation, IAF,
Tab 12 at 4-7, and he submitted nothing to indicate that his medical condition had
worsened over that time such that the injury had anything to do with his
resignation. He has similarly failed to identify any facts that, if established,
would indicate that the agency lacked reasonable grounds for threatening to take
an adverse action against him, or that the agency knew it could not prevail if it
did so. 4 See Baldwin v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 12
(2008) (if an appellant shows that an agency knew that it would not prevail on a
proposed adverse action, the proposed action is coercive and the resulting
resignation is involuntary). Although he challenges this finding on review, PFR
File, Tab 1 at 6, his conclusory assertions are insufficient to carry his
jurisdictional burden, e.g., Briscoe v. Department of Veterans Affairs,
55 F.3d 1571, 1573-74 (Fed. Cir. 1995) (explaining that bald allegations standing
alone do not meet the nonfrivolous allegation standard).
¶6 Under the circumstances, the appellant faced an unpleasant choice, but he
has failed to meet his burden of nonfrivolously alleging that his resignation was
involuntary. See Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed. Cir.
1987) (stating that the fact that an employee faces an unpleasant choice of either
4
Rather than show that the agency lacked reasonable grounds to take an adverse action
against him, the appellant’s assertions on review regarding the amount of time required
to operate his “side-line business” instead lend credence to the sworn statement of an
agency official who recalled that the appellant’s first-line supervisor found him
moonlighting on another jobsite at a time he called in sick. PFR File, Tab 1 at 4; IAF,
Tab 6 at 7, 14.
5
resigning or facing removal for cause does not render his decision involuntary).
We therefore affirm the administrative judge’s decision dismissing the
involuntary resignation appeal for lack of jurisdiction. 5
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:
U.S. 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 U.S. 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 U.S. 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.
5
As previously noted, the appellant does not challenge on review the administrative
judge’s finding that he failed to exhaust his VEOA administrative remedies. In any
event, we discern no basis for disturbing that finding.
6
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
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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.