UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN CARTER, DOCKET NUMBER
Appellant, NY-0752-16-0120-I-1
v.
SOCIAL SECURITY DATE: October 6, 2022
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Carter, Hillside, New Jersey, pro se.
Jeremy A. Linden, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary retirement appeal for lack of jurisdiction . Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
based on an erroneous interpretation of statute or regulation or the erroneous
application 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 dil igence, was not
available when the record closed. 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
¶2 The appellant retired from his position as a Social Insurance Specialist.
Initial Appeal File (IAF), Tab 10 at 87. He filed the instant appeal asserting that
his retirement was involuntary and requested a hearing. IAF, Tab 1. The
administrative judge issued an initial decision that dismissed the appeal for lack
of jurisdiction without holding the requested hearing, finding that the appellant
failed to nonfrivolously allege that his retirement was coerced. IAF, Tab 11,
Initial Decision (ID). The appellant has filed a petition for review, and the
2
The appellant also filed a motion seeking leave to remove from the record a statement
he provided to an equal employment opportunity (EEO) investigator because it is “a
false statement that misrepresented the statement the [appellant] actually gave to the
EEO investigator . . . .” Petition for Review File, Tab 6 at 1. The appellant’s request to
have this evidence removed from the record is denied because his statement to the EEO
investigator, while perhaps pertinent to claims he may be raising in his EEO
discrimination complaint, would have no bearing on the Board’s determination of the
dispositive issue in this case—whether the appellant raised a nonfrivolous allegation
that his retirement was involuntary and therefore within the Board’s jurisdiction.
3
agency has responded in opposition to the petition. Petition for Review (PFR)
File, Tabs 1, 3. 3
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 An employee’s retirement is presumed to be a voluntary action and, as such,
is not within the Board’s jurisdiction. Salazar v. Department of the Army,
115 M.S.P.R. 296, ¶ 9 (2010). However, an involuntary retirement or resignation
is tantamount to a removal and, accordingly, is appealable to the Board.
Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir.
2006) (en banc). If an appellant makes a nonfrivolous allegation of fact
establishing Board jurisdiction, he is entitled to a hearing at which he must prove
jurisdiction by preponderant evidence. Id. at 1344; Thomas v. Department of the
Navy, 123 M.S.P.R. 628, ¶ 11 (2016).
¶4 Here, the appellant asserted that, after he had to exhaust all of his leave
when recovering from an illness, his office manager denied him 30 days of
advanced sick leave for no legitimate reason. IAF, Tab 1. He argued that he
“had to retire in order to receive pay.” Id. The administrative judge agreed with
the agency that the appellant’s claims did not amount to a nonfrivolous allegation
that his working conditions became so intolerable that a reasonable person in his
position would have felt compelled to retire. ID at 6. Specifically, she found that
the agency’s decision to deny the appellant’s request for advanced sick leave,
while allowing him to remain on unpaid leave until he was able to return to work,
3
On review, the appellant submits a 2012 letter from the agency’s EEO specialist
memorializing a telephone conversation regarding his EEO complaint. PFR File, Tab 1
at 5. 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(d). The appellant has not indicated why this evidence was
previously unavailable, and thus we do not consider it.
4
did not constitute working conditions so difficult or unpleasant that a reasonable
person in his position would have felt compelled to retire. 4 ID at 7.
¶5 To establish involuntariness on the basis of coercion , an employee must
show the following: (1) the agency effectively imposed the terms of the
employee’s resignation or retirement; (2) the employee had no realistic
alternative but to resign or retire; and (3) the employee’s resignation or retirement
was the result of improper acts by the agency. Garcia, 437 F.3d at 1329. The
appellant’s dissatisfaction with an agency decision that it was authorized to take,
such as the denial of leave, does not constitute coerced involuntariness. See
Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). Additionally,
the appellant’s desire to avoid financial hardship would not establish that his
choice to retire was involuntary. Baker v. U.S. Postal Service, 84 M.S.P.R. 119,
129-30 (1999). Accordingly, we agree with the administrative judge that the
appellant failed to nonfrivolously allege that his retirement was involuntary. See
Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (finding that
the appellant failed to nonfrivolously allege that his resignation was involuntary
when he claimed that his supervisor denied his request for advanced leave, spoke
to him disrespectfully, and did not assist with his work and that another official
refused to grant him an education waiver that would have allowed him to apply
for certain vacancies).
¶6 On review, the appellant generally asserts that the agency discriminated
against him based upon his disability, age, and protected status and that the
agency retaliated against him for his prior equal employment opportunity (EEO)
activity. PFR File, Tab 1 at 7-8. The Board addresses allegations of
discrimination and retaliation in connection with an alleged involuntary
4
To the extent that the initial decision referred to the preponderant evidence standard as
opposed to the nonfrivolous allegation standard, ID at 6 -8, we clarify that the Board
applies the nonfrivolous allegation standard to determine whether the appellant is
entitled to a hearing on the jurisdictional issue, Putnam v. Department of Homeland
Security, 121 M.S.P.R. 532, ¶ 21 (2014).
5
retirement only insofar as those allegations relate to the issue of voluntariness.
Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 10, aff’d, 469 F. App’x 852
(Fed. Cir. 2011). We find that the appellant’s conclusory allegations do not
provide a reason for disturbing the administrative judge’s finding that he failed to
nonfrivolously allege that his retirement was involuntary. 5 See id., ¶ 15 (finding
that the appellant failed to nonfrivolously allege that the agency coerced her
retirement when, prior to her retirement, she was pursuing her discrimination
claims through the EEO process and the record did not indicate that the claims
were not being properly considered).
NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
5
In light of our finding that the Board lacks jurisdiction over this appeal, we need not
address whether the appeal was timely filed. Alston v. Social Security Administration,
95 M.S.P.R. 252, ¶ 19 (2003), aff’d, 120 F. App’x 825 (Fed. Cir. 2005).
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.