NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JENNIFER L. KEEN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1541
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-15-0473-I-1.
______________________
Decided: July 13, 2017
______________________
JENNIFER L. KEEN, Sevierville, TN, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK,
KATHERINE M. SMITH.
______________________
Before PROST, Chief Judge, NEWMAN and LINN, Circuit
Judges.
2 KEEN v. MSPB
PER CURIAM.
Jennifer Keen seeks review of the Merit Systems
Protection Board’s decision dismissing her appeal for lack
of jurisdiction. Keen v. Dep’t of the Air Force, AT-0752-15-
0473-I-1 (Final Decision, Dec. 29, 2016). We affirm.
I
Ms. Keen served as a security specialist for the
Department of Air Force (“agency”) in the 96th Air Base
Wing IP Office. In May 2011, the agency issued Ms. Keen
a written reprimand based on two separate charges. The
first involved a verbal confrontation with a co-worker
between January 2011 and March 2011. The second
charge related to additional employee statements filed
several months later, accusing Ms. Keen of speaking
inappropriate racial or ethnic slurs when referring to her
co-workers and their spouses. In response to these
charges, the Equal Employment Opportunity Commission
Office of Federal Operations issued a ruling finding that
Ms. Keen engaged in racially discriminatory harassment
over a period of several months in 2011. The agency
subsequently issued her a notice of proposed removal.
Facing the prospect of removal, Ms. Keen approached
an agency employee serving as a Civilian Personnel
Specialist to inquire about her options for deferred
retirement. The next day, she met again with the
specialist to discuss the option of resigning her position in
lieu of removal. During that meeting, Ms. Keen inquired
about her appeal rights assuming the agency carried out
the removal process. After receiving the agency’s notice of
final decision of proposed removal, Ms. Keen spoke with
her supervisor to discuss offering her voluntary
resignation to avoid removal. Later that day, Ms. Keen
met with the specialist to inform her that she was
formally resigning her post.
KEEN v. MSPB 3
The following month, Ms. Keen filed an appeal with
the Merit Systems Protection Board (“MSPB” or “Board”),
arguing that her resignation was involuntary for being
procured by misinformation from the agency and the
product of coercion. Later that year, the administrate
judge conducted a jurisdictional hearing to determine
whether Ms. Keen’s resignation was indeed involuntary.
Among the disputes that the administrate judge resolved
were whether the specialist misinformed Ms. Keen that
she would have a right to appeal her resignation to the
MSPB and whether the removal would remain on her
record as a result.
After hearing live testimony from Ms. Keen, her
supervisor, and the specialist, the administrate judge
concluded that Ms. Keen failed to prove by a
preponderance of evidence that her resignation was either
a product of misinformation or by agency coercion. In
reaching this conclusion, the administrate judge
evaluated the witnesses’ credibility using the factors set
forth in Hillen v. Department of the Army, 35 M.S.P.R.
453, 458 (1987), and it concluded that the specialist did
not actually inform Ms. Keen of any appeal rights that
may or may not attach to her voluntary resignation.
Following the administrate judge’s initial decision,
Ms. Keen appealed to the full Board, disputing the
administrate judge’s findings, but the Board affirmed the
initial decision and adopted it as the MSPB’s final
decision. Specifically, it found no reason to disturb the
administrate judge’s credibility determinations and
concluded that the agency did not provide misleading
information or coerce her resignation. Ms. Keen timely
appealed to this court. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
II
On appeal, Ms. Keen asks us to reverse the Board on
two grounds. First, she alleges that the specialist told her
4 KEEN v. MSPB
that if she resigned, the removal will not be included in
her employment record. Second, she alleges that the
specialist indicated that if she resigns, she could appeal to
the MSPB. The government argues that the administrate
judge based his findings on credibility determinations
after observing the live testimony of Ms. Keen, her
supervisor, and the specialist. Credibility determinations,
as the government contends, are essentially unreviewable
on appeal. We agree with the government.
We must set aside agency actions, findings, or
conclusions we find “(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). Credibility
determinations, however, are “virtually unreviewable” on
appeal. Hambsch v. Dep’t of the Treasury, 796 F.2d 430,
436 (Fed. Cir. 1986).
Although the administrate judge and Board
acknowledge conflicting testimony between Ms. Keen on
the one hand, and her supervisor and the specialist on the
other, the administrate judge rested his factual findings
and conclusions on the credibility and demeanor of the
witnesses. Compare Resp’t Suppl. App. 24 (“Ultimately, I
have no reason to question [the specialist’s] version of the
January 29th meeting regarding the information that she
shared with the appellant . . . .”), with id. at 25 (“The
appellant, on the other hand, was biased in her version of
the events and I find reason to question her credibility on
the basis of her character and her demeanor at [the]
hearing. I found [her] testimony to be evasive, vague, self-
serving and inconsistent with the established facts.”).
Although the credibility choice between two witnesses
can be overcome if contradicted by extrinsic evidence, see
Hambsch, 796 F.2d at 436, we find nothing in the record
to justify reconsideration of the administrate judge’s
KEEN v. MSPB 5
findings. Accordingly, because substantial evidence
supports these findings, we affirm the Board.
AFFIRMED
COSTS
The parties shall bear their own costs.