Henley v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

PAUL F. HENLEY,
Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________

2016-2176
______________________

Petition for review of the Merit Systems Protection
Board in No. AT-0752-15-0087-I-1.
______________________

Decided: August 4, 2017
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BRADFORD PETER LYERLA, Jenner & Block LLP, Chi-
cago, IL, for petitioner.

KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, argued for respondent. Also represented by BRYAN G.
POLISUK.
______________________
2 HENLEY v. MSPB

Before PROST, Chief Judge, MAYER and MOORE, Circuit
Judges.
PER CURIAM.
Paul F. Henley seeks review of the Merit Systems
Protection Board’s (“Board”) decision dismissing his
appeal for lack of jurisdiction. We affirm.
Mr. Henley served as a teacher for the U.S. Forest
Service Job Corps (“agency”) from March 2008 through
May 2011. After receiving what he perceived as mis-
treatment through unfair performance reviews, harass-
ment, and verbal and physical threats, Mr. Henley
resigned his post. He sought relief through the Equal
Employment Opportunity Commission (“EEOC”), arguing
that the agency subjected him to various acts of discrimi-
nation and retaliation. The EEOC denied his claim and
the Board affirmed, holding that his resignation was
voluntary. After presenting oral argument, Mr. Henley
moved to stay his appeal pending the Supreme Court’s
resolution of Perry v. Merit System Protection Board, 137
S. Ct. 1975 (2017), on the basis that his appeal presents a
mixed case. 1 The Court has since decided that case,
holding that the proper forum for mixed cases lies in
district court, not the Federal Circuit. Id. In light of this
holding, Mr. Henley now waives his discrimination claims
so that we may retain jurisdiction over his remaining
claims. Resp. to Suppl. Authority, ECF No. 41. We accept
Mr. Henley’s waiver, lift his requested stay, and review
the remaining aspects of his appeal.

1 A mixed case involves “a federal employee [who]
complains of a serious adverse employment action taken
against him . . . and attributes the action, in whole or in
part, to bias based on race, gender, age, or disability, in
violation of federal antidiscrimination laws.” Id. at 1979.
HENLEY v. MSPB 3

Whether the board had jurisdiction to adjudicate a
case is a question of law, which we review de novo. Forest
v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
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). “A decision to resign or
retire is presumed to be voluntary, and an employee who
voluntarily retires has no right to appeal to the Board . . .
[unless] the employee shows that his resignation or re-
tirement was involuntary . . . .” Staats v. U.S. Postal
Serv., 99 F.3d 1120, 1123–24 (Fed. Cir. 1996). In its final
order, the Board concluded that Mr. Henley failed to
establish that his resignation was involuntary. J.A. 5–11.
Although the government concedes that the Board applied
the wrong standard in reaching this conclusion, it argues
that it was harmless error. Appellee’s Br. 10. We agree.
We have reviewed the record and the parties’ arguments
and conclude that Mr. Henley failed to set forth nonfrivo-
lous allegations that, when taken as true, would establish
that his resignation was involuntary. Accordingly, we
affirm the Board’s dismissal of Mr. Henley’s appeal for
lack of jurisdiction.
AFFIRMED
COSTS
The parties shall bear their own costs.