Opinion

Jeffrey A Melnick v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jul 9, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

“Although an appellant need not prove her entire case before she is entitled to a hearing, the [B]oard may request sufficient evidence to determine if, in the first instance, there is any support for what otherwise might be bald allegations.”

How later courts described this case

“Although an appellant need not prove her entire case before she is entitled to a hearing, the [B]oard may request sufficient evidence to determine if, in the first instance, there is any support for what otherwise might be bald allegations.”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEFFREY A. MELNICK, DOCKET NUMBER

Appellant, DC-0752-19-0328-I-1

DEPARTMENT OF THE NAVY, DATE: July 9, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeffrey A. Melnick , Virginia Beach, Virginia, pro se.

Brittany L. Bishop and Kenneth Rye , Norfolk, Virginia, for the agency.

Patricia Reddy-Parkinson , Portsmouth, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his removal claim as moot and his involuntary retirement appeal for

lack of jurisdiction. Generally, we grant petitions such as this one only in the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

following circumstances: 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

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. 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, except as expressly MODIFIED

to address the appellant’s new argument that his retirement was involuntary due

to agency misinformation, we AFFIRM the initial decision, which is now the

Board’s final decision. 5 C.F.R. § 1201.113(b).

The appellant claims for the first time on review that his retirement was

involuntary because of agency misinformation. Petition for Review (PFR) File,

Tab 1 at 4. An employee’s retirement is presumed to be a voluntary action.

Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). However, an

involuntary retirement is tantamount to a removal and thus is appealable to the

Board. Id. The presumption that a retirement is voluntary can be rebutted by

evidence showing that it was the result of agency misrepresentation, coercion, or

duress. Id. When there is a claim that an involuntary action resulted from

misinformation, an appellant must show the following: (1) that the agency made

misleading statements; and (2) that he reasonably relied on the misinformation to

his detriment. Id. An appellant is entitled to a hearing on the issue of the

Board’s jurisdiction over an appeal of an alleged involuntary retirement only if he

makes a nonfrivolous allegation casting doubt on the presumption of

voluntariness. Id., ¶ 10. A nonfrivolous allegation of Board jurisdiction is an

allegation of fact which, if proven, could establish a prima facie case that the

Board has jurisdiction over the matter at issue. Baldwin v. Department of

Veterans Affairs, 109 M.S.P.R. 392, ¶ 11 (2008).

The appellant on review alleges that he was instructed to cancel his regular

retirement and instead apply for disability retirement because he would receive

“the better of the two.” PFR File, Tab 1 at 4. He further asserts that the

disability retirement he received was “far less than the regular retirement.” Id.

He also attaches various retirement documents, email exchanges, and voicemails

to his petition for review. 2 PFR File, Tabs 1-2, 6. However, the appellant does

not support his assertions with specific allegations of fact that would establish

that his retirement resulted from misinformation. His bare assertions, without

more, fail to constitute a nonfrivolous allegation that he relied on agency

misinformation to his detriment. See Dodson v. U.S. Postal Service, 67 M.S.P.R.

84, 87 (1995) (finding an appellant failed to make a nonfrivolous allegation of

involuntary retirement when she failed to make specific assertions which, if

proven, would show that her retirement was involuntary based on

misinformation); see also Briscoe v. Department of Veterans Affairs, 55 F.3d

1571, 1573 (Fed. Cir. 1995) (“Although an appellant need not prove her entire

case before she is entitled to a hearing, the [B]oard may request sufficient

evidence to determine if, in the first instance, there is any support for what

otherwise might be bald allegations.”).

The appellant does not raise any further arguments on review that pertain to

the voluntariness of his retirement, and we discern no basis for disturbing the

initial decision. Thus, we affirm the initial decision.

The appellant submits this evidence for the first time on review. Because the Board’s

jurisdiction is always before the Board and may be raised by either party or sua sponte

by the Board at any time during a Board proceeding, we consider the new evidence

here. Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 5 (2010).

Nonetheless, we find that the documents and audio files the appellant has submitted on

review do not show that the administrative judge erred in finding that the appellant

failed to nonfrivolously allege that his retirement was involuntary.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 below 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

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:

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.

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 that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

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. 420 (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

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. 4 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