The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARTHUR R. WATSON, DOCKET NUMBER
Appellant, DE-0752-24-0339-I-1
v.
DEPARTMENT OF VETERANS DATE: April 24, 2026
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Arthur R. Watson , Aurora, Colorado, pro se.
Kevin C. Keyes , Esquire, and Sean A. Safdi , Esquire, Denver, Colorado,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary retirement appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND this appeal to the Denver Field
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
At the time of his February 2019 retirement, the appellant was a GS -4
Medical Support Assistant. Initial Appeal File (IAF), Tab 6 at 9. Apparently, he
previously held a Supply Technician position but, in 2018, as part of an
accommodation for his hearing disability, he was reassigned to the Medical
Support Assistant position. IAF, Tab 5 at 1, Tab 6 at 13-14; Petition for Review
(PFR) File, Tab 1 at 54. In December 2019, the appellant initiated another
reasonable accommodation request and, as part of that process, submitted a
Form 0857E. PFR File, Tab 1 at 5. This form indicated that his “impairment
ha[d] resolved” and that he had “no limitations.” IAF, Tab 1 at 7-10. On
December 11, 2018, the appellant was instructed that the Form 0857E he
submitted was not fully completed and he was told it was “not appropriate for
[him] to fill out the answers and have the doctor sign [it].” PFR File, Tab 1 at 5.
Unrelated to the issues with the Form 0857E, on February 11, 2019, the
agency proposed the appellant’s removal based on a charge of unacceptable
performance, citing errors in making appointments for veterans. Id. at 8-11. He
retired effective February 20, 2019. IAF, Tab 6 at 9. The agency never made a
decision on the proposed adverse action.
The appellant filed the instant appeal on June 21, 2024. IAF, Tab 1. He
alleged that he was falsely accused of forging a Form 0857E, denied a reasonable
accommodation, and was told to retire or he would be removed. IAF, Tab 1 at 2,
4. He also alleged that the agency committed harmful error and a prohibited
personnel practice. Id. at 2. The appellant requested a hearing. Id. at 1.
After affording the parties an opportunity to submit evidence and argument
on jurisdiction, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction without holding a hearing. IAF, Tab 8, Initial
3
Decision (ID) at 1, 7. He found that the appellant did not raise a nonfrivolous
allegation that his February 2019 retirement was involuntary. ID at 4. Although
the appellant claimed he was forced to retire, the administrative judge found that
the appellant did not provide factual support for this assertion. ID at 5. With
respect to the appellant’s claim of a false accusation of forgery, denial of
reasonable accommodation, and a hostile work environment, the administrative
judge concluded that the appellant’s allegations were vague and conclusory.
ID at 5-7. The initial decision made no finding regarding the timeliness of the
appeal.
The appellant has filed a petition for review of the initial decision.
PFR File, Tab 1. The agency has filed a response to the petition for review.
Id., Tab 3.
ANALYSIS
An employee-initiated action, such as a retirement, is presumed to be
voluntary and therefore outside the Board’s jurisdiction, unless the employee
presents sufficient evidence to establish that the action was obtained through
duress or coercion or shows that a reasonable person would have been misled by
the agency. See Schultz v. U.S. Navy, 810 F.2d 1133, 1135-36 (Fed. Cir. 1987);
Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 5 (2015). The
touchstone of the voluntariness analysis is whether, considering the totality of the
circumstances, factors operated on the employee’s decision-making process that
deprived him of freedom of choice. Searcy v. Department of Commerce,
114 M.S.P.R. 281, ¶ 12 (2010). An appellant that makes nonfrivolous allegations
of fact that, if proven, could establish jurisdiction over his involuntary retirement
appeal and has requested a hearing, is entitled to a jurisdictional hearing. Vitale
v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 18 (2007); see Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en
banc).
4
The administrative judge properly found that the appellant did not make a
nonfrivolous allegation that his retirement was involuntary on the basis of
coercion. 2
On review, the appellant appears to reallege that his retirement was the
result of coercion or duress when he was forced to make a decision between
opposing the proposed removal action against him or retiring. PFR File, Tab 1
at 8, 115. As the administrative judge correctly reasoned, the fact that an
employee is faced with an unpleasant choice or that his choice is limited to two
unattractive options, such opposing a proposed removal or retiring, does not make
his decision any less voluntary. 3 ID at 4-5; see Schultz, 810 F.2d at 1136; Searcy
v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010); Sainz v. Department
of Justice, 32 M.S.P.R. 678, 682 n.3, aff’d, 835 F.2d 870 (Fed. Cir. 1987) (Table).
Another means of showing that an otherwise voluntary action is
involuntary is for the employee to show that the agency knew that a threatened
removal action cannot be substantiated. Jones v. Department of the Treasury,
107 M.S.P.R. 466, ¶ 10 (2007); see Schultz, 810 F.2d at 1136. Here, the appellant
does not allege that his removal could not be substantiated or otherwise address
the unacceptable performance charge. PFR File, Tab 1; IAF, Tabs 1, 6. He does
argue that he was falsely accused of forging the Form 0857E, but this was
unrelated to the proposed removal and therefore does not support a finding that
the action could not be substantiated. IAF, Tab 1 at 2. Accordingly, we agree
with the administrative judge’s finding that the appellant did not make a
2
The appellant does not dispute the administrative judge’s findings that he did not
make a nonfrivolous allegation that his retirement was involuntary on the basis of the
denial of a reasonable accommodation or intolerable working conditions. PFR File,
Tab 1; ID at 5-7. We agree that the appellant’s allegations were vague, conclusory, and
contradictory and discern no basis to disturb the administrative judge’s finding.
3
Below, the appellant asserted that an unidentified agency official told him to “retire or
be fired.” IAF, Tab 1 at 4. As found by the administrative judge, such an assertion,
even if actually made, does not establish coercion. ID at 4-5. We discern no basis to
disturb this finding.
5
nonfrivolous allegation that his retirement was involuntary due to coercion in this
regard.
The appellant has made a nonfrivolous allegation that his retirement was
involuntary due to misinformation.
For the first time on review, the appellant argues that he retired due to
misinformation provided to him by an agency Employee Labor Relations
Specialist. PFR File, Tab 1 at 115. He submits a handwritten note written partly
in the first person but signed by someone else with the same last name as the
appellant. Id. The note states that an Employee Labor Relations Specialist told
the appellant “retire in 7 days or be fired and lose all of [his] retirement benefits.”
Id.. Under 5 C.F.R. § 1201.115(d), the Board generally will not consider
evidence or argument submitted for the first time on review unless the party
shows that it was previously unavailable despite due diligence. See Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). However, the Board has also
recognized that jurisdiction is always before it, Simnitt v. Department of Veterans
Affairs, 113 M.S.P.R. 313, ¶ 5 (2010), and because of the appellant’s pro se status
and the seriousness of the allegations made on review, under the circumstances of
this appeal we consider the new evidence.
Agencies must provide accurate information to allow employees to make an
informed, and thus voluntary, decision regarding resignation or retirement.
Aldridge v. Department of Agriculture, 111 M.S.P.R. 670, ¶ 8 (2009). To support
a claim of an involuntary retirement based on misinformation, an appellant must
show that the agency made misleading statements and that he reasonably relied on
them to his detriment. Id.; see Morrison, 122 M.S.P.R. 205, ¶ 8 (2015). The
misleading information can be negligently or even innocently provided; if the
employee materially relies on such misinformation to his detriment, based on an
objective evaluation of the circumstances, his retirement is considered
involuntary. Morrison, 122 M.S.P.R. 205, ¶ 8.
6
The Board has found that inaccurate statements suggesting that
an employee will lose earned retirement benefits if they do not retire by a certain
date can render the retirement involuntary. Morrison, 122 M.S.P.R. 205, ¶¶ 7-8.
Here, the appellant identified the individual who conveyed the information, stated
that he was pressured to decide within a week, and was told he would lose all
retirement benefits if he was removed. PFR File, Tab 1 at 115. The appellant’s
allegations, if true, could establish his claims of an involuntary retirement and
thus constitute a nonfrivolous allegation. See Vitale, 107 M.S.P.R. 501, ¶ 18.
Thus, we find that the appellant is entitled to a hearing at which he must prove
that his retirement was involuntary by preponderant evidence.
As noted, the administrative judge made no finding regarding the
timeliness of the appellant’s appeal and that issue is unresolved on review. The
appellant retired effective February 20, 2019, but did not file the instant appeal
until June 21, 2024—more than 5 years later. IAF, Tab 1. On remand, the
administrative judge shall provide the appellant with the appropriate notice of his
burden of proof on timeliness and provide the parties with an opportunity to
produce evidence and argument on the same. Recognizing that the issues of
timeliness and jurisdiction are often inextricably intertwined in a case such as
this, i.e., an involuntary retirement appeal, the administrative judge shall make a
finding as to whether the appellant was subject to an appealable action and, if
he was, shall then make a finding on the issue of timeliness. Petric v. Office of
Personnel Management, 108 M.S.P.R. 342, ¶ 6 (2008) (explaining that the issues
of jurisdiction and timeliness were inextricably intertwined in a constructive
removal case because the resolution of the timeliness issue depends on whether
the appellant is subject to an appealable action).
7
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.