The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHANIE LORRAINE THOMAS, DOCKET NUMBER
Appellant, CH-0351-14-0649-I-1
v.
DEPARTMENT OF DEFENSE, DATE: April 9, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
C. M. Moulton, Elizabethtown, Kentucky, for the appellant.
Robert Sutemeier, Esquire, Peachtree City, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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. See 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, and based on the following points and authorities, 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).
BACKGROUND
¶2 The appellant was employed as a Teacher with the Department of Defense
Domestic Dependent Elementary and Secondary Schools at Fort Knox, Kentucky.
Initial Appeal File (IAF), Tab 18 at 10, 23. On April 28, 2014, the agency issued
the appellant a memorandum notifying her that she would be separated from her
position by reduction in force (RIF), effective June 28, 2014, unless a suitable
vacancy for her could be identified. Id. at 13-15. On June 23, 2014, the agency
issued a memorandum cancelling the RIF. Id. at 17. On June 29, 2014, the
appellant filed a Board appeal claiming she had been separated from the agency
by RIF. IAF, Tab 1. The appellant did not request a hearing.
¶3 The appellant sought other employment, and on July 8, 2014, signed an
employment contract with another employer. IAF, Tab 15 at 9. On July 9, 2014,
the agency informed the appellant that the RIF had been cancelled. IAF, Tab 18
at 11. Effective July 29, 2014, the appellant resigned from her federal position.
IAF, Tab 7 at 20. In her letter of resignation, the appellant stated that she was
choosing to leave her federal position “to advance [her] career with a job in the
behavioral consulting field.” Id.
3
¶4 In August 2014, the administrative judge issued an order noting that the
agency had submitted evidence indicating that the appellant had not been
separated by RIF and ordering her to show cause why the appeal should not be
dismissed for lack of jurisdiction. IAF, Tab 8. The appellant responded, alleging
that her resignation was involuntary because she was misled into believing she
had been separated by RIF. IAF, Tab 13 at 5-7. Thereafter, the administrative
judge advised the appellant of her burden of proof over an involuntary resignation
claim and provided her with the opportunity to submit argument and evidence
regarding this claim. IAF, Tab 14.
¶5 The administrative judge subsequently issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 19, Initial Decision (ID). The
administrative judge found that, because the agency cancelled the RIF, no agency
personnel action was effected. ID at 2. She found that, accordingly, the Board
lacked jurisdiction over the appeal from the cancelled RIF. ID at 2. The
administrative judge further found that the appellant had failed to establish that
her resignation was involuntary and that the Board therefore lacked jurisdiction
over the case as an involuntary resignation appeal. ID at 4.
¶6 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On petition for review, the appellant does not contest the administrative
judge’s finding that the Board lacks jurisdiction over the appeal from the
cancelled RIF. 2 Rather, she contends that the agency failed to notify her that the
2
In any event, we discern no basis for disturbing th is finding on review. ID at 2. If an
agency cancels or rescinds an action before the employee files an appeal of that action,
or if the agency modifies the action to one that is not appealable prior to the filing of an
appeal, the Board lacks jurisdiction over the appeal of that action. Taber v. Department
of the Air Force, 112 M.S.P.R. 124, ¶ 8 (2009); see Himmel v. Department of Justice,
6 M.S.P.R. 484, 486 (1981) (it is the nature of the agency’s action at the time the appeal
is filed that determines the Board’s jurisdiction). Here, the record reflects that the
4
RIF was cancelled. PFR File, Tab 1 at 5. She alleges that she was misled by the
agency into believing that she would be separated by RIF, prompting her to seek
employment elsewhere. Id. at 5-8. She states that she signed a binding contract
of employment with another employer before learning that the RIF was cancelled
and that she was forced to resign because she was concerned her new employer
would sue her for breach of contract. Id. at 8-9.
¶8 We agree with the administrative judge’s finding that the appellant has
failed to meet her burden of proof regarding her involuntary resignation claim.
ID at 4. A decision to resign is presumed to be a voluntary act outside the
Board’s jurisdiction, and the appellant bears the burden of showing by a
preponderance of the evidence that her resignation was involuntary and therefore
tantamount to a forced removal. Garcia v. Department of Homeland
Security, 437 F.3d 1322, 1329-30 (Fed. Cir. 2006). One means by which an
appellant may overcome the presumption of voluntariness is by showing that the
resignation was obtained by agency misinformation or deception. Baldwin v.
Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 15 (2009).
¶9 The touchstone of the analysis of whether a retirement or resignation is
voluntary is whether the employee made an informed choice. Id., ¶ 16. A
decision made “with blinders on,” based on misinformation or lack of
information, cannot be binding as a matter of fundamental fairness and due
process. Id. (quoting Covington v. Department of Health & Human
Services, 750 F.2d 937, 943 (Fed. Cir. 1984)). An agency must provide
information that is not only correct in nature but adequate in scope to allow an
agency cancelled the RIF on June 23, 2014, IAF, Tab 18 at 17, and that the appellant
filed her Board appeal 6 days later, on June 29, 2014, IAF, Tab 1. Accordingly, the
administrative judge properly found that the Board lacks jurisdiction over the appeal of
the cancelled RIF. See Taber, 112 M.S.P.R. 124, ¶ 9 (where the decision to remove the
appellant had been cancelled by the time the appellant filed her appeal, the Board
lacked jurisdiction to consider the case as an appeal from the agency’s decision to
remove the appellant).
5
employee to make an informed decision. Baldwin, 111 M.S.P.R. 586, ¶ 16. This
includes an obligation to correct any erroneous information on which it has
reason to know an employee is relying. Id.
¶10 Here, the appellant has failed to show that her resignation was the product
of misinformation by the agency. As noted by the administrative judge, the
record reflects that the appellant never received the agency’s June 23, 2014
memorandum cancelling the RIF. ID at 3; IAF, Tab 18 at 11. However, the
agency states that, on July 9, 2014, it advised the appellant that the RIF had been
cancelled. IAF, Tab 18 at 11. The appellant states in her petition for review that
she was aware that the RIF had been cancelled when she resigned on July 29,
2014. PFR File, Tab 1 at 8. Accordingly, when she resigned the appellant was
aware of all of the information necessary to make an informed decision. Thus, we
conclude that the appellant did not rely on agency misinformation regarding the
RIF when she resigned. See Soler-Minardo v. Department of
Defense, 92 M.S.P.R. 100, ¶ 11 (2002) (finding that the appellant failed to
establish that she relied on agency misinformation in making her decision).
¶11 Although the appellant contends that she resign ed because she would have
possibly faced a breach of contract suit had she remained, the mere fact that the
appellant was faced with unpleasant choices, by itself, does not render her
decision to resign involuntary. See Schultz v. United States Navy, 810 F.2d 1133,
1136-37 (Fed. Cir. 1987); see also Soler-Minardo, 92 M.S.P.R. 100, ¶ 9. Based
on the foregoing, we AFFIRM the initial decision dismissing the appeal for lack
of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
6
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
7
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.