The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MUHAMMAD M. BAAITH, DOCKET NUMBER
Appellant, NY-0752-15-0073-I-1
v.
DEPARTMENT OF VETERANS DATE: July 31, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Muhammad M. Baaith, Bronx, New York, pro se.
Erin Conroy, Esquire, Brooklyn, New York, 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 his involuntary resignation 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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).
¶2 The appellant filed this Board appeal alleging that he resigned from his
position as a housekeeping aide in order to pursue another job opportunity but
that he should have been reinstated to his former position after this other
opportunity did not work out. Initial Appeal File (IAF), Tab 1 at 5. The
appellant also stated that he previously had filed an equal employment
opportunity (EEO) complaint and that the other job opportunity arose while he
awaited a decision on the complaint. Id. He requested a hearing. Id. at 4.
¶3 The administrative judge issued an order to show cause why the appeal
should not be dismissed for lack of jurisdiction. IAF, Tab 3. The appellant
responded that he had engaged in prior EEO activity, was previously suspended,
had money taken out of his paychecks, had previously been transferred to another
agency facility, and was denied leave without pay that he requested to pursue the
other job opportunity. IAF, Tab 4. He also asserted that agency officials
suggested that he could return to his employment. Id. Finally, the appellant
stated that, when he reapplied, he was not selected for his prior position. Id.
¶4 In the initial decision, the administrative judge found that the appellant
voluntarily resigned because of another employment opportunity, that he made no
3
claim that the agency improperly accepted his resignation, and that he had no
right to restoration. 2 IAF, Tab 5, Initial Decision (ID) at 4-5. Accordingly, he
dismissed the appeal for lack of jurisdiction. ID at 5. The appellant filed a
timely petition for review in which he states that the initial decision was based on
erroneous findings of material fact but offers no other argument. Petition for
Review (PFR) File, Tab 1. The agency has responded in opposition to the
petition. PFR File, Tab 4.
¶5 On petition for review, the appellant merely disagrees with the
administrative judge’s explained findings and, as such, provides no basis to
disturb the initial decision. Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987). Furthermore, we agree with the
administrative judge that the appellant failed to make a nonfrivolous allegation of
jurisdiction. See ID at 4-5.
¶6 An employee-initiated action, such as a resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction, unless the employee presents
sufficient evidence to establish that the action was obtained through duress or
coercion or to show that a reasonable person would have been misled by the
agency. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). An
appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal
of an alleged involuntary resignation only if he makes a nonfrivolous allegation
casting doubt on the presumption of voluntariness. Id., ¶ 10. Where the appellant
alleges that the agency took actions that made working conditions so intolerable
that he was driven to an involuntary resignation, the Board will find an action
2
The administrative judge correctly found that, to the extent that the appellant
challenged the agency’s decision as a denial of restoration or reinstatement, IAF, Tab 1
at 4, absent a specific right to restoration to duty or reemployment under 5 C.F.R. Parts
352 and 353, there is no right to appeal an agency’s decision to deny restoration. See
IAF, Tab 5, Initial Decision (ID) at 5 (citing Case v. U.S. Postal Service, 15 M.S.P.R.
552, 553 (1983)). The administrative judge also correctly stated that the appellant did
not claim that the agency improperly denied him the right to withdraw his resignation.
See ID at 5 (citing 5 C.F.R. § 715.202(b)).
4
involuntary only if the appellant demonstrates that the agency engaged in a course
of action that made working conditions so difficult or unpleasant that a
reasonable person in the appellant’s position would have felt compelled to resign.
Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). The
Board addresses allegations of discrimination and reprisal in connection with an
alleged involuntary resignation only insofar as those allegations relate to the issue
of voluntariness. Id.
¶7 Here, the appellant alleged that he had filed an EEO complaint, had
previously been suspended, had money taken out from his paycheck, was
transferred to a different facility, and was denied leave without pay that he
requested in order to pursue the other job opportunity. 3 IAF, Tab 1 at 5, Tab 4.
We find that the appellant’s disagreement with the agency’s decisions, such as his
transfer to another facility, does not render his resignation involuntary. See
Conforto v. Merit Systems Protection Board, 713 F.3d 1111, 1121-22 (Fed. Cir.
2013). We also find that the appellant’s statement concerning the denial of his
leave does not constitute an allegation of intolerable working conditions. See
Searcy, 114 M.S.P.R. 281, ¶ 13. Lastly, the appellant’s vague statements
concerning his EEO activity and alleged discrimination do not cast doubt on the
presumption of voluntariness. See Axsom v. Department of Veterans
Affairs, 110 M.S.P.R. 605, ¶¶ 16-17 (2009). Thus, we find that the appellant has
not alleged intolerable working conditions that caused him to involuntarily resign.
¶8 To the extent that the appellant alleged that the agency misled him into
thinking he could be rehired, IAF, Tab 4, his bare allegations do not support a
finding that his resignation was the result of agency misinformation. See
Axsom, 110 M.S.P.R. 605, ¶¶ 20-21. Accordingly, because the appellant did not
3
Although the appellant alleged that the agency took money out of his paycheck, IAF,
Tab 4, it appears from the final agency decision concerning his EEO complaint that at
least some of the money was related to his leave usage and that he admitted that this
issue was corrected, IAF, Tab 1 at 21-22.
5
make a nonfrivolous allegation casting doubt on the presumption that his
resignation was voluntary, we conclude that the administrative judge properly
denied his request for a hearing and properly dismissed his appeal for lack of
jurisdiction. 4
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:
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).
4
To the extent that the appellant attempted to appeal his nonselection to his former job,
an unsuccessful candidate for a Federal civil service job generally has no right to appeal
his nonselection. Upshaw v. Consumer Product Safety Commission, 111 M.S.P.R. 236,
¶ 7 (2009). Ordinarily, an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue. Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). The fact that the
administrative judge did not provide Burgess notice concerning a possible nonselection
claim did not prejudice the appellant’s substantive rights, however, because the Board
clearly lacks jurisdiction over general nonselection claims. See Richards v. Office of
Personnel Management, 97 M.S.P.R. 291, ¶ 7 (2004) (finding harmless the failure to
provide Burgess notice where the appellant was challenging a decision regarding life
insurance, a matter over which the Board clearly lacked jurisdiction). Therefore, we
find that any error in failing to address a possible nonselection claim or in failing to
provide Burgess notice on that issue is harmless. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984).
6
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 appeal to
the 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 Merit Systems 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.