Sterling Scott v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

STERLING SCOTT, DOCKET NUMBER

Appellant, SF-0752-15-0643-I-1

v.

DEPARTMENT OF HOMELAND DATE: February 25, 2016

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bobby R. Devadoss, Esquire, and Stephanie Bernstein, Esquire, Dallas,

Texas, for the appellant.

Keri A. Buck, Esquire, and Laurel Rimon, Esquire, Washington, D.C., 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 alleged involuntary resignation appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only when: the initial decision

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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. 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, 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 held the position of Criminal Investigator within the agency’s

Office of the Inspector General in San Diego. Initial Appeal File (IAF), Tab 7

at 26. On December 5, 2014, the agency proposed removing him based upon a

single charge of conduct unbecoming a Federal law enforcement officer. Id.

at 8-15. In short, the agency alleged that the appellant purchased cocaine without

any authority to do so. Id. at 8-9. On December 8, 2014, the appellant designated

an attorney to represent him in the matter. Id. at 16. That attorney submitted a

written response to the proposed removal on January 5, 2015. Id. at 18-24. On

January 7, 2015, before the agency issued a decision on the proposed removal, the

appellant resigned. Id. at 25-26.

¶3 The appellant filed the instant appeal, alleging that his resignation was

involuntary. IAF, Tab 1. The administrative judge issued an order, setting out

the applicable standards and directing the appellant to meet his jurisdictional

burden. IAF, Tab 2. The appellant and agency each filed a response. IAF,

Tabs 5, 7.

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¶4 The administrative judge dismissed the appeal, without a hearing, for lack

of jurisdiction. IAF, Tab 10, Initial Decision (ID). 2 The appellant has filed a

petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed

a response. PFR File, Tab 3.

¶5 An appellant has the burden of proving, by preponderant evidence, that his

appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). If an

appellant raises nonfrivolous issues of fact relating to jurisdiction that cannot be

resolved simply on submissions of documentary evidence, he is entitled to a

hearing on the jurisdictional issue. See Manning v. Merit Systems Protection

Board, 742 F.2d 1424, 1427-28 (Fed. Cir. 1984).

¶6 Employee-initiated actions, such as a resignation, are presumed to be

voluntary, and thus outside the Board’s jurisdiction. Staats v. U.S. Postal

Service, 99 F.3d 1120, 1123-24 (Fed. Cir. 1996). However, an appellant may

overcome the presumption by showing that: (1) his resignation was the product

of misinformation or deception by the agency; or (2) his resignation was the

product of coercion by the agency. Id. at 1124.

¶7 The appellant argued below that the facts asserted in the proposed removal

were inaccurate and incomplete. IAF, Tab 5 at 9. He also alleged that when the

proposing official presented him with the proposed removal, he told the appellant

that he “should not be fighting [the] case because [the proposing official] knew

that the MSPB would rule against [the appellant].” Id. The appellant argued that

the aforementioned statement was misleading and coercive, causing him to resign.

Id. at 4-5, 9-10. He reasserts the argument on review. PFR File, Tab 1 at 6-9.

¶8 Although the appellant has alleged that the agency’s proposal to remove

him was filled with factual errors, he has provided nothing to support that

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The appellant filed his appeal more than 5 months after his resignation. See IAF,

Tab 1. However, because the administrative judge dismissed the appeal for lack of

jurisdiction, he made no finding on the issue of timeliness. ID at 3 n.2. We decline to

reach the timeliness issue for the same reason.

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assertion or a finding that the agency knew it could not prevail in the matter. See

Briscoe v. Department of Veterans Affairs, 55 F.3d 1571, 1573-74 (Fed. Cir.

1995) (explaining that bald allegations standing alone do not meet the

nonfrivolous allegation standard); see also Baldwin v. Department of Veterans

Affairs, 109 M.S.P.R. 392, ¶ 12 (2008) (discussing that, if an appellant shows that

an agency knew that it would not prevail on a proposed adverse action, the

proposed action is coercive and the resulting resignation is involuntary). In

addition, although the appellant argues that he relied upon the proposing

official’s statement concerning the likelihood of him succeeding in a Board

appeal, we disagree with the assertion that the statement rendered his

resignation involuntary.

¶9 The test for involuntariness is an objective one, requiring the appellant to

show that a reasonable employee in the same circumstances would have felt

coerced into resigning or retiring. Conforto v. Merit Systems Protection

Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013). In this case, the allegedly coercive

statement amounts to little more than the proposing official’s opinion that the

agency had a strong case. See IAF, Tab 5 at 9. We are not persuaded that a

reasonable employee under the same circumstances would have felt coerced into

resigning due to that off-hand comment. This is especially so given the fact that

the appellant had his own attorney representative to consult about the matter, an

attorney who prepared a detailed response to the proposal, extensively citing

Board precedent. IAF, Tab 7 at 16, 18-23.

¶10 Under the circumstances, the appellant may have faced an unpleasant

choice, but he has failed to meet his burden of nonfrivolously alleging that his

resignation was involuntary. See Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed.

Cir. 1987) (stating that the fact that an employee faces an unpleasant choice of

either resigning or facing removal for cause does not render his decision

involuntary). We therefore affirm the administrative judge’s decision, dismissing

the involuntary resignation appeal for lack of jurisdiction.

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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

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).

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 U.S. 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 U.S. 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 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

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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.