# Thomas Sullivan v. Department of Health and Human Services

> Merit Systems Protection Board · July 27, 2022

URL: https://www.frixlaw.com/law-library/cases/9373545

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** July 27, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9373545

## How later opinions describe it (automated extraction)

- holding that the agency completely rescinded the action by cancelling the removal and scrubbing the appellant’s personnel file of any reference of it

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

THOMAS F. SULLIVAN, DOCKET NUMBER
Appellant, DE-0752-16-0309-I-1

v.

DEPARTMENT OF HEALTH AND DATE: July 27, 2022
HUMAN SERVICES,
Agency.

THIS ORDER IS NONPRECEDENTIAL 1

David H. Shapiro, Esquire and Richard W. Stevens, Esquire, Washington,
D.C., for the appellant.

Christopher Tully, Esquire and Christy Te, Esquire, Washington, D.C., for
the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal and involuntary retirement claims for lack of jurisdiction.

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A nonprecedential order is one that the Board has determined does not add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 nonprece dential 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

For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Denver Field Office
for further adjudication in accordance with this Remand Order .

BACKGROUND
¶2 On May 6, 2016, the agency notified the appellant of its decision to remove
him “effective immediately” from his position as Regional Administrator of the
agency’s Administration of Children and Families. Initial Appeal File (IAF),
Tab 11 at 21, 26-27, Tab 18 at 21. Later that day, the appellant initiated his
retirement. IAF, Tab 17 at 12. According to email records from May 9-20, 2016,
a Retirement Specialist with the Administration of Children and Families
discussed with the Administration’s Executive Officer how to process the
appellant’s retirement and ultimately determined that the Executive Officer had to
cancel the removal action that she previously had entered in the agency’s
electronic data system. IAF, Tab 18 at 15-20. It is undisputed that the agency
processed the appellant’s retirement on May 20, 2016, and pursuant to his
request, made it effective May 5, 2016. IAF, Tab 12 at 12, Tab 17 at 12-13. On
May 24, 2016, the appellant filed this appeal, challenging the merits of his
removal and raising the affirmative defenses of discrimination and retaliation for
protected equal employment opportunity (EEO) activity, whistleblower reprisal,
and harmful procedural error. IAF, Tab 1 at 4, 6, Tab 10 at 5-14.
¶3 During a status conference, the administrative judge raised the issue of
whether, in light of the appellant’s retirement, the Board has jurisdiction over his
removal. IAF, Tabs 16, 19. He ordered the parties to file argument and evidence
on whether 5 U.S.C. § 7701(j) applied, given the agency’s purported cancellation
of the appellant’s removal, and if inapplicable, whether the appellant’s retirement
was involuntary. IAF, Tabs 16, 19. Both parties submitted multiple responses.
IAF, Tabs 17-18, 23-24.
3

¶4 The appellant argued that 5 U.S.C § 7701(j) is applicable, and thus his
retirement status should not be considered in determining Board jurisdiction over
his removal. IAF, Tab 17 at 7-9. He further alleged that the agency failed to
completely cancel his removal, sought to exclude the cancellation Standard Form
(SF) 50 submitted by the agency, and questioned the evidentiary value of an
agency declaration attesting to the cancellation of his removal. IAF, Tab 23
at 11-15. He also claimed that his retirement was involuntary because he “needed
his retirement income to live on” while challenging his removal. Id. at 17.
¶5 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction, without holding the appellant’s requested hearing. IAF,
Tab 1 at 2, Tab 26, Initial Decision (ID) at 1-2, 7. He found that before the
appellant filed the appeal, the agency cancelled the removal and instead effected
his retirement, an action over which the Board generally does not have
jurisdiction. ID at 4-6. In making this finding, he relied upon the May 9-20,
2016 email chain. ID at 5. Given the appellant’s evidentiary challenges, he did
not consider the cancellation SF-50 or the agency official’s declaration. ID
at 5-6. He further found that the appellant’s reason for retiring, t o ensure that he
would continue to receive a paycheck, was insufficient to render his retirement
involuntary. ID at 7.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has submitted a response, to which th e appellant has
replied. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On review, the appellant challenges the administrative judge’ s findings that
the Board lacks jurisdiction over his removal and that he voluntarily retired. PFR
File, Tab 1 at 19-32, Tab 4 at 8-20. He reasserts his claims that his removal
remains effective because the agency failed to completely rescind the action
before he filed his appeal. PFR File, Tab 1 at 22-26, Tab 4 at 11-13.
4

Specifically, he reargues that the cancellation was ineffective because the agency
provided no reliable, official documentation of the cancellation; the cancellation
decision was not made by an authorized official; he was not properly notified of
the decision; and he was not returned to status quo ante. 2 PFR File, Tab 1
at 22-26. He also continues to claim that his retirement was involuntary because
the removal decision caused him to retire. PFR File, Tab 1 at 29-32, Tab 4
at 18-20. For the reasons discussed below, we find that remand is necessa ry. 3
The appellant nonfrivolously alleged that the agency failed to cancel his removal
and therefore is entitled to a jurisdictional hearing.
¶8 The Board’s jurisdiction is determined by the nature of the agency action
being appealed at the time that the appeal is filed. Anderson v. U.S. Postal
Service, 75 M.S.P.R. 494, 498 (1997). Under 5 U.S.C. § 7701(j), when an
appellant retires after receiving a final removal decision, the Board may not
consider his retirement status in determining the appealability of the removal,
even if his retirement is made effective on or before t he removal date. Mays v.
Department of Transportation, 27 F.3d 1577, 1578-79, 1581 (Fed. Cir. 1994).
The Board lacks jurisdiction, however, if the agency cancels the removal or

2
The appellant reasserts his request to strike the cancellation SF -50 as a sanction for
the agency’s purported “failure to timely produce” the document. PFR File, Tab 1
at 28-29. The administrative judge denied sanctions, finding that the agency did not
produce the form earlier because the appellant did not mention his retirement in his
initial appeal. IAF, Tab 1 at 4, 6; ID at 5. We decline to reverse this finding. See El v.
Department of Commerce, 123 M.S.P.R. 76, ¶ 16 (2015) (observing that the imposition
of sanctions is a matter within the administrative judge’s sound discretion , and his
decision will not be reversed absent a showing that such discretion has been abused),
aff’d per curiam, 663 F. App’x 921 (Fed. Cir. 2016).
3
The appellant also submitted, for the first time on review, affidavi ts from his EEO
case. PFR File, Tab 1 at 9, 34-51. He indicated that he received the affidavits after the
initial decision was issued. Id. at 9. Under 5 C.F.R. § 1201.115(d), the Board generally
will not consider evidence submitted for the first time on petition for review absent a
showing that it was unavailable before the record was closed despite the party’s due
diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). However, we
need not resolve the issue of their availability because we do not rely on these
documents in deciding to remand this appeal.
5

modifies it to a nonappealable action prior to the filing of an appeal. Taber v.
Department of the Air Force, 112 M.S.P.R. 124, ¶ 8 (2009).
¶9 The appellant primarily relies on Tennyson v. Department of the Air Force,
to support his contention that the agency failed to effectively cancel his removal
before he appealed. 3 M.S.P.R. 416, 419 (1980), overruled on other grounds by
Koop v. Federal Emergency Management Agency, 16 M.S.P.R. 605 (1983); PFR
File, Tab 1 at 23-25. In Tennyson, the appellant resigned and applied for
retirement after the agency notified him of its final decision to remove him.
3 M.S.P.R. at 417. As a result, a personnel specialist stopped the processing of
the appellant’s removal in its computer system, and the agency instead processed
his retirement. Id. at 417-18. The Board found that it had jurisdiction over the
appeal because there was no evidence that the individual who stopped processing
the appellant’s removal had the authority to cancel the action, and the appellant
had not been notified at the time that he filed his appeal of the cancellation. Id.
at 419. We find the underlying facts analogous.
¶10 The agency argues that Tennyson is inapplicable because there, the agency
issued the resignation SF-50 after the appellant filed his appeal, whereas here, the
agency issued an SF-50 effecting the appellant’s retirement before he filed his
appeal. PFR File, Tab 3 at 9. We disagree. As here, the relevant inquiry in
Tennyson was whether the agency effectively cancelled the removal action before
the appellant filed his appeal. Moreover, an SF-50 does not constitute a
personnel action itself and does not on its face control an employee’s status and
rights. Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 22 (2014).
¶11 The Board must look to the totality of the circumstances to determine
whether the agency’s removal action was effective at the time that the appellant
filed his appeal. Id. Looking to past precedent, some potential factors to
consider include, but are not limited to: (1) who authorized the cancellation and
the basis for his or her authority to make that decision; (2) whether the agency
issued a cancellation SF-50, sent a cancellation letter, or completed some other
6

similar cancellation procedure; (3) whether the agency notified the appellant of
its decision to cancel the removal action; and (4) the timing of the agency’s
cancellation efforts. See, e.g., Jenkins v. Merit Systems Protection Board,
911 F.3d 1370, 1374 (Fed. Cir. 2019) (holding that the agency completely
rescinded the action by cancelling the removal and scrubbing the appellant’s
personnel file of any reference of it); Fox, 120 M.S.P.R. 529, ¶ 22 (finding that
the agency removed the appellant, notwithstanding her subsequent retroactiv e
retirement, when it issued the removal decision, as evidenced by the
accompanying removal SF-50); Taber, 112 M.S.P.R. 124, ¶ 9 (finding that,
although the effective date of the removal decision had passed, the Board lacked
jurisdiction over the appeal because the agency mailed the appellant a letter
notifying him of the cancellation of his removal before he filed his appeal) ;
Tennyson, 3 M.S.P.R. at 419 (finding that the agency failed to effectively cancel
the removal action because there was no indication that an authorized official
made the cancellation decision or that the appellant was notified of it). 4
¶12 Here, the appellant represents that he first learned of the cancellation SF -50
during the pendency of the Board appeal. IAF, Tab 23 at 9; PFR File, Tab 1
at 15. The agency, on the other hand, has provided no evidence on the notice
issue. The administrative judge did not identify this aspect of the appellant’s
jurisdictional burden in his orders or the initial decision, and he made no finding
as to whether the appellant received proper notice of the cancellation before filing
his appeal. IAF, Tab 16 at 1-2, Tab 19, ID at 4-6.

4
The appellant argues that the administrative judge erred in not following Johnson v.
Department of Agriculture, 14 M.S.P.R. 181, 184-85 (1982), which requires complete
rescission of the action being appealed and restoration to status quo ante for a
cancellation to be effective. PFR File, Tab 1 at 22. We find that Johnson is inapposite
to the instant appeal. The rule set forth in Johnson applies to cancellations of actions
that occur after an appeal has been filed. 14 M.S.P.R. at 184. Rather, Anderson is
applicable here because it concerns an agency’s cancellation of an otherwise appealable
action before an appeal is filed. 75 M.S.P.R. at 498.
7

¶13 Similarly, because he found that the email chain established that the agency
cancelled the removal action, the administrative judge did not fully consider the
cancellation SF-50, the appellant’s challenges to that document, or the agency’s
declaration addressing the appellant’s official personnel folder. ID at 5-6.
Furthermore, the administrative judge did not address the appellant’s argument
that the agency failed to provide any evidence indicating that the individuals on
the email chain had the authority to cancel his removal. We find that the email
chain alone is insufficient to determine whether a final cancellation decision was
made. Id. Instead, the administrative judge should have assessed the totality of
the evidence presented, including the cancellation SF-50, the agency official’s
declaration, and the appellant’s evidentiary challenges to those documents.
¶14 In summary, the appellant alleges that the agency failed to effectively
document its decision to cancel his removal, the employees involved lacked the
authority to cancel his removal, and the agency did not notify him of its
cancellation decision before he filed his appeal. PFR File, Tab 1 at 22-26. As
stated previously, the administrative judge dismissed the appellant’s appeal for
lack of jurisdiction, without holding his requested hearing. IAF, Tab 1 at 2; ID
at 1-2. However, if an appellant makes a nonfrivolous allegation of Board
jurisdiction over his appeal, he is entitled to a jurisdictional hearing. Ferdon v.
U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). Nonfrivolous allegations of
Board jurisdiction are allegations of fact that, if proven, could establish a prima
facie case that the Board has jurisdiction over the matter at issue. Id. at 329. We
find that the appellant’s allegations constitute a nonfrivolous allegation that ,
based on the totality of the circumstances, the agency did not cancel his removal
before filing his appeal.
¶15 Accordingly, remand for a jurisdictional hearing is necessary to address the
factual disputes raised by the parties’ arguments and evidence and to determine
whether the appellant proved by preponderant evidence that the Board has
jurisdiction over his removal. 5 C.F.R. § 1201.56(b)(2)(i)(A). If the
8

administrative judge finds that the Board lacks jurisdiction over the appellant’s
removal, he may reinstate his findings on the appellant’s involuntary retirement
claims.
¶16 The appellant alleges that 5 U.S.C. § 7701(j) mandates a finding that
retirements, which would not have occurred but for being faced with a final
removal decision, are involuntary as a matter of law. PFR File, Tab 1 at 29-32.
We disagree. The provision was intended to protect employees from having to
choose between forfeiting their appeal rights and obtaining retirement benefits.
Mays, 27 F.3d at 1580. It does not establish that a retirement in the f ace of a final
removal decision is per se involuntary. Cf. Fox, 120 M.S.P.R. 529, ¶ 23 (finding
that if the Board has jurisdiction over a removal under 5 U.S.C. § 7701(j), any
involuntary retirement claim is subsumed into the removal appeal ).
¶17 Here, the administrative judge correctly notified the appellant of his
jurisdictional burden on his involuntary retirement claims. IAF, Tabs 16, 19; ID
at 3-4. We discern no error with his finding that the appellant’s reason for
retiring, to ensure that the he would continue to receive a paycheck, did not
render his retirement involuntary. ID at 7; see Morrison v. Department of the
Navy, 122 M.S.P.R. 205, ¶¶ 5-6 (2015) (finding that the choice between two
unpleasant alternatives does not rebut the presumed voluntariness of the ultimate
choice of retirement).
¶18 We nonetheless vacate the administrative judge’s findings on this issue
because a separate finding on the appellant’s involuntary retirement claim is
appropriate only if the Board lacks jurisdiction over his removal. See Fox,
120 M.S.P.R. 529, ¶ 23 (finding that it is error to adjudicate an appellant’s
involuntary retirement claim as a matter distinct from a removal action).
However, on remand, if the administrative judge finds that the appellant did not
establish jurisdiction by preponderant evidence over his removal , then the
administrative judge may reinstate his findings on the appellant’s involuntary
retirement claims.
9

ORDER
¶19 For the reasons discussed above, we vacate the initial decision and remand
this case to the field office for further adjudication in accordance with this
Remand Order. On remand, the administrative judge should hold a jurisdictional
hearing to determine whether the appellant can meet his burden of proving Board
jurisdiction over his removal by preponderant evidence. To determine whether
the agency effectively cancelled the removal action, the administrative judge
should consider the totality of the circumstances, including , but not limited to,
who made the decision, whether the appellant was notified of the cancellation
decision, and whether the SF-50 and agency records accurately reflect that
decision. If the administrative judge finds that the appellant has met his
jurisdictional burden, then he should adjudicate the merits of the appeal and the
appellant’s affirmative defenses.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9373545. Public record. Not legal advice.