The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS HUBBERT, DOCKET NUMBER
Appellant, SF-0752-17-0673-I-1
v.
DEPARTMENT OF DEFENSE, DATE: February 28, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
John W. Gresham , Esquire, Charlotte, North Carolina, for the appellant.
Douglas W. Frison , Esquire, APO, Armed Forces Pacific, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his alleged removal from his School Psychologist position based on
alleged misconduct. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the case to the
Western Regional Office for further adjudication in accordance with this Remand
Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
According to the evidence of record, the agency issued the appellant a
notice dated February 8, 2017, informing him that he would be removed from
Federal service based on alleged misconduct effective February 24, 2017. Initial
Appeal File (IAF), Tab 6 at 109-11. On February 16, 2017, the appellant
submitted a brief letter stating that he “hereby resign[ed]” his position and that he
was retiring from Federal service. Id. at 106. The appellant’s letter did not set
forth an effective date for the resignation, but the parties apparently agreed that
the effective date of the resignation would be February 24, 2017, and that the
resignation would be in lieu of the removal action. Id. at 108. The appellant later
requested an extension of his resignation date to March 1, 2017, which the agency
granted. Id. The Standard Form 50 documenting the appellant’s separation from
the agency states that he resigned his position effective March 1, 2017, because of
“personal issues.” Id. at 25.
The Board retains jurisdiction over an appeal when an employee retires
when faced with an agency’s final decision to remove him. 5 U.S.C. § 7701(j);
Mays v. Department of Transportation, 27 F.3d 1577, 1579-80 (Fed. Cir. 1994);
Krawchuk v. Department of Veterans Affairs , 94 M.S.P.R. 641, ¶ 6 (2003). The
administrative judge appears to have relied on the appellant’s representation that
he intended to retire to invoke 5 U.S.C. § 7701(j) and adjudicate this appeal as a
removal appeal. IAF, Tab 19, Initial Decision at 3. However, there is no
evidence of record showing that the appellant actually retired. In particular, there
is no document in the record indicating that the appellant retired, and no
testimony was proffered at the hearing to show that he retired.
Because the evidence of record appeared to show that the appellant
resigned rather than retired, the Clerk of the Board issued a order directing the
parties to submit evidence and argument on the question of whether the appellant
resigned or retired. Petition for Review (PFR) File, Tab 6. In response, both
parties stated that the appellant resigned his position. PFR File, Tabs 7-8.
3
When an employee resigns rather than retires, section 7701(j) does not
apply. Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 41
(2009). In such a case, the Board has jurisdiction over the appeal only if the
appellant can prove that his resignation was involuntary due to coercion, duress,
or circumstances that may constitute intolerable working conditions. Id. In
contrast to an adverse action, such as a removal action taken under 5 U.S.C.
chapter 75, 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
preponderant evidence that his resignation was involuntary and therefore
tantamount to a forced removal. Baldwin, 111 M.S.P.R. 586, ¶ 15 (citing
Garcia v. Department of Homeland Security, 437 F.3d 1322, 1329-30 (Fed. Cir.
2006)). Because the appellant resigned his position, the administrative judge
erred by adjudicating this appeal as if it were a removal appeal within the Board’s
jurisdiction. Accordingly, a remand is necessary.
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office. On remand, the administrative judge shall afford the appellant
notice of his burdens and elements of proof in an involuntary resignation case
consistent with the requirements set forth in Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985), determine whether the Board has
4
jurisdiction over this appeal, and conduct such further adjudication as may be
necessary in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.