The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC T. HOWARD, DOCKET NUMBER
Appellant, CH-0752-18-0486-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 11, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Eric T. Howard , Douglasville, Georgia, pro se.
Jennifer C. Pace , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the finding of the initial decision that the Board lacks jurisdiction over
this appeal, and REMAND the case to the Central 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant submitted a Form 2574, Resignation/Transfer from the Postal
Service, 2 indicating his intent to resign, effective June 1, 2018, from his position
as a Mail Handler at the Kansas City National Distribution Center. 3
Initial Appeal File (IAF), Tab 10 at 12-13. He asserts that, on May 30, 2018, he
submitted a written request to withdraw his resignation, per the instructions on
the Form 2574. IAF, Tab 1 at 9. The appellant’s PS Form 50 shows that the
agency listed his last day in pay status as June 6, 2018 and processed his
resignation on June 26, 2018. IAF, Tab 10 at 12.
The appellant filed an appeal with the Board alleging that the agency failed
to reinstate him after he had withdrawn his resignation. IAF, Tab 1. He
requested a hearing. IAF, Tab 8. The administrative judge informed the
appellant that there was a question regarding whether his appeal was within the
Board’s jurisdiction, apprised him of his burden of proving jurisdiction over an
involuntary resignation appeal, and ordered him to file evidence and argument
showing that his appeal should not be dismissed for lack of jurisdiction. IAF,
Tab 4 at 2-3. The administrative judge further informed the appellant that his
appeal appeared to have been filed 11 days late and ordered him to file evidence
2
As the administrative judge noted, the actual date the form was submitted is a matter
of dispute. Initial Appeal File (IAF), Tab 12, Initial Decision at 2 n.2. The agency
provided a Form 2574 that bears a date of June 1, 2018. IAF, Tab 10 at 13. The
appellant asserts, however, that he had submitted his voluntary resignation as early as
May 16, 2018, as evidenced by the absence of a date on his copy of the form. IAF,
Tab 1 at 9, Tab 11 at 5-6. The discrepancy in the dates is relevant only insofar as it
may relate to the timing of the resignation rescission request that the appellant
purportedly submitted.
3
In order to have appeal rights before the Board, a Postal Service employee: (1) must
be an excepted-service, preference-eligible employee, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
nonconfidential clerical capacity; and (2) must have completed 1 year of current
continuous service in the same or similar positions. 5 U.S.C. § 7511(a)(1)(B)(ii);
39 U.S.C. § 1005(a)(4)(A)(ii); see Trabue v. U.S. Postal Service, 102 M.S.P.R. 14, ¶ 5
(2006). The record reflects that the appellant has veterans’ preference and has worked
for the agency in the same position since October 2012. IAF, Tab 10 at 12.
3
and argument showing that his appeal was timely filed or that good cause existed
for the delay. IAF, Tab 5 at 2-3.
The appellant responded to the administrative judge’s orders, describing
the circumstances of his rescission of his resignation. IAF, Tabs 6-7. He
suggested that the agency’s failure to acknowledge receipt of his rescission
request was merely another incident in a pattern of inaction by the agency, as
evidenced by what he perceives to be the mishandling of his transfer requests, and
noted that he was not “officially notified” of his separation from Federal service
until July 2, 2018. IAF, Tab 6 at 4, Tab 7 at 4-7, Tab 11 at 4-5. The agency
moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 10.
Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant did not
make a nonfrivolous allegation that his resignation should not have been effected
because he withdrew it prior to its effective date. IAF, Tab 12, Initial Decision
(ID). The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
An employee-initiated action, such as a retirement or resignation, is
presumed to be voluntary, and thus outside the Board’s jurisdiction. Hosozawa v.
Department of Veterans Affairs, 113 M.S.P.R. 110, ¶ 5 (2010). An involuntary
resignation, however, is equivalent to a forced removal and therefore is within the
Board’s jurisdiction. Id. The appellant has the burden to prove the Board’s
jurisdiction by preponderant evidence. 4 Id.; see 5 C.F.R. § 1201.56(b)(2)(i)(A).
An employee has a right to withdraw a resignation at any time before it is
effective unless the agency has a valid reason for refusing to permit the
withdrawal. Levy v. Department of Homeland Security, 109 M.S.P.R. 444, ¶ 18
4
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would need to find that a contested fact is more
likely true than not. 5 C.F.R. § 1201.4(q).
4
(2008); see 5 C.F.R. § 715.202(b). An employee’s resignation may be deemed
involuntary, and therefore within the Board’s jurisdiction, if the agency
improperly denied his request to withdraw his resignation before its effective
date. Levy, 109 M.S.P.R. 444, ¶ 18. When an employee attempts to withdraw a
resignation notice before its effective date and the agency refuses to accept the
withdrawal, the burden shifts to the agency to establish, by preponderant
evidence, that it had a valid reason for its refusal. Thomas v. Department of
Housing & Urban Development, 63 M.S.P.R. 649, 656-57 (1994).
On review, the appellant argues that he is entitled to a hearing because he
attempted to withdraw his resignation via fax prior to its effective date but the
agency effected his separation from Federal service regardless. PFR File, Tab 1
at 3-4; see IAF, Tab 1 at 3, 9-10, Tab 11 at 5. He argues that the administrative
judge incorrectly determined that the evidence he provided, namely his June 2018
earnings statement showing that he requested leave without pay, does not support
the presumption that the agency accepted the withdrawal of his resignation.
PFR File, Tab 1 at 4; ID at 5.
The 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. See
Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985).
A nonfrivolous allegation of Board jurisdiction is an allegation of fact which, if
proven, could establish a prima facie case that the Board has jurisdiction over the
matter in issue. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994); see
5 C.F.R. § 1201.4(s). In determining whether the appellant has made a
nonfrivolous allegation of jurisdiction entitling him to a hearing, the
administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
5
conflicting assertions of the parties and the agency’s evidence may not be
dispositive. Ferdon, 60 M.S.P.R. at 329.
The administrative judge found that the appellant’s allegation was
insufficient to meet the nonfrivolous standard because he did not provide any
details regarding his withdrawal letter, such as a receipt confirmation or a
description of the document itself. ID at 5. As an e-filer, the appellant provided
the Board with his declaration “under penalty of perjury” that the facts stated in
his pleadings were true and correct. 5 IAF, Tabs 6, 7, 11. A statement made under
penalty of perjury that is not rebutted is competent evidence of the matter
asserted. Aldridge v. Department of Agriculture, 110 M.S.P.R. 21, ¶ 9 (2008);
see Woodall v. Federal Energy Regulatory Commission , 30 M.S.P.R. 271, 273
(1986) (stating a declaration subscribed as true under penalty of perjury, if
uncontested, proves the facts that it asserts). The agency has submitted an
unsworn statement from its agency representative that there is no indication that
the appellant withdrew his resignation. IAF, Tab 10 at 4-5. However, the
assertion of an agency representative in a pleading generally does not constitute
evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 16 n.5
(2011). A review of the record shows that the agency has not submitted any
evidence that rebuts the appellant’s narrative of events, such as a sworn affidavit
from a designated representative of its Human Resources Shared Service Center
affirming that it received no written request to withdraw the appellant’s
resignation prior to the effective date by any means delineated in the Form 2574
instructions. IAF, Tab 10 at 13.
5
The appellant asserted below that he did not even know that he was separated from the
agency until he showed up at work on June 25, 2018, after a period of leave without pay
(LWOP), and found his timecard missing. IAF, Tab 6 at 4, Tab 7 at 7. He believes that
the agency had received his resignation rescission request, even if it was not
acknowledged, given his LWOP status for the month of June 2018 on his earnings
statement and his “drafted” status to work on July 4, 2018 on a job assignment sheet.
IAF, Tab 11 at 5, 8-10.
6
Because the totality of the circumstances asserted by the appellant
establishes a nonfrivolous allegation of fact that, if proven, could establish that
his resignation was involuntary, the appellant is entitled to a jurisdictional
hearing. See Levy, 109 M.S.P.R. 444, ¶¶ 18-20 (remanding the appeal for a
jurisdictional hearing when the appellant nonfrivolously alleged that his
resignation was involuntary). On remand, the administrative judge should decide
whether the appellant communicated to the agency his desire to withdraw his
resignation prior to its effective date, and if so, whether the agency had an
acceptable reason for refusing to permit the withdrawal.
As the administrative judge noted, there is a question as to the timeliness of
the appeal. ID at 2 n.1. When issues of jurisdiction and timeliness are
inextricably intertwined, that is, if resolution of the timeliness issue depends on
whether the appellant was subjected to an appealable action, a finding on
jurisdiction must be made before an appeal may be dismissed as untimely.
See Harper v. U.S. Postal Service, 87 M.S.P.R. 632, ¶ 11 (2001). To the extent
the jurisdictional and timeliness issues are inextricably intertwined, as is
normally the case in an appeal of a constructive adverse action, the administrative
judge shall adjudicate the jurisdictional issue before proceeding to the timeliness
issue. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 5, aff’d,
469 F. App’x 852 (Fed. Cir. 2011).
7
ORDER
For the reasons discussed above, we REMAND this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.