The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES KELLEY, DOCKET NUMBER
Appellant, DC-0752-19-0340-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: May 9, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
Christopher T. Dong , Esquire, Joint Base Andrews, Maryland, for the
agency.
Kimberly Blanton-Day , Esquire, Dallas, Texas, 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 constructive removal appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant retired from uniformed service with the United States Air
Force and, on September 4, 2007, the agency appointed him to the competitive
service position of YA-02 Flight Management Specialist at Ramstein Air Force
Base, Germany. Initial Appeal File (IAF), Tab 4 at 29, Tab 12 at 23-24.
Continuous overseas service in that position was limited by Department of
Defense policy to 5 years unless an extension was granted. IAF, Tab 13 at 10, 35.
At the end of the 5 years, plus any extensions, the appellant would be offered
assistance through the agency’s priority placement program to secure a position
in the continental United States. Id. Upon notification that his return was
required, the appellant would need to register with the priority placement
program. Id. at 35. He would be required to accept the return placement
identified by the priority placement program or face separation. Id.
The appellant’s tour of duty in Germany was originally set for 3 years, but,
at the behest of his supervisors, his tour was extended multiple times. IAF, Tab 4
at 29-31, 67, 73, 77. On December 13, 2016, the appellant registered with the
priority placement program in anticipation of his return to the continental United
States. Id. at 68-70. On September 13, 2017, the appellant was offered priority
placement as a GS-12 Flight Management Specialist at Scott Air Force Base in
Illinois, and he was given until September 18, 2017, to accept or decline the
offer. IAF, Tab 14 at 5-6. On September 14, 2017, the appellant indicated his
acceptance. Id. at 5.
However, the appellant did not report to the new assignment because the
agency extended his overseas tour until September 2018. IAF, Tab 4 at 6-7. At
that point, the appellant’s supervisors sought another extension of his return date
to January 31, 2019, in order to ease the transition associated with multiple Flight
Management Specialists who were rotating in and out of Ramstein Air Force Base
3
at the same time. Id. at 30-31, 56-57. The extension was granted, and the
appellant accepted it. Id. at 32, 58.
On September 13, 2018, the Chief of Staffing at Ramstein Air Force Base
requested that the appellant confirm that he was declining the Scott Air Force
Base job offer in favor of the overseas extension. Id. at 53-54. The appellant
replied that he had been removed from the priority placement program when the
extension was granted. Id. at 53. On September 17, 2018, the Chief of Staffing
notified the appellant that, after an employee declines a valid job offer, he must
normally wait 12 months to reregister for priority placement, and that this would
be beyond the January 31, 2019 extension. Id. at 49-51. The appellant again
confirmed his acceptance of the extension. Id. at 49. On September 21, 2018, the
Chief of Staffing confirmed with the appellant that he would be unable to
reregister with priority placement prior to the end of his overseas tour and that he
could be facing involuntary separation once the extension expired. Id. at 46-48.
Although the Chief of Staffing urged the appellant to reconsider his decision, the
appellant told her that he had already accepted the extension and that he would
proceed with it. Id. at 32.
The agency proposed the appellant’s removal for failure to accept return
from an overseas area, and on December 19, 2018, it issued a decision to remove
him effective January 31, 2019. IAF, Tab 1 at 21. After several unsuccessful
attempts to alter the course of events, on January 31, 2019, the appellant
submitted an application for immediate retirement. IAF, Tab 4 at 33-38, 41,
Tab 15 at 7, 10-11. The agency separated him by retirement effective January 30,
2019. 2 IAF, Tab 15 at 12.
The appellant filed a Board appeal, alleging that his retirement constituted
a constructive removal. IAF, Tab 1 at 6-19. He waived his right to a hearing. Id.
at 2. The administrative judge issued an order informing the appellant of his
2
It appears that the agency originally processed the removal effective January 31, 2019,
but after receiving the appellant’s retirement package, it cancelled the removal and
replaced it with a retirement effective January 30, 2019. IAF, Tab 15 at 12, 14.
4
jurisdictional burden in a constructive removal appeal and ordering him to file
evidence and argument on the issue. IAF, Tab 3. Both parties responded,
focusing largely on whether the agency misled the appellant into accepting the
extension of the overseas assignment. IAF, Tabs 4 -5, 12-16. The agency also
argued that the Board lacked jurisdiction over the appeal because the appellant
was separated due to the expiration of his overseas appointment. IAF, Tab 12
at 16-18.
After the record on jurisdiction closed, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial
Decision (ID). He found that the Board lacks jurisdiction over the appellant’s
“separation at the end of his term appointment,” and over the agency’s decision
regarding the appellant’s registration in the priority placement program. ID at 6.
He also found that the appellant was not misinformed regarding the consequences
of accepting the extension of his overseas assignment and that his decision to
retire rather than be removed was voluntary. ID at 6-9.
The appellant has filed a petition for review, disputing the administrative
judge’s voluntariness analysis. Petition for Review (PFR) File, Tab 1. The
agency has filed a response in opposition, and the appellant has filed a reply to
the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
The Board lacks jurisdiction over the appellant’s retirement as a constructive
removal.
The Board generally lacks jurisdiction over voluntary employee actions
such as resignations and retirements, but to the extent that such actions are
involuntary, the Board may have jurisdiction over them under 5 U.S.C. chapter 75
as constructive adverse actions. Bean v. U.S. Postal Service, 120 M.S.P.R. 397,
¶ 7 (2013). Assuming that the jurisdictional requirements of 5 U.S.C. chapter 75
are otherwise met, an appellant may establish jurisdiction over a constructive
5
adverse action by showing that: (1) he lacked a meaningful choice in the matter;
and (2) it was the agency’s wrongful actions that deprived him of that choice.
In this case, the administrative judge found that the appellant’s retirement
was voluntary because the agency presented him choices regarding the path his
civilian employment would take, as well as the consequences of each choice, and
that the appellant’s “ultimate choice to submit a retirement application was again
a voluntary selection between alternatives limited by the consequences of his
earlier decisions.” ID at 7. This finding is aptly stated, and it is fully supported
by the record. IAF, Tab 4 at 32, 46-54.
On petition for review, the appellant argues that, in August 2018, the Chief
of Staffing misinformed him about the consequences of accepting an additional
extension to his overseas tour, and that he relied on this misinformation when he
accepted the extension on September 14, 2018. PFR File, Tab 1 at 9, 20-21.
However, we find it immaterial whether the Chief of Staffing initially gave the
appellant misleading information because she subsequently gave him accurate
information about precisely what would happen, and what did in fact happen, if
he were to accept the extension. IAF, Tab 4 at 32, 46-51. Specifically, she
informed him that accepting the extension would mean declining the priority
placement job offer and facing removal at the end of his extended tour, and she
urged the appellant to reconsider his decision. Id. at 47, 50-51. The appellant,
however, determined to stay the course based on his understanding of their earlier
conversation in August. Id. at 32. An action is involuntary only if it resulted
from the employee’s reasonable reliance on the agency’s misleading statements.
Smitka v. U.S. Postal Service, 66 M.S.P.R. 680, 689 (1995), aff’d, 78 F.3d 605
(Fed. Cir. 1996) (Table). Even assuming that the appellant accepted the
extension based on misleading information that he received in August 2018, we
find that his continued reliance on that information was not reasonable after he
received accurate information in September.
6
The appellant appears to argue that, by the time he received accurate
information, it was too late because he had already accepted the extension.
PFR File, Tab 1 at 21-22. However, the extension was not set to go into effect
until after September 30, 2018, and, as previously indicated, the Chief of Staffing
twice told the appellant that it was not too late for him to change his mind. IAF,
Tab 4 at 47, 50, 59. The appellant states that the mission would have suffered if
he did not accept the extension, and he seems to argue that the Air Force value of
“service before self” prevented him from reneging on his earlier promise.
PFR File, Tab 1 at 9, 20-21. However, we find that the appellant’s internal
values and motivations are not equivalent to an external force operating on his
freedom of choice. Cf. White v. Department of the Treasury, 3 M.S.P.R. 488, 491
(1980) (finding that “the involuntary nature of a resignation arises from external
coercion and duress”). We find that the appellant has not provided an adequate
basis to disturb the administrative judge’s findings on this issue, and that the
Board lacks jurisdiction over the retirement as a constructive removal.
The agency did not separate the appellant due to the expiration of his
appointment.
Termination of appointment based on the expiration date specified as a
basic condition of employment at the time the appointment was made is not an
adverse action appealable to the Board. Endermuhle v. Department of the
Treasury, 89 M.S.P.R. 495, ¶ 9 (2001); 5 C.F.R. § 752.401(b)(11). The two cases
most instructive on this issue under the facts of this appeal are Edwards v.
Department of the Air Force, 120 M.S.P.R. 307 (2013), and Scott v. Department
of the Air Force, 113 M.S.P.R. 434 (2010).
In Scott, the agency appointed the appellant to an overseas position with a
“prescribed tour of duty” of 3 years, after which he would be eligible for return
travel “for purpose of separation from the service.” Scott, 113 M.S.P.R. 434, ¶ 6.
Prior to his appointment, the appellant agreed that he lacked return rights to a
position in the continental United States, and that he would need to register under
7
the agency’s priority placement program in order to secure such a position. Id.
After the appellant’s 3-year term expired, the agency removed him based on the
expiration of his tour and his inability to register for priority placement due to his
performance rating. Id., ¶ 7. On appeal, the Board acknowledged that the
Standard Form 50 (SF-50) documenting the appellant’s appointment indicated
that he was a career-conditional employee, but it found that the SF-50 was not
controlling and that the Board would consider the totality of the circumstances to
determine the nature of the appointment. Id., ¶ 8. The Board concluded that,
despite any contrary indication in the SF-50, the appellant’s specific employment
agreements showed that he was appointed to a 3-year term and that he was
separated at the expiration of that term. Id. Accordingly, the Board found that
the appellant was removed due to the expiration of his term appointment, and it
dismissed the appeal for lack of jurisdiction. Id., ¶¶ 8, 11.
The appellant in Edwards was also serving in a time-limited overseas
assignment when the agency removed him upon its expiration. Edwards,
120 M.S.P.R. 307, ¶ 2. However, the Board found that the appellant made a
nonfrivolous allegation of Board jurisdiction because there was evidence in the
record that was inconsistent with the agency’s argument that the appellant
encumbered a term position. Id., ¶¶ 9-11. Not only did the SF-50 reflect that the
appointment was career-conditional, but, unlike the employment agreement in
Scott, the employment agreement in Edwards did not specify that the appellant
could be separated from service upon the expiration of his overseas term. Id., ¶ 9.
The employment agreement was also limited to career and career -conditional
employees. Id. Furthermore, the record suggested that the appellant was not a
temporary, term, or limited overseas appointee because he was eligible to register
for a priority placement program that generally excludes such employees. Id.
Moreover, the total duration of the appellant’s appointment (4 years) was
inconsistent with him being under a temporary or term appointment. Id.
8
Considering the totality of the circumstances in the instant appeal, we find
that nothing in the record supports the agency’s contention that the appellant was
separated upon the expiration of his appointment. Quite the contrary, the SF-50
documenting the appellant’s appointment shows that it was a competitive service
“career appointment.” IAF, Tab 12 at 23. In addition, the public law cited
therein as the appointing authority is consistent with career status; it amended
5 U.S.C. § 3304(f) to provide that a veteran appointed under that paragraph “shall
receive a career or career-conditional appointment as appropriate.” Veterans
Millennium Healthcare and Benefits Act, Pub. L. No. 106-117, § 511, 113 Stat.
1545, 1575 (1999). The hallmark of a career appointment is that it is
nontemporary, as distinguished from temporary, term, and indefinite
appointments. See 5 C.F.R. §§ 301.203, 315.201(a), 316.301, 316.401. It is true
that the appellant’s overseas assignment was of limited duration. IAF, Tab 13
at 35. However, time limits on an assignment are not the same as time limits on
an appointment, see Edwards, 120 M.S.P.R. 307, ¶ 10, and both the appellant’s
Overseas Employment Agreement and the agency guidance make clear that the
relevant limitation is on the length of time the incumbent is authorized to remain
in a foreign area, not on the duration of his employment, IAF, Tab 13 at 10, 35.
Unlike the employment agreement at issue in Scott, nothing in the employment
agreement here states that the appellant might be separated upon the expiration of
his overseas assignment. 3 Id. at 35. We also find that the 11-year duration of the
appellant’s employment is inconsistent with his being appointed to a temporary or
term position, which appointments are generally limited to 2 and 4 years
respectively. 4 See 5 C.F.R. §§ 316.301(a), .401(c). Although overseas limited
3
The appellant’s employment agreement did, however, inform him that he could be
separated if he failed to request and accept a return assignment. IAF, Tab 13 at 35.
4
Although temporary and term appointments may be extended, the extension of a term
appointment beyond 4 years requires Office of Personnel Management approval, which
does not appear to have occurred here, and extensions of temporary appointments
beyond 2 years are limited to positions involving temporary and seasonal work. See
5 C.F.R. §§ 316.301(b), .401(c)-(d).
9
appointments are generally of “indefinite duration,” the agency does not allege,
nor does anything in the record suggest, that the appellant received a limited
overseas appointment. See 5 C.F.R. § 301.203(a).
The circumstances surrounding the removal action are also consistent with
our finding. Specifically, the appellant was not removed based on the expiration
of his appointment, but rather for failure to accept return from an overseas area.
IAF, Tab 1 at 21; cf. Edwards, 120 M.S.P.R. 307, ¶¶ 2, 9 (reflecting that the
appellant was not removed for failure to accept a return assignment); Scott,
113 M.S.P.R. 434, ¶ 7 (reflecting that the appellant was removed pursuant to the
expiration of his tour of duty). In addition, the coding on the SF-50 is consistent
with a chapter 75 removal for postappointment conduct or performance, and not
with a separation pursuant to the expiration of an appointment. IAF, Tab 15
at 14; see Office of Personnel Management, Guide to Processing Personnel
Actions, Ch. 31, Table 31-B, Rules 14, 35 (2017), https://opm.gov/policy-data-
oversight/data-analysis-documentation/personnel-documentation/processing-
personnel-actions/gppa31.pdf (last visited May 8, 2024). Putting aside the fact
that the appellant ultimately separated by retirement in lieu of removal, for the
reasons explained above, we find that the removal action was not, nor could it
have been, based on the expiration of his appointment.
The Board may have jurisdiction over the agency’s removal decision under
5 U.S.C. chapter 75.
In determining the appealability of a removal, an individual’s retirement
status may not be taken into account. 5 U.S.C. § 7701(j). The Board retains
jurisdiction over an appeal in which an employee retires when faced with an
agency’s final decision to remove him. Mays v. Department of Transportation,
27 F.3d 1577, 1579-80 (Fed. Cir. 1994); Cunningham v. Department of Veterans
Affairs, 86 M.S.P.R. 519, ¶ 4 (2000). This seems to be exactly what happened in
10
this case. 5 IAF, Tab 1 at 21, Tab 15 at 12, 14. It therefore appears that the Board
may have jurisdiction to adjudicate the removal action under 5 U.S.C. chapter 75.
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication. In the remand initial decision, the administrative
judge may reincorporate prior findings as appropriate, consistent with this
Remand Order. If the administrative judge finds that the Board has jurisdiction
over the removal action, he shall adjudicate the removal on the merits.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5
In Jenkins v. Merit Systems Protection Board, 911 F.3d 1370 (Fed. Cir. 2019), and
Cooper v. Department of the Navy, 108 F.3d 324 (Fed. Cir. 1997), the U.S. Court of
Appeals for the Federal Circuit found that the Board lacked jurisdiction over removal
actions which had been completely rescinded pursuant to the appellants’ retirements.
Although the agency in this case cancelled the removal action to allow the appellant to
separate by retirement, it does not appear to have rescinded the removal decision or
expunged all references to the action from the appellant’s official personnel file. Cf.
Jenkins, 911 F.3d at 1374; Cooper, 108 F.3d at 326.