# Petition for Writ of Certiorari — Apodaca v. Merit Systems Protection Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2844%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1180 ## Text Supreme weary U.S. FILED 10-753 pe 7-201 NOFFICE OF THE CLERK In The SUPREME COURT OF THE UNITED STATES Antonio M. Apodaca Petitioner, Vy Merit Systems Protection Board Respondent On Petition For Writ of Certiorart To The UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT PETITION FOR WRIT OF CERTIORARI Antonio M. Apodaca, Pro Se 14221 SW 146!" Terrace Miami, FL 33186-7208 (305) 232-7024 (Home Phone) (305) 498-7366 (Cell Phone) Questions Presented for Review Is it permissible for a federal agency to breach a tenured federal employee's constitutionally protected “vested interest in his employment” and his right. to exercise “Free Will’ without affording the employee his Fifth Amendment. Right to “Due Process”? Is a credibility determination necessary when the issue in question involves an individual's exercise of “Free Will’? Is the barring of a tenured federal employee from his workplace an Adverse Action? Parties to Proceedings The Caption shown accurately identifies who the petitioner(s) and who the respondent(s) are in this Court Corporate Disclosure Statement A corporate disclosure statement is not applicable because the Petitioner is an individual and not a corporate entity Table of Contents Item/Topic Questions Presented for Review Parties to Proceedings Table of Contents Table of Authorities Petition for Writ of Certiorart Court of Appeals for the Fed. Cir. Decision Court of Appeals Order Denial of Rehearing Court of Appeals Judgment/Mandate MSPB Ad’s Initial Bench Decision MSPB Final Order Certificate of Comphance Certificate of Service Pages Petition for Writ of Certiorari Table of Authorities Authority Fifth Amendment 5 U.S.C. 7513 5 U.S.C. 2301(b)(6) 5 U.S.C. 2302(b)(1 2) 28 U.S.C. 2101(c) ISCMIAMINST 5000.2 CGD SEVENINST 5512.2c FMLA Section 6384 and 6385 Loudermull, 470 U.S. 543 Mathews v. Eldridge, 424 U.S. 319, (1976) Arnett v. Kennedy, 416 U.S. 134, 142 Bd. Of Regents v. Roth, 408 U.S. 564 Constantineau, 400 U.S. 433 Wieman v. Updegraff, 344 U.S. 183 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 United States v. Lovett, 328 U.S. 303, 328 U.S. 316-317 Peters v. Hobby, 349 U.S. 331, 349 U.S. 352 Cafeteria Workers v. McElroy, 367 U.S. 886, 367 U.S. 898 Hesse V. Department of State 217 F.3d 1372, 1376 (Fed. Cir. 2000); 47 MSPR 680, 681, 684 Waters v. Churchill, 114 S. Ct. 1878 Handy v. U.S. Postal Service, 754 F.2d 335 (Fed. Cir. 1985) Cosby v. United States 417 F.2d 1345, 1355, Ct. Cl. (1969) Doyle v. Veterans Administration, 229 Ct.Cl. 261, 667 F.2d 70, 72 (1981) Brewer v. U.S. Postal Service, 227 Ct.Cl. 276, 647 F.2d 1093, 1097 (1981) _ cert. denied, 454 U.S. 1144, hy Page# we —~ ~e Ds | NYNBCWWe wee Camwn Or 1} 1] JURISDICTION The judgment of the United States Court of Appeals for the Federal Circuit was issued on June 10, 2010, and the Petitioner's petition for rehearing and for rehearing en banc was denied on September 03, 2010. This Court has jurisdiction over this petition under 28 U.S.C. § 2101(c). CONSTITUTIONAL and STATUTORY PROVISIONS INVOLVED The Fifth Amendment provides, in pertinent part. that “No Person shall ........ be deprived of life, liberty or property without due process of law”. 5 U.S.C. § 7513(a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as wiil promote the efficiency of the service. 5 U.S.C. § 7513(b)(1),(2), & (4) provides, in pertinent part, An employee against whom an action is proposed is entitled to (1) at least 30 days' advance written notice, unless there is reasonable cause to beheve the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; ... and (4) a written decision and the specific reasons therefore at the earliest practicable date. STATEMENT OF THE CASE The Petitioner in this case was a tenured federal employee who had approximately 42-plus years of continuous federal civil service. Petitioner was employed by the U. S. Department of Homeland Security (“DHS”) as a Deputy Comptroller for the U. S. Coast Guard’s (“USCG’”), Integrated Support Command (“ISC”) Miami, Miami, Florida. On November 2008, Petitioner’s supervisor and the Comptroller for the ISC, Commander (CDR) Anthony Alarid, ordered Petitioner to exchange his office with that of the Chief, Budget and Accounting. This exchange would relocate the Petitioner a distance of approximately 25 linear feet and place the Petitioner at a location adjacent to Alarid’s office. His supervisor set a deadline of December 1, 2008 for Petitioner to complete the exchange of offices. On November 20, 2008, approximately an hour before Petitioner was scheduled to end his workday CDR Alarid confiscated the Petitioner’s workplace access and security badge and office key without Alarid giving the Petitioner any reason for his actions and without allowing Petitioner to challenge Alarid’s actions. Based on Alarid’s actions, Petitioner reasonably concluded he had been constructively terminated and accordingly, on November 29, 2008 prepared and submitted a Standard Form (SF) 52 to the USCG personnel office, Washington, D.C. requesting retirement effective December 1, 2008. Petitioner wrote on his SF-52 that his reason for requesting retirement was “Retirement requested due to the imposition of constructive discharge conditions by management.” Simultaneously, Petitioner submitted a claim to the Merit Systems Protection Board alleging he had been constructively terminated, among other things. 2 On March 9, 2009, the assigned administrative judge held a jurisdictional hearing in Miami, Florida, at which both Alarid and the Petitioner appearing Pro Se testified as to the circumstances surrounding the Petitioner's claim. The administrative judge found that Apodaca had retired voluntarily and dismissed the appeal for lack of jurisdiction. The Board denied the Petitioner’s petition for review of the initial decision on July 24, 2009, and the administrative judge’s decision became the final decision of the Board. The Petitioner timely appeaied the Board's final decision to the United States Court of Appeals for the Federal Circuit (“CoA”). The Petitioner had a compelling belief that the administrative judge and the MSPB had not applied the appropriate legal standard. The Petitioner’s belief was based on the fact that these two administrative forums never considered the Petitioner’s arguments. The Petitioner has consistently argued that the (1) Petitioner was not afforded his constitutionally protected right to Due Process pursuant to 5 U.S.C. § 7513(b)(1) and “Free Will” when his building access and security clearance badge were confiscated nor when the Agency received the Petitioner’s SF-52 citing “Retirement requested due to the imposition of constructive discharge conditions by management” as the Petitioner’s reason for requesting retirement, (2) the Agency’s fanlure to follow its own agency regulations pertaining to the “Agency’s Check In and Check Out Procedures ” ISCMIAMIINST 5000.2 and “the Seventh District’s Security Identification Badge Policy” CGD SEVENINST 5512.2c, (3) the agency’s violation of the Prohibited Personnel Practices and Merit System Principles, 5 U.S.C. § 2302(b)(12) and 5 U.S.C. § 2301(b)(6) respectively; (4) the agency’s violation of Section 6384 and 6385 of the Family Medical Leave Act (FMLA); (5) the agency’s violation of the Privacy Act, when on November 20-22, 2008, CDR Alarid falsely informed his staff that the Petitioner had retired (RB, pg- 3-4); (6) the Time Pressure exerted on the Petitioner to involuntary retire GQmmediate termination); (7) the agency's inconsideration of the Petitioner’s traumatic event (daughter’s Breast Cancer condition); and (8) compelling the Petitioner’s mitigation of damages to preclude an actual money loss of approximately $2,412.96 in salary. In his appeal to the Court of Appeals the Petitioner basically argued these same issues he had argued before the administrative judge and the MSPB. The Court of Appeals affirmed the Board’s decision basically on the same terms as the administrative judge and the MSPB, although to some extent the CoA paraphrases or interprets the facts erroneously. The CoA also transposes and consolidates the facts without due consideration of their affect as to timing. The following are examples cited in the CoA decision: On page 2 Background Section the CoA writes: 1. “Apodaca refused to change offices, informing Alarid that he would rather retire than change his office.” This statement is erroneous 1n that the Petitioner never refused to exchange offices. The Petitioner simply stated, “He would have to contemplate retirement in order to avoid a repeat of the hostility previously suffered. However, the Appellant advised CDR Alarid that his decision to retire could not be determined because it was contingent on Appellant’s family psychological and financ?al conditions relative to the Appellant’s daughter Breast Cancer Condition and its personal ramifications”. (Petitioner's MSPB Complaint) 2. “Apodaca then told Alarid that he would retare effective January 3, 2009. However, following further discussions between the two, Apodaca told Alarid that he would retire on November 30, and that November 20 would be his last day at work as he intended to take leave thereafter.” Petitioner avers that all the dates mentioned were ail set forth by CDR Alarid during separate conversations with the Petitioner. CDR Alarid established these dates simply because the Petitioner passively acquiesced. When CDR Alarid proposed these dates the Petitioner did not argue with nor was he disrespectful towards Alarid because he was concerned that Alarid would accuse kim of being insubordinate. At all times, it was Alarid that cajole and pressured the Petitioner by proposing different retirement dates and accusing the Petitioner of being unreasonable. It was Alarid who became frustrated and told the Petitioner, “Hell, you better retire on November 30, 2008”. (See Alarid’s Affidavit) In its Decision the CoA conflates and transposes the facts in similar fasnion as done bythe administrative judge and the MSPB. The CoA simply noted that the issue had been correctly decided by the MSPB in this case, reached the same conclusion. Most, if not all, of the facts considerate by these tribunals are not relative to the Petitioner's Constructive‘Discharge Claim. The CoA in similar fashion doés not address the facts relevant to the Petitioner’s Constructive Discharge Claim, e.g., Agency’s failure to provide Petitioner due process, “free will’; follow its regulations, violation of the Prohibited Personnel Practices and Merit System Principles, violation of Section 6384 and 6385 of the Family Medical Leave Act (FMLA); the agency’s violation of the Privacy Act, inter alia. {Supra} In its Decision, the CoA outlines various facts, most which are not relevant to the Petitioner’s Claim, others that are either incompletely stated, mentioned but not discussed, taken out of context, framed to support the Government's case while others erroneously conclude the Petitioner acted improperly. In one instance the CoA mentions “We are not persuaded by Apodaca’s logic.” The Petitioner avers that his logic is simple and reasonable, based on the following facts: Ifin actuality, the Petitioner had until December 1, 2008 to exchange offices as ordered by his supervisor, but on November 20, 2008, his supervisor preemptively confiscates his workplace access and security badge and keys which effectively barred him from his workplace, the Petitioner is effectively prohibited from meeting the December 1, 2008 deadhne. Furthermore, the Petitioner being a family man with responsibility for his family economic conditions reasonably determined, he had been “constructively terminated” because the confiscation of his badge and key was an adverse employment action which infringe on the Petitioner’s constitutionally protected vested right in his employment for which he was not afforded “due process” and “Free Will” pursuant to the Fifth Amendment and 5 U.S.C. § 7513(a).& (b) (1), (2), & (4). This logic is supported by the relevant facts. The facts in this case vividly confirm that CDR Alarid’s confiscation of the Petitioner’s badge and keys breached the Petitioner’s constitutionally protected vested right in his employment without affording the Petitioner due process and free will. This is similar to when the Government is the first to breach a contractual right. The Petitioner at all times acted properly, both administratively and legally. It is universally and empirically recognized that all “employees” will contemplate “retiring” at some point in their lifetime. The Petitioner assertion that he would contemplate retirement was not a crime nor was it an action of such gravity that would compel the Government to breach the Petitioner’s constitutionally protected vested right in his employment. Jn Loudermill, the Supreme Court held that a proper balancing of the interests as set forth 1n Mathews v. Eldridge, 424 U_S. 319, 338 (1976), requires that, as a general rule, there be some form of pretermination hearing for an employee who has established that he has a property interest in the retention of his position. In short, the Court reasoned that the general governmental interest in unmediate termination of the employee does not outweigh the interests of the employee in retaining his employment and in having an opportunity to present his side of the case. "Even when the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker 1s likely to be before the termination takes effect." Loudermull, 470 US. at 543. In Arnett v. Kennedy, 416 U.S. 134 (1974), this Court stated, we sustained the validity of procedures by which a federal employee could be dismissed for cause. They included notice of the action sought, a copy of the charge, — reasonable time for filing a written response, and an opportunity for an oral appearance. Following dismissal, an evidentiary hearing was provided. 416 U_S., at 142 - 146. REASONS FOR GRANTING THE WRIT As this Court has made increasingly clear, the Fifth and Fourteenth Amendment of the Constitution require the Government afford a tenured federal employee “Due Process” when taking an adverse personnel against an employee when the employee has a constitutionally protected vested right in his employment and has a right to “free will”. See following citations: Board of Regents v. Roth, 408 U.S. 564 (1972), holds, inter alia:(For "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the | government 1s doing to him, notice and an opportunity to be heard are essential."; citing Wisconsin Vv. Constantineau, 400 U.S. 433, 400 U_S. 437. Wieman v. Updegratf, 344 U.S. 183, 344 U_S_ 191; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U_S. 123; United States v. Lovett, 328 U.S. 303, 328 U.S. 316-317; Peters v. Hobby, 349 U_S. 331, 349 U_S. 352 (DOUGLAS, J., concurring). See Cafeteria Workers v. McElroy, 367 U_S. 886, 367 U_S. 898. In such a case, due process would accord an opportunity to refute the charge before University officials.) Cleveland Board of Education v. Loudermill, 470 U.S, 532, 542, 546 (1985), Hesse V. Department of State 217 F.3d 1372, 1376 (Fed. Cir. 2000); 47 M.S.P.R. at 684 holds that at a minimum, “the tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the evidence and an opportunity to present (the employee's) side of the story”. 47 M.S.P.R. at 681. 47M_S.P.R. at 680 citing the application of the Cleveland Board of Education v. Loudermiull 470 U.S. 582, 546, 105 S.Ct. 1487, 1495, 84 L. Ed. 2d 494 (1985). Ad violated her due process right by being predisposed against her, hampering her presentation of the case and abusing his discretion One of the main issues in this case that may require review by this Court is the failure of Agency’s and the lower Tribunals to recognize that what the Petitioner stated and has argued 1s a constitutionally protected issue. Waters, et. al. v. Churchill et. al. 114 S. Ct. 1878;128 L. Ed. 2d 686, (May 1994) We think employer decision-making will not be unduly burdened by having courts look to the facts as the employer reasonably found them to be. It may be unreasonable, for example, for the employer to come to a conclusion based on no evidence at all. Likewise, 1t may be unreasonable for an employer to act based on extremely weak evidence when strong evidence 1s clearly available -- 1f for [*32] instance, an employee 1s accused of writing an improper Ietter to the editor, and instead of just reading the Ietter, the employer decides what it said based on unreliable hearsay. [5A}]}fan employment action 1s based on what an employee supposedly said, and a reasonable supervisor would recognize that there 1s a substantial likelihood that what was actually said was protected, the manager must tread with a certain amount of care. This need not be the care with which trials, with their rules of evidence and procedure, are conducted. It should, however, be the care that a reasonable manager would use before making an employment decision -- discharge, suspension, reprimand. or Whatever else -- of the sort involved in the particular case. JUSTICE SCALIA correctly points out that such care is normally not constitutionally required unless the employee has a protected property interest in her job, post, at 688, see also Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576-578, 33 L. Ed. 2d 548, 92S. Ct 2701 (1972); but we beheve that the possibility of mnadvertently punishing someone for exercising her Firsi Amendment rights makes such care necessary} Another reason which may warrant the Court’s review 1s the practice of an Agency using ambush, concealment, and surprise. This practice must not to be tolerated by the judicial system. In this case, the Supervisor and the Agency’s Human Resource Officer knew at least two-days in advance of their planned action to confiscate the Petitioner's workplace and security badge and keys yet they failed to provide “due process” to the Petitioner. Additionally, over 30-days had elapsed since the Supervisor had set forth his proposal on which they relied for taking the Petitioner’s badge and key. The legal review of this type of case (by its nature) 3s limited by statue to the Merit System Protection Board and the U.S. Court of Appeals for the Federal Circuit. This limit review forum may create the potential for other similar cases to be decided in similar fashion as the case at bar which may result in improper or unfair review of similar cases. This may cause other Petitioners to forgo filing claims with these lmited forums or 1f similar cases are filed with these limited forums may result in Petitioners incurring legal costs needlessly. The Agency, the MSPB and CoA relhed on subjective evidence to reach their conclusions in this case. The Agency's action was based solely on the Petitioner's Supervisor being convinced the Petitioner would retire even though the Petitioner had no submitted any required written request or the usual SF-52 “Request for Personne! Action’ requesting retirement as of the date his badge and key was confiscated. This raises the question of whether an Agency's “subjective testimony” meets the “substantial evidence” and “totally of the circumstances” standards ina manner sufficient to supersede the constitutional protection of “due process” provided a Petitioner by the Fifth and Fourteenth Amendments of the Constitution to a tenured federal employee with a constitutionally protected vested right in his employment The Decisions of the CoA appear to be an anomaly in that its Decisions in this case does not comport with their or other precedents. See following citations Handy v. U_S. Postal Service, 734 F.2d 335 (Fed. procedural error (statutory or not) must be shown to be 10 harmful in precedent of this court, particularly, Doyle v. Veterans Admimstration, 229 Ct.Cl_261, 667 F.2d 70, 72 C981), Brewer v. U.S. Postal Service, 227 Ct.Cl. 276, 647 F.2d 1093, 1097 (1981), cert. denied, 454 U.S. 1144, 102 Service, 697 F.2d 1078 (Fed. Cir. 1983). Cosby v. United States 417 F.2d 1345, 1355, Ct. Cl. (1969) in a concurring opinion by Judge Nichols which was adopted by the Court states in Dictum (in part): “If an employee's continued presence in an agency is regarded as undesirable, and if he tenders any piece of paper purporting to be a resignation, the temptation is to snatch at it, thus avoiding the complex ritual and uncertain outcome of an adverse action. It is, I believe, the duty of the personne! officer nevertheless to scrutinize the paper with care, and to reject it as a resignation if it states, clearly or ambiguously, that the resignation is coerced. That was not done here and this lawsuit followed, which in my judgment defendant was lucky to win. A coerced resignation is not a resignation at all. It is an adverse action which is legally invalid for failure to follow the procedures laid down in statutes and regulations. McGucken v. United States, 407 F.2d 1349, 187 Ct.Cl. 284, cert. filed, 396 U.S. 894, 90 S.Ct. 190, 24 L.Ed.2d 170 (June 11, 1969).” “Therefore, nothing decided in this case, as I read it, Should be regarded as condoning any relaxation of the vigilance required of the Civil Service Commission and of personnel officers generally, against the acceptance of coerced resignations, whether actually coerced, or so stated in the course of the employee's filling out the applicable form.” 1] CONCLUSION For the forgoing reasons, petitioners submit that this Court should grant review in this case to reverse the holding of the U. S. Court of Appeals for the Federal Circuit with respect to Board’s finding that Apodaca’s retirement was voluntary 1s supported by substantial evidence and that 1t has considered Apodaca’s remaining argument and finding them unpersuasive. Petitioner would also ask this Court to remand the case to the Court of Appeals for 1t to apply appropriate scrutiny under the Fifth Amendment and this Court precedent. Respectfully submitted, hikes Ih Arde Antonio M. Apodaca, Pro Se 14221 SW 146°"! Terrace Miami, FI. 33186-7208 (305) 232-7024 Home Phone (305) 498-7366 Cell Phone tapodaca@bellsouth. net NOTE: This disposition is nonprecedential. GAnited States Court of Appeals for the federal Circuit ANTONIO M. APODACA Petitioner, Vv. MERIT SYSTEMS PROTECTION BOARD, Respondent. 2009-3293 Petition for review of the Merit Systems Protection Board in AT0752090223-I-1. Decided: June 10, 2010 ANTONIO M. APODACA, of Miami, Florida, pro se. JEFFREY A. GAUGER, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief were JAMES M. KISENMANN, General Counsel, and KEISHA DAWN BELL. Deputy General Counsel. APODACA v. MSPB 2 Before LOURIE, FRIEDMAN and MOORE, Circuit Judges. PER CURIAM. Antonio Apodaca appeals from the final decision of the Merit Systems Protection Board (the “Board”) dis- missing his appeal for lack of jurisdiction. Apodaca v. Dep't of Homeland Sec., No. AT-0752-09-0223-I-1 (M.S.P.B. July 24, 2009) (“Final Order’). Because the Board’s decision that Apodaca retired voluntarily is supported by substantial evidence, we affirm. BACKGROUND Apodaca was employed by the Department of Home- land Security as a Deputy Comptroller for the Coast Guard’s Integrated Support Command (“ISC”) in Miami, Florida. In November 2008, Apodaca’s supervisor and the Comptroller for ISC, Anthony Alarid, ordered Apodaca to move his office from its current location to a location adjacent to Alarid’s office. Alarid set a deadline of De- cember 1, 2008 for Apodaca to change his office. Apodaca refused to change offices, informing Alarid that he would rather retire than change his office. Apodaca then told Alarid that he would retire effective January 3, 2009. However, following further discussions between the two, Apodaca told Alarid that he would retire on November 30, and that November 20 would be his last day at work as he intended to take leave thereafter. Alarid informed his Command Staff Advisor (“CSA”) of Apodaca’s intentions by e-mail. On November 20, 2008, Apodaca cleaned his office, shredded his personal writing pads, and disposed of files stored in his office. That afternoon, Alarid collected Apo- daca’s government identification badge and office keys 3 APODACA v. MSPB from him. On December 1, 2008, Apodaca submitted his retirement request form SF-52 to ISC, denoting an effec- tive retirement date of November 30, 2008. On the SF-52, Apodaca stated the reason for his retirement as the “imposition of constructive discharge conditions by the management.” On December 30, 2008, Apodaca filed an appeal to the Merit Systems Protection Board, claiming that his re- tirement was involuntary. On March 9, 2009, the as- signed administrative judge held a jurisdictional hearing in Miami, Florida, at which both Alarid and Apodaca testified as to the circumstances surrounding Apodaca’s retirement. The administrative judge found that Apodaca had retired voluntarily and dismissed the appeal for lack of jurisdiction. The Board denied Apodaca’s petition for review of the initial decision on July 24, 2009, and the administrative judge’s decision became the final decision of the Board. Apodaca timely appealed the Board’s final decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION The scope of our review in an appeal from the Board’s decision is limited. We can only set aside the Board's decision if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5. U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). We review the Board’s jurisdiction without deference. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). However, “we are bound by the AJ’s factual determinations unless those findings are not APODACA v. MSPB 4 supported by substantial evidence.” Jd. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” McEn- tee uv. Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005) (quotation marks omitted). Apodaca challenges the Board’s decision that he failed to prove by a preponderance of the evidence his allega- tions of coercion and duress by the agency so as to allow the Board to exercise jurisdiction over his appeal. He argues that his statements declaring his intentions to retire were mere contemplations of retirement. He argues that his responses to Alarid’s order to move his office were unrelated to the events that occurred on November 20, 2008, leading up to his retirement. He contends that on that day he was performing routine cleaning of his office and preparing to take leave when Alarid confiscated his badge and keys, thereby constructively discharging him. He further contends that he did not return to work at any time after that date because of the “malicious and unpro- fessional manner” in which he had been treated. He contends that the reason for submitting an SF-52 on December 2, with an effective date of November 30, was that he wanted to “mitigate his damages.” Moreover, he argues, the agency failed to follow checkout procedures required to terminate an employee. According to Apo- daca, his retirement was forced upon him by the actions of his supervisor and was not voluntary. Therefore, he argues, the administrative judge and the Board erred in dismissing his claim for lack of jurisdiction. The Board responds that there is no evidence that the agency imposed the terms of Apodaca’s retirement. It argues that Apodaca was in control of his retirement decision at all times, repeatedly rejecting his supervisor's preferences in the matter and deciding himself both his 5 APODACA v. MSPB retirement date as well his last day at the office. The Board argues that contrary to Apodaca’s assertions, Alarid pleaded with him not to retire or to at least stay till January 2009 in order to allow the process of hiring a replacement to be commenced. However, the Board points out, Apodaca refused tc assist his supervisor in any way or change his retirement date. The Board notes that on November 20, Apodaca cleaned out his office. The Board contends that Alarid asked him for his badge and keys per the CSA’s guidance and because he understood from Apodaca’s prior statements that Apodaca was not returning to the facility after that date. The Board fur- ther points out that Apodaca submitted his retirement request voluntarily, at a time of his own choosing, and with an effective date that he had previously mentioned to his supervisor. The Board also notes that Apodaca never attempted to return to work. Under these facts, the Board argues, Apodaca cannot show that his retire- ment was a product of coercion by the agency or was otherwise involuntary. The Board urges us to affirm its dismissal of Apodaca’s claim for lack of jurisdiction. We conclude that the Board permissibly dismissed Apodaca’s appeal for lack of jurisdiction. A decision to resign or retire is presumed to be voluntary. Staats v. U.S. Postal Serv., 99 F.3d 1120, 1123 (Fed. Cir. 1996). In order to overcome the presumption of voluntariness, a petitioner must make a non-frivolous allegation that the resignation or retirement was the product of misinforma- tion, deception, or coercion by the agency. Schultz v. Dep’t of the Navy, 810 F.2d 1133, 1135 (Fed. Cir. 1987). To establish involuntariness on the basis of coercion or duress, a petitioner must show that (1) the agency effec- tively dictated the terms of his retirement, (2) he had no realistic alternative but to retire, and (3) his retirement was the result of imnroper actions by the agency. Garcia APODACA v. MSPB 6 v. Dep’t of Homeland Sec., 437 F.3d 1322, 13829 (Fed. Cir. 2006) (en banc). The test is an objective rather than subjective one; an employee’s subjective feelings are irrelevant. Middleton v. Dep’t of Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999). On appeal, Apodaca primarily argues that, in finding the agency’s actions justified, the administrative judge improperly relied on his statements to his supervisor leading up to November 20, 2008. He argues that his statements of his intention to retire were mere contem- plations, pertaining to what he terms the “Exchange Office Situation” and were irrelevant to his “Constructive Discharge Claim.” We are not persuaded by Apodaca’s logic. Apodaca’s actions and words clearly demonstrated that he did intend to retire and that his last day at the facility was November 20, 2008. His supervisor relied on his statements. The administrative judge was entitled to find Alarid’s testimony credible. The e-mails exchanged between Alarid and his CSA support the administrative judge’s finding, which was based on substantial evidence. The judge noted that Alarid’s testimony was also consis- tent with other facts such as Apodaca cleaning his office, packing his personal items and circling dates on his calendar. Under such belief, it was proper for Alarid to ask Apodaca to submit an SF-52. As a departing em- ployee’s supervisor, Alarid was also required collect Apodaca’s badge and keys. We agree with the Board that Alarid’s actions were reasonable under the circumstances. The administrative judge also reasoned that had Apo- daca believed that he had been involuntarily discharged, he could have easily refused to submit an SF-52. Apo- daca’s argument that he submitted his retirement request and did not return to work because of the hostile manner in which he had been treated is not sufficient to satisfy APODACA v. MSPB ~ the demanding legal standard of proving that the agency coerced him to absent himself from work. See Garcia, 437 F.3d at 1329 (“[T]he doctrine of coercive involuntariness is a narrow one[,] requiring that the employee satisfy a demanding legal standard.” (quotation marks omitted)). We find nothing in the evidence presented below to dem onstrate that Apodaca was coerced into retirement. On the contrary, we agree with the Board that Apodaca was at all times in control of his retirement decision. ‘I'he administrative judge found that the petitioner refused to accept any of his supervisor's suggestions with regard to his retirement and dictated the schedule of his departure We agree with the administrative judge’s findings and conclude that none of Apodaca’s allegations are such that, if proven, would establish that a reasonable employee confronted with the same circumstances would feel co erced into retiring. See Middleton, 185 F.3d at 1379. The Board's finding that Apodaca’s retirement was voluntary is supported by substantial evidence. We have considered Apodaca’s remaining arguments and find them unpersuasive. Accordingly, we affirm the Board’s deci sion that it lacked jurisdiction over Apodaca’s appeal. AFFIRMED COSTS No costs. United States Court of Appeals for the Federal Circuit 2009-3293 ANTONIO M. APODACA Petitioner, MERIT SYSTEM PROTECTION BOARD Respondent Petition for review of the Merit Systems Protection Board in AT0752090223-I-1 ORDER Note: This order is nonprecedential United State Court Of Appeals For The Federal Circuit ORDER A combined petition for panel rehearing and for rehearing en banc having been filed by the Petitioner, and the petition for rchearing, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service, UPON CONSIDERATION THEREOF, it is ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED. [he mandate of the court will issue on September 10, 2010 FOR THE COURT se a Jan Horbaly Clerk Dated: 09/03/2010 Filed U.S. Court of Appeals for the Federal Circuit SEP 03 2010 cc Antonio M. Apodaca Austin M. Fulk Jan Horbaly Clerk APODACA V MSPB, 2009-3293 (MSPB — AT07523090223-I-1) United States Court of Appeals for the Federal Circuit O99. 30903 Petitioner Ment Systems Protection Board Respondent JUDGMENT! PPEAL fT Merit Syst 1 Protect hoard t } Lei } ‘ )( i) Mi] a Y ORDER OF THE COURT] an Hiorbaly. (Clerk UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ATLANTA REGIONAL OFFICE Antonio M. Apodaca Docket Number Appellant, AT-0752-09 0223-I-! v. Department of Homeland Security Agency. Antonio M. Apodaca, Miami, Florida, pro se. Lt. Robert Pirone, Norfolk, Virginia, for the agency. BEFORE Garry Wade Klein Administrative Judge INITIAL DECISION The hearing in this case took place at Miami, Florida on March 9, 2009. A decision was announced at the hearing and it is fully documented in the attached partial hearing transcript. The partial transcript contains the complete decision and related reasoning and legal references. The date of this transmittal document (not the date of the hearing) is the start date used to compute the finality date highlighted below in the appeal rights paragraphs. DECISION The appeal is DISMISSED. FOR THE BOARD “—_ Garry Wade Klein Administrative Judge UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ATLANTA REGIONAL OFFICE Antonio M. Apodaca, Appellant V. Docket No: AT-0752-09-0223-1- | Department of Homeland Security Agency BENCH DECISION ta APPEARANCES FOR THE APPELLANT ANTONIO M. APODACA 14221 SW 146 TERRACE MIAMI, FLORIDA 33186-7209 FOR THE AGENCY: lt. ROBERT PIRONE USCG MLCLANT (lg) 300 EAST MAIN STREET, SUITE 400 NORFOLK, VA 23510 NANCY WEIR REPORTING SERVICES P.O. BOX 6033 LAKE WORTH, FLORIDA 33466 561/967 2073 FAX 561/433 8026 oe P-R-O-C-E-E-D-I-N-G-S 2:10p.m. ADMINISTRATIVE JUDGE: This will be a reading of a Bench Decision. The Bench Decision 1s not the final decision. Once we get the transcript from the court reporter, my office will issue another document which will actually submit the transcript of the Bench Decision to you. That copy will also contain all your Appeal Rights. Your Appeal Rights will not run until that document is issued. So the Bench Decision does not begin the appeal Rights right at this point. Also, there will be no argument, objections or discussions during the reading of the Bench Decision or after it. Do the parties understand that” LT. PIRONE: Understood, Your Honor. MR. APODACA: Yes. BENCH DECISION INTRODUCTION ADMINISTRATIVE JUDGE: On December 30+, 2008, the Appellant filed his Board Appeal alleging his retirement on November 30, 2008 was involuntary. The Appellant was granted a Jurisdictional Hearing, which was conducted on March 9t», 2009 in Miami, Florida. For the reasons stated below, the Appellant’s Appeal is DISMISSED for lack of jurisdiction. NANCY WEIR REPORTING SERVICES P.O. BOX 6033 LAKE WORTH, FLORIDA 33466 561/967 2073 FAX 561/433 8026 JURISDICTION GENERAL LEGAL STANDARDS The Board’s jurisdiction is not plenary; it is lmuted to those matters over which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit Systems Protection Board, 759 F2d 9 at 10 (Fed. Cir. 1985). When a question is raised regarding the Board’s jurisdiction, the employee filing the appeal has the burden of proof by a preponderance of the evidence. See 5 CFR Section 1201.56(a) (2) (2008). Preponderant evidence is defined to mean that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more hkely true than not. See 5 CFR Section 1201.56(c) (2) (2004). Generally, a resignation or retirement ts presumed to be a voluntary act and, therefore, beyond the board's jurisdiction. See for example, Hurwitz v. Department of the Army, 61 MSPR 436 at 439 (1994); Gettings vs. Department of the Air Force, 48 MSPR 502 at 509 (1991). The presumption of voluntariness may be rebutted by evidence showing that the resignation or retirement was the result of duress, coercion or otherwise involuntary. The mere fact that an employee is faced with unpleasant choices does not rebut the presumed voluntariness of the ultimate choice to retire. Locke v. US Postal Service, 61 MSPR 283 at 287 (1994); see in accord Schultz v. US Navy, 810 F2d 1133 at pages 1136-37 Fed. Cir. 1987). Rather, for a retirement in such circumstances to be considered involuntary and therefore appealable as a constructive removal, the Appellant must establish that the Agency did not have reasonable NANCY WEIR REPORTING SERVICES P.O. BOX 6033 LAKE WORTH, FLORIDA 33466 561/967 2073 FAX 561/433 8026 grounds for is actions. Locke 61 MSPR at 288: see also Schultz 810 F2d at 1136. The appellant failed to do so. The appellant was the Deputy Controller for the Integrated Support Command Miami Coast Guard. He held this position since approximately 2001 or 2002. In September of 2008, Anthony Alarid became the Comptroller of the Integrated Support Command 1n Miami and the Appellant’s first Level Supervisor. Mr. Alarid testified that when he reported to the ISC Miami he reviewed the office layout and determined that he wanted his Deputy Comptroller to be in the office physically located next to him. He believed this to be a more professional environment and would increase communication between him and the Appellant, his Deputy. Mr. Alarid also beheved it would place Ms. Lombardi in closer contact with her staff. When Mr. first discussed with the Appellant in October, 2008 regarding switching the offices, the Appellant said he would retire before switching offices. Mr. Alarid then contacted the Human Resources Office regarding whether he could order Employee's to switch offices. Human Resources told him that it was his decision. A week later Mr. Alard notified the Appellant he had made his decision and the Appellant was to switch offices by December 1°t, 2008. The Appellant responded he ‘would retire’ the day before the effective date of the office switch. NANCY WEIR REPORTING SERVICES P.O. BOX 6033 LAKE WORTH, FLORIDA 33466 561/967 2073 FAX 561/433 8026 6 A series of conversations ensured between Mr. Alarid and the Appellant regarding the Appellant’s statement he ‘would retire’. The Appellant admitted that Mr. Alarid begged him not to retire and even offered to give up his office to the Appellant and Mr. Alarid would move to Ms. Lombardi’s office. The appellant also testified that during these conversations he twice circle a date on his calendar in front of Mr. Alarid stating this was his retirement date. The second time he circled November 30%, 2008 as his date of retirement. The Appellant also testified he circled the last day he would be in the office, which was November 20», 2008. On November 20**, 2008 Mr. Aland testified he saw the Appellant shredding and throwing out documents. He also saw the Appellant packing up his personal items. And, convinced that the Appellant was retiring and having received instructions from the Human Resources Office to get the Appellant was in the office. Mr. Alarid asked the Appellant for these items. He also told the Appellant he; “didn’i have to go out lke this”, to which the Appellant responded; “No, I’m done”. Even though the Appellant admitted to circling the date for his retirement and circling the last day he would be in the office on the calendar, the Appellant testified he told Mr. Alarid he was only contemplating retirement. Mr. Alarid testified that the Appellant never said he was contemplating, instead he testified that the Appellant said that he intended to retire on November 30%. Mr. Alarid’s testimony on this issue 1s credible. It is consistent with his Affidavit in the file. It is consistent with the e-mails at Tab G of the Agency file and is internally consistent. NANCY WEIR REPORTING SERVICES P.O. BOX 6033 LAKE WORTH, FLORIDA 33466 561/967 2073 FAX 561/433 8026 Additionally, the appellant's cleaning out of his office, packing up his personal items and circling dates on the calendar are also consistent with Mr. Alarid’s testimony. I further find that Mr. Alarid’s actions with regard to asking the Appellant for his SF-50 wee reasonable. Mr. Alarid wanted to get a replacement for the Appellant as quickly as possible and hopevully before the Appellant left. Human Resources had indicated it was best to have a Retirement SF-50 from the Appellant to do this. Similarly, I find Mr. Alarid’s actions with regard to collecting the Appellant’s badge and keys on November 20* were reasonable, since this was the Appellant’s last day in the office. I find the Appellant’s retirement was voluntary. I find that the A»pellant did not have a reasonable belief that Mr. Alarid had terminated his employment on November 20¢t' for the same reason that Mr. Alarid’s actions were reasonable. Additionally, if the Appellant actually believed he was terminated on November 20* he would not have submitted a Resignation SF-50 indicating he was retiring on November 30th. There would have been no reason to do so. The Appellant stated that he was mitigating his damages. If the Appellant had been constructively terminated on November 20, he could not have then voluntarily moved his retirement to November 30" as he actually did. NANCY WEIR REPORTING SERVICES P.O. BOX 6033 LAKE WORTH, FLORIDA 33466 561/967 2073 FAX 561/433 8026 In summary, I find that the Appellant has not proven by a preponderance of the evidence that his retirement was involuntary. Finally, I note that the Appellant’s allegations of prohibited discrimination are insufficient to establish Board jurisdiction in the absence of an otherwise appealable action. See Cruz v. Department of the Navy, 934 F2d 1240 at pages 1245 (Fed Cir. 1991) (en banc) (the Board has not granted jurisdiction over discrimination claims unaccompanied by an appealable action over which the Board has jurisdiction); Also see Wren v. Department of the Army, 2 MSPR1 at page 2 (1980) affirmed, 681 F2d 867 at pages 871-73 (D.C. Cir 1982) (5 United States Code 2302(b) is not an independent source of Board jurisdiction). For the reasons stated above the appeal is DISMISSED for lack of jurisdiction. The record is closed. (Whereupon, the proceedings were concluded at 2:20p.m. KEKEKEKKEKEKEKEKKKEREKEKEKEEE NANCY WEIR REPORTING SERVICES P.O. BOX 6033 LAKE WORTH, FLORIDA 33466 561/967 2073 FAX 561/433 8026 UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ATLANTA REGIONAL OFFICE Antonio M. Apodaca Docket Number Appellant, AT-0752-09 0223-I-1 v. Department of Homeland Date: July 24, 2009 Security Agency. Antonio M. Apodaca, Miami, Florida, pro se. Lt. Robert Pirone, Esquire, Norfolk, VA, for the agency. BEFORE Neil A. G. McPhie, Chairman Mary M. Rose, Vice Chairman FINAL ORDER The appellant has filed a petition for review in this case asking us to reconsider the initial decision issued by the administrative judge. We grant petitions such as this one only when significant new evidence is presented to us that was not available for consideration earlier or when the administrative judge made an error interpreting a law or regulation. The regulation that establishes this standard of review is found in 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 find that a question exists regarding the timeliness of the appellant’s petition for review. We have not decided that issue because we conclude that there is no new, previously unavailable, evidence and that the administrative judge made no error in law or regulation that affects the outcome. 5 C.F.R. § 1201.115(d). Therefore, we DENY the petition for review. The initial decision of the administrative judge is final. This is the Board’s final decision in this matter. 5 C.F.R. § 1201.113. NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the nght to request the United States Court of Appeals for the Federal Circuit to review this final decision. 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 your receipt of this order. If you have a representative in this case, and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. If you choose to file, be very careful to file on tame. 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 United States Code, section 7703 (7 U.S.C. § 7703). You may read this law, as well as review the Board’s regulations and other related material, at our website, http://www.mspb.gov. Additional information is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance 1s 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. FOR THE BOARD a: wae Willham D. Spencer Clerk of the Board Washington, D. C CERTIFICATE OF COMPLIANCE No. Antonio M. Apodaca, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. As required by Supreme Court Rule 33.1(h), I certify that the petition for a writ of certiorari contains 3208 words, excluding the parts of the petition that are exempted by Supreme Court Rule 33.1(d). I declare under penalty of perjury that the foregoing is true and correct. Executed on December 01, 2010 Antonio M. Apodaca, Pro Se 14221 SW 146TH Terrace Miami, FL 33186-7208 (305) 232-7024 (Home Phone) (305) 498-7366 (Cell Phone) tapodaca@bellsouth.net CERTIFICATE OF SERVICE I, certify that I mailed the attached Petition for Writ of Certiorari this 02°4 day of December 2010 to each of the following: Merit Systems Protection Board Jeffrey Gauger, Esquire U.S. Merit Systems Protection Board 1615 M. Street, N.W. Washington, D. C. 20419 Solicitor General of the United States Solicitor General of the United States Room 5614 U.S. Department of Justice, 950 Pennsylvania Ave., N. W. Washington, D.C. 20530-0001 December 02, 2010 ' Aniteyco Ctyod att) Date) Antonio M. Apodaca, Pro Se 14221 SW 146 Terrace Miami, FL 33186-7208 (305) 232-7024 (Home Phone) (305) 498-7366 (Cell Phone) tapodaca@bellsouth.net --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2844%3A1. Public record. Not legal advice.