Nelson v. MSPB , 613 F. App'x 920 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SIDNEY NELSON, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3192
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0512-I-1.
______________________
Decided: May 14, 2015
______________________
SIDNEY NELSON, JR., Seattle, WA, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
_____________________
Before MOORE, CLEVENGER, and WALLACH, Circuit
Judges.
2 NELSON v. MSPB
PER CURIAM.
Petitioner Sidney Nelson, Jr., appeals the final deci-
sion of the Merit Systems Protection Board (“Board”)
dismissing his petition for review for lack of jurisdiction
because he failed to show his disability retirement was
involuntary. See Nelson v. U.S. Postal Serv., No. SF-
0752-13-0512-I-1 (Merit Sys. Prot. Bd. Aug. 19, 2014)
(Resp’t’s App. 16–21) (“Final Order”); Nelson v. U.S.
Postal Serv., No. SF-0752-13-0512-I-1 (Merit Sys. Prot.
Bd. Feb. 19, 2014) (Resp’t’s App. 1–15) (“Initial Decision”).
Because Mr. Nelson failed to raise a non-frivolous claim of
jurisdiction, this court affirms.
BACKGROUND
Mr. Nelson, a former mail handler with the United
States Postal Service (the “Agency”) beginning in 1984,
was placed on medical leave following receipt of a medical
note from a physician dated June 11, 1999. Mr. Nelson
submitted another medical report to the Agency dated
March 21, 2000, in which a physician diagnosed him with
chronic myofascial strain and chronic degenerative dis-
ease. The report recommended that Mr. Nelson continue
his medical leave because of his back problems related to
the diagnosis. It also predicted his condition would be
permanent. Due to this prognosis, Mr. Nelson retired on
July 19, 2000, and applied for disability retirement. The
Office of Personnel Management (“OPM”) granted him
disability retirement benefits on August 2, 2000. His last
date in pay status with the Agency was July 31, 1999.
Mr. Nelson appealed on June 3, 2013, alleging his Ju-
ly 2000 retirement was involuntary. On review, the
Administrative Judge (“AJ”) found Mr. Nelson failed to
make a non-frivolous allegation his retirement was invol-
untary. Therefore, the retirement was not an “adverse
action” and as such, the Board lacked jurisdiction to hear
his appeal.
NELSON v. MSPB 3
Mr. Nelson appealed the AJ’s findings to the Board.
The Board stated that because Mr. Nelson “raised no
arguments challenging the [AJ’s] findings in the initial
decision, [he] has shown no error by the [AJ] in dismissing
this appeal for lack of jurisdiction. Accordingly, [his]
petition for review does not meet the criteria for review
under 5 C.F.R. § 1201.115.” Final Order at 3 ¶ 4. The
Board also found the “record evidence support[s] the
[AJ’s] finding that the Board does not have jurisdiction
over the appellant’s involuntary resignation claim.” Id. at
3 ¶ 5.
Mr. Nelson appeals the Board’s dismissal of his ap-
peal for lack of jurisdiction. This court has jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review and Jurisdiction
This court’s “scope of . . . review of [B]oard decisions is
limited to whether they are (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) unsupport-
ed by substantial evidence.” Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995) (citing 5 U.S.C. § 7703(c)
(1988)). The issue of Board jurisdiction is a question of
law this court reviews de novo. Johnston v. Merit Sys.
Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). This court is
bound by the Board’s jurisdictional factual findings “un-
less those findings are not supported by substantial
evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998).
Mr. Nelson bears the burden of establishing Board ju-
risdiction by a preponderance of evidence. Fields v. Dep’t
of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006); 5 C.F.R.
§ 1201.56(a)(2)(i) (2013). The Board’s jurisdiction is
“strictly defined and confined by statute and regulation”
4 NELSON v. MSPB
to appeals of decisions involving “adverse actions.” Bol-
ton, 154 F.3d at 1316. Such actions are: (1) removals; (2)
suspensions for more than fourteen days; (3) reductions in
grade; (4) reductions in pay; and (5) furloughs of thirty
days or less. 5 U.S.C. § 7512(1)–(5) (2012).
“‘[T]he [Board] possesses jurisdiction over an appeal
filed by an employee who has resigned or retired if . . . his
or her resignation or retirement was involuntary and thus
tantamount to forced removal.”’ Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc)
(quoting Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340–41
(Fed. Cir. 2001)) (emphasis added). “Employee resigna-
tions are presumed voluntary [and] [t]his presumption
will prevail unless plaintiff comes forward with sufficient
evidence to establish that the resignation was involun-
tarily extracted.” Id. at 1329–30 (citing Christie v. United
States, 518 F.2d 584, 587 (Ct. Cl. 1975)). In order to
demonstrate his disability retirement was involuntary,
Mr. Nelson “must show that there was an accommodation
available on the date of his separation that would have
allowed him to continue his employment, and that the
agency did not provide him that accommodation.” Be-
navidez v. Dep’t of Navy, 241 F.3d 1370, 1375 (Fed. Cir.
2001) (affirming the Board’s use of these criteria).
II. The Board Correctly Found It Lacked Jurisdiction to
Hear Mr. Nelson’s Claim
In his appeal to the Board, Mr. Nelson did not claim
the AJ applied the wrong law or challenge the facts as
applied by the AJ; rather, Mr. Nelson alleged his retire-
ment was involuntary. The AJ found Mr. Nelson failed to
raise non-frivolous claims regarding his requests for an
accommodation. Thus, Mr. Nelson failed to meet his
burden of demonstrating his resignation was involuntary
because he failed to “show that there was an accommoda-
tion available on the date of his separation that would
NELSON v. MSPB 5
have allowed him to continue his employment.” Be-
navidez, 241 F.3d at 1375.
In his appeal to the Board, Mr. Nelson argued:
he applied for several positions that did not re-
quire lifting but the agency refused to let him
back on the job despite having job openings. He
asserts that he had back pain due to the heavy
lifting required in his position but that the agency
refused to put him on light duty. He claims that
he was released by his doctor to go back to work
but was limited in the number of pounds he could
lift. He contends his supervisor did not follow his
doctor’s orders and refused to assign him work
with lighter lifting despite asking him over a peri-
od of several months. He acknowledges his su-
pervisor would assign him to sort mail when such
work was available, sometimes up to 2 hours per
day. He additionally contends he asked his su-
pervisor for a different position but that he de-
clined to give him one. He states he requested
help from the agency’s human resources and
workers’ compensation offices to no avail.
Initial Decision at 4–5.
As the AJ found, these allegations are conclusory be-
cause Mr. Nelson did not provide evidence to support
these claims or include essential details as to whom,
where, or when these requests were made. Id. at 5. Mr.
Nelson failed to non-frivolously allege an alternative
position existed at the Agency or allege there were any
reasonable accommodations available at the time he
retired. See Garcia, 437 F.3d at 1344 (holding under 5
U.S.C. §§ 7701 and 7512, a claimant must first make non-
frivolous claims of Board jurisdiction in order to establish
jurisdiction).
6 NELSON v. MSPB
Mr. Nelson also failed to show he was coerced into re-
tirement. To establish that he involuntarily retired
because of coercion, Mr. Nelson must show “(1) the agency
effectively imposed the terms of the employee’s resigna-
tion or retirement; (2) the employee had no realistic
alternative but to resign or retire; and (3) the employee’s
resignation or retirement was the result of improper acts
by the agency.” Shoaf, 260 F.3d at 1341 (citations omit-
ted). That is, Mr. Nelson must “establish that a reasona-
ble employee confronted with the same circumstances
would feel coerced” into retiring. Middleton v. Dep’t of
Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999) (citation
omitted).
Mr. Nelson failed to provide any evidence of coercion
beyond conclusory statements of Agency retaliation and
unfair treatment. Furthermore, probative evidence as to
whether an employee had a realistic alternative to re-
tirement “will usually be evidence in which there is a
relatively short period of time between the employer’s
alleged coercive act and the employee’s retirement.”
Terban v. Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir.
2000). Here, a year passed between the time Mr. Nelson
began his medical leave and the time he retired.
In his appeal to the Board, Mr. Nelson also indicated
the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”) and the Veterans Employment
Opportunities Act (“VEOA”) provided a source of jurisdic-
tion for his claim. However, as the AJ found, Mr. Nelson
did not explain his USERRA claim, but only checked the
box in his appeal petition that stated he “was raising a
claim the agency violated his rights under USERRA.”
Initial Decision at 9. Mr. Nelson provides no evidence the
alleged involuntary disability retirement was the result of
his past military service. Furthermore, this court agrees
with the AJ that Mr. Nelson did not satisfy the VEOA’s
mandatory exhaustion requirement.
NELSON v. MSPB 7
CONCLUSION
For the reasons set forth above, the Board’s decision is
AFFIRMED
COSTS
No costs.