Wiggins v. Merit Systems Protection Board , 490 F. App'x 336 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WAYNE F. WIGGINS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3114
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0752100618-I-1.
__________________________
Decided: July 13, 2012
__________________________
R. MARK NASTEFF, JR. Mitchell, Kristl, & Lieber, P.C.,
of Kansas City, Missouri, for petitioner.
MICHAEL A. CARNEY, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
WIGGINS v. MSPB 2
Before BRYSON, PROST, and REYNA, Circuit Judges.
PER CURIAM.
The Merit Systems Protection Board (“MSPB”) dis-
missed Petitioner Wayne Wiggins’ appeal of his construc-
tive removal claim for lack of subject matter jurisdiction.
Because Wiggins failed to make non-frivolous allegations
in support of his contention that his resignation was not
voluntary, we affirm.
I.
From February 24, 1992, until July 18, 2008, Wiggins
was an employee of the Internal Revenue Service (“the
agency”). Effective April 12, 2004, he was removed for
improperly using the agency’s Integrated Data Retrieval
System. He appealed this termination and eventually
settled, agreeing to accept a sixty-day unpaid suspension
in lieu of termination.
Pursuant to the settlement agreement, Wiggins was
reassigned to, and trained for, a new position. In March
2006, due to what he perceived as retaliation, Wiggins
filed an Equal Employment Opportunity (“EEO”) com-
plaint. The Equal Employment Opportunity Commission
(“EEOC”) conducted a hearing at which Wiggins claimed
that Carolyn Tanis, his former supervisor, had taken
actions against him that he believed to be retaliatory and
discriminatory.
Following this hearing, Ms. Tanis contacted the
Treasury Inspector General for Tax Administration
(“TIGTA”) and reported that Wiggins may have made an
unauthorized access or disclosure of taxpayer information
(a “UNAX” violation) at the EEOC hearing. Five days
after the hearing, the EEOC administrative judge in-
formed Wiggins that the TIGTA planned to investigate
the possible UNAX violation. Wiggins retired from his
position three days later.
3 WIGGINS V. MSPB
About one month after retiring, Wiggins contacted the
agency’s EEO office, asserting that his retirement was not
voluntary but was instead the result of agency discrimi-
nation, intolerable working conditions, and coercion. The
agency issued a final agency decision finding that Wiggins
had not established a claim for constructive removal
because he had not been subjected to discrimination or
intolerable working conditions.
Wiggins appealed the agency’s final decision to the
MSPB. He continued to argue that he was constructively
removed and that he had retired under threat and duress.
An administrative judge (“AJ”) issued an Acknowledge-
ment Order requiring Wiggins to “file evidence and argu-
ment that this action is within the [MSPB]’s jurisdiction.”
Resp’t App. 9. 1 In response, Wiggins asserted that after
his termination in 2004, he had filed two other retaliation
actions, at least one of which involved Ms. Tanis. He
asserted that there was no evidence that he had commit-
ted a UNAX violation and that the TIGTA investigation
had been commenced due to an inaccurate report. He
then argued that the “commencement of an investigation
into a UNAX violation coupled with . . . having an investi-
gator knock on the door of his private residence [caused
him to feel] as if he had no other choice but to resign in
lieu of what appeared to be his certain termination.”
Resp’t App. 18.
The AJ dismissed Wiggins’ appeal for lack of jurisdic-
tion, noting that anticipation of adverse action does not
constitute coercion or duress and that the choice between
disciplinary action and resignation does not overcome the
presumption that resignation is voluntary. A planned
1 Citations to “App. ” herein refer to pages in the
Appendix to Petitioner’s Brief, and citations to “Resp’t
App. ” refer to pages in the Appendix to Respondent’s
Brief.
WIGGINS v. MSPB 4
disciplinary action only renders a resignation involuntary
when an employee can show that the agency knew or
believed that discipline could not be sustained or that no
arguable basis for discipline existed. The AJ concluded
that Wiggins made no such showing. Furthermore,
although coercion could also be shown by alleging that the
agency effectively imposed the terms of his resignation,
that there was no realistic alternative to resignation, and
that the resignation was the result of improper actions by
the agency, Wiggins had alleged none of these factors.
The AJ did not grant a hearing because Wiggins had
“failed to make a non-frivolous allegation that the Board
ha[d] jurisdiction over his appeal.” App. 20. Wiggins
sought review of the decision by the full MSPB, but the
MSPB denied his request, making the initial decision
final.
This appeal followed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
II.
The scope of our review is limited to whether the
MSPB’s decision 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). Whether the
MSPB has jurisdiction is a question of law that this court
reviews de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d
409, 410 (Fed. Cir. 1995). “When an individual appeals to
the [MSPB], he or she has the burden of proving, by a
preponderance of the evidence, that the board has juris-
diction.” Id. To obtain an evidentiary hearing, Wiggins
was required to make non-frivolous allegations that, if
proven, would establish that the MSPB had jurisdiction.
See Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344
(Fed. Cir. 2006).
5 WIGGINS V. MSPB
The MSPB has jurisdiction over certain agency ac-
tions, including termination. See 5 U.S.C. §§ 7513(d),
7512. A resignation is presumed voluntary. Terban v.
Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000). To
overcome that presumption, Wiggins was required to
show either (1) that the resignation or retirement was the
product of misinformation or deception by the agency or
(2) that the retirement was coerced. Id. To show that his
resignation was coerced, Wiggins needed to establish that
“(1) the agency effectively imposed the terms of [his]
resignation or retirement; (2) [he] had no realistic alter-
native but to resign or retire, and (3) [his] resignation or
retirement was the result of improper acts by the agency.”
Garcia, 437 F.3d at 1329 (quoting Shoaf v. Dep’t of Agric.,
260 F.3d 1336, 1341 (Fed. Cir. 2001)). The test is objec-
tive, and required Wiggins to demonstrate that “a reason-
able employee confronted with the same circumstances
would feel coerced into resigning.” Id.Wiggins recognizes that voluntary resignation is gen-
erally not reviewable by the MSPB. See 5 U.S.C. § 7512.
He recites the three-part test for duress or coercion but
does not explain how it is satisfied in this case. Instead,
he argues for the first time that “[a]lthough this Court
has upheld MSPB decision[s] ruling resignations were
voluntary where they were submitted to avoid threatened
termination for cause, the threatened termination must
be for good cause.” Pet’r’s Br. at 11. Wiggins suggests
that the threatened termination was not for good cause
because he did not actually commit a UNAX violation.
These arguments fail. First, Wiggins was not threat-
ened with termination, but rather with an investigation
that he claims would have exonerated him. This is not
consistent with his claim that his termination was inevi-
table and that he had no choice but to resign. See
Holman v. Dep’t of the Treasury, 9 M.S.P.R. 218, 220
(1981) (concluding that fear of a possible future adverse
WIGGINS v. MSPB 6
action is not adequate to rebut a presumption of volun-
tariness). Second, he has at no point in this proceeding
even alleged, let alone offered factual support for, the
factors necessary to show coercion. Nor has he alleged
facts that would support a finding that a reasonable
employee in the same circumstances would feel coerced
into resigning.
Wiggins alleges only that he chose to retire rather
than endure an investigation that he believes would have
exonerated him. However, the choice between two unat-
tractive options does not render the decision to retire
involuntary. Staats v. U.S. Postal Serv., 99 F.3d 1120,
1124 (Fed. Cir. 1996); Schultz v. U.S. Navy, 810 F.2d
1133, 1136 (Fed. Cir. 1987) (“An unpleasant choice be-
tween disciplinary action and retirement does not rebut
the presumption of voluntariness of [a] choice to retire.”);
Christie v. United States, 518 F.2d 584, 587 (Ct. Cl. 1975)
(“Merely because the plaintiff was faced with an inher-
ently unpleasant situation in that [the] choice was argua-
bly limited to two unpleasant alternatives does not
obviate the voluntariness of [the] resignation.”). Even if
true, these allegations are not sufficient to overcome the
presumption that Wiggins’ retirement was voluntary.
Therefore, the judgment of the MSPB is hereby
AFFIRMED
COSTS
Each party shall bear its own costs.