Rebish v. MSPB , 601 F. App'x 944 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JIMMI TYLER REBISH,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3085, 2014-3087
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. SF-1221-13-0494-W-1, SF-0752-13-0362-I-1.
______________________
Decided: February 4, 2015
______________________
JIMMI TYLER REBISH, Meridian, Idaho, pro se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent in 2014-3085. Also represented by
BRYAN G. POLISUK.
KATRINA LEDERER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent in 2014-3087. Also represented by
BRYAN G. POLISUK.
2 REBISH v. MSPB
______________________
Before TARANTO, MAYER, and CLEVENGER, Circuit Judges.
PER CURIAM.
The Merit Systems Protection Board dismissed, for
lack of jurisdiction, two appeals brought by Jimmi Tyler
Rebish, a former employee of the Department of the
Interior, Bureau of Reclamation. One of Mr. Rebish’s
appeals alleges a violation of the Whistleblower Protec-
tion Act, 5 U.S.C. § 2302(b); the other alleges that, though
he resigned from his position, the resignation was invol-
untary and hence constituted a removal, which he chal-
lenges as improper. In both, he contends that the
Department violated an agreement it signed to settle an
earlier administrative grievance he had brought, a set-
tlement agreement pursuant to which he had resigned.
Mr. Rebish now appeals the Board’s dismissals. We
affirm.
BACKGROUND
Mr. Rebish worked as a Civil Rights Program Special-
ist in an office of the Department in Boise, Idaho. In
October 2008, he declined a reassignment to Denver,
Colorado, and the Department removed him from his
Boise position. He brought an administrative grievance,
which was resolved by a settlement agreement with the
Department, without any Board involvement. The De-
partment agreed to provide Mr. Rebish with a neutral
employment reference, R.A. 34 (Case No. 14-3087), and he
agreed to resign and “not to file any EEO complaints,
MSPB appeals, grievances, or court actions, . . . or any
other claim he has filed or could have filed against the
Agency through the date of [the agreement’s] execution.”
R.A. 33 (Case No. 14-3087); see R.A. 5. Mr. Rebish was
represented by counsel when he signed the agreement.
REBISH v. MSPB 3
Four-and-a-half years later, a private investigator
hired by Mr. Rebish contacted at least one Department
employee who, in the ensuing conversation, made re-
marks that Mr. Rebish views as violating the neutral-
reference promise in the settlement agreement. R.A. 39,
43–44 (Case No. 14-3085). Mr. Rebish then filed two
appeals with the Board, both alleging breach of the set-
tlement agreement. 1 In the first, Mr. Rebish alleged that
the Department provided less-than-neutral references in
reprisal for whistleblowing related to an equal employ-
ment opportunity investigation. In the second, he chal-
lenged his resignation pursuant to the settlement
agreement as involuntary, citing the Department’s al-
leged breach of the settlement agreement and also con-
tending that the original removal (the subject of the
settlement agreement) resulted from the Department’s
giving of preferential treatment to a female employee.
The Board dismissed both appeals for lack of jurisdiction.
Mr. Rebish has timely appealed the dismissals to this
court. We have jurisdiction under 28 U.S.C. § 1295(a)(9);
see also Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111,
1116 (Fed. Cir. 2013).
DISCUSSION
1 It appears that Mr. Rebish first pursued these chal-
lenges with the Office of Special Counsel in 2012 or 2013.
Mr. Rebish has not provided us—and did not provide the
administrative judge or Board—with a copy of his original
complaint. On October 21, 2014, Mr. Rebish filed a relat-
ed suit in the Court of Federal Claims. He has asked to
supplement the record here with the government’s partial
motion to dismiss that case. See Defendant’s Partial
Motion to Dismiss, Rebish v. United States, No. 14-cv-
01022 (Fed. Cl. Dec. 22, 2014). We grant the request.
4 REBISH v. MSPB
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). “Whether the Board possesses jurisdic-
tion to adjudicate a case is a question of law, which this
court reviews de novo.” Barrett v. Soc. Sec. Admin., 309
F.3d 781, 785 (Fed. Cir. 2002). “When an individual
appeals to the Board, he or she bears the burden of prov-
ing . . . jurisdiction by a preponderance of the evidence.”
Id. at 785.
A
Mr. Rebish’s first Board appeal is an appeal under the
Whistleblower Protection Act. See 5 U.S.C. § 1221. The
Board has jurisdiction over such an appeal “if the appel-
lant has exhausted his administrative remedies before the
[Office of Special Counsel] and makes non-frivolous
allegations that (1) he engaged in whistleblowing activity
by making a protected disclosure under 5 U.S.C.
§ 2302(b)(8), and (2) the disclosure was a contributing
factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a).” Yunus
v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.
2001) (internal quotation marks omitted). The standard
for assessing whether an allegation is frivolous “is analo-
gous to that for summary judgment.” Kahn v. Dep’t of
Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) (citation and
internal quotation marks omitted). “[T]he petitioner must
show the existence of a material fact issue . . . to support
Board jurisdiction. Non-frivolous allegations cannot be
supported by unsubstantiated speculation in a pleading
submitted by petitioner.” Id. (citation and internal quota-
tion marks omitted).
We agree with the Board that Mr. Rebish’s appeal
under the Whistleblower Protection Act must be dis-
REBISH v. MSPB 5
missed for lack of jurisdiction because Mr. Rebish failed to
make a sufficient allegation that a disclosure he made
contributed to the Department’s decision to make the
allegedly unfavorable employment references at issue. In
particular, Mr. Rebish did not make a non-frivolous
allegation “that the ‘deciding official knew of the disclo-
sure’ and that the adverse action ‘was initiated within a
reasonable time of that disclosure.’ ” Reid v. Merit Sys.
Prot. Bd., 508 F.3d 674, 678–79 (Fed. Cir. 2007) (citing 5
U.S.C. § 1221(e)(1); Kewley v. Dep’t of Health & Human
Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998)). Karl Stock,
one of the Department officials who made an allegedly
unfavorable reference, submitted a sworn declaration
that, at the time he made the reference, he was “unaware
of any whistleblowing disclosures made by [Mr. Rebish].”
R.A. 37 (Case No. 14-3085). Mr. Rebish, on the other
hand, adduced no evidence that any of the officials that
made unfavorable references knew of any protected
disclosures, proffering only an indefinite statement that
“[a]gency officials were and are aware of [his] protected
disclosure” in an affidavit. R.A. 39 (Case No. 14-3085).
Such bare, generalized assertions do not establish a
genuine dispute of material fact. The Board properly
dismissed Mr. Rebish’s first appeal.
B
Mr. Rebish’s second appeal asserts that his resigna-
tion pursuant to the settlement agreement was involun-
tary and hence, presumably, that it was actually a
“removal” that the Board may review under 5 U.S.C.
§ 7512. “[A]n employee who voluntarily retires has no
right to appeal to the Board.” Staats v. U.S. Postal Serv.,
99 F.3d 1120, 1123–24 (Fed. Cir. 1996). “A decision to
resign or retire is presumed to be voluntary.” Id. at 1123.
The presumption is especially difficult to overcome when
resignation occurred pursuant to a settlement agreement.
See, e.g., Callen v. Pennsylvania R.R. Co., 332 U.S. 625,
630 (1948) (“One who attacks a settlement must bear the
6 REBISH v. MSPB
burden of showing that the contract he has made is taint-
ed with invalidity, either by fraud practiced upon him or
by a mutual mistake under which both parties acted.”);
Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed.
Cir. 1982) (“Those who employ the judicial appellate
process to attack a settlement through which controversy
has been sent to rest bear a properly heavy burden.”).
We agree with the Board that Mr. Rebish’s appeal re-
garding involuntary resignation must be dismissed for
lack of jurisdiction. The Board stated that there was no
basis for challenging the validity of the settlement agree-
ment here. Rebish v. Dep’t of Interior, No. SF-0752-13-
0362-I-1, 2014 WL 5161854, at *1 (M.S.P.B. Jan. 23,
2014). That rationale supports the conclusion that Mr.
Rebish did not make a non-frivolous allegation as to the
involuntariness of his resignation, which is necessary for
jurisdiction. He did not allege that the settlement agree-
ment was invalid or entered into involuntarily, such as by
coercion or deception; indeed, both the administrative
judge and Board found the contrary. Rebish, 2014 WL
5161854, at *1; R.A. 7 (Case No. 14-3087) (administrative
judge); see R.A. 36 (Case No. 14-3087) (“All parties have
entered into this Agreement voluntarily and with a com-
plete and thorough understanding of its terms, meaning,
and effect. Each of the undersigned is signing the Agree-
ment voluntarily and freely without coercion, having had
the opportunity to read and raise questions about its
meaning prior to signing.”). Instead, Mr. Rebish made an
allegation of breach. Even if there was a breach as Mr.
Rebish claims, however, it would not imply invalidity of
the agreement or involuntariness in his resignation.
Therefore, the Board properly dismissed Mr. Rebish’s
second appeal.
CONCLUSION
For the foregoing reasons, the Board’s judgment is af-
firmed.
REBISH v. MSPB 7
No costs.
AFFIRMED