Steele v. Merit Systems Protection Board , 549 F. App'x 944 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT W. STEELE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3065
______________________
Petition for review of the Merit Systems Protection
Board in No. CH0752120680-I-1.
______________________
Decided: September 16, 2013
______________________
ROBERT W. STEELE, of Versailles, Indiana, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
were BRYAN G. POLISUK, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
______________________
2 STEELE v. MSPB
Before O’MALLEY, CLEVENGER, and TARANTO, Circuit
Judges.
PER CURIAM.
Petitioner Robert W. Steele seeks review of an order
of the Merit Systems Protection Board (“Board”) dismiss-
ing his appeal for want of jurisdiction and, in the alterna-
tive, for untimely filing of the appeal. Steele v. Dep’t of
Agric., No. CH-0752-12-0680-I-1 (M.S.P.B. Dec. 5, 2012)
[hereinafter Decision]. We affirm.
BACKGROUND
Until September 28, 1984, Mr. Steele was an employ-
ee of the U.S. Soil Conservation Service (“SCS”). 1 He
resigned from the SCS after he was informed that he was
going to be demoted and reassigned in March of that same
year. Mr. Steele filed an appeal to the Board on August
10, 2012, alleging that his resignation from the SCS
twenty-eight years earlier was involuntary.
On December 5, 2012, the administrative judge as-
signed to his case dismissed his appeal. Decision at 6. The
judge found that, because Mr. Steele’s resignation from
the SCS was voluntary, the Board lacked jurisdiction over
his appeal. Decision at 4. The judge also found that, even
if the Board had jurisdiction, the appeal was untimely
filed. Decision at 4-5.
Mr. Steele filed a petition for review of the decision to
the Board on December 10, 2012, but subsequently with-
drew it. The administrative judge’s initial decision there-
fore became the final decision of the Board on January 9,
2013. Mr. Steele timely filed his appeal of the Board’s
1 The Soil Conservation Service is now known as
the Natural Resources Conservation Service.
STEELE v. MSPB 3
final decision, and we have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
Our review of a decision of the Board is circumscribed
by statute. We can set aside a Board decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). The Board’s determination of
its own jurisdiction is a question of law that we review de
novo, Hawkins v. Merit Sys. Prot. Bd., 688 F.3d 1336,
1340 (Fed. Cir. 2012), and the underlying findings of fact
are reviewed for substantial evidence, Bledsoe v. Merit
Sys. Prot. Bd., 659 F.3d 1097, 1101 (Fed. Cir. 2011).
The administrative judge correctly concluded that the
Board was without jurisdiction over Mr. Steele’s appeal.
Decision at 6. “The board’s jurisdiction is not plenary, but
is limited to those matters over which it has been given
jurisdiction by law, rule, or regulation.” Johnston v. Merit
Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). “[T]he
Board lacks jurisdiction over an employee’s voluntary
decision to resign or retire.” Conforto v. Merit Sys. Prot.
Bd., 713 F.3d 1111, 1114 (Fed. Cir. 2012). An employee’s
resignation or retirement is presumed voluntary. Id. at
1121. “The two principal grounds on which employees
have sought to show that their resignations or retire-
ments were involuntary are (1) that the resignation or
retirement was the product of misinformation or decep-
tion by the agency, and (2) that the resignation or retire-
ment was the product of coercion by the agency.” Id. at
1114 (citation omitted). Mr. Steele argues that the demo-
tion and reassignment he was given forced him into
resigning; accordingly, we analyze whether his resigna-
tion was the product of the SCS’s coercion.
4 STEELE v. MSPB
As we have held, “[t]he doctrine of coercive involun-
tariness ‘is a narrow one,’ requiring that the employee
‘satisfy a demanding legal standard.’” Conforto, 713 F.3d
at 1121. To invoke this doctrine to overcome the presump-
tion of a voluntary resignation, Mr. Steele must show
that, as “‘[a] result of improper acts by the agency,’” he
was subjected to such circumstances that an objective,
reasonable employee “‘. . . confronted with the same []
would feel coerced into resigning’ or retiring.” Id. at 1121,
1122 (citing Garcia v. Dep’t of Homeland Sec., 437 F.3d
1322, 1329 (Fed. Cir. 2006)); see also Shoaf v. Dep’t of
Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001) (“As a general
proposition, to establish involuntariness on the basis of
coercion this court requires an employee to show: (1) the
agency effectively imposed the terms of the employee’s
resignation or retirement; (2) the employee had no realis-
tic alternative but to resign or retire; and (3) the employ-
ee’s resignation or retirement was the result of improper
acts by the agency.”). In this analysis, “[a]n employee’s
dissatisfaction with the options that an agency has made
available to him is not sufficient to render his decision to
resign or retire involuntary.” Conforto, 713 F.3d at 1121.
“[T]he doctrine of coerced involuntariness does not apply
if the employee resigns or retires because he does not like
agency decisions such as ‘a new assignment, a transfer, or
other measures that the agency is authorized to adopt,
even if those measures make continuation in the job so
unpleasant . . . that he feels that he has no realistic option
but to leave.’” Id. at 1121-22. “[O]ur case law has . . .
emphasized that freedom of choice is a central issue.”
Garcia, 437 F.3d at 1329.
Mr. Steele has not demonstrated how a reasonable
person in his position would have felt coerced into resign-
ing. He also has not pointed to what the SCS had done
that was improper. According to Mr. Steele’s account, he
“moved on” from the SCS after he was offered the demo-
tion and reassignment. The decision of the SCS to demote
STEELE v. MSPB 5
and reassign him may be so repugnant to him that he felt
he had no choice but to resign, but that, without more,
does not qualify as coerced involuntariness.
The administrative judge properly considered the
length of time Mr. Steele had in deliberating his resigna-
tion as indicia that the resignation was actually volun-
tary. Decision at 3. According to Mr. Steele’s own
statements, he arrived at his decision over the course of a
six-hour drive. Even after he made up his mind, he did
not actually resign until September of 1984, six months
after he was first told of his demotion and reassignment
in March. Substantial evidence supports the conclusion
that Mr. Steele’s resignation is of his volition.
Mr. Steele has not made the requisite showing under
the doctrine of coercive involuntariness to rebut the
presumption of a voluntary resignation. We therefore
affirm the administrative judge’s conclusion that the
Board is without jurisdiction over his appeal.
Furthermore, the administrative judge did not err in
concluding that, were Mr. Steele’s appeal subject to the
Board’s jurisdiction, it was untimely filed. An appeal to
the Board “must be filed no later than 30 days after the
effective date, if any, of the action being appealed, or 30
days after the date of the appellant’s receipt of the agen-
cy’s decision, whichever is later.” 5 C.F.R. § 1201.22(b)(1).
If an appeal is filed after the deadline, “it will be dis-
missed as untimely filed unless a good reason for the
delay is shown.” Id. § 1201.22(c). “[W]hether the regulato-
ry time limit for an appeal should be waived based upon a
showing of good cause is a matter committed to the
Board’s discretion,” which “we will disturb . . . only if it is
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” Mendoza v. Merit Sys.
Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc).
“The burden is on the petitioner to demonstrate excusable
delay.” Id.6 STEELE v. MSPB
According to Mr. Steele’s submissions to the adminis-
trative judge, it was not until 2009, when his memories of
the events of 1984 were refreshed while he was penning
an article for his college alumni magazine, that he was
motivated to appeal to the Board. Decision at 5. On this
record, the judge’s dismissal of his appeal for untimely
filing is not arbitrary, capricious, or an abuse of discre-
tion.
CONCLUSION
Because Mr. Steele failed to establish that the Board
had jurisdiction over his appeal and because he failed to
show good cause for untimely filing his appeal, the deci-
sion of the Board dismissing his appeal is affirmed.
AFFIRMED
COSTS
No costs.