Nguyen v. MSPB , 646 F. App'x 980 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HOA NGUYEN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF COMMERCE,
Intervenor
______________________
2015-3144
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-14-0767-I-1.
______________________
Decided: May 6, 2016
______________________
HOA NGUYEN, Springfield, VA, pro se.
MICHAEL ANTON CARNEY, Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
2 NGUYEN v. MSPB
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for intervenor. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., REGINALD
T. BLADES, JR.
______________________
Before DYK, MOORE, and HUGHES, Circuit Judges.
PER CURIAM.
Ms. Hoa Nguyen petitions for review of a final de-
cision of the Merit Systems Protection Board (“MSPB” or
“the Board”) dismissing her appeal for lack of jurisdiction.
Because we agree that Ms. Nguyen has failed to non-
frivolously allege that her retirement was involuntary, we
agree that the Board lacked jurisdiction, and we affirm.
BACKGROUND
Ms. Nguyen served as a Supervisory Patent Examiner
at the United States Patent and Trademark Office (“the
agency”). On September 6, 2013, Ms. Nguyen received a
Notice of Proposed Reduction in Grade from a Supervisory
Patent Examiner to a Patent Examiner. The notice was
issued by her direct supervisor, Mr. Derris Banks. Mr.
Banks’s notice alleged that she had violated rules prohib-
iting nepotism in attempting to use her position in the
agency to prevent her son, a probationary patent examin-
er also at the agency, from being fired. Specifically, the
letter alleged that Ms. Nguyen had approached two
directors of technology centers to ask if her son could be
transferred to their departments rather than be termi-
nated.
On October 18, 2013, then-Assistant Deputy Commis-
sioner for Patent Operations, Valencia Martin-Wallace,
determined that Ms. Nguyen should be reduced in grade.
Finding statements from the directors of the technology
NGUYEN v. MSPB 3
units to be “more credible” than Ms. Nguyen’s statements,
Ms. Martin-Wallace found that Ms. Nguyen’s “unaccepta-
ble and inappropriate” behavior in relation to her son’s
firing necessitated the reduction in grade, effective two
days later on October 20, 2013. J.A. 75–76. Ms. Martin-
Wallace’s decision letter apprised Ms. Nguyen of her right
to appeal the decision to the Board. Shortly after receiv-
ing the decision, Ms. Nguyen also received her yearly
performance review from Mr. Banks, which reflected a
reduced rating. Ms. Nguyen, apparently unhappy with
the reduction in grade and performance review, discussed
with Mr. Banks the possibility of resigning.
Thereafter, believing that Ms. Nguyen had indeed al-
ready decided to resign, Mr. Banks ordered that techni-
cians collect Ms. Nguyen’s government-supplied laptop.
When the technicians arrived to collect the laptop, Ms.
Nguyen objected and called Mr. Banks. Mr. Banks came
to Ms. Nguyen’s office, and, according to Ms. Nguyen’s
allegations, demanded a definitive answer on whether Ms.
Nguyen intended to resign. Ms. Nguyen informed Mr.
Banks that she did not intend to resign. Ms. Nguyen
then sent an email to Mr. Banks, stating that she felt that
she was “being forced . . . to resign, to quit instantly per
your behavior.” J.A. 62. After receiving this email, Mr.
Banks and another supervisor stopped by Ms. Nguyen’s
office and assured her that she could take her time to
make the decision on whether to resign or not. Mr. Banks
also later replied to Ms. Nguyen’s email reiterating that
“[a]s we stated multiple times today, the decision of
whether to resign or stay is completely up to you. If you
decide to resign, the decision as to when you would like to
resign is also completely up to you.” J.A. 62.
Mr. Banks also ordered that Ms. Nguyen’s access to
supervisory functions of the agency computer system be
revoked pursuant to her pending reduction in grade.
Apparently finding this to be the last straw, Ms. Nguyen
4 NGUYEN v. MSPB
then went to human resources to pick up retirement
papers.
At some point during the sequence of events, Ms.
Nguyen also sent emails to Ms. Martin-Wallace, the
deciding official at the agency, offering to drop all future
appeal rights in exchange for a suspension of up to thirty
days instead of the reduction of grade. In these emails,
Ms. Nguyen stated that “in the event that” the offer was
refused, she was “preparing . . . immediate retirement
paperwork.” J.A. 59. Ms. Nguyen was informed via email
that Ms. Martin-Wallace was out of the office and could
not reply to the offer until the subsequent Monday, one
day after the reduction in grade would be effective. Ms.
Nguyen filed her retirement papers that Friday, effective
the next day, Saturday, October 19, 2013, and one day
before her reduction in grade would have gone into effect.
Ms. Nguyen appealed to the MSPB on October 28,
2013, alleging involuntary retirement. 1 After briefing,
the administrative judge dismissed the appeal, finding
that Ms. Nguyen had “failed to articulate a nonfrivolous
1 Ms. Nguyen also filed an Equal Employment Op-
portunity (EEO) complaint with the agency, alleging that
various agency actions, including her demotion, were the
result of reprisal and discrimination based on race and
national origin. On May 15, 2014, the agency issued its
final decision finding no discrimination. The Board did
not consider her discrimination claim because it found
that it lacked jurisdiction over her involuntary retirement
claim. See Cruz v. Dep’t of the Navy, 934 F.2d 1240,
1245–46 (Fed. Cir. 1991) (en banc) (holding that when
presented with a mixed case of constructive removal and
discrimination, the Board only has authority to decide the
discrimination issue if the Board has jurisdiction over the
alleged constructive adverse action).
NGUYEN v. MSPB 5
allegation” that she had been forced to retire. J.A. 113.
The full Board affirmed, finding that Ms. Nguyen “has not
made allegations that, if proven, could show that a rea-
sonable person in her circumstances would have viewed
retirement as the only viable alternative.” J.A. 9.
Ms. Nguyen petitioned for review by our court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5
U.S.C. § 7703(b)(1) & (d). We must affirm a decision of
the Board unless it is found to be “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance 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);
Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir.
1984).
DISCUSSION
Section 7513(d) of title 5 grants the Board jurisdiction
to hear appeals over certain enumerated adverse actions
taken by an agency against an employee. Among these
“adverse actions” are removals, reductions in grade or
pay, suspensions, and furloughs. 5 U.S.C. § 7512. To
establish Board jurisdiction, the employee must demon-
strate that she is a covered employee and that the agency
took an enumerated adverse action. See Garcia v. Dep’t of
Homeland Sec., 437 F.3d 1322, 1327–28 (Fed. Cir. 2006)
(en banc).
The Board does not have jurisdiction to hear appeals
from voluntary employee-initiated actions, such as resig-
nation and retirement. Id. at 1328. However, in some
circumstances, an employee can demonstrate that an
otherwise facially voluntary act, such as a resignation or
retirement, “was involuntary and thus tantamount to
forced removal.” Shoaf v. Dep’t of Agric., 260 F.3d 1336,
1341 (Fed. Cir. 2001) (citations omitted). This court has
held that, to demonstrate an involuntary resignation or
6 NGUYEN v. MSPB
retirement, a petitioner must make non-frivolous allega-
tions that (1) the agency effectively imposed the terms of
the employee’s resignation 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. Garcia, 437 F.3d at 1329. A
“mere assertion does not provide a basis for Board juris-
diction in [a] voluntary resignation case,” Cruz v. Dept. of
the Navy, 934 F.2d 1240, 1245 (Fed. Cir. 1991) (en banc);
rather, the petitioner’s allegations must be “supported by
affidavits or other evidence.” Dick v. Dep’t of Veterans
Affairs, 290 F.3d 1356, 1361 (Fed. Cir. 2002) (overruled on
other grounds). Ms. Nguyen alleges that her choice to
retire was coerced and involuntary, and thus argues that
the Board has jurisdiction over her appeal.
First, Ms. Nguyen contends that her retirement was
coerced because the agency knew or should have known
that her demotion action could not be substantiated. In
Schultz v. U.S. Navy, we found that if an “employee can
show that the agency knew that the reason for the threat-
ened removal” cannot “be substantiated, the threatened
action by the agency is purely coercive” and thus facially-
voluntary acts resulting from the threatened removal may
be involuntary. 810 F.2d 1133, 1136 (Fed. Cir. 1987). Ms.
Nguyen did not make this argument before the Board,
and therefore it is waived. See J.A. 4 n.3 (“Although the
appellant alleges she has engaged in no wrongdoing, she
has not contended that the agency knew or should have
known that its demotion action could not be substantiated
or that the agency lacked an arguable basis for the pro-
posed action.”); Elmore v. Dep’t of Transp., 421 F.3d 1339,
1342 (Fed. Cir. 2005). In any event, Ms. Nguyen has not
sufficiently alleged even on review that the reduction in
grade could not be substantiated. The notice of a pro-
posed reduction in grade cited two specific incidents
where Ms. Nguyen allegedly sought to have her son
NGUYEN v. MSPB 7
transferred rather than being fired. These allegations
were supported by statements from the two directors
involved. Ms. Nguyen has not sufficiently alleged that
the agency knew, or should have known, that there was
no “viable basis” to support her reduction in grade. See
J.A. 4 n.3. If Ms. Nguyen concluded the agency’s position
was unsupported, her remedy was to appeal the reduction
in grade to the MSPB.
Second, Ms. Nguyen argues that she did not have ad-
equate time to decide whether to retire or receive a demo-
tion, and thus she was forced to retire. In situations
where an employee has been forced to make an immediate
decision, such as when an employer threatens an employ-
ee to “resign now, [or the supervisor] will press charges
immediately,” courts have found improper coercion suffi-
cient to render resignations involuntary. Paroczay v.
Hodges, 297 F.2d 439, 440 (D.C. Cir. 1961); see also Mid-
dleton v. Dep’t of Def., 185 F.3d 1374, 1381 (Fed. Cir.
1999). Ms. Nguyen has not alleged that she faced such
circumstances. Rather, she simply alleges that Mr. Banks
demanded a definitive answer as to whether or not she
was retiring. Further, according to Ms. Nguyen’s own
statements, her supervisors told her to take her time in
making a decision and that the choice of whether and
when to resign was hers, and hers alone. 2 The Board did
not err in finding that Ms. Nguyen’s allegations here do
2 Ms. Nguyen alleges that she received Mr. Banks’s
email after she had already turned in her retirement
papers. But according to her own sworn statement, Mr.
Banks and another director came to her office before she
turned in her retirement papers to assure her that she
“could take time to make the decision on whether to quit
or not.” J.A. 54.
8 NGUYEN v. MSPB
not amount to improper coercion rendering her resigna-
tion involuntary.
Lastly, Ms. Nguyen argues that she was not properly
informed that her decision to retire would terminate her
appeal rights, and thus her decision to retire was involun-
tary. In general, an agency is not required to inform an
employee about the ramifications of voluntary decisions,
such as the decision to retire or resign. Williams v. Dep’t
of Agric., 832 F.2d 1259, 1261 (Fed. Cir. 1987). However,
“[a] resignation or retirement is involuntary if it is ob-
tained by agency misinformation or deception.” Coving-
ton v. Dep’t of Health & Human Servs., 750 F.2d 937, 942
(Fed. Cir. 1984). Thus, when an agency has affirmatively
misled an employee, by providing inaccurate information
or by failing to correct inaccurate information regarding
the employee’s rights, the resulting action may be invol-
untary. See id. But Ms. Nguyen does not allege that the
agency here gave her incorrect information. Rather she
argues that her emails indicated that she (incorrectly)
believed that she could still appeal after retiring and that
the agency misled her by not correcting her error. This
allegation, however, is not supported by evidence. Ms.
Nguyen’s emails do not indicate that she believed she
could still appeal after voluntarily retiring. Rather, in the
emails, Ms. Nguyen stated that she was considering
different options, writing that she “intend[ed] to file an
appeal and/or an EEO complaint,” but that she was “also
considering retiring immediately in order to avoid having
[her] record damaged.” J.A. 61. Moreover, the emails
indicate that Ms. Nguyen was represented by counsel,
who presumably could have correctly counseled her on the
ramifications of deciding to retire. Ms. Nguyen’s allega-
tions of deception are not non-frivolous.
Ms. Nguyen has not successfully alleged facts that, if
proven, would demonstrate that her decision to retire was
involuntary. As we have previously said, the “imminence
NGUYEN v. MSPB 9
of a less desirable alternative does not render involuntary
the choice made.” Cruz, 934 F.2d at 1245. Ms. Nguyen,
faced with a reduction in grade, voluntarily decided to
retire rather than appeal her reduction in grade. We
therefore affirm the decision of the board dismissing her
appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.