Delapenia v. Merit Systems Protection Board , 409 F. App'x 332 ( 2010 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
GABRIEL MAIKA’I DELAPENIA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF THE NAVY,
Intervenor.
__________________________
2010-3116
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0752090980-I-1.
___________________________
Decided: November 9, 2010
___________________________
GABRIEL MAIKA’I DELAPENIA, of Kapolei, Hawaii, pro
se.
CALVIN M. MORROW, Attorney, Office of General
Counsel, Merit Systems Protection Board, of Washington,
DC for respondent. With him on the brief were JAMES M.
DELAPENIA v. MSPB 2
EISENMAN, General Counsel and KEISHA DAWN BELL,
Deputy General Counsel.
KENT C. KIFFNER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for intervenor. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM,
Assistant Director.
__________________________
Before RADER, Chief Judge, LOURIE, and DYK, Circuit
Judges.
PER CURIAM.
Gabriel Maika’I Delapenia (“Delapenia”) petitions for
review of a final decision of the Merit Systems Protection
Board (“Board”). The Board dismissed Delapenia’s appeal
for lack of jurisdiction. Delapenia v. Dep’t of the Navy, No.
SF0752090980-I-1 (M.S.P.B. Mar. 17, 2010) (“Final Deci-
sion”). We affirm.
BACKGROUND
On June 3, 2009, Delapenia resigned from his position
as a Police Officer at Naval Station Pearl Harbor, in Pearl
Harbor, Hawaii. He claims that his resignation was
involuntary and that the Board accordingly had jurisdic-
tion. The background of this dispute is as follows.
As confirmed by video surveillance, Delapenia and
several other officers drove government owned vehicles to
a Denny’s restaurant located outside of their patrol areas
while on duty the night of December 15, 2008. When
interviewed regarding the matter by Captain Giddens of
the Naval Security Station on December 20, 2008, Delap-
enia executed a sworn statement denying he had visited
3 DELAPENIA v. MSPB
Denny’s on December 15 and denying he knew of any
officers who visit the restaurant while on duty. Delapenia
reaffirmed his statement when interviewed on January 5,
2009, by an investigator for the Office of the Inspector
General (“Inspector General”). The agency contended
that Delapenia’s statements were knowing falsifications
and thus grounds for removal. Delapenia was issued a
notice of proposed removal on April 27, 2009, for misuse of
a government vehicle and falsification. On June 3, 2009,
Delapenia resigned pursuant to a Memorandum of
Agreement under which he agreed that his resignation
was voluntary and waived his right to appeal. The agency
agreed that “neither Mr. Delapenia’s SF-50 nor his Offi-
cial Personnel Folder will indicate that he is in possession
of a notice of proposed removal, and his SF-50 will state
that he resigned for personal reasons.” Resp’t’s App. 22.
Despite this agreement, Delapenia filed an appeal to
the Board. Delapenia contended that his resignation was
involuntary due to acts of coercion and misrepresentation
by the agency. Finding that Delapenia failed to make a
non-frivolous allegation of involuntariness, the adminis-
trative judge (“AJ”) declined to grant an evidentiary
hearing and dismissed the case for lack of jurisdiction.
Delapenia v. Dep’t of the Navy, No. SF0752090980-I-1, slip
op. at 3-6 (M.S.P.B. Dec. 10, 2009) (“Initial Decision”).
The Board denied Delapenia’s petition for review, and the
AJ’s decision became the final decision of the Board. In
denying review, the full Board nonetheless addressed the
merits of Delapenia’s arguments. Final Decision, at 2 n.*.
Delapenia timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Voluntary resignations are beyond the Board’s juris-
diction, Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
DELAPENIA v. MSPB 4
1328 (Fed. Cir. 2006) (en banc), but the Board has juris-
diction when a resignation was “involuntary and thus
tantamount to forced removal.” Shoaf v. Dep’t of Agric.,
260 F.3d 1336, 1341 (Fed. Cir. 2001). To be entitled to a
hearing, Delapenia was required to make a non-frivolous
allegation that his resignation was involuntarily because
it resulted from the agency’s (1) misrepresentations, or (2)
coercion. Terban v. Dep’t of Energy, 216 F.3d 1021, 1024
(Fed. Cir. 2000). Delapenia was also required to support
these allegations with evidence, as “[n]on-frivolous allega-
tions cannot be supported by unsubstantiated speculation
in a pleading submitted by petitioner.” Khan v. Dep’t of
Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) (quoting
Dorrall v. Dep’t of the Army, 301 F.3d 1375, 1380 (Fed.
Cir. 2002), overruled on other grounds by Garcia, 437 F.3d
at 1322). We review de novo whether an appellant has
made non-frivolous allegations of fact sufficient to estab-
lish Board jurisdiction. Coradeschi v. Dep’t of Homeland
Sec., 439 F.3d 1329, 1331 (Fed. Cir. 2006).
Delapenia contends he made a non-frivolous allega-
tion that the agency knew or should have known it lacked
substantiation for its falsification charge; he asserts there
was no evidence that he made false statements knowingly
or intentionally. A threat of adverse action is coercive if
the agency knows or should know that it cannot be sub-
stantiated. Schultz v. U.S. Navy, 810 F.2d 1133, 1136
(Fed. Cir. 1987). Delapenia’s argument is unsupported.
“In establishing an employee’s intention to deceive or
mislead the agency, circumstantial evidence may be
considered.” Kumferman v. Dep’t of the Navy, 785 F.2d
286, 290 (Fed. Cir. 1986). Delapenia executed a sworn
statement on December 20 in which he falsely denied
going to Denny’s on December 15, even though there was
surveillance footage to the contrary. The short time
between the event and his statement is strong circum-
5 DELAPENIA v. MSPB
stantial evidence from which the agency could have
reasonably concluded that Delapenia’s falsity was inten-
tional. Moreover, even if he was mistaken as to which
night he was at the restaurant, the agency could have
reasonably found that Delapenia was knowingly untruth-
ful when, despite visiting Denny’s with other officers five
days prior, he claimed to not “have any knowledge of who
may go there on duty.” Resp’t’s App. 17. Similarly,
circumstantial evidence supports the agency’s finding that
Delapenia was knowingly untruthful when he told an
Inspector General investigator on January 5—less than a
month after the incident—that the last time he visited
Denny’s in a patrol car was “a long time ago when I was
in the FTO program.” Intervenor’s App. 37. Thus, the
Board did not err in determining that Delapenia failed to
present a non-frivolous allegation that the agency lacked
a reasonable basis for a removal action based on the
falsification charge.
Delapenia next argues the Board improperly relied on
his false statement because he was coerced into respond-
ing by the threat of removal for not cooperating. This
same claim was rejected in LaChance v. Erickson, 522
U.S. 262 (1998). The Supreme Court held in LaChance
that a federal agency may sanction an employee for
making false statements to investigators regarding em-
ployment-related misconduct, because employees “may
decline to answer the question[s], or answer [them] hon-
estly, but [they] cannot with impunity knowingly and
willfully answer with a falsehood.” Id. at 265, 268 (cita-
tion omitted). Delapenia had a choice—he could (1) not
answer, (2) answer truthfully, or (3) answer untruthfully.
That Delapenia might have faced termination if he failed
to answer is irrelevant, because having chosen to answer,
LaChance required him to answer truthfully. If Delap-
enia believed the agency could not properly compel him to
DELAPENIA v. MSPB 6
answer, he could have raised this issue by declining to
answer.
For the first time on appeal, Delapenia argues his res-
ignation was involuntary because the agency failed to
inform him of his right to appeal a removal action to the
Board. Even if the issue had been properly raised, the
agency had no duty to inform Delapenia of a right to
appeal because it had not yet taken adverse action
against him, and an appeal is available only to employees
“against whom an action is taken.” 5 U.S.C. § 7513(d).
Similarly, 5 C.F.R. § 752.404(f) (2009) only required the
agency to provide notice of appeal rights “at or before the
time the action will be effective.” Since Delapenia re-
signed before being terminated, there was no requirement
that he be notified of appeal rights. Moreover, in signing
the Memorandum of Agreement which waived his appeal
rights, Delapenia was in fact placed on notice that an
appeal process existed.
Finally, Delapenia contends the agency misrepre-
sented its authority to provide him with a clean record,
because (1) the agency was required to retain his notice of
proposed removal pursuant to 5 U.S.C. § 7513(e), 5 C.F.R.
§ 752.606, and the Office of Personnel Management Guide
to Processing Personnel Actions 31-5; (2) the agency in
fact retained his notice of proposed removal, which it
provided to the Board; and (3) he has since applied for
numerous federal jobs without success. Even if this issue
had been properly raised, nothing in the Memorandum of
Agreement required the agency to destroy the notice of
proposed removal; it merely required that “neither Mr.
Delapenia’s SF-50 nor his Official Personnel Folder will
indicate that he is in possession of a notice of proposed
removal, and his SF-50 will state that he resigned for
personal reasons.” Resp’t’s App. 22. The agency listed
the reason for resignation as personal on his SF-50, and
7 DELAPENIA v. MSPB
Delapenia has presented no evidence that the agency
retained the notice of proposed removal in his Official
Personnel Folder, and not some other file. There has been
no showing that the agency lacked authority to enter into
the settlement or that it violated the terms of the agree-
ment.
Because Delapenia failed to make a non-frivolous al-
legation that his resignation was involuntary, the Board
did not err in finding it lacked jurisdiction over his ap-
peal.
AFFIRMED
COSTS
No costs.