Case: 20-1062 Document: 23 Page: 1 Filed: 04/16/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DENNIS C. MCKEOWN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-1062
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-19-0429-I-1.
______________________
Decided: April 16, 2020
______________________
DENNIS C. MCKEOWN, Richmond, CA, pro se.
DEANNA SCHABACKER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before LOURIE, WALLACH, and HUGHES, Circuit Judges.
PER CURIAM.
Case: 20-1062 Document: 23 Page: 2 Filed: 04/16/2020
2 MCKEOWN v. MSPB
Petitioner Dennis C. McKeown seeks review of a deci-
sion of the Merit Systems Protection Board dismissing his
appeal for lack of jurisdiction because Mr. McKeown re-
signed from federal employment. The Board lacks jurisdic-
tion over a resignation unless the petitioner can show it
was involuntary. Mr. McKeown claims that he resigned
involuntarily due to intolerable work conditions. Because
the Administrative Judge properly concluded that Mr.
McKeown failed to present nonfrivolous allegations of in-
voluntary resignation to establish jurisdiction, we affirm
the Board’s decision.
I
Mr. McKeown was a Supervisory Emergency Manage-
ment Program Specialist within the Response Division, Re-
gion IX, of the Federal Emergency Management Agency, a
section of the Department of Homeland Security. He had
twenty-two years of service with FEMA before his resigna-
tion in 2019. During the time relevant to this appeal, his
job duties included “preparing FEMA responses to natural
disasters” in Region IX (Arizona, California, Hawaii, Ne-
vada, & the Pacific Islands). McKeown v. Dep’t of Home-
land Sec., No. SF-0752-19-0429-I-1, slip op. at 2 (M.S.P.B.
July 30, 2019) (Board Decision).
Starting in 2016, Mr. McKeown reported to FEMA
management that he believed a contractor was billing
FEMA inappropriately, first for incomplete work on a ty-
phoon project and later for duplicative and out-of-scope
work on an earthquake project. He also made whistle-
blower complaints to the DHS Office of Inspector General
in November 2018 and March 2019. According to the Ad-
ministrative Judge, the November 2018 “disclosures are
the basis of [Mr. McKeown’s] whistleblower retaliation de-
fense in his appeal of the agency’s decision to place him on
furlough in December 2018 during the partial government
shutdown.” Board Decision at 3 n.4. DHS OIG declined to
investigate the March 2019 complaint. Because of his
Case: 20-1062 Document: 23 Page: 3 Filed: 04/16/2020
MCKEOWN v. MSPB 3
belief regarding the out-of-scope work on the earthquake
project, Mr. McKeown repeatedly tried unsuccessfully to
determine who approved the work and so refused to com-
plete briefings and presentations for FEMA administra-
tors. He also participated in the investigation of a
colleague’s Equal Employment Opportunity (EEO) com-
plaint.
According to Mr. McKeown, his supervisors retaliated
against him for these activities over the next three years
by creating intolerable working conditions through “har-
assment, isolation from coworkers, removal of job duties,
denial of merit system due process, and an unethically co-
ercive requirement to approve [contractor] tasks outside of
contract scope of work deliverables.” Resp. App. 27. 1 Dur-
ing this time, Mr. McKeown received a five-day suspension
for conduct unbecoming and failure to follow instructions
and an “unacceptable” rating on his 2018 performance re-
view. In May 2019, Mr. McKeown resigned, stating that
the agency’s behavior towards him, including “attempts to
force [him] to take responsibility for” the contractor’s alleg-
edly out-of-scope work, “placed [him] in an impossible eth-
ical position.” Resp. App. 74.
Mr. McKeown appealed to the Board, claiming that his
resignation was involuntary due to the intolerable work
conditions, and requested a hearing. Because resignations
are presumed voluntary and the Board has no jurisdiction
over voluntary resignations, Shoaf v. Dep’t of Agric.,
260
F.3d 1336, 1340 (Fed. Cir. 2001), the Administrative Judge
required Mr. McKeown to make nonfrivolous allegations
that he resigned involuntarily due to duress, coercion, or
1 Both parties filed appendices with their briefs.
“Pet. App.” refers to the Appendix included with the Peti-
tioner’s brief. “Resp. App.” refers to the Supplemental Ap-
pendix included with the Respondent’s brief.
Case: 20-1062 Document: 23 Page: 4 Filed: 04/16/2020
4 MCKEOWN v. MSPB
misrepresentation by the agency before receiving a hear-
ing. Board Decision at 1−4. Mr. McKeown alleged several
ways in which FEMA management retaliated against him:
unfairly assessing his performance, eliminating and re-as-
signing key work responsibilities, and interfering in his re-
lationships with co-workers, subordinate employees, and
partners.
The Administrative Judge held that Mr. McKeown
failed to state a non-frivolous allegation that his resigna-
tion was involuntary and dismissed his case for lack of ju-
risdiction. Board Decision at 12. She acknowledged that
the “allegations illustrate significant disagreements with
[Mr. McKeown’s supervisor] about work assignments, a
feeling of being unfairly evaluated, and a challenging work
environment” as well as Mr. McKeown’s “significant per-
sonal reactions to each of the alleged instances of harass-
ment.”
Id. at 11−12. However, she found Mr. McKeown
provided insufficient specific examples for each allegation
and that there was reason for the agency to take the actions
it had. E.g., id. at 9 (reasoning that “the agency had legit-
imate reasons to reassign the work when the appellant did
not complete it” and that Mr. McKeown’s supervisor “sepa-
rated” him from a subordinate “because of a report that the
appellant harassed” the subordinate). The allegations
therefore did not demonstrate an objectively intolerable
work environment that would “compel a reasonable person
to resign.” Id. at 8, 11. The Administrative Judge’s initial
decision became the final decision of the Board on Septem-
ber 3, 2019.
Mr. McKeown timely appealed. We have jurisdiction
under
5 U.S.C. § 7703(b)(1)(A) and
28 U.S.C. § 1295(a)(9).
Case: 20-1062 Document: 23 Page: 5 Filed: 04/16/2020
MCKEOWN v. MSPB 5
II
A
The Board lacks jurisdiction over voluntary resigna-
tions or retirements. Shoaf, 260 F.3d at 1341. The peti-
tioner therefore has the burden of showing that “his or her
resignation or retirement was involuntary and thus tanta-
mount to forced removal.” Trinkl v. Merit Sys. Prot. Bd.,
727 F. App’x 1007, 1009 (Fed. Cir. 2018). Cf. Terban v.
Dep’t of Energy,
216 F.3d 1021, 1024 (Fed. Cir. 2000).
One way for the petitioner to rebut the presumption of
voluntariness is to show that the resignation was the prod-
uct of coercive acts by the agency, such as intolerable work-
ing conditions. Shoaf, 260 F.3d at 1341; Staats v. U.S.
Postal Serv.,
99 F.3d 1120, 1124 (Fed. Cir. 1996). But “the
doctrine of coercive involuntariness is a narrow one.”
Staats,
99 F.3d at 1124 (describing limited scenarios where
a resignation was involuntary, like when it was “induced
by a threat to take disciplinary action that the agency
knows could not be substantiated” or where the agency at-
tempts to force the employee to quit, without “any legiti-
mate agency purpose”). We objectively consider the totality
of the circumstances to determine whether “a reasonable
employee confronted with the same circumstance would
feel coerced into resigning.” Shoaf, 260 F.3d at 1342 (quot-
ing Middleton v. Dep’t of Defense,
185 F.3d 1374, 1379
(Fed. Cir. 1999)).
“Whether the [B]oard had jurisdiction to adjudicate a
case is a question of law, which we review de novo.” Forest
v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995).
We review the Board’s factual findings affecting the juris-
dictional inquiry for substantial evidence. Lentz v. Merit
Sys. Prot. Bd.,
876 F.3d 1380, 1384 (Fed. Cir. 2017).
B
On appeal, Mr. McKeown argues that the Administra-
tive Judge committed several errors in her jurisdictional
Case: 20-1062 Document: 23 Page: 6 Filed: 04/16/2020
6 MCKEOWN v. MSPB
determination: (1) failing to consider the “potential legal
jeopardy [Mr. McKeown faced] for participation in fraud”
had he not resigned, Pet. Br. 5–8; (2) determining that no
one forced him to place his name on assignments, particu-
larly the earthquake project briefing, and finding that the
earthquake project briefing was not a condition of employ-
ment; and (3) ignoring the “pattern of retaliation against
[him]” for reporting what he believed to be fraudulent bill-
ing for work outside of the earthquake project’s contract
scope, Pet. Br. 4. We reject these arguments.
First, though Mr. McKeown now argues that a reason-
able employee faced with potential personal liability for
fraud would resign rather than simply “stand and fight,”
Pet. Br. 5–6, 10–11; Mem. in Lieu of Oral Arg. 3−4, he did
not argue this before the Administrative Judge. He alleged
only that he was “not willing to compromise his personal
integrity and public trust responsibility by placing his
name on fraudulent [contractor] products as a condition of
employment with FEMA.” Board Decision at 10; Resp.
App. 56. We consider this argument waived. 2
Second, we see no error in the Administrative Judge’s
conclusions: that the project briefings were not a condition
of employment and that Mr. McKeown failed to nonfrivo-
lously allege that his supervisor’s actions were coercive.
Board Decision at 9−12. Indeed, Mr. McKeown repeatedly
refused to complete assigned briefings for the earthquake
project and received an “unacceptable” performance rating
for 2018, yet remained employed with no pending
2 And even if the argument was not waived, we find
it objectively implausible for Mr. McKeown to fear personal
legal liability for presenting a “fraudulent claim for pay-
ment or approval,”
31 U.S.C. § 3729(a)(1)(A), based on cre-
ating or presenting a project status update to internal
FEMA stakeholders, especially when he had already re-
ported his suspicions through formal channels.
Case: 20-1062 Document: 23 Page: 7 Filed: 04/16/2020
MCKEOWN v. MSPB 7
disciplinary action when he resigned. And in 2019, the
earthquake project presentation originally assigned to Mr.
McKeown was reassigned to another employee.
Third, the fact that the Administrative Judge did not
explicitly reference Mr. McKeown’s April 2019 whistle-
blower case was not error. An Administrative Judge need
not explicitly address all of a petitioner’s allegations or ev-
idence in her opinion: Omission does not indicate a lack of
consideration. See Marques v. Dep’t of Health & Human
Servs.,
22 M.S.P.R. 129, 132 (M.S.P.B. 1984) aff’d,
776 F.2d
1062 (Fed. Cir. 1985). Regardless, the decision here re-
flects an understanding of the entire timeline of events, in-
cluding Mr. McKeown’s December 2016 and April 2019
complaints regarding the allegedly improper contractor
work and billing.
Reviewing the record, we have no doubt that Mr.
McKeown had a fraught working relationship with his di-
rect supervisor and other FEMA Region IX administrators.
However, a stressful working environment does not equate
to coercion. Brown v. U.S. Postal Serv.,
115 M.S.P.R. 609,
616−17 (M.S.P.B. 2011) (reasoning that a finding of coer-
cion was not supported by an appellant’s allegations of,
among other things, her supervisors’ “increasing demands
that she perceived as trying to cause her to fail” and
“groundless[] critic[ism]” of her work); Miller v. Dep’t of
Def.,
85 M.S.P.R. 310, 322 (M.S.P.B. 2000) (“Dissatisfaction
with work assignments, a feeling of being unfairly criti-
cized, or difficult or unpleasant working conditions are gen-
erally not so intolerable as to compel a reasonable person
to resign.”).
We have considered Mr. McKeown’s remaining argu-
ments and find them unpersuasive. For the reasons ex-
plained above, we affirm the Board’s decision.
AFFIRMED
No costs.
