Harvin v. MSPB , 666 F. App'x 914 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARTHA J. HARVIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2016
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0432-14-0154-B-1.
______________________
Decided: December 13, 2016
______________________
MARTHA J. HARVIN, Washington, DC, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
Before O’MALLEY, WALLACH, and TARANTO, Circuit Judg-
es.
PER CURIAM.
2 HARVIN v. MSPB
Petitioner Martha J. Harvin appeals the final decision
of the Merit Systems Protection Board (“MSPB”) dismiss-
ing her appeal for lack of jurisdiction. See Harvin v. Dep’t
of Agric., No. DC-0432-14-0154-B-1, 2016 WL 910548, at
¶ 1 (M.S.P.B. Mar. 9, 2016). We affirm.
BACKGROUND
Ms. Harvin is a former employee of the U.S. Depart-
ment of Agriculture (“the Agency”). Resp’t’s App. 59. Due
to her “unacceptable” performance and subsequent
“fail[ure] to successfully complete” a performance im-
provement plan, the Agency informed Ms. Harvin that
she would be removed from her position. Id. at 59, 71.
On October 24, 2013, Ms. Harvin met with representa-
tives of the Agency, who provided Ms. Harvin with the
Agency’s written decision on removal, effective that day,
and explained that Ms. Harvin had the option to resign in
lieu of removal. Id. at 105, 107–09. Later that day, Ms.
Harvin resigned from her position. Id. at 110.
Ms. Harvin appealed her removal to the MSPB, and
the administrative judge (“AJ”) issued an initial decision
dismissing Ms. Harvin’s appeal for lack of jurisdiction to
adjudicate voluntary resignations. Id. at 40−47. Ms.
Harvin petitioned for MSPB review of the AJ’s initial
decision. Id. at 122–27. The MSPB determined that,
inter alia, Ms. Harvin’s “allegation that she attempted to
withdraw her resignation [wa]s sufficient to constitute a
nonfrivolous allegation that her resignation was involun-
tary” and, thus, remanded to the AJ for a hearing on this
issue. See Harvin v. Dep’t of Agric., No. DC-0432-14-0154-
I-1, 2015 WL 500793, at ¶ 8 (M.S.P.B. Feb. 5, 2015).
On remand, the AJ conducted a hearing on jurisdic-
tion, weighed the evidence and the credibility of the
parties’ witnesses, and issued another initial decision
finding that Ms. Harvin had failed to “communicate[] any
desire to withdraw her resignation prior to its effective
date” and that the Agency did not “refuse[], den[y], or
HARVIN v. MSPB 3
otherwise fail[] to act upon any such request.” Resp’t’s
App. 21. Therefore, the AJ dismissed her appeal for lack
of jurisdiction. Id. Ms. Harvin filed a petition for MSPB
review, and the MSPB denied the petition and reinstated
the AJ’s second decision as the MSPB’s final decision. See
Harvin, 2016 WL 910548, at ¶ 1.
Ms. Harvin timely appeals. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review
We must affirm final decisions of the MSPB unless
they are, inter alia, “not in accordance with law” or “un-
supported by substantial evidence.” 5 U.S.C.
§ 7703(c)(1), (3) (2012). We review determinations of the
MSPB’s jurisdiction de novo as questions of law and
underlying factual findings for substantial evidence.
Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed.
Cir. 2008).
II. The MSPB Properly Held That It Lacked Jurisdiction
Because Ms. Harvin Did Not Rescind Her Resignation
“An employee . . . may submit an appeal to the
[MSPB] from any action which is appealable to the
[MSPB] under any law, rule, or regulation.” 5 U.S.C.
§ 7701(a). The MSPB’s jurisdiction “is not plenary,” Van
Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144,
1147 (Fed. Cir. 1999); instead, it is “limited to those
matters over which it has been given jurisdiction by law,
rule, or regulation,” 5 C.F.R. § 1201.3(a) (2016). To avoid
dismissal for lack of jurisdiction, an employee must
“make[] non-frivolous claims of [MSPB] jurisdiction” to be
entitled to a hearing on jurisdiction and then “must prove
jurisdiction by a preponderance of the evidence” at the
hearing. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
1344 (Fed. Cir. 2006) (en banc); see 5 C.F.R.
§ 1201.56(b)(2)(i)(A). The MSPB is authorized to hear
4 HARVIN v. MSPB
appeals related to removals, and “an involuntary resigna-
tion . . . is considered to be a removal . . . .” 5 C.F.R.
§ 1201.3(a)(1). Conversely, “[a]n employee who voluntari-
ly resigns or retires has no right to appeal to the MSPB.”
Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340–41 (Fed. Cir.
2001) (citation omitted).
The sole issue on appeal is whether substantial evi-
dence supports the MSPB’s finding that Ms. Harvin failed
to rescind her resignation before it became effective and,
thus, properly determined that it lacked jurisdiction over
her appeal. 1 Federal employees generally may rescind
their resignation “at any time before it has become effec-
tive,” 5 C.F.R. § 715.202(b), and the parties do not dispute
that Ms. Harvin resigned from her position effective
October 24, 2013, Resp’t’s App. 110 (“Let this serve as my
letter of resignation effective October 24, 2013 . . . .”). Ms.
Harvin thus must demonstrate that she rescinded her
resignation before October 24, 2013. Substantial evidence
1 Before the MSPB, Ms. Harvin initially alleged
that her resignation was involuntary because the Agency
(1) subjected her to “duress, coercion, and misrepresenta-
tion”; (2) “made misleading statements on which [she]
relied to [her] detriment”; (3) “made [her] working condi-
tions . . . difficult because of discrimination”; and
(4) denied her request to rescind her resignation “without
a valid reason.” Resp’t’s App. 102. The MSPB deter-
mined that the first three of these allegations were frivo-
lous and, thus, were “insufficient to meet the nonfrivolous
allegation standard to establish [MSPB] jurisdiction.”
Harvin, 2015 WL 500793, at ¶ 6. Ms. Harvin’s arguments
on appeal to this court are limited to her alleged attempts
to rescind her resignation. See generally Appellant’s Br.
Therefore, our analysis is similarly limited to that issue
alone.
HARVIN v. MSPB 5
supports the MSPB’s finding that Ms. Harvin failed to
make such a showing.
Ms. Harvin alleges that the MSPB committed two er-
rors. First, Ms. Harvin avers that the Agency’s ICom-
plaint System records (Resp’t’s App. 94–101) “did not
include . . . critical information,” which purportedly would
have demonstrated that she rescinded her resignation,
and that the “MSPB failed to take into account the fact
that [the Agency] never supplied a copy” of these records.
Appellant’s Br. 3. Although the MSPB determined that
Ms. Harvin had failed to raise her argument as to these
additional records below, it also found that the allegedly
“crucial information” was “not of sufficient weight to
warrant a different outcome from that of the initial deci-
sion.” Harvin, 2016 WL 910548, at ¶ 10 (citation omit-
ted). The IComplaint System records provide only brief
descriptions of a series of meetings Ms. Harvin had with
Agency representatives; they do not mention her resigna-
tion or use any language that could be construed as a
discussion related to rescinding her resignation. Resp’t’s
App. 96–98. Moreover, Ms. Harvin has not provided
supporting documentation related to the allegedly “crucial
information” to this court, and unsubstantiated allega-
tions do not equal evidence. See Lucent Techs., Inc. v.
Gateway, Inc., 580 F.3d 1301, 1327 (Fed. Cir. 2009)
(“[S]peculation does not constitute substantial evidence.”
(internal quotation marks and citation omitted)). We
affirm the MSPB’s determination that these records do
not undermine the second decision by the AJ.
Second, Ms. Harvin contends that the MSPB failed to
properly weigh the testimony of parties’ witnesses be-
cause her witness’s testimony establishes that she at-
tempted to rescind her resignation. Appellant’s Br. 3−4.
Following the hearing on jurisdiction, the AJ summarized
the testimony of each witness and then weighed the
credibility of the testimony pursuant to the factors set
forth in Hillen v. Department of the Army, 35 M.S.P.R.
6 HARVIN v. MSPB
453, 458 (1987). See Resp’t’s App. 15–21; see also Haebe v.
Dep’t of Justice, 288 F.3d 1288, 1309 (Fed. Cir. 2002)
(citing approvingly an AJ’s use of the Hillen factors for
credibility determinations). Based on this analysis, the
AJ identified record evidence and two witnesses’ testimo-
ny as support for its finding that Ms. Harvin had not
rescinded her resignation. Resp’t’s App. 19–20. In con-
trast, the AJ found that Ms. Harvin’s witness’s testimony
“merely supports [Ms. Harvin]’s claim that she tried to
reach” an Agency representative, not that she attempted
to rescind her resignation. Id. at 20. Neither Ms. Harvin
nor the court has identified any record evidence that
warrants a different conclusion. Therefore, we find that
the MSPB properly weighed the evidence and applied the
Hillen factors and that substantial evidence supports the
MSPB’s determination that Ms. Harvin failed to rescind
her resignation.
CONCLUSION
We have considered Ms. Harvin’s remaining argu-
ments and find them unpersuasive. For these reasons,
the final decision of the Merit Systems Protection Board is
AFFIRMED
COSTS
Each party shall bear its own costs.