Isabel Rios-Rivera v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISABEL RIOS-RIVERA, DOCKET NUMBER
Appellant, NY-0752-16-0316-I-1
v.
DEPARTMENT OF VETERANS DATE: November 17, 2022
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Marcos Gabriel Morales-Sbert, Esquire, San Juan, Puerto Rico, for the
appellant.
Ana M. Margarida, San Juan, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
treated her separation as a removal action and affirmed that action . For the
reasons discussed below, we GRANT the appellant’s petition for review ,
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administr ative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
VACATE the initial decision, and REMAND the case to the field office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 On August 24, 2016, the appellant received notice of the agency’s decision
to remove her effective August 26, 2016, from her Social Worker position, based
on seven charges of alleged misconduct. Initial Appeal File (IAF), Tab 1 at 4,
Tab 9 at 13-15. The appellant resigned, effective August 25, 2016, after
receiving notice of the agency’s decision to remove her. IAF, Tab 9 at 13-15,
Tab 15 at 13.
¶3 The appellant filed a Board appeal of the removal decision and did not
request a hearing. IAF, Tab 1 at 1-6. She raised claims of harmful procedural
error and a violation of her due process rights. IAF, Tab 10 at 3, Tab 12 at 2,
Tabs 14, 19.
¶4 Based on the written record, the administrative judge issued an initial
decision treating the appellant’s separation as a removal action, which she
affirmed. IAF, Tab 22, Initial Decision (ID) at 2, 6, 25. Specifically, the
administrative judge sustained the charged misconduct, found a nexus between
the sustained misconduct and the efficiency of the service, and determined that
the penalty of removal was within the tolerable limits of reasonableness. ID
at 7-18, 20-25. She further found that the appellant failed to prove her
affirmative defense of harmful procedural error. ID at 18 -20.
¶5 The appellant has filed a petition for review challenging the initial decision
and reasserting a violation of her due process rights. Petition for Review (PFR)
File, Tab 1. The agency has filed a response opposing her petition. PFR File,
Tab 3.
3
DISCUSSION OF ARGUMENTS ON REVIEW
This appeal must be remanded for a jurisdictional determination.
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears the
burden of proving by preponderant evidence the Board’s jurisdiction over her
appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). Generally, an appellant is entitled to a
jurisdictional hearing if she raises nonfrivolous allegations 2 of Board jurisdiction.
Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 6 (2013).
¶7 There remains a question whether the Board has jurisdiction over this
appeal. Although the parties have not raised this issue, PFR File, Tabs 1, 3, the
issue of the Board’s jurisdiction may be raised at any time during a proceedi ng,
Morgan v. Department of the Navy, 28 M.S.P.R. 477, 478 (1985). Further, the
Board has inherent authority to determine whether a matter is withi n its
jurisdiction. Lloyd v. Small Business Administration, 96 M.S.P.R. 518, ¶ 16
(2004). Therefore, we find that it is appropriate to raise the jurisdictional issue
here.
¶8 The administrative judge found that, because the appellant resigned 1 day
before the scheduled effective date of her removal, the Board has jurisdiction to
adjudicate the agency’s removal action regardless of the voluntariness of her
resignation. ID at 6. In so finding, the administrative judge cited 5 U.S.C.
§ 7701(j) and Mays v. Department of Transportation, 27 F.3d 1577, 1579-81
(Fed. Cir. 1994). ID at 6. Section 7701(j) provides:
In determining the appealability under this section of any case
involving a removal from the service (other than the removal of a
reemployed annuitant), neither an individual’s status under any
retirement system established by or under Federal statute nor any
2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
election made by such individual under any such system may be
taken into account.
The plain meaning of this provision is that the Board may not base its
jurisdictional determination in a removal appeal on whether the appellant retired
when faced with a final removal decision. Paula v. Social Security
Administration, 119 M.S.P.R. 138, ¶ 12 (2013). In Mays, 27 F.3d at 1579-81, our
reviewing court held that the Board had jurisdiction under 5 U.S.C. § 7701(j) over
the appellant’s removal appeal when she retired on the effective date of her
removal.
¶9 However, we find that 5 U.S.C. § 7701(j) and the holding in Mays do not
apply to the instant appeal because the appellant here did not retire but resigned
prior to the effective date of her removal. IAF, Tab 13 at 4, Tab 15 at 13;
Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 41 (2009); see,
e.g., Quiet v. Department of Transportation, 104 M.S.P.R. 292, ¶¶ 5, 9-10 (2006)
(remanding the appellants’ appeals for the administrative judge to adjudicate
them as involuntary resignation/constructive removal appeals when the record
reflected that the appellants were separated from service as a result of their
resignations prior to the effective date of the agency’s removal actions) . Thus,
we find that the administrative judge erred in adjudicating the appellant’s
resignation as a removal, and we vacate the initial decision.
¶10 An employee-initiated action, such as a resignation, is presumed to be
voluntary and thus outside the Board’s jurisdiction. Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). However, an employee may establish
Board jurisdiction over an involuntary resignation as a constructive removal by
proving that she lacked a meaningful choice in the matter and the agency’s
wrongful actions deprived her of that choice. Bean v. U.S. Postal Service,
120 M.S.P.R. 397, ¶¶ 7-8, 11 (2013). An employee can establish involuntariness
by proving, for example, that the agency obtained the resignation through duress,
coercion, misinformation, or deception. Searcy, 114 M.S.P.R. 281, ¶ 12;
5
Baldwin, 111 M.S.P.R. 586, ¶ 15. The fact that an employee is faced with the
unpleasant choice of resigning or being subject to removal for cause does not
rebut the presumed voluntariness of her ultimate choice of resignation. Schultz v.
U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987). However, “[i]f an employee
can show that the agency knew [or should have known] that the reason for the
threatened removal could not be substantiated, the threatened action by the
agency is purely coercive.” Id. at 1136-37. Moreover, intolerable working
conditions may render an action involuntary if the employee demonstra tes that the
agency engaged in a course of action that made working conditions so difficult or
unpleasant that a reasonable person in that employee’s position would have felt
compelled to resign. Searcy, 114 M.S.P.R. 281, ¶ 12.
¶11 Here, the administrative judge did not issue a jurisdictional notice, and
neither the initial decision nor the agency’s submissions put the appellant on
notice that she might be required to prove Board jurisdiction over her resignation
as a constructive removal. IAF, Tabs 9, 15; see Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an
appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue). Therefore, we remand this appeal for the
administrative judge to provide the appellant with notice of the jurisdictional
requirements described above and an opportunity to establish jurisdiction. See,
e.g., Burgess, 758 F.2d at 643-44. After apprising the appellant of the proper
jurisdictional issues, the administrative judge shall provide her with an
opportunity to request a jurisdictional hearing and to submit evidence and
argument on those issues. 3
3
In her petition for review, the appellant reasserts her argument that the agency
violated her due process rights. PFR File, Tab 1 at 1-11; IAF, Tab 12 at 2, Tab 14 at 6,
Tab 19. She also disputes the administrative judge’s findin gs regarding the charged
misconduct, hearsay evidence, harmful procedural error, nexus, and the removal
penalty. PFR File, Tab 1. We find it is inappropriate to decide these issues at this time
when it is unclear that these claims are within the Board’s jurisdiction. See Evans v.
6
ORDER
¶12 For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
Department of Veterans Affairs, 119 M.S.P.R. 257, ¶ 5 (2013) (stating that the Board
first must resolve the threshold issue of jurisdiction before proceeding to the merits of
an appeal). The appellant may reraise her arguments on remand to the extent they are
relevant in a constructive removal appeal.