Terrance Rosales v. Department of the Navy ( 2015 )


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  •                           UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    TERRANCE ROSALES,                               DOCKET NUMBER
    Appellant,                          SF-0752-15-0213-I-1
    v.
    DEPARTMENT OF THE NAVY,                         DATE: April 29, 2015
    Agency.
    THIS FINAL ORDER IS NO NPRECEDENTIAL 1
    Bradley R. Marshall, Charleston, South Carolina, for the appellant.
    Michelle Over, FPO, APO/FPO Pacific, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1        The appellant has filed a petition for review of the initial decision, which
    dismissed this appeal for lack of jurisdiction. Generally, we grant petitions such
    as this one only when: the initial decision contains erroneous findings of material
    fact; the initial decision is based on an erroneous interpretation of statute or
    regulation or the erroneous application of the law to the facts of the case; the
    1
    A nonprecedential order is one that the Board has determined does not add
    sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
    but such orders have no precedential value; the Board and administrative 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
    judge’s rulings during either the course of the appeal or the initial decision were
    not consistent with required procedures or involved an abuse of discretion, and
    the resulting error affected the outcome of the case; or new and material evidence
    or legal argument is available that, despite the petitioner’s due diligence, was not
    available when the record closed. See Title 5 of the Code of Federal Regulations,
    section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
    appeal, and based on the following points and authorities, we conclude that the
    petitioner has not established any basis under section 1201.115 for granting the
    petition for review. Therefore, we DENY the petition for review and AFFIRM
    the initial decision, which is now the Board’s final decision.             5 C.F.R.
    § 1201.113(b).
    ¶2        The agency removed the appellant from his Supervisory Management and
    Program Analyst position at the Marine Corps Air Station in Iwakuni, Japan, on
    charges of sexual harassment, conduct unbecoming a supervisor, and inattention
    to duty, effective November 24, 2014. Initial Appeal File (IAF), Tab 6 at 23-27,
    43-52.   On November 21, 2014, the appellant sent agency officials an email
    message in which he gave notice that he was resigning his position effective that
    day and also requested that the reason set forth on the Standard Form (SF)-50
    form for his resignation state that he was “reassigned 2 for personal reasons.” 
    Id. at 21.
    On November 26, 2014, after the appellant inquired about the status of his
    resignation request, 
    id., a supervisory
    human resources specialist informed him
    that the agency had canceled the SF-50 for the termination action and would
    process one for his resignation in its place, 
    id. at 20.
       However, because the
    appellant’s voluntary resignation was tied to an already proposed and decided
    adverse action based on his misconduct, the specialist told the appellant that the
    resignation SF-50 must reflect that he resigned after receiving written notice of
    2
    The administrative judge presumed, as do we, that the appellant intended to write
    “resigned.” IAF, Tab 10, Initial Decision at 2 n.1.
    3
    the agency’s decision to remove him based on the charges set forth in the decision
    letter. 
    Id. ¶3 In
    his subsequent appeal, the appellant addressed his removal, providing a
    detailed rebuttal to the charges set forth in the agency’s notice of proposed
    removal and decision letter. IAF, Tab 1 at 20-23; see IAF, Tab 6 at 23-29, 43-49.
    But, the appellant only cursorily addressed the voluntariness of his resignation,
    alleging without any explanation or support that the agency coerced his
    resignation because he was “led to believe that if he resigned from his
    employment the separation would be characterized as disciplinary 3 so that it
    would have no effect on future federal service.”          IAF, Tab 1 at 23-24.       The
    administrative judge issued an acknowledgment order informing the appellant of
    what he must show to establish a nonfrivolous allegation of jurisdiction and be
    entitled to the hearing that he requested.       IAF, Tab 2.     In pertinent part, the
    administrative judge informed the appellant that resignations are presumed to be
    voluntary and that his appeal would be dismissed without a hearing unless he
    made allegations of duress, coercion, or misrepresentation supported by facts
    which, if proven, would establish that his resignation was involuntary. 
    Id. at 2.
         The appellant did not respond on the jurisdictional issue. 4
    ¶4         Because he found that the appellant alleged no specific facts that, if proven,
    would support his claim that the agency coerced his resignation, the
    administrative judge dismissed the appeal for lack of jurisdiction, based on the
    3
    The administrative judge presumed that the appellant meant to write here that, if he
    resigned, his separation would not be characterized as disciplinary. IAF, Tab 10, Initial
    Decision at 4 n.2. We agree with the administrative judge’s interpretation of the
    pleading.
    4
    Although the appellant did not respond regarding the Board’s jurisdiction over his
    appeal, he did file a motion to compel discovery and a motion for sanctions, IAF, Tab 9,
    both of which the administrative judge denied in light of his finding on the
    jurisdictional issue, IAF, Tab 10, Initial Decision at 5 n.4. The appellant does not
    challenge the administrative judge’s disposition of these motions in his petition for
    review.
    4
    written record without holding a hearing. IAF, Tab 10, Initial Decision (ID) at
    4-5. In his timely-filed petition for review, the appellant argues for the first time
    that “[h]e only contemplated his resignation if and only if the employer agreed to
    report his removal as a voluntary resignation.” Petition for Review (PFR) File,
    Tab 1 at 6.    The appellant claims that the parties’ oral contract to settle this
    matter is therefore invalid because there was no meeting of the minds. 
    Id. at 5-7.
         The agency responds in opposition to the appellant’s petition for review. PFR
    File, Tab 3.
    ¶5        An employee-initiated action, such as a retirement or resignation, is
    presumed to be voluntary, and thus outside the Board’s jurisdiction.            E.g.,
    SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011).
    However, the Board has long held that an involuntary resignation is tantamount to
    a removal. Spiegel v. Department of the Army, 2 M.S.P.R. 140, 141 (1980). An
    appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal
    of an allegedly involuntary resignation or retirement only if he makes a
    nonfrivolous allegation casting doubt on the presumption of voluntariness.
    Burgess v. Merit Systems Protection Board, 
    758 F.2d 641
    , 643 (Fed. Cir. 1985).
    Nonfrivolous allegations of Board jurisdiction are allegations of fact which, if
    proven, could establish a prima facie case that the Board has jurisdiction over the
    matter at issue. Solomon v. Department of Agriculture, 106 M.S.P.R. 172, ¶ 11
    (2007). Conclusory, vague, or unsupported allegations are insufficient to meet
    the nonfrivolous allegation standard.    E.g., Briscoe v. Department of Veterans
    Affairs, 
    55 F.3d 1571
    , 1573 (Fed. Cir. 1995); Riojas v. U.S. Postal Service,
    88 M.S.P.R. 230, ¶ 3 (2001).
    ¶6          The appellant’s conclusory, unsupported allegations do not constitute
    nonfrivolous allegations of jurisdiction.     Other than his single unsupported
    assertion that the agency coerced his resignation, IAF, Tab 1 at 23-24, the
    appellant simply failed to address the voluntariness of his resignation before the
    record closed below, see 5 C.F.R. § 1201.58; IAF, Tab 2 at 2-3. The fact that an
    5
    employee is faced with the unpleasant choice of either resigning or opposing a
    potential removal action does not rebut the presumed voluntariness of his ultimate
    choice of resignation. Schultz v. U.S. Navy, 
    810 F.2d 1133
    , 1136-37 (Fed. Cir.
    1987). Thus, we agree with the administrative judge that the appellant failed to
    establish jurisdiction over his appeal.
    ¶7        As noted above, the appellant raises his contract law argument for the first
    time in his petition for review. The Board will not consider an argument raised
    for the first time in a petition for review absent a showing that it is based on new
    and material evidence not previously available despite the party’s due diligence.
    Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant
    makes no such showing.       Because everything the appellant alleges on review
    occurred before he filed his appeal, he could have made this argument in his
    appeal below and chose not to do so. Moreover, the record does not bear out the
    appellant’s assertions that the parties attempted to negotiate an oral contract but
    there was no meeting of the minds. PFR File, Tab 1 at 5-11. The record does not
    indicate that the parties actively negotiated a settlement, and, most importantly,
    the email message in which the appellant gave notice of his resignation in no way
    indicates that his choice to do so is contingent on the agency’s acceptance of his
    request that the pertinent SF-50 form state that he did so for personal reasons.
    See IAF, Tab 4 at 21-22. Therefore, even if we were to consider the appellant’s
    arguments on review, they are insufficient to upset the initial decision.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request review of this final decision by the United
    States Court of Appeals for the Federal Circuit. You must submit your request to
    the court at the following address:
    United States Court of Appeals
    for the Federal Circuit
    717 Madison Place, N.W.
    Washington, DC 20439
    6
    The court must receive your request for review no later than 60 calendar
    days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
    27, 2012). If you choose to file, be very careful to file on time. The court has
    held that normally it does not have the authority to waive this statutory deadline
    and that filings that do not comply with the deadline must be dismissed. See
    Pinat v. Office of Personnel Management, 
    931 F.2d 1544
    (Fed. Cir. 1991).
    If you need further information about your right to appeal this decision to
    court, you should refer to the federal law that gives you this right. It is found in
    Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
    Dec. 27, 2012). You may read this law as well as other sections of the United
    States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
    Additional information is available at the court's website, www.cafc.uscourts.gov.
    Of particular relevance is the court's "Guide for Pro Se Petitioners and
    Appellants," which is contained within the court's Rules of Practice, and Forms 5,
    6, and 11.
    If you are interested in securing pro bono representation for your court
    appeal, you may visit our website at http://www.mspb.gov/probono for
    information regarding pro bono representation for Merit Systems Protection
    Board appellants before the Federal Circuit. The Merit Systems Protection Board
    neither endorses the services provided by any attorney nor warrants that any
    attorney will accept representation in a given case.
    FOR THE BOARD:                            ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.