Robinson v. Merit Systems Protection Board ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DENISE L. ROBINSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3176
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-0580-I-1.
______________________
Decided: January 13, 2015
______________________
DENISE L. ROBINSON, of Fredericksburg, Virginia, pro
se.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before WALLACH, TARANTO, and CHEN, Circuit Judges.
2 ROBINSON v. MSPB
PER CURIAM.
Denise Robinson petitions for review of the final deci-
sion of the Merit Systems Protection Board (Board) adopt-
ing the initial decision of the administrative judge (AJ) as
the Board’s final decision. The AJ dismissed Ms. Robin-
son’s appeal for lack of jurisdiction because Ms. Robinson
failed to make non-frivolous allegations that her resigna-
tion, made pursuant to a voluntary settlement agreement,
was the product of coercion, duress, or misrepresentation.
Because we agree that the Board lacks jurisdiction, we
affirm.
BACKGROUND
Ms. Robinson worked for the Department of the Inte-
rior in the National Park Service (Agency) as a Human
Resources Assistant. On March 7, 2007, she and the
Agency entered into an equal employment opportuni-
ty (EEO) resolution agreement resolving a discrimination
complaint she had filed against the Agency. The Agency
agreed to reassign Ms. Robinson from her position in
Washington, District of Columbia, to the Mather Training
Center in Harpers Ferry, West Virginia. Ms. Robinson in
turn agreed to withdraw her complaint and to resign from
her position at the Agency no later than March 13, 2009.
On May 10, 2013, Ms. Robinson filed an appeal with
the Board contending that the Agency wrongly forced her
to resign from service. In doing so, she registered as an e-
filer with the Board’s e-Appeal system. She contended
that the Agency failed to honor its obligations under the
settlement agreement and refused to accept her multiple
attempts to rescind her agreement to resign.
On May 15, 2013, the AJ electronically issued an
acknowledgement order advising Ms. Robinson that
resignation actions are presumed to be voluntary and
thus, not within the Board’s jurisdiction. The AJ advised
Ms. Robinson that her appeal would be dismissed unless
ROBINSON v. MSPB 3
she amended her petition to allege that the resignation
was in effect involuntary due to duress, coercion, or
misrepresentation by the Agency. The AJ ordered Ms.
Robinson to file such evidence and argument by May 30,
2013, 15 calendar days from the date of the order.
On May 24, 2013, Ms. Robinson submitted two docu-
ments to the Board: a SF-50 Notification of Personnel
Action which states that she voluntarily resigned; and a
final agency decision dated August 6, 2008, which stated
that the Agency had complied with the terms of the
settlement agreement. The Agency filed a motion to
dismiss and provided a copy of the resolution agreement.
On June 14, 2013, the AJ issued its Initial Decision
granting the Agency’s motion. The AJ held that the
Board lacked jurisdiction over Ms. Robinson’s action in
part because Ms. Robinson failed to raise a non-frivolous
allegation that her resignation was involuntary. The AJ
noted that the evidence of record stated her resignation
was voluntary, and found that Ms. Robinson did not
assert that her resignation was the product of coercion,
duress or misrepresentation on the part of the Agency.
Ms. Robinson filed a petition for review with the
Board on June 25, 2013, arguing for the first time that
Agency representatives obtained her assent to the resolu-
tion agreement through misrepresentation and coercion.
She submitted argument and evidence contending that
the Agency fraudulently obtained her resignation by
claiming it would otherwise refuse to reassign her and
that the agreement was void because the agency breached
its terms, thus voiding her obligation to resign.
Ms. Robinson contended that these arguments had
not been submitted before the record closed because she
was unaware of the AJ’s order and deadline to submit
evidence and argument. She alleged that when she
attempted to access the May 15, 2013, acknowledgement
order on the e-Appeal system, she was met with a mes-
4 ROBINSON v. MSPB
sage that it was “temporarily unavailable.” Accordingly,
she contended that her May 24, 2013, submission of
documents was made to complete her appeal, and not in
response to the acknowledgement order. She also con-
tended that on June 11, 2013, she called the Northeastern
Regional office (where she filed her appeal) to inquire
about the status of her case and was informed for the first
time that her case had been transferred. She then called
the Washington Regional Office (where her appeal was
docketed after transfer) to confirm her case had been
transferred.
The Board denied Ms. Robinson’s petition for review.
In affirming the AJ’s decision, the Board declined to
consider Ms. Robinson’s new arguments regarding the
involuntariness of her resignation. Because the argu-
ments were not previously presented to the AJ, the Board
stated it would not consider them absent a showing that
they were based on new and material evidence not previ-
ously available despite the party’s due diligence, citing
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980), Avansino v. U.S. Postal Serv., 3 M.S.P.R. 211, 214
(1980), and 5 C.F.R. § 1201.115(d). The Board found that
Ms. Robinson’s new evidence significantly predated her
appeal. The Board also found unavailing Ms. Robinson’s
explanation for the untimeliness of her new arguments.
The Board noted that as an e-filer, Ms. Robinson was
obligated to monitor her case through the Board’s elec-
tronic filing system to ensure she received all related
documents. The Board acknowledged that while Ms.
Robinson may have contacted two regional offices while
her appeal was pending, she did not request assistance
with the e-Appeal system or otherwise inform the regional
offices of her problem viewing the acknowledgement
order. Ms. Robinson now appeals to this Court.
ROBINSON v. MSPB 5
DISCUSSION
Our review of a decision of the Board is limited. A de-
cision of the Board must be affirmed unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); Dickey v. Office of Personnel
Mgmt., 419 F.3d 1336, 1339 (Fed. Cir. 2005). We review
the question of whether the Board has jurisdiction over an
appeal de novo. Yates v. Merit Sys. Protection Bd., 145
F.3d 1480, 1483 (Fed. Cir. 1998). The employee bears the
burden of proving jurisdiction by a preponderance of the
evidence. Id. (citing 5 C.F.R. § 1201.56(a)(2)).
An employee resignation is presumed to be voluntary,
and an employee who voluntarily retires has no right of
appeal to the Board. Staats v. U.S. Postal Serv., 99 F.3d
1120, 1123-24 (Fed. Cir. 1996). The Board does have
jurisdiction, however, if an employee shows that his
resignation was involuntary and thus tantamount to a
removal. See Cruz v. Dep't of Navy, 934 F.2d 1240, 1244
(Fed. Cir. 1991) (“[A]n involuntary resignation [is] deemed
a ‘constructive removal.’”). To be entitled to a hearing on
whether the Board has jurisdiction in an involuntary
resignation case, an employee first must make a “non-
frivolous allegation [as to involuntariness] that, if proved,
would establish Board jurisdiction.” Staats, 99 F.3d at
1125.
As a preliminary matter, Ms. Robinson agreed to ac-
cept electronic service when she registered as an e-filer
with the Board. See 5 C.F.R. § 1201.14(e). Accordingly,
she is deemed to have received the acknowledgement
order the day it was issued, May 15, 2013. 5 C.F.R.
§ 1201.14(m)(2); see Rivera v. Soc. Sec. Admin., 111
M.S.P.R. 581, 584 (2009). When a statute or regulation
“deems” something to be done or to have been done, the
6 ROBINSON v. MSPB
event is considered to have occurred whether or not it
actually did. Maurer v. Office of Personnel Mgmt, 84
M.S.P.R. 156, ¶ 12 (1999), aff’d, 236 F.3d 1352 (Fed. Cir.
2001). Thus, as a matter of law, Ms. Robinson was served
with the acknowledgement order on May 15, 2013.
Ms. Robinson first contends the Board decision should
be reversed because the Board failed to promptly notify
her that her case had been transferred to a different
regional office, which led to her having missed the dead-
line in the acknowledgement order. Specifically, Ms.
Robinson contends that had she known about the trans-
fer, she would have had the opportunity to contact the
Washington Regional Office in time to ascertain the
status of her case and timely submit her new arguments.
We find this argument unpersuasive. Ms. Robinson
has not explained how any relationship exists between
the transfer of her case and her ability to access the
acknowledgement order on the e-Appeal system. Moreo-
ver, Ms. Robinson did not contact either regional office
about her appeal until June 11, 2013, nearly one month
after the acknowledgement order was issued and more
than ten days after the AJ’s deadline.
Second, Ms. Robinson claims she acted diligently in
attempting to access the acknowledgement order as
evidenced by her phone calls to the two regional offices.
But even assuming that Ms. Robinson informed the
regional offices about her difficulty accessing the docu-
ment in the phone calls on June 11, 2013, which she
claims for the first time here, she has offered no explana-
tion for her nearly month-long delay in contacting the
Board about the order. Nor has Ms. Robinson explained
why she did not make subsequent attempts to access the
acknowledgement order online given the error message
she received told her the system was merely “temporarily
unavailable.” We thus find the Board did not abuse its
discretion by refusing to consider Ms. Robinson’s argu-
ROBINSON v. MSPB 7
ments and evidence submitted for the first time with her
petition for review. 5 C.F.R. § 1201.115(d); Banks, 4
M.S.P.R. at 271; Avansino, 3 M.S.P.R. at 214.
Finally, Ms. Robinson argues that the Board applied a
disproportionate sanction by dismissing her appeal for
failure to prosecute. She argues that dismissal is not
warranted for a single failure to comply with a Board
order—here, the May 15, 2013, acknowledgement order.
This argument is misplaced, as the AJ did not dismiss her
appeal for failure to prosecute but rather for a lack of
jurisdiction. The Board then refused to consider her new
arguments and evidence not as a sanction, but because
Ms. Robinson did not show her new arguments and evi-
dence could not have been submitted before the AJ de-
spite her due diligence.
CONCLUSION
We conclude that the Board was within its discretion
to refuse to consider Ms. Robinson’s arguments and
evidence that had not initially been presented to the AJ.
We also agree with the Board that Ms. Robinson failed to
carry her burden of establishing the Board’s jurisdiction
and thus affirm.
AFFIRMED
COSTS
Each party shall bear its own costs.