Welcome v. Merit Systems Protection Board , 542 F. App'x 940 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES R. WELCOME,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3093, -3094
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. AT0752120317-I-1 and AT0752120469-I-1.
______________________
Decided: October 16, 2013
______________________
JAMES R. WELCOME, of Pensacola, Florida, pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, argued for respondent. With him on the
brief was BRYAN G. POLISUK, General Counsel.
______________________
Before DYK, O’MALLEY, and WALLACH, Circuit Judges.
2 WELCOME v. MSPB
PER CURIAM
James R. Welcome appeals the Merit Systems Protec-
tion Board’s (“Board”) decisions holding that his removal
appeal was moot and his involuntary retirement appeal
was outside the Board’s jurisdiction. This court affirms.
BACKGROUND
Before his retirement, Mr. Welcome was employed by
the Department of the Navy (“the Agency”) as a Work and
Family Life Supervisor, GS-0101-11. Mr. Welcome went
on approved sick leave status on February 14, 2011. Over
eight months later, on October 28, 2011, the Agency asked
for a written and signed release from Mr. Welcome’s
doctor, and requested that Mr. Welcome return to duty by
November 14, 2011. When he did not return as request-
ed, the Agency issued a Notice of Proposed Removal on
January 6, 2012. After considering Mr. Welcome’s writ-
ten response, the Agency removed Mr. Welcome from
service, effective February 7, 2012. It explained the
removal was “based on [Mr. Welcome’s] excessive ap-
proved absence for which there has been given no end in
sight.” Respondent’s Appendix (“App’x”) at 28.
Mr. Welcome appealed his removal to the Board, ar-
guing removal could not be based on approved sick leave.
In the meantime, however, he applied for voluntary
retirement with an effective date of February 3, 2012, four
days before the removal. When Mr. Welcome notified the
Administrative Judge (“AJ”) of this development, the AJ
explained in a status conference that voluntary retire-
ment predating removal could nullify the removal and
thus moot Mr. Welcome’s appeal. The Agency then ap-
proved Mr. Welcome’s retirement application, cancelled
the removal, and eliminated all information concerning
the removal from Mr. Welcome’s Official Personnel Fold-
er.
WELCOME v. MSPB 3
On March 14, 2012, the Agency moved to dismiss Mr.
Welcome’s appeal. The AJ ordered Mr. Welcome to show
cause why his appeal should not be dismissed as moot.
The order explained that an appeal becomes moot when
“the agency completely rescinds the action being appealed
by returning appellant to the status quo ante.” App’x at
50. It also noted that even if Mr. Welcome’s removal
appeal was moot, he had the option of filing a new appeal
alleging involuntary retirement if he believed the Agency
had coerced him to retire.
Following Mr. Welcome’s response, the AJ dismissed
the removal appeal on April 8, 2012. It held the action
appealed was completely rescinded by the Agency, be-
cause “the undisputed evidence shows that the agency
canceled the appellant’s removal and deleted all refer-
ences to that action from his [Official Personnel File].”
App’x at 9. The AJ noted that Mr. Welcome’s response
had not argued against mootness, but instead alleged
involuntary retirement. In particular, Mr. Welcome
argued the Agency lacked any legitimate basis to remove
him, and that the removal threatened his retirement
annuity and forced him to retire.
Soon after the dismissal of Mr. Welcome’s first appeal,
the AJ sua sponte docketed a separate appeal to address
Mr. Welcome’s alleged involuntary retirement. However,
after considering the parties’ written submissions, the AJ
dismissed the second appeal, saying Mr. Welcome failed
to show involuntary retirement. The AJ explained that
retirement is presumed voluntary, and that Mr. Wel-
come’s decision to retire rather than be removed, without
more, did not rebut that presumption. The AJ rejected
Mr. Welcome’s argument that a federal agency cannot
remove an employee for taking authorized sick leave.
Although an earlier Board decision had stated such a rule,
Holderness v. Defense Commissary Agency, 75 M.S.P.R.
401 (1997), it was overruled by McCauley v. Department
of the Interior, 116 M.S.P.R. 484 (2011), where the Board
4 WELCOME v. MSPB
held that excessive absenteeism may be a ground for
removal, regardless of the type of leave. The AJ also
found that even if Mr. Welcome had been removed, “he
still could have retired without losing his annuity.” App’x
at 111.
Mr. Welcome petitioned the full Board for review of
both dismissals. The Board denied the petitions, holding
Mr. Welcome had identified no erroneous findings of
material fact, no erroneous statement of law or applica-
tion of law to fact, nor any other basis for granting the
petition. Welcome v. Dep’t of the Navy, MSPB Docket No.
AT-0752-12-0317-I-1 (Feb. 5 2013); Welcome v. Dep’t of the
Navy, MSPB Docket No. AT-0752-12-0469-I-1 (Feb. 5,
2013). Mr. Welcome filed this timely appeal. This court
has jurisdiction pursuant to 5 U.S.C. §§ 7121(f) and 7703.
DISCUSSION
This court must affirm the Board unless its decision 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). The employee bears the bur-
den to prove jurisdiction by a preponderance of the
evidence. 5 C.F.R. § 1201.56(a)(2)(i). “Whether the
[B]oard has jurisdiction over an appeal is a question of
law that this court reviews de novo.” Johnston v. Merit
Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008).
The Board has jurisdiction over an appeal from the
Agency’s removal of an employee. See 5 U.S.C. § 7512(1)
(enumerating specific adverse actions over which the
Board has jurisdiction); see also 5 U.S.C. § 7513(d).
Accordingly, the Board properly exercised jurisdiction
over Mr. Welcome’s first appeal challenging his removal.
However, an appeal is rendered moot when the agency
cancels the appealed action and returns the employee to
the status quo ante. Cooper v. Dep’t of the Navy, 108 F.3d
WELCOME v. MSPB 5
324, 326 (Fed. Cir. 1997). In this case, the Board found
the Agency returned Mr. Welcome to the status quo ante
by canceling his removal and eliminating all mention of it
from his Official Personnel File.
On appeal, Mr. Welcome argues the Agency failed to
meet its burden to justify his removal. Petitioner’s Br. at
9 (“The Agency has the burden of providing the prepon-
derance of evidence (51%) to support the charge.”). How-
ever, as held by the Board and not challenged on appeal,
Mr. Welcome’s retirement cancelled the removal, so there
was no remaining adverse action for the Agency to justify.
Accordingly, the Board correctly dismissed Mr. Welcome’s
first appeal as moot.
Mr. Welcome’s second appeal alleged jurisdiction
based on involuntary retirement. Retirement is presumed
to be voluntary, and the Board lacks jurisdiction over
voluntary retirement. Staats v. U.S. Postal Serv., 99 F.3d
1120, 1123–24 (Fed. Cir. 1996). However, an involuntary
or coerced retirement is tantamount to a removal for
purposes of Board jurisdiction. Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006). To rebut
the presumption of voluntariness, “an employee must
show that the agency effectively imposed the terms of the
employee’s resignation or retirement, that the employee
had no realistic alternative but to resign or retire, and
that the employee’s resignation or retirement was the
result of improper acts by the agency.” Terban v. Dep’t of
Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000) (quoting
Staats, 99 F.3d at 1124).
The Board stated that retirement due to threatened
removal “may be considered coerced if the employee can
show that the agency had no reasonable grounds for
threatening to take the removal action.” App’x at 109
(citing Lamb v. U.S. Postal Serv., 46 M.S.P.R. 470, 475
(1990)). However, the Board rejected Mr. Welcome’s
argument that excessive authorized sick leave was not a
6 WELCOME v. MSPB
reasonable grounds for removal. App’x at 110–112 (citing
McCauley, 116 M.S.P.R. at 484). Additionally, the Board
held Mr. Welcome “did in fact have a choice” of whether or
not to retire. Even if Mr. Welcome had appealed his
removal and lost, the Board found he could have retired
without losing his annuity. App’x at 111 (citing Cooper,
108 F.3d 324).
On appeal, Mr. Welcome argues the Agency’s removal
was meant to force him to retire by leaving him “no life
lines of support.” U.S. Ct. of Appeals for the Fed. Cir.,
Form 11, INFORMAL BRIEF OF JAMES R. WELCOME at 1
(2013). He argues the Board improperly sought to remove
him on grounds of misconduct, which, according to Mr.
Welcome, would have made him ineligible for his retire-
ment annuity. Petitioner’s Br. at 1–8, 10–12. Mr. Wel-
come cites 5 U.S.C. § 8336(d)(1) to show that removal
based on misconduct renders an employee ineligible for
his retirement annuity. However, this subsection applies
to employees that have either completed 25 years of
service or are over 50 and completed 20 years of service.
At the time of his separation, Mr. Welcome was over 55
and had completed over 30 years of service, and was thus
eligible for his annuity regardless of the reason for his
separation. See 5 U.S.C. § 8336(a) (stating that an em-
ployee meeting these requirements “is entitled to an
annuity”). In light of this provision, the Board correctly
concluded that Mr. Welcome had realistic alternatives to
retirement. The Board did not err in holding Mr. Wel-
come failed to rebut the presumption that his retirement
was voluntary and not appealable.
CONCLUSION
This court has considered Mr. Welcome’s remaining
arguments and finds them unpersuasive. For the forego-
ing reasons, this court affirms the Board’s decisions
dismissing Mr. Welcome’s removal appeal as moot and his
involuntary retirement appeal for lack of jurisdiction.
WELCOME v. MSPB 7
AFFIRMED