Pistilli v. Merit Systems Protection Board , 662 F. App'x 942 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANK E. PISTILLI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF THE TREASURY,
Intervenor
______________________
2016-1660
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-13-0032-I-2.
______________________
Decided: October 11, 2016
______________________
FRANK E. PISTILLI, Melville, NY, pro se.
CALVIN M. MORROW, Office of the General Counsel,
Merits Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
ROBERT NORWAY, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
2 PISTILLI v. MSPB
ton, DC, for intervenor. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., CLAUDIA BURKE.
______________________
Before PROST, Chief Judge, REYNA, and CHEN, Circuit
Judges.
PER CURIAM.
Frank E. Pistilli seeks review of the Merit Systems
Protection Board’s (“Board”) dismissal of his appeal for
lack of jurisdiction. The Board found that Mr. Pistilli had
not shown his retirement was involuntary. For the rea-
sons explained below, we affirm the Board’s decision.
BACKGROUND
Mr. Pistilli began working as an investigative analyst
for the Internal Revenue Service (“the agency”) in 2004.
He retired from the agency in October 2012. He alleges
that his retirement was involuntary, and that a series of
events leading up to and following his retirement demon-
strate that the agency used coercion to force him to retire.
In 2004, Mr. Pistilli was appointed to a position at the
agency’s Lead Development Center (“LDC”) in a unit
involved in terrorism investigations. In 2005, the agency
determined that analysts in Mr. Pistilli’s unit needed Top
Secret security clearances. The agency issued a separate
position description requiring a Top Secret clearance for
these analysts, and intended to reassign each of them to
that separate position as they received their Top Secret
clearance.
Mr. Pistilli applied for a Top Secret clearance, but his
application was denied in 2008. While he appealed the
denial, he was detailed to a field office where he initially
performed administrative duties and then had no formal
duties. In 2009, after Mr. Pistilli’s clearance appeal was
denied, Mr. Pistilli was removed: the agency removed him
for failure to meet a requirement of his position as he
PISTILLI v. MSPB 3
lacked a Top Secret clearance. Mr. Pistilli appealed his
removal.
In March 2011, an administrative judge affirmed the
agency’s removal of Mr. Pistilli. Pistilli v. Dep’t of Treas-
ury, NY-0752-11-0001-I-2, 2011 WL 4604301 (Mar. 10,
2011). In December 2011, the Board found that the
agency failed to prove that Mr. Pistilli’s position required
a security clearance. Pistilli v. Dep’t of Treasury, No. NY-
0752-11-0001-I-2, 2011 WL 12516583, at *3–4 (M.S.P.B.
Dec. 14, 2011). The Board explained that, while the
agency had the authority to require all analysts in Mr.
Pistilli’s unit at the LDC to obtain a security clearance,
the agency had never actually assigned Mr. Pistilli to the
new position description that required the clearance. Id.at *2–3. The Board ordered the agency to reinstate Mr.
Pistilli. Id. at *4.
The agency reinstated Mr. Pistilli to active duty in
January 2012, and again assigned him to the field office.
The agency maintained that all analysts working at the
LDC needed Top Secret clearances.
Mr. Pistilli filed a petition for enforcement of the
Board’s reinstatement order, arguing that Board’s order
meant that the agency needed to reinstate him to his
former position at the LDC that did not require a security
clearance. In August 2012, an administrative judge found
that the agency had complied with the Board’s order by
reinstating Mr. Pistilli to his position at the field office, a
position he had occupied for more than a year prior to his
removal. Pistilli v. Dep’t of Treasury, NY-0752-11-0001-C-
1, 2012 WL 4052725 (Aug. 15, 2012). The Board affirmed
the administrative judge’s determination in November
2013. Pistilli v. Dep’t of Treasury, No. NY-0752-11-0001-
C-1, 2013 WL 9658963, at *3 (M.S.P.B. Nov. 20, 2013).
In June 2012, the agency sent Mr. Pistilli an email
stating that it did not have enough work to keep him at
the position in the field office. The agency explained that
4 PISTILLI v. MSPB
if Mr. Pistilli wanted to work at the LDC, he would have
to apply for and obtain a Top Secret clearance. The
agency stated that Mr. Pistilli also could transfer to
another field office position that had more work available.
The record indicates that Mr. Pistilli wanted to return to
work at the LDC, but that he did not want to apply for a
Top Secret clearance again.
The agency stopped giving Mr. Pistilli work assign-
ments around September 5, 2012. In September 2012, the
agency decided to assign Mr. Pistilli to the position at the
LDC that required the Top Secret security clearance. Mr.
Pistilli attempted to decline this assignment, but he was
reassigned on September 27, 2012. Mr. Pistilli was
instructed to complete an application for Top Secret
clearance, and told that he would remain detailed to the
field office until he received a clearance.
On October 9, 2012, Mr. Pistilli informed the agency
he wanted to retire. He turned in his badge and computer
on October 11, 2012. On October 18, the agency informed
Mr. Pistilli that his retirement had not taken effect,
because his retirement paperwork had not been received.
Mr. Pistilli then submitted a retirement application, and
he retired effective October 15, 2012. The director of Mr.
Pistilli’s program at the agency sent an email to other
managers stating “Houston, we have lift off!!” after receiv-
ing confirmation that Mr. Pistilli’s retirement had been
processed. S.A. 123.
In November 2012, Mr. Pistilli filed an appeal alleg-
ing that he was forced to retire, discriminated against on
the basis of his age, and retaliated against for having
successfully challenged his earlier removal. 1 In March
1 This appeal was dismissed without prejudice
while Mr. Pistilli’s petition for enforcement was pending
before the Board. Pistilli v. Dep’t of Treasury, NY-0752-
PISTILLI v. MSPB 5
2015, the administrative judge issued an order advising
Mr. Pistilli that the Board might not have jurisdiction
over his appeal because retirement is presumed to be
voluntary. In July 2015, the administrative judge found
that the evidence did not support a conclusion that Mr.
Pistilli’s retirement was involuntary. Pistilli v. Dep’t of
Treasury, NY-0752-13-0032-I-2, 2015 WL 4250199 (July
6, 2015). Therefore, Mr. Pistilli’s appeal was dismissed
for lack of jurisdiction. Id.In her decision, the administrative judge found that
Mr. Pistilli did not retire due to his working conditions,
because, although he had not been provided work for a
period of time, the agency had recently promised to pro-
vide him with work. She found that Mr. Pistilli decided to
retire “to avoid the background investigation.” 2 S.A. 24.
She found that Mr. Pistilli’s supervisor’s remark celebrat-
ing Mr. Pistilli’s retirement was inappropriate, but that it
did not impact his decision to retire because it was made
13-0032-I-1, 2013 WL 3224238 (Jan. 29, 2013). After the
Board denied Mr. Pistilli’s petition for enforcement in
November 2013, Mr. Pistilli then refiled his appeal.
2 The administrative judge’s finding about “the
background investigation” is ambiguous in the context of
the record, which reflects that at the time Mr. Pistilli
retired, he had been instructed to complete two different
background checks. In addition to being instructed to
complete the Top Secret clearance application, Mr. Pistilli
had received an email on October 4 and again on October
9 instructing him to complete forms for a routine back-
ground check. The administrative judge cites the October
9 email in her decision, suggesting that the routine back-
ground check was what she found inspired Mr. Pistilli to
retire. This email does include a section asking recipients
“Are you retiring soon?” and instructing recipients what
to do if that is the case. S.A. 66.
6 PISTILLI v. MSPB
after he retired. The administrative judge found the
Board’s decision in Putnam v. Department of Homeland
Security, 121 M.S.P.R. 532 (2014) persuasive. She found
that, “[l]ike the appellant in Putnam, [Mr. Pistilli] could
have awaited the outcome of the clearance process.” S.A.
24. She found that Mr. Pistilli’s “belief that it was only a
matter of time before the agency would remove him from
his position was speculative.” Id.On appeal, the Board affirmed the administrative
judge’s decision. Pistilli v. Dep’t of Treasury, No. NY-
0752-13-0032-I-2, 2016 WL 81515 (M.S.P.B. Jan. 5, 2016).
The Board cited Conforto v. Merit Systems Protection
Board, 713 F.3d 1111, 1122 (Fed. Cir. 2013) for the prin-
ciple that, to find that the agency coerced Mr. Pistilli into
retiring, “the coercion must be the result of improper acts
by the agency.” Id. at ¶ 10. The Board found that the
agency’s decision to reassign Mr. Pistilli was not improp-
er. The Board rejected Mr. Pistilli’s argument that it was
improper to reassign him because the agency knew he
could not obtain the required Top Secret clearance. The
Board provided two reasons in support of this conclusion:
it stated that Mr. Pistilli provided “no support for this
assertion” and that Mr. Pistilli had “contradict[ed] himself
by stating that he had no interest in avoiding the back-
ground check, intimating that he would be able to pass
such a review.” Id. at ¶ 12. The Board noted that Mr.
Pistilli argued that the agency “reneged on its offer” of a
position that did not require a Top Secret clearance, but
found that Mr. Pistilli had not shown that the agency was
obligated to provide him such a position. Id. The Board
agreed with the administrative judge that Mr. Pistilli
chose to retire rather than “begin the security clearance
process,” and that he freely chose to retire. Id. at ¶ 13.
Mr. Pistilli appeals this decision. He argues that the
Board made a number of incorrect statements about the
facts in its analysis. For example, he objects to the
Board’s statement that he contradicted himself. He
PISTILLI v. MSPB 7
explains that what the Board saw as a contradiction was
merely Mr. Pistilli’s attempt to clarify that—contrary to
the administrative judge’s findings—he did not retire to
avoid the routine background check, “a level of clearance I
had passed before and could again.” Pet’r Br. 2. Mr.
Pistilli argues that the Board incorrectly dismissed the
statement made by his supervisor after he retired, and
incorrectly described his beliefs and desires about what
the agency’s obligations to him were and what position he
wanted.
Mr. Pistilli argues that the Board erred in finding
that Mr. Pistilli provided no proof that the agency knew
he could not obtain a Top Secret clearance, since the
agency had previously denied his Top Secret clearance
application. He also argues that the Board applied an
incorrect standard in determining whether his retirement
was voluntary. He argues that his transfer to a position
that he believed he was not qualified for and that would
necessarily result in his termination was coercive and a
constructive termination. He argues that it usurps merit-
based civil service laws to permit an agency to transfer an
employee to a position he is not qualified for.
Mr. Pistilli argues that the fact that the agency chose
to reassign him to the position requiring Top Secret
clearance before he received such a clearance—contrary to
the agency’s prior practice of waiting until an analyst
received Top Secret clearance before transferring the
analyst—indicated that the agency was setting him up for
termination if he again failed to receive such a clearance.
He argues that transferring him to the position requiring
Top Secret clearance prior to his obtaining such a clear-
ance violated agency policy. Mr. Pistilli argues that he
had no reasonable alternative to retiring once he was
reassigned to the position requiring a Top Secret clear-
ance: he was convinced he would not be able to obtain
such a clearance and that he would be facing certain
termination if he did not retire. Mr. Pistilli argues that
8 PISTILLI v. MSPB
being terminated would have resulted in him being una-
ble to gain other employment and would have permanent-
ly destroyed his reputation.
The Board has responded, and the Department of the
Treasury has intervened. We have jurisdiction under 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1). See Confor-
to, 713 F.3d at 1115–21 (finding that this court has juris-
diction to review the Board’s finding that it lacks
jurisdiction even in cases alleging discrimination).
DISCUSSION
A. Standard of Review
We must affirm the Board’s decision unless we find it
to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; obtained without
procedures required by law, rule, or regulation having
been followed, or unsupported by substantial evidence. 5
U.S.C. § 7703(c); Monasteri v. Merit Sys. Prot. Bd., 232
F.3d 1376, 1378 (Fed. Cir. 2000). The scope of the Board’s
jurisdiction is a legal question that we review de novo. Id.B. Involuntary Retirement
The Board has jurisdiction based on an employee’s re-
tirement only if the retirement is involuntary. Conforto,
713 F.3d at 1114. An employee’s retirement or resigna-
tion is presumed to be voluntary unless the employee
proves by a preponderance of the evidence that it was
involuntary. Garcia v. Dep’t of Homeland Sec., 437 F.3d
1322, 1329 (Fed. Cir. 2006).
An employee’s retirement may be found involuntary if
it occurs as a result of coercion, deception, or misinfor-
mation on the part of the employing agency. Starkey v.
Dep’t of Navy, 198 F.3d 851, 853 (Fed. Cir. 2000). To
show coercion, the employee must establish that a rea-
sonable employee in the same circumstances would feel
coerced into resigning or retiring. Conforto, 713 F.3d at
PISTILLI v. MSPB 9
1121 (Fed. Cir. 2013). For example, an employee may be
coerced to retire based on intolerable working conditions.
Garcia, 437 F.3d at 1328. “In order to establish involun-
tariness on the basis of coercion, 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.” Staats v. U.S.
Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996). When
an employee chooses to retire merely because “because he
does not want to accept a new assignment, a transfer, or
other measures that the agency is authorized to adopt,”
the employee is not coerced into retiring, even if the
reassignment makes “the job so unpleasant for the em-
ployee that he feels that he has no realistic option but to
leave.” Id.Mr. Pistilli argues that the agency’s improper acts
that coerced him into retiring were (a) reassigning him to
the position at the LDC that required the Top Secret
clearance and (b) providing him with intolerable working
conditions.
First, we affirm the Board’s finding that the agency’s
choice to reassign Mr. Pistilli was not an improper act.
When the agency decided to begin requiring all of the
analysts in Mr. Pistilli’s unit at the LDC to have Top
Secret security clearances, Mr. Pistilli’s position at the
LDC became a position which required a Top Secret
clearance. As a result, Mr. Pistilli was no longer qualified
for the position at the LDC.
Mr. Pistilli’s situation is analogous to when an em-
ployee hired for a position requiring a security clearance
fails to obtain such a clearance, or he obtains one and it is
later revoked. In these circumstances, the agency may
terminate the employee for failing to meet an essential
requirement of his position and has no obligation to
10 PISTILLI v. MSPB
transfer the employee to a non-sensitive position. Griffin
v. Def. Mapping Agency, 864 F.2d 1579, 1581 (Fed. Cir.
1989); Daney v. Dep’t of Interior, 25 F. App’x 994, 995
(Fed. Cir. 2001).
The Board did not err in finding that the agency
properly chose to reassign Mr. Pistilli from the position at
the field office where it had limited work for Mr. Pistilli to
his former position at the LDC which now required a Top
Secret clearance. When Mr. Pistilli failed to obtain a Top
Secret clearance, the agency was entitled to terminate Mr.
Pistilli. While the Board in 2011 ordered Mr. Pistilli
reinstated because the agency had not yet transferred Mr.
Pistilli to the new position description for his job that
required a Top Secret clearance when it terminated him,
this order did not mean that the agency was not permit-
ted to transfer Mr. Pistilli to the Top Secret position in
the future.
Mr. Pistilli argues that it violated agency policy to re-
assign an employee to a position requiring a clearance
before the security clearance was obtained. But Mr.
Pistilli identifies no source for this alleged policy. While
previously Mr. Pistilli and his colleagues were instructed
to apply for Top Secret clearances before being assigned to
a position requiring the clearance, this one example of the
agency’s practice does not indicate that there was a policy
requiring this.
Given the circumstances of this case, we do not think
that the agency’s reassignment of Mr. Pistilli would have
been improper even if the agency knew—or believed it
was extremely likely—that Mr. Pistilli would again fail to
obtain a Top Secret clearance, or even if the agency in-
tended to terminate Mr. Pistilli as soon as his clearance
application was denied. Cf. Frey v. Dep’t of Labor, 359
F.3d 1355, 1357, 1360 (Fed. Cir. 2004) (Agencies have
wide discretion in reassigning employees and may remove
employees who refuse reassignment, if the reassignment
PISTILLI v. MSPB 11
was in good faith and based upon legitimate management
considerations.). Similarly, we do not think that the
agency’s reassignment of Mr. Pistilli would have been
improper even if it was against Mr. Pistilli’s desires and
even if the agency did not provide Mr. Pistilli with a
meaningful opportunity to accept an alternative non-
sensitive position. See Griffin, 864 F.2d at 1581. As a
result, the arguments on appeal about Mr. Pistilli’s likeli-
hood of obtaining a Top Secret clearance on his second
attempt, Mr. Pistilli’s opportunity to accept an alternative
position, and whether the agency would have terminated
Mr. Pistilli had his application been denied are all irrele-
vant.
Because the agency’s choice to reassign Mr. Pistilli to
the position description for his former position that re-
quired a Top Secret security clearance was not improper,
the Board did not err in finding that the agency’s decision
to do so did not coerce Mr. Pistilli into retiring.
Second, Mr. Pistilli argued that he suffered intolera-
ble working conditions based on his not being provided
work to do. As the agency had explained to Mr. Pistilli
that it had limited work available for him while he lacked
a security clearance, the Board did not err in finding that
this working condition was not an improper act by the
agency to coerce Mr. Pistilli to retire.
We have carefully considered Mr. Pistilli’s additional
arguments. None of them affect our affirmance of the
Board’s determination regarding the voluntariness of Mr.
Pistilli’s retirement.
CONCLUSION
We affirm the Board’s determination that Mr. Pistilli
had not shown by a preponderance of the evidence that
his retirement was involuntary. Therefore, we affirm the
Board’s dismissal of Mr. Pistilli’s appeal for lack of juris-
diction.
12 PISTILLI v. MSPB
AFFIRMED
COSTS
No costs.