Vazquez v. Merit Systems Protection Board , 296 F. App'x 20 ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3180
MARIO A. VAZQUEZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF THE NAVY,
Intervenor.
Mario A. Vazquez, of North Port, Florida, pro se.
Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Calvin M. Morrow, Acting Assistant General Counsel for
Litigation.
L. Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for intervenor. With him on the
brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director,
and Kenneth M. Dintzer, Assistant Director. Of counsel was Joan M. Stentiford, Trial
Attorney.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3180
MARIO A. VAZQUEZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD
Respondent,
and
DEPARTMENT OF THE NAVY,
Intervenor.
Petition for review of the Merit Systems Protection Board in DC0752070680-I-1.
__________________________
DECIDED: October 7, 2008
__________________________
Before BRYSON, GAJARSA and DYK, Circuit Judges.
PER CURIAM.
Mario A. Vazquez petitions for review of the final order of the Merit Systems
Protection Board (“MSPB” or “Board”) dismissing Mr. Vazquez’s appeal for lack of
jurisdiction. Vazquez v. Dep’t. of the Navy, No. DC-0752-07-0680-I-1 (M.S.P.B. Jan. 7,
2008). We affirm.
BACKGROUND
At the time of his resignation, Mr. Vazquez was employed as a civilian engineer
with the Navy’s Military Sealift Fleet Support Command. From Fall 2004 until Spring
2005 while serving aboard the USNS Rappahannock, Mr. Vazquez alleges he was
subjected to racial slurs, insults to his intelligence, and unwarranted reprimands from his
supervisors. These events, he argues, caused his later resignation to be a constructive
removal. Although Mr. Vazquez could have requested reassignment from the ship, he
did not. Instead, he chose to continue aboard for nine months until the agency deemed
Mr. Vazquez medically unfit for duty at sea and he left the Rappahannock.
On January 1, 2006, after nine months recovering at home, Mr. Vazquez
resigned. On January 11, 2006, he filed a discrimination complaint with the Equal
Employment Opportunity Commission (EEOC). The EEOC evaluated Mr. Vazquez’s
allegations and found no discrimination. Vazquez v. Winter, Sec’y of the Navy, D.O.N.
No. 05-62381-01801 (Mar. 16, 2007).
On June 5, 2007, Mr. Vazquez appealed to the Board, arguing “dismissal of
discrimination, reprisal and perjury charges” and seeking “monetary compensation
and/or criminal perjury charges filed.” The administrative judge (“AJ”) informed Mr.
Vazquez that if he was challenging his resignation as a constructive removal, he had
the burden of proving it was involuntary and thus within the Board’s jurisdiction. After
considering the allegations in Mr. Vazquez’s response, the AJ concluded that Mr.
Vazquez had failed to make non-frivolous allegations that, even if true, could establish
that his resignation amounted to a constructive removal. Absent an adverse action
such as a constructive removal, the Board lacks jurisdiction, so the AJ dismissed Mr.
Vazquez’s appeal. Vazquez v. Dep’t. of the Navy, No. DC-0752-07-0680-I-1, slip op. at
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6 (M.S.P.B. Sept. 7, 2007). The AJ also held that the Board lacked jurisdiction to
entertain Mr. Vazquez’s other claims in the absence of an appealable adverse action.
Id. at 9.
The Board denied Mr. Vazquez’s petition for full Board review, making the AJ’s
decision the final decision of the Board. Vazquez v. Dep’t. of the Navy, No. DC-0752-
07-0680-I-1 (M.S.P.B. Jan. 7, 2008). Mr. Vazquez now petitions this court for review of
the Board's final decision. 1 We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review is limited. We must affirm the final decision of the Board
unless we determine that it is arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law. 5 U.S.C. § 7703(c)(1). The Board’s findings of fact must be
supported by substantial evidence, although the ultimate determination of the Board’s
jurisdiction is reviewed de novo. § 7703(c)(2). Carr v. Soc. Sec. Admin., 185 F.3d 1318,
1321 (Fed. Cir. 1999); Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir.
1998).
In his petition to this court, Mr. Vazquez argues that the Board improperly
dismissed his appeal because it failed to take into consideration “purjury [sic], hostile
1
Mr. Vazquez’s overdue informal brief was filed on June 23, 2008, more than 21 days
after this court received the certified list from the agency on March 18, 2008. Federal
Circuit Rule 31(e) requires, in pertinent part, that “in a petition for review or an appeal
from an agency, a pro se appellant filing an informal brief must serve and file the brief
within 21 days after the certified list or index is served” by the agency on the appellant.
Mr. Vazquez states, and the agency does not dispute, that his untimely submission is
due to his being offshore in what he calls a “non-mail” status. The agency does not
argue that the appeal should be dismissed. Under these circumstances, we will not
dismiss Mr. Vazquez’s appeal for failure to prosecute. Fed. Cir. R. 45(a) (clerk may
dismiss an appeal for failure to follow the rules).
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work environment, discrimination, reprisal, medical negligence and possible conspiracy
to cover up [the] same.”
We reject his arguments and affirm the Board's dismissal for lack of jurisdiction.
The Board correctly found that Mr. Vazquez has failed to allege facts that, even if true,
establish that his resignation was involuntary. He was therefore not entitled to a Board
hearing on that issue. Further, because Mr. Vazquez cannot establish that there was
an appealable adverse action, we agree with the Board that it lacks jurisdiction to
consider Mr. Vazquez’s other claims.
A
The Board has jurisdiction to hear appeals only from certain types of adverse
actions taken by an agency against an employee. See 5 U.S.C. § 7512. Although the
Board does not have jurisdiction to hear an appeal from an employee who resigned
voluntarily, we have recognized that “an involuntary resignation constitutes an adverse
action by the agency” that is appealable to the Board. Garcia v. Dep't of Homeland
Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc) (quoting Gratehouse v. United
States, 206 Ct. Cl. 288, 512 F.2d 1104, 1108 (Ct. Cl. 1975)). Accordingly, if an
employee can show that a resignation was involuntary because it was brought on by
coercion, duress, or misrepresentation by the agency, the resignation will be deemed a
constructive removal, and the Board will have jurisdiction over the appeal. See Staats
v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996); Scharf v. Dep't of the Air
Force, 710 F.2d 1572, 1574-75 (Fed. Cir. 1983).
“A resignation is either voluntary or involuntary on the date it was submitted, and
jurisdiction must be determined as of that date.” Cruz v. Dep’t of the Navy, 934 F.2d
1240, 1244 (Fed. Cir. 1991). As such, the period of time between the allegedly coercive
2008-3180 4
act and the resignation is “the most probative evidence” of involuntariness. Terban v.
Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000). The longer the time between
the coercive acts and the resignation, the less involuntary. Id.However, an employee's decision to resign is presumed to be voluntary, and an
employee seeking to demonstrate otherwise is required to satisfy an objective and
“demanding legal standard.” Garcia, 437 F.3d at 1329 (quoting Staats, 99 F.3d at
1124). The doctrine of coercive involuntariness “does not apply to a case in which an
employee decides to resign or retire because he does not want to accept a new
assignment . . . .” Staats, 99 F.3d at 1124 (internal citations omitted). The so-called
Fruhauf test for establishing involuntary coercion by an agency requires the employee
to show (1) the agency effectively imposed the terms of the resignation; (2) the
employee had no realistic alternative but to resign; and (3) the employee's resignation
was the result of improper agency acts. Garcia, 437 F.3d at 1329; see also Fruhauf Sw.
Garment Co. v. United States, 126 Ct. Cl. 51, 62, 111 F. Supp. 945, 951 (Ct. Cl. 1953)).
B
Mr. Vazquez argues that his resignation was the result of a series of improper
acts resulting in a hostile work environment leaving him no choice but to resign. We
agree with the Board’s conclusion rejecting his alleged circumstances as insufficient,
even if true, to make his later resignation a constructive removal because he had the
option to transfer, rather than resign.
The record shows, and Mr. Vazquez has not contested, that he never requested
a transfer from the ship at any point during his nine-month assignment even though he
could have done so after only four months. Mr. Vazquez argues that his history would
follow him and that he would end up with unfavorable jobs on a new vessel. But, “the
2008-3180 5
fact that an employee is faced with an unpleasant situation or that his choice is limited
to two unattractive options does not make the employee's decision any less voluntary.”
Staats, 99 F.3d at 1124.
There was no error in the AJ’s conclusion that Mr. Vazquez’s allegations, even if
true, do not establish that he involuntarily accepted the terms of the agency, that
circumstances permitted no other alternative, or that the resignation was the result of
coercive acts of the agency. Garcia, 437 F.3d at 1344; see Fruhauf, 126 Ct. Cl. at 62.
We have carefully examined each of Mr. Vazquez’s claims; however, because the
Board’s decision was in accordance with the law, we affirm the dismissal of Mr.
Vazquez’s constructive removal claim.
C
The Board also held that it lacks jurisdiction over Mr. Vazquez’s other allegations.
We agree. The Board has no jurisdiction to consider discrimination, perjury, procedural
misconduct, whistleblowing or reprisal allegations unaccompanied by an appealable
adverse action over which the Board has jurisdiction. Garcia, 437 F.3d at 1342-43;
Cruz v. Dep't of the Navy, 934 F.2d 1240, 1245-46 (Fed. Cir. 1991) (en banc); see also,
Mintzmyer v. Dep’t. of Interior, 84 F.3d 419, 423 (Fed. Cir. 1996) (a district court's
finding that alleged discrimination did not result in a constructive discharge barred
litigating whether an alleged reprisal for whistleblowing constituted constructive
discharge). To the extent that Mr. Vazquez’s references to reprisal constitute an effort
to prosecute an individual right of action appeal for whistleblowing reprisal, he has failed
to exhaust his administrative remedies, as the AJ pointed out.
Finally, Mr. Vazquez alleges medical negligence and a possible cover-up
conspiracy. These issues were not raised below and thus cannot be considered on
2008-3180 6
appeal. Wallace v. Dep't of the Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989)
(“[o]rdinarily, appellate courts refuse to consider issues not raised before an
administrative agency”).
CONCLUSION
We have carefully considered the remainder of Mr. Vazquez’s arguments and
find them unpersuasive. For the foregoing reasons, we affirm the Board’s dismissal.
No costs.
2008-3180 7