Jones v. Merit Systems Protection Board , 497 F. App'x 994 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
STEPHANIE R. JONES,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3120
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA0752110468-I-1.
__________________________
Decided: November 29, 2012
__________________________
STEPHANIE R. JONES, of DeRidder, Louisiana, pro se.
NICOLE DECRESCENZO, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
JONES v. MSPB 2
Before BRYSON, DYK , and PROST, Circuit Judges.
PER CURIAM.
Stephanie R. Jones seeks review of a decision of the
Merit Systems Protection Board (“Board”) dismissing her
appeal for lack of jurisdiction. We affirm.
BACKGROUND
Ms. Jones began her career in library services with
the Department of the Army (“Department”) in 1981. In
April 2003, according to Ms. Jones, the Department
falsely accused her of stealing computers, cash, and other
government property after she complained about being
demoted under a Reduction in Force program instituted
by the Department. Despite her contentions that she was
cleared of any wrongdoing in June 2003,1 numerous
missing government items were located in her residence
after it was searched pursuant to a warrant in October
2003.2
In March 2004, Ms. Jones was formally charged with
theft of government property, and, in May 2004, the
Department issued her an Advanced Notice of Proposed
Removal that cited similar allegations. In October 2004,
1 Though she contends that she was cleared of all
wrongdoing in June 2003, Ms. Jones does not dispute that
she was barred from doing any library work from June
2003 until her resignation.
2 While on leave that began in October 2003, Ms.
Jones alleges that she accepted a position as a librarian at
an Army post in Korea in November 2003. Ms. Jones
asserts that an investigator for the Department caused
that job offer to be rescinded in January 2004, however,
by informing the Army post in Korea that Ms. Jones was
subject to an ongoing investigation.
3 JONES v. MSPB
Ms. Jones was incarcerated pending trial, and, after a
three day trial, Ms. Jones was convicted of theft of gov-
ernment property on March 10, 2005, and sentenced to six
months imprisonment, one year supervised release, and a
$5,000 fine. Prior to her conviction, however, on March 7,
2005, Ms. Jones resigned from her employment with the
Department—using a form allegedly sent to her by the
Department—after learning that the Department hired a
contractor to fill her position.3
Ms. Jones appealed her resignation to the Board. Af-
ter finding that Ms. Jones had resigned voluntarily with-
out coercion, the administrative judge for the Board
assigned to Ms. Jones’s case dismissed her appeal for lack
of jurisdiction. Ms. Jones then petitioned the Board for
review of that initial decision. The Board denied Ms.
Jones’s request, and Ms. Jones timely appealed to this
court.
DISCUSSION
The Board has jurisdiction over an appeal challenging
an employee’s resignation only if the resignation was
“involuntary and thus tantamount to forced removal.”
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328
(Fed. Cir. 2006) (en banc) (quoting Shoaf v. Dep’t of Agric.,
260 F.3d 1336, 1340-41 (Fed. Cir. 2001) (quotation marks
omitted)); see also 5 U.S.C. §§ 7701, 7512, 7513. A resig-
nation is presumed voluntary, and the petitioner bears
3 Ms. Jones claims that she learned of her replace-
ment in September 2004, not in March 2005 or while she
was incarcerated, as apparently stated by the Board. She
asserts that the Board’s decision, therefore, is based on a
factual error. However, any such error by the Board
regarding the specific date on which Ms. Jones learned of
her replacement is immaterial here.
JONES v. MSPB 4
the burden to prove by a preponderance of the evidence
that it was involuntary. See 5 C.F.R. § 1201.56(a)(2)(i);
Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1213-14
(Fed. Cir. 2003); Terban v. Dep’t of Energy, 216 F.3d 1021,
1024 (Fed. Cir. 2000). A resignation may be involuntary
if it was coerced, as Ms. Jones asserts hers was here, but
a petitioner must prove coercion by showing that: (1) an
agency “effectively imposed the terms of the [petitioner’s]
resignation”; (2) the petitioner “had no realistic alterna-
tive but to resign”; and (3) the resignation “was the result
of improper acts by the agency.” Garcia, 437 F.3d at
1329. If the Board decides that a petitioner’s resignation
was voluntary and not coerced, we may reverse only if the
decision was: “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c).
We affirm the Board’s decision here because it was
well-supported by the record. The evidence presented by
Ms. Jones is not adequate to overcome the presumption
that her resignation was voluntary and prove that she
was coerced into resigning her position. The Department
imposed no terms of her resignation; Ms. Jones could
have realistically chosen to challenge an involuntarily
removal instead of resigning; and, besides her accusa-
tions,4 there is no indication of any improper acts by the
Department. The Department’s Advanced Notice of
Proposed Removal informed Ms. Jones that she may be
4 Ms. Jones asserts that she alleged adequate facts
to make out a non-frivolous case that her resignation was
involuntary, which should be sufficient to establish juris-
diction. However, “under 5 U.S.C. § 7512, non-frivolous
allegations do not establish the Board’s jurisdiction.”
Garcia, 437 F.3d at 1325.
5 JONES v. MSPB
removed for theft of government property, and Ms. Jones
was convicted of theft of government property. While it
may have been natural for Ms. Jones to conclude that she
would likely face removal if she did not resign, as the
administrative judge for the Board stated, “[t]he fact that
she was faced with the unpleasant choice of either resign-
ing or opposing the removal action, does not rebut the
presumed voluntariness of her ultimate choice to resign.”
Resp’t App. 14. The Board’s finding that Ms. Jones failed
to rebut the presumption that her resignation was volun-
tary was correct.
Ms. Jones also petitioned the Board to review certain
discovery related decisions of the administrative judge,
claims she raises again to us. The Board found that those
decisions were not properly raised and, in any case, fell
within the administrative judge’s sound discretion that
was not abused. We find no error in the Board’s decision
on those points.
In addition, Ms. Jones asserts that the Board also
erred by not considering her discrimination and retalia-
tion claims after finding it lacked jurisdiction over her
involuntary resignation claim. The Board’s decision on
that issue was correct. See Garcia, 437 F.3d at 1325(holding that “in a constructive adverse action case, a
claimant must prove that the action was involuntary and
that the Board may not reach discrimination issues in
mixed cases unless jurisdiction is established with respect
to the adverse action alleged”); Cruz v. Dep’t of Navy, 934
F.2d 1240, 1246 (Fed. Cir. 1991) (en banc) (holding that a
reprisal claim cannot be heard as part of a case over
which the Board has no jurisdiction).
JONES v. MSPB 6
Having considered all of Ms. Jones’s arguments that
were reasonably and properly raised, we affirm the
Board’s dismissal of her appeal.
COSTS
Each party shall bear its own costs.
AFFIRMED