Jolley v. Merit Systems Protection Board , 636 F. App'x 567 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM B. JOLLEY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
Intervenor
______________________
2015-3187
______________________
Petition for review of the Merit Systems Protection
Board in Nos. SF-0752-13-0583-I-1, SF-0752-14-0286-I-1.
______________________
Decided: January 11, 2016
______________________
WILLIAM B. JOLLEY, Brunswick, GA, pro se.
MICHAEL ANTON CARNEY, Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
2 JOLLEY v. MSPB
JIMMY S. MCBIRNEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for intervenor. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
Before REYNA, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
William Jolley retired from his position as a Field
Office Director for the Department of Housing and Urban
Development in March 2010. In 2013 and 2014, Mr.
Jolley filed two appeals with the Merit Systems Protec-
tion Board alleging that his retirement was involuntary
and the result of agency retaliation for his veterans-
related activities and whistleblower disclosures. The
Board dismissed his appeals for lack of jurisdiction. We
affirm in part, vacate in part, and remand.
BACKGROUND
The Department of Housing and Urban Development
employed Mr. Jolley as an Operations Specialist in Jack-
sonville, Florida, beginning in 2004. On February 27,
2008, the agency reassigned Mr. Jolley to the position of
Field Office Director in Boise, Idaho. Mr. Jolley accepted
the reassignment, but his wife did not move to Idaho with
him. In August 2009, Mr. Jolley and John Meyers, the
Field Office Director in Springfield, Illinois, asked that
they be allowed to switch positions, but the agency re-
sponded that all field-related movements were on hold at
that time. Mr. Jolley and Mr. Meyers renewed their
request in February 2010 and got the same response. Mr.
Jolley retired on March 31, 2010.
On June 29, 2013, Mr. Jolley filed an appeal with the
Board, alleging that, in retaliation for his advocacy on
veterans’ issues, the agency transferred him to Idaho and
JOLLEY v. MSPB 3
refused to allow him to relocate by switching positions
with Mr. Meyers, with the result that he was effectively
coerced into retiring. In a separate appeal to the Board,
Mr. Jolley alleged that the agency coerced his retirement
in retaliation for protected whistleblowing disclosures.
The appeals were joined for adjudicatory purposes.
The administrative judge determined that Mr. Jolley
did not meet his burden of establishing that his retire-
ment was involuntary or, therefore, was actually a re-
moval—one of the “adverse actions” over which the Board
has jurisdiction under 5 U.S.C. § 7512. And, although the
administrative judge indicated that the appeal was lim-
ited to § 7512 and so depended on showing involuntari-
ness of the retirement, the administrative judge also
found that Mr. Jolley simply presented “no evidence
whatsoever that his reassignment was directed in retalia-
tion for veteran-related status or actions.” P.A. 21. On
those grounds, the administrative judge dismissed the
appeal for lack of jurisdiction.
Mr. Jolley filed a petition for review by the Board. He
asserted that the Board’s jurisdiction was not limited to 5
U.S.C. § 7512, which depended on his demonstration that
he was “remov[ed],” but separately could rest on the
Uniformed Services Employment and Reemployment Act,
38 U.S.C. § 4324(b), which did not require Mr. Jolley to
show that his retirement was involuntary for the Board to
have jurisdiction. The Board denied the petition and
affirmed the initial decision, concluding that the adminis-
trative judge correctly determined that 5 U.S.C. § 7512
was the only basis for jurisdiction because Mr. Jolley had
“styled his appeal as a forced retirement” from the outset.
Jolley v. Dep’t of Hous. & Urban Dev., Nos. SF-0752-13-
0583-I-1, SF-0752-14-0286-I-1, 2015 WL 3750717, ¶ 9
(M.S.P.B. June 16, 2015). The Board also concluded that
the administrative judge should not have reached the
merits of the underlying USERRA claim of retaliation for
veterans-related activities. Rather, the Board determined
4 JOLLEY v. MSPB
that the retaliation claim “could only be considered as it
related to the issue of voluntariness.” Id. ¶ 10. Because
Mr. Jolley did not show how his retaliation claim related
to the involuntariness of his retirement, the Board con-
cluded that the administrative judge’s consideration of
the merits of Mr. Jolley’s USERRA claim was harmless.
Mr. Jolley appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
We review the Board’s ultimate decision regarding ju-
risdiction without deference but are bound by the Board’s
jurisdictional factual findings unless the findings are not
supported by substantial evidence. Bolton v. MSPB, 154
F.3d 1313, 1316 (Fed. Cir. 1998).
The only basis for jurisdiction that the Board consid-
ered is Mr. Jolley’s assertion of involuntary retirement. A
decision to resign or retire is presumed voluntary, and
therefore outside the Board’s jurisdiction. Staats v.
USPS, 99 F.3d 1120, 1123–24 (Fed. Cir. 1996). But if an
employee can prove that the resignation or retirement
was involuntary, amounting to a “removal,” 5 U.S.C.
§ 7512, the Board has jurisdiction over the constructive-
removal action. Shoaf v. Dep’t of Agric., 260 F.3d 1336,
1341 (Fed. Cir. 2001). Involuntariness as relevant here is
a narrow doctrine, and it “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, a transfer, or
other measures that the agency is authorized to adopt,
even if those measures make continuation in the job so
unpleasant for the employee that he feels that he has no
realistic option but to leave.” Staats, 99 F.3d at 1124.
We see no basis for disturbing the Board’s determina-
tion that Mr. Jolley did not show that his retirement was
involuntary. The Board determined that Mr. Jolley
simply “failed to show how his retaliation claim related to
JOLLEY v. MSPB 5
the voluntariness of his decision to retire.” Jolley, 2015
WL 3750717, ¶ 10. Mr. Jolley presents no evidence or
argument to support a finding of coercion. He suggests
that he was faced with choosing between retiring and
being employed in Boise, but “the 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. And with regard to Mr. Jolley’s claim that the
agency coerced his retirement in retaliation for protected
whistleblower disclosures, the Board found that Mr.
Jolley’s protected disclosures were made in 2013, almost
three years after he retired (and still longer after he was
reassigned). Mr. Jolley does not identify any disclosures
that were made before his retirement. Therefore, he has
not supported this alleged basis of involuntariness.
Although Mr. Jolley has not carried his burden in es-
tablishing that his retirement was involuntary, and
therefore the Board does not have jurisdiction to hear this
claim under 5 U.S.C. § 7512, the Board incorrectly con-
cluded that Mr. Jolley presented his appeal solely as an
involuntary-retirement claim. In his filings to the Board,
Mr. Jolley consistently asserted that his reassignment to
Boise was a USERRA violation. The Board did not ad-
dress that claim.
This court, like the Board, “has adopted a liberal ap-
proach in determining whether jurisdiction exists under
USERRA.” Yates v. MSPB, 145 F.3d 1480, 1484–85 (Fed.
Cir. 1998); see also Duncan v. USPS, 73 M.S.P.R. 86, 92
(1997), overruled on other grounds by Fox v. USPS, 88
M.S.P.R. 381 (“The relative weakness of the specific
factual allegations initially made by an appellant in his
USERRA claim . . . should not serve as the basis for
dismissing [his appeal] for lack of jurisdiction; if he fails
to develop those allegations, his USERRA claims should
simply be denied on the merits.”). Section 4311 protects
“any benefit of employment,” 38 U.S.C. § 4311(a), and
6 JOLLEY v. MSPB
further states that “[a]n employer may not discriminate in
employment against or take any adverse employment
action against any person because such person . . . has
taken an action to enforce a protection afforded any
person under this chapter,” § 4311(b). Here, Mr. Jolley
alleges that he was denied a benefit of employment in
being reassigned to Boise because he “was not allowed to
choose from other available and more geographically
advantageous positions available.” R.A. 15. Mr. Jolley
also alleges that he was reassigned based on his
USERRA-related activities, specifically that he had
previously filed several USERRA claims against Housing
and Urban Development. Mr. Jolley’s allegations are
sufficient to establish the Board’s jurisdiction over his
USERRA reassignment claim.
The administrative judge did decide that Mr. Jolley
had failed to support his USERRA claim with evidence.
But the Board did not review that ruling; indeed, it criti-
cized the administrative judge for making the ruling.
That was error. We will not here review the administra-
tive judge’s merits determination ourselves. We remand
the USERRA challenge to the reassignment to the Board
for it to consider the merits of the claim.
Finally, we reject Mr. Jolley’s argument that the
Board was not entitled to enter its final decision in his
case at all because, at the time of the decision, the Board
was composed only of two members in violation of 5
U.S.C. § 1201, which states that the Board “is composed of
3 members.” Mr. Jolley acknowledges that 5 C.F.R.
§ 1200.3 authorizes the Board to decide cases with only
two members, and he does not dispute that the regulation
covers the present situation. But he contends that the
regulation violates 5 U.S.C. § 1201. We disagree. Section
1200.3 was adopted pursuant to 5 U.S.C. § 1204(h), see
Board Organization, 59 Fed. Reg. 39,937-01 (Aug. 5,
1994), which expressly gives the Board “the authority to
prescribe such regulations as may be necessary for the
JOLLEY v. MSPB 7
performance of its functions.” That statutory grant of
authority literally covers the regulation allowing the
continued functioning of the Board with two members
when one seat is unfilled. We see no reason to find lack of
legal authorization for the rule under which the Board
acted. See Falcon Trading Grp., Ltd. v. SEC, 102 F.3d
579, 582 (D.C. Cir. 1996); LaPeyre v. FTC, 366 F.2d 117,
122 (5th Cir. 1966).
CONCLUSION
For the foregoing reasons, we affirm the Board’s
judgment that the Board does not have jurisdiction over
Mr. Jolley’s involuntary-retirement claim, vacate the
Board’s judgment that Mr. Jolley did not establish juris-
diction over his reassignment claim, and remand.
No costs awarded.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED