Ide v. Merit Systems Protection Board , 250 F. App'x 984 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3302
CAROL L. IDE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
SOCIAL SECURITY ADMINISTRATION,
Intervenor.
Randall A. Schmidt, of Savannah, Georgia, for petitioner.
Raymond W. Angelo, Acting Associate General Counsel, Office of the General
Counsel, United States Merit Systems Protection Board, of Washington, DC, for
respondent. With him on the brief were B. Chad Bungard, General Counsel, and Rosa M.
Koppel, Deputy General Counsel.
Brain S. Smith, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for intervenor. With him on the brief
were Peter D. Keisler, Acting Attorney General, and Kathryn A. Bleecker, Assistant
Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3302
CAROL L. IDE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
SOCIAL SECURITY ADMINISTRATION,
Intervenor.
___________________________
DECIDED: October 10, 2007
___________________________
Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.
RADER, Circuit Judge.
Carol Ide appeals the final decision of the Merit Systems Protection Board
(“MSPB” or “Board”) denying her petition for review of the dismissal of her appeal of an
allegedly involuntary resignation. Ide v. Soc. Sec. Admin., No. AT-0752-03-0379-M-1
(M.S.P.B. Mar. 29, 2006). This court affirms.
I
Ms. Ide, a disabled veteran, began work on July 15, 2001 as a student trainee in
Savannah, Georgia for the Social Security Administration (“SSA” or “Agency”). Nearing
completion of her degree, Ms. Ide was slated to end her trainee position in Savannah
and begin a permanent position with the Agency in September 2002 in Statesboro,
Georgia. Ms. Ide’s graduation from college was a prerequisite to starting in this
permanent position. In early August 2002, she learned that she had failed a Regents
examination and could not graduate before she was scheduled to begin her permanent
position with the Agency. Ms. Ide did not immediately inform her supervisors of her
situation, but waited until the third time she was questioned by Russell Waller (SSA
District Manager, Savannah) about her status after Ms. Ide knew that she had failed the
Regents exam. In September, Ms. Ide was informed that her employment would be
terminated, as she had not graduated from college as anticipated and there were no
funds allocated to continue her employment as a student trainee. She asked if she had
any options, and was informed by Mr. Waller that she could resign. On September 6,
2002, Ms. Ide signed a resignation letter, which stated that she was resigning for
“personal reasons.”
In January 2003, Ms. Ide filed an appeal asserting that her resignation was not
voluntary. An MSPB administrative judge dismissed her appeal, finding that she did not
meet the statutory definition of “employee” entitled to file an appeal with the Board
under 5 U.S.C. § 7511(a)(1) (2000). After the MSPB denied her petition for review, Ms.
Ide appealed to this court, which reversed the Board’s decision, stating that the record
2006-3302 2
was insufficient to determine whether she was preference eligible and that she had
made nonfrivolous arguments on that issue. Ide v. Soc. Sec. Admin., 131 Fed. Appx.
728 (Fed. Cir. 2005) (unpublished). On remand, the administrative judge assumed that
Ms. Ide met the statutory definition of “employee,” but nonetheless concluded that the
Board lacked jurisdiction because she voluntarily resigned from her position. After
unsuccessfully petitioning the MSPB for review, Ms. Ide now appeals to this court.
II
Whether the MSPB had jurisdiction to adjudicate a case is a question of law,
which this court reviews de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.
Cir. 1995). This court’s review of the Board’s factual determinations supporting its
assessment of jurisdiction is limited, and the Board must be affirmed unless its
determination is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the 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) (2000).
An appellant must prove by a preponderance of the evidence that his or her
appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). Resignation from
the federal service is presumed to be a voluntary act, outside the Board’s jurisdiction.
Braun v. Dep’t of Veterans Affairs, 50 F.3d 1005, 1007 (Fed. Cir. 1995). To rebut the
presumption, the appellant must show: “(1) that the resignation or retirement was the
product of misinformation or deception by the agency; or (2) that the resignation or
retirement was the product of coercion by the agency.” Terban v. Dep’t of Energy, 216
F.3d 1021, 1024 (Fed. Cir. 2000). Importantly, “where an employee is faced merely
2006-3302 3
with the unpleasant alternatives of resigning or being subject to removal for cause, such
limited choices do not make the resulting resignation an involuntary act.” Schultz v U.S.
Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987). But, if an employee can prove that the
agency knew that its reason for threatened removal could not be substantiated, then the
threatened action was coercive. Id.To rebut the presumption that her resignation was voluntary, Ms. Ide argues that
the Agency’s reason for removal cannot be substantiated for two reasons: 1) she was
not required by regulation or by her contract to graduate by a particular date, but only to
graduate within a reasonable time; and 2) there was no immediate need to terminate
her position, as she was without fault for failing her examination and the student position
was funded throughout the fiscal year.
The Board found that Ms. Ide had told the agency repeatedly that she would
graduate in August 2002. In making this determination, the Board weighed Ms. Ide’s
testimony against the testimony of Mr. Waller and Tommy Morris (SSA Georgia Area
Director), documentary evidence including two emails between Mr. Waller and Mr.
Morris from March 2002 and July 2002 indicating that they understood Ms. Ide intended
to graduate in August and begin her permanent position in September, Ms. Ide’s own
testimony that she had purchased a car in July 2002 in anticipation of commuting to her
new job in Statesboro, and Ms. Ide’s own acknowledgement that she was ineligible to
start her permanent position prior to graduation. Mr. Morris also testified before the
administrative judge that he decided that extending Ms. Ide’s student position was
unwarranted given her unforthcoming approach to disclosing her failure to graduate as
well as the staffing commitments already made for the next fiscal year.
2006-3302 4
After conducting a hearing, the administrative judge concluded that the agency’s
version of the events “simply ma[de] sense,” while Ms. Ide’s assertions were “inherently
improbable.” Ide v. Soc. Sec. Admin., No. AT-0752-03-0379-M-1 (M.S.P.B. Nov. 16,
2005). This court is ill-positioned to second-guess the administrative judge’s credibility
determinations on which his overall findings rest. Indeed, an administrative judge’s
credibility determinations are “virtually unreviewable.” Frey v. Dep’t of Labor, 359 F.3d
1355, 1361 (Fed. Cir. 2004) (quoting King v. Dep’t of Health & Human Services, 133
F.3d 1450, 1453 (Fed. Cir. 1998)). Although the administrative judge did not specifically
address the requirement in 5 C.F.R. § 213.3202(b) cited by Ms. Ide that graduation
must be “accomplished in a reasonable and appropriate timeframe,” that provision only
applies to Ms. Ide’s temporary position and does not authorize appointment to a
permanent position before completion of graduation. Nor do the regulations guarantee
permanent positions to students who successfully complete program requirements:
“[s]tudents, who are U.S. citizens, may be noncompetitively converted from the Student
Career Experience Program to a term, career or career-conditional appointment.” 5
C.F.R. § 213.3202(b)(11) (2001) (emphasis added). The administrative judge’s
conclusion that Ms. Ide’s permanent employment with the Agency was contingent upon
her August 2002 graduation was thus based on substantial evidence and was not
clearly erroneous.
Ms. Ide’s assertion that she should have been retained at least through the end
of the fiscal year in her student position is intertwined with her argument that she was
subjected to time pressure to resign, an indication of involuntariness. Time pressure
may provide a basis for involuntariness, but only where the agency demands that the
2006-3302 5
employee make an “immediate decision.” Middleton v. Dep’t of Def., 185 F.3d 1374,
1381 (Fed. Cir. 1999) (quoting Staats v. U.S. Postal Serv., 99 F.3d 1120, 1126 (Fed.
Cir. 1996). Ms. Ide was informed that she would be terminated and signed the
resignation on the same date. But, Ms. Ide has not pointed to anything in the hearing
record that indicates that she was to be terminated that very day. The Board did not
abuse its discretion in concluding that Ms. Ide’s resignation was not coerced.
Substantial evidence therefore supports the MSPB’s conclusion that the SSA
had a supportable reason for removing Ms. Ide, namely that her continued employment
required her to graduate from college. Although Ms. Ide may have been faced with the
“unpleasant alternatives” of resigning or being terminated, this does not make her
choice involuntary. In resigning, Ms. Ide preserved her good standing to reapply for a
future job with the Agency, but sacrificed the procedural protections that are afforded to
a terminated employee. She cannot now seek relief from the MSPB or this court for this
voluntary choice.
Because the MSPB’s conclusion that Ms. Ide’s resignation was voluntary is
supported by substantial evidence, the Board properly determined it lacked jurisdiction
over her appeal, and its decision is therefore affirmed.
2006-3302 6