Laguerra v. MSPB

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARGARET A. LAGUERRA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3152
______________________
Petition for review of the Merit Systems Protection
Board in No. DC0752120395-I-1.
______________________
Decided: January 13, 2014
______________________
MARGARET A. LAGUERRA, of New Carrollton, Mary-
land, pro se.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before LOURIE, PROST, and O’MALLEY, Circuit Judges.
2 LAGUERRA v. MSPB
PER CURIAM.
Margaret A. Laguerra (“Laguerra”) appeals from the
final decision of the Merit Systems Protection Board (“the
Board”) denying her petition for review for lack of juris-
diction. See Laguerra v. Dep’t of the Treasury, No. DC-
0752-12-0395-I-1 (M.S.P.B. Mar. 20, 2012) (“Jurisdiction-
al Order”); (M.S.P.B. June 13, 2012) (“Initial Decision”);
(M.S.P.B. May 23, 2013) (“Final Order”). Because the
Board did not err in denying Laguerra’s petition for
review, we affirm.
BACKGROUND
Laguerra was employed as a GS-7 Human Resources
Assistant at the Internal Revenue Service (the “agency”)
until she retired on February 29, 2012. On February 13,
2012, Laguerra met with her second and third level
managers, who informed her that they intended to pro-
pose her removal for unsatisfactory performance. The
agency had previously placed Laguerra on a performance
improvement plan and had concluded that she failed to
improve sufficiently to avoid removal. On February 15,
2012, Laguerra informed the agency that she wished to
retire effective February 28, 2012. Initial decision at 6.
On February 28, 2012, however, Laguerra rescinded her
retirement, and the agency issued Laguerra a proposed
removal notice the following day giving Laguerra an
opportunity to respond. Id. at 6. Rather than responding
to the proposed removal notice, Laguerra again submitted
her retirement notice on February 29, 2012. Id. at 2.
Laguerra filed an appeal to the Board alleging that
her retirement was involuntary. Laguerra alleged that
the agency discriminated against her because of her age,
created hostile working conditions to force her to retire,
and retaliated against her because of her prior Equal
Employment Opportunity complaints. Laguerra asserted
that her performance was not so deficient as to warrant
removal and that any deficiencies were due to the agen-
LAGUERRA v. MSPB 3
cy’s refusal to provide her with additional training. In her
appeal she asked for restoration of her job.
An administrative judge (“AJ”) issued an order notify-
ing Laguerra that the Board might not have jurisdiction
over her appeal because her retirement was presumed to
be voluntary. Jurisdictional Order at 1. The AJ ex-
plained that Laguerra bore the burden of proof on this
issue; explained the applicable case law and described the
detailed factual allegations required to make a nonfrivo-
lous allegation of jurisdiction; and ordered Laguerra to
file evidence and argument on the jurisdictional issue. Id.
at 1–2.
Laguerra responded and, based on her response, the
AJ issued an initial decision dismissing Laguerra’s appeal
for lack of jurisdiction. Initial Decision at 7. The AJ
found that Laguerra voluntarily retired and noted that
her response to the Jurisdictional Order contained only
“conclusory, vague, and unsupported allegations and
arguments primarily referenc[ing] her dissatisfaction
with legitimate management actions.” Id. He therefore
dismissed her appeal for lack of jurisdiction. Id.
In response, Laguerra filed a petition for review to the
full Board along with new evidence that allegedly sup-
ported her involuntary retirement claims. Final Order at
5. The Board denied the petition for review and affirmed
the AJ’s Initial Decision, which became the decision of the
Board. Id. at 8. The Board refused to consider the prof-
fered evidence because Laguerra failed to show that it
was unavailable before the record closed. Id. at 5–6.
Finally, the Board found no error in the AJ’s analysis that
Laguerra had failed to make a nonfrivolous allegation
that her retirement was involuntary. Id. at 7.
Laguerra appealed to this court under 28 U.S.C. §
1295(a)(9), which provides us with jurisdiction over ap-
peals from a final order or final decision of the Board
pursuant to 5 U.S.C. §§ 7703(b)(1) and 7703(d).
4 LAGUERRA v. MSPB
DISCUSSION
Before getting to the question of the Board’s jurisdic-
tion, we must first address whether we have jurisdiction
to review the Board’s ruling under the Civil Service
Reform Act of 1978, 5 U.S.C. § 1101 et seq. The district
court, not this court, is vested with jurisdiction over any
mixed case appeal that the Board resolves either on the
merits or on procedural grounds. Kloeckner v. Solis, 568
U.S. __, 133 S. Ct. 596, 607 (2012). A mixed case is one
that involves allegations of unlawful discrimination as
well as other grounds for appealing an adverse action.
Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111, 1115–16
(Fed. Cir. 2013). In Conforto, we held that Kloeckner’s
ruling concerning district court jurisdiction did not extend
to the Board’s dismissal for lack of jurisdiction, and
therefore that an appeal from the Board’s dismissal for
lack of jurisdiction properly belongs in this court. Id. at
1117. Thus, we have jurisdiction to decide Laguerra’s
appeal.
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
discretion, 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); see Briggs v.
Merit. Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003). Whether the Board has jurisdiction to adjudicate a
particular appeal is a question of law, which we review
without deference. Kelley v. Merit Sys. Prot. Bd., 241 F.3d
1368, 1369 (Fed. Cir. 2001).
Laguerra argues that the Board failed to take into ac-
count her contentions regarding the merits of the agency’s
proposal to remove her. Laguerra contends that the
agency forced her to retire by creating a hostile working
environment and discriminating against her because of
LAGUERRA v. MSPB 5
her age. The government responds that the Board cor-
rectly dismissed Laguerra’s petition because her conten-
tions did not raise a nonfrivolous allegation of coercion.
We agree with the government that the Board lacked
jurisdiction over Laguerra’s appeal. The Board’s jurisdic-
tion is not plenary, but is limited to those matters over
which it has been given jurisdiction by law, rule, or regu-
lation. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909
(Fed. Cir. 2008). An appellant has the burden to establish
the Board’s jurisdiction by a preponderance of the evi-
dence. 5 C.F.R. § 1201.56(a)(2)(i); Garcia v. Dep’t of
Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en
banc). A preponderance of the evidence is that “degree of
relevant evidence that a reasonable person, considering
the record as a whole, would accept as sufficient to find
that a contested fact is more likely to be true than un-
true.” 5 C.F.R. § 1201.56(c)(2).
The Board has no jurisdiction over voluntary resigna-
tions, and when it lacks jurisdiction it need not decide the
merits, as Laguerra urges. See Parrott v. Merit Sys. Prot.
Bd., 519 F.3d 1328, 1332 (Fed. Cir. 2008). A decision to
resign is presumed to be voluntary. Shoaf v. Dep’t of
Agric., 260 F.3d 1336, 1340–41 (Fed. Cir. 2001). The
Board can only exercise jurisdiction over a petitioner’s
appeal in situations in which an employee can show that
his or her resignation “was involuntary and thus tanta-
mount to forced removal.” Id. at 1341 (footnote omitted);
see Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed.
Cir. 1996). That is not the case here.
The Board properly denied Laguerra’s petition for re-
view for lack of jurisdiction because her contentions failed
to constitute a nonfrivolous allegation that she had been
subjected to coercive pressures sufficient to compel a
reasonable person to retire involuntarily. Conforto, 713
F.3d at 1123. Laguerra was provided with detailed in-
formation advising her of the applicable standards and
6 LAGUERRA v. MSPB
the facts that she would be required to allege in order to
establish the Board’s jurisdiction. The information given
by the AJ was accurate and consistent with the regula-
tions and our case law. Given the state of the record, the
AJ was correct to hold that Laguerra failed to satisfy her
burden of making a nonfrivolous allegation of jurisdiction.
As the AJ noted, Laguerra’s response to the order to show
why the Board had jurisdiction over her case contained
only “conclusory, vague, and unsupported allegations and
arguments primarily referenc[ing] her dissatisfaction
with legitimate management actions.” Initial Decision at
7. Laguerra did not demonstrate that she had no realistic
alternative but to resign or retire, and that her retirement
was the result of “improper acts” by the agency. Schultz
v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987).
For those reasons, we sustain the Board’s decision
that Laguerra failed to show that her retirement was
involuntary and thus tantamount to a removal action.
Accordingly, we conclude that the Board properly dis-
missed Laguerra’s claim for lack of jurisdiction. We have
considered Laguerra’s remaining arguments and conclude
that they are without merit. The decision of the Board is
AFFIRMED
COSTS
No costs.