Kelly v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM ROBERT KELLY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF COMMERCE,
Intervenor.
______________________
2013-3178
______________________
Petition for review of the Merit Systems Protection
Board in No. DC0752120131-I-1.
______________________
Decided: June 24, 2014
______________________
WILLIAM ROBERT KELLY, of Kill Devil Hills, North
Carolina, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
2 KELLY v. MSPB
Washington, DC, for respondent. With her on the brief
was BRYAN G. POLISUK, General Counsel.
SHELLEY D. WEGER, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for intervenor. With her on
the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, and
REGINALD T. BLADES, JR., Assistant Director. Of counsel
on the brief was CHRISTIANN COLPOYS BUREK, Office of the
General Counsel, United States Department of Com-
merce, of Washington, DC.
______________________
Before PROST, Chief Judge, BRYSON, and MOORE, Circuit
Judges.
PER CURIAM.
William Robert Kelly appeals from the final order of
the Merit Systems Protection Board (Board) dismissing
his appeal for lack of jurisdiction. Kelly v. Dep’t of Com-
merce, No. DC0752120131-I-1 (M.S.P.B. July 24, 2013)
(Final Order). For the reasons discussed below, we af-
firm.
BACKGROUND
Dr. Kelly worked as a Research Chemist for the Na-
tional Institute of Standards and Technology (NIST) at
the Department of Commerce (Agency). In 2009, Dr.
Kelly alleged that one of his supervisors plagiarized the
work of another colleague. Dr. Kelly reported the alleged
plagiarism to several other NIST employees and sought to
have his supervisor’s name removed from the publication
at issue.
Partly because of his plagiarism allegations, Dr. Kelly
discussed the possibility of transferring out of his NIST
division with Laboratory Director Dr. Willie May later
KELLY v. MSPB 3
that year. He told Dr. May that he was unhappy with the
manner in which his plagiarism complaint was being
handled and expressed his desire to retire. Dr. Kelly was
subsequently presented with a Resolution Agreement that
required him to work from home for a year and then
resign effective September 30, 2011. Dr. Kelly edited the
agreement, requesting removal of certain provisions but
not the provision requiring him to resign. The final
version of the Resolution Agreement signed by Dr. Kelly
on October 7, 2010 included a provision stating that he
agrees to “[v]oluntarily and irrevocably resign from em-
ployment with the Agency no later than September 30,
2011.” Dr. Kelly requested to withdraw his resignation
but the Agency denied Dr. Kelly’s request. Dr. Kelly
signed the necessary paperwork on October 13, 2011,
effectively retiring as of September 30, 2011.
On November 22, 2011, Dr. Kelly filed an appeal with
the MSPB seeking reinstatement at NIST. The MSPB
treated Dr. Kelly’s claim as an appeal of an involuntary
resignation under 5 U.S.C. Chapter 75 (Chapter 75 ap-
peal) and as an Individual Right of Action (IRA) appeal
based on activity protected under the Whistleblower
Protection Act (WPA). The administrative judge (AJ)
ordered Dr. Kelly to produce various documents relating
to the Resolution Agreement, including communications
between Dr. Kelly and the Office of Special Counsel
(OSC), because they related to disputed facts concerning
Dr. Kelly’s resignation. The AJ subsequently held a
hearing on the limited jurisdictional issue of whether Dr.
Kelly’s resignation was voluntary. At the hearing, the AJ
allowed testimony of two witnesses, who were requested
by both Dr. Kelly and the Agency. However, the AJ did
not allow certain other witnesses whose testimony at the
hearing was sought only by Dr. Kelly.
The AJ dismissed Dr. Kelly’s Chapter 75 appeal for
lack of jurisdiction, finding that Dr. Kelly did not estab-
lish by preponderant evidence that his resignation was
4 KELLY v. MSPB
involuntary. Kelly v. Dep’t of Commerce, No.
DC0752120131-I-1, slip op. at 7 (M.S.P.B. May 30, 2012)
(Initial Order). The AJ similarly dismissed Dr. Kelly’s
IRA appeal, concluding that Dr. Kelly’s resignation was
voluntary and thus not a prohibited personnel action
within the meaning of 5 U.S.C. § 2302(a)(2)(A). Id. at 12.
The Board affirmed. Final Order at 3. It found that
the AJ correctly concluded that Dr. Kelly did not establish
Board jurisdiction over either his Chapter 75 appeal or
his IRA claim. The Board further found that the AJ did
not abuse her discretion in denying Dr. Kelly’s request to
present certain witnesses concerning his IRA claim. Id.
at 5. Finally, the Board concluded that the AJ did not
abuse her discretion in compelling Dr. Kelly to produce
the OSC communications and that any error was harm-
less. Id. at 6–7.
Dr. Kelly appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
We review de novo the question of whether the Board
has jurisdiction to adjudicate an appeal. Parrott v. Merit
Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008). In
order to establish jurisdiction, Dr. Kelly has to prove that
his resignation was not voluntary. A resignation is pre-
sumed voluntary unless an employee shows that the
resignation was the product of misinformation or decep-
tion, or the product of coercion by the Agency. Terban v.
Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000).
Dr. Kelly argues that the Board erred in dismissing
his Chapter 75 claim for lack of jurisdiction based on the
incorrect conclusion that his resignation was voluntary.
Pet. Br. 3. Dr. Kelly also argues that because his termi-
nation was involuntary, it was a prohibited personnel
action within the meaning of the WPA. Id. at 4–8. Ac-
KELLY v. MSPB 5
cordingly, Dr. Kelly contends that the Board had jurisdic-
tion over his IRA claim as well.
Dr. Kelly makes two evidentiary arguments on ap-
peal. He contends that if the AJ had permitted him to
present Dr. Katharine Gebbie, “who was privy to high-
level management discussions and actions,” as a witness
at the jurisdictional hearing, then he would have shown
that the Resolution Agreement was a “cleverly disguised”
retaliatory action for his whistleblowing. Pet. Br. 3. We
interpret Dr. Kelly’s argument as one alleging that the AJ
abused her discretion by not allowing him to present the
testimony of Dr. Gebbie. Dr. Kelly also argues that the
AJ committed reversible error in compelling production of
the OSC communications. Id. at 9. He contends that the
AJ exceeded her authority in ordering production of these
communications because 5 U.S.C. § 1214(a)(2)(B) specifies
that certain communications with the OSC are not admis-
sible without consent. Id. at 19–28. He further asserts
that the AJ’s error in compelling production was not a
procedural error but instead a violation of his substantive
rights. 1 Id. at 29–30.
We agree with the government that Dr. Kelly failed to
establish jurisdiction over his appeal. Dr. Kelly does not
argue that his resignation was the product of misinfor-
mation or deception, and there is substantial evidence
that Dr. Kelly’s resignation was not the product of coer-
cion. The AJ concluded, based mostly on Dr. Kelly’s own
admissions, that Dr. Kelly initiated the discussion of his
resignation, actively negotiated the terms of the Resolu-
tion Agreement, and understood the terms of the agree-
1 Dr. Kelly also asserts that the AJ’s order compel-
ling production of the OSC communications violates his
Fourth, Fifth, and Sixth Amendment rights. Pet. Br. 31–
42. We conclude that Dr. Kelly failed to raise these
arguments in the proceedings below.
6 KELLY v. MSPB
ment when he signed it. Initial Decision at 5–6. The AJ
found no evidence that Dr. Kelly was coerced into signing
the Resolution Agreement, but instead found that Dr.
Kelly believed that the Resolution Agreement was a
welcome opportunity to separate himself from his division
of NIST. Id. We therefore conclude that Dr. Kelly did not
rebut the presumption that his resignation was voluntary.
We also hold that the Board correctly concluded that
it lacked jurisdiction over his IRA appeal. To establish
jurisdiction, Dr. Kelly needed to raise a nonfrivolous
allegation that he made a disclosure that “was a contrib-
uting factor in the agency’s decision to take or fail to take
a personnel action as defined by 5 U.S.C. § 2302(a).”
Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001). Because Dr. Kelly’s resignation was
voluntary, it does not constitute a prohibited personnel
action within the scope of the WPA. Dick v. Dep’t of
Veterans Affairs, 290 F.3d 1356, 1362 (Fed. Cir. 2002); see
also Jackson v. Dep’t of Veterans Affairs, 97 F. App’x 297,
301 (Fed. Cir. Apr. 12, 2004); Jay v. Dep’t of Navy, 90
M.S.P.R. 635, 641 (2001). The Board therefore correctly
concluded that it lacked jurisdiction.
We find no reversible error in the AJ’s denial of Dr.
Kelly’s request to present Dr. Gebbie as a witness at the
jurisdictional hearing. To be reversible error, the peti-
tioner must show that the error could have affected the
outcome of the case. Curtin v. Office of Personnel Mgt.,
846 F.2d 1373, 1378–79 (Fed. Cir. 1988); Veneziano, 189
F.3d at 1369. On appeal, Dr. Kelly argues that Dr.
Gebbie’s testimony would have established that the
Agency proposed the Resolution Agreement in retaliation
to facilitate Dr. Kelly’s departure from NIST. Pet. Br. 3–
4; see also Pet. Br. app. at 581. But the Agency’s motiva-
tion in proffering the Resolution Agreement is not rele-
vant to whether Dr. Kelly voluntarily entered into the
Resolution Agreement. There is no suggestion in Dr.
Kelly’s filings that Dr. Gebbie’s testimony would have
KELLY v. MSPB 7
gone to the voluntariness of his acceptance of the Resolu-
tion Agreement, which is dispositive of his claim. Im-
portantly, Dr. Kelly provides no explanation of how the
excluded witness’s testimony would have changed the
outcome of the case.
Finally, the AJ’s order compelling production of the
OSC related communications does not warrant reversal.
This correspondence was not taken into account in the
jurisdictional determination. See Final Order at 7. Any
error in compelling production of this correspondence was
therefore harmless error. Handy v. U. S. Postal Serv., 754
F.2d 335, 338 (Fed. Cir. 1985).
CONCLUSION
We have considered the remainder of Dr. Kelly’s ar-
guments and do not find them persuasive. We affirm the
Board’s dismissal of Dr. Kelly’s appeal.
AFFIRMED
COSTS
Each side shall bear its own costs.