Sterling Scott v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STERLING SCOTT, DOCKET NUMBER
Appellant, SF-0752-15-0643-I-1
v.
DEPARTMENT OF HOMELAND DATE: February 25, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bobby R. Devadoss, Esquire, and Stephanie Bernstein, Esquire, Dallas,
Texas, for the appellant.
Keri A. Buck, Esquire, and Laurel Rimon, Esquire, Washington, D.C., for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary resignation appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant held the position of Criminal Investigator within the agency’s
Office of the Inspector General in San Diego. Initial Appeal File (IAF), Tab 7
at 26. On December 5, 2014, the agency proposed removing him based upon a
single charge of conduct unbecoming a Federal law enforcement officer. Id.
at 8-15. In short, the agency alleged that the appellant purchased cocaine without
any authority to do so. Id. at 8-9. On December 8, 2014, the appellant designated
an attorney to represent him in the matter. Id. at 16. That attorney submitted a
written response to the proposed removal on January 5, 2015. Id. at 18-24. On
January 7, 2015, before the agency issued a decision on the proposed removal, the
appellant resigned. Id. at 25-26.
¶3 The appellant filed the instant appeal, alleging that his resignation was
involuntary. IAF, Tab 1. The administrative judge issued an order, setting out
the applicable standards and directing the appellant to meet his jurisdictional
burden. IAF, Tab 2. The appellant and agency each filed a response. IAF,
Tabs 5, 7.
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¶4 The administrative judge dismissed the appeal, without a hearing, for lack
of jurisdiction. IAF, Tab 10, Initial Decision (ID). 2 The appellant has filed a
petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed
a response. PFR File, Tab 3.
¶5 An appellant has the burden of proving, by preponderant evidence, that his
appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). If an
appellant raises nonfrivolous issues of fact relating to jurisdiction that cannot be
resolved simply on submissions of documentary evidence, he is entitled to a
hearing on the jurisdictional issue. See Manning v. Merit Systems Protection
Board, 742 F.2d 1424, 1427-28 (Fed. Cir. 1984).
¶6 Employee-initiated actions, such as a resignation, are presumed to be
voluntary, and thus outside the Board’s jurisdiction. Staats v. U.S. Postal
Service, 99 F.3d 1120, 1123-24 (Fed. Cir. 1996). However, an appellant may
overcome the presumption by showing that: (1) his resignation was the product
of misinformation or deception by the agency; or (2) his resignation was the
product of coercion by the agency. Id. at 1124.
¶7 The appellant argued below that the facts asserted in the proposed removal
were inaccurate and incomplete. IAF, Tab 5 at 9. He also alleged that when the
proposing official presented him with the proposed removal, he told the appellant
that he “should not be fighting [the] case because [the proposing official] knew
that the MSPB would rule against [the appellant].” Id. The appellant argued that
the aforementioned statement was misleading and coercive, causing him to resign.
Id. at 4-5, 9-10. He reasserts the argument on review. PFR File, Tab 1 at 6-9.
¶8 Although the appellant has alleged that the agency’s proposal to remove
him was filled with factual errors, he has provided nothing to support that
2
The appellant filed his appeal more than 5 months after his resignation. See IAF,
Tab 1. However, because the administrative judge dismissed the appeal for lack of
jurisdiction, he made no finding on the issue of timeliness. ID at 3 n.2. We decline to
reach the timeliness issue for the same reason.
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assertion or a finding that the agency knew it could not prevail in the matter. See
Briscoe v. Department of Veterans Affairs, 55 F.3d 1571, 1573-74 (Fed. Cir.
1995) (explaining that bald allegations standing alone do not meet the
nonfrivolous allegation standard); see also Baldwin v. Department of Veterans
Affairs, 109 M.S.P.R. 392, ¶ 12 (2008) (discussing that, if an appellant shows that
an agency knew that it would not prevail on a proposed adverse action, the
proposed action is coercive and the resulting resignation is involuntary). In
addition, although the appellant argues that he relied upon the proposing
official’s statement concerning the likelihood of him succeeding in a Board
appeal, we disagree with the assertion that the statement rendered his
resignation involuntary.
¶9 The test for involuntariness is an objective one, requiring the appellant to
show that a reasonable employee in the same circumstances would have felt
coerced into resigning or retiring. Conforto v. Merit Systems Protection
Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013). In this case, the allegedly coercive
statement amounts to little more than the proposing official’s opinion that the
agency had a strong case. See IAF, Tab 5 at 9. We are not persuaded that a
reasonable employee under the same circumstances would have felt coerced into
resigning due to that off-hand comment. This is especially so given the fact that
the appellant had his own attorney representative to consult about the matter, an
attorney who prepared a detailed response to the proposal, extensively citing
Board precedent. IAF, Tab 7 at 16, 18-23.
¶10 Under the circumstances, the appellant may have faced an unpleasant
choice, but he has failed to meet his burden of nonfrivolously alleging that his
resignation was involuntary. See Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed.
Cir. 1987) (stating that the fact that an employee faces an unpleasant choice of
either resigning or facing removal for cause does not render his decision
involuntary). We therefore affirm the administrative judge’s decision, dismissing
the involuntary resignation appeal for lack of jurisdiction.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.