Taleni Tialino v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TALENI TIALINO,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF THE ARMY,
Intervenor
______________________
2016-1995
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-14-0513-I-2.
______________________
Decided: January 25, 2017
______________________
T ALENI T IALINO, Victorville, CA, pro se.
K ATHERINE MICHELLE SMITH , Office of the General
Counsel, United States Merit Systems Protection Board,
Washington, DC, for respondent. Also represented by
BRYAN G. P OLISUK.

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TIALINO v. MSPB 2
SOSUN BAE , Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for intervenor. Also represented by BENJAMIN C.
MIZER, R OBERT E. K IRSCHMAN, J R., ALLISON K IDD -MILLER.
______________________
Before O’MALLEY , REYNA, and WALLACH , Circuit Judges.
P ER CURIAM .
Taleni Tialino seeks review of a final order of the Mer-
it Systems Protection Board (“the Board”) affirming the
administrative judge’s dismissal of Tialino’s involuntary
resignation claim for lack of jurisdiction. Tialino v. Dep’t
of the Army, No. SF-0752-14-0513-I-2, 2016 WL 716297
(M.S.P.B. Feb. 23, 2016). Tialino failed to meet his bur-
den to demonstrate the Board has jurisdiction over his
complaint. For the reasons stated below, we affirm.
BACKGROUND
Tialino worked for the Department of the Army (“the
Army”) as an engineering equipment operator on the Brea
Dam near Los Angeles. On January 27, 2014, the Army
proposed to remove Tialino from his position based on the
following charges: (1) being under the influence of alcohol
while on duty to the degree that it interfered with the
proper performance of his duties; (2) consuming alcohol
while on duty and while in a government vehicle; (3)
using a government vehicle for non-official purposes; and
(4) lack of candor. Tialino responded orally to the pro-
posed removal, admitting the underlying charges and
noting that he was two years away from retirement
eligibility. Tialino requested that he be permitted to
serve these two years.
The Army’s decision letter sustained the charges and
set March 28, 2014 as the effective date for Tialino’s
removal from service. On March 28, 2014, Tialino sub-
mitted a signed resignation letter to the Army, stating in

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TIALINO v. MSPB 3
its entirety, “To Whom It May Concern, I Taleni Tialino
am resigning today 28 March 2014 to pursue a deferred
retirement.” The Army processed Tialino’s separation as
a resignation, effective March 28, 2014.
Tialino then appealed to the Board, claiming that he
had involuntarily resigned because the Army provided
him with misinformation about his retirement options.
The administrative judge (“the AJ”) issued an order
explaining the burden of proof and applicable law on the
issue of the Board’s jurisdiction over Tialino’s claim and
directed Tialino to respond. Tialino’s responses contained
a variety of allegations, including that Tialino resigned
from his position involuntarily because the Army coerced
him and misrepresented his options; the Army could not
have prevailed in its removal action against Tialino; and
the Army discriminated against Tialino based on a medi-
cal condition, retaliated against Tialino for whistleblow-
ing, and created a “toxic” work environment. The AJ
determined that Tialino had made a nonfrivolous allega-
tion that his resignation was involuntary, and dismissed
the appeal without prejudice. The appeal was automati-
cally refiled on January 2, 2015, and the parties supple-
mented their previous filings in preparation for a
jurisdictional hearing.
On January 20, 2015, Tialino declined a hearing to
determine jurisdiction and instead requested that the AJ
grant jurisdiction based on the written record. After
informing Tialino of the consequences of waiving a juris-
dictional hearing at a conference and in writing, the AJ
ordered Tialino to submit a signed statement if he still
wanted to waive the hearing. Tialino submitted a signed
statement stating that, “[g]iven that I have established
preponderance of the evidence establishing jurisdiction, I
am requesting a decision granting jurisdiction be issued
based upon the written record.” The AJ then conducted
another conference to discuss Tialino’s request to vacate
the hearing on jurisdiction, at which Tialino insisted he

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TIALINO v. MSPB 4
did not desire a jurisdictional hearing. The AJ subse-
quently issued an order cancelling the jurisdictional
hearing, finding that Tialino had been advised of his right
to have the hearing and the status of the case, and that he
had knowingly and voluntarily waived his right to the
hearing.
The AJ then issued an initial decision dismissing
Tialino’s appeal for lack of jurisdiction. The AJ found
that, based upon a review of the entire record and weigh-
ing of all evidence, Tialino had failed to establish by a
preponderance of the evidence that his resignation was
involuntary. The AJ also found that Tialino failed to
show that the Army knew it could not prevail in the
removal action, which is one way he could have estab-
lished that his resignation was involuntary. The AJ held
that Tialino failed to show that the agency pursued
charges it knew it could not sustain.
Tialino filed a petition for review of the initial decision
to the Board, which issued its final order affirming the
AJ’s initial decision dismissing Tialino’s appeal for lack of
jurisdiction on February 23, 2016. The Board held that
the AJ had properly informed Tialino of his jurisdictional
burden of proof, and had properly found that Tialino
failed to meet his burden to show that his resignation was
involuntary.
In its final order, the Board informed Tialino of his
appeal rights, specifically stating that this court “must
receive your request for review no later than 60 calendar
days after the date of this order. . . . [citation omitted]. If
you choose to file, be very careful to file on time.” Tialino,
No. SF-0752-14-0513-I-2, 2016 WL 716297 (M.S.P.B. Feb.
23, 2016).
On March 23, 2016, Tialino faxed a request for an ex-
tension of time to file his petition for review to this court,
within the 60-day time period to appeal. Tialino Br. at
A19. It appears that Tialino faxed another request for an

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TIALINO v. MSPB 5
extension of time to this court on March 30, 2016. Id. at
A24–26. Tialino’s third-party representative allegedly
called the Clerk’s office on April 25, 2016. This repre-
sentative alleges that the Clerk told him that facsimiles
would not be accepted and that any documents must be
mailed. On May 2, 2016, this court received a paper
submission from Tialino requesting an extension of time
to file a petition for review. Tialino attached documenta-
tion to this request showing that he had attempted to fax
his request for an extension of time to this court on March
23, 2016 and March 30, 2016. This court docketed Tiali-
no’s hard copy petition for review. The Army then moved
to dismiss this appeal. ECF No. 6. This court denied that
motion without prejudice, permitting the Board and Army
to raise jurisdictional arguments in the merits briefing.
ECF No. 7.
D ISCUSSION
A. Jurisdiction to Review Tialino’s Petition
Before addressing the merits, an appeals court must
ensure that it has jurisdiction over the matters appealed.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94–95 (1998); Bender v. Williamsport Area Sch. Dist., 475
U.S. 534, 541 (1986) (“[E]very federal appellate court has
a special obligation to satisfy itself . . . of its own jurisdic-
tion . . . even though the parties are prepared to concede
it.”) (internal quotation marks and citations omitted).1
1 Although Tialino asserted that the Army discrim-
inated against him based on disability (post-traumatic
stress disorder and alcoholism) and national origin,
Tialino, No. SF-0752-14-0513-I-2, 2016 WL 716297, at
¶ 13 (M.S.P.B. Feb. 23, 2016), his case is not a mixed case
subject to district court review because the Board dis-
missed it for lack of jurisdiction. Conforto v. Merit Sys.
Prot. Bd., 713 F.3d 1111, 1120–21 (Fed. Cir. 2013).

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TIALINO v. MSPB 6
Congress has limited this court's review of final deci-
sions of the Board to those petitions “filed within 60 days
after the Board issues notice of the final order or decision
of the Board.” 5 U.S.C. § 7703(b)(1)(A). Failure to comply
with that statutory deadline prevents jurisdiction in this
court. See Oja v. Dep’t of the Army 405 F.3d 1349, 1360
(Fed. Cir. 2005) (“Compliance with the filing deadline of 5
U.S.C. § 7703(b)(1) is a prerequisite to our exercise of
jurisdiction over this case.”); see also Monzo v. Dep’t of
Transp., 735 F.3d 1335, 1336 (Fed. Cir. 1984) (stating
that the filing deadline under 5 U.S.C. § 7703(b)(1) is
“statutory, mandatory [and] jurisdictional”).
The Board and the Army, as intervenor, contend that
Tialino failed to comply with the 60-day statutory time
limit for filing his petition for review, given that this court
docketed Tialino’s mailed request for extension of time to
file 69 days after the Board issued its final order. To be
timely filed, a petition for review must be received by the
Clerk on or before the date the petition is due. Fed. R.
App. P. 25(a)(2)(A). Under § 7703(b)(1), Tialino’s petition
was due on April 25, 2016, but the Clerk did not receive
Tialino’s hard copy petition for review until May 2, 2016.
Tialino therefore failed to submit a hard copy petition for
review in a timely fashion. We must consider, however,
whether Tialino’s faxed requests for extension of time,
submitted before the due date for his petition for review,
can be construed as petitions for review.
At the time Tialino faxed his requests, this court op-
erated under the following rules:
(a) Facsimile Filing. A motion, response to a mo-
tion, reply to a response or letter may be filed by
facsimile transmission if the certificate of service
by facsimile transmission states that a copy has
been served on all parties by facsimile transmis-
sion and that the appropriate number of copies of
the motion, response, reply, or letter have been

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TIALINO v. MSPB 7
mailed or shipped for delivery to the clerk and the
parties on the next business day.
(b) Facsimile Filing Limitation. No document oth-
er than a motion, response to a motion, reply to a
response, or letter may be filed or served by fac-
simile transmission.
Fed. Cir. Rule 25(a)–(b) (May 2012). Tialino submitted
documentation showing that he or his representative
faxed two requests for extensions of time to this court in
March 2016, before the filing deadline had passed.2 We
construe Tialino’s faxes as timely requests for review of
the final order in his case, and move to an examination of
the merits of Tialino’s claims.
B. Review of the Board’s Jurisdictional Determination
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board's deci-
sion unless it is “(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 Fields v.
Dep’t of Justice, 452 F.3d 1297, 1301 (Fed. Cir. 2006).
Whether the Board has jurisdiction to adjudicate an
appeal is a question of law that we review de novo. Par-
rott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir.
2008). We review findings of fact underlying the Board's
jurisdictional decision for substantial evidence. Id.
2 The current version of the Federal Circuit’s Rules
of Practice provides that “[a] petition or appeal submitted
by a pro se party must be filed with the court by mail or
delivery, and the court must receive the document by the
due date.” Fed. Cir. Rule 25(c)(2)(A) (Apr. 1, 2016) (em-
phasis in original).

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TIALINO v. MSPB 8
The Board's jurisdiction is not plenary, but is limited
to those matters over which it has been given jurisdiction
by law, rule, or regulation. Johnston v. Merit Sys. Prot.
Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). Resignations are
presumed voluntary, and an employee who voluntarily
resigns has no right to appeal to the Board. Garcia v.
Dep’t of Homeland Sec., 437 F.3d 1322, 1329 (Fed. Cir.
2006) (en banc). The Board has jurisdiction where the
employee proves, by a preponderance of the evidence, that
his resignation was involuntary and thus “tantamount to
forced removal.” Shoaf v. Dep’t of Agric., 260 F.3d 1336,
1341 (Fed. Cir. 2001). We have recognized that “an
involuntary resignation constitutes a constructive remov-
al that is appealable to the [Board].” Id.
As discussed above, the AJ found that Tialino made a
nonfrivolous allegation that his resignation was involun-
tary. When an employee makes a nonfrivolous allegation
of Board jurisdiction, he is entitled to a hearing where he
must prove jurisdiction by a preponderance of the evi-
dence. Garcia, 437 F.3d at 1344; see also Kahn v. Dep’t of
Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) (“If the
employee successfully makes nonfrivolous allegations of
jurisdiction, the Board then conducts a hearing on the
merits.”). Tialino waived his right to a hearing, and
asked the AJ on two occasions, in writing, to decide the
jurisdictional issue on the written record. The AJ can-
celled the hearing accordingly. Substantial evidence
supports the Board’s finding that the AJ informed Tialino
that she had not yet made a decision on jurisdiction prior
to Tialino’s requests for waiver, and that Tialino knowing-
ly and voluntarily waived his right to a hearing. Alt-
hough Tialino argues he did not waive his right to a
jurisdictional hearing, the record belies his contention.
Employees typically seek to show that their resigna-
tions were involuntary on grounds that the agency: “pro-
posed or threatened an adverse action against the
employee,” “misinformed or deceived the employee,” or

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TIALINO v. MSPB 9
coerced the employee to retire by creating intolerable
working conditions. Shoaf, 260 F.3d at 1341 (internal
citations omitted). To establish involuntariness on the
basis of coercion, an employee must show that: “(1) the
agency effectively imposed the terms of the employee's
resignation or retirement; (2) the employee had no realis-
tic alternative but to resign or retire; and (3) the employ-
ee’s resignation or retirement was the result of improper
acts by the agency.” Garcia, 437 F.3d at 1329 (quoting
Shoaf, 260 F.3d at 1341). The test for involuntariness is
“an objective one” that “considers the totality of the cir-
cumstances.” Id. (internal citations omitted). The Board
will find an employee’s resignation involuntary where the
employee shows that he resigned to avoid an adverse
action that the agency was not entitled to take. Terban v.
Dep’t of Energy, 216 F.3d 1021, 1026 (Fed. Cir. 2000). But
where “an employee is faced merely 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. Navy, 810
F.2d 1133, 1136 (Fed. Cir. 1987). We have recognized
that a “resignation or retirement is involuntary if it is
obtained by agency misinformation or deception.” Coving-
ton v. Dep’t of Health & Human Servs., 750 F.2d 937, 942
(Fed. Cir. 1984).
Substantial evidence supports the Board’s finding
that Tialino did not prove by a preponderance of the
evidence that his resignation was involuntary.3 The
Board considered all of the record evidence related to the
3 Tialino offers no evidence to support many of the
allegations he makes in his petition for review, such as
the AJ’s alleged ex parte communications with agency
counsel and the AJ’s alleged bias towards Tialino. Fur-
ther, Tialino failed to raise these arguments before the
Board, and we find them to be waived.

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TIALINO v. MSPB 10
voluntariness of Tialino’s resignation, including Tialino’s
allegations that the Army misled Tialino about his re-
tirement options and that the Army coerced Tialino’s
resignation. The Board rejected Tialino’s claim that he
had insufficient time to consider his options, or alterna-
tively that he was unaware of his options. The Army
issued the proposed removal letter on January 31, 2014,
and did not issue a decision until March 27, 2014. The
Army also assisted Tialino with questions regarding his
retirement eligibility around March 20, 2014. Tialino
acknowledged that he was two years away from retire-
ment during his oral reply to the proposed removal on
February 12, 2014. The Board’s determinations on this
issue are supported by substantial evidence.
The Board also rejected Tialino’s claim that the Army
knew it could not sustain the charges against him. Tiali-
no admitted to the misconduct underlying the charges—
drinking alcohol in his government vehicle while on
duty—in his oral reply. While Tialino retracted these
admissions in his final sworn statement, the AJ concluded
that, based on the photographs of empty beer cans in
Tialino’s government vehicle and Tialino’s earlier admis-
sion to misconduct, Tialino did not prove by preponderant
evidence that the Army had no reasonable grounds for
threatening to remove Tialino. The Board considered
Tialino’s claims about his intoxication, off-duty status,
and alleged whistleblowing in concluding that Tialino
failed to show that the Army knew it could not sustain its
removal charges. Again, we conclude that substantial
evidence supports the Board’s findings on this issue.
Tialino also alleges that the AJ failed to consider that
his supervisor drafted Tialino’s resignation statement.
This allegation is of no moment. Tialino signed the resig-
nation statement, acknowledged in his April 15, 2014
statement that he understood what was happening, and,
he has never alleged that his signature was forged or that
he had not reviewed the letter before signing it.

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TIALINO v. MSPB 11
The AJ weighed the statements offered by all parties
and made findings based upon the standards set forth in
Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 85–87
(1981) with respect to the use of hearsay evidence in
Board proceedings. Tialino’s claim that the AJ erred in
making credibility determinations based only on the
written record fails because Tialino waived his right to a
jurisdictional hearing and requested a decision based on
the written record. Further, Tialino’s arguments about
the weighing of evidence fail because “evidentiary issues
fall within the sound discretion of the [B]oard and its
officials.” Curtin v. Office of Pers. Mgmt., 846 F.2d 1373,
1378–79 (Fed. Cir. 1988). Tialino has not shown that the
Board erred on this point.
CONCLUSION
We have considered Tialino’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.

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