William David Jones v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM DAVID JONES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2110
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-20-0273-I-1.
______________________
Decided: June 9, 2025
______________________
WILLIAM D AVID J ONES , Rockville, VA, pro se.
STEPHEN F UNG, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
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JONES v. MSPB 2
Before T ARANTO, CLEVENGER , and HUGHES , Circuit
Judges.
P ER CURIAM .
William D. Jones appeals from the final decision of the
Merit Systems Protection Board (“Board”) dismissing his
case for lack of jurisdiction. Jones v. Dep’t of Def., No. DC-
0752-20-0273-I-1, 2024 WL 3202398 (M.S.P.B. June 26,
2024) (“Final Order”). For the reasons stated below, we af-
firm the Board’s final decision.
I
Mr. Jones was previously employed as an Operations
Research Analyst (GS-1515-13) by the Defense Logistics
Agency (“DLA”), an agency within the Department of De-
fense, and his duty station was at DLA-Aviation in Rich-
mond, Virginia. On September 13, 2018, a lieutenant with
the DLA police force was dispatched to the duty station to
take a report of harassment from a female co-worker of Mr.
Jones. The co-worker reported in a sworn statement that
Mr. Jones had been engaged for some time in an adulterous
relationship with another female DLA employee. The re-
lationship had recently ended, and since then, Mr. Jones
attempted persistently to use the co-worker as a go-be-
tween with his former lover, asking her to deliver messages
to and solicit information about his former lover. The co-
worker also reported that Mr. Jones had grabbed her by
the arm, and she feared for her personal safety due to Mr.
Jones’s increasingly unpredictable and violent behavior.
Based on the allegations of the co-worker’s sworn state-
ment, which outlined evidence of physical assault, harass-
ment and elements of a hostile work environment, the
lieutenant asked Mr. Jones’s former lover to make a sworn
statement at police headquarters in the late afternoon on
September 13. The former lover’s sworn statement de-
tailed a two-year romance gone sour and outlined threat-
ening and defamatory statements made to her or about her
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JONES v. MSPB 3
by Mr. Jones, as evidenced by email documents and text
messages she gave to the lieutenant.
On September 14, 2018, the lieutenant asked Mr.
Jones to come to police headquarters to make a statement
regarding the situation. Mr. Jones complied, accompanied
by his wife, who gave a sworn statement that she knew all
about the affair. In his sworn statement, Mr. Jones con-
firmed the two-year “off and on” relationship with the for-
mer lover, averred that he was in fear for his life because
the former lover possessed several guns, and alleged that
he was being harassed by her.
Later that day, Mr. Jones’s supervisor, John Wait, in-
formed Mr. Jones that he would be required to telework
due to the ongoing situation. On September 20, 2018, DLA
initiated a misconduct investigation into the allegations
made by the two female DLA employees. The objective of
the investigation was to determine whether Mr. Jones en-
gaged in harassment and misconduct in the workplace,
and, if so, whether his conduct created a hostile work envi-
ronment against the complaining female workers or any-
one else. The same day, DLA issued Mr. Jones a “no
contact” order, requiring that he have no direct or indirect
contact with the two females. On October 29, 2018, Mr.
Jones was allowed to return to work at the duty station,
but was given restrictions regarding where he could park
and what buildings he could enter. He was not allowed to
work in the same building with the two females and was
told again not to have any contact with them.
On November 14, 2018, DLA put Mr. Jones on paid ad-
ministrative leave pending completion of its misconduct in-
vestigation. While on leave, DLA required Mr. Jones to
surrender his common access card, after-hours access card,
Government computer, and keys. On November 17, 2018
Mr. Jones spoke with Mr. Wait on the telephone, and Mr.
Wait told Mr. Jones that the misconduct investigation was
“wrapping up and not looking good” for Mr. Jones, and that
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JONES v. MSPB 4
the agency was considering whether to propose his removal
based on the investigation, and he could lose his security
clearance. SAppx221.1
Later on November 17, 2018, Mr. Jones tendered a res-
ignation letter to DLA, stating “Effective 17 November
2018, I resign from my position as a Senior Operations Re-
search Analyst, GS 1515 13 Step 4 . . . . My reasons for this
resignation are personal . . . I have determined that the
goals, mission, and vision of this organization are not in
line with my own, and have found better opportunity else-
where.” SAppx067. The resignation letter did not suggest
in any way that the resignation was involuntarily coerced
by any of DLA’s actions against Mr. Jones, or by Mr. Wait’s
conversation with Mr. Jones earlier that day.
On November 29, 2018, DLA notified Mr. Jones that he
was prohibited from entering his former duty station until
further notice because DLA deemed him a risk to agency
personnel for having exhibited “threatening behavior to-
ward other DLA employees,” and because he had violated
the September 20, 2018 no-contact order. SAppx070.
DLA completed its misconduct investigation on Febru-
ary 8, 2019, concluding that the allegations by the two fe-
male employees were substantiated and thus proved that
Mr. Jones harassed the two female employees, and thereby
created a hostile work environment. The investigation re-
port opined that based on the evidence adduced in the in-
vestigation “the proper authority could have pursued
administrative action against [Mr. Jones], if not for his vol-
untary[]y resignation.” SAppx181.
On January 2, 2020, Mr. Jones filed an appeal with the
Board, alleging that his resignation was involuntary and
1 “SAppx” refers to the supplemental appendix at-
tached to Respondent’s Response Brief.
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JONES v. MSPB 5
coerced by DLA’s creation of a hostile work environment.
In support of his allegations, Mr. Jones pointed to the fact
that DLA placed him on telework status for 47 days, issued
a no-contact order without warning or a hearing, and re-
moved him from all of his usual work and placed him in a
room separate from his co-workers.
In response, DLA filed a motion to dismiss the appeal
for lack of jurisdiction. DLA argued that the evidence
showed that when Mr. Jones was accused of misconduct,
the agency took immediate steps to mitigate the circum-
stances while it investigated the allegations. DLA argued
that Mr. Jones did “not allege[] conditions so intolerable
that a reasonable person under the same circumstances
would have felt that they had no choice but to resign.”
SAppx158–59.
In response to DLA’s motion to dismiss, Mr. Jones dis-
agreed that his resignation was voluntary and uncoerced.
SAppx221–27. Mr. Jones stated that “[a]ny person who
faced the insurmountable obstacles that I endured at the
hands of a few people would have made the same choice
that I did.” SAppx221. In Mr. Jones’s view, DLA’s actions
of isolating him from the workplace and his two female co-
workers, culminating in his placement on administrative
leave on November 14, 2018, resulted in constructive dis-
charge from his position.2 SAppx225.
2 A coerced resignation, if proven, is treated as a con-
structive removal of the employee, and thus an appealable
action within the Board’s jurisdiction. Cruz v. Dep’t of the
Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991) (en banc). Mr.
Jones is thus correct to connect coerced resignations with
removals. But to the extent Mr. Jones argues that his
placement on paid administrative leave is an independent
adverse action appealable to the Board, see Pet’r’s Informal
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JONES v. MSPB 6
On March 4, 2020, an Administrative Judge (“AJ”) dis-
missed Mr. Jones’s appeal, finding the Board lacked juris-
diction because Mr. Jones failed to nonfrivolously allege
that his decision to resign was involuntary. Jones v. Dep’t
of Defense, No. DC-0752-20-0273-I-1 (M.S.P.B. March 4,
2020) (“Initial Decision”).
The Board’s jurisdiction is limited by statute, and, as
relevant here, does not extend to employee-initiated ac-
tions such as resignations, which are presumed to be vol-
untary. Staats v. U.S. Postal Serv., 99 F.3d 1120, 1123-24
(Fed. Cir. 1996). The Board only assumes jurisdiction over
an appeal by an employee who has resigned if the em-
ployee, as a prima facie matter, presents nonfrivolous alle-
gations that the resignation was involuntary. Non-
frivolous allegations are allegations “that, if proven, can es-
tablish the Board’s jurisdiction.” Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322, 1330 (Fed. Cir. 2006) (en banc).
The required nonfrivolous showing matter is adjudicated
by the Board on written submissions by the parties, with-
out a hearing. See Burgess v. Merit Sys. Prot. Bd., 758 F.2d
641, 643 (Fed. Cir. 1985). If the nonfrivolous allegation test
is satisfied, the employee is then entitled to a hearing
where “the claimant must prove jurisdiction by a prepon-
derance of the evidence.” Garcia, 437 F.3d at 1344.
Principal grounds for showing involuntariness are that
the resignation was the product of coercion by the agency
or the product of misinformation or deception by the
agency. Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed.
Cir. 2001). To establish coercion, the employee who has
resigned must show that the agency imposed the alleged
coercive circumstances and that the employee had no
Br. at ¶ 23–24, his argument is misplaced. As relevant
here, agency actions short of actual removal, including an
agency’s proposal to remove, are not independently appeal-
able actions. See Cruz, 934 F.2d at 1243.
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JONES v. MSPB 7
realistic alternative but to resign. Staats, 99 F.3d at 1124.
To establish deception, the employee must show that “a
reasonable person would have been misled” by an agency’s
“misleading information” and that the “employee materi-
ally relie[d] on the misinformation to his detriment.” Cov-
ington v. Dep’t of Health & Hum. Servs., 750 F.2d 937, 942
(Fed. Cir. 1984) (citing Scharf v. Dep’t of the Air Force, 710
F.2d 1572, 1575 (Fed. Cir. 1983)).
The AJ found that while DLA’s actions may have been
“unpleasant,” they did not “evince working conditions so in-
tolerable that a reasonable person . . . would have felt com-
pelled to resign.” Initial Decision at 13. Rather, DLA’s
actions were “taken because [Mr. Jones] was accused of
harassment” and DLA “responded by separating the ac-
cused and the accuser while it undertook an investigation
into the allegations as required by its policy.” Id. The AJ
found that instead of resigning, “a reasonable person in
[Mr. Jones’s] situation would have chosen to stay and chal-
lenge any adverse action that might have been proposed as
a result of the investigation.” Id. The AJ also addressed
the telephone conversation between Mr. Jones and Mr.
Wait. The AJ found that Mr. Wait’s communication did not
amount “to coercion or an improper act by the agency,” and
that instead of resigning, Mr. Jones “could have challenged
the merits of [the] investigation if it resulted in disciplinary
action.” Id. at 13–14. Mr. Jones appealed the AJ’s decision
to the Board.
The Board affirmed the Initial Decision, with one mod-
ification. The Board found there was “no reason to disturb
the [AJ’s] finding” because “altered work assignments, sep-
aration from other employees, and subjection to investiga-
tion and a threat of discipline do not amount to a
nonfrivolous allegation of involuntary resignation.” Final
Order at 7–9.
The Board modified the AJ’s decision only to specifi-
cally address Mr. Jones’s claim that Mr. Wait provided
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JONES v. MSPB 8
misinformation on the likelihood and immediacy of disci-
pline against Mr. Jones, correctly stating that “agency sup-
plied misinformation” can “rebut the presumption of
voluntariness.” Id. at 11. The Board noted that because
Mr. Wait’s information did not appear to be incorrect, “the
agency did not provide misinformation upon which [Mr.
Jones] relied to his detriment,” and thus Mr. Jones made
an “informed choice” to resign. Id. at 12. Therefore, Mr.
Jones “failed to nonfrivolously allege that he lacked a
meaningful choice” and the Board lacked jurisdiction over
his appeal. Id. at 9.
Mr. Jones timely appealed to this court. We have ju-
risdiction to review the Board’s decision under 28 U.S.C.
§ 1295(a)(9).
II
We set aside the Board’s decision if it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Whether the Board has jurisdiction to hear and
decide a particular appeal is a question of law, which we
review de novo. King v. Briggs, 83 F.3d 1384, 1387 (Fed.
Cir. 1996). “This court, however, is bound by the [Board’s]
factual findings on which the jurisdictional determination
is based unless unsupported by substantial evidence.”
Brown v. Merit Sys. Prot. Bd., 469 F. App’x 852, 854 (Fed.
Cir. 2011) (citing Bolton v. Merit Sys. Prot. Bd., 154 F.3d
1313, 1316 (Fed. Cir. 1998)).
A
Our precedent states the test for determining whether
a presumptively voluntary resignation is coerced by agency
action and thus is treated as a constructive removal. The
test requires proof by a preponderance of the evidence that
“the employee had no realistic alternative but to resign or
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JONES v. MSPB 9
retire.” Shoaf, 260 F.3d at 1341 (citing Christie v. United
States, 518 F.2d 584, 587 (Ct. Cl. 1975)). We have de-
scribed this test as an objective one emphasizing that “free-
dom of choice is a central issue.” Garcia, 437 F.3d at 1329.
The question is “whether working conditions were made so
intolerable by the agency that a reasonable person in the
employee’s position would have felt compelled to resign.”
Shoaf, 260 F.3d at 1341.
The AJ enumerated the agency-imposed actions as re-
stricting Mr. Jones’s access to his normal duty station, re-
stating his work assignments and isolating him from the
two female employees who had accused him of misconduct.
Applying the proper test, the AJ found that Mr. Jones
failed to show nonfrivolously that the workplace conditions
imposed on him were “so intolerable that a reasonable per-
son in the appellant’s position would have felt compelled to
resign,” and that instead “a reasonable person in the appel-
lant’s situation would have chosen to stay and challenge
any adverse action that might have been proposed as a re-
sult of the investigation.” Initial Decision at 13. The Board
found no reason to disturb the AJ’s findings. Final Order
at 9.
Mr. Jones does not take issue with the test for measur-
ing whether a presumptively voluntary resignation should
be treated as a constructive removal. Instead he takes is-
sue with the Board’s factual findings, arguing that “[t]he
facts do not agree that [Mr.] Jones voluntarily resigned.”
Pet’r’s Reply to Resp’t’s Informal Br. at 7. Specifically, Mr.
Jones asserts that DLA’s multiple actions isolating him
from his normal duty station and his colleagues are “not
instances of ‘unpleasant[] circumstances in the workplace;’
[they] are components of a constructive removal.” Id. As
such, Mr. Jones simply disagrees with the Board’s findings
that the agency’s restrictions on his work conditions, nec-
essarily imposed to stabilize the workplace during the in-
vestigation into his alleged misconduct, were not of the
kind that would have driven a reasonable person to resign.
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JONES v. MSPB 10
We test the Board’s findings in constructive removal
cases for substantial evidence. Brown, 469 F. App’x at 854.
Substantial evidence is “such relevant evidence as a rea-
sonable mind might accept as adequate to support a con-
clusion.” Consol. Edison of N.Y. v. NLRB, 305 U.S. 197,
229 (1938). Even when reasonable minds may disagree
with a lower court’s findings, an appellate court must ac-
cept the lower court’s findings when the record provides
support for the challenged findings. In re Jolley, 308 F.3d
1317, 1320 (Fed. Cir. 2002) (“‘[T]he possibility of drawing
two inconsistent conclusions from the evidence’ will not
render the Board’s findings unsupported by substantial ev-
idence.” (citing Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)).
In this case, the agency presented an objectively ra-
tional explanation for its imposition of workplace condi-
tions on Mr. Jones. The Board found that securing a non-
hostile workplace pending the outcome of the investigation
could not be considered creation of a hostile workplace suf-
ficient to compel Mr. Jones’s resignation. Mr. Jones’s no
doubt earnest subjective belief that the workplace condi-
tions imposed on him would have driven an equivalently
placed employee to resign cannot displace the substantial
evidence in favor of the Board’s contrary conclusion.
B
Mr. Jones also challenges the Board’s finding that his
resignation was not involuntary because of information he
received from Mr. Wait. Pet’r’s Informal Br. at ¶ 75.
A resignation is involuntary “if it is obtained by agency
misinformation or deception.” Covington, 750 F.2d at 942.
However, “reliance on the misrepresentation is an essen-
tial element” and the employee must show that there was
a misrepresentation in the first place. See Christie, 518
F.2d at 588.
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JONES v. MSPB 11
Mr. Jones fails to demonstrate that Mr. Wait’s state-
ments constituted misinformation. Mr. Wait told Mr.
Jones that the misconduct investigation was “not looking
good,” that DLA was considering removing Mr. Jones based
on the investigation’s outcome, and that Mr. Jones’s secu-
rity clearance could be in jeopardy. SAppx221. As the
Board found, these statements do not appear to be mislead-
ing or constitute misinformation. DLA’s investigation rec-
ommended that, had Mr. Jones not already resigned, “the
proper authority could have pursued administrative ac-
tion” against him. SAppx181. Further, Mr. Jones’s secu-
rity clearance was potentially in jeopardy, as security
clearances can be revoked for adverse personal conduct.
See 32 C.F.R. § 147.7 (“Conduct involving questionable
judgment, untrustworthiness, unreliability, lack of candor,
dishonesty, or unwillingness to comply with rules and reg-
ulations could indicate that the person may not properly
safeguard classified information”). Substantial evidence
supports the Board’s finding that information received by
Mr. Jones from Mr. Wait did not compel Mr. Jones to re-
sign.
CONCLUSION
To secure the Board’s jurisdiction over his appeal to it,
Mr. Jones had the burden to show nonfrivolously that his
presumptively voluntary resignation was involuntarily co-
erced by agency actions or misinformation. We have care-
fully reviewed all of Mr. Jones’s arguments presented in
his many filings to this court, and find none of his argu-
ments suffice to undermine the Board’s final decision that
he failed to carry his burden to show non-frivolously that
his November 17, 2018 resignation should be treated as the
agency having constructively removed him from his posi-
tion. For the reasons stated above, we affirm the Board’s
final decision.
AFFIRMED
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JONES v. MSPB 12
COSTS
Each party shall bear its own costs.
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