Vincent E. Washington v. Merit Systems Protection Board

NOTE: This opinion is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
VINCENT E. WASHINGTON
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3079
__________________________
Appeal from the Merit Systems Protection Board in
Case No. DC0752110411-I-1.
___________________________
Decided : August 9, 2012
___________________________
VINCENT E. WASHINGTON , of Hyattsville, Maryland,
pro se.
D AVID S. BROOKS , Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN , General Counsel and KEISHA D AWN BELL,
Deputy General Counsel.
__________________________

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WASHINGTON v. MSPB 2
Before PROST, M OORE, and WALLACH , Circuit Judges.
PER C URIAM.
Vincent E. Washington (“Mr. Washington”) petitions
for review of a Merit Systems Protection Board (“Board”)
final decision dismissing his allegation that the Bureau of
Engraving and Printing (“BEP”) forced him to retire. The
Board determined that Mr. Washington did not prove his
retirement was involuntary and dismissed the case for
lack of jurisdiction. Washington v. Dep’t of Treasury,
MSPB Docket No. DC-0752-11-0411-I-1 (Dec. 5, 2011).
We affirm.
I.
Mr. Washington held a Bookbinder II position with
BEP but suffered from Chronic Obstructive Pulmonary
Disease (“COPD”) and was placed on light or limited duty
status in 2007, 2009, and 2010. On June 16, 2010, Mr.
Washington provided BEP with medical documentation
from his treating physician stating that he should remain
on light and limited duty status indefinitely.
On August 4, 2010, Mr. Washington received a memo-
randum from BEP’s Office of Security Printing, entitled
“Unable to Perform the Duties of Your Position.” The
memorandum stated that BEP was not legally obligated
to provide Mr. Washington with an indefinite light or
limited duty position and was unable to continue to
employ him as a Bookbinder with his restrictions. It also
asked Mr. Washington to provide medical documentation
certifying that he was able to return to full duty by Au-
gust 13 of that year. The memorandum further stated
that until Mr. Washington provided this documentation
he would not be able to return to work and would be
required to utilize his sick or annual leave, or take leave
without pay (“LWOP”). On August 9, 2010, five days after

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WASHINGTON v. MSPB 3
receiving the memorandum and before the expiry of the
August 13 deadline, Mr. Washington retired.
On February 25, 2011, Mr. Washington filed an ap-
peal with the Board, claiming his retirement was involun-
tary. On March 1, 2011, the administrative judge issued
an Acknowledgement Order notifying Mr. Washington
that the Board might not have jurisdiction over his deci-
sion to retire. The Order informed Mr. Washington that
retirement actions are presumed to be voluntary and that
for the Board to have jurisdiction over his appeal, he must
show that he was prevented from making a voluntary
decision or that a reasonable person in his position would
have been misled by the agency’s actions. The Order
directed Mr. Washington to file evidence and argument to
show his appeal was within the Board’s jurisdiction. Mr.
Washington did not respond to that Order.
On April 12, 2011, the administrative judge issued an
initial decision, finding that Mr. Washington failed to
overcome the presumption that his retirement was volun-
tary. The administrative judge reasoned that Mr. Wash-
ington was given the opportunity to work without
restriction but elected to retire rather than submitting the
requested documentation or seeking an extension on the
August 13 deadline. In response to Mr. Washington’s
argument that he had no alternative but to retire because
he had no leave remaining, the administrative judge
found that the August 4 memorandum expressly refer-
enced LWOP as an alternative. The administrative judge
found that Mr. Washington’s retirement was simply the
course he perceived to be in his best interest and was
therefore voluntary. The administrative judge also exam-
ined and rejected Mr. Washington’s claim for constructive
suspension. As a result, the administrative judge dis-
missed Mr. Washington’s appeal for lack of jurisdiction.

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WASHINGTON v. MSPB 4
Mr. Washington then petitioned the full Board for re-
view, seeking a jurisdictional hearing. The full Board
found that Mr. Washington had not made a non-frivolous
allegation of involuntariness and denied the petition on
December 5, 2011. Mr. Washington filed a timely appeal
to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II.
The scope of our review is limited to whether the
Board’s decision 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). Whether the
Board has jurisdiction over an appeal is a question of law
that this court reviews de novo. Forest v. Merit Sys. Prot.
Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
This case concerns the Board’s jurisdiction to hear a
former Government employee’s appeal regarding his
retirement from service. The Board has jurisdiction to
hear appeals from adverse employment actions, see 5
U.S.C. § 7513(d), but not an employee’s voluntary resigna-
tion or retirement, Staats v. U.S. Postal Serv., 99 F.3d
1120, 1123 (Fed. Cir. 1996). An employee’s resignation or
retirement is presumed to be voluntary and the Board
only has jurisdiction over an appeal filed by an employee
who has resigned or retired if the employee proves, by a
preponderance of the evidence, that his or her resignation
or retirement was involuntary and thus tantamount to
forced removal. Id. at 1123-24; see Garcia v. Dep’t of
Homeland Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en
banc). An employee may establish involuntary retirement
when: “(1) the agency effectively imposed the terms of the
employee’s resignation or retirement; (2) the employee

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WASHINGTON v. MSPB 5
had no realistic alternative but to resign or retire; and (3)
the employee’s resignation or retirement was the result of
improper acts by the agency.” Garcia, 437 F.3d at 1329
(quoting Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341
(Fed. Cir. 2001)). When an employee makes a non-
frivolous claim that would grant the Board jurisdiction
over an appeal, the employee has a right to a hearing. Id.
at 1344.1
Mr. Washington contends that his presumptively vol-
untary retirement was in fact involuntary, that the Au-
gust 13 deadline did not leave him sufficient time to
obtain the relevant medical documentation, and that he
was not informed that an extension on that deadline
might be possible. Mr. Washington further avers that he
felt retirement was his only option because he had no sick
or annual leave remaining and that if he did not retire
immediately, he and his wife would not have medical
insurance coverage. Mr. Washington asserts that he has
made non-frivolous allegations that could establish juris-
diction and is therefore entitled to a hearing.
Because Mr. Washington failed to meet the three-part
test for establishing involuntariness, we hold that he
failed to establish that the Board had jurisdiction over his
appeal. First, Mr. Washington has not demonstrated that
BEP “effectively imposed the terms of [his] . . . retire-
1 To summarize, under 5 U.S.C. §§ 7701 and 7512,
once a claimant makes non-frivolous claims of Board
jurisdiction, namely claims that, if proven, establish the
Board's jurisdiction, then the claimant has a right to a
hearing. At the hearing, the claimant must prove juris-
diction by a preponderance of the evidence. If the Board
determines that the claimant fails to prove jurisdiction by
a preponderance of the evidence, then the Board does not
have jurisdiction and the case is dismissed for lack of
jurisdiction.” Garcia, 437 F.3d at 1344.

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WASHINGTON v. MSPB 6
ment.” Garcia, 437 F.3d at 1329. In the August 4 memo-
randum, which appears to be the impetus for Mr. Wash-
ington’s retirement, BEP did not impose any retirement
terms. Rather, all the memorandum states is that Mr.
Washington had to provide medical documentation show-
ing that he could return to full service or, absent such
documentation, he would be required to utilize sick or
annual leave or be placed on LWOP status. Retirement
was never mentioned. In fact, the only term imposed on
Mr. Washington at all was to obtain medical documenta-
tion by August 13. Although some allegations of time
pressure, in conjunction with other circumstances, may
establish involuntariness, see Middleton v. Dep’t of Def.,
185 F.3d 1374, 1381 (Fed. Cir. 1999), Mr. Washington
never alleged that he attempted to obtain the requested
medical documentation or that he requested an extension
of the August 13 deadline. Had the BEP’s August 13
deadline truly been overly burdensome, it would have
been reasonable for someone in Mr. Washington’s position
to request a time extension in some fashion.
Second, Mr. Washington failed to establish that “[he]
had no realistic alternative but to . . . retire.” Garcia, 437
F.3d at 1329. As this court has stated, the “reviewing
tribunal should ultimately consider 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. BEP’s
memorandum gave Mr. Washington several alternatives
to retirement, such as providing the requested medical
documentation, taking annual or sick leave, or going on
LWOP status. Furthermore, although Mr. Washington
avers that retirement was his only realistic option be-
cause he had no remaining sick or annual leave, the
August 4 memorandum expressly offered LWOP as an
alternative to retirement. To the extent Mr. Washington

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WASHINGTON v. MSPB 7
argues that he could not take LWOP because he needed
medical insurance, our case law holds that creating an
unpleasant situation is not the same as compelled retire-
ment. See Terban v. Dep’t of Energy, 216 F.3d 1021, 1026
(Fed. Cir. 2000) (stating that, in a case where an em-
ployee alleged an agency threatened him with LWOP
status, “where an employee is faced with the unpleasant
alternative of resigning or being subjected to an adverse
action, the resulting resignation cannot be considered an
involuntary retirement unless the employee shows that
the agency lacked reasonable grounds for threatening to
take the adverse action”); see also Staats, 99 F.3d at 1124
(“[T]he doctrine of coercive involuntariness is a narrow
one. It does not apply to a case in which an employee
decides to resign or retire because he does not want to
accept a new assignment, a transfer, or other measures
that the agency is authorized to adopt, even if those
measures make continuation in the job so unpleasant for
the employee that he feels that he has no realistic option
but to leave.”).
Third, Mr. Washington has failed to establish that
“[his] . . . retirement was the result of improper acts by
the agency.” Garcia 437 F.3d at 1329. BEP did not have a
permanent light or limited duty position to offer Mr.
Washington. Given Mr. Washington’s extended time on
light or limited duty, and the medical evaluation suggest-
ing Mr. Washington be placed on light or limited duty
indefinitely, there was nothing coercive, unreasonable, or
improper about BEP requesting that Mr. Washington
either resume his normal duties or not return to his
position until he could. Thus, Mr. Washington failed to
establish by a preponderance of the evidence that his
retirement was involuntary. As a result, the Board
correctly concluded that it did not have jurisdiction over
Mr. Washington’s appeal.

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WASHINGTON v. MSPB 8
Finally, Mr. Washington was not entitled to a hearing
before the Board. Mr. Washington failed to raise a non-
frivolous allegation that, if proven, could establish the
Board’s jurisdiction over his appeal.
III.
For the reasons discussed above, we affirm the
Board’s decision.
AFFIRM
No Costs.

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