Harold L. Wilborn v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HAROLD L. WILBORN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2533
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-16-0033-I-1.
______________________
Decided: March 9, 2017
______________________
HAROLD L. WILBORN, El Cajon, CA, pro se.
L INDSEY SCHRECKENGOST , Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. P OLISUK,
K ATHERINE M. SMITH .
______________________
Before N EWMAN, D YK, and T ARANTO, Circuit Judges.
P ER CURIAM .

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WILBORN v. MSPB 2
Harold L. Wilborn petitions for review of a final order
of the Merit Systems Protection Board (“Board”) dismiss-
ing his appeal for lack of jurisdiction. We affirm.
BACKGROUND
Harold L. Wilborn was employed as a Supervisory
Law Enforcement Communications Assistant at the
Department of Homeland Security. At his request, he
retired with an effective date of January 31, 2015. On
October 12, 2015, Wilborn filed an appeal with the Board
alleging that his retirement was involuntary and asserted
various claims related to his alleged forced retirement.
He also alleged claims under the Uniformed Services
Employment and Reemployment Rights Act of 1994
(“USERRA”) and the Whistleblower Protection Act
(“WPA”). On July 1, 2016, the Board dismissed his ap-
peal, concluding that Wilborn had failed to nonfrivolously
allege facts which would support Board jurisdiction over
his claims. Wilborn petitions for review. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We may set aside a Board decision if it is “(1) arbi-
trary, 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). We review the Board’s conclusion on jurisdic-
tion de novo and its jurisdictional factual findings for
substantial evidence. Rosario–Fabregas v. Merit Sys.
Prot. Bd., 833 F.3d 1342, 1345 (Fed. Cir. 2016).
To establish Board jurisdiction over a constructive
removal based on coercion, “the employee must establish
that a reasonable employee confronted with the same
circumstances would feel coerced into resigning.” Garcia
v. Dep’t of Homeland Sec., 437 F.3d 1322, 1329 (Fed. Cir.

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WILBORN v. MSPB 3
2006) (en banc) (citation and quotation marks omitted).
“[T]he fact that an employee is faced with an unpleasant
situation or that his choice is limited to two unattractive
options does not make the employee’s decision any less
voluntary.” Staats v. U.S. Postal Serv., 99 F.3d 1120,
1124 (Fed. Cir. 1996). There can be no jurisdiction if the
complainant fails to assert a nonfrivolous allegation of
fact that, if proven, would support jurisdiction. Garcia,
437 F.3d at 1344. Wilborn argues that his retirement was
involuntary because he received a suspension for one day
based on a charge of lack of candor. Wilborn also argues
that his retirement was coerced because he received
counseling concerning performance deficiencies, was
placed on a Performance Improvement Plan, and was
subsequently issued a notice of unsatisfactory perfor-
mance. We agree with the Board that Wilborn has not
nonfrivolously alleged that his decision to retire was
involuntary.
Wilborn complains that the agency did not provide
him with a complete investigative file in connection with
the agency’s processing of his Equal Employment Oppor-
tunity (“EEO”) complaint. When an agency completes its
investigation into a complainant’s claims of discrimina-
tion as set forth in an EEO complaint, “the agency shall
provide the complainant with a copy of the investigative
file.” 29 C.F.R. § 1614.108(f). Although the Board did not
make any findings with respect to whether Wilborn
received an investigative file, the Board determined that
Wilborn failed to show that the alleged procedural defi-
ciency could have influenced the voluntariness of his
retirement. Indeed, Wilborn retired months before the
agency completed its investigation into his EEO com-
plaint. We see no error in the Board’s analysis in this
regard.
Even if the Board lacked jurisdiction over his claim
for involuntary retirement, Wilborn asserts that the

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WILBORN v. MSPB 4
Board still had jurisdiction over his WPA and USERRA
claims. Wilborn asserts that he brought an Individual
Right of Action appeal under the WPA. However, Wilborn
does not allege that he exhausted Office of Special Coun-
sel procedures before filing his appeal as required by 5
U.S.C. § 1214(a)(3). In any event, we see no error in the
Board’s determination that Wilborn failed to nonfrivolous-
ly allege that he made any protected disclosures or that
the agency retaliated against him because of those disclo-
sures.
In support of his USERRA claim, Wilborn argues that
the agency subjected him to harassment and a hostile
work environment because of his military status. Wilborn
also claims that the agency denied his request for accrued
sick leave relating to a service-connected disability. We
agree with the Board that Wilborn has failed to make a
nonfrivolous allegation that his military service was a
motivating factor for any agency action that he alleges he
suffered. See 38 U.S.C. § 4311(c).
Wilborn also asserts various discrimination claims.
The Board does not have jurisdiction to consider discrimi-
nation claims independent of some action otherwise
appealable to the Board. Garcia, 437 F.3d at 1325.
Because the Board does not otherwise have jurisdiction
over Wilborn’s appeal, the Board did not err in declining
to evaluate these claims.
Finally, Wilborn argues that he was denied a hearing
before the MSPB. However, a complainant is entitled to a
hearing only if he makes nonfrivolous allegations of fact
that would support jurisdiction if proven. See Garcia, 437
F.3d at 1330. Because Wilborn failed to make any such
nonfrivolous allegation, he is not entitled to a hearing.
We have considered Wilborn’s remaining arguments
and conclude that they are without merit.

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WILBORN v. MSPB 5
AFFIRMED
COSTS
No costs.

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