Nancy J. Swick v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NANCY J. SWICK,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2085
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-17-0008-W-1.
______________________
Decided: May 10, 2024
______________________
N ANCY J. SWICK, Trafford, PA, pro se.
D EANNA SCHABACKER , Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before T ARANTO, HUGHES , and STOLL , Circuit Judges.
P ER CURIAM .
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SWICK v. MSPB 2
Nancy Swick worked as a nurse practitioner, beginning
in 2011, at Fort Belvoir Community Hospital, which is op-
erated by the United States Department of Defense. After
being informed in December 2012 that she would be placed
on a performance improvement plan, she resigned effective
January 2013. She then challenged her resignation as in-
voluntary and alleged whistleblower reprisal before the
Merit Systems Protection Board. An administrative judge
dismissed her challenge for lack of jurisdiction. The Board
agreed that it lacked jurisdiction, though for different rea-
sons, and affirmed the dismissal. On Ms. Swick’s petition
for review, we affirm.
I
On November 28, 2011, Ms. Swick was appointed to
work as a nurse practitioner in the obstetrics and gynecol-
ogy department at Fort Belvoir Community Hospital, with
probationary status for one year. In August 2012, based in
part on patient complaints, her employer grew concerned
about Ms. Swick’s performance, and whether her health
might be a cause, and Ms. Swick’s department chief recom-
mended that she be evaluated by the hospital’s Occupa-
tional Health Clinic. Ms. Swick ultimately took time off
from work due to both her medical issues and an illness in
her family and returned to work on or about November 13,
2012.
In December 2012, Ms. Swick received and reviewed a
letter from her supervisor detailing several complaints,
lodged since her return to work, about her patient care.
The letter states that Ms. Swick’s supervisor was “pursu-
ing disciplinary action” against her and that “[a] Perfor-
mance Improvement Plan will be developed and
implemented as soon as possible.” Supplemental Appendix
(SAppx)156. She also had a meeting with her supervisor
and her department chief on December 13, 2012, to discuss
the concerns raised in the letter. The following Monday,
December 17, 2012, Ms. Swick left her office keys, security
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SWICK v. MSPB 3
badges, and identification cards on her desk before the
clinic opened and did not return to work. On December 26,
2012, Ms. Swick submitted a resignation letter effective
January 4, 2013.
In February 2016, Ms. Swick filed a complaint with the
Office of Special Counsel (OSC) alleging various prohibited
personnel practices under 5 U.S.C. § 2302(b)(1) and (12),
including being forced to resign. SAppx110, SAppx121.
She did not allege retaliation for whistleblowing, a subject
addressed in 5 U.S.C. § 2302(b)(8) and (9). See SAppx115,
SAppx119–120. OSC made a preliminary determination
that it could not “establish the existence of any prohibited
personnel practice alleged in [her] complaint.” SAppx108.
Ms. Swick requested reconsideration, but OSC “found no
new additional information or facts that would lead [it] to
believe [its] preliminary determination was in error,” and,
therefore, closed its review. SAppx107. Ms. Swick filed an
appeal with the Board, arguing that OSC should not have
closed its review without any action.
The assigned administrative judge construed Ms.
Swick’s appeal as having two components: a general chal-
lenge to prohibited personnel practices, including involun-
tary resignation, SAppx27–28, and an individual right of
action appeal for whistleblower reprisal under 5 U.S.C.
§ 1221, SAppx157–58. The administrative judge deter-
mined, based on Ms. Swick’s apparent concession that she
had resigned during her probationary period, see SAppx27,
SAppx114, that the Board lacked jurisdiction over the in-
voluntary-resignation claim because she was not, at the
time of her resignation, an employee under 5 U.S.C. § 7511.
SAppx27–28. As for whistleblower reprisal, the adminis-
trative judge, after advising Ms. Swick of the proof re-
quired to demonstrate the Board’s jurisdiction over such a
claim, determined that the Board lacked jurisdiction. The
administrative judge assumed, without deciding, that Ms.
Swick had exhausted her administrative remedies as re-
quired for a whistleblower claim, but concluded that she
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SWICK v. MSPB 4
had failed to present nonfrivolous allegations of whistle-
blower reprisal. The administrative judge thus dismissed
Ms. Swick’s appeal for lack of jurisdiction. Ms. Swick ap-
pealed the administrative judge’s decision to the Board.
The Board agreed with the administrative judge that it
lacked jurisdiction over Ms. Swick’s appeal, although its
rationale differed in part. Specifically, the Board noted
that Ms. Swick was not in fact a probationary employee,
her one-year probationary period having expired by the
time of her resignation, but it concluded that Ms. Swick
nevertheless had not made a nonfrivolous allegation of
Board jurisdiction over her involuntary-resignation claim,
even after having been properly notified of what was re-
quired for such an allegation. As to Ms. Swick’s whistle-
blower claim, in addition to agreeing with the
administrative judge that Ms. Swick had not presented
nonfrivolous allegations of whistleblower reprisal, the
Board also determined that Ms. Swick had failed to ex-
haust her administrative remedies before OSC. Conse-
quently, the Board affirmed the administrative judge’s
initial decision dismissing Ms. Swick’s appeal.
The Board issued its final order on May 12, 2023. Ms.
Swick timely appealed on June 15, 2023, as permitted by 5
U.S.C. § 7703(b)(1)(A). We have jurisdiction under 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
II
We will affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance 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 over a case
is a legal question that we decide de novo. Forest v. Merit
Systems Protection Board, 47 F.3d 409, 410 (Fed. Cir.
1995). To the extent that the Board has made factual find-
ings related to the jurisdictional inquiry, we review the
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SWICK v. MSPB 5
factual findings for substantial evidence. Lentz v. Merit
Systems Protection Board, 876 F.3d 1380, 1384 (Fed. Cir.
2017). “The petitioner bears the burden of establishing er-
ror in the Board’s decision.” Harris v. Department of Vet-
erans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
Ms. Swick’s principal arguments on appeal concern the
Board’s determination that her resignation was not invol-
untary. An employee’s decision to resign is presumed to be
a voluntary act, for which the employee has no right of ap-
peal. Shoaf v. Department of Agriculture, 260 F.3d 1336,
1340–41 (Fed. Cir. 2001). To establish Board jurisdiction
over a resignation, an employee must prove by a prepon-
derance of the evidence that the resignation was involun-
tary. Id. at 1341. A resignation may be involuntary if it
was coerced or based on alleged misinformation or decep-
tion. Garcia v. Department of Homeland Security, 437 F.3d
1322, 1328–29 (Fed. Cir. 2006) (en banc). To establish that
a resignation was based on 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 realistic alternative but to resign or retire; and (3)
the employee’s resignation or retirement was the result of
improper acts by the agency.’” Id. at 1329 (quoting Shoaf,
260 F.3d at 1341). We have noted that “freedom of choice
is a central issue” in this inquiry. Id. “The fact that an
employee is faced with an inherently unpleasant situation
or that his choice is limited to two unpleasant alternatives
does not make an employee’s decision any less voluntary.”
Covington v. Department of Health and Human Services,
750 F.2d 937, 942 (Fed. Cir. 1984). As for misinformation,
we have found resignations involuntary due to misleading
information, “even innocently provided,” where an em-
ployee “materially relies on the misinformation to his det-
riment.” Id. at 942.
On appeal, Ms. Swick argues that her resignation was
involuntary because, given her medical issues and the per-
formance concerns raised in the latter half of 2012, she
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SWICK v. MSPB 6
would have been illegally practicing medicine while im-
paired had she not resigned. She notes that her supervisor
“knew or should have known” that she “was diagnosed as
impaired” but nevertheless “threatened disciplinary ac-
tion.” Swick Opening Br. at 3. These allegations do not,
however, demonstrate that she had “‘no realistic alterna-
tive but to resign.’” Garcia, 437 F.3d at 1329 (quoting
Shoaf, 260 F.3d at 1341). As the Board notes, Ms. Swick
could have requested medical leave or reasonable accom-
modation, rather than immediately resigning. Board Br.
at 16.
Ms. Swick also suggests that she was misled into re-
signing based on the threat of a performance improvement
plan or other disciplinary action. She does not, however,
provide any support for the assertion that the alleged
threat of disciplinary action was untrue or misleading—
she does not, for example, suggest that there would have
been no basis for disciplinary action. See Cruz v. Depart-
ment of the Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991) (en
banc) (determining that petitioner who contended his res-
ignation was involuntary by alleging that a threatened re-
moval was baseless had not provided sufficient support for
those allegations). She argues that her supervisors should
have discussed with her the conclusions of her occupational
health examinations rather than threatening disciplinary
action, but that contention does not identify a prohibited
personnel action and does not demonstrate that, discipli-
nary action having been proposed, she had no choice but to
resign.
Although Ms. Swick alludes to her previous whistle-
blower claim before the Board, she does not appear to raise
any arguments about it on appeal. In any event, she has
identified no error, and we see none, in the Board’s deter-
mination that it lacked jurisdiction over the whistleblower-
reprisal claim because Ms. Swick had failed to exhaust her
administrative remedies with respect to that claim. See 5
U.S.C. § 1214(a)(3) (requiring the exhaustion of
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SWICK v. MSPB 7
administrative remedies from OSC before seeking correc-
tive action from the Board).
III
We have considered Ms. Swick’s other arguments and
find them unpersuasive. Because Ms. Swick failed to non-
frivolously allege that her resignation was involuntary, we
affirm the Board’s dismissal of Ms. Swick’s complaint for
lack of jurisdiction.
The parties shall bear their own costs.
AFFIRMED
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