William D. Marcum v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM D. MARCUM,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2439
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-21-0188-I-1.
______________________
Decided: June 4, 2025
______________________
WILLIAM D OUGLAS MARCUM , Nampa, ID, 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 .
______________________
P ER CURIAM .
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MARCUM v. MSPB 2
William D. Marcum petitions for review of a Merit Sys-
tems Protection Board (“Board”) order affirming a Novem-
ber 24, 2021 Initial Decision that dismissed Mr. Marcum’s
appeal alleging involuntary resignation for lack of jurisdic-
tion. Marcum v. DOJ, No. DE-0752-21-0188-I-1, 2023 WL
4875199 (M.S.P.B. July 31, 2023). For the following rea-
sons, we affirm.
BACKGROUND
Mr. Marcum was employed as a Correctional Systems
Officer at the Department of Justice’s Bureau of Prisons
(“Agency”) at the Federal Correctional Complex in Tucson,
Arizona from 2009 until his resignation effective June 25,
2020. S.A. 7–8.1 Events that precipitated Mr. Marcum’s
resignation trace back to 2018 and 2019, when the Agency
began an investigation of Mr. Marcum in relation to his on-
duty and off-duty conduct. S.A. 8–9. After the investiga-
tion began, the Agency suspended Mr. Marcum’s authori-
zation to carry a firearm and transferred him to different
job posts, including an office cubicle and an off-site mail
room. S.A. 8.
On June 24, 2020, at 8:22 a.m., the Agency provided
Mr. Marcum a notice of proposed removal from his position.
S.A. 9, 68–73. The notice cited charges arising out of events
dating to April 2018, including misuse of a government
computer, two specifications of off-duty misconduct,
providing inaccurate information to local law enforcement,
and providing inaccurate information during an official in-
vestigation. S.A. 68–73. At 12:30 p.m. on June 24, 2020,
Mr. Marcum met with the Agency’s human resources offi-
cials, including Jason Ludwick, where he hand-delivered
his letter of resignation. The letter was dated June 17,
2020, reflecting a previous attempt to email the letter to
1 “S.A.” refers to the supplemental appendix in-
cluded with the government’s informal brief.
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MARCUM v. MSPB 3
another employee having the last name Ludwick, and
stated that it served as “two[-]week notification of my re-
quest to resign.” S.A. 10, 67. The “two[-]week” text was
crossed off and replaced with “6/24/20,” which was also
crossed off and replaced with “6/25/20,” both initialed by
Mr. Marcum. S.A. 67. The letter also included a hand-
written notation made by Mr. Ludwick that it was “re-
ceived” June 24, 2020, at approximately 12:30 p.m. S.A.
67.
On June 25, 2020, Mr. Marcum met with Mr. Ludwick
and other human resources department employees to com-
plete the paperwork for his resignation and return his
equipment. S.A. 11. The parties dispute what was said in
the particular interactions between Mr. Marcum and
Agency employees on June 25, which will be discussed be-
low. There is no dispute, however, that at some point Mr.
Marcum expressed concern about insurance coverage and
was told the warden had already signed off on his resigna-
tion. S.A. 11.
On April 22, 2021, Mr. Marcum appealed his resigna-
tion to the Board. S.A. 7. Although the Board lacks juris-
diction over appeals from voluntary resignations, and
resignations are presumed voluntary, Mr. Marcum alleged
that his resignation was involuntary because he had re-
quested to rescind it and his request was denied. S.A. 12.
In its November 24, 2021 Initial Decision, the administra-
tive judge (“AJ”) found that Mr. Marcum had not requested
to rescind his resignation.2 S.A. 7–25. Because the AJ
found that Mr. Marcum had not shown that his resignation
2 The Initial Decision also found that Mr. Marcum
was not forced to resign. S.A. 23–25. To the extent Mr.
Marcum raises a discrimination claim related to his alleged
involuntary resignation, he abandoned such claim to pur-
sue only civil-service claims before this court. ECF No. 61.
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MARCUM v. MSPB 4
was involuntary, the AJ held that the Board lacked juris-
diction and dismissed the appeal. S.A. 25.
Mr. Marcum filed a petition for review with the Board,
and the Board issued a final order affirming the Initial De-
cision and adopting it as its own. S.A. 1–2.
Mr. Marcum timely petitioned this court for review.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Our review of Board decisions is limited. Whiteman v.
Dep’t of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). A
final decision of the Board must be affirmed unless the de-
cision is “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). The Board’s determination that it
lacked jurisdiction is a question of law that we review de
novo. Bennett v. MSPB, 635 F.3d 1215, 1218 (Fed. Cir.
2011). The petitioner bears the burden of proving the
Board’s jurisdiction over his appeal by a preponderance of
the evidence. Id. “[A]lthough we may review freely the
Board’s conclusion that it did not have jurisdiction[,] . . . we
are bound by the AJ’s factual determinations unless those
findings are not supported by substantial evidence.” Bol-
ton v. MSPB, 154 F.3d 1313, 1316 (Fed. Cir. 1998).
Resignations are presumed voluntary, and it is peti-
tioner’s burden to show otherwise. Cruz v. Dep’t of the
Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991). The Board
does not have jurisdiction over an appeal of a voluntary res-
ignation. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
1328 (Fed. Cir. 2006) (en banc). Thus, whether the Board
has jurisdiction rests on a finding that Mr. Marcum’s res-
ignation was involuntary, which Mr. Marcum attempts to
show by arguing he requested to rescind his resignation
and was denied.
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MARCUM v. MSPB 5
The main issue for this court is whether substantial ev-
idence supports the AJ’s finding that Mr. Marcum did not
request to rescind his resignation. Mr. Marcum disputes
that finding, contending he requested to rescind his resig-
nation in the June 25 meeting but was not permitted to do
so. Pet’r’s Informal Br. 3. The government’s position is
that Mr. Marcum never asked to rescind, but instead in-
quired about changing the effective date of his resignation
out of concern for insurance coverage. Resp’t’s Informal
Br. 5.
The AJ considered Mr. Marcum’s evidence and found
that his account of the events of June 24 and 25, 2020, con-
tained anomalies. S.A. 20. The AJ pointed out that under
Mr. Marcum’s account, it is unclear why he would arrive at
the meeting on June 25, 2020, with the sole purpose of re-
scinding his resignation, say as much to Mr. Ludwick and
be told it was too late, only to then immediately drop the
matter and cooperate in out-processing. S.A. 20–21. The
AJ also considered Mr. Marcum’s behavior subsequent to
June 25, 2020, and found it inconsistent with having at-
tempted to rescind his resignation. S.A. 21–22.
Substantial evidence supports the AJ’s determination
that Mr. Marcum did not ask to rescind his resignation,
and therefore, that his resignation was not involuntary.3
“Under the substantial evidence standard, this court re-
verses the Board’s decision only if it is not supported by
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Shapiro v. Soc. Sec.
Admin., 800 F.3d 1332, 1336 (Fed. Cir. 2015) (cleaned up).
The AJ’s factual findings were guided by applying the fac-
tors discussed in Hillen v. Dep’t of Army, 35 M.S.P.R. 453,
3 We do not consider whether the Agency denied Mr.
Marcum’s purported request to rescind his resignation be-
cause Mr. Marcum has failed to show that he even made
such a request.
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MARCUM v. MSPB 6
458 (1987). S.A. 16–17. The AJ assessed the credibility of
live witnesses, including Mr. Marcum and Mr. Ludwick,
and considered such testimony against other evidence.
S.A. 18–22. Mr. Marcum has not directed us to anything
that would cause us to question the AJ’s credibility deter-
minations.4 “As an appellate court, we are not in position
to re-evaluate these credibility determinations, which are
not inherently improbable or discredited by undisputed
fact.” Pope v. USPS, 114 F.3d 1144, 1149 (Fed. Cir. 1997).
Evaluation of witness credibility is a matter within the dis-
cretion of the AJ and is “virtually unreviewable” on appeal.
Frey v. Dep’t of Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004).
The petitioner carries the burden to show a resignation
is involuntary. Cruz, 934 F.2d at 1244. As just discussed,
substantial evidence supports that Mr. Marcum failed to
show that his resignation was involuntary. Because the
Board lacks jurisdiction over appeals from voluntary resig-
nations, see, e.g., Garcia, 437 F.3d at 1328, the Board cor-
rectly found that it did not have jurisdiction over Mr.
Marcum’s appeal.
4 Mr. Marcum’s email to a union representative,
cited for the first time in reply, Informal Reply Br. 6–7,
does not disturb this conclusion. Nor does his memoran-
dum in lieu of oral argument. ECF No. 81 at 4 (Mr. Mar-
cum directing us to his “attempt[s] to reach [his] Regional
Union [representative]”). Even if Mr. Marcum considered
consulting his union representative for advice about his
resignation, his failure to press the issue with the Agency
at the time of the June 24–25 meetings is consistent with
the Agency’s account that Mr. Marcum did not request to
rescind his resignation then.
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MARCUM v. MSPB 7
CONCLUSION
We have considered Mr. Marcum’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm.
AFFIRMED
COSTS
No costs.
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