UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

THERESA BARACKER,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

DE-0752-21-0158-I-1

DATE: February 2, 2023

THIS ORDER IS NONPRECEDENTIAL1

Jeffrey A. Dahl, Esquire, Albuquerque, New Mexico, for the appellant.

Benjamin Fischer, Lakewood, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her involuntary resignation appeal for lack of jurisdiction. For the 

reasons discussed below, we GRANT the appellant’s petition for review and 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

REMAND the case to the Denver Field Office for further adjudication in 

accordance with this Remand Order. 

BACKGROUND

¶2 The appellant alleged in her appeal that the agency improperly denied her 

participation in its Voluntary Early Retirement Authority (VERA) program, and 

that the denial resulted in her involuntary resignation. Initial Appeal File (IAF), 

Tab 6 at 4, 9. Specifically, according to the appellant, the agency misled her 

regarding her eligibility to participate in the early retirement program and that the 

denial of her eligibility was the culmination of harassment and abuse motivated 

by a confrontation her husband had with one of her supervisors several years 

earlier when her husband worked with the supervisor. Id. at 4-5. The appellant 

explained that the agency had offered various employees, including her, a 

voluntary early retirement, but ultimately denied her participation on the grounds 

that she was an essential employee. Id. at 12. She alleged that the agency had 

engaged in preferential treatment in deciding which employees could participate

in the early retirement program. Id. After the agency denied her participation in 

the early retirement program, the appellant resigned, and this appeal followed. 

IAF, Tab 1 at 6, 10. 

¶3 The administrative judge gave the appellant notice of the elements and 

burdens she must meet to be entitled to a hearing on an involuntary retirement or 

resignation claim. IAF, Tab 3. Both parties responded on the jurisdictional issue 

and the agency moved to dismiss the appeal for lack of jurisdiction. IAF, 

Tabs 6-7, 13. Without holding the appellant’s requested hearing, the 

administrative judge issued an initial decision finding that the appellant failed to 

make a nonfrivolous allegation sufficient to overcome the presumption that her 

resignation was voluntary, and he dismissed the appeal for lack of jurisdiction. 

IAF, Tab 14, Initial Decision (ID) at 5. 
3

¶4 In her petition for review, the appellant argues that her resignation was the 

result of the agency’s improper denial of her participation in its VERA program

and that the agency treated her unfairly regarding her eligibility for the program. 

Petition for Review (PFR) File, Tab 1 at 5-8. She also contends that the 

administrative judge improperly weighed the evidence to conclude that she did 

not reasonably rely on the agency’s early retirement offer. Id. at 8-10. The 

agency has filed a response to the appellant’s petition for review. PFR File, 

Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 An involuntary retirement or resignation is tantamount to a removal, and, as 

such, is appealable to the Board. Aldridge v. Department of Agriculture, 

111 M.S.P.R. 670, ¶ 7 (2009). To overcome the presumption of voluntariness, an 

appellant must show that the retirement or resignation resulted from agency 

coercion, deception, or misinformation. Id., ¶ 8. Where, as here, there is a claim 

that an involuntary action resulted from misinformation, an appellant must show: 

(1) that the agency made misleading statements; and (2) that the appellant 

reasonably relied on the misinformation to her detriment. Id. (citing Scharf v. 

Department of the Air Force, 710 F.2d 1572, 1574-75 (Fed. Cir. 1983)). An 

appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal 

of an allegedly involuntary resignation or retirement only if she makes a 

nonfrivolous allegation casting doubt on the presumption of voluntariness. 

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985). 

Nonfrivolous allegations of Board jurisdiction are allegations of fact which, if 

proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). 

¶6 In the initial decision dismissing the appeal because the appellant failed to 

make a nonfrivolous allegation that her resignation was involuntary, the 

administrative judge stated that he was relying “exclusively on the appellant’s 

contentions.” ID at 2 n.3. On review, the appellant argues that the administrative 
4

judge improperly considered the agency’s evidence in determining that its offer 

of early retirement was conditional, and not a promise on which the appellant 

could reasonably rely. PFR File, Tab 1 at 8-10. In Hessami v. Merit Systems 

Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020), the U.S. Court of 

Appeals for the Federal Circuit (Federal Circuit) cautioned that, when evaluating 

Board jurisdiction, the Board may not deny jurisdiction by crediting the agency’s 

interpretation of the evidence. However, the Board need not consider the 

appellant’s allegations “in a vacuum,” and may consider sources such as matters 

incorporated by reference or integral to the claim. Id. at 1369 n.5. In his 

analysis, citing the appellant’s sworn allegations, the administrative judge found 

that the appellant failed to make a nonfrivolous allegation of a broken promise or

a reasonable reliance on a promise made by the agency. ID at 3-4. In doing so, 

he specifically noted that the appellant disputed the agency’s determination that 

she was an essential employee. ID at 3. In her sworn statement, the appellant 

claimed that she was not identified as an essential employee on the agency’s 

Continuity of Operations plan, but her supervisor was, and the agency 

nevertheless allowed her supervisor to participate in the VERA program. IAF, 

Tab 6 at 12. Thus, the initial decision shows that the administrative judge made 

his decision based on the appellant’s sworn allegations, not the agency’s 

evidence. 

¶7 As indicated above, an appellant may rebut the presumption of 

voluntariness by presenting sufficient evidence to show that her resignation was 

based on agency-supplied misinformation. In Baldwin v. Department of Veterans 

Affairs, 109 M.S.P.R. 392, ¶ 26 (2008), for example, the Board found that the 

appellant made a nonfrivolous allegation that he resigned due to agency 

misinformation when an agency human resources specialist told Mr. Baldwin that,

if he resigned before his removal became effective, “he could still obtain a full 

retirement annuity, provided that he later complete[d] the relevant annuity 

application paperwork.” Baldwin, 109 M.S.P.R. 392, ¶¶ 27-28. Nevertheless, the 
5

agency crossed out the word retirement on the Standard Form 52 submitted by 

Mr. Baldwin, wrote in resignation, and processed his request as a resignation as 

he was not yet eligible for immediate retirement. Id., ¶¶ 9, 30. 

¶8 However, in this matter, unlike the appellant in Baldwin, the appellant did 

not resign due to reliance on agency misinformation concerning her eligibility for 

the VERA program because she resigned after the agency told her she would not 

be eligible for the program. Therefore, she did not rely on an agency assertion 

that she was eligible to retire, as the appellant in Baldwin had. Stated differently, 

even if the appellant was misled, she fails to show that she relied on any

misinformation to her detriment. Aldridge, 111 M.S.P.R. 670, ¶ 8. She did not 

resign in reliance on the agency’s initial offer of VERA participation as it had 

been withdrawn by the time of her resignation. The appellant may have been 

discouraged or aggrieved about her treatment by the agency concerning the 

VERA program, and the agency’s decision concerning the VERA program may 

well be incorrect,2but it has no connection to her decision to resign. 

¶9 In her response to the administrative judge’s jurisdictional order, the 

appellant also claimed that she resigned due to a pattern of harassment by her 

second-level supervisor that she blamed on a confrontation between the 

appellant’s husband and her second-level supervisor. IAF, Tab 6 at 4. However, 

the administrative judge did not address the claim in the initial decision and the 

appellant does not raise it on review. Instead, she reiterates her argument that her 

second-level supervisor admitted that he had the ability to offer an early 

retirement to the appellant, but decided, without explanation, not to do so. PFR 

File, Tab 1 at 7; IAF, Tab 6 at 4. While this may not be fair, it does not rebut the 

presumption of voluntariness. Miller v. Department of Defense, 85 M.S.P.R. 310, 

¶ 32 (2000) (“Dissatisfaction with work assignments, a feeling of being unfairly 

criticized, or difficult or unpleasant working conditions are generally not so 

 

2 We make no assertion concerning the merits of the appellant VERA claim. 
6

intolerable as to compel a reasonable person to resign”); see Searcy v. 

Department of Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (finding, among other 

things, that a refusal to grant an educational waiver to allow the employee to 

apply for certain vacancies did not create intolerable working conditions).

¶10 As explained below, however, the appellant may challenge the agency’s 

VERA program denial in an appeal before the Board. Thus, we must remand the 

appeal for the administrative judge to hear the appellant’s challenge. 

The Board has jurisdiction over the appellant’s appeal of the agency’s decision to 

deny her participation in VERA.

¶11 The administrative judge only addressed the appellant’s involuntary 

resignation claim. See ID. As noted, however, the appellant also argued below 

that she was improperly denied participation in the agency’s early retirement 

program and she reiterates this argument on review. PFR File, Tab 1 at 5-7. 

¶12 In Adams v. Department of Defense, 688 F.3d 1330, 1334-36 (Fed. Cir. 

2012), the Federal Circuit affirmed the Board’s decision sustaining the 

appellant’s removal based on the revocation of his security clearance but 

disagreed with the Board’s decision that it lacked jurisdiction to review the 

employing agency’s denial of his request to participate in the agency’s voluntary 

early retirement program. The court reasoned that the voluntary early retirement 

benefit is part of the Federal Employees’ Retirement System (FERS) under which 

Mr. Adams was covered and the Board has jurisdiction over decisions that affect 

an individual’s rights or interests under FERS. Id. at 1335; see 5 U.S.C. §§ 8414, 

8461(e)(1). In Dawson v. Department of Agriculture, 121 M.S.P.R. 495, ¶ 16

(2014), the Board extended the court’s holding in Adams to individuals in the 

Civil Service Retirement System. The Board also clarified that an employee is 

not required to obtain a reconsideration decision from the Office of Personnel 

Management prior to filing a Board appeal of an agency decision. Id., ¶ 17.

¶13 The appellant here made a nonfrivolous allegation that the agency denied 

her eligibility for the VERA program by engaging in preferential treatment in 
7

deciding which employees could participate in the program. IAF, Tab 6 at 12. 

The agency’s denial significantly affected the appellant’s rights or interests under 

FERS, 5 U.S.C. § 8461(e)(1), and thus is an appealable “administrative action”

within the Board’s jurisdiction, Adams, 688 F.3d at 1335-36; Dawson, 

121 M.S.P.R. 495, ¶¶ 16-17. The agency argued below that the appellant failed to 

argue or allege that she applied for an early retirement under the agency’s VERA

program, but the appellant appears to argue that this was due to the agency’s 

improper decision concerning her eligibility. IAF, Tab 7 at 8, Tab 13 at 5 n.1. If 

the administrative judge determines that the appellant did not submit an 

application for the agency’s VERA program, he should examine whether the 

agency’s conduct in determining that the appellant was not eligible for VERA 

program justifies the waiver of any pertinent filing deadline for such benefits. 

See Dawson, 129 M.S.P.R. 495, ¶¶ 19-22 (denying relief because the agency’s 

alleged misconduct did not justify waiver of the filing deadline for VERA 

benefits). 

¶14 On remand, the administrative judge shall afford the parties an opportunity 

to submit evidence and argument on the issues set forth in this Remand Order, 

and adjudicate the merits of the appellant’s appeal, as set forth above. 

ORDER

¶15 For the reasons discussed above, we REMAND this case to the Denver 

Field Office for further adjudication in accordance with this Remand Order. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board