UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL R. JONES,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

SF-3443-13-4830-I-1

DATE: September 29, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael R. Jones, Cassel, California, pro se.

Luis E. Lorenzana, and Suzanne K. Roten, Esquire, San Diego, California, 

for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only when: the initial decision contains erroneous findings of material 

fact; the initial decision is based on an erroneous interpretation of statute or 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

regulation or the erroneous application of the law to the facts of the case; the 

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant retired from his position as an information assistant in 

August 2013. Initial Appeal File (IAF), Tab 11 at 36. He had previously worked 

as a firefighter/forestry technician, but sustained a workplace injury in July 1993 

that eventually led to his reassignment to the information assistant position in 

2004. Id. at 31; IAF, Tab 13 at 64, 308-10. The appellant filed an initial appeal 

in September 2013 challenging the agency’s processing of his retirement 

application. IAF, Tab 2. The administrative judge ordered the appellant to 

address the issue of Board jurisdiction. IAF, Tab 3. In response, the appellant 

argued, inter alia, that he retired in response to a hostile work environment. IAF, 

Tab 13 at 1. In light of this additional argument, the administrative judge ordered 

the appellant to address the issue of jurisdiction regarding his involuntary 

retirement claim or to assert jurisdiction on other bases. IAF, Tabs 14, 23.

¶3 In various pleadings, the agency argued that the Board does not have 

jurisdiction in this case. See IAF, Tab 12 at 4-6, Tab 15 at 4-9, Tab 26 at 4-5. 

The agency argued that to the extent that the appellant challenged a decision 
3

concerning his retirement application, the Office of Personnel Management 

(OPM) had not issued a final decision. IAF, Tab 12 at 4-5. The agency also 

argued that the appellant had not alleged facts that would support jurisdiction 

over an involuntary retirement claim. IAF, Tab 15 at 6-9. 

¶4 The administrative judge issued an initial decision finding that, to the extent 

that the appellant was attempting to challenge an OPM action through an appeal 

against his employing agency, the Board lacked jurisdiction over such a claim. 

IAF, Tab 31, Initial Decision (ID) at 6. The administrative judge also found no 

jurisdiction over the involuntary retirement claim because the appellant had failed 

to adequately explain how his decision to retire was involuntary or forced. ID 

at 9.

¶5 On petition for review, the appellant states that he had not received a final 

decision from OPM. Petition for Review (PFR) File, Tab 1 at 1. He asserts that 

the Board renumbered and distorted documents in his appeal. Id. at 1-2. The

appellant states that although the Board and the agency have attempted to dispute 

that he retired due to a hostile work environment, they cannot tell him what “was

in his heart and mind” at the time of his retirement. Id. at 1-3. The agency has 

responded in opposition to the petition for review. PFR File, Tab 7.

¶6 The Board’s jurisdiction is not plenary; it is limited to those matters over 

which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit 

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board has 

jurisdiction to adjudicate an individual’s rights and interests under the Civil 

Service Retirement System (CSRS) only after OPM has rendered a final or 

reconsideration decision on the issue in question. Farris v. U.S. Postal 

Service, 101 M.S.P.R. 316, ¶ 8 (2006). In this case, the appellant is asserting a 

violation of his rights regarding the processing of his CSRS retirement 

application through an appeal brought against the employing agency. However, 

in his March 2014 petition for review, the appellant admits that he has not 

received a decision from OPM. PFR File, Tab 1 at 1. The regulations provide 
4

that such an appeal is filed against OPM and not the employing agency. 5 C.F.R. 

§ 831.110. The appellant must pursue the matter with OPM and obtain a final 

OPM decision before filing an appeal to the Board. Farris, 101 M.S.P.R. 316, 

¶ 8.

¶7 Under 5 C.F.R. § 831.910, the final decision of an agency head issued under 

CSRS on a request for law enforcement officer/firefighter treatment may be 

appealed to the Board. Scott v. Department of the Treasury, 71 M.S.P.R. 42, 

46-47 (1996). The appellant claimed that the agency improperly processed his 

CSRS retirement package with special firefighter provisions. See, e.g., IAF, 

Tab 2 at 6. However, the appellant submitted the agency’s August 2013 letter to 

OPM certifying that he qualified for law enforcement/firefighter benefits. Id.

at 29. There is also no evidence that the agency or OPM issued a final decision 

as to this type of claim. The Board therefore lacks jurisdiction over such a claim. 

See Scott, 71 M.S.P.R. at 46-47. The appellant has not submitted evidence or 

argument that would support the exercise of jurisdiction over his claims 

concerning the processing of his retirement application on any other basis. 

Accordingly, we find that the administrative judge correctly determined that the

Board does not have jurisdiction over the appellant’s claims concerning the 

processing of his retirement application.

¶8 The appellant also alleged that his retirement was involuntary and in 

response to agency harassment. IAF, Tab 13 at 10. Generally, the Board lacks 

the authority to review an employee’s decision to resign or retire, because these 

actions are presumed to be voluntary. Brown v. U.S. Postal 

Service, 115 M.S.P.R. 609, ¶ 9 (2011), aff’d, 469 F. App’x, 852 (Fed. Cir. 2012). 

A retirement will be found to be involuntary, however, when it is the result of the 

agency’s coercion or duress, or when the agency made misleading statements 

upon which the employee relied to his detriment. Murray v. U.S. Postal 

Service, 68 M.S.P.R. 177, 179 (1995). In an involuntary retirement case, the 

Board will exercise jurisdiction as a constructive removal. Brown, 115 M.S.P.R. 
5

609, ¶ 9. The appellant must establish by a preponderance of the evidence that 

the agency made working conditions so difficult that a “reasonable person” in his

position would have felt compelled to resign.

2

 Miller v. Department of 

Defense, 85 M.S.P.R. 310, ¶ 10 (2000). 

¶9 The appellant alleged that he had originally planned to retire in 

January 2014, but instead retired in August 2013, after the agency delayed his 

requested retirement date. IAF, Tab 13 at 3-6; see id., Attachment A at 1 

(appellant’s June 2013 notice of intent to retire, tentatively in January 2014). He

also alleged that the agency’s actions caused him to take sick leave and then to 

retire. IAF, Tab 13 at 2. The appellant argued that he did not want to retire, but 

did so for his “physical well-being.” Id. at 10. Finally, the appellant expressed

dissatisfaction with his salary. IAF, Tab 2 at 4.

¶10 Despite the appellant’s assertions of agency harassment, PFR File, Tab 1 

at 3, he has not alleged specific facts either to support this claim or to show that 

the alleged harassment caused him to retire. His dissatisfaction with his salary 

and generalized complaints about his working environment do not support a claim 

that his retirement was involuntary. See Miller, 85 M.S.P.R. 310, ¶ 32. 

Additionally, the appellant’s general assertions that he was discriminated against 

do not demonstrate that his retirement was involuntary. See Loredo v. 

Department of the Treasury, 118 M.S.P.R. 686, ¶ 7 (2012) (stating that when an 

appellant raises an allegation of discrimination in connection with a claim of 

involuntariness, the allegation may be addressed only insofar as it relates to the 

issue of voluntariness). Accordingly, we find that the appellant has not made a 

nonfrivolous allegation casting doubt on the presumption of voluntariness. The 

 2 A preponderance of the evidence is that degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
6

Board therefore does not have jurisdiction over his claim of involuntary 

retirement. See Brown, 115 M.S.P.R. 609, ¶ 11.

3

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

 3 We have considered the appellant’s assertions of discrimination in the context of the 

voluntariness of his retirement. However, to the extent that the appellant alleged

separate claims of discrimination based upon his disability or in reprisal for his prior 

protected activities and workers’ compensation claim, IAF, Tabs 13 at 10, 16 at 6, 

because he has not asserted an appealable action, we find that the Board does not have 

jurisdiction over any such claims, see Tardio v. Department of Justice, 112 M.S.P.R. 

371, ¶ 31 (2009).
7

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board