UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

MICHAEL R. JONES, Appellant,

v.
DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER SF

- 3443

- 13

- 4830

- I

- 1

DATE: September 29, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

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 revie w 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 erroneou s 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 Federa l Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, and based on the following p oints 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 de cision. 5 C.F.R. § 1201.113 (b).

DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The appellant retired from hi s 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 in formation assistant position in 2004

. Id . at 31 ; IAF, Tab 13 at 6 4 , 308

- 10

. The appellant filed an i nitial appeal in September 2013 challenging the agency’s processing of his retirement application. IAF, Tab 2. T he administrative judge ordered the appe llant 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 regard ing his involuntary retirement claim or to assert jurisdiction on other bases

. IAF, Tab s 14 , 23

. ¶3 In various pleadings, the agency argued that the Board does not have jurisdiction in this cas e. 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 decision3

concerning his retirement application , the Office of Personnel Management (OPM) ha d not issued a final decision

. IAF, Tab 12 at 4

- 5 . The agency also argued that the appellant ha d not alleged facts that would support jurisdiction

over a n 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 j urisdiction over the involuntary retirement claim because the appellant had failed to adequately explain how his decision to retire wa s involuntary or forced. ID

at 9. ¶5 On petition for review, the appellant state s that he had not rece ived 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 state s that a lthough 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 T he Board’ s jurisdiction is not plenary; it i s 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). T he Board has jurisdict ion 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 applic ation through an appeal brought against the employing agency

. However, in his March 2014 petition for review, the appellant admit s that he ha s not received a decision from OPM. PFR File, Tab 1 at 1. The regulations provide4

that such an appeal is filed a gainst 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 decis ion 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 requ est for law enforcement officer/firefighter treatment m ay be appealed to the Board. Scott v. Department of the Treasury , 71 M.S.P.R. 42 , 46

- 47 (1996). The appellant claim ed that the agency improperly processed his CSRS retiremen t package with special firefighter provisions

. Se e, e.g. , IAF, Tab 2 at 6

. However, the appellant submitted the agency’s August 2013 letter to OPM certifying that he qualifie d for law enforcement/firefighter benefits

. Id.

at 2 9

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

as to this type of claim. T he 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 app lication on any other basis

. Accordingly, we find that the administrative judge correctly determined that the Board does not have jurisdiction over the ap pellant’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 employ ee’s decision to resi gn 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
Servic e , 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

60 9 , ¶ 9. T he appellant must establish by a preponderance of the evidence that the agency made working conditions so difficult that a “ reasonable person ” in h is position would have felt compell ed to resign

. 2 Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 10 (2000). ¶9 The appellant allege d 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 i d

. , Attachment A at 1 (appellant’s June 2013 notice of intent to retire, tentative ly in January 2014). He also alleged that the agency’s actions caus ed 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 generaliz ed 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 gen eral 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 w hen 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 . T he

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 su fficient 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 APPELL ANT 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 reque st 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 stat utory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1 544 (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, ht tp://www.mspb.gov/appeals/uscode.htm

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

.

3 We have considered the appella nt’s assertions of discrimination in the context of the voluntariness of his retirement. However, t o the extent that the appellant allege d separate claims of discrimination based upon his disability or in reprisal for his prior protected activities and wo rkers’ 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 ju risdiction over any such claims, s ee 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," wh ich 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 expresse d 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 representa tion in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board