UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROSALAND LEWIS-JOHNSON,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

PH-315H-16-0437-I-1

DATE: January 24, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Rosaland Lewis-Johnson, Auburn Hills, Michigan, pro se.

David Gallagher and John A. Greenlee, Esquire, Fort Belvoir, Virginia, for 

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

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

as this one only in the following circumstances: the initial decision contains 

erroneous findings of material fact; the initial decision is based on an erroneous 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative 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. 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, 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). 

BACKGROUND

¶2 The appellant filed a Board appeal alleging that her resignation was 

involuntary and that she was forced to resign in lieu of removal. Initial Appeal 

File (IAF), Tab 1. She asserted that she received no warning or corrective action 

prior to her proposed removal and that the agency provided her only 24 hours to 

decide whether to resign or be removed. Id. at 5. Because it appeared that the 

Board may not have jurisdiction over her appeal, the administrative judge ordered 

the appellant to submit evidence and argument establishing a nonfrivolous 

allegation of jurisdiction. IAF, Tab 2. The appellant responded that the Board 

has jurisdiction over her appeal because she was not required to serve a 

probationary period. IAF, Tab 3. The agency thereafter filed a motion to dismiss 

the appeal for lack of jurisdiction, arguing that the appellant was a probationary 

employee and, alternatively, that the appeal should be dismissed as untimely 

filed. IAF, Tab 13. The administrative judge subsequently issued an order 

instructing the parties to address the issue of whether the appellant had standing 

to appeal and, if so, whether the appellant’s resignation was involuntary. IAF, 
3

Tab 14. The parties also were instructed to address the timeliness of the appeal. 

Id. 

¶3 In response, the agency reasserted that the appeal should be dismissed for 

lack of jurisdiction because the appellant lacked standing to appeal to the Board. 

IAF, Tab 15 at 7-8. The appellant responded, again arguing that she is not a 

probationary employee and that she was forced to resign in lieu of removal. IAF, 

Tabs 16-17.

¶4 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 18, Initial 

Decision (ID). He found that under Fitzgerald v. Department of the Air Force, 

108 M.S.P.R. 620, ¶¶ 8-10 (2008), the appellant’s prior service with a different 

agency could be tacked onto her current competitive service to satisfy the 1 year 

of current continuous service required to meet the definition of “employee” in 

5 U.S.C. § 7511(a)(1)(A). ID at 3-5. Thus, he found that the appellant was not a 

probationary employee and that she had standing to appeal an adverse action to 

the Board. ID at 5. Nevertheless, the administrative judge found that the 

appellant failed to make a nonfrivolous allegation of jurisdiction over her

involuntary resignation claim. ID at 5-7. Specifically, the administrative judge 

found that the appellant failed to nonfrivolously allege that the agency coerced 

her into resigning, that she resigned after being given misinformation, or that her 

resignation was otherwise involuntary. ID at 10. In light of this disposition, the 

administrative judge did not address the timeliness issue. ID at 8-10 n.3. 

¶5 The appellant has filed a timely petition for review in which she challenges 

the administrative judge’s findings regarding voluntariness. Petition for Review 

(PFR) File, Tab 1. The agency has filed a response, and the appellant has replied 

to that response. PFR File, Tabs 7-8.
4

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has failed to make a nonfrivolous allegation that her resignation 

was involuntary.

¶6 The appellant has the burden of proving the Board’s jurisdiction by a 

preponderance of the evidence. Axsom v. Department of Veterans Affairs, 

110 M.S.P.R. 605, ¶ 9 (2009). The Board’s jurisdiction is limited to those 

matters over which it has been given jurisdiction by law, rule, or regulation. Id. 

Section 7513(d) of title 5 grants the Board jurisdiction to hear appeals of certain 

enumerated adverse actions, including the agency’s removal of an employee. Id. 

An employee’s voluntary action, such as a resignation, generally is not appealable 

to the Board. Id. However, an involuntary resignation is equivalent to a forced 

removal and is a matter within the Board’s jurisdiction. Id. In a case involving 

such an alleged constructive removal, once the appellant presents nonfrivolous 

allegations of Board jurisdiction—allegations of fact that if proven would 

establish the Board’s jurisdiction—the appellant is entitled to a hearing at which 

she must prove jurisdiction by a preponderance of the evidence. Id. 

¶7 Resignations are presumed to be voluntary, and the appellant bears the 

burden of proving otherwise. Id., ¶ 12. To overcome the presumption that a 

resignation was voluntary, the employee must show that the resignation was the 

result of the agency’s misinformation or deception, or that the resignation was 

coerced by the agency. Id. To establish involuntariness on the basis of coercion, 

an employee must show that the agency effectively imposed the terms of the 

employee’s resignation, the employee had no realistic alternative but to resign, 

and the employee’s resignation was the result of improper acts by the agency. Id. 

The touchstone of the “voluntariness” analysis is whether, considering the totality 

of the circumstances, factors operated on the employee’s decision-making process 

that deprived her of freedom of choice. Id. If an employee claims that her 

resignation was coerced by the agency creating intolerable working conditions, 

she must show a reasonable employee in her position would have found the 
5

working conditions so difficult or unpleasant that they would have felt compelled 

to resign. Id. The Board addresses allegations of discrimination and reprisal in 

connection with an alleged involuntary resignation only insofar as those 

allegations relate to the issue of voluntariness. Id. For the reasons discussed 

below, we agree with the administrative judge that the appellant failed to make a 

nonfrivolous allegation that her resignation was involuntary.

¶8 Here, the appellant reiterates on review her version of the events leading up 

to her resignation and reasserts the claims she raised below, i.e., that the agency 

proposed her removal, that she was coerced to resign because she was placed on 

administrative leave after the agency proposed her removal, and that the agency 

did not provide her enough time to decide whether to resign in lieu of being 

removed. PFR File, Tabs 1, 8.

¶9 However, as the administrative judge correctly found, the fact that an 

employee is faced with the unpleasant choice of either resigning or opposing a 

potential removal action does not rebut the presumed voluntariness of her 

ultimate choice of resignation unless the employee can show that the agency 

knew or should have known that the reason for the threatened removal could not 

be substantiated. See Schultz v. U.S. Navy, 810 F.2d 1133, 1136-37 (Fed. Cir.

1987). Here, although the appellant clearly contests the merits of the proposed 

removal, we agree with the administrative judge’s finding that the appellant has 

made no factual allegations that would even suggest that the agency was aware 

that it could not prove its charges. ID at 8; see Schultz, 810 F.2d at 1136-37. 

Accordingly, we agree with the administrative judge’s conclusion that the 

appellant failed to nonfrivolously allege coercion. Axsom, 110 M.S.P.R. 605, 

¶ 17 (finding that a resignation is not involuntary if the employee had a choice of 

whether to resign or contest the validity of the agency action). 

¶10 Regarding the appellant’s assertion that she resigned under duress because 

she was provided only 24 hours to decide whether to resign or face removal, the 

U.S. Court of Appeals for the Federal Circuit has found under similar 
6

circumstances that giving an appellant approximately 1 hour to decide whether to 

resign or face discipline did not make the decision involuntary because the 

agency was not obligated to make the offer at all. See Parrott v. Merit Systems 

Protection Board, 519 F.3d 1328, 1331, 1335 (Fed. Cir. 2008). Thus, we find 

that the administrative judge properly found that the appellant failed to 

nonfrivolously allege duress. 

¶11 Additionally, the appellant appears to assert on review that her resignation 

was the result of race and age discrimination and retaliation for her prior equal 

employment opportunity activity. PFR File, Tab 1 at 4. We have examined these 

claims insofar as they relate to the involuntariness of her decision to resign, and 

conclude that they fail to raise a nonfrivolous allegation of involuntariness. See

Axsom, 110 M.S.P.R. 605, ¶¶ 12, 17.

¶12 Finally, to the extent the appellant has submitted documents on review in an 

effort to support her involuntary resignation claim, she has provided no showing 

as to why these documents were unavailable below. PFR File, Tab 8 at 17-27.

Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence 

submitted for the first time with the petition for review absent a showing that it 

was unavailable before the record was closed despite the party’s due diligence. 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Therefore, we have 

not considered these documents. Nevertheless, even if we were to consider the

appellant’s untimely submitted evidence, the documents do not support a 

nonfrivolous allegation that her resignation was involuntary and they are, thus, 

immaterial. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). 

Accordingly, we find no basis upon which to disturb the initial decision. 
7

NOTICE OF APPEAL RIGHTS2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

 

2

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
8

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court‐appointed lawyer and 
9

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 
10

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.3The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

 

3

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
11

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board