NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

GARTH K. TRINKL,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2017-1378

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-0752-16-0387-I-1.

______________________ 

Decided: March 30, 2018

______________________ 

 J. DEREK MCCORQUINDALE, Finnegan, Henderson, 

Farabow, Garrett & Dunner, LLP, Reston, VA, argued for 

petitioner. Also represented by DANIEL CRAIG COOLEY;

JOSE M. RECIO, JASON LEE ROMRELL, Washington, DC.

 STEPHEN FUNG, Office of the General Counsel, Merit 

Systems Protection Board, Washington, DC, argued for 

respondent. Also represented by KATHERINE M. SMITH,

JEFFREY A. GAUGER. 

______________________ 
2 TRINKL v. MSPB

Before NEWMAN, LOURIE, and REYNA, Circuit Judges.

Opinion for the court filed by Circuit Judge REYNA. 

Dissenting opinion filed by Circuit Judge LOURIE. 

REYNA, Circuit Judge. 

Petitioner Garth K. Trinkl seeks review of the decision of the Merit Systems Protection Board, sustaining 

the Initial Decision of the Administrative Judge dismissing Trinkl’s appeal from an alleged involuntary retirement. Trinkl claims that multiple incidents during his 

employment created a hostile work environment and led 

to his involuntary resignation. Because the Board improperly concluded that Trinkl failed to present nonfrivolous allegations of jurisdiction, we vacate the decisions below and remand for a jurisdictional hearing. 

BACKGROUND

Trinkl was an economist with the Department of 

Commerce in the Bureau of Economic Analysis (“BEA”) 

from 1998 to his retirement in 2015. During his service to 

the agency, Trinkl received numerous “high quality” 

ratings related to his job performance.

In 2007, Howard Krakower was appointed as Trinkl’s 

first line supervisor. In 2013, Trinkl submitted a complaint to the BEA’s Human Resources Division, alleging 

that he had overheard Kurt Kunze, Trinkl’s second line 

supervisor, refer to older employees as the “peanut gallery.” J.A. 228–29. Trinkl and a fellow BEA employee 

also observed Kunze push another agency employee into a 

wall.

Subsequently,1 Trinkl alleges that he endured a 

“near-physical” attack from his supervisors Krakower and 

 

1 Trinkl’s amended petition before the Board alleges 

that this event took place in October of 2013. J.A. 143,
TRINKL v. MSPB 3

Kunze. Specifically, Krakower and Kunze met with 

Trinkl for a mid-year performance review; Trinkl claims 

that during the meeting, he stood up to protest false 

allegations concerning his performance deficiencies and 

was yelled at to sit down. Trinkl further alleges that 

when he announced he was leaving the review and 

walked towards the conference room door, Kunze yelled to 

Krakower to stop him, and Krakower “quickly rose and 

came within inches and micro-seconds of grabbing and 

restraining” Trinkl from opening the door. J.A. 5. Trinkl

allegedly yelled at Krakower not to touch him and left the 

room. Trinkl claims that he left the meeting room in 

great fear and immediately reported the incident by 

telephone to a Physical Security Officer. Trinkl provides 

emails with the Officer discussing the incident. J.A. 95, 

185–86. 

Trinkl claims that the “near-physical attack,” coupled 

with his recollection of the earlier incident of another 

employee being pushed against a wall, left a profound 

impact on him and exacerbated Trinkl’s preexisting posttraumatic stress disorder (“PTSD”). Trinkl alleges the 

agency nurse was aware of Trinkl’s PTSD condition, and 

provides an email describing how he sought refuge in the 

nurse’s station to avoid meeting with Krakower and 

Kunze. J.A. 186.

Trinkl alleges that after the “near-physical” attack, he 

had been instructed by the Physical Security Officer not

to meet with his supervisors Krakower and Kunze in 

person. Trinkl provides emails in which he requests 

assistance from other supervisors in maintaining physical 

 

144, 149. Other documents in the record suggest that the 

event in question took place in April of 2014. J.A. 102, 

109. Trinkl alleges that his PTSD caused him to have 

difficulty recalling the exact date of the incident. J.A. 

149. 
4 TRINKL v. MSPB

distance from Krakower and Kunze. J.A. 296. In September 2014, Krakower and Kunze sent emails to Trinkl

for performance reviews, to which Trinkl replied that he 

had been advised against meeting with the two men in 

any setting. J.A. 193. 

On August 27, 2014, the Human Resources division of 

the Census Bureau finished its administrative investigation into Trinkl’s separate allegations of harassment and 

retaliation, concluding that “[t]he investigation revealed 

that there is no conclusive evidence to suggest that 

[Trinkl had] been subjected to prohibited harassment, 

based on age and retaliation/reprisal.” J.A. 187. 

On October 31, 2014, Trinkl submitted an Application 

for Immediate Retirement, and indicated that he wished 

to retire because he no longer felt safe working at the 

agency “due to reported supervisory threats and violence.” 

J.A. 215. Trinkl chose a final separation date of January 

10, 2015, but in the interim requested transfer to new 

supervisors. The transfer request was denied because

Trinkl had been placed under a Performance Improvement Plan (“PIP”), reviewed by Krakower. Trinkl claims 

he was further harassed by Krakower after submitting 

his separation paperwork. Trinkl continued to refuse to 

meet with Krakower and Kunze in any capacity until he 

retired on January 10, 2015. 

On February 25, 2016, Trinkl filed an appeal with the

Board alleging that he had involuntarily retired due to 

coercion and agency deception and misrepresentation. 

After reviewing the incidents above, the administrative 

law judge (“ALJ”) issued an Initial Decision granting the 

government’s motion to dismiss for lack of jurisdiction on 

the basis that Trinkl failed to state a non-frivolous allegation that his retirement was involuntary due to misrepresentation or coercion. J.A. 18–19. Accordingly, the ALJ 

found that the Board lacked jurisdiction over Trinkl’s

discrimination claims. Id. The Board subsequently 
TRINKL v. MSPB 5

issued a final order affirming dismissal, which Trinkl

appealed to this court pursuant to 5 U.S.C. § 7703(b)(1)(A) 

and 28 U.S.C. § 1295(a)(9). 

DISCUSSION

Whether the Board has jurisdiction over an appeal is 

a question of law that we review de novo. Forest v. Merit 

Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). We 

review the Board’s underlying factual findings for substantial evidence. Parrott v. Merit Sys. Prot. Bd., 519 

F.3d 1328, 1334 (Fed. Cir. 2008). 

“Resignations are presumed voluntary, and the burden of showing that the resignation was involuntary is on 

the petitioner.” Terban v. Dep’t of Energy, 216 F.3d 1021, 

1024 (Fed. Cir. 2000). An employee asserting claims of 

involuntary retirement on the basis that the agency 

coerced the employee to retire must show that the agency 

effectively imposed the terms of the employee’s resignation, the employee had no realistic alternative but to 

resign or retire, and the employee’s resignation or retirement was the result of improper acts by the agency. 

Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 

2001). To objectively determine whether a reasonable 

person in the employee’s position would have felt compelled to resign, the tribunal must consider the totality of 

the circumstances. Id. A retirement will not be deemed 

involuntary where the employee retires simply because he 

“does not want to accept [actions] that the agency is 

authorized to adopt.” Terban, 216 F.3d at 1025 (alteration in original) (quoting Staats v. U.S. Postal Serv., 99 

F.3d 1120, 1124 (Fed. Cir. 1996)). “When determining 

whether a resignation was involuntary, the MSPB examines ‘the surrounding circumstances to test the ability of 

the employee to exercise free choice.’” Lentz v. Merit Sys. 

Prot. Bd., 876 F.3d 1380, 1384 (Fed. Cir. 2017) (quoting

Perlman v. United States, 490 F.2d 928, 933 (Ct. Cl. 

1974)). 
6 TRINKL v. MSPB

“The [Board] possesses jurisdiction over an appeal 

filed by an employee who has resigned or retired if the 

employee proves, by a preponderance of the evidence, that 

his or her resignation or retirement was involuntary and 

thus tantamount to forced removal.” Shoaf, 260 F.3d at 

1341. Once a claimant makes a non-frivolous allegation 

of MSPB jurisdiction, he is entitled to a jurisdictional 

hearing. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 

1325, 1330 (Fed. Cir. 2006) (en banc); Shoaf, 260 F.3d at 

1341 n.2 (“When there is a question as to the voluntariness of a petitioner’s resignation or retirement and the 

petitioner makes a non-frivolous allegation of that involuntariness, . . . an evidentiary hearing is required to 

determine whether the resignation or retirement was in 

fact involuntary.” (citing Braun v. Dep’t of Veterans Affairs, 50 F.3d 1005, 1008 (Fed. Cir. 1995))). Non-frivolous 

allegations of jurisdiction are those that, if proven, can 

establish jurisdiction. Garcia, 437 F.3d at 1330. 

In the Initial Decision, the ALJ found that “the onetime display of ‘non-verbal aggressive behavior,’ would 

not constitute working conditions that were so difficult 

that a reasonable person in the appellant’s position would 

have felt compelled to retire.” J.A. 17. The Board similarly concluded that given the length of time between the 

alleged near-physical altercation, the physical altercation 

witnessed by Trinkl, and Trinkl’s eventual retirement

meant that Trinkl failed to make a non-frivolous allegation of involuntary retirement. The Board stated that 

“given the lapse in time between these incidents in 2007 

and 2013 and the appellant’s January 10, 2015 retirement, they are not particularly probative evidence of 

involuntariness of the appellant’s retirement,” and that 

“the lack of clarity in the record regarding when the ‘near 

physical attack’ occurred . . . reduces its probative value.” 

J.A. 6. The Board also considered Trinkl’s requests for 

reassignment and allegations about being placed on the 
TRINKL v. MSPB 7

PIP, and dismissed each as insufficient non-frivolous 

allegations of involuntary retirement. J.A. 7–8.

The question at this stage is whether Trinkl has nonfrivolously alleged circumstances such that a reasonable 

person in Trinkl’s position would have felt compelled to 

resign. On that question, we reach a conclusion different 

from that of the Board. Considering Trinkl’s allegations 

of his experiences at the BEA collectively, rather than 

dismissing them one by one, as the Board did, we find 

that a person in like circumstances could reasonably feel 

unable to exercise free choice and compelled to retire. 

Specifically, Trinkl alleges that after serving the agency 

for several years with favorable reviews, he experienced 

multiple instances of hostility from his first- and secondline supervisors, Krakower and Kunze, culminating in a 

near-physical attack in a small, closed room. Trinkl

reported the incident and consistently refused to meet 

with his supervisors in person following the attack, resorting even to hiding in the nurse’s station to avoid 

meeting with Krakower and Kunze. Trinkl submitted his 

retirement paperwork approximately two months after 

the investigation into his now-dismissed discrimination 

claims against Krakower and Kunze concluded. Prior to 

actually retiring, Trinkl was placed on a PIP reviewed by 

Krakower. Trinkl also sought transfer away from Krakower and Kunze but was denied. In light of Trinkl’s 

allegations of threatened violence and compounded PTSD, 

being forced to continue working with Krakower and 

Kunze created working conditions so intolerable for 

Trinkl that he could reasonably feel driven to resign. We 

conclude that, viewed in totality, Trinkl makes a nonfrivolous claim of involuntary retirement. Such a “nonfrivolous allegation is all that is required to trigger the 

Board’s jurisdiction at this threshold stage.” See Braun, 

50 F.3d at 1008. 

The Board erred in considering and dismissing 

Trinkl’s allegations individually, rather than viewing 
8 TRINKL v. MSPB

Trinkl’s claims collectively as a series of escalating incidents culminating in his retirement. The Board further 

erred by considering the relative probative value of 

Trinkl’s allegations over time and discounting the probative value of the alleged near-physical attack due to 

uncertainty as to when it occurred. See J.A. 6. Weighing 

allegations as more or less probative is appropriate only 

following a jurisdictional hearing. See Terban, 216 F.3d 

at 1024 (discounting events that occurred long before 

retirement as less probative to the voluntariness inquiry 

following an evidentiary jurisdictional hearing). 

CONCLUSION

Because the Board improperly concluded that Trinkl

failed to present non-frivolous allegations of jurisdiction, 

we vacate the decisions below and remand for a jurisdictional hearing. 

VACATED AND REMANDED

COSTS

No Costs.
NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

GARTH K. TRINKL,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2017-1378

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-0752-16-0387-I-1.

______________________ 

LOURIE, Circuit Judge, dissenting.

I respectfully dissent. Mr. Trinkl voluntarily retired. 

There is no doubt that Mr. Trinkl was not happily situated in his job when the events recited in the majority 

opinion occurred. He may feel that he was not treated 

well, and the “near-physical attack” in November 2013 

was certainly not pleasant. But the Board determined 

that the totality of Mr. Trinkl’s evidence indicated that 

his workplace environment was not so severe that his 

retirement was coerced. We owe deference to those findings of the Board.
2 TRINKL v. MSPB

The ultimately persuasive factor in this appeal in my 

view, aside from deference, is that it took until October 

31, 2014, fully 11 months after this “near-physical attack” 

for Mr. Trinkl to submit his resignation, in which he 

mentioned that he felt unsafe in his work environment, 

and until January 10, 2015, almost another 3 months 

after that for Mr. Trinkl to resign. In the interim, Mr. 

Trinkl was issued a performance improvement plan, and 

he requested a transfer. But these were not evidence of 

coercion, and the main event seemed to be the “nearphysical attack.” 

Aside from the standard of review, which we are required to observe, it hardly seems credible that one could 

find a retirement to have been coerced when the most 

serious precipitating event occurred 14 months before the 

retirement. If Mr. Trinkl had resigned shortly after that 

event, one might understand that the retirement might 

have been coerced. But this one seems to have been the 

product of extended and prolonged contemplation, and 

hence was voluntary.

The full two-person Board, affirming the administrative judge, so found and we are obligated to defer to that 

ruling.