UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERT D. O'BRIEN,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

AT-0752-14-0640-I-1

DATE: February 10, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Adam Jerome Conti, Atlanta, Georgia, for the appellant.

Christopher M. Kenny, Fort Gordon, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed the appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review and REMAND the case to the regional 

office for further adjudication in accordance with this order. 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

¶2 The appellant occupied a GS-13 Supervisory Security Specialist position, 

which was designated as a law enforcement officer position and was subject to 

random drug testing. Initial Appeal File (IAF), Tab 1. A urine sample that he 

provided on February 5, 2014, was certified by an agency Medical Review 

Officer as testing positive for codeine and morphine. Id. The appellant 

maintained that he had codeine in his system because he had taken prescription 

cough syrup with codeine a few days before the test, and that codeine metabolized

into morphine. Id. He indicated during the investigation of the positive test 

result that he did not submit his prescription for cough syrup with codeine 

because he had been told that the agency would not accept a prescription that was 

more than 6 months old and his prescription was written more than 6 months prior 

to the drug test. IAF, Tab 4 at 28. Subsequently, the appellant became aware that 

the agency proposed to remove him based on the positive drug test result, and he 

resigned before receiving the notice of proposed removal. IAF, Tab 9 at 11. 

¶3 The appellant filed an appeal, alleging that his supervisor provided 

inaccurate and misleading information that coerced his resignation. Specifically, 

he alleged that, during a meeting on April 2, 2014, his supervisor failed to inform 

him that before he could be removed, he had the right to an advance notice and an 

opportunity to respond. Id. The appellant represented that during the meeting his 

supervisor said that the agency had decided to remove the appellant and that to be 

eligible for federal retirement and/or to get reinstated somewhere in the federal 

system, he had to resign immediately, prior to being formally issued the notice of 

proposed removal that the supervisor said he had in hand. Id. The appellant 

alleged that, based on the supervisor’s representation during the meeting, he 

returned to his office, drafted a resignation letter that he dated April 1, 2014, and 

submitted it before receiving the proposed removal notice. Id.

¶4 The administrative judge found that the appellant had made a nonfrivolous 

allegation that his resignation was coerced by his supervisor’s misleading 

statements, and held a jurisdictional hearing at which the appellant and his 
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supervisor testified about the meeting of April 2, 2014. IAF, Tab 14. She found 

that the appellant’s version was not credible. IAF, Tab 12, Initial Decision (ID) 

at 5. Rather, she credited the appellant’s supervisor’s testimony that the appellant 

arrived at the meeting with the resignation letter in hand. ID at 5. In crediting 

the supervisor’s testimony, the administrative judge found that the supervisor’s 

statement that the meeting lasted fewer than 5 minutes was corroborated by 

another employee who was in the office at the time of the meeting, and that his 

testimony was consistent with the statement that he provided earlier. ID at 5. 

She also found that, even if the appellant’s supervisor made the statements that 

the appellant alleges were made, the appellant was an experienced and trained 

supervisor who knew or should have known that his removal needed to be 

proposed before it was finalized and that he would have an opportunity to respond 

to a deciding official. ID at 6-7. Thus, the administrative judge found that the 

appellant failed to show that his resignation was the result of coercion. ID at 6-8.

¶5 In his petition for review, the appellant asserts that, on August 22, 2014, 

based on information that he learned during the August 18, 2014 Board hearing, 

he telephoned the agency’s drug testing laboratory to inquire into the manner that 

his drug test had been processed. Petition for Review (PFR) File, Tab 4 at 7-8. 

He said that the laboratory asked for copies of his prescriptions regardless of how 

old they were, and he promptly provided them. Id. at 8. On September 2, 2014, 

he received a copy of a Lab Results Report that reflected negative results for his 

drug test based on the urine sample that he provided on February 5, 2014. Id. at 

27. With his petition for review, the appellant provided an affidavit repeating 

that he did not provide any prescriptions during the investigation of the positive

test result because he had been wrongly informed that he may submit only 

prescriptions that were less than 6 months old. Id. at 15. He also provided a 

copy of the Lab Results Report showing negative results, and a list of his 

prescriptions showing that he was prescribed guaifenesin/codeine on 

August 31, 2011. Id. at 21, 27. The appellant asks the Board to accept the 
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affidavit, prescription information, and the September 2, 2014 Lab Results Report

into the record as new evidence to show that he resigned based on misleading 

information.

¶6 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). Further, the Board 

will not grant a petition for review based on new evidence absent a showing that 

it is of sufficient weight to warrant an outcome different from that of the initial 

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

¶7 Here, nothing contradicts the appellant’s statement that he first learned 

during the hearing in his appeal that the agency provided misleading information 

regarding whether he could submit prescriptions that were older than 6 months. 

He contacted the drug testing laboratory within 4 days of the hearing in his 

appeal. We find that under these circumstances the appellant acted with due 

diligence to contact the laboratory, and to obtain the new evidence that he 

submits on petition for review. We find further that the appellant’s statement, 

made under penalty of perjury, that he was misled into failing to submit his 

prescription for cough syrup with codeine, if proven, could constitute evidence

sufficient to warrant a different jurisdictional outcome. See Henson v. 

Department of the Treasury, 86 M.S.P.R. 221, ¶ 7 (2000).

¶8 A decision to resign is presumed to be a voluntary act outside the Board’s 

jurisdiction, and the appellant bears the burden of showing that his resignation 

was involuntary and therefore tantamount to a forced removal. Baldwin v. 

Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 15 (2009). One means by 

which an appellant may overcome the presumption of voluntariness is by showing 

that the resignation was obtained by agency misinformation or deception. Id. 

¶9 The touchstone of the analysis of whether a retirement or resignation is 

voluntary is whether the employee made an informed choice. Id., ¶ 16. A 
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decision made “with blinders on,” based on misinformation or lack of 

information, cannot be binding as a matter of fundamental fairness and due 

process. Id. (quoting Covington v. Department of Health & Human 

Services, 750 F.2d 937, 943 (Fed. Cir. 1984)). The Board has stated that the 

principles set forth in the court’s decisions in Scharf v. Department of the Air 

Force, 710 F.2d 1572, 1574–75 (Fed. Cir. 1983), and Covington require an 

agency to provide information that is not only correct in nature but adequate in 

scope to allow an employee to make an informed decision, and that this includes 

an obligation to correct any erroneous information that it has reason to know an 

employee is relying on. Baldwin, 111 M.S.P.R. 586, ¶ 16; see Johnson v. U.S. 

Postal Service, 66 M.S.P.R. 620, 627–28 (1995).

¶10 We find that the appellant’s new evidence constitutes a nonfrivolous 

allegation of facts which, if proven, could warrant setting aside the drug test 

carried out without the benefit of that prescription. See, e.g.,

Henson, 86 M.S.P.R. 221, ¶ 8. Nonfrivolous allegations of Board jurisdiction are 

allegations of fact which, if proven, could establish a prima facie case that the 

Board has jurisdiction over the matter at issue. Deines v. Department of 

Energy, 98 M.S.P.R. 389, ¶ 11 (2005). An appellant is entitled to a hearing on 

the issue of Board jurisdiction over an alleged involuntary resignation if he 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).

¶11 The appellant’s assertion, and new evidence in support thereof, that he was 

misled by the agency into failing to submit critical evidence, if proven, may have 

affected the outcome of the investigation into his positive drug test. Absent the 

appellant’s receiving misleading representation of a rule prohibiting submission 

of prescriptions that were more than 6 months old, it appears that: (1) he would 

not have received a positive drug test result; (2) the agency may not have 

proposed his removal; and (3) he would not have felt pressured to resign. That is 

so, regardless of whether the agency was aware that its statements were 
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misleading. See Covington, 750 F.2d at 942. In any event, as noted, the appellant 

told the agency, during the investigation of the positive test results, that he had 

been informed of a rule prohibiting consideration of prescriptions that were more 

than 6 months old, thereby obligating the agency to inform the appellant if his 

belief was inaccurate. We find that the appellant alleged that, as a long-time 

employee who had never been disciplined, IAF, Tab 1, he reasonably relied upon 

the misleading statements about a rule concerning whether he could submit 

certain prescriptions in concluding that he had no real choice but to immediately 

resign to preserve his good employment record. 

¶12 Accordingly, we remand the appeal to the Atlanta Regional Office to afford 

the appellant an opportunity to prove his allegation of agency misrepresentation. 

On remand, the appellant shall be given the opportunity to supplement the record, 

including calling witnesses to give additional testimony, about whose testimony 

the administrative judge may then make additional credibility determinations.

2

 

See Henson, 86 M.S.P.R. 221, ¶ 16.

ORDER

¶13 We remand this appeal to the regional office for further adjudication 

consistent with this remand order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board

 2 Our findings in the remand order do not disturb the administrative judge’s credibility 

findings regarding what transpired between the appellant and his supervisor at the 

April 2, 2014 meeting.