UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TERRANCE ROSALES,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-15-0213-I-1

DATE: April 29, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Bradley R. Marshall, Charleston, South Carolina, for the appellant.

Michelle Over, FPO, APO/FPO Pacific, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed this 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 

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

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

¶2 The agency removed the appellant from his Supervisory Management and 

Program Analyst position at the Marine Corps Air Station in Iwakuni, Japan, on 

charges of sexual harassment, conduct unbecoming a supervisor, and inattention 

to duty, effective November 24, 2014. Initial Appeal File (IAF), Tab 6 at 23-27, 

43-52. On November 21, 2014, the appellant sent agency officials an email 

message in which he gave notice that he was resigning his position effective that 

day and also requested that the reason set forth on the Standard Form (SF)-50 

form for his resignation state that he was “reassigned2 for personal reasons.” Id.

at 21. On November 26, 2014, after the appellant inquired about the status of his 

resignation request, id., a supervisory human resources specialist informed him 

that the agency had canceled the SF-50 for the termination action and would 

process one for his resignation in its place, id. at 20. However, because the 

appellant’s voluntary resignation was tied to an already proposed and decided 

adverse action based on his misconduct, the specialist told the appellant that the 

resignation SF-50 must reflect that he resigned after receiving written notice of 

 2 The administrative judge presumed, as do we, that the appellant intended to write 

“resigned.” IAF, Tab 10, Initial Decision at 2 n.1. 
3

the agency’s decision to remove him based on the charges set forth in the decision 

letter. Id. 

¶3 In his subsequent appeal, the appellant addressed his removal, providing a 

detailed rebuttal to the charges set forth in the agency’s notice of proposed 

removal and decision letter. IAF, Tab 1 at 20-23; see IAF, Tab 6 at 23-29, 43-49. 

But, the appellant only cursorily addressed the voluntariness of his resignation, 

alleging without any explanation or support that the agency coerced his 

resignation because he was “led to believe that if he resigned from his 

employment the separation would be characterized as disciplinary3 so that it 

would have no effect on future federal service.” IAF, Tab 1 at 23-24. The 

administrative judge issued an acknowledgment order informing the appellant of 

what he must show to establish a nonfrivolous allegation of jurisdiction and be 

entitled to the hearing that he requested. IAF, Tab 2. In pertinent part, the 

administrative judge informed the appellant that resignations are presumed to be 

voluntary and that his appeal would be dismissed without a hearing unless he 

made allegations of duress, coercion, or misrepresentation supported by facts 

which, if proven, would establish that his resignation was involuntary. Id. at 2. 

The appellant did not respond on the jurisdictional issue.

4

 

¶4 Because he found that the appellant alleged no specific facts that, if proven, 

would support his claim that the agency coerced his resignation, the 

administrative judge dismissed the appeal for lack of jurisdiction, based on the 

 3 The administrative judge presumed that the appellant meant to write here that, if he 

resigned, his separation would not be characterized as disciplinary. IAF, Tab 10, Initial 

Decision at 4 n.2. We agree with the administrative judge’s interpretation of the 

pleading. 

4 Although the appellant did not respond regarding the Board’s jurisdiction over his 

appeal, he did file a motion to compel discovery and a motion for sanctions, IAF, Tab 9, 

both of which the administrative judge denied in light of his finding on the 

jurisdictional issue, IAF, Tab 10, Initial Decision at 5 n.4. The appellant does not 

challenge the administrative judge’s disposition of these motions in his petition for 

review. 
4

written record without holding a hearing. IAF, Tab 10, Initial Decision (ID) at 

4-5. In his timely-filed petition for review, the appellant argues for the first time 

that “[h]e only contemplated his resignation if and only if the employer agreed to 

report his removal as a voluntary resignation.” Petition for Review (PFR) File, 

Tab 1 at 6. The appellant claims that the parties’ oral contract to settle this 

matter is therefore invalid because there was no meeting of the minds. Id. at 5-7. 

The agency responds in opposition to the appellant’s petition for review. PFR 

File, Tab 3. 

¶5 An employee-initiated action, such as a retirement or resignation, is 

presumed to be voluntary, and thus outside the Board’s jurisdiction. E.g., 

SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011). 

However, the Board has long held that an involuntary resignation is tantamount to 

a removal. Spiegel v. Department of the Army, 2 M.S.P.R. 140, 141 (1980). An 

appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal 

of an allegedly involuntary resignation or retirement only 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). 

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. Solomon v. Department of Agriculture, 106 M.S.P.R. 172, ¶ 11 

(2007). Conclusory, vague, or unsupported allegations are insufficient to meet 

the nonfrivolous allegation standard. E.g., Briscoe v. Department of Veterans 

Affairs, 55 F.3d 1571, 1573 (Fed. Cir. 1995); Riojas v. U.S. Postal Service, 

88 M.S.P.R. 230, ¶ 3 (2001). 

¶6 The appellant’s conclusory, unsupported allegations do not constitute 

nonfrivolous allegations of jurisdiction. Other than his single unsupported 

assertion that the agency coerced his resignation, IAF, Tab 1 at 23-24, the 

appellant simply failed to address the voluntariness of his resignation before the 

record closed below, see 5 C.F.R. § 1201.58; IAF, Tab 2 at 2-3. The fact that an 
5

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

potential removal action does not rebut the presumed voluntariness of his ultimate 

choice of resignation. Schultz v. U.S. Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 

1987). Thus, we agree with the administrative judge that the appellant failed to 

establish jurisdiction over his appeal. 

¶7 As noted above, the appellant raises his contract law argument for the first 

time in his petition for review. The Board will not consider an argument raised 

for the first time in a petition for review absent a showing that it is based on new 

and material evidence not previously available despite the party’s due diligence. 

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant 

makes no such showing. Because everything the appellant alleges on review 

occurred before he filed his appeal, he could have made this argument in his 

appeal below and chose not to do so. Moreover, the record does not bear out the 

appellant’s assertions that the parties attempted to negotiate an oral contract but

there was no meeting of the minds. PFR File, Tab 1 at 5-11. The record does not 

indicate that the parties actively negotiated a settlement, and, most importantly,

the email message in which the appellant gave notice of his resignation in no way 

indicates that his choice to do so is contingent on the agency’s acceptance of his 

request that the pertinent SF-50 form state that he did so for personal reasons. 

See IAF, Tab 4 at 21-22. Therefore, even if we were to consider the appellant’s 

arguments on review, they are insufficient to upset the initial decision. 

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
6

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. 

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 

information regarding pro bono representation for Merit Systems Protection 

Board appellants before the Federal Circuit. 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