United States Court of Appeals 

for the Federal Circuit ______________________ 

CHARLES T. JENKINS, JR.,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2017-2193

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-0752-16-0080-I-2.

______________________ 

Decided: January 2, 2019

______________________ 

AARON BENJAMIN FRUMKIN, Gibson, Dunn & Crutcher 

LLP, Los Angeles, CA, argued for petitioner. 

 TARA JEAN KILFOYLE, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, argued 

for respondent. Also represented by TRISTAN LEAVITT,

KATHERINE MICHELLE SMITH; DAVID PEHLKE, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, Washington, DC. 

 ______________________ 

Before REYNA, WALLACH, and TARANTO, Circuit Judges.
2 JENKINS v. MSPB

Opinion for the court filed by Circuit Judge WALLACH. 

Dissenting opinion filed by Circuit Judge REYNA. 

WALLACH, Circuit Judge. 

Petitioner Charles T. Jenkins, Jr. seeks review of a

Merit Systems Protection Board (“MSPB”) final decision 

dismissing his appeal for lack of jurisdiction. See Jenkins 

v. Dep’t of the Army, No. DA-0752-16-0080-I-2, 2017 WL 

1209626 (M.S.P.B. Mar. 31, 2017) (J.A. 1–28).1 We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We 

affirm.

BACKGROUND

For nearly thirty-three years, Mr. Jenkins was employed by the U.S. Department of the Army (“Army”), and 

prior to his retirement, worked as a Supervisory Army 

Community Services (“ACS”) Division Chief. J.A. 71. 

From August 2010 to January 2012, Mr. Jenkins continually failed performance reviews and at one point served a 

three-day suspension in connection with submitting “an 

ACS Information Paper” to a higher command without 

routing and gaining the necessary approval through his 

first-level supervisor. See J.A. 400–06. As a result of his 

reviews, Mr. Jenkins was put on a Performance Improvement Plan (“PIP”). See J.A. 407–14. After notifying 

Mr. Jenkins that he failed his PIP, see J.A. 163, his first1 An administrative judge issued an initial decision 

on March 31, 2017, see J.A. 1–28, which became final 

when Mr. Jenkins did not file a petition for review, see 

J.A. 21; see also 5 C.F.R. § 1201.113 (2014) (providing 

“[t]he initial decision of the judge will become the 

[MSPB]’s final decision [thirty-five] days after issuance” 

unless, inter alia, “any party files a petition for review”). 

Therefore, we refer to the Initial Decision as the MSPB’s 

Final Decision. 

 
JENKINS v. MSPB 3

level supervisor asked him whether he would be interested in moving to a nonsupervisory position at the same 

grade and pay level, J.A. 206. Mr. Jenkins refused. 

J.A. 119. In February 2012, Mr. Jenkins’s first-level 

supervisor proposed his removal for unacceptable performance. J.A. 38–46 (Notice of Proposed Removal). After 

receiving the Notice of Proposed Removal, but before he 

was officially removed by the Army, Mr. Jenkins sent an 

email to his first-level supervisor stating that “[e]ffective 

31 March 2012 I will retire.” J.A. 37. 

Mr. Jenkins submitted written responses challenging 

the basis for his removal, however, after “consider[ation] 

and review[ of his] written reply,” the Army issued a Final 

Removal Decision informing Mr. Jenkins that he would be 

removed from service effective April 1, 2012. See

J.A. 237–39. That same day, March 21, 2012, the Army 

issued Mr. Jenkins a “Cancellation of Decision on Removal” stating “[Mr. Jenkins is] scheduled to retire from 

federal service effective 31 March 2012” and “[i]f [he]

retire[s] from federal service on 31 March 2012, this 

memorandum will serve as revocation and cancellation

effective 31 March 2012.” J.A. 47. Following the Final 

Removal Decision, Mr. Jenkins indicated on a Standard 

Form-50 (“SF-50”) that he intended to retire pursuant to 

his previously submitted retirement application, J.A. 

241–43, stating “voluntary retirement effective 31 

Mar[ch] [20]12” as his “[r]easons for 

[r]esignation/[r]etirement” J.A. 241. It is undisputed that 

the “revocation and cancellation . . . of the [Notice of 

Proposed Removal]” took effect upon that March 31, 2012 

retirement. J.A. 47 (Cancellation of Decision on Removal). Subsequently, Mr. Jenkins appealed to the MSPB 

alleging that his retirement was involuntary because the 
4 JENKINS v. MSPB

agency “proposed to remove” him if he did not retire. 

J.A. 31–35.2 

In March 2017, the MSPB “dismissed [Mr. Jenkins’s 

appeal] for lack of jurisdiction.” J.A. 21. Specifically, the 

MSPB found that it lacked jurisdiction over Mr. Jenkins’s 

challenge to the Army’s proposed removal because “the

[Army] rescinded the removal decision upon [Mr. Jenkins]’s retirement” and nothing in the record indicated he 

sought to withdraw his retirement prior to the effective

removal date. J.A. 6; see J.A. 336–38 (providing argument 

and evidence, by the Army, that the March 21, 2012 

Decision of Proposed Removal issued “26-days after [Mr. 

Jenkins] filed an application of retirement”). The MSPB 

also found it lacked jurisdiction over his involuntary 

retirement claim because Mr. Jenkins failed to make a 

non-frivolous claim. J.A. 21. 

DISCUSSION

Mr. Jenkins contends the MSPB erred by finding it 

lacked jurisdiction over his claim because: (1) “the Army 

issued [the] [F]inal [R]emoval [D]ecision before Mr. Jenkins retired,” Pet’r’s Br. 17 (capitalizations modified); see

id. at 17–25, and (2) its decision that his retirement was 

voluntary was not supported by substantial evidence due 

to the fact that his retirement was “based on misinformation” and “was obtained through coercion,” id. at 26, 

29; see id. at 25–33. We first discuss the relevant standards of review and legal standards, and then address each 

of Mr. Jenkins’s arguments. 

2 When Mr. Jenkins filed his Federal Circuit Rule 

15(c) Statement Concerning Discrimination on July 7, 

2017, he abandoned his formerly asserted discrimination 

claims. Pet’r’s Fed. Cir. R. 15(c) Statement, ECF No. 10; 

see Oral Arg. at 12:31–40, http://oralarguments.cafc.

uscourts.gov/default.aspx?fl=2017-2193.mp3. 

 
JENKINS v. MSPB 5

I. Standard of Review

We will uphold a decision of the MSPB unless it is 

“arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law” or “unsupported by substantial evidence.” 5 U.S.C. § 7703(c)(1), (3) (2012). We 

review whether the MSPB has jurisdiction over an appeal 

de novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 

909 (Fed. Cir. 2008). “Findings of fact underlying the 

[MSPB]’s jurisdictional decision are reviewed for substantial evidence.” Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 

1097, 1101 (Fed. Cir. 2011) (internal quotation marks and 

citation omitted). “Substantial evidence is more than a 

mere scintilla of evidence, but less than the weight of the 

evidence.” Jones v. Dep’t of Health & Human Servs., 834 

F.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation 

marks and citations omitted). “The petitioner bears the 

burden of establishing error in the [MSPB]’s decision.” 

Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 

(Fed. Cir. 1998). 

II. The Improper Removal Claim

A. Legal Standard

The MSPB’s “jurisdiction is limited to those matters

over which it has been given jurisdiction by law, rule, or 

regulation.” 5 C.F.R. § 1201.3(a). The petitioner must 

establish by preponderant evidence that the MSPB has 

jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). 

Generally, the MSPB has jurisdiction over appeals of 

removals of non-probationary employees, based on unacceptable performance. See 5 C.F.R. § 1201.3(a)(5); 5 

U.S.C. § 4303(e). “If an appealable action is canceled or 

rescinded by an agency, any appeal from that action 

becomes moot,” thereby depriving the MSPB of jurisdiction. Cooper v. Dep’t of the Navy, 108 F.3d 324, 326 (Fed. 

Cir. 1997). 
6 JENKINS v. MSPB

B. The MSPB Did Not Err in Holding It Lacked Jurisdiction over the Removal Claim

The MSPB held that, because “[Mr. Jenkins] retired 

before the removal action was effected, and the [Army] 

rescinded the removal decision upon [his] retirement,” the 

MSPB lacked jurisdiction over his appeal challenging the 

proposed removal. J.A. 6 (emphasis added). Mr. Jenkins 

avers the MSPB has jurisdiction over his appeal because 

his retirement date was “after the Army issued a final 

decision to remove him.” Pet’r’s Br. 17 (emphasis added). 

We disagree with Mr. Jenkins.

The sequence of retirement and rescission is not controlling. Rather, the MSPB lacked jurisdiction because 

the Army rescinded its removal. The Army proposed 

removal of Mr. Jenkins on February 16, 2012, J.A. 38, Mr. 

Jenkins indicated his intent to retire on February 23,

2012, J.A. 236, and the Army issued its Final Removal 

Decision on March 21, 2012, J.A. 237–39. However, the 

same day his retirement went into effect, the Army rescinded the removal decision. J.A. 47 (Cancellation of 

Decision on Removal). The Army removed all references 

to the proposed removal action in Mr. Jenkins’s personnel 

file, thus eliminating any potential consequences the 

removal could have had on his retirement. See J.A. 240–

43 (demonstrating that the Notice of Proposed Removal 

and SF-50 do not reference the removal decision), 333 

(acknowledging the agency evidence and arguments were 

made under penalty of perjury), 358 (showing a printout 

of a chronological listing of Mr. Jenkins’s SF-50s from 

2010 through 2012). This rescinding of the removal 

decision mooted Mr. Jenkins’s improper removal claim. 

See Cooper, 108 F.3d at 326 (explaining, “[i]f an appealable action is canceled or rescinded by an agency, any 

appeal from that action becomes moot” and that the 

petitioner’s appeal was moot because the agency, inter 

alia, removed “all references to [the removal action] from 

[his] official personnel file” thereby “eliminat[ing] all 
JENKINS v. MSPB 7

consequences of that action”). Therefore, the MSPB lacked 

jurisdiction to hear the appeal. 

Mr. Jenkins’s primary counterargument fails. He

contends that his challenge to the removal is appealable 

to the MSPB under 5 U.S.C. § 7701(j) because the MSPB 

“consider[ed] [his] ‘retirement status’” when determining 

whether it had jurisdiction. Pet’r’s Br. 23. Section 7701(j)

provides that the MSPB, in “determining the appealability . . . of any case involving a removal from the service,” 

may not take into account “an individual’s status under 

any retirement system established by or under Federal 

statute.” 5 U.S.C. § 7701(j) (emphasis added); see Mays v. 

Dep’t of Transp., 27 F.3d 1577, 1579 (Fed. Cir. 1994) 

(holding that “[t]he plain language of § 7701(j) means that

retirement status cannot be taken into account in determining the appealability of ‘any case involving a removal’”). In Mays, we considered § 7701(j) and held that the 

MSPB had jurisdiction over petitioner’s appeal because

the petitioner’s retirement was effective the same date as 

her removal and her retirement form stated she “[r]etired 

after receiving [final] written notice . . . of [the] decision to 

separate.” 27 F.3d at 1578. 

Mays did not involve a rescission of the removal decision being appealed to the MSPB. In contrast, in Cooper, 

we held that when an agency has “rescinded” an effectuated removal action during the pendency of an appeal, 

eliminated “all references to [the removal] action from [a

petitioner]’s official personnel file,” and “substituted a 

separation” based on retirement for the removal, the 

appeal of the removal is moot and § 7701(j) is not implicated. 108 F.3d at 325–26; see id. (determining that, 

because “the agency had rescinded his removal[,] the 

[MSPB] did not need to consider [the appellant]’s retirement status to reach its conclusion that his appeal was 
8 JENKINS v. MSPB

moot”).3 This case is governed by Cooper. Therefore, 

§ 7701(j) does not provide jurisdiction because the case no 

longer involved a removal. See id. at 326 (finding 

§ 7701(j) did not apply). Because Mr. Jenkins’s case no 

longer involved a removal, the MSPB did not need to 

consider Mr. Jenkins’s retirement status in determining

that it lacked jurisdiction over the appeal. 

III. The Involuntary Retirement Claim

A. Legal Standard

An involuntary retirement is an adverse employment 

action “where an agency imposes the terms of an employ3 The dissent states that the majority believes this 

case is unlike Mays because “removing from Mr. Jenkins’s 

file all the references to [his] removal eliminated ‘all 

consequences’ of the removal” and that “Mr. Jenkins 

would not have retired but for his removal.” Dissent 

Op. 6. The dissent, however, fails to recognize that Mays

did not involve a rescission of a removal decision being 

appealed to the MSPB. Like Cooper, the MSPB in this 

case considered the rescission of the removal decision in 

making the determination that it lacked jurisdiction over 

the appeal. See Cooper, 108 F.3d at 326 (explaining, “in 

deciding that [the] appeal was moot, the [MSPB] merely 

relied on the fact that the agency had rescinded his removal”). Section 7701(j) does not prohibit an employing 

agency from taking an employee’s retirement status into 

account in deciding whether to cancel a removal decision; 

it only prohibits the MSPB from taking an appellant’s 

retirement status into account in determining whether a 

non-cancelled removal decision is appealable. See id. 

Because the MSPB determined the Army rescinded Mr. 

Jenkins’s removal decision, as in Cooper, it did not need to 

consider his retirement status to determine that it lacked 

jurisdiction over the appeal. J.A. 6. 

 
JENKINS v. MSPB 9

ee’s resignation, the employee’s circumstances permit no 

alternative but to accept, and those circumstances were 

the result of improper acts of the agency.” Schultz v. U.S. 

Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987) (internal 

quotation marks omitted). “The [MSPB] has jurisdiction 

over an involuntary retirement, which is treated as if it 

were a removal.” Cooper, 108 F.3d at 326. “An employee 

thus may seek reinstatement or back pay as a result of an 

involuntary retirement.” Id. There is a presumption that 

an employee retired voluntarily. Staats v. U.S. Postal 

Serv., 99 F.3d 1120, 1123 (Fed. Cir. 1996). To overcome 

this presumption, a petitioner must establish (1) the 

retirement was the product of misinformation or deception by the agency; or (2) the retirement was the product 

of coercion by the agency. Terban v. Dep’t of Energy, 216 

F.3d 1021, 1024 (Fed. Cir. 2000); see Staats, 99 F.3d at 

1124 (“[T]he doctrine of coercive involuntariness is a 

narrow one.”). The test for involuntariness is “an objective one” that “considers the totality of the circumstances.” Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 

1329 (Fed. Cir. 2006) (en banc) (internal quotation marks 

and citation omitted).

B. Substantial Evidence Supports the MSPB’s Finding 

that Mr. Jenkins’s Retirement Was Voluntary

The MSPB considered all record evidence related to 

the voluntariness of Mr. Jenkins’s retirement, see

J.A. 14–17 (analyzing, inter alia, the length of time 

offered to improve performance, testimony and written 

records regarding performance deficiencies, and various 

communications between Mr. Jenkins and his first-level 

supervisor), and determined that while Mr. Jenkins was

faced with the difficult choice of either retiring or opposing a removal action, this choice did not render his retirement involuntary because he chose to follow through 

with his retirement decision, J.A. 20–21. Mr. Jenkins 

argues his retirement was involuntary because it was 

based on “misinformation” such as “management officials” 
10 JENKINS v. MSPB

telling him that he needed to retire to protect his retirement benefits, Pet’r’s Br. 26, and that it was obtained 

through “coercion,” id. at 29. We disagree with Mr. Jenkins. 

Substantial evidence supports the MSPB’s finding 

that Mr. Jenkins voluntarily retired. First, Mr. Jenkins 

submitted personnel forms that indicate that his retirement from the Army was voluntary. Specifically, under 

the section asking for reasons for retirement it said

“[v]oluntary retirement.” See J.A. 243; see J.A. 243 (stating in the SF-50 the reason for retirement is “[v]oluntary 

retirement”). 

Second, Mr. Jenkins’s retirement was not the product 

of misinformation by the agency. The only evidence of 

record cited by Mr. Jenkins regarding any alleged misrepresentation is that an unidentified individual told Mr. 

Jenkins he should retire “to protect his retirement benefits.” J.A. 425; see J.A. 425 (providing Mr. Jenkins’s prehearing submissions). This evidence is insufficient to 

support Mr. Jenkins’s position because he never identified 

any individual who made this statement nor did he provide any foundation for the alleged statement. See

J.A. 425; see also J.A. 18–19 (explaining by the MSPB

that Mr. Jenkins admitted he did not receive misinformation about the ability to retire from Human Resources); 

cf. Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1573–75 

(Fed. Cir. 1983) (finding involuntary retirement where

petitioner proved reasonable reliance on a misrepresentation made by a specific agency counselor). For the first 

time on appeal, Mr. Jenkins argues that a notation on his 

final Notification of Personnel Action Form says his 

reason for retirement was “to obtain retirement benefits.” 

Pet’r’s Br. 27–28. While this notation may demonstrate 

the Army knew Mr. Jenkins misunderstood the effect a 

removal would have on his retirement benefits, it does not 

evidence reliance by Mr. Jenkins upon alleged agency 

misinformation. J.A. 241. Importantly, Mr. Jenkins 
JENKINS v. MSPB 11

provided no evidence that he desired to retire based on 

that belief. See J.A. 18–19 (explaining by the MSPB that 

Mr. Jenkins provided no “specifics regarding the alleged 

misrepresentation”); see Pet’r’s Br. 27–28. After he received the Notice of Proposed Removal, J.A. 38–46, and

was informed of his appeal rights by the Army, J.A. 87, he 

still elected to retire. 

Third, Mr. Jenkins’s retirement was not caused by coercion. Mr. Jenkins argues that his retirement was the 

product of coercion because the Army “imposed the terms 

of [his] retirement” and he had “no [alternative] but to 

retire.” Pet’r’s Br. 30–31. A petitioner can establish his 

retirement was the product of coercion if he proves by 

preponderant evidence that an agency created “working 

conditions so intolerable” that he was “driven to involuntarily . . . retire.” Garcia, 437 F.3d at 1328–29. “[T]o 

establish involuntariness on the basis of coercion” due to a 

threatened or proposed adverse action, the employee must 

show that: (1) he involuntarily accepted the terms “effectively imposed” by the agency; (2) the circumstances 

presented “no realistic alternative” but to retire; and 

(3) his retirement was the result of “improper acts of the 

agency.” Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 

(Fed. Cir. 2001). Here, however, Mr. Jenkins has adduced

no evidence to demonstrate that his working conditions 

were intolerable. See generally Pet’r’s Br. Instead, Mr. 

Jenkins simply had the choice of not retiring and opposing 

the removal, or retiring.4 Thus, the MSPB correctly found 

4 The dissent states that “the Army put Mr. Jenkins 

in precisely the situation of making a forced choice because its offer to rescind his removal was conditioned 

upon Mr. Jenkins first retiring.” Dissent Op. 2. In 

Schultz, however, we explained that when “an employee is 

faced merely with the unpleasant alternatives of resigning or being subject to removal for cause, such limited 

 
12 JENKINS v. MSPB

Mr. Jenkins failed to demonstrate that his retirement was 

involuntary. 

CONCLUSION

We have considered Mr. Jenkins’s remaining arguments and find them unpersuasive. Accordingly, the 

Final Decision of the Merit Systems Protection Board is

AFFIRMED 

choices do not make the resulting resignation an involuntary act.” 810 F.2d at 1136. Here, the MSPB simply 

relied on Schultz, in addition to several MSPB cases, in 

holding that the “unpleasant choice” to retire or be removed “does not rebut the presumed voluntariness” of the 

decision to retire. See J.A. 16 (citations omitted). While 

Mr. Jenkins argues that his factual situation was different because the “rescission was expressly conditioned” on 

his retirement, Pet’r’s Br. 25, our precedent does not 

support such a distinction, Schultz, 810 F.2d at 1136. 

 
United States Court of Appeals 

for the Federal Circuit ______________________ 

CHARLES T. JENKINS, JR.,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2017-2193

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-0752-16-0080-I-2.

______________________ 

REYNA, Circuit Judge, dissenting.

The majority concludes that the Merit Systems Protection Board lacks jurisdiction to review the agency’s 

removal decision because the agency rescinded its removal decision in exchange for Petitioner Charles T. Jenkins, 

Jr.’s retirement. See Maj. Op. 5–8. As a result, the majority opinion undermines congressionally mandated 

protections for federal employees recognized by this court 

in Mays v. Department of Transportation, and provides 

federal agencies a playbook on how to structure the 

removal of federal employees to preclude judicial review of 

removal decisions. Now, the Catch-22 dilemma imposed 

on Mr. Jenkins will ensnare federal employees in the 

future. I respectfully dissent. 
2 JENKINS v. MSPB

1. Section 7701(j) 

Section 7701(j) of Title 5 of the United States Code 

prohibits the Board from considering in “any case involving a removal from the service . . . an individual’s status 

under any retirement system . . . [or] any [retirement] 

election.” In passing this statute as part of the Civil 

Service Due Process Amendments of 1990, “Congress 

intended to end the situation which forced federal employees to choose between appealing a removal action and 

accepting retirement benefits.” Mays v. Dep’t. of Transp., 

27 F.3d 1577, 1580 (Fed. Cir. 1994). Yet the Army put

Mr. Jenkins in precisely the situation of making a forced 

choice because its offer to rescind his removal was conditioned upon Mr. Jenkins first retiring. 

2. Mays

This court’s decision in Mays plainly applies to this 

case. In Mays, we held that the appellant retained her

appeal rights when she separated from service through 

retirement after “the agency had made the final decision 

to remove her.” 27 F.3d at 1580–81. Ms. Mays first 

received an initial notice of proposed removal. Id. at 

1577–78. The agency then informed Ms. Mays by decision 

letter that removal had been approved and she would be 

removed from her position a few days later. Id. at 1578. 

Ms. Mays retired on the same date her removal became 

effective. Id. The SF-50 form in her personnel file indicated that she “[r]etired after receiving written notice

. . . of [the] decision to separate for unacceptable performance.” Id. Ms. Mays appealed her removal, which the 

Board dismissed for lack of jurisdiction, holding that she 

had “divested the Board of jurisdiction” unless she could 

prove “her retirement was involuntary” because she 

retired on the same effective date as her removal. Id. 

This court reversed upon determining that 5 U.S.C. 

§ 7701(j) controls because Ms. Mays’s case “involve[d] a 

removal,” despite her retirement. Id. at 1581. We con-
JENKINS v. MSPB 3

cluded that the case “involved a removal” because Ms. 

Mays could not “escape the final agency decision to remove her,” and the agency did not dispute that Ms. Mays 

would not have retired when she did but for the removal 

action. Id. at 1580. The court found that the Board erred 

by considering Ms. Mays’s retirement status, which 

§ 7701(j) prohibited because her case involved a removal. 

Id. We pointed to the legislative history of § 7701(j), 

noting that the legislation promised to “allow[] an employee who is eligible to retire but who the agency wants 

to fire to take his or her annuity and still challenge the 

adverse action before the [Board].” Id. The majority 

opinion breaks away from that promise.

3. Cooper 

The majority relies on Cooper v. Department of the 

Navy. Maj. Op. 7–8. In Cooper, the Navy removed Mr.

Cooper for inability to perform his duties. Cooper v. Dep’t 

of the Navy, 108 F.3d 324, 325 (Fed. Cir. 1997). Mr. 

Cooper appealed, and in the course of the appeal, applied 

for disability retirement benefits. Id. Despite the removal decision, OPM approved Mr. Cooper for retirement 

benefits. Id. As to removal, the Board “held that as long 

as the removal was effected prior to OPM’s grant of 

disability retirement, the Board had jurisdiction to hear 

the appeal, regardless of the effective date of the retirement.” Id. In response to the Board’s holding, the Navy 

rescinded Mr. Cooper’s removal, removed all references to 

the removal action from his personnel file, and substituted a disability retirement separation for the removal. Id. 

The Board then dismissed the appeal as moot. Id. 

We affirmed in Cooper, holding that “[t]he Navy’s cancellation of the removal action and the removal of all 

references to that action from Cooper’s official personnel 

file eliminated all the consequences of that action and 

thus rendered Cooper’s appeal moot.” Id. at 326. The 

Cooper court recognized the Mays court’s characterization 
4 JENKINS v. MSPB

of § 7701(j) as intended to “ensure that an employee who 

was eligible for retirement at the time of his removal 

could take a retirement annuity without forfeiting his 

right to challenge his removal.” Id. Mr. Cooper specifically argued that to hold his appeal was moot would permit 

agencies to avoid review of removal decisions by removing 

an employee, waiting for that employee to file for retirement, and then rescinding the removal and moving to 

dismiss the appeal. In dismissing that argument, the 

Cooper court relied on the ability of employees to argue

involuntary retirement as a safeguard against such 

agency tactics. See id. at 326. 

The removal in this case is closer to Mays than 

Cooper. As in Mays, the agency in this case initially 

proposed removal, made a final decision to terminate, and 

took action by notifying Mr. Jenkins that he would be 

terminated. In addition, Mr. Jenkins retired the same 

day removal was effected and would not have retired but 

for the removal. The majority is correct that Mays did not 

involve a rescission of removal. But Mays remains applicable here because, like the agency in Mays, the Army

forced its employee to choose between appealing the

removal action and accepting retirement benefits, directly 

contravening the congressional intent of § 7701(j). As Mr. 

Jenkins argues, he retired to “protect his retirement 

benefits.” Maj. Op. 10; see also J.A. 241 (SF-50 form 

reflecting that he retired “to obtain retirement benefits”). 

The March 21, 2012 “Cancellation of Decision on Removal” memorandum received by Mr. Jenkins makes clear 

that rescission of his removal was conditioned upon him 

first retiring: 

If you retire from federal service on 31 March 

2012, this memorandum will serve as revocation

and cancellation effective 31 March 2012 of the 

[Notice of Decision] dated 21 March 2012. However, if you do not retire effective 31 March 2012, the 

[Notice of Decision] dated 21 March 2012 will not 
JENKINS v. MSPB 5

be revoked and cancelled and your removal from 

your position and federal service will be effective 

as of 1 April 2012.

J.A. 240 (emphases added).

By contrast, Mr. Cooper’s agency never forced him to 

choose between appealing his removal action and accepting retirement benefits. The agency removed Mr. Cooper, 

and it was only after he appealed the removal decision 

that he applied for retirement benefits. Mr. Cooper was 

not offered rescission in exchange for retiring and giving 

up his right to appeal. 

The majority states that the “sequence of retirement 

and rescission is not controlling.” Maj. Op. 6. But timing 

is not what distinguishes this case from Cooper. The 

question is whether there was a conditional offer of rescission in exchange for voluntary retirement. This 

distinction is key in the context of § 7701(j). In Cooper, 

the Board “merely relied on the fact that the agency had 

rescinded his removal [and] did not need to consider 

Cooper’s retirement status to reach its conclusion that his 

appeal was moot.” 108 F.3d at 326. But here, in direct 

violation of § 7701(j), the Board expressly considered Mr. 

Jenkins’s retirement in concluding that the removal had 

been rescinded as a direct result of his retirement: 

Here, the appellant retired before the removal action was effected, and the agency rescinded the 

removal decision upon the appellant’s retirement. 

The agency removed all references to the removal 

action in the employee’s personnel file, eliminating all consequences of the removal.

J.A. 6 (emphases added). By conditioning rescission upon 

Mr. Jenkins’s retirement, the agency forced the Board to 

“consider [the employee’s] retirement status to reach its 

conclusion that his appeal was moot.” Cooper, 108 F.3d at 

326. Unlike in Cooper, the Board could not have consid-
6 JENKINS v. MSPB

ered the rescission without also considering Mr. Jenkins’s 

retirement status. 

Finally, the majority reasons that removing from Mr. 

Jenkins’s file all the references to Mr. Jenkins’s removal 

eliminated “all consequences” of the removal, therefore 

making this case unlike Mays. Maj. Op. 6, 7–8 n.3. This 

is incorrect because Mr. Jenkins would not have retired 

but for his removal. In addition, removing references to 

the removal action from his file was conditioned on another more enduring and significant consequence: Mr. Jenkins loses his right to challenge the removal action by 

making an appeal. 

The majority decision is an exercise in splitting hairs 

that runs contrary to the Supreme Court’s directive to 

take an “expansive view” of “remedial legislation.” Ne.

Marine Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977); 

see also Van Wersch v. Dep’t of Health & Human Servs., 

197 F.3d 1144, 1149 (Fed. Cir. 1999) (discussing that the 

Civil Service Due Process Amendments of 1990, of which 

§ 7701(j) is a part, were intended to “remedy [the] state of 

affairs” for certain federal employees). To distinguish this 

case from Mays on the basis that Mr. Jenkins’s record was 

wiped clean of references to his removal is inconsistent 

with this court’s obligation to interpret such statutes to 

“avoid untenable distinctions and unreasonable results 

whenever possible.” Mays, 27 F.3d at 1580 (quoting Am. 

Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982), and 

refusing to distinguish the case on the basis of what a 

personnel officer writes in an employee’s file).

Here, reversal is warranted to condemn what are iniquitous tactics by agencies to force employees to choose 

whether to be fired, or to retire. They are iniquitous 

because the tactics insulate agency decisions from judicial 

review in cases where employees choose to preserve their 

retirement benefits. The result of this choice is the employee’s loss of the valuable ability to appeal conferred by 
JENKINS v. MSPB 7

federal statute. See 5 U.S.C. § 7701(a). To read Cooper as 

holding that all rescinded removal decisions escape the 

scope of § 7701(j), especially when offered in exchange for 

an employee’s voluntary retirement, is counter to legislative intent. Once an employee has been forced to make 

this choice, what a personnel officer writes in the employee’s file is a distinction that makes no difference. The 

majority’s decision will incentivize agencies to condition 

rescissions of removals on an employee’s first retiring to 

avoid the burden of defending removal actions. 

The Government argues that Mr. Jenkins has not 

been prejudiced because he can argue involuntary retirement. See Cooper, 108 F.3d at 326. The majority concludes that Mr. Jenkins could not show involuntary 

retirement because he could not show intolerable working 

conditions, and simply having to make a choice is not 

sufficient to establish coercion. The majority notes that 

“Mr. Jenkins simply had the choice of not retiring and 

opposing the removal, or retiring.” Maj. Op. 11. This

characterization disregards the importance of pension 

benefits to our nation’s federal employees. The majority’s 

decision creates a jurisdictional loophole by showing 

agencies how to divest federal employees of their right to 

appeal a removal in the interest of protecting those benefits, while ensuring their retirement remains sufficiently 

voluntary to keep the Board from having jurisdiction at 

all. See Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. 

Cir. 1987).1 Forcing a choice between retiring and keep1 The majority relies on Schultz for the proposition that 

that “where an employee is faced merely with the unpleasant alternatives of resigning or being subject to 

removal for cause, such limited choices do not make the 

resulting resignation an involuntary act.” Id. In that 

case, we reversed the Board’s finding of lack of jurisdiction on the grounds that the employee’s retirement was 

 
8 JENKINS v. MSPB

ing your benefits or termination and loss of benefits is an 

act of coercion, the very abuse that Congress recognized 

by passing § 7701(j). See Mays, 27 F.3d at 1580. Here, we 

have lost sight of the inherent right to appeal adverse 

employment decisions that Congress has afforded to 

federal employees. See Civil Service Due Process 

Amendments, Pub. L. No. 101-376, 104 Stat. 461, 461

(1990) (“An Act . . . to grant appeal rights to members of 

the excepted service affected by adverse personnel actions.”). The safeguard hypothesized in Cooper fails to 

protect against abuses such as the conditional rescission

of removal offered by the Army. For these reasons, I 

respectfully dissent. 

involuntary because the agency threatened removal for an 

improper basis. Id. at 1136–37. That case has no bearing 

on whether an agency’s final removal decision that is 

rescinded in exchange for an employee’s voluntary retirement should escape review under § 7701(j).