## United States Court of Appeals for the Federal Circuit

2007-3119

JEFFREY W. PARROTT, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent, and

DEPARTMENT OF HOMELAND SECURITY, Intervenor.

David G. Schiller , Schiller & Schiller, PLLC, of Ra leigh, North Carolina, argued for petitioner. Jeffrey A. Gauger , Acting Associate General Coun sel, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With him on the brie f were B. Chad Bungard , General Counsel, and Rosa M. Koppel , Deputy General Counsel. Of counsel was Sara B. Rearden , Attorney. Harold D. Lester, Jr. , Assistant Director, Commerc ial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for intervenor. On the brief were Jeanne E. Davidson , Director, Todd M. Hughes , Deputy Director, and Claudia Burke , Attorney. Appealed from: Merit S ystems Protection Board

## United States Court of Appeals for the Federal Circuit

2007-3119 JEFFREY W. PARROTT, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and DEPARTMENT OF HOMELAND SECURITY, Intervenor. Petition for review of the Merit System s Protection Board in DC-0752-06-0058-I-1.

__________________________ DECIDED: March 12, 2008

__________________________ Before SCHALL, BRYSON, and MOORE, Circuit Judges

. SCHALL, Circuit Judge

. Jeffrey W. Parrott is a former employee of the Transportation Security Administration (“TSA” or “agency”), Departm ent of Homeland Security. He resigned from his position with TSA on May 27, 2005. Subsequently, he appealed to the Merit Systems Protection Board (“Board”), alleging that his resignation was involuntary and therefore constituted a constructive remova l. Following a hearing, the administrative judge (“AJ”) to whom the appeal was assigned issued an in itial decision in which heheld that Mr. Parrott had failed to establish t hat his resignation was in voluntary. Parrott v. Dep’t of Homeland Sec. , No. DC-0752-06-0058-I-1, slip op. at 16 (M.S.P.B. Feb. 22, 2006) (“Initial Decision ”). He therefore dism issed the appeal for lack of jurisdiction. Id. The AJ’s initial decision becam e the final decision of the Board on December 4, 2006, when the Board denied Mr. Parrott’s petition for review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d) . Parrott v. Dep’t of Homeland Sec. , 104 M.S.P.R. 171 (2006) (“Final Decision ”). Mr. Parrott petitions for review, and the Department of Homeland Security has intervened. We affirm. BACKGROUND
I. From February of 2002 to October of 2005, Mr. Parrott was employed by TSA in North Carolina at Raleigh-Durham Airport (“RDU”). Initial Decision at 2. 1 From July of 2002 until the end of his employment, he held the position of Assistant Federal Security Director. Id. During the relevant period of time , Ron Juhl was the Federal Security Director at RDU and Mr. Parrott’s supervisor. Id. Following certain security breaches at RDU and various complaints to TSA headquarters by Mr. Parrott about Mr. Juhl, TSA conducted a “site visit,” or preliminary inquiry, at RDU in January of 2005. Id. This was followed by a full-scale management inquiry in March of 2005. Id. In due course, the team c onducting the inquiry prepared a management inquiry report, which was referred to the TSA Professi onal Review Board

1 Mr. Parrott challenges certain of the Board’s findings of fact. We have concluded, however, that the Board’s findings are supported by substantial evidence. See Bolton v. Merit Sys. Prot. Bd. , 154 F.3d 1313, 1316 (Fed. Cir. 1998) (findings of fact of the Board are to be affi rmed if they are supported by substantial evidence).

2007-3119 2(“PRB”). Id. at 2–3. The PRB is authorized to revi ew alleged incidents of misconduct or mismanagement involving senior officials of TSA. Id. at 3. On April 22, 2005, while the PRB wa s considering the management inquiry report, PRB Chair Charles Kielk opf sent Mr. Parrott an email. 2 Id. In the email, Mr. Kielkopf stated that it had been determined that, “in order to properly address issues raised in the management inquiry, formal PRB involvement was appropriate.” Id. Mr. Kielkopf further stated: “This notification is simply to inform you that the PRB will soon meet on serious issues that relate to y ou and your employment with TSA. Once the PRB meets you will be notified of t he decision of the Board.” Id. In due course, the PRB voted to propose Mr. Parrott’s removal based upon the charges of “Unacceptable leadership performance” and “Violation of Standard Operating Pr ocedures.” Id. at 4. On May 27, 2005, at approximately 10:00 a.m., Thomas Mulhern, TSA’s Program Executive Officer for Employee Relations; Dario Compain, TS A’s Southeast Area Director; and Kathleen Connon, a TSA attorney -advisor, met with Mr. Parrott at RDU. Id. Mr. Compain began the meet ing by stating that TSA had decided that Mr. Parrott and Mr. Juhl should be relieved of their duties immediately. 3 Id. at 4–5. Mr. Compain also stated that PRB had decided to issue a notice of proposed re moval to Mr. Parrott and that he was prepared to pres ent the notice that day. Id. Mr. Compain explained the nature of the charges in the notice and indicated that a se curity breach in which 200 unscreened bags were placed on airplanes at RDU served as at least partial justification for the proposed removal action. Id. at 5. Mr. Parrott asked to read the notice of

2 The Chair of the PRB is authorized to act as the proposing official for any disciplinary or adverse action r equiring a proposal and decision. 3 The agency issued a notic e of proposed removal to Mr. Juhl and terminated his employment. Initial Decision at 4.

2007-3119 3proposed removal. Id. Mr. Compain refused, however, stating that Mr. Parrott could only read the notice when it was formally served on him. Id. After Mr. Compain left the meeting, Mr. Mulhern explained to Mr. Parrott that he had th ree options: (a) receive the notice of proposed removal and later resign in lieu of termination; (b) respond to the removal notice before Theresa Bertucci, an Assistant Admini strator for TSA, who would be the deciding official; or (c) resign t hat day for “personal reasons.” Id. at 5–6. Ms. Connon explained the PRB process to Mr. Parrott, as well as the process involved in an appeal to the Board. Id. at 6. Mr. Parrott then had appr oximately one hour alone to make phone calls and consider his options. Id. During this period, he unsuccessfully sought to contact hi s attorney. Id. at 13. Eventually, Mr. Parrott decided to accept the option of resigning for personal reasons. In that regard, Mr. Mulhern reviewed with him a sample agreement and discussed with him the terms of his contempl ated resignation (such as effective date, matters relating to annual and administrative leave, and information TSA would provide to prospective employers). Id. at 6. Eventually, Mr. Mulhern gave Mr. Parrott a draft agreement to review. Id. at 7. After certain changes were made, Mr. Mulhern provided Mr. Parrott with the final agreement, whic h was titled “SETTLEMENT AGREEMENT AND RELEASE.” Id. Before Mr. Parrott signed the agreement, Mr. Mulhern asked him if he was sure he wanted to resign. Id. Mr. Parrott responded th at he was and signed the agreement. Id. The agreement provided that Mr. Parrott and TSA were voluntarily entering into the agreement in order to settle all claims between t hem; that Mr. Parrott would resign in lieu of being subject to othe r administrative action ; that the agreement was reached freely and voluntarily; and that Mr. Parrott waived all appellate rights,

2007-3119 4including the right to appe al to the Board. Id. Mr. Parrott signed the settlement agreement around 2:00 p.m. and submitted his letter of resignation. Id. In the letter, Mr. Parrott stated that he was resigning from TSA for personal reasons. Roughly four hours elapsed between Mr. Parrott’s being in formed of the proposed removal action and the submission of his resignation. On June 18, 2005, Mr. Parrott filed an app eal with the Board, alleging that his resignation was involuntary and therefore constituted a cons tructive removal. Id. The appeal was dismissed as premat ure, however, because, pursu ant to his agreement with TSA, Mr. Parrott’s resignation was not e ffective until September 30, 2005. Id. at 1, 7. Mr. Parrott re-filed his appeal on October 27, 2005, again alleging an involuntary resignation and constructive removal. Id. at 7. II. The scope of the Board’s subject matter jurisdiction is defined by 5 U.S.C. § 7701(a), which provides in re levant part that “[a]n employ ee . . . may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation.” Se ction 7513(d) of Title 5 grants the Board jurisdiction to hear appeals of certain enum erated adverse actions taken by an agency against an employee. The enumerated adverse actions include removals. 5 U.S.C. § 7513(d)(1) (2000); 5 C.F.R. § 1201.3(a)(2 ) (2007). A voluntary action by an employee—such as a resignation— lies outside the Board’s juri sdiction. Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1328–29 (Fed. Cir. 2006) (en banc). However, the Board does have jurisdiction “over an appeal filed by an employee who has resigned

2007-3119 5. . . if . . . his or her re signation . . . was involuntary and thus tantamount to forced removal.” Shoaf v. Dep’t of Agric. , 260 F.3d 1336, 1341 (Fed. Cir. 2001). Pursuant to 5 C.F.R. § 1201. 56(a)(2), “[t]he appe llant has the burden of proof, by a preponderance of the evidence, with respect to . . . [i]ssues of jurisdiction.” See 5 U.S.C. § 7701(a) (“Appeals s hall be processed in acco rdance with regulations prescribed by the Board.”). Thus, before the Board, Mr. Parrott had the burden of establishing by a preponderance of the evidenc e that his resignation was involuntary. An employee may demonstrate that his or her resignation was involuntary by demonstrating that the resignation wa s the product of coercion. Garcia , 437 F.3d at 1329. Coercion is demonstrated by showi ng that the agency essentially imposed the terms of the resignation on the employee, that the employee had no alternative to resignation, and that the resignation was a result of improper acts by the agency. Id. at 1328; Staats v. United States Postal Serv. , 99 F.3d 1120, 1124 (Fed. Cir. 1996). In a case involving an alleged constructive removal, “once a claimant makes non-frivolous claims of Board jurisdiction, namely claims that, if proven, establish the Board’s jurisdiction, then the claimant has a right to a hearing.” Garcia , 437 F.3d at 1344. Thereafter, “[a]t the hearing, t he claimant must prove jurisd iction by a preponderance of the evidence. If the Board dete rmines that the claimant [failed] to prove jurisdiction by a preponderance of the evidence, then the Board does not have jurisdiction and the case is dismissed for lack of jurisdiction.” Id. Addressing the jurisdictional issue pr esented by Mr. Parrott’s appeal, the AJ determined that Mr. Parrott had made non-frivolous allegations of Board jurisdiction so as to entitle him to a hearing on the volunt ariness of his resignation. Initial Decision at

2007-3119 67. Thereafter, following a hear ing in which he found the fact s set forth above, the AJ ruled that Mr. Parrott had failed to establish that his resignation wa s involuntary. Id. at 16. The AJ determined that the TSA did not impose t he terms of the settlement agreement upon Mr. Parrott, finding that TSA adequately explained the proposed removal and gave Mr. Parrott sufficient time to make hi s decision. Id. at 12–13. The AJ also determined that Mr. Parrott possessed r easonable alternatives to resignation for personal reasons insofar as he could have waited to receive the notice of proposed removal and resigned thereafter, or he could have attempted to appeal the proposed termination. Id. at 16. Notwithstanding the time constraint placed upon Mr. Parrott, the AJ determined that TSA had not engaged in coercive conduct because it had given Mr. Parrott sufficient time in which to make an informed decision. Id. at 15–16. Thus, the AJ concluded that Mr. Parrott’s resignation was voluntary and that the Board therefore did not possess jurisdiction over his appeal. Id. at 16. In due course, the Initial Decision became the final decision of the Board when the Board denied Mr. Parrott’s pet ition for review for failure to meet the criteria for review set forth at 5 C.F. R. § 1201.115(d). See generally Final Decision . Board Member Sapin, however, disse nted from the denial of the petition for review. In her dissent, Member Sapin focused on the short period of time Mr. Parrott had to consider the three options that Mr. Mulhern presented to him, the fact that TSA refused to allow Mr. Parrott additional ti me to contact his attorney, and the refusal of TSA to show Mr. Parrott the notice of proposed removal. Id. at 178–79, 181 (Sapin, Me mber, dissenting). In Member Sapin’s view, TSA had failed to provide a satisfactory explanation for its decision to limit Mr. Parrott’s ti me for decision to a relatively short period of time on May

2007-3119 727th. Id. at 179. Accordingly, Member Sapin concluded that Mr. Parrott had shown by a preponderance of the evidence that his resignation was invo luntary, thereby establishing Board jurisdiction over his appeal. Id. at 182. Board Chairman McPhie wrote a conc urring opinion responding to Member Sapin’s dissent. Chairman McPhie emphasized the email that Mr. Parrott had received, which signaled in advance the possibility of his removal; the fact that TSA need not have given Mr. Parrott the option of resigni ng for personal reasons, thereby rendering any time pressure in determi ning whether to do so irrelevant; and the fact that TSA acted properly in not present ing the notice of proposed remo val to Mr. Parrott, inasmuch as doing so would have limited his abi lity to resign for personal reasons. 4 Id. at 173–75 (McPhie, Chairman, concurring). Thus, Chai rman McPhie concluded that, because Mr. Parrott had failed to prove the involuntariness of his resignation, he had failed to establish Board jurisdiction over his appeal. Id. at 175–76. DISCUSSION Mr. Parrott has timely petitioned for revi ew of the Board’s final decision. We have jurisdiction pursuant to 28 U.S.C. § 1295( a)(9). Pursuant to 5 U.S.C. § 7703(c), we must affirm the Board’s decision unless we find it to be (1) arbitrary, capricious, an

4 Chairman McPhie wrote: “[The Office of Personnel Management’s] instructions to personnel offices provi de that when an employee with appeal rights submits a resignation after being notified in writing of a proposed disciplinary action, the circumstances of the resignat ion must be recorded in t he employee’s official file .” Final Decision , 104 M.S.P.R. at 175 (M cPhie, Chairman, concurring) (emphasis added); see also Guide to Processing Personnel Actions 31-5, available at http://www.opm.gov/feddata/ gppa/gppa31.pdf (“Agency findings should be documented . . . when the employee has appeal rights and has been notified in writing of an agency action BEFORE the resignation was subm itted.” (emphases in or iginal)). Therefore, had Mr. Parrott received the notice of proposed removal, TSA would have been required to record the reason for his remova l in his personnel file, thus limiting Mr. Parrott’s ability to state that his re signation was for “personal reasons.”

2007-3119 8abuse of discretion, or other wise not in accordance with law; (2) obtained without procedures required by law, ru le, or regulation hav ing been followed; or (3) unsupported by substantial evidence. See also Kewley v. Dep’t of Health & Human Servs. , 154 F.3d 1357, 1361 (Fed. Cir. 1998). U nder this standard, we revi ew determinations of the Board concerning its jurisdiction de novo . Forest v. Meri t Sys. Prot. Bd. , 47 F.3d 409, 410 (Fed. Cir. 1995); Vesser v. Office of Pers. Mgmt. , 29 F.3d 600, 603 (Fed. Cir. 1994). Findings of fact underlying the Boar d’s jurisdictional decision are reviewed for substantial evidence. Bolton , 154 F.3d at 1316. As note d above, we have concluded that the Board’s findings of fact ar e supported by substantial evidence. On appeal, Mr. Parrott challenges the Bo ard’s conclusion that his resignation was voluntary. In so doing, he focuses on the short period of time he was given to decide whether to accept the terms of t he settlement agreement and resign for personal reasons in lieu of having TS A proceed with its removal ac tion. Citing Terban v. Department of Energy , 216 F.3d 1021 (Fed. Cir. 2000), and Mi ddleton v. Department of Defense , 185 F.3d 1374 (Fed. Cir. 1999), Mr. Parrott contends that the Board erred as a matter of law in failing to consider, in conn ection with the issue of involuntariness, the time pressure that he was under. We do not agree. It is true that, in Terban , we stated that “the mo st probative evidence of involuntariness will usua lly be evidence in which there is a relatively short period of time between the employer’s alleged coercive act and the employee’s retirement.” 216 F.3d at 1024. In this case, however, there was no “coercive act” on the part of TSA. Pursuant to 5 U.S.C. § 7513( b) and TSA Management Directive No. 1100.75-3 6(H)(3), Mr. Parrott was entitled to receive 30 days’ advance notice of a proposed removal,

2007-3119 9stating the reason for the ac tion; the evidence supporting it; and his rights with respect to representation. Mr. Parrott also was entit led to a reasonable time to respond to the action orally and in writing. See 5 U.S.C. § 7513(b)(2); T SA Management Directive No. 1100.75-3 6(H)(3)(a)(1)(d). To comply with these provisions, TSA could have simply served upon Mr. Parrott the notice of proposed removal, after which the only options available to him would have been a resignati on in lieu of terminati on or a challenge to the proposed action. Transcript of Tria l Hearing at 105–06, Initial Decision . Instead, as seen, TSA chose to offer Mr. Parrott a third, more attractive option: resignation for personal reasons. By resigning prior to the service of the notice of proposed removal, Mr. Parrott managed to obtain certain conc essions on the part of TSA and avoid a negative employment reference that would have arisen had he been removed or had he resigned after service of the removal notice. Thus, rat her than just presenting Mr. Parrott with a notice of proposed removal, which is all it was required to do, TSA offered Mr. Parrott an option that it was under no oblig ation to provide, one that offered benefits to Mr. Parrott. In that setti ng, giving Mr. Parrott only a shor t time period within which to accept that option was not coercive, since having an additional, and potentially attractive, choice could only have been of benef it to him, even though he might have preferred to have that choice remain open for a longer period of time. See Staats , 99 F.3d at 1126 (Time pressure fe lt by Staats “was the product of his desire not to forfeit those benefits [early retirement and lump-sum bonus], which the agency was not required to offer in the first place.”). We thus agree with Board Chairman McPhie that “[a]lthough [Mr. Parrott] was presented with a difficult choice on Ma y 27, 2005, neither the choice itself not the circumstances under which it was made were the result of

2007-3119 10improper agency action.” Final Decision , 104 M.S.P.R. at 175 (McPhie, Chairman, concurring). In other words, when, on May 27, 2005, Mr. Mulhern presented Mr. Parrott with the option of resigning that day for pers onal reasons, he did not engage in a “coercive act.” Under these circumstances, the fact t hat Mr. Parrott had a relatively short period of time to decide whether to sign the settlement agreement and resign in lieu of receiving the notice of proposed removal did not render his re signation invol untary. “[A] choice is not involuntary simply becaus e an employee is faced with an inherently unpleasant situation or his choice is limited to two unpleasant alternatives.” Terban , 216 F.3d at 1026 (citing Covington v. Dep’t of Health & Human Servs. , 750 F.2d 937, 942 (Fed. Cir. 1984)). Finally, because TSA did not engage in coercive conduct, this case is entirely different from Middleton , upon which Mr. Parrott relies. In that case, Dr. John Middleton was informed that he was being removed from hi s position as an assistant principal at a high school located on a United Stat es Army base in Turkey. Middleton , 185 F.3d at 1378. Prior to the effective date of his remo val, Dr. Middleton retired pursuant to a settlement agreement with his employer, the Department of Defense Dependent Schools (“DODDS”). Id. at 1377–78. Subseq uently, he appealed to the Board, contending that his retirement was involunt ary because it was the product of coercion, duress, and misinformation. Id. at 1378. Upon concluding that Dr. Middleton had failed to make non-frivolous allegations of invo luntariness to warrant a hearing, the Board dismissed the appeal for lack of jurisdiction. Id. at 1377. Dr. Middleton then petitioned this court for review.

2007-3119 112007-3119 12 On appeal, we held that Dr. Middleton had in fact made non-frivolous allegations of involuntariness so as to entitle him to a hearing. Id. at 1380. We therefore vacated the decision of the Board that it lacked jurisdiction and remanded the case to the Board for a hearing on the issue of voluntariness. Id. at 1377. Dr. Middleton alleged that, at a time when he had recently undergone surgery for kidney stones, was recovering from broken ribs and a gallbladder operation, and was suffering from prostate cancer, DODDS put him under extreme time pr essure to leave Turkey. Id. at 1381–82. He also alleged that he was given incorrect inform ation concerning retention of benefits and Board appeal rights. Id. at 1381–83. Middleton does not help Mr. Parrot because, in this case, the TSA did not engage in coercive acts, let alone the kind of coercive acts alleged in Middleton

. CONCLUSION For the foregoing reasons, we affirm the final decision of the Board that it lacked jurisdiction over Mr. Parrott’s appeal. AFFIRMED Each party shall bear its own costs.