NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

FRANK E. PISTILLI,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF THE TREASURY,

Intervenor

______________________ 

2016-1660

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. NY-0752-13-0032-I-2.

______________________ 

Decided: October 11, 2016

______________________ 

FRANK E. PISTILLI, Melville, NY, pro se.

CALVIN M. MORROW, Office of the General Counsel, 

Merits Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

ROBERT NORWAY, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washing-
2 PISTILLI v. MSPB

ton, DC, for intervenor. Also represented by BENJAMIN C.

MIZER, ROBERT E. KIRSCHMAN, JR., CLAUDIA BURKE. 

______________________ 

Before PROST, Chief Judge, REYNA, and CHEN, Circuit 

Judges.

PER CURIAM. 

Frank E. Pistilli seeks review of the Merit Systems 

Protection Board’s (“Board”) dismissal of his appeal for 

lack of jurisdiction. The Board found that Mr. Pistilli had 

not shown his retirement was involuntary. For the reasons explained below, we affirm the Board’s decision.

BACKGROUND

Mr. Pistilli began working as an investigative analyst 

for the Internal Revenue Service (“the agency”) in 2004. 

He retired from the agency in October 2012. He alleges 

that his retirement was involuntary, and that a series of 

events leading up to and following his retirement demonstrate that the agency used coercion to force him to retire. 

In 2004, Mr. Pistilli was appointed to a position at the 

agency’s Lead Development Center (“LDC”) in a unit 

involved in terrorism investigations. In 2005, the agency 

determined that analysts in Mr. Pistilli’s unit needed Top 

Secret security clearances. The agency issued a separate 

position description requiring a Top Secret clearance for 

these analysts, and intended to reassign each of them to 

that separate position as they received their Top Secret 

clearance. 

Mr. Pistilli applied for a Top Secret clearance, but his 

application was denied in 2008. While he appealed the 

denial, he was detailed to a field office where he initially 

performed administrative duties and then had no formal 

duties. In 2009, after Mr. Pistilli’s clearance appeal was 

denied, Mr. Pistilli was removed: the agency removed him 

for failure to meet a requirement of his position as he 
PISTILLI v. MSPB 3

lacked a Top Secret clearance. Mr. Pistilli appealed his 

removal. 

In March 2011, an administrative judge affirmed the 

agency’s removal of Mr. Pistilli. Pistilli v. Dep’t of Treasury, NY-0752-11-0001-I-2, 2011 WL 4604301 (Mar. 10, 

2011). In December 2011, the Board found that the 

agency failed to prove that Mr. Pistilli’s position required 

a security clearance. Pistilli v. Dep’t of Treasury, No. NY0752-11-0001-I-2, 2011 WL 12516583, at *3–4 (M.S.P.B. 

Dec. 14, 2011). The Board explained that, while the 

agency had the authority to require all analysts in Mr. 

Pistilli’s unit at the LDC to obtain a security clearance, 

the agency had never actually assigned Mr. Pistilli to the 

new position description that required the clearance. Id.

at *2–3. The Board ordered the agency to reinstate Mr. 

Pistilli. Id. at *4.

The agency reinstated Mr. Pistilli to active duty in 

January 2012, and again assigned him to the field office. 

The agency maintained that all analysts working at the 

LDC needed Top Secret clearances.

Mr. Pistilli filed a petition for enforcement of the 

Board’s reinstatement order, arguing that Board’s order 

meant that the agency needed to reinstate him to his 

former position at the LDC that did not require a security 

clearance. In August 2012, an administrative judge found 

that the agency had complied with the Board’s order by 

reinstating Mr. Pistilli to his position at the field office, a 

position he had occupied for more than a year prior to his 

removal. Pistilli v. Dep’t of Treasury, NY-0752-11-0001-C1, 2012 WL 4052725 (Aug. 15, 2012). The Board affirmed 

the administrative judge’s determination in November 

2013. Pistilli v. Dep’t of Treasury, No. NY-0752-11-0001-

C-1, 2013 WL 9658963, at *3 (M.S.P.B. Nov. 20, 2013).

In June 2012, the agency sent Mr. Pistilli an email 

stating that it did not have enough work to keep him at 

the position in the field office. The agency explained that 
4 PISTILLI v. MSPB

if Mr. Pistilli wanted to work at the LDC, he would have 

to apply for and obtain a Top Secret clearance. The 

agency stated that Mr. Pistilli also could transfer to 

another field office position that had more work available. 

The record indicates that Mr. Pistilli wanted to return to 

work at the LDC, but that he did not want to apply for a 

Top Secret clearance again. 

The agency stopped giving Mr. Pistilli work assignments around September 5, 2012. In September 2012, the 

agency decided to assign Mr. Pistilli to the position at the 

LDC that required the Top Secret security clearance. Mr. 

Pistilli attempted to decline this assignment, but he was 

reassigned on September 27, 2012. Mr. Pistilli was 

instructed to complete an application for Top Secret 

clearance, and told that he would remain detailed to the 

field office until he received a clearance. 

On October 9, 2012, Mr. Pistilli informed the agency 

he wanted to retire. He turned in his badge and computer 

on October 11, 2012. On October 18, the agency informed 

Mr. Pistilli that his retirement had not taken effect, 

because his retirement paperwork had not been received. 

Mr. Pistilli then submitted a retirement application, and 

he retired effective October 15, 2012. The director of Mr. 

Pistilli’s program at the agency sent an email to other 

managers stating “Houston, we have lift off!!” after receiving confirmation that Mr. Pistilli’s retirement had been 

processed. S.A. 123.

In November 2012, Mr. Pistilli filed an appeal alleging that he was forced to retire, discriminated against on 

the basis of his age, and retaliated against for having 

successfully challenged his earlier removal.1 In March 

 

1 This appeal was dismissed without prejudice 

while Mr. Pistilli’s petition for enforcement was pending 

before the Board. Pistilli v. Dep’t of Treasury, NY-0752-
PISTILLI v. MSPB 5

2015, the administrative judge issued an order advising 

Mr. Pistilli that the Board might not have jurisdiction 

over his appeal because retirement is presumed to be 

voluntary. In July 2015, the administrative judge found 

that the evidence did not support a conclusion that Mr. 

Pistilli’s retirement was involuntary. Pistilli v. Dep’t of 

Treasury, NY-0752-13-0032-I-2, 2015 WL 4250199 (July 

6, 2015). Therefore, Mr. Pistilli’s appeal was dismissed 

for lack of jurisdiction. Id.

In her decision, the administrative judge found that 

Mr. Pistilli did not retire due to his working conditions, 

because, although he had not been provided work for a 

period of time, the agency had recently promised to provide him with work. She found that Mr. Pistilli decided to 

retire “to avoid the background investigation.”2 S.A. 24. 

She found that Mr. Pistilli’s supervisor’s remark celebrating Mr. Pistilli’s retirement was inappropriate, but that it 

did not impact his decision to retire because it was made 

 

13-0032-I-1, 2013 WL 3224238 (Jan. 29, 2013). After the 

Board denied Mr. Pistilli’s petition for enforcement in 

November 2013, Mr. Pistilli then refiled his appeal.

2 The administrative judge’s finding about “the 

background investigation” is ambiguous in the context of 

the record, which reflects that at the time Mr. Pistilli 

retired, he had been instructed to complete two different 

background checks. In addition to being instructed to 

complete the Top Secret clearance application, Mr. Pistilli 

had received an email on October 4 and again on October 

9 instructing him to complete forms for a routine background check. The administrative judge cites the October 

9 email in her decision, suggesting that the routine background check was what she found inspired Mr. Pistilli to 

retire. This email does include a section asking recipients 

“Are you retiring soon?” and instructing recipients what 

to do if that is the case. S.A. 66.
6 PISTILLI v. MSPB

after he retired. The administrative judge found the 

Board’s decision in Putnam v. Department of Homeland 

Security, 121 M.S.P.R. 532 (2014) persuasive. She found 

that, “[l]ike the appellant in Putnam, [Mr. Pistilli] could 

have awaited the outcome of the clearance process.” S.A. 

24. She found that Mr. Pistilli’s “belief that it was only a 

matter of time before the agency would remove him from 

his position was speculative.” Id.

On appeal, the Board affirmed the administrative 

judge’s decision. Pistilli v. Dep’t of Treasury, No. NY0752-13-0032-I-2, 2016 WL 81515 (M.S.P.B. Jan. 5, 2016). 

The Board cited Conforto v. Merit Systems Protection 

Board, 713 F.3d 1111, 1122 (Fed. Cir. 2013) for the principle that, to find that the agency coerced Mr. Pistilli into 

retiring, “the coercion must be the result of improper acts 

by the agency.” Id. at ¶ 10. The Board found that the 

agency’s decision to reassign Mr. Pistilli was not improper. The Board rejected Mr. Pistilli’s argument that it was 

improper to reassign him because the agency knew he 

could not obtain the required Top Secret clearance. The 

Board provided two reasons in support of this conclusion: 

it stated that Mr. Pistilli provided “no support for this 

assertion” and that Mr. Pistilli had “contradict[ed] himself 

by stating that he had no interest in avoiding the background check, intimating that he would be able to pass 

such a review.” Id. at ¶ 12. The Board noted that Mr. 

Pistilli argued that the agency “reneged on its offer” of a 

position that did not require a Top Secret clearance, but 

found that Mr. Pistilli had not shown that the agency was 

obligated to provide him such a position. Id. The Board 

agreed with the administrative judge that Mr. Pistilli 

chose to retire rather than “begin the security clearance 

process,” and that he freely chose to retire. Id. at ¶ 13. 

Mr. Pistilli appeals this decision. He argues that the 

Board made a number of incorrect statements about the 

facts in its analysis. For example, he objects to the 

Board’s statement that he contradicted himself. He 
PISTILLI v. MSPB 7

explains that what the Board saw as a contradiction was 

merely Mr. Pistilli’s attempt to clarify that—contrary to 

the administrative judge’s findings—he did not retire to 

avoid the routine background check, “a level of clearance I 

had passed before and could again.” Pet’r Br. 2. Mr. 

Pistilli argues that the Board incorrectly dismissed the 

statement made by his supervisor after he retired, and 

incorrectly described his beliefs and desires about what 

the agency’s obligations to him were and what position he 

wanted.

Mr. Pistilli argues that the Board erred in finding 

that Mr. Pistilli provided no proof that the agency knew 

he could not obtain a Top Secret clearance, since the 

agency had previously denied his Top Secret clearance 

application. He also argues that the Board applied an 

incorrect standard in determining whether his retirement 

was voluntary. He argues that his transfer to a position 

that he believed he was not qualified for and that would 

necessarily result in his termination was coercive and a 

constructive termination. He argues that it usurps meritbased civil service laws to permit an agency to transfer an 

employee to a position he is not qualified for. 

Mr. Pistilli argues that the fact that the agency chose 

to reassign him to the position requiring Top Secret 

clearance before he received such a clearance—contrary to 

the agency’s prior practice of waiting until an analyst 

received Top Secret clearance before transferring the 

analyst—indicated that the agency was setting him up for 

termination if he again failed to receive such a clearance. 

He argues that transferring him to the position requiring 

Top Secret clearance prior to his obtaining such a clearance violated agency policy. Mr. Pistilli argues that he 

had no reasonable alternative to retiring once he was 

reassigned to the position requiring a Top Secret clearance: he was convinced he would not be able to obtain 

such a clearance and that he would be facing certain 

termination if he did not retire. Mr. Pistilli argues that 
8 PISTILLI v. MSPB

being terminated would have resulted in him being unable to gain other employment and would have permanently destroyed his reputation.

The Board has responded, and the Department of the 

Treasury has intervened. We have jurisdiction under 28 

U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1). See Conforto, 713 F.3d at 1115–21 (finding that this court has jurisdiction to review the Board’s finding that it lacks 

jurisdiction even in cases alleging discrimination). 

DISCUSSION

A. Standard of Review 

We must affirm the Board’s decision unless we find it 

to be arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law; obtained without 

procedures required by law, rule, or regulation having 

been followed, or unsupported by substantial evidence. 5 

U.S.C. § 7703(c); Monasteri v. Merit Sys. Prot. Bd., 232 

F.3d 1376, 1378 (Fed. Cir. 2000). The scope of the Board’s 

jurisdiction is a legal question that we review de novo. Id.

B. Involuntary Retirement

The Board has jurisdiction based on an employee’s retirement only if the retirement is involuntary. Conforto, 

713 F.3d at 1114. An employee’s retirement or resignation is presumed to be voluntary unless the employee 

proves by a preponderance of the evidence that it was 

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

1322, 1329 (Fed. Cir. 2006). 

An employee’s retirement may be found involuntary if 

it occurs as a result of coercion, deception, or misinformation on the part of the employing agency. Starkey v. 

Dep’t of Navy, 198 F.3d 851, 853 (Fed. Cir. 2000). To 

show coercion, the employee must establish that a reasonable employee in the same circumstances would feel 

coerced into resigning or retiring. Conforto, 713 F.3d at
PISTILLI v. MSPB 9

1121 (Fed. Cir. 2013). For example, an employee may be 

coerced to retire based on intolerable working conditions. 

Garcia, 437 F.3d at 1328. “In order to establish involuntariness on the basis of coercion, an employee must show 

that the agency effectively imposed the terms of the 

employee’s resignation or retirement, that the employee 

had no realistic alternative but to resign or retire, and 

that the employee’s resignation or retirement was the 

result of improper acts by the agency.” Staats v. U.S. 

Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996). When 

an employee chooses to retire merely because “because he 

does not want to accept a new assignment, a transfer, or 

other measures that the agency is authorized to adopt,” 

the employee is not coerced into retiring, even if the 

reassignment makes “the job so unpleasant for the employee that he feels that he has no realistic option but to 

leave.” Id. 

Mr. Pistilli argues that the agency’s improper acts 

that coerced him into retiring were (a) reassigning him to 

the position at the LDC that required the Top Secret 

clearance and (b) providing him with intolerable working 

conditions.

First, we affirm the Board’s finding that the agency’s 

choice to reassign Mr. Pistilli was not an improper act. 

When the agency decided to begin requiring all of the 

analysts in Mr. Pistilli’s unit at the LDC to have Top 

Secret security clearances, Mr. Pistilli’s position at the 

LDC became a position which required a Top Secret 

clearance. As a result, Mr. Pistilli was no longer qualified 

for the position at the LDC.

Mr. Pistilli’s situation is analogous to when an employee hired for a position requiring a security clearance 

fails to obtain such a clearance, or he obtains one and it is 

later revoked. In these circumstances, the agency may 

terminate the employee for failing to meet an essential 

requirement of his position and has no obligation to 
10 PISTILLI v. MSPB

transfer the employee to a non-sensitive position. Griffin 

v. Def. Mapping Agency, 864 F.2d 1579, 1581 (Fed. Cir. 

1989); Daney v. Dep’t of Interior, 25 F. App’x 994, 995 

(Fed. Cir. 2001).

The Board did not err in finding that the agency 

properly chose to reassign Mr. Pistilli from the position at 

the field office where it had limited work for Mr. Pistilli to 

his former position at the LDC which now required a Top 

Secret clearance. When Mr. Pistilli failed to obtain a Top 

Secret clearance, the agency was entitled to terminate Mr. 

Pistilli. While the Board in 2011 ordered Mr. Pistilli 

reinstated because the agency had not yet transferred Mr. 

Pistilli to the new position description for his job that 

required a Top Secret clearance when it terminated him, 

this order did not mean that the agency was not permitted to transfer Mr. Pistilli to the Top Secret position in 

the future. 

Mr. Pistilli argues that it violated agency policy to reassign an employee to a position requiring a clearance 

before the security clearance was obtained. But Mr. 

Pistilli identifies no source for this alleged policy. While 

previously Mr. Pistilli and his colleagues were instructed 

to apply for Top Secret clearances before being assigned to 

a position requiring the clearance, this one example of the 

agency’s practice does not indicate that there was a policy 

requiring this. 

Given the circumstances of this case, we do not think 

that the agency’s reassignment of Mr. Pistilli would have 

been improper even if the agency knew—or believed it 

was extremely likely—that Mr. Pistilli would again fail to 

obtain a Top Secret clearance, or even if the agency intended to terminate Mr. Pistilli as soon as his clearance 

application was denied. Cf. Frey v. Dep’t of Labor, 359 

F.3d 1355, 1357, 1360 (Fed. Cir. 2004) (Agencies have 

wide discretion in reassigning employees and may remove 

employees who refuse reassignment, if the reassignment 
PISTILLI v. MSPB 11

was in good faith and based upon legitimate management 

considerations.). Similarly, we do not think that the 

agency’s reassignment of Mr. Pistilli would have been 

improper even if it was against Mr. Pistilli’s desires and 

even if the agency did not provide Mr. Pistilli with a 

meaningful opportunity to accept an alternative nonsensitive position. See Griffin, 864 F.2d at 1581. As a 

result, the arguments on appeal about Mr. Pistilli’s likelihood of obtaining a Top Secret clearance on his second 

attempt, Mr. Pistilli’s opportunity to accept an alternative 

position, and whether the agency would have terminated 

Mr. Pistilli had his application been denied are all irrelevant.

Because the agency’s choice to reassign Mr. Pistilli to 

the position description for his former position that required a Top Secret security clearance was not improper, 

the Board did not err in finding that the agency’s decision 

to do so did not coerce Mr. Pistilli into retiring.

Second, Mr. Pistilli argued that he suffered intolerable working conditions based on his not being provided 

work to do. As the agency had explained to Mr. Pistilli 

that it had limited work available for him while he lacked 

a security clearance, the Board did not err in finding that 

this working condition was not an improper act by the 

agency to coerce Mr. Pistilli to retire. 

We have carefully considered Mr. Pistilli’s additional 

arguments. None of them affect our affirmance of the 

Board’s determination regarding the voluntariness of Mr. 

Pistilli’s retirement.

CONCLUSION

We affirm the Board’s determination that Mr. Pistilli 

had not shown by a preponderance of the evidence that 

his retirement was involuntary. Therefore, we affirm the 

Board’s dismissal of Mr. Pistilli’s appeal for lack of jurisdiction.
12 PISTILLI v. MSPB

AFFIRMED

COSTS

No costs.