UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

STEPHANIE LORRAINE THOMAS,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

CH-0351-14-0649-I-1

DATE: April 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

C. M. Moulton, Elizabethtown, Kentucky, for the appellant.

Robert Sutemeier, Esquire, Peachtree City, Georgia, 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 the 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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). 

BACKGROUND

¶2 The appellant was employed as a Teacher with the Department of Defense 

Domestic Dependent Elementary and Secondary Schools at Fort Knox, Kentucky. 

Initial Appeal File (IAF), Tab 18 at 10, 23. On April 28, 2014, the agency issued 

the appellant a memorandum notifying her that she would be separated from her 

position by reduction in force (RIF), effective June 28, 2014, unless a suitable 

vacancy for her could be identified. Id. at 13-15. On June 23, 2014, the agency 

issued a memorandum cancelling the RIF. Id. at 17. On June 29, 2014, the 

appellant filed a Board appeal claiming she had been separated from the agency 

by RIF. IAF, Tab 1. The appellant did not request a hearing.

¶3 The appellant sought other employment, and on July 8, 2014, signed an 

employment contract with another employer. IAF, Tab 15 at 9. On July 9, 2014, 

the agency informed the appellant that the RIF had been cancelled. IAF, Tab 18 

at 11. Effective July 29, 2014, the appellant resigned from her federal position. 

IAF, Tab 7 at 20. In her letter of resignation, the appellant stated that she was 

choosing to leave her federal position “to advance [her] career with a job in the 

behavioral consulting field.” Id.
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¶4 In August 2014, the administrative judge issued an order noting that the 

agency had submitted evidence indicating that the appellant had not been 

separated by RIF and ordering her to show cause why the appeal should not be 

dismissed for lack of jurisdiction. IAF, Tab 8. The appellant responded, alleging 

that her resignation was involuntary because she was misled into believing she 

had been separated by RIF. IAF, Tab 13 at 5-7. Thereafter, the administrative 

judge advised the appellant of her burden of proof over an involuntary resignation 

claim and provided her with the opportunity to submit argument and evidence 

regarding this claim. IAF, Tab 14.

¶5 The administrative judge subsequently issued an initial decision dismissing 

the appeal for lack of jurisdiction. IAF, Tab 19, Initial Decision (ID). The 

administrative judge found that, because the agency cancelled the RIF, no agency 

personnel action was effected. ID at 2. She found that, accordingly, the Board 

lacked jurisdiction over the appeal from the cancelled RIF. ID at 2. The 

administrative judge further found that the appellant had failed to establish that 

her resignation was involuntary and that the Board therefore lacked jurisdiction 

over the case as an involuntary resignation appeal. ID at 4.

¶6 The appellant has filed a petition for review of the initial decision. Petition 

for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 On petition for review, the appellant does not contest the administrative

judge’s finding that the Board lacks jurisdiction over the appeal from the 

cancelled RIF. 2

 Rather, she contends that the agency failed to notify her that the 

 2 In any event, we discern no basis for disturbing this finding on review. ID at 2. If an 

agency cancels or rescinds an action before the employee files an appeal of that action, 

or if the agency modifies the action to one that is not appealable prior to the filing of an 

appeal, the Board lacks jurisdiction over the appeal of that action. Taber v. Department 

of the Air Force, 112 M.S.P.R. 124, ¶ 8 (2009); see Himmel v. Department of Justice, 

6 M.S.P.R. 484, 486 (1981) (it is the nature of the agency’s action at the time the appeal 

is filed that determines the Board’s jurisdiction). Here, the record reflects that the 
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RIF was cancelled. PFR File, Tab 1 at 5. She alleges that she was misled by the 

agency into believing that she would be separated by RIF, prompting her to seek 

employment elsewhere. Id. at 5-8. She states that she signed a binding contract 

of employment with another employer before learning that the RIF was cancelled 

and that she was forced to resign because she was concerned her new employer 

would sue her for breach of contract. Id. at 8-9.

¶8 We agree with the administrative judge’s finding that the appellant has 

failed to meet her burden of proof regarding her involuntary resignation claim. 

ID at 4. A decision to resign is presumed to be a voluntary act outside the 

Board’s jurisdiction, and the appellant bears the burden of showing by a 

preponderance of the evidence that her resignation was involuntary and therefore 

tantamount to a forced removal. Garcia v. Department of Homeland 

Security, 437 F.3d 1322, 1329-30 (Fed. Cir. 2006). 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. Baldwin v. 

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

¶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 

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)). An agency must provide 

information that is not only correct in nature but adequate in scope to allow an 

 

agency cancelled the RIF on June 23, 2014, IAF, Tab 18 at 17, and that the appellant 

filed her Board appeal 6 days later, on June 29, 2014, IAF, Tab 1. Accordingly, the 

administrative judge properly found that the Board lacks jurisdiction over the appeal of 

the cancelled RIF. See Taber, 112 M.S.P.R. 124, ¶ 9 (where the decision to remove the 

appellant had been cancelled by the time the appellant filed her appeal, the Board 

lacked jurisdiction to consider the case as an appeal from the agency’s decision to 

remove the appellant).
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employee to make an informed decision. Baldwin, 111 M.S.P.R. 586, ¶ 16. This 

includes an obligation to correct any erroneous information on which it has 

reason to know an employee is relying. Id. 

¶10 Here, the appellant has failed to show that her resignation was the product 

of misinformation by the agency. As noted by the administrative judge, the 

record reflects that the appellant never received the agency’s June 23, 2014

memorandum cancelling the RIF. ID at 3; IAF, Tab 18 at 11. However, the 

agency states that, on July 9, 2014, it advised the appellant that the RIF had been 

cancelled. IAF, Tab 18 at 11. The appellant states in her petition for review that 

she was aware that the RIF had been cancelled when she resigned on July 29, 

2014. PFR File, Tab 1 at 8. Accordingly, when she resigned the appellant was 

aware of all of the information necessary to make an informed decision. Thus, we 

conclude that the appellant did not rely on agency misinformation regarding the 

RIF when she resigned. See Soler-Minardo v. Department of 

Defense, 92 M.S.P.R. 100, ¶ 11 (2002) (finding that the appellant failed to 

establish that she relied on agency misinformation in making her decision).

¶11 Although the appellant contends that she resigned because she would have 

possibly faced a breach of contract suit had she remained, the mere fact that the 

appellant was faced with unpleasant choices, by itself, does not render her 

decision to resign involuntary. See Schultz v. United States Navy, 810 F.2d 1133, 

1136-37 (Fed. Cir. 1987); see also Soler-Minardo, 92 M.S.P.R. 100, ¶ 9. Based 

on the foregoing, we AFFIRM the initial decision dismissing the appeal for lack 

of jurisdiction. 

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:
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United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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 a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems
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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