NOTE: This disposition is nonprecedential 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

GABRIEL MAIKA’I DELAPENIA, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent, 

AND

DEPARTMENT OF THE NAVY, 

Intervenor. 

__________________________ 

2010-3116 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. SF0752090980-I-1. 

___________________________ 

Decided: November 9, 2010 

___________________________ 

GABRIEL MAIKA’I DELAPENIA, of Kapolei, Hawaii, pro 

se. 

CALVIN M. MORROW, Attorney, Office of General 

Counsel, Merit Systems Protection Board, of Washington, 

DC for respondent. With him on the brief were JAMES M.
DELAPENIA v. MSPB 2

EISENMAN, General Counsel and KEISHA DAWN BELL, 

Deputy General Counsel. 

KENT C. KIFFNER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for intervenor. With him on 

the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM, 

Assistant Director. 

__________________________ 

Before RADER, Chief Judge, LOURIE, and DYK, Circuit 

Judges. 

PER CURIAM. 

Gabriel Maika’I Delapenia (“Delapenia”) petitions for 

review of a final decision of the Merit Systems Protection 

Board (“Board”). The Board dismissed Delapenia’s appeal 

for lack of jurisdiction. Delapenia v. Dep’t of the Navy, No. 

SF0752090980-I-1 (M.S.P.B. Mar. 17, 2010) (“Final Decision”). We affirm. 

BACKGROUND

On June 3, 2009, Delapenia resigned from his position 

as a Police Officer at Naval Station Pearl Harbor, in Pearl 

Harbor, Hawaii. He claims that his resignation was 

involuntary and that the Board accordingly had jurisdiction. The background of this dispute is as follows. 

As confirmed by video surveillance, Delapenia and 

several other officers drove government owned vehicles to 

a Denny’s restaurant located outside of their patrol areas 

while on duty the night of December 15, 2008. When 

interviewed regarding the matter by Captain Giddens of 

the Naval Security Station on December 20, 2008, Delapenia executed a sworn statement denying he had visited 
3 DELAPENIA v. MSPB

Denny’s on December 15 and denying he knew of any 

officers who visit the restaurant while on duty. Delapenia 

reaffirmed his statement when interviewed on January 5, 

2009, by an investigator for the Office of the Inspector 

General (“Inspector General”). The agency contended 

that Delapenia’s statements were knowing falsifications 

and thus grounds for removal. Delapenia was issued a 

notice of proposed removal on April 27, 2009, for misuse of 

a government vehicle and falsification. On June 3, 2009, 

Delapenia resigned pursuant to a Memorandum of 

Agreement under which he agreed that his resignation 

was voluntary and waived his right to appeal. The agency 

agreed that “neither Mr. Delapenia’s SF-50 nor his Official Personnel Folder will indicate that he is in possession 

of a notice of proposed removal, and his SF-50 will state 

that he resigned for personal reasons.” Resp’t’s App. 22.

Despite this agreement, Delapenia filed an appeal to 

the Board. Delapenia contended that his resignation was 

involuntary due to acts of coercion and misrepresentation 

by the agency. Finding that Delapenia failed to make a 

non-frivolous allegation of involuntariness, the administrative judge (“AJ”) declined to grant an evidentiary 

hearing and dismissed the case for lack of jurisdiction. 

Delapenia v. Dep’t of the Navy, No. SF0752090980-I-1, slip 

op. at 3-6 (M.S.P.B. Dec. 10, 2009) (“Initial Decision”). 

The Board denied Delapenia’s petition for review, and the 

AJ’s decision became the final decision of the Board. In 

denying review, the full Board nonetheless addressed the 

merits of Delapenia’s arguments. Final Decision, at 2 n.*. 

Delapenia timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

Voluntary resignations are beyond the Board’s jurisdiction, Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 
DELAPENIA v. MSPB 4

1328 (Fed. Cir. 2006) (en banc), but the Board has jurisdiction when a resignation was “involuntary and thus 

tantamount to forced removal.” Shoaf v. Dep’t of Agric., 

260 F.3d 1336, 1341 (Fed. Cir. 2001). To be entitled to a 

hearing, Delapenia was required to make a non-frivolous 

allegation that his resignation was involuntarily because 

it resulted from the agency’s (1) misrepresentations, or (2) 

coercion. Terban v. Dep’t of Energy, 216 F.3d 1021, 1024 

(Fed. Cir. 2000). Delapenia was also required to support 

these allegations with evidence, as “[n]on-frivolous allegations cannot be supported by unsubstantiated speculation 

in a pleading submitted by petitioner.” Khan v. Dep’t of 

Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) (quoting 

Dorrall v. Dep’t of the Army, 301 F.3d 1375, 1380 (Fed. 

Cir. 2002), overruled on other grounds by Garcia, 437 F.3d 

at 1322). We review de novo whether an appellant has 

made non-frivolous allegations of fact sufficient to establish Board jurisdiction. Coradeschi v. Dep’t of Homeland 

Sec., 439 F.3d 1329, 1331 (Fed. Cir. 2006). 

Delapenia contends he made a non-frivolous allegation that the agency knew or should have known it lacked 

substantiation for its falsification charge; he asserts there 

was no evidence that he made false statements knowingly 

or intentionally. A threat of adverse action is coercive if 

the agency knows or should know that it cannot be substantiated. Schultz v. U.S. Navy, 810 F.2d 1133, 1136 

(Fed. Cir. 1987). Delapenia’s argument is unsupported. 

“In establishing an employee’s intention to deceive or 

mislead the agency, circumstantial evidence may be 

considered.” Kumferman v. Dep’t of the Navy, 785 F.2d 

286, 290 (Fed. Cir. 1986). Delapenia executed a sworn 

statement on December 20 in which he falsely denied 

going to Denny’s on December 15, even though there was 

surveillance footage to the contrary. The short time 

between the event and his statement is strong circum-
5 DELAPENIA v. MSPB

stantial evidence from which the agency could have 

reasonably concluded that Delapenia’s falsity was intentional. Moreover, even if he was mistaken as to which 

night he was at the restaurant, the agency could have 

reasonably found that Delapenia was knowingly untruthful when, despite visiting Denny’s with other officers five 

days prior, he claimed to not “have any knowledge of who 

may go there on duty.” Resp’t’s App. 17. Similarly, 

circumstantial evidence supports the agency’s finding that 

Delapenia was knowingly untruthful when he told an 

Inspector General investigator on January 5—less than a 

month after the incident—that the last time he visited 

Denny’s in a patrol car was “a long time ago when I was 

in the FTO program.” Intervenor’s App. 37. Thus, the 

Board did not err in determining that Delapenia failed to 

present a non-frivolous allegation that the agency lacked 

a reasonable basis for a removal action based on the 

falsification charge. 

Delapenia next argues the Board improperly relied on 

his false statement because he was coerced into responding by the threat of removal for not cooperating. This 

same claim was rejected in LaChance v. Erickson, 522 

U.S. 262 (1998). The Supreme Court held in LaChance

that a federal agency may sanction an employee for 

making false statements to investigators regarding employment-related misconduct, because employees “may 

decline to answer the question[s], or answer [them] honestly, but [they] cannot with impunity knowingly and 

willfully answer with a falsehood.” Id. at 265, 268 (citation omitted). Delapenia had a choice—he could (1) not 

answer, (2) answer truthfully, or (3) answer untruthfully. 

That Delapenia might have faced termination if he failed 

to answer is irrelevant, because having chosen to answer, 

LaChance required him to answer truthfully. If Delapenia believed the agency could not properly compel him to 
DELAPENIA v. MSPB 6

answer, he could have raised this issue by declining to 

answer. 

For the first time on appeal, Delapenia argues his resignation was involuntary because the agency failed to 

inform him of his right to appeal a removal action to the 

Board. Even if the issue had been properly raised, the 

agency had no duty to inform Delapenia of a right to 

appeal because it had not yet taken adverse action 

against him, and an appeal is available only to employees 

“against whom an action is taken.” 5 U.S.C. § 7513(d). 

Similarly, 5 C.F.R. § 752.404(f) (2009) only required the 

agency to provide notice of appeal rights “at or before the 

time the action will be effective.” Since Delapenia resigned before being terminated, there was no requirement 

that he be notified of appeal rights. Moreover, in signing 

the Memorandum of Agreement which waived his appeal 

rights, Delapenia was in fact placed on notice that an 

appeal process existed. 

Finally, Delapenia contends the agency misrepresented its authority to provide him with a clean record, 

because (1) the agency was required to retain his notice of 

proposed removal pursuant to 5 U.S.C. § 7513(e), 5 C.F.R. 

§ 752.606, and the Office of Personnel Management Guide 

to Processing Personnel Actions 31-5; (2) the agency in 

fact retained his notice of proposed removal, which it 

provided to the Board; and (3) he has since applied for 

numerous federal jobs without success. Even if this issue 

had been properly raised, nothing in the Memorandum of 

Agreement required the agency to destroy the notice of 

proposed removal; it merely required that “neither Mr. 

Delapenia’s SF-50 nor his Official Personnel Folder will 

indicate that he is in possession of a notice of proposed 

removal, and his SF-50 will state that he resigned for 

personal reasons.” Resp’t’s App. 22. The agency listed 

the reason for resignation as personal on his SF-50, and 
7 DELAPENIA v. MSPB

Delapenia has presented no evidence that the agency 

retained the notice of proposed removal in his Official 

Personnel Folder, and not some other file. There has been 

no showing that the agency lacked authority to enter into 

the settlement or that it violated the terms of the agreement. 

Because Delapenia failed to make a non-frivolous allegation that his resignation was involuntary, the Board 

did not err in finding it lacked jurisdiction over his appeal. 

AFFIRMED 

COSTS

 No costs.