UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN W. SPRINGFIELD,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-16-0347-I-1

DATE: November 21, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Norman Jackman, Esquire, Lincoln, New Hampshire, for the appellant.

Daniel Fevrin, Esquire, Norfolk, Virginia, 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 his 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

administrative 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. 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, 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). 

¶2 The appellant was previously employed by the agency as a Boatswain Mate, 

WM-9923-10, with the Military Sealift Command, Norfolk, Virginia, and 

assigned to serve on sea-going vessels. Initial Appeal File (IAF), Tab 2 at 1, 

Tab 9 at 20. On November 3, 2015, the deciding official for the agency issued a 

decision notice removing the appellant from his position, effective November 7, 

2015, for the removal of merchandise from a U.S. Naval Exchange (NEX) in 

Japan without payment or authorization. IAF, Tab 9 at 11-16. The appellant 

resigned on November 6, 2015. Id. at 17-20. 

¶3 The appellant filed an appeal with the Board challenging the removal

notice. IAF, Tab 2 at 10. The agency moved to dismiss the appeal for lack of 

jurisdiction, arguing that the appellant resigned from his position and was not 

removed. IAF, Tab 9. The administrative judge issued a jurisdictional order 

informing the appellant of his jurisdictional burden. IAF, Tab 10. After briefing 

by the parties, and without the appellant’s requested hearing, the administrative 

judge dismissed the appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision 

(ID) at 1. The appellant has filed a petition for review. Petition for Review 

(PFR) File, Tab 1. The agency has filed an opposition to the appellant’s petition. 

PFR File, Tab 3. 
3

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 The appellant has the burden of proving by preponderant evidence tha t the 

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

employee-initiated action, such as a resignation, is presumed to be voluntary, and 

thus outside the Board’s jurisdiction. Vitale v. Department of Veterans Affairs, 

107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation, however, is 

equivalent to a forced removal and, therefore, is within the Board’s jurisdiction. 

Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir. 

2006) (en banc). If an appellant presents nonfrivolous allegations of Board 

jurisdiction, i.e., allegations of fact that, if proven, could establish the Board’s 

jurisdiction, he is entitled to a hearing at which he must prove jurisdiction by 

preponderant evidence. Id. at 1344; 5 C.F.R. § 1201.4(s). 

¶5 To overcome the presumption that a resignation is voluntary, the employee 

must show that it was the result of the agency’s misinformation or deception or 

that he was coerced by the agency to resign. Vitale, 107 M.S.P.R. 501, ¶ 19. The 

appellant contends that he was forced to resign after the agency issued the 

removal notice. IAF, Tab 11 at 6. A resignation to avoid a threatened removal 

may be considered coerced if the employee can show that the agency had no 

reasonable grounds for threatening the action. Lamb v. U.S. Postal Service, 

46 M.S.P.R. 470, 475 (1990). If the employee can show that the agency knew or 

should have known that the removal could not be sustained, the threatened action 

is deemed coercive. Glenn v. U.S. Soldiers’ and Airmen’s Home, 76 M.S.P.R. 

572, 581 (1997). 

¶6 The appellant argues that the agency knew or should have known that the 

removal could not be sustained because it was for off-duty activity that had no 

relationship to his job duties or performance. PFR File, Tab 1 at 4. In the initial 

decision, the administrative judge noted that the Board previously has found a 
4

nexus between off-duty thefts and the efficiency of the service. 2 ID at 5 (citing 

Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 16 (2001); Fouquet 

v. Department of Agriculture, 82 M.S.P.R. 548, ¶ 18 (1999); Hawkins v. U.S. 

Postal Service, 35 M.S.P.R. 549, 552-53 (1987)). He further found that the 

appellant failed to nonfrivolously allege that the agency lacked a reasonable 

ground for finding nexus between his misconduct and his ability to accomplish 

his duties. Id. The administrative judge also found that the appellant failed to 

allege that the agency lacked reasonable grounds to find nexus based on its losing 

confidence in his ability to perform his duties following his theft. Id. He then 

summarily found that the appellant failed to prove that his resignation was 

coerced because the agency knew or should have known that its adverse action 

was baseless.3 ID at 6. 

¶7 Initially, we clarify the administrative judge’s finding that the appellant 

failed to prove that his resignation was coerced. Id. At this stage, the appellant 

only was required to present nonfrivolous allegations of Board jurisdiction. 

Garcia, 437 F.3d at 1344. If the appellant makes such allegations, he then is

entitled to a jurisdictional hearing where he must prove jurisdiction by 

preponderant evidence. Id. Nonetheless, the administrative judge did find that 

the appellant failed to make nonfrivolous allegations of jurisdiction, and we agree 

with those findings. ID at 5-6. 

¶8 We also conclude that the appellant has failed to nonfrivolously allege that 

the agency could not reasonably assert a nexus between a removal for an off-duty 

theft and the efficiency of the service. The Board generally recognizes three 

 

2 An agency may take an adverse action against an employee only for such cause as will 

promote the efficiency of the service. 5 U.S.C. § 7513(a). 

3

The administrative judge also found the appellant failed to nonfrivolously allege that 

the agency’s action was unsupported by the evidence or that the agency had no 

reasonable grounds for taking the action. ID at 5-6. The appellant has never argued 

that he did not engage in the misconduct and has admitted to it. IAF, Tab 11 at 4. We 

find no reason to disturb the administrative judge’s finding in this regard. 
5

means by which an agency may show a nexus between an employee’s off-duty 

misconduct and the efficiency of the service: (1) a rebuttable presumption of 

nexus may arise in certain egregious circumstances; (2) a showing by 

preponderant evidence that the misconduct adversely affects the appellant’s or 

coworkers’ job performance or the agency’s trust and confidence in the 

appellant’s job performance; and (3) a showing by preponderant evidence that the 

misconduct interfered with or adversely affected the agency’s mission. Kruger 

v. Department of Justice, 32 M.S.P.R. 71, 74 (1987). 

¶9 Without weighing the evidence presented by the agency, we find that the 

appellant has asserted only bare allegations that the agency had no reasonable 

basis to bring the action against him, that his misconduct did not adversely affect 

his job performance, and that the agency should not have lost confidence in him

and his ability to perform his job duties. The appellant did not allege that he did 

not engage in the misconduct, ID at 5-6; IAF, Tab 11 at 4, and the Board has 

regularly found a nexus between theft and the efficiency of the service, see 

Stuhlmacher, 89 M.S.P.R. 272, ¶ 16; Fouquet, 82 M.S.P.R. 548, ¶ 18; Hawkins, 

35 M.S.P.R. at 552-53. The appellant merely contends that the agency knew or 

should have known it would not succeed on an appeal of the removal and that his 

theft was not related to his job duties. PFR File, Tab 1 at 4. We find that these 

bare allegations do not constitute nonfrivolous allegations so as to entitle him to a 

jurisdictional hearing on whether his resignation was coerced. See Lara v. 

Department of Homeland Security, 101 M.S.P.R. 190, ¶ 7 (2006) (stating that 

mere pro forma allegations are insufficient to satisfy the nonfrivolous standard). 

As such, we find no basis to disturb the administrative judge’s findings. 

¶10 The appellant relies on D.E. v. Department of the Navy, 721 F.2d 1165

(9th Cir. 1983), to claim that the agency knew or should have known that it could 

not establish a nexus between the removal for his misconduct and the efficiency 

of the service. PFR File, Tab 1 at 4-5. Although the administrative judge did not 

address this argument, we find the appellant’s reliance on this case to be 
6

misplaced. In D.E., the court held, in an actual removal case, that mere reliance 

on a “presumption of nexus,” which was based on the alleged egregiousness of 

the employee’s off-duty misconduct, was insufficient to meet the agency’s burden 

of proving an actual adverse impact on the efficiency of the service. D.E.,

721 F.2d at 1167-69. The issue in this case is not whether the agency established 

nexus by relying solely on a presumption, but rather whether the agency knew or 

should have known that it could not have established nexus by any form of 

acceptable evidence if the appellant had chosen to challenge his removal rather 

than resign. As such, we find the appellant’s reliance on D.E. unavailing. 

¶11 The appellant also attempts to distinguish several cases cited by the agency 

to the administrative judge prior to the issuance of the initial decision regarding 

off-duty conduct and efficiency of the service. PFR File, Tab 1 at 6. However, 

the administrative judge did not rely on any of those cases in the initial decision. 

We find the appellant’s discussion of those cases to be immaterial, and we do not 

review them any further. 

¶12 The appellant also appears to argue on review that his resignation was 

coerced because his representative was incompetent and told him that he should 

resign if he wanted to work for the Federal Government again. Id. at 4. The 

administrative judge found that the agency cannot be found to have coerced the 

appellant’s resignation because he followed the advice of his representative at the 

time, despite not disagreeing with such advice. ID at 6. We agree with the 

administrative judge’s finding. The Board has held that an appellant is 

responsible for any error, action, or inaction of a chosen representative. Smith 

v. U.S. Postal Service, 111 M.S.P.R. 341, ¶ 9 (2009). Accordingly, we do not 

disturb the administrative judge’s finding. 

¶13 Based on the foregoing, we affirm the initial decision’s dismissal of this 

appeal for lack of jurisdiction. 
7

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

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 U.S. 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 U.S. 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 an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 
8

Merit Systems 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.

______________________________

Jennifer Everling

Acting Clerk of the Board