NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3302

CAROL L. IDE, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent, and SOCIAL SECURITY ADMINISTRATION, Intervenor.

Randall A. Schmidt , of Savannah, Georgia, for petitioner. Raymond W. Angelo , Acting Associate General Co unsel, Office of the General Counsel, United States Merit Systems Prot ection Board, of Washington, DC, for respondent. With him on the brief were B. Chad Bungard , General Counsel, and Rosa M. Koppel , Deputy General Counsel. Brain S. Smith , Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, for in tervenor. With him on the brief were Peter D. Keisler , Acting Attorney General, and Kathryn A. Bleecker , Assistant Director. Appealed from: United States Me rit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3302

CAROL L. IDE, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and SOCIAL SECURITY ADMINISTRATION, Intervenor.

__________________ _________ DECIDED: October 10, 2007

__________________ _________ Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge , and DYK, Circuit Judge

. RADER, Circuit Judge

. Carol Ide appeals the final decision of the Merit Systems Protection Board (“MSPB” or “Board”) denying her pet ition for review of the dism issal of her appeal of an allegedly involuntary resignation. Ide v. Soc. Sec. Admin. , No. AT-0752-03-0379-M-1(M.S.P.B. Mar. 29, 2006). This court affirms

. I Ms. Ide, a disabled veter an, began work on July 15, 2001 as a student trainee in Savannah, Georgia for the Social Security Ad ministration (“SSA” or “Agency”). Nearing completion of her degree, Ms. Ide was slat ed to end her trainee position in Savannah and begin a permanent position with the Agency in September 2002 in Statesboro, Georgia. Ms. Ide’s graduation from college was a prerequisite to starting in this permanent position. In early August 2002, she learned that she had failed a Regents examination and coul d not graduate before she was sc heduled to begin her permanent position with the Agency. Ms. Ide did not immediately inform her supervisors of her situation, but waited until the third time she was questioned by Russell Waller (SSA District Manager, Savannah) about her status after Ms. Ide k new that she had failed the Regents exam. In September, Ms. Ide was informed that her em ployment would be terminated, as she had not graduated from coll ege as anticipated and there were no funds allocated to continue her employment as a student trainee. She asked if she had any options, and was informed by Mr. Waller t hat she could resign. On September 6, 2002, Ms. Ide signed a resignation letter, which stated that she was resigning for “personal reasons.” In January 2003, Ms. Ide filed an appeal asserting that her resignation was not voluntary. An MSPB adminis trative judge dismissed her appeal, finding that she did not meet the statutory definition of “employee” entitled to file an appeal with the Board under 5 U.S.C. § 7511(a)(1) (20 00). After the MSPB denied her petition for review, Ms. Ide appealed to this court, which reversed the B oard’s decision, stati ng that the record

2006-3302 2was insufficient to determine whether she was preference eligible and that she had made nonfrivolous argument s on that issue. Ide v. Soc. Sec. Admin. , 131 Fed. Appx. 728 (Fed. Cir. 2005) (unpublished) . On remand, the adminis trative judge assumed that Ms. Ide met the statutory definition of “emp loyee,” but nonetheless concluded that the Board lacked jurisdiction because she volunt arily resigned from her position. After unsuccessfully petitioning the MSPB for revi ew, Ms. Ide now appeals to this court.
II Whether the MSPB had jurisd iction to adjudicate a case is a question of law, which this court reviews de novo. Forest v. Merit Sys. Prot. Bd. , 47 F.3d 409, 410 (Fed. Cir. 1995). This court’s review of the Bo ard’s factual determinations supporting its assessment of jurisdiction is limited, and the Board must be affirmed unless its determination is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule or regulation having been fo llowed; or (3) unsupported by subs tantial evidence. 5 U.S.C. § 7703(c) (2000). An appellant must prove by a preponderance of the ev idence that his or her appeal is within the Board’s juri sdiction. 5 C.F.R. § 1201.56( a)(2)(i). Resignation from the federal service is presumed to be a voluntary act, out side the Board’s jurisdiction. Braun v. Dep’t of Veterans Affairs , 50 F.3d 1005, 1007 (Fed. Cir. 1995). To rebut the presumption, the appellant must show: “(1) that the resignat ion or retirement was the product of misinformation or deception by t he agency; or (2) that the resignation or retirement was the product of coercion by the agency.” Terban v. Dep’t of Energy , 216 F.3d 1021, 1024 (Fed. Cir. 2000). Importantly, “where an employee is faced merely

2006-3302 3with the unpleasant alternatives of resigning or being subject to removal for cause, such limited choices do not make the resulting resignation an involuntary act.” Schultz v U.S. Navy , 810 F.2d 1133, 1136 (Fed. Cir. 1987). But, if an employee can prove that the agency knew that its reason fo r threatened removal could not be substantiated, then the threatened action was coercive. Id. To rebut the presumption that her resignat ion was voluntary, Ms. Ide argues that the Agency’s reason for removal cannot be substantiated for two r easons: 1) she was not required by regulation or by her contract to graduate by a particular date, but only to graduate within a reasonable time; and 2) t here was no immediate need to terminate her position, as she was without fault for fa iling her examination a nd the student position was funded throughout the fiscal year. The Board found that Ms. Ide had told the agency repeatedly that she would graduate in August 2002. In making this det ermination, the Boar d weighed Ms. Ide’s testimony against the testimony of Mr. Waller and Tommy Morris (SSA Georgia Area Director), documentary evidence including two emails between Mr. Waller and Mr. Morris from March 2002 and July 2002 indicati ng that they understood Ms. Ide intended to graduate in August and begi n her permanent position in September, Ms. Ide’s own testimony that she had purchas ed a car in July 2002 in ant icipation of commuting to her new job in Statesboro, and Ms. Ide’s own acknowledgement that she was ineligible to start her permanent position prior to graduati on. Mr. Morris also testified before the administrative judge that he decided that extending Ms. Ide’s student position was unwarranted given her unforthcoming approach to disclosing her failure to graduate as well as the staffing commitments alr eady made for the next fiscal year.

2006-3302 4After conducting a hearing, the administ rative judge concluded that the agency’s version of the events “simply ma[de] sense,” while Ms. Ide’s assertions were “inherently improbable.” Ide v. Soc. Sec. Admin. , No. AT-0752-03-0379-M-1 (M.S.P.B. Nov. 16, 2005). This court is ill-positioned to sec ond-guess the administrativ e judge’s credibility determinations on which his overall findings rest. Indeed, an adm inistrative judge’s credibility determinations are “virtually unreviewable.” Frey v. Dep’t of Labor , 359 F.3d 1355, 1361 (Fed. Cir. 2004) (quoting King v. Dep’t of He alth & Human Services , 133 F.3d 1450, 1453 (Fed. Cir. 1998)). Although the administrative ju dge did not specifically address the requirement in 5 C.F.R. § 213.3202(b) cited by Ms. Ide that graduation must be “accomplished in a reasonable and appropr iate timeframe,” that provision only applies to Ms. Ide’s tempor ary position and do es not authorize appointment to a permanent position before completion of gr aduation. Nor do the regulations guarantee permanent positions to students who successf ully complete program requirements: “[s]tudents, who are U.S. citizens, may be noncompetitively conv erted from the Student Career Experience Program to a term, career or career-c onditional appointment.” 5 C.F.R. § 213.3202(b)(11) ( 2001) (emphasis added). The administrative judge’s conclusion that Ms. Ide’s permanent empl oyment with the Agen cy was contingent upon her August 2002 graduation wa s thus based on substantial evidence and was not clearly erroneous. Ms. Ide’s assertion that she should have been retained at least through the end of the fiscal year in her st udent position is intertwined wit h her argument that she was subjected to time pressure to resign, an indi cation of involuntarine ss. Time pressure may provide a basis for involuntariness, but only where the ag ency demands that the

2006-3302 52006-3302 6 employee make an “immediate decision.” Middleton v. Dep’t of Def. , 185 F.3d 1374, 1381 (Fed. Cir. 1999) (quoting Staats v. U.S. Postal Serv. , 99 F.3d 1120, 1126 (Fed. Cir. 1996). Ms. Ide was informed that she would be terminated and signed the resignation on the same date. But, Ms. Ide has not pointed to anything in the hearing record that indicates that she was to be terminated that very day. The Board did not abuse its discretion in concluding that Ms . Ide’s resignation was not coerced. Substantial evidence therefore supports the MSPB’s conclusion that the SSA had a supportable reason for removing Ms. I de, namely that her continued employment required her to graduate from college. Although Ms. Ide may have been faced with the “unpleasant alternatives” of resigning or be ing terminated, this does not make her choice involuntary. In resigning, Ms. Ide preserved her good standing to reapply for a future job with the Agency, but sacrificed the procedural protections that are afforded to a terminated employee. She cannot now seek reli ef from the MSPB or this court for this voluntary choice. Because the MSPB’s conclusion that Ms . Ide’s resignation was voluntary is supported by substantial evidenc e, the Board properly determi ned it lacked jurisdiction over her appeal, and its decision is therefore affirmed

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