NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not 

citable as precedent. It is a public record. 

United States Court of Appeals for the Federal Circuit 

04-3468 

OSCAR R. WINN, 

 Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

 Respondent. 

_____________________ 

DECIDED: May 9, 2005 

_____________________ 

 

Before LOURIE, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA, Circuit 

Judge. 

PER CURIAM. 

DECISION 

Oscar R. Winn petitions for review of the decision of the Merit Systems 

Protection Board dismissing his appeal for lack of jurisdiction. Winn v. Dep’t of 

Homeland Sec., No. DA-0752-03-0018-I-1 (M.S.P.B. July 15, 2004). We affirm. 

BACKGROUND 

Mr. Winn was hired in October 2000 by the Department of Agriculture as an 

agricultural technician at the GS-5 level. In May 2002, Winn applied for a GS-7 position 

as a Plant Protection and Quarantine Officer in the Department of Homeland Security, 
to which a section of the Department of Agriculture had transitioned. That position 

required that Winn undergo a one-year probationary period, achieve a minimum grade 

of eighty percent in the agency’s new officer training program, and demonstrate 

satisfactory performance and conduct during the probationary period. 

Winn was accepted for the officer position and, at the conclusion of his 

probationary period, was promoted to the GS-7 level. However, he was unable to 

attend his training class until after the probationary period had already ended. 

Ultimately, Winn was unable to achieve a passing grade of eighty percent at officer 

training, and, as a result, the agency notified him that he could either resign or be fired. 

On November 3, 2003, Winn resigned from the agency. On November 14, 2003, he 

changed his mind and requested that his resignation be withdrawn. The agency denied 

that request. 

On November 25, 2003, Winn appealed to the Board, arguing that his resignation 

was involuntary because he had been coerced into resigning. In January 2004, the 

Administrative Judge (“AJ”) issued an initial decision. Winn v. Dep’t of Homeland Sec., 

No. DA-0752-04-0130-I-1, slip op. at 5, 8 (M.S.P.B. Jan. 21, 2004). The AJ noted 

Winn’s acknowledgement that the agency was firing him “because I failed the course 

and . . . I could not remain in the officer job.” Id., slip op. at 7. The AJ concluded that 

Winn had failed to present nonfrivolous allegations of fact that, even if proven, would 

establish that his resignation was involuntary, and she dismissed the case for lack of 

jurisdiction. Id., slip op. at 8. 

Winn filed a petition for review by the full Board, which was denied, making the 

initial decision of the AJ final. See Loui v. Merit Sys. Prot. Bd., 25 F.3d 1011, 1013 

04-3468 2 
(Fed. Cir. 1994); 5 C.F.R. § 1201.113(b) (2004). Winn timely appealed to this court. 

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION 

The scope of our review in an appeal from a decision of the Board is limited. We 

must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 

331 F.3d 1307, 1311 (Fed. Cir. 2003). 

On appeal, Winn argues that he presented nonfrivolous allegations of fact that 

his retirement was involuntary so that the Board did have jurisdiction. He asserts that 

the agency coerced him into resigning and that he should have been returned to his 

former position. The government responds that Winn clearly did not satisfy the 

requirements of the officer position because he had failed the training class, an 

undisputed fact. The government maintains that Winn had ample time to decide 

whether to resign and that resignation was not his only option. 

We agree with the government that the Board correctly dismissed Winn’s appeal 

for lack of jurisdiction. Our case law establishes that a decision to resign or retire is 

presumed to be voluntary, and an employee who retires voluntarily has no right to 

appeal to the Board. Staats v. United States Postal Serv., 99 F.3d 1120, 1123-24 (Fed. 

Cir. 1996). The Board has jurisdiction over an appeal only if the employee can 

demonstrate that his resignation was involuntary. Id. at 1124. We have stated that “[i]n 

order to establish involuntariness on the basis of coercion, an employee must show that 

04-3468 3 
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.” Id.

Here, Winn failed to satisfy his burden to establish that his resignation was 

involuntary. The agency’s proposed removal action was seemingly justified because, 

as Winn conceded, he failed the training class, a requirement of the officer position. 

There is no indication in the record that Winn was forced to make an immediate 

decision whether to resign. Indeed, Winn does not even allege that he was required to 

make a decision by any specific deadline, and there were no impending removal 

proceedings by the agency that pressured Winn to resign. He could have declined to 

resign and challenged any subsequent dismissal. The uncontested facts thus indicate 

that Winn’s decision to resign was made with ample time and by his own choosing. 

Also, Winn’s argument that the agency should have returned him to his former position 

due to a purported agency policy is not supported by the record. He has not alleged 

that any particular agency regulation requires the rehiring of employees who fail training 

for a subsequent position. 

We have considered Winn’s remaining arguments and find them unpersuasive. 

CONCLUSION 

We conclude that the Board’s decision was supported by substantial evidence 

and was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law. Accordingly, we affirm the decision of the Board. 

04-3468 4