UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

FRANK E. PISTILLI,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

NY-0752-13-0032-I-2

DATE: January 5, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Frank E. Pistilli, Dix Hills, New York, pro se. 

Eileen P. Collins, Esquire, New York, New York, 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 involuntary retirement 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the facts of the case; the 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. 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, 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 agency removed the appellant from his Investigative Analyst (IA) 

position for his failure to meet a requirement of his position, i.e., hold a top secret 

security clearance. The appellant appealed and the administrative judge affirmed 

his removal. Pistilli v. Department of the Treasury, MSPB Docket No. NY-0752-

11-0001-I-2, Initial Decision (0001-I-2 ID) (Mar. 10, 2011). Although the 

appellant’s position did not require such a credential when the agency hired him, 

the agency subsequently determined that all the employees in the appellant’s 

work unit, the Narcotics and Counterterrorism Lead Detection Center (LDC), 

should be required to have a top secret security clearance, and it therefore began 

the process of first requesting the required credential and then reassigning each 

employee once they received it. 0001-I-2 ID at 2-3. However, because the 

agency denied the appellant’s security clearance application, instead of 

reassigning him, the agency removed him and, as noted above, the administrative 

judge affirmed the agency’s action. 0001-I-2 ID at 3-4. 

¶3 The appellant filed a petition for review and the Board canceled his

removal, finding that, because the agency had not yet actually reassigned him to a 

position that required a security clearance when it removed him, the agency had 

failed to prove its charge. Pistilli v. Department of the Treasury, MSPB Docket 
3

No. NY-0752-11-0001-I-2, Final Order (Dec. 14, 2011). The appellant then filed 

a petition for enforcement in which he challenged the details of his subsequent 

reinstatement. Pistilli v. Department of the Treasury, MSPB Docket No. 

NY-0752-11-0001-C-1. While the appellant’s petition for enforcement was 

pending before the Board, the agency informed him that he could not continue in 

the detail assignment that it had restored him to because there was not enough 

appropriate work available, and it gave him a choice between IA positions: his 

desired position in the LDC, which required a top secret security clearance and 

for which he would need to begin the process of requesting one; or a position in a 

field office, which did not require one. Pistilli v. Department of the Treasury, 

MSPB Docket No. NY-0752-13-0032-I-2, Refiled Appeal File (RAF), 2 Tab 16

at 3, 20, 22, 25-28. The record does not reflect that the appellant responded to 

that notice and the agency then sent him a letter in which it again offered him a

position that did not require a top secret security clearance. Pistilli v. Department 

of the Treasury, MSPB Docket No. NY-0752-13-0032-I-1, Initial Appeal File 

(IAF), Tab 4, Subtab 4O. 

¶4 The administrative judge subsequently denied the appellant’s petition for 

enforcement, Pistilli v. Department of the Treasury, MSPB Docket No. NY-0752-

11-0001-C-1, Initial Decision (Aug. 15, 2012), and the appellant filed a petition 

for review. On review, the Board noted the strict limitations on its authority in 

cases involving security clearance determinations, which prohibit any review of 

the agency’s determination that a particular position requires a security clearance. 

Pistilli v. Department of the Treasury, MSPB Docket No. NY-0752-11-0001-C-1,

 2 The administrative judge dismissed the instant action without prejudice pending the 

outcome of the appellant’s petition for enforcement. See Pistilli v. Department of the 

Treasury, MSPB Docket No. NY-0752-13-0032-I-1, Initial Appeal File, Tab 8, Initial 

Decision. Following the issuance of the Board’s final order finding the agency in 

compliance, the appellant refiled this appeal consonant with the administrative judge’s 

instructions. Pistilli v. Department of the Treasury, MSPB Docket No. NY-0752-11-

0001-C-1, Final Order (Nov. 20, 2013); RAF, Tab 1. 
4

Final Order (Nov. 20, 2013) (citing Skees v. Department of the Navy, 864 F.2d 

1576, 1578 (Fed. Cir. 1989) (“If the Board cannot review the employee’s loss of 

security clearance, it is even further beyond question that it cannot review the 

Navy’s judgment that the position itself requires the clearance.”)). In light of the 

Board’s inability to order the appellant into a position that the agency determined 

required him to hold a clearance he did not possess, we found that the agency 

returned the appellant to the status quo ante when it placed him in the detail 

assignment he held prior to his removal, an IA position in the field office that 

did not require a security clearance but involved similar duties. Id. The appellant 

complained about the circumstances of his reinstatement at the field office several 

times over the next month, asserting that the agency would not give him any 

assignments and that his work station was substandard, RAF, Tab 6 at 8-10, but 

the administrative judge found that the record reflected that the appellant was not 

interested in being permanently assigned to an IA position in that location and 

instead wanted an IA position at the LDC, RAF, Tab 20, Initial Decision (ID)

at 13. 

¶5 In keeping with the appellant’s expressed desire, the agency subsequently 

reassigned him to an IA position in the LDC, which, as was the case with all such

positions in the LDC, required a top secret security clearance, and instructed him

to begin the process of acquiring the necessary credential. IAF, Tab 4,

Subtab 4K. The appellant declined the reassignment because he did not possess a 

security clearance and unilaterally decided that he henceforth would work from 

home and report to his assigned office for administrative purposes only. Id.,

Subtab 4J. The agency informed the appellant that he would be considered absent

without leave and might face disciplinary action if he did not report to his 

assigned office. Id., Subtab 4I. The agency again requested that the appellant 

begin the background investigation process. RAF, Tab 16, Exhibit 5 at 3. 

¶6 The appellant subsequently informed the agency that he was forced to 

retire. IAF, Tab 4, Subtab 4F. The agency urged the appellant to think about his 
5

decision, informing him that he still had an IA position in the field office and the 

agency had work assignments for him. Id., Subtab 4E. Nevertheless, later that 

same day, the appellant turned in his identification badge and computer and, 

several days later, submitted a retirement application. Id., Subtabs 4E-4G. 

Because the appellant asserted that his retirement was not voluntary, the agency 

provided him notice regarding the Board’s appeal process. Id., Subtab 4A. This 

appeal followed. IAF, Tab 1. The appellant did not request a hearing. Id. 

¶7 After providing an exhaustive review of the background and procedural 

history involved, excerpted in pertinent part here, the administrative judge found 

that the appellant failed to establish by preponderant evidence that he 

involuntarily retired and therefore dismissed the appeal for lack of jurisdiction. 

ID. In finding that the appellant failed to establish that his retirement was 

involuntary, the administrative judge relied on Putnam v. Department of 

Homeland Security, 121 M.S.P.R. 532 (2014). ID at 14. 

¶8 In his petition for review, the appellant argues that the administrative judge 

neglected to address the agency’s unilateral decision to reassign him to an IA 

position requiring a top secret security clearance, which he asserts he cannot 

obtain. Petition for Review (PFR) File, Tab 1 at 4. He claims that his 

reassignment violated both agency policy and law and also directly contradicted 

sworn testimony that he could not occupy such a position. Id. The appellant 

argues that, contrary to the findings set forth in the initial decision, he expressed 

his interest in accepting a position that did not require a top secret security 

clearance and that his telephone calls and email messages asking for a formal 

transfer memorandum regarding that position were to no avail. Id. at 5-6. He 

again contends that his reinstatement without being provided work assignments 

was an indefinite suspension, and challenges the administrative judge’s 

conclusion that he retired to avoid going through the background check, insisting 

that such concerns had nothing to do with his decision. Id. at 8. The appellant 

reiterates that he involuntarily retired due to the cumulative effect of the agency’s 
6

actions in, among other things, forcing him to work by himself, not providing him 

with work to do, and requiring him nevertheless to report for duty. Id. He 

attempts to distinguish his case from Putnam, 121 M.S.P.R. 532, arguing that he 

never received a top secret security clearance and therefore did not have his 

security clearance suspended as did the appellant in Putnam. Id. Finally, the 

appellant cites his supervisor’s email, sent after the appellant’s retirement, 

proclaiming “Houston, we have liftoff,” as evidence that the agency sought to 

have him retire. Id. at 10. The agency responds in opposition and the appellant 

provides a reply to the agency’s response. PFR File, Tabs 3-4. 

¶9 A retirement is presumed to be voluntary and outside of the Board’s 

jurisdiction. E.g., Mims v. Social Security Administration, 120 M.S.P.R. 213,

¶ 16 (2013). An involuntary retirement, however, is equivalent to a forced 

removal within the Board’s jurisdiction under chapter 75. Id. An appellant must 

make nonfrivolous allegations of jurisdiction to be entitled to a hearing, at which 

point he must prove his claim by a preponderance of the evidence. Id.

3 An 

employee who claims that his retirement was involuntary may rebut the 

presumption of voluntariness in a variety of ways, including by showing that the 

retirement was the result of intolerable working conditions. Id., ¶ 17; see, e.g., 

Conforto v. Merit Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 

2013). However, the doctrine of coercive involuntariness is narrow and requires 

the individual invoking it to satisfy a demanding, objective legal standard, i.e., 

establishing that a reasonable employee confronted with the same circumstances 

would feel coerced to retire. Id. When an appellant raises an allegation of 

discrimination or retaliation in connection with a claim of involuntariness, the 

allegation may be addressed only insofar as it relates to the issue of 

involuntariness. Markon v. Department of State, 71 M.S.P.R. 574, 578 (1996). 

 3 Although the administrative judge found that the appellant made nonfrivolous 

allegations sufficient to establish jurisdiction over the appeal, as noted above, the 

appellant did not request a hearing. IAF, Tab 1 at 2. 
7

As the following discussion indicates, we agree with the administrative judge that 

the appellant failed to establish by preponderant evidence that he had no choice 

but to retire. 

¶10 Agencies have broad discretion to reassign their employees. Cf., Frey v. 

Department of Labor, 359 F.3d 1355, 1360 (Fed. Cir. 2004) (involving a 

geographical reassignment); see 5 C.F.R. § 332.102. “An employee’s 

dissatisfaction with the options that an agency has made available to him is not 

sufficient to render his decision to resign or retire involuntary.” Conforto, 

713 F.3d at 1121. Thus, “coerced involuntariness does not apply if the employee 

resigns or retires because he does not like agency decisions such as a new 

assignment, a transfer, or other measures that the agency is authorized to adopt, 

even if those measures make continuation in the job so unpleasant . . . that he 

feels he has no realistic option but to leave.” Id. at 1121-22 (quoting Staats v. 

U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)). Importantly, under 

this test for involuntariness, “the coercion must be the result of improper acts by 

the agency.” Id. at 1122. 

¶11 However, there is nothing improper about the agency’s decision to reassign

the appellant under the facts in this appeal. In Putnam, the Board found that the 

suspension of a security clearance alone failed to rise to the level of coercion for 

purposes of a constructive adverse action. Putnam, 121 M.S.P.R. 532, ¶ 23. We 

likewise do not perceive the agency’s instruction for the appellant to apply for 

one to be coercive under the circumstances in this case. 

¶12 Thus, the appellant’s choice to retire, rather than apply for the security 

clearance required for the position to which the agency legitimately reassigned 

him, was not the result of coercion. Although the appellant protests that his 

reassignment was improper because the agency knew he could not pass the 

required investigation for the security clearance, he provides no support for this 

assertion, and then contradicts himself by stating that he had no interest in 

avoiding the background check, intimating that he would be able to pass such a 
8

review. PFR File, Tab 1 at 8. Although the appellant argues that the agency 

ultimately reneged on its offer of a position that did not require him to possess a 

top secret security clearance, id. at 6, he provides no support for his implicit 

assertion that the agency somehow was obligated to provide him with one. When 

an employee fails to meet the requirements of a position, “he may be dismissed 

unless additional rights are available from some other source.” Lyles v. 

Department of the Army, 864 F.2d 1581, 1583 (Fed. Cir. 1989). The appellant 

identifies no such source here. 

¶13 Accordingly, we find that the agency was fully within its rights to reassign 

the appellant to a position requiring a top secret security clearance, and the 

appellant has failed to identify the source of his implied right to a position that

does not require one. Further, the fact that the agency continued to pay the 

appellant until his retirement indicates that the agency did not indefinitely 

suspend him. ID at 14. We agree with the administrative judge that, as in 

Putnam, 121 M.S.P.R. 532, ¶ 23, the appellant’s choice to retire in this matter 

rather than to even begin the security clearance process, much less wait for a final 

disposition, was not the result of improper pressure, intimidation, or coercion. ID

at 14. Moreover, we find that the agency’s actions cited to by the appellant on 

review ultimately did not operate to deprive him of his freedom of choice in 

this matter. 4

 

 4 The fact that the appellant needed to begin the security clearance process, whereas the 

appellant in Putnam had her clearance suspended and then revoked, does not distinguish 

his case. Some of the agency’s actions, particularly the email message cited above that 

one of the appellant’s supervisors sent after the appellant retired, are unseemly and 

troubling. Nevertheless, as the administrative judge found, the supervisor sent the 

email in question after the appellant retired, and so it could not have influenced the 

appellant’s decision. ID at 14. 
9

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 
10

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.

______________________________

William D. Spencer

Clerk of the Board