UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CRAIG GOLDEN,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DE-0752-21-0235-I-1

DATE: July 19, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Craig Golden, Ogden, Utah, pro se.

Darrin K. Johns, Hill Air Force Base, Utah, for the agency.

BEFORE

Cathy A. Harris, Vice Chair

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, 

which dismissed his constructive removal appeal for lack of jurisdiction. 

Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of material fact; 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 The appellant resigned from his position as a Deputy Fire Chief with the 

Department of the Air Force, effective June 5, 2021. Initial Appeal File (IAF), 

Tab 1 at 1, 3, 9. He later filed a Board appeal alleging that his resignation was 

involuntary and was compelled by the agency unilaterally changing his retirement 

code and a “toxic and hostile working environment.” Id. at 5, 9. He requested 

a hearing. Id. at 2. 

¶3 The administrative judge issued an order instructing the appellant how to 

establish jurisdiction over his constructive adverse action appeal. IAF, Tab 3. 

The appellant submitted various documents in response to the jurisdictional order, 

including Standard Form 50s, leave and earnings statements, and Standard Form 

3107s denoting his certified summary of Federal service. IAF, Tab 6. He did not 

provide a narrative explanation as to how these forms related to his alleged 

involuntary resignation. Id. After reviewing the record, the administrative judge 

issued an initial decision dismissing the appeal for lack of jurisdiction without 

holding a hearing, concluding that the appellant had failed to nonfrivolously 
3

allege that he had been subjected to an appealable adverse action . IAF, Tab 8, 

Initial Decision (ID). The appellant has filed a petition for review, and the 

agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 An appellant’s voluntary action, such as a resignation, is not generally 

appealable to the Board. Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 

605, ¶ 9 (2009). However, an involuntary resignation is equivalent to 

a constructive removal and is within the Board’s jurisdiction. Id. To establish 

jurisdiction over a constructive adverse action claim, the appellant must show 

(1) that he lacked a meaningful choice in the matter and (2) that it was the 

agency’s wrongful actions that deprived him of that choice. See Bean v. U.S. 

Postal Service, 120 M.S.P.R. 397, ¶¶ 8, 11 (2013). If an employee claims that 

his resignation was coerced by the agency creating intolerable working 

conditions, the employee must show that a reasonable employee in his position 

would have found the working conditions so difficult or unpleasant that they 

would have felt compelled to resign. Axsom, 110 M.S.P.R. 605, ¶ 12. The Board 

will consider allegations of discrimination and reprisal insofar as they relate to 

the issue of voluntariness and not whether they would establish discrimination or 

reprisal as an affirmative defense. Vitale v. Department of Veterans Affairs, 

107 M.S.P.R. 501, ¶ 20 (2007). If the appellant makes a nonfrivolous allegation 

of fact establishing Board jurisdiction, he is entitled to a hearing at which he must 

prove jurisdiction by preponderant evidence. Garcia v. Department of Homeland 

Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc).

¶5 In dismissing this appeal for lack of jurisdiction, the administrative judge 

considered the appellant’s allegation that he disagreed with the agency’s change 

in his retirement code and found that the appellant failed to make a nonfrivolous 

allegation of agency misinformation, deception, or coercion that could render his 

resignation involuntary. ID at 4-5; see Vitale, 107 M.S.P.R. 501, ¶ 19 (explaining 
4

that one way to overcome the presumption of a voluntary resignation is to show 

that (1) the resignation was the product of misinformation or deception by the 

agency or (2) the resignation was the product of coercion by the agency). As to 

the allegation of a hostile work environment, the administrative judge found that 

the appellant’s allegations were too vague to suggest working conditions that 

would compel a reasonable person to resign. ID at 5. We agree with these 

findings for the following reasons.

¶6 The appellant submitted a retirement application in 2020, and, after the 

agency informed him that he was ineligible for retirement, he submitted 

a resignation letter on May 28, 2021. IAF, Tab 1 at 5, 8-9. Although the 

appellant stated that he disagreed with the agency’s determination regarding his 

entitlement to special retirement eligibility for firefighters, he did not allege that 

the agency provided him with misinformation or coerced his resignation. Id. 

Rather, the appellant stated that, after the agency denied his retirement 

application, it offered him the opportunity to return to duty. Id. at 9. 

The appellant has not alleged that he filed an appeal relating to his retirement 

eligibility or that exhaustion of that process would have been futile. 2 See 

5 C.F.R. §§ 842.804(c), 842.807 (setting forth appellate procedures for retirement 

eligibility determinations for firefighters). Although the appellant may have 

preferred to retire rather than continue working, he has failed to nonfrivolously 

allege that he had no choice but to resign from employment and that it was the 

agency’s wrongful conduct that deprived him of that choice. See Brown v. U.S. 

Postal Service, 115 M.S.P.R. 609, ¶ 15 (finding that the appellant failed to 

nonfrivolously allege an involuntary retirement when the appellant had options 

for contesting allegedly improper agency actions), aff’d, 469 F. App’x 852 (Fed. 

 

2 Under 5 C.F.R. § 842.807(a), the final decision of an “agency head” denying an 

individual’s request for approval of a position as a rigorous, secondary, or air traffic 

controller position made under § 842.804(c) may be appealed to the Board. Such a 

request must be made “formally and in writing.” 5 C.F.R. § 842.804(c). There does not 

appear to be such a final decision in the record before us. See IAF, Tab 7 at 6 n.2. 
5

Cir. 2011); see also Axsom, 110 M.S.P.R. 605, ¶ 17 (finding that the appellant’s 

resignation was not involuntary, in part, because he failed to prove that his 

discrimination complaints were being handled inequitably or that exhaustion of 

the equal employment opportunity process would have been futile).

¶7 We further agree with the administrative judge’s finding that the appellant’s 

allegations regarding an alleged hostile work environment are too vague to 

support a claim of constructive discharge. ID at 5. Before the administrative 

judge, the appellant asserted very few details about the alleged hostile work 

environment. IAF, Tabs 1, 6. The appellant stated that his leadership failed to 

take action in response to disclosures that he made during an Inspector General 

investigation and that he was not considered for promotions. IAF, Tab 1 at 5. 

The appellant, however, did not explain how the agency’s failure to take action in 

response to his disclosures created a hostile work environment. Id. Regarding 

the appellant’s claim that he was not selected for unspecified promotions, 

possibly dating back to 2016, we find that this allegation is too vague to support 

a nonfrivolous allegation that his resignation was coerced. Id. To the extent the 

appellant claimed that the alleged nonselection was retaliatory based on alleged 

whistleblower activity, he did not allege that he filed a whistleblower reprisal 

complaint or that doing so would have been futile. See Brown, 115 M.S.P.R. 609, 

¶ 15; Axsom, 110 M.S.P.R. 605, ¶ 17. To the extent that the appellant considered 

the agency’s conduct to be retaliatory, he did not explain how the alleged 

retaliation made his working conditions so intolerable that a reasonable person in 

his position would have felt compelled to resign. 

¶8 On review, the appellant alleges further details regarding the alleged hostile 

work environment and suggests the possibility of a potential whistleblower

reprisal claim. PFR File, Tab 1 at 4-7. He also attaches four letters from 

coworkers, which he alleges support his claimed involuntary resignation. 

Id. at 8-13. The Board generally will not consider evidence or argument

submitted for the first time with a petition for review absent a showing that it was 
6

unavailable before the record was closed before the administrative judge despite 

the party’s due diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 

(2016); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980); 5 C.F.R. 

§ 1201.115(d). The appellant has not made such a showing. Regarding the 

potential whistleblower reprisal claim, the administrative judge noted that the 

appellant disavowed filing a complaint with the Office of Special Counsel (OSC), 

which is a prerequisite to seeking corrective action from the Board in 

an individual right of action (IRA) appeal. ID at 4 n.5; see Mason v. Department 

of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). We agree. IAF, Tab 1 at 4. 

However, we note that nothing in this decision resolves whether the appellant 

could establish jurisdiction over a later IRA appeal should the appellant exhaust 

those claims with OSC. For the foregoing reasons, we deny the appellant’s 

petition for review and affirm the initial decision. 

NOTICE OF APPEAL RIGHTS3

The initial decision constitutes the Board’s final decision in this matter. 

5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. 

§ 7703(a)(1). By statute, the nature of your claims determines the time limit for 

seeking such review and the appropriate forum with which to file. 5 U.S.C. 

§ 7703(b). Although we offer the following summary of available appeal rights, 

the Merit Systems Protection Board does not provide legal advice on which 

option is most appropriate for your situation and the rights described below do 

not represent a statement of how courts will rule regarding which cases fall 

within their jurisdiction. If you wish to seek review of this final decision, you 

should immediately review the law applicable to your claims and carefully follow 

 

3

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

all filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choic es of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular 

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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 
8

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 
9

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction. 4 The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

 

4

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
10

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board