NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

 2008-3248 

JOSEPH E. MORRISSEY, 

Petitioner, 

v. 

DEPARTMENT OF THE TREASURY, 

Respondent. 

Joseph E. Morrissey, of Aurora, Colorado, pro se. 

Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With her on 

the brief were Jeanne E. Davidson, Director, and Kenneth M. Dintzer, Assistant 

Director. 

Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3248 

JOSEPH E. MORRISSEY, 

 Petitioner, 

v. 

DEPARTMENT OF THE TREASURY, 

 Respondent. 

Petition for review of the Merit Systems Protection Board in DE0752070394-I-1. 

 __________________________ 

DECIDED: October 14, 2008 

 __________________________ 

Before SCHALL, CLEVENGER, and LINN, Circuit Judges. 

PER CURIAM. 

Joseph E. Morrissey (“Morrissey”) seeks review of a final decision of the Merit 

Systems Protection Board (“Board”) dismissing his appeal for lack of jurisdiction. 

Morrissey v. Dep’t of Treasury, No. DE-0752-07-0394-I-1 (M.S.P.B. Oct. 12, 2007) 

(“Initial Decision”), review denied, Morrissey v. Dep’t of Treasury, No. DE-0752-07-

0394-I-1 (M.S.P.B. Mar. 17, 2007). Because the Board correctly concluded that 

Morrissey failed to raise a non-frivolous allegation that his retirement was involuntary 

and thus tantamount to forced removal, we affirm. 
BACKGROUND 

Morrissey worked as a Contact Representative in the Internal Revenue Service 

(“IRS”). On August 22, 2005, Morrissey was placed on a sixty-day performance 

improvement plan (“PIP”) because his performance was found deficient for his position. 

On February 10, 2006, Morrissey received a letter of proposed removal, indicating that 

Morrissey had failed to improve his performance during the sixty-day PIP period. 

Morrissey, accompanied by his union representative, met with his supervisors to 

discuss the proposed removal letter. Although the letter does not mention any 

outstanding tax debt or investigation, Morrissey alleges that a supervisor stated orally 

during this meeting that Morrissey’s alleged underpayment of taxes for 2000 was a 

separate ground for the proposed removal. At the time of the meeting, a tax fraud 

investigation against Morrissey was pending. After the meeting, on February 14, 2006, 

a Taxpayer Advisory Opinion concluded that the government had not proven by clear 

and convincing evidence that Morrissey had committed tax fraud. Morrissey retired 

from the IRS on February 28, 2006, before the agency could issue a decision on the 

proposed removal action. 

On April 15, 2006, Morrissey filed an Equal Employment Opportunity complaint 

against the IRS. Morrissey then appealed to the Board. The Board dismissed the 

appeal for lack of jurisdiction, finding that Morrissey had failed to make a non-frivolous 

allegation which, if proven, could establish that his retirement was involuntary. The full 

Board denied Morrissey’s petition for review. 

Morrissey timely appeals. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(9). 

2008-3248 2 
DISCUSSION 

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). We review determinations of the Board 

concerning its jurisdiction de novo. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 

(Fed. Cir. 2008). Because the Board dismissed Morrissey’s appeal without affording 

him a jurisdictional hearing, we review the record de novo to determine whether 

Morrissey raised a non-frivolous allegation of jurisdiction. Coradeschi v. Dep’t of 

Homeland Sec., 439 F.3d 1329, 1332 (Fed. Cir. 2006). 

Morrissey is entitled to a jurisdictional hearing if he has raised a non-frivolous 

allegation that, if proven, would establish the Board’s jurisdiction. Garcia v. Dep’t of 

Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). The Board has 

jurisdiction over Morrissey’s appeal if he can establish, by a preponderance of the 

evidence, that his resignation was involuntary. Id. at 1328. Morrissey may establish 

involuntariness by showing that “(1) the agency effectively imposed the terms of 

[his] . . . retirement; (2) [he] had no realistic alternative but to resign or retire; and (3) 

[his] . . . retirement was the result of improper acts by the agency.” Id. at 1329 (quoting 

Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001)). Ultimately, this showing 

must overcome the presumption that a resignation is voluntary. Cruz v. Dep’t of Navy, 

934 F.2d 1240, 1244 (Fed. Cir. 1991) (en banc) (“Resignations are presumed 

voluntary . . . .”). 

2008-3248 3 
We agree with the Board that Morrissey failed make a non-frivolous allegation 

that, if true, would establish that his retirement was involuntary. The Board found, and 

the record shows, that Morrissey never argued that the IRS could not substantiate its 

performance-based charges or did not follow proper removal procedures. Initial 

Decision, slip op. at 7. To the contrary, it is undisputed that Morrissey was placed on a 

sixty-day PIP during which he was given weekly counseling sessions, on-the-job 

training, and mentoring. After failing to improve during this period, Morrissey was 

notified in writing of his deficiencies and of his right to respond to the charges. 

Accordingly, Morrissey failed to raise allegations that would establish that his retirement 

resulted from “improper acts by the agency.” Garcia, 437 F.3d at 1329. 

On appeal, Morrissey argues only that the Board failed to consider the fact that a 

supervisor was lying about Morrissey’s tax returns from 2001, 2002, and 2003. But 

Morrissey’s tax returns from those years were not at issue in the proceedings below. 

Before the Board, Morrissey argued only that the alleged underpayment of his 2000 

taxes—not other years’ taxes—had been orally mentioned as a separate ground for 

removal at a meeting with Morrissey’s supervisors. The Board expressly considered 

this allegation regarding the 2000 taxes and arrived at its conclusion even assuming 

that the statement had been made. Initial Decision, slip op. at 8. Morrissey has not 

alleged facts that, if true, would establish that his supervisor’s statement was made in 

bad faith or without basis. To the contrary, at the time the statement was made, the IRS 

was investigating Morrissey’s underpayment of his 2000 taxes, thus providing ample 

basis for the supervisor’s statement. 

2008-3248 4 
2008-3248 5 

Because Morrissey has failed to raise a non-frivolous allegation that his 

resignation was involuntary, we affirm the Board’s final decision. 

COSTS 

No costs.