UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

SIDNEY NELSON, JR., Appellant,

v.
UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF

- 0752

- 13

- 0512

- I

- 1

DATE: August 19, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sidney Nelson, Jr. , Seattle, Washington, pro se.

Michael R. Tita , Esquire, Seattle, Washington, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his 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 st atute or

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

regulation or the erroneous application of the law to the facts of the case; the 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
th e 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, and based on the following points and authorities, 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 appellant, a preference eligible veteran, was employed as a Mail Handler with the agency from 1984, he stopp ed coming to work on June 19, 1999, and he retired on July 19, 2000. 2 The appellant applied for disability retirement based on a diagnosis of chronic myofascial strain and chronic degenerative disease. The Office of Personnel Management (OPM) granted his disability retirement application on August 2, 2000. Initial Appeal File (IAF), Tab 10,
Subtab s 4f, 4i. On June 3, 2013, the appellant filed an appeal alleging that his retirement on July 19, 2000
, was involuntary. IAF, Tab 1. ¶3 On review, the appellan t does not address the administrative judge’s findings that he failed to make a nonfrivolous allegation of jurisdiction. Nor does he allege any errors by the administrative judge. Rather, the appellant appears to

2 It appears that, unbeknownst to the Postal Service and OPM, the appellant was also working at the Internal Revenue Service (IRS) during this period o f time. IAF, Tab 10 at 20

- 23, 31

- 32 . The appellant resigned from his IRS position on December 4, 2001. IAF, T ab 10 at 22

. We note that t he appellant’s r eceipt of a salary from IRS at the same time he was receiving disability retirement benefits helpe d contribute to the appellant being overpaid by OPM

. See Nelson v. Office of Personnel Management , MSPB Docket No. SF

- 0845

- 13

- 0347

- I

- 1, Initial Decision (Aug. 15, 2014).3

be arguing that OPM is responsible for th e problems with his retirement. Petition for Review (PFR) File, Tab 1. The appellant asserts that this is “not a
discrimination case but a case to correct the retirement benefit from the time on the Post Office and my time on the IRS.” Id

. The appellant also asserts that OPM owes him money from his retirement. Id. ¶4 Because the appellant has raised no arguments challenging the administrative judge’s findings in the initial decision, the appellant has shown no error by the administrative judge in dismiss ing this appeal for lack of jurisdiction. Accordingly, the appellant’s petition for review does not meet the criteria for
review under 5 C.F.R. § 1201.115

. See Weaver v. Department of the Navy
, 2 M.S.P.R. 129 , 133 (1980), review denied
, 669 F.2d 613 (9th Cir. 1982) (per curiam) (before the Board will undertake a complete review of the record, the petitioning party must explain why the challenged factual determination is incorrect, and identify the specific evidence in the record which demonstrates th e error); Tines v. Department of the Air Force
, 56 M.S.P.R. 90 , 92 (1992) (a petition for review must contain sufficient specificity to enable the Board to
ascertain whether t here is a serious evidentiary challenge justifying a complete review of the record)

. ¶5 Th e applicable law and the record evidence support the administrative judge’s finding that the Board does not have jurisdiction over the appellant’s involuntary resignatio n claim. Initial Decision (ID) at 3

- 10. Specifically, a n employee’s retirement is presumed to be a voluntary action and, as such, is not within the Board’s jurisdiction. Thomas v. Department of Housing & Urban Development
, 63 M.S.P.R. 649 , 656 (1994); ID at 1

- 2. An involuntary retirement, however, is equivalent to a forced removal and therefore is within the Board’s jurisdiction. Garcia v. Department of Homeland Security
, 437 F.3d 1322 , 2328 (Fed. Cir. 2006) (en banc). Generally, an appellant who claims that a retirement was involuntary may rebut the presumption of voluntariness in a variety of ways, for example, by showing that the retirement was the result of misinformation or4

deception by the agency, or the unjustified threat of an adverse action. Sansoucie v. Department of Agriculture
, 116 M.S.P.R. 149 , ¶ 14 (2011). In addition,
intolerable wor king conditions may render an action involuntary when, under all the circumstances, the working conditions were made so difficult by th e agency that a reasonable person in the employee’s position would have felt compelled to absent himself from the workplace. Wright v. Department of Veterans Affairs , 85 M.S.P.R. 358 , ¶ 25 (2000). Thus, the appellant had to show that a reasonable person would have felt that there was a causal connection between all of the circumstances, including those incidents that were remote in time, and his
retirement. See Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 26 (2000)

. ¶6 Further more , in some circumstances, we also have applied the Board’s regular principles for determining jurisdiction ove r alleged involuntary
retirements to assess the voluntarin ess of a disability retirement. Vaughn v. Department of Agriculture
, 116 M.S.P.R. 493 , ¶¶ 13

- 14 (2011) ; see also H eining
v. General Services Administration
, 68 M.S.P.R. 513 , 519

- 20 (1995) (to establish involuntariness on the basis of coercion, an appellant must show that the agency effectively imposed the terms of the retirement, that the appellant had no realistic alternative but to retire, and that the appellant’s retirement was the result of improper acts by the agency)

. Specifically, in a case such as this one, an appellant may make a nonfrivolous allegation of Board jurisdiction when he has alleged that the agency created a discriminatory, hostile work environment, which not only led to intolerable working conditions but which also caused or
exacerbated the medical conditions un derlying his disability retirement. Vaughn
, 116 M.S.P.R. 493 , ¶ 14. ¶7 Here, the appellant argued below that he sought light duty or reassignment to another position. Howev er, as the administrative judge found, the appellant ’s allegations were conclusory and unsupported by any evidence or argument. Furthermore, the only medical records indicate that the appellant was advised to
take indefinite medical leave and there is no evidence that he was released to5

work with or without accom m od ations . IAF, Tab 10 at 29

- 30, 33

. Similarly, the appellant provided no explanation as to why he would feel his working conditions
were intolerable since he had not been at wor k for over a year when he actually
retired. T hus, the administrative judge correctly found that the appellant ’s arguments did not constitute nonfrivolous allegations of jurisdiction under applicable Board precedent

. Therefore, we discern no reason to dis turb these explained findings. See Crosby v. U.S. Postal Service
, 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the administrative judge’s findings
where the admin istrative judge considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Department of Health & Human Services
, 33 M.S.P. R. 357 , 359 (1987) (same). Accordingly, the appellant has provided no basis upon which to disturb the initial
decision.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the Unite d States 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).6

If you need further information about your right to ap peal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff.
Dec. 2 7, 2012). You may read this law as well as other sections of the United States 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 yo ur court appeal, you may visit our website at http://www.mspb.gov/probono for a list of attorneys who have expressed interest in providing pro bono representation for Merit Systems Protection Board appellants bef ore the court. The 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