NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ANTONIO M. APODACA 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2009-3293 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in AT0752090223-I-1. 

____________________________ 

Decided: June 10, 2010 

____________________________ 

ANTONIO M. APODACA, of Miami, Florida, pro se. 

JEFFREY A. GAUGER, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With him on the brief were JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

__________________________ 
APODACA v. MSPB 2

Before LOURIE, FRIEDMAN and MOORE, Circuit Judges. 

PER CURIAM. 

Antonio Apodaca appeals from the final decision of 

the Merit Systems Protection Board (the “Board”) dismissing his appeal for lack of jurisdiction. Apodaca v. 

Dep’t of Homeland Sec., No. AT-0752-09-0223-I-1 

(M.S.P.B. July 24, 2009) (“Final Order”). Because the 

Board’s decision that Apodaca retired voluntarily is 

supported by substantial evidence, we affirm. 

BACKGROUND

Apodaca was employed by the Department of Homeland Security as a Deputy Comptroller for the Coast 

Guard’s Integrated Support Command (“ISC”) in Miami, 

Florida. In November 2008, Apodaca’s supervisor and the 

Comptroller for ISC, Anthony Alarid, ordered Apodaca to 

move his office from its current location to a location 

adjacent to Alarid’s office. Alarid set a deadline of December 1, 2008 for Apodaca to change his office. Apodaca 

refused to change offices, informing Alarid that he would 

rather retire than change his office. Apodaca then told 

Alarid that he would retire effective January 3, 2009. 

However, following further discussions between the two, 

Apodaca told Alarid that he would retire on November 30, 

and that November 20 would be his last day at work as he 

intended to take leave thereafter. Alarid informed his 

Command Staff Advisor (“CSA”) of Apodaca’s intentions 

by e-mail. 

On November 20, 2008, Apodaca cleaned his office, 

shredded his personal writing pads, and disposed of files 

stored in his office. That afternoon, Alarid collected Apodaca’s government identification badge and office keys 
3 APODACA v. MSPB

from him. On December 1, 2008, Apodaca submitted his 

retirement request form SF-52 to ISC, denoting an effective retirement date of November 30, 2008. On the SF-52, 

Apodaca stated the reason for his retirement as the 

“imposition of constructive discharge conditions by the 

management.” 

On December 30, 2008, Apodaca filed an appeal to the 

Merit Systems Protection Board, claiming that his retirement was involuntary. On March 9, 2009, the assigned administrative judge held a jurisdictional hearing 

in Miami, Florida, at which both Alarid and Apodaca 

testified as to the circumstances surrounding Apodaca’s 

retirement. The administrative judge found that Apodaca 

had retired voluntarily and dismissed the appeal for lack 

of jurisdiction. The Board denied Apodaca’s petition for 

review of the initial decision on July 24, 2009, and the 

administrative judge’s decision became the final decision 

of the Board. Apodaca timely appealed the Board’s final 

decision 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 the Board’s 

decision is limited. We can only set aside the Board’s 

decision if 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). We review the Board’s jurisdiction without 

deference. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 

1316 (Fed. Cir. 1998). However, “we are bound by the 

AJ’s factual determinations unless those findings are not 
APODACA v. MSPB 4

supported by substantial evidence.” Id. Substantial 

evidence is “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 

2005) (quotation marks omitted). 

Apodaca challenges the Board’s decision that he failed 

to prove by a preponderance of the evidence his allegations of coercion and duress by the agency so as to allow 

the Board to exercise jurisdiction over his appeal. He 

argues that his statements declaring his intentions to 

retire were mere contemplations of retirement. He argues 

that his responses to Alarid’s order to move his office were 

unrelated to the events that occurred on November 20, 

2008, leading up to his retirement. He contends that on 

that day he was performing routine cleaning of his office 

and preparing to take leave when Alarid confiscated his 

badge and keys, thereby constructively discharging him. 

He further contends that he did not return to work at any 

time after that date because of the “malicious and unprofessional manner” in which he had been treated. He 

contends that the reason for submitting an SF-52 on 

December 2, with an effective date of November 30, was 

that he wanted to “mitigate his damages.” Moreover, he 

argues, the agency failed to follow checkout procedures 

required to terminate an employee. According to Apodaca, his retirement was forced upon him by the actions of 

his supervisor and was not voluntary. Therefore, he 

argues, the administrative judge and the Board erred in 

dismissing his claim for lack of jurisdiction. 

The Board responds that there is no evidence that the 

agency imposed the terms of Apodaca’s retirement. It 

argues that Apodaca was in control of his retirement 

decision at all times, repeatedly rejecting his supervisor’s 

preferences in the matter and deciding himself both his 
5 APODACA v. MSPB

retirement date as well his last day at the office. The 

Board argues that contrary to Apodaca’s assertions, 

Alarid pleaded with him not to retire or to at least stay 

till January 2009 in order to allow the process of hiring a 

replacement to be commenced. However, the Board 

points out, Apodaca refused to assist his supervisor in any 

way or change his retirement date. The Board notes that 

on November 20, Apodaca cleaned out his office. The 

Board contends that Alarid asked him for his badge and 

keys per the CSA’s guidance and because he understood 

from Apodaca’s prior statements that Apodaca was not 

returning to the facility after that date. The Board further points out that Apodaca submitted his retirement 

request voluntarily, at a time of his own choosing, and 

with an effective date that he had previously mentioned 

to his supervisor. The Board also notes that Apodaca 

never attempted to return to work. Under these facts, 

the Board argues, Apodaca cannot show that his retirement was a product of coercion by the agency or was 

otherwise involuntary. The Board urges us to affirm its 

dismissal of Apodaca’s claim for lack of jurisdiction. 

We conclude that the Board permissibly dismissed 

Apodaca’s appeal for lack of jurisdiction. A decision to 

resign or retire is presumed to be voluntary. Staats v. 

U.S. Postal Serv., 99 F.3d 1120, 1123 (Fed. Cir. 1996). In 

order to overcome the presumption of voluntariness, a 

petitioner must make a non-frivolous allegation that the 

resignation or retirement was the product of misinformation, deception, or coercion by the agency. Schultz v. Dep’t 

of the Navy, 810 F.2d 1133, 1135 (Fed. Cir. 1987). To 

establish involuntariness on the basis of coercion or 

duress, a petitioner must show that (1) the agency effectively dictated the terms of his retirement, (2) he had no 

realistic alternative but to retire, and (3) his retirement 

was the result of improper actions by the agency. Garcia 
APODACA v. MSPB 6

v. Dep’t of Homeland Sec., 437 F.3d 1322, 1329 (Fed. Cir. 

2006) (en banc). The test is an objective rather than 

subjective one; an employee’s subjective feelings are 

irrelevant. Middleton v. Dep’t of Defense, 185 F.3d 1374, 

1379 (Fed. Cir. 1999). 

On appeal, Apodaca primarily argues that, in finding 

the agency’s actions justified, the administrative judge 

improperly relied on his statements to his supervisor 

leading up to November 20, 2008. He argues that his 

statements of his intention to retire were mere contemplations, pertaining to what he terms the “Exchange 

Office Situation” and were irrelevant to his “Constructive 

Discharge Claim.” We are not persuaded by Apodaca’s 

logic. Apodaca’s actions and words clearly demonstrated 

that he did intend to retire and that his last day at the 

facility was November 20, 2008. His supervisor relied on 

his statements. The administrative judge was entitled to 

find Alarid’s testimony credible. The e-mails exchanged 

between Alarid and his CSA support the administrative 

judge’s finding, which was based on substantial evidence. 

The judge noted that Alarid’s testimony was also consistent with other facts such as Apodaca cleaning his office, 

packing his personal items and circling dates on his 

calendar. Under such belief, it was proper for Alarid to 

ask Apodaca to submit an SF-52. As a departing employee’s supervisor, Alarid was also required collect 

Apodaca’s badge and keys. We agree with the Board that 

Alarid’s actions were reasonable under the circumstances. 

The administrative judge also reasoned that had Apodaca believed that he had been involuntarily discharged, 

he could have easily refused to submit an SF-52. Apodaca’s argument that he submitted his retirement request 

and did not return to work because of the hostile manner 

in which he had been treated is not sufficient to satisfy 
7 APODACA v. MSPB

the demanding legal standard of proving that the agency 

coerced him to absent himself from work. See Garcia, 437 

F.3d at 1329 (“[T]he doctrine of coercive involuntariness is 

a narrow one[,] requiring that the employee satisfy a 

demanding legal standard.” (quotation marks omitted)). 

We find nothing in the evidence presented below to demonstrate that Apodaca was coerced into retirement. On 

the contrary, we agree with the Board that Apodaca was 

at all times in control of his retirement decision. The 

administrative judge found that the petitioner refused to 

accept any of his supervisor’s suggestions with regard to 

his retirement and dictated the schedule of his departure. 

We agree with the administrative judge’s findings and 

conclude that none of Apodaca’s allegations are such that, 

if proven, would establish that a reasonable employee 

confronted with the same circumstances would feel coerced into retiring. See Middleton, 185 F.3d at 1379. 

The Board’s finding that Apodaca’s retirement was 

voluntary is supported by substantial evidence. We have 

considered Apodaca’s remaining arguments and find them 

unpersuasive. Accordingly, we affirm the Board’s decision that it lacked jurisdiction over Apodaca’s appeal. 

AFFIRMED

COSTS

No costs.