NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3020 HAROLD JOHNSON, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and UNITED STATES POSTAL SERVICE, Intervenor.

Harold Johnson , of Jonesboro, Georgia, pro se. Jeffrey A. Gauger , Attorney, Office of the Gener al Counsel, Merit Systems Protection Board, of Washington , DC, for respondent. With hi m on the brief were B. Chad Bungard , General Counsel, and Rosa M. Koppel , Deputy General Counsel. Dawn E. Goodman , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Wash ington, DC, for intervenor. With her on the brief were Jeffrey S. Bucholtz , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Patricia M. McCarthy , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3020 HAROLD JOHNSON, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and UNITED STATES POSTAL SERVICE, Intervenor.
Petition for review of the Merit Syst ems Protection Board in AT0752060903-I-1.

__________________ _________ DECIDED: July 10, 2008

__________________ _________ Before RADER, BRYSON, and LINN, Circuit Judges

. PER CURIAM.
The Merit Systems Protection Board dismi ssed for lack of jurisdiction Mr. Harold Johnson’s adverse action clai m alleging involuntary reti rement. Because the Board properly dismissed Mr. Johnson’ s claim, this court affirms

.I Mr. Johnson retired from his full time pos ition as a Postal Service Level 5 Letter Carrier for the Fayetteville Po st Office in Fayetteville, North Carolina, on October 30, 1997, at age 56. Mr. Johnson wo rked for the Postal Service for 16 years and 9 months. In order to qualify for an immediate Civil Se rvice Retirement Syst em (CSRS) annuity, Mr. Johnson waived his military retired pay to obtain credit for his 20 years of military service towards his retirement. Mr. Johnson’ s divorce settlement gave a portion of Mr. Johnson’s military benefits to his former wife. By operation of st atute, Mr. Johnson’s former wife continued to receive a portion of Mr. Johnson’s CSRS annuity. Mr. Johnson did not make a deposit for his 20 years of active military service. As a result, Mr. Johnson’s retirement benefits were recalculated when he reached 62 and became eligible for Social Security benefits under 5 U.S.C. § 8332(j )(i). Because the reduced annuity payment no longer considered his 20 years of active military service, Mr. Johnson requested that the Office of Personnel Management (OPM) discontinue the apportionment to his former wife. Mr. Johnson argued that his benef its were no longer based on his military service and that his former wife was no longer entitled to a portion of his retired pay. Without any discretion to halt the apportionment to Mr. Johnson's former wife, the OPM did not stop those payments. The MSPB affirmed the OPM’s decision and determined that this case is governed by 5 U.S.C. § 8332(c)(4). Under § 8332( c)(4), if an employee waives military retired pay in favor of a CSRS annuity, that waiver automatically authorizes OPM to deduct and withhold the amount t hat would have been paid to the former spouse under the court order. In other wo rds, by waiving his military retired pay to combine his

2008-3020 2military and civilian service in order to qualify for a CSRS annuity, Mr. Johnson gave his consent as a matter of law that the amount of his military pay apportioned to his former wife would continue to be deducted from his annuity. The Board forwarded Mr. Johnson’s case to the Atlanta Regional Office for docketing as a separate adverse action . The Board recognized Mr. Johnson’s argument that he did not rece ive adequate information at the time of his retirement concerning the effects of waiv ing his military retired pay as an allegation of involuntary retirement. Before the Atlanta Regional Office, Mr. J ohnson argued that his resignation was involuntary due to (1) improper explanations from his agency about the implications of his waiver of retired military pay; and (2) coercion by his super visor. The administrative judge did not find these argum ents persuasive. On February 8, 2007, the Board dismissed Mr. Johnson’s involuntary retirement claim for lack of jurisdiction. The Board denied Mr. Johnson’s pet ition for review. Mr. Johnson timely appealed to this C ourt. On appeal, Mr. Johnson requests reconsideration of his invo luntary retirement claim. II This court possesses limited authority to re view a Board decision. The Board’s decision must be affirmed unless it is: (1) arbitrary, capric ious, an abuse of discretion, or otherwise not in accordanc e with the law; (2) obtained without procedures required by law, rule, or regulati on 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,

2008-3020 31311 (Fed. Cir. 2003). This court reviews wit hout deference cases involving the Board's jurisdiction. Middleton v. Dept. of Defense , 185 F.3d 1374, 1379 (Fed. Cir. 1999)

. Several statutes, rules and regulations se t the Board's jurisdiction. Saunders v. Merit Sys. Prot. Bd. , 757 F.2d 1288, 1290 (F ed. Cir. 1985). This court has recognized that the Board has no jurisdic tion over voluntarily resignat ions. Cruz v. Dept. of Navy , 934 F.2d 1240, 1248 (Fed. Cir. 1991). Because employee resignations and retirements are presumed to be voluntary, this presumption may only be rebutted by a showing of sufficient evidence to establish that the re tirement or resignati on was involuntary. Middleton v. Dept. of Defense , 185 F.3d at 1379 . Thus, the former employee bears the heavy burden of pleading and pr oving that his retirement was involuntary, and thus, within the jurisdiction of the Board. Id . This can be shown with evidence that the retirement was the product of: (1) misinfo rmation or deception by the agency, or (2) coercion by the agency. Staats v. United St ates Postal Service , 99 F.3d 1120, 1124 (Fed. Cir. 1996). On appeal, Mr. Johnson argues that the administrative judge miscalculated the time that Mr. Johnson needed to work to earn a CSRS annunity without taking into account his military service. The administrative judge had figured that time would have been 13 additional years of work. In fact, Mr. Johnson only needed to work an additional four years. This miscalculation was harmless, however. An after-the-fact calculation of years required to earn a particular retirement benefit is not relevant to the voluntariness of Mr. Johns on's retirement. Mr. Johnson also argues that his retire ment was involuntary because the agency did not provide him with the relevant informati on regarding his retirement options. In his

2008-3020 42008-3020 5 deposition, Mr. Johnson testif ied that he received letters from the Postal Service explaining his retirement opti ons. He attended a Postal Service retirement seminar that outlined the effects of a wa iver of retired military pay . Moreover, Mr. Johnson’s retirement application included instructions regarding eligib ility and waiver of retired military pay. Mr. Johnson signed this application. For these reasons, this court cannot co nclude Mr. Johnson’s retirement was involuntary due to misrepresentation or lack of information by the Postal Service. Because Mr. Johnson has not rebutted the presumption that his retirement was voluntary, this case falls outside the MSPB’s jurisdiction. For these reasons, this court affirms the B oard’s dismissal for lack of jurisdiction. AFFIRMED

COSTS Each party shall bear its own costs.