NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

DENNIS C. MCKEOWN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________

2020-1062

______________________

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-19-0429-I-1.

______________________

Decided: April 16, 2020

______________________

DENNIS C. MCKEOWN, Richmond, CA, pro se. 

 DEANNA SCHABACKER, Office of General Counsel, 

United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by TRISTAN 

LEAVITT, KATHERINE MICHELLE SMITH. 

 ______________________

Before LOURIE, WALLACH, and HUGHES, Circuit Judges.

PER CURIAM.

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2 MCKEOWN v. MSPB

Petitioner Dennis C. McKeown seeks review of a decision of the Merit Systems Protection Board dismissing his 

appeal for lack of jurisdiction because Mr. McKeown resigned from federal employment. The Board lacks jurisdiction over a resignation unless the petitioner can show it 

was involuntary. Mr. McKeown claims that he resigned 

involuntarily due to intolerable work conditions. Because 

the Administrative Judge properly concluded that Mr. 

McKeown failed to present nonfrivolous allegations of involuntary resignation to establish jurisdiction, we affirm 

the Board’s decision.

I

Mr. McKeown was a Supervisory Emergency Management Program Specialist within the Response Division, Region IX, of the Federal Emergency Management Agency, a 

section of the Department of Homeland Security. He had 

twenty-two years of service with FEMA before his resignation in 2019. During the time relevant to this appeal, his 

job duties included “preparing FEMA responses to natural 

disasters” in Region IX (Arizona, California, Hawaii, Nevada, & the Pacific Islands). McKeown v. Dep’t of Homeland Sec., No. SF-0752-19-0429-I-1, slip op. at 2 (M.S.P.B.

July 30, 2019) (Board Decision).

Starting in 2016, Mr. McKeown reported to FEMA 

management that he believed a contractor was billing 

FEMA inappropriately, first for incomplete work on a typhoon project and later for duplicative and out-of-scope

work on an earthquake project. He also made whistleblower complaints to the DHS Office of Inspector General 

in November 2018 and March 2019. According to the Administrative Judge, the November 2018 “disclosures are 

the basis of [Mr. McKeown’s] whistleblower retaliation defense in his appeal of the agency’s decision to place him on 

furlough in December 2018 during the partial government 

shutdown.” Board Decision at 3 n.4. DHS OIG declined to 

investigate the March 2019 complaint. Because of his 

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MCKEOWN v. MSPB 3

belief regarding the out-of-scope work on the earthquake 

project, Mr. McKeown repeatedly tried unsuccessfully to 

determine who approved the work and so refused to complete briefings and presentations for FEMA administrators. He also participated in the investigation of a 

colleague’s Equal Employment Opportunity (EEO) complaint. 

According to Mr. McKeown, his supervisors retaliated 

against him for these activities over the next three years 

by creating intolerable working conditions through “harassment, isolation from coworkers, removal of job duties, 

denial of merit system due process, and an unethically coercive requirement to approve [contractor] tasks outside of 

contract scope of work deliverables.” Resp. App. 27.1 During this time, Mr. McKeown received a five-day suspension 

for conduct unbecoming and failure to follow instructions 

and an “unacceptable” rating on his 2018 performance review. In May 2019, Mr. McKeown resigned, stating that 

the agency’s behavior towards him, including “attempts to 

force [him] to take responsibility for” the contractor’s allegedly out-of-scope work, “placed [him] in an impossible ethical position.” Resp. App. 74. 

Mr. McKeown appealed to the Board, claiming that his 

resignation was involuntary due to the intolerable work 

conditions, and requested a hearing. Because resignations 

are presumed voluntary and the Board has no jurisdiction 

over voluntary resignations, Shoaf v. Dep’t of Agric., 260 

F.3d 1336, 1340 (Fed. Cir. 2001), the Administrative Judge 

required Mr. McKeown to make nonfrivolous allegations 

that he resigned involuntarily due to duress, coercion, or 

1 Both parties filed appendices with their briefs. 

“Pet. App.” refers to the Appendix included with the Petitioner’s brief. “Resp. App.” refers to the Supplemental Appendix included with the Respondent’s brief. 

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4 MCKEOWN v. MSPB

misrepresentation by the agency before receiving a hearing. Board Decision at 1−4. Mr. McKeown alleged several 

ways in which FEMA management retaliated against him: 

unfairly assessing his performance, eliminating and re-assigning key work responsibilities, and interfering in his relationships with co-workers, subordinate employees, and 

partners. 

The Administrative Judge held that Mr. McKeown 

failed to state a non-frivolous allegation that his resignation was involuntary and dismissed his case for lack of jurisdiction. Board Decision at 12. She acknowledged that 

the “allegations illustrate significant disagreements with 

[Mr. McKeown’s supervisor] about work assignments, a 

feeling of being unfairly evaluated, and a challenging work 

environment” as well as Mr. McKeown’s “significant personal reactions to each of the alleged instances of harassment.” Id. at 11−12. However, she found Mr. McKeown 

provided insufficient specific examples for each allegation 

and that there was reason for the agency to take the actions 

it had. E.g., id. at 9 (reasoning that “the agency had legitimate reasons to reassign the work when the appellant did 

not complete it” and that Mr. McKeown’s supervisor “separated” him from a subordinate “because of a report that the 

appellant harassed” the subordinate). The allegations 

therefore did not demonstrate an objectively intolerable 

work environment that would “compel a reasonable person 

to resign.” Id. at 8, 11. The Administrative Judge’s initial 

decision became the final decision of the Board on September 3, 2019. 

Mr. McKeown timely appealed. We have jurisdiction 

under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9). 

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MCKEOWN v. MSPB 5

II

A

The Board lacks jurisdiction over voluntary resignations or retirements. Shoaf, 260 F.3d at 1341. The petitioner therefore has the burden of showing that “his or her 

resignation or retirement was involuntary and thus tantamount to forced removal.” Trinkl v. Merit Sys. Prot. Bd., 

727 F. App’x 1007, 1009 (Fed. Cir. 2018). Cf. Terban v. 

Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000).

One way for the petitioner to rebut the presumption of 

voluntariness is to show that the resignation was the product of coercive acts by the agency, such as intolerable working conditions. Shoaf, 260 F.3d at 1341; Staats v. U.S. 

Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996). But “the 

doctrine of coercive involuntariness is a narrow one.” 

Staats, 99 F.3d at 1124 (describing limited scenarios where 

a resignation was involuntary, like when it was “induced 

by a threat to take disciplinary action that the agency 

knows could not be substantiated” or where the agency attempts to force the employee to quit, without “any legitimate agency purpose”). We objectively consider the totality 

of the circumstances to determine whether “a reasonable 

employee confronted with the same circumstance would 

feel coerced into resigning.” Shoaf, 260 F.3d at 1342 (quoting Middleton v. Dep’t of Defense, 185 F.3d 1374, 1379 

(Fed. Cir. 1999)).

“Whether the [B]oard had jurisdiction to adjudicate a 

case is a question of law, which we review de novo.” Forest 

v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). 

We review the Board’s factual findings affecting the jurisdictional inquiry for substantial evidence. Lentz v. Merit 

Sys. Prot. Bd., 876 F.3d 1380, 1384 (Fed. Cir. 2017).

B

On appeal, Mr. McKeown argues that the Administrative Judge committed several errors in her jurisdictional 

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6 MCKEOWN v. MSPB

determination: (1) failing to consider the “potential legal 

jeopardy [Mr. McKeown faced] for participation in fraud” 

had he not resigned, Pet. Br. 5–8; (2) determining that no 

one forced him to place his name on assignments, particularly the earthquake project briefing, and finding that the 

earthquake project briefing was not a condition of employment; and (3) ignoring the “pattern of retaliation against

[him]” for reporting what he believed to be fraudulent billing for work outside of the earthquake project’s contract 

scope, Pet. Br. 4. We reject these arguments. 

First, though Mr. McKeown now argues that a reasonable employee faced with potential personal liability for 

fraud would resign rather than simply “stand and fight,”

Pet. Br. 5–6, 10–11; Mem. in Lieu of Oral Arg. 3−4, he did 

not argue this before the Administrative Judge. He alleged 

only that he was “not willing to compromise his personal 

integrity and public trust responsibility by placing his 

name on fraudulent [contractor] products as a condition of 

employment with FEMA.” Board Decision at 10; Resp. 

App. 56. We consider this argument waived.2 

Second, we see no error in the Administrative Judge’s 

conclusions: that the project briefings were not a condition 

of employment and that Mr. McKeown failed to nonfrivolously allege that his supervisor’s actions were coercive. 

Board Decision at 9−12. Indeed, Mr. McKeown repeatedly 

refused to complete assigned briefings for the earthquake 

project and received an “unacceptable” performance rating

for 2018, yet remained employed with no pending 

2 And even if the argument was not waived, we find 

it objectively implausible for Mr. McKeown to fear personal 

legal liability for presenting a “fraudulent claim for payment or approval,” 31 U.S.C. § 3729(a)(1)(A), based on creating or presenting a project status update to internal 

FEMA stakeholders, especially when he had already reported his suspicions through formal channels. 

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MCKEOWN v. MSPB 7

disciplinary action when he resigned. And in 2019, the 

earthquake project presentation originally assigned to Mr. 

McKeown was reassigned to another employee.

Third, the fact that the Administrative Judge did not 

explicitly reference Mr. McKeown’s April 2019 whistleblower case was not error. An Administrative Judge need 

not explicitly address all of a petitioner’s allegations or evidence in her opinion: Omission does not indicate a lack of 

consideration. See Marques v. Dep’t of Health & Human 

Servs., 22 M.S.P.R. 129, 132 (M.S.P.B. 1984) aff’d, 776 F.2d 

1062 (Fed. Cir. 1985). Regardless, the decision here reflects an understanding of the entire timeline of events, including Mr. McKeown’s December 2016 and April 2019 

complaints regarding the allegedly improper contractor 

work and billing.

Reviewing the record, we have no doubt that Mr. 

McKeown had a fraught working relationship with his direct supervisor and other FEMA Region IX administrators. 

However, a stressful working environment does not equate 

to coercion. Brown v. U.S. Postal Serv., 115 M.S.P.R. 609,

616−17 (M.S.P.B. 2011) (reasoning that a finding of coercion was not supported by an appellant’s allegations of, 

among other things, her supervisors’ “increasing demands 

that she perceived as trying to cause her to fail” and 

“groundless[] critic[ism]” of her work); Miller v. Dep’t of 

Def., 85 M.S.P.R. 310, 322 (M.S.P.B. 2000) (“Dissatisfaction 

with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are generally not so intolerable as to compel a reasonable person 

to resign.”).

We have considered Mr. McKeown’s remaining arguments and find them unpersuasive. For the reasons explained above, we affirm the Board’s decision.

AFFIRMED

No costs.

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