UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARTHA J. HARVIN,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

DC-0432-14-0154-B-1

DATE: March 9, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Martha J. Harvin, Mount Rainier, Maryland, pro se.

Cliff Lockett, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed her alleged involuntary resignation 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 statute or regulation or the erroneous application of 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 

required 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 significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

the law to the facts of the case; the administrative 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 the 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. 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, 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). 

BACKGROUND

¶2 The appellant was employed as an Issues Analyst with the agency’s Food 

Safety and Inspection Service, Office of Public Affairs and Consumer Education 

(OPACE). Initial Appeal File (IAF), Tab 10, Subtab 4b. On September 12, 2013, 

the agency proposed her removal for failure to successfully complete a 

performance improvement plan. Id., Subtab 4e. On October 24, 2013, after 

considering the appellant’s written response to the proposal, the agency sustained 

her removal. Id., Subtab 4d. In lieu of being removed, the appellant resigned,

effective October 24, 2013, via an email to her second-level supervisor, the 

Deputy Assistant Administrator, OPACE. Id., Subtab 4c. The agency accepted 

and processed the appellant’s resignation. Id., Subtabs 4a-4b.

¶3 After resigning, the appellant filed a Board appeal asserting that her 

resignation was involuntary because she resigned under duress, coercion, and 

misrepresentation by the agency, she only was given until the close of business to 

decide whether to resign in lieu of being removed, and the agency did not allow 

her to withdraw her resignation on October 24, 2013, without a valid reason. 

IAF, Tab 13 at 2, 5.
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¶4 Without holding the appellant’s requested hearing, the administrative judge 

dismissed the appeal for lack of jurisdiction on the ground that the appellant 

failed to nonfrivolously allege that her resignation was involuntary. IAF, Tab 15, 

Initial Decision (ID) at 5-8. The administrative judge found that the agency’s 

denial of the appellant’s request for additional time to decide whether to resign in 

lieu of being removed was not coercive and did not render the appellant’s 

resignation involuntary. ID at 6-7. The administrative judge also found that the 

appellant did not contend that she attempted to rescind her resignation prior to or 

on October 24, 2013, the effective date of her resignation. ID at 7. 

¶5 On review, the Board found that the appellant had nonfrivolously alleged 

that her resignation was involuntary and remanded the case for further 

adjudication. Harvin v. Department of Agriculture, MSPB Docket No. DC-0432-

14-0154-I-1, Remand Order at 5-6 (Feb. 5, 2015). Specifically, the Board found 

that the appellant had submitted an affidavit below alleging that she sought to 

withdraw her resignation before the close of business on October 24, 2013, and 

that the agency did not allow her to withdraw it. Id. at 5. The Board also 

considered the appellant’s further explanation on review that, on the afternoon of 

October 24, 2013, she telephoned and informed an equal employment opportunity 

(EEO) specialist that she wanted to rescind her resignation, the EEO specialist

informed the appellant that she needed to check with her supervisor, but failed to 

return the appellant’s call before the end of the day. Id.

¶6 On remand, after holding a hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. Remand File (RF), 

Tab 23, Remand Initial Decision (RID). The administrative judge found that 

there was no evidence to support the appellant’s claim that she attempted to 

rescind her resignation by contacting the EEO specialist or any other agency 

official and credited the EEO specialist’s testimony that the appellant never told 

her that she wanted to rescind her resignation over the appellant’s testimony to 

the contrary. RID at 9-11.
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¶7 The appellant has filed a petition for review in which she disputes the 

administrative judge’s findings and credibility determinations regarding whether 

she communicated to the agency her desire to withdraw her resignation. Remand 

Petition for Review (RPFR) File, Tab 1 at 9-21. She also reasserts her arguments 

that her resignation was involuntary because she resigned under duress, coercion, 

and misrepresentation by agency officials and only was given until the close of 

business to decide whether to resign in lieu of being removed. RPFR File, Tab 1 

at 3-9. The agency has opposed the appellant’s petition. RPFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 As a preliminary matter, the Board previously found in its decision on the 

appellant’s first petition for review that she failed to nonfrivolously allege that 

she resigned under duress, coercion, or misrepresentation, as a result of 

misleading statements made by agency officials, because her working conditions 

were intolerable due to discrimination, or because the agency denied her request 

for additional time to decide whether to resign. Remand Order at 4-5. To the 

extent the appellant seeks reconsideration of these issues on review, RPFR File, 

Tab 1 at 3-9, we decline to consider such arguments because they are barred by 

the law of the case doctrine, which “limits relitigation of an issue once that issue 

has been decided . . . in a different stage of the same litigation.” Nease v. 

Department of the Army, 103 M.S.P.R. 118, ¶ 10 (2006); see Seas v. U.S. Postal 

Service, 78 M.S.P.R. 569, 573 (1998) (invoking the law of the case doctrine and 

declining to reconsider the Board’s prior findings regarding the merits of the 

agency’s charges).

The Board will not address evidence or argument submitted by the appellant for 

the first time on review.

¶9 The appellant argues for the first time on review that the EEO specialist 

omitted crucial information in the IComplaint 2 system regarding their 

 2 IComplaint is a computer system used to track EEO complaints. RF, Tab 21.
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conversations on October 24, 2013, during which the appellant asserts she 

rescinded her resignation. RPFR File, Tab 1 at 13-14, 16-17. As evidence, she 

attaches documents relating to her EEO complaint concerning her removal, which 

she contends show that she had conversations with the EEO specialist on other 

dates, which similarly are not reflected in the IComplaint system. Id. at 23-29. 

The appellant also submits documentation relating to her unemployment benefits 

and asserts that she applied for unemployment based upon advice from the EEO 

specialist. Id. at 12, 30. 

¶10 The Board generally will not consider evidence or argument for the first 

time on review absent a showing that it is based on new and material evidence not 

previously available despite the party’s due diligence. Banks v. Department of 

the Air Force, 4 M.S.P.R. 268, 271 (1980); Avansino v. U.S. Postal Service, 

3 M.S.P.R. 211, 214 (1980). The documents submitted by the appellant predate 

the close of the record below, and the appellant has not explained why she could 

not have made these arguments before the administrative judge. RPFR File, 

Tab 1 at 23-30. Thus, we need not consider them on review. In any event, none 

of the documents submitted by the appellant on review establish that she 

rescinded her resignation. Thus, they would not provide a basis for granting 

review because they are not of sufficient weight to warrant a different outcome 

from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 

345, 349 (1980). 

The appellant has not established that the administrative judge made erroneous 

factual findings or credibility determinations.

¶11 On review, the appellant disputes the EEO specialist’s testimony, argues 

that she is not credible, and asserts that the administrative judge erred in her 

credibility determinations. RPFR File, Tab 1 at 9-21. To resolve credibility 

issues, an administrative judge must identify the factual questions in dispute, 

summarize the evidence on each disputed question, state which version she 

believes, and explain in detail why she found the chosen version more credible,
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considering factors such as the following: (1) the witness’s opportunity and 

capacity to observe the event or act in question; (2) the witness’s character; 

(3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of 

bias; (5) the contradiction of the witness’s version of events by other evidence or 

its consistency with other evidence; (6) the inherent improbability of the 

witness’s version of events; and (7) the witness’s demeanor. Hillen v. 

Department of the Army, 35 M.S.P.R. 453, 458 (1987). 

¶12 The Board must give deference to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on the observation of 

the demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so. Haebe 

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Where, as here, 

an administrative judge has heard live testimony, her credibility determinations 

must be deemed to be at least implicitly based upon the demeanor of the 

witnesses. Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009). 

We find that the appellant’s assertions on review reflect her mere disagreement 

with the administrative judge’s reasoned credibility findings, and they do not 

provide a sufficiently sound reason for overturning those findings. See Diggs v. 

Department of Housing & Urban Development, 114 M.S.P.R. 464, ¶ 8 (2010).

¶13 Applying the Hillen factors, the administrative judge found that the 

appellant’s testimony, that she told the EEO specialist that she wanted to rescind 

her resignation, was not credible and was not consistent with the record evidence. 

RID at 10-11. The administrative judge noted that in the appellant’s sworn 

statement submitted below, she did not claim therein that she had communicated 

her desire to rescind her resignation to the EEO specialist or any other agency 

official. RID at 10. The administrative judge also found significant that the 

appellant did not attempt to email or call her second-level supervisor to rescind 

her resignation after she emailed him her resignation and instead responded to his 

email confirming her resignation by thanking him. Id.
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¶14 In contrast, the administrative judge found that the EEO specialist testified 

in a clear, direct, and straightforward manner. RID at 9. The administrative 

judge further found that the EEO specialist’s testimony that the appellant never 

told her that she wanted to rescind her resignation during their discussions on 

October 24, 2013, was consistent with the record evidence. Id. The 

administrative judge noted that the IComplaint system, which contained notes of 

the appellant’s October 24, 2013 conversation with the EEO specialist, made no 

mention of the appellant requesting to rescind her resignation. Id. She also noted 

that the appellant’s lengthy email to the EEO specialist the day after her removal

failed to mention the appellant’s purported rescission. RID at 9-10. 

¶15 The administrative judge found, moreover, that, although the appellant’s 

son testified in a clear, direct, and straightforward manner, his testimony was of 

limited probative value because he merely confirmed the appellant’s claim that 

she had called the EEO specialist, but could not confirm that the appellant had 

informed the EEO specialist that she wanted to rescind her resignation. 

RID at 10.

¶16 On review, the appellant disputes the administrative judge’s finding that she 

did not claim in her sworn statement that she attempted to withdraw her 

resignation with the EEO specialist or any other agency official. RPFR File, 

Tab 1 at 17. In her sworn statement, the appellant indicated, “I sought to 

withdraw my proposed offer to resign prior to tight deadline of COB on 

October 24, 2013, but the agency did not have a valid reason for not allowing its 

withdrawal.” IAF, Tab 13 at 2. Even if we were to assume that the appellant’s 

sworn statement implies that she attempted to withdraw her resignation, as she 

claims, we would conclude that it would not affect the ultimate outcome of the 

case, given the administrative judge’s otherwise proper credibility determinations 

on the issues before us. 

¶17 The appellant also disputes the administrative judge’s finding that she did 

not address her rescission of her resignation in her October 25, 2013 email to the 
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EEO specialist on the day after her removal. RPFR File, Tab 1 at 17. However, 

we agree with the administrative judge that this email fails to mention the 

appellant’s purported rescission and does not reference any of the appellant’s 

alleged conversations with the EEO specialist on October 24, 2013, regarding her 

attempts to rescind her resignation. 3

 RID at 9-10; RF, Tab 4 at 11.

¶18 Finally, the appellant disputes the administrative judge’s finding that there 

was no evidence that she left a message for the EEO specialist concerning

rescinding her resignation. RPFR File, Tab 1 at 18. She asserts that her son 

testified that he witnessed her crying and heard her state that she was trying to 

call the EEO specialist to rescind her resignation, that he dialed the EEO 

specialist’s work and cell phone numbers repeatedly for her, and that after 

receiving the EEO specialist’s voicemail, he handed the phone to her and she left 

several voicemail messages. Id. The appellant does not, however, contend that 

her son testified that he heard her leave a voicemail message rescinding her 

resignation. Thus, we defer to the administrative judge’s finding that the 

appellant’s son’s testimony was of little probative value and did not detract from 

the EEO specialist’s credibility. RID at 10.

 3 The appellant contends for the first time on review that she sought to rescind her 

resignation via her October 25, 2013 email to the EEO specialist in which she stated, “I 

hope and pray that I can be Reinstated back at USDA, and continue doing a wonderful 

job.” RPFR File, Tab 1 at 17. We will not consider this argument now because the 

appellant has not shown that it is based on new and material evidence that was not 

previously available despite her due diligence. See Banks, 4 M.S.P.R. at 271. In any 

event, even if this email could be construed as a request to withdraw her resignation, the 

appellant was not entitled to rescind her resignation after the October 24, 2013 effective 

date of her resignation. See Glenn v. U.S. Soldier’s & Airmen’s Home, 76 M.S.P.R. 

572, 576-77 (1997).
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¶19 We have considered the appellant’s remaining arguments on review, but 

find that such arguments constitute mere disagreement with the administrative 

judge’s credibility determinations and factual findings and do not provide a basis 

for disturbing the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the 

U.S. 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). 

If you need further information about your right to appeal 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. 

27, 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.
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If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. 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