UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EDWARD V. PERPLIES,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

SF-0752-14-0200-I-1

DATE: September 19, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Edward V. Perplies, Esquire, Arleta, California, pro se.

Andrew J. Schultz, San Francisco, California, 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 this involuntary retirement 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or 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 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. 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 Board’s jurisdiction is not plenary; it is limited to those matters over 

which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit 

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears 

the burden of proving, by a preponderance of the evidence, that the Board has 

jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i). An appellant is entitled 

to a hearing on the issue of Board jurisdiction over an appeal of an alleged 

involuntary resignation or retirement only if he makes a nonfrivolous allegation 

casting doubt on the presumption of voluntariness. Burgess v. Merit Systems 

Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985). To meet the nonfrivolous 

standard, an appellant need only plead allegations of fact that, if proven, could 

show jurisdiction. Pariseau v. Department of the Air Force, 113 M.S.P.R. 370, 

¶ 14 (2010). Mere pro forma allegations, however, are insufficient to meet this 

standard. Id. 

¶3 In actions like the one at issue here, i.e., a retirement initiated by an 

employee in a situation where there has been no threat of an adverse action, such 

as a removal, the appropriate test for voluntariness is whether, under all of the 

circumstances, working conditions were made so difficult by the agency that a 
3

reasonable person in the appellant's position would have felt compelled to resign 

or retire. See, e.g., Markon v. Department of State, 71 M.S.P.R. 574, 577 (1996). 

In cases where intolerable working conditions are alleged, both the courts and the 

Board will find an action involuntary only if the employee demonstrates that the 

employer or agency engaged in a course of action that made working conditions 

so difficult or unpleasant that a reasonable person in that employee’s position 

would have felt compelled to resign or retire. Id. at 577-78. When an appellant 

raises allegations of discrimination or reprisal in connection with an 

involuntariness claim, evidence of discrimination may be considered only in 

terms of the standard for voluntariness in a particular situation—not whether such 

evidence meets the test for proof of discrimination or reprisal established under 

Title VII. Id. at 578. Thus, evidence of discrimination or retaliation goes to the 

ultimate question of coercion, i.e., whether under all of the circumstances 

working conditions were made so difficult by the agency that a reasonable person 

in the employee’s position would have felt compelled to resign or retire. Id. 

¶4 The appellant filed an appeal in which he alleged that he involuntarily 

retired from his position as a GS-12 Investigator for the agency’s Employee 

Benefits Security Administration. Initial Appeal File (IAF), Tab 1. The 

administrative judge subsequently informed the appellant of the elements and 

burdens of establishing jurisdiction over an involuntary retirement. IAF, Tab 2 

at 2-3. The appellant responded, arguing that his physical and emotional health 

was impacted by his placement on a performance improvement plan (PIP) in 

August 2012, and the agency’s subsequent enforcement of that PIP. IAF, Tab 6 

at 2. The appellant asserted that the PIP was vague and overbroad and that the 

agency intentionally scheduled weekly PIP meetings such as to interfere with his 

regular mealtimes, 2 which he contended affected the blood-sugar regimen that he

 2 The appellant argued that the agency “compelled [his] attendance during required 

meals,” but he also cited the agency’s failure under the PIP “to regularly schedule 
4

had implemented upon his physician’s advice and that was necessitated by his 

known diabetic condition. Id. at 2-3. The appellant also asserted that the agency 

failed to disclose that he could not receive his full retirement annuity at age 58 

until after he had already accepted his position. 3

 Id. The agency moved to 

dismiss the appeal for lack of jurisdiction, IAF, Tab 8, and the administrative 

judge granted the agency’s motion, finding that the appellant failed to make 

nonfrivolous allegations that the agency created working conditions so intolerable 

that a reasonable person in the appellant’s position would have felt compelled to 

retire, IAF, Tab 10, Initial Decision (ID) at 7-8. 

¶5 With his timely-filed petition for review, the appellant seeks to introduce 

new evidence, a letter from a coworker concerning one of the individuals that the 

appellant alleges was responsible for the hostile work environment that compelled 

him to retire. Petition for Review (PFR) File, Tab 1 at 1, 7-8; Tab 4. The 

appellant claims that, although the letter is dated October 4, 2013, it was made 

available to him on February 20, 2014, PFR File, Tab 1 at 1, and he states that he 

 

weekly meetings with any predictability or regularity” as evidence that his subsequent 

retirement was involuntary. IAF, Tab 6 at 2. 

3 According to the agency, the appellant served in his position for over 12 years at the 

time he retired. IAF, Tab 8 at 1. It appears that the appellant is arguing that the agency 

misled him by omission at the time it hired him that he could receive a full annuity after 

5 years of creditable service regardless of his age at the date he chose to retire, and that 

he relied on that omission to his detriment, see IAF, Tab 6 at 2, but he offers nothing to 

support this bare allegation. Moreover, something that occurred 12 years before the 

alleged involuntary retirement at issue is most likely too attenuated to have caused a 

reasonable person under these circumstances to retire. See, e.g., Miller v. Department 

of Defense, 85 M.S.P.R. 310, ¶ 10 (2000) (although other periods are not categorically 

excluded, the circumstances existing immediately before the actual date of the action 

are the most relevant in determining the voluntariness of that action). Nevertheless, 

even if the appellant established this, an employee’s eligibility for a retirement annuity 

is fixed by statute and regulation. See 5 U.S.C., chapter 84; 5 C.F.R., parts 841-46. 

The government cannot be estopped from denying benefits not otherwise permitted by 

law even if the claimant was denied monetary benefits because of his reliance on the 

mistaken advice of a government official. Office of Personnel Management v. 

Richmond, 496 U.S. 414, 416, 434 (1990). 
5

did not supplement the evidence earlier because he had already submitted two 

other coworker statements as exhibits in his presentation below, id.; see IAF, 

Tab 9, Exhibits 24, 26. Under 5 C.F.R. § 1201.115, the Board generally will not 

consider evidence submitted for the first time with the petition for review absent 

a showing that it was unavailable before the record was closed despite the party’s 

due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The 

appellant does not say why the statement was previously unavailable to him

despite his due diligence, and as noted above, he acknowledges in his petition for 

review that the evidence is cumulative. PFR File, Tab 1 at 1; compare PFR File, 

Tab 1 at 7-8, with IAF, Tab 9, Exhibits 24, 26. Moreover, the letter does not 

show that the administrative judge erred in finding that a reasonable person under

these circumstances would not have felt compelled to retire. See PFR File, Tab 1 

at 7-8. The Board will not grant a petition for review based on new evidence 

absent a showing that it is of sufficient weight to warrant an outcome different 

from that of the initial decision. E.g., Russo v. Veterans Administration, 

3 M.S.P.R. 345, 349 (1980).

¶6 The appellant also argues that he would be able to prove his claim at trial, 

asserting that a dismissal of his appeal without affording him an opportunity to 

supplement his pleadings will cause him irreparable harm. PFR File, Tab 1 at 2. 

However, as noted above, an appellant is entitled to a hearing on the issue of 

Board jurisdiction over an appeal of an alleged involuntary resignation or 

retirement only if he makes a nonfrivolous allegation casting doubt on the 

presumption of voluntariness. Burgess, 758 F.2d at 643. The administrative 

judge gave the appellant ample notice of the burden he must meet to receive a 

hearing on his claim and she set a time for the record on the jurisdictional issue to 

close. IAF, Tab 2 at 2-4. That was the time for the appellant to have submitted 

his evidence. Having then elected to proceed without attempting to introduce the 

evidence he now seeks to submit on review, the appellant, who is an attorney 

representing himself pro se in this matter, may not at this stage seek to 
6

supplement the record with evidence that was apparently available to him before 

the record closed. Cf. Kopp v. Department of the Air Force, 33 M.S.P.R. 624, 

629 (1987) (a mistaken litigation strategy does not provide an adequate basis for 

reopening the record). 

¶7 Ultimately, we agree with the administrative judge that the appellant failed 

to nonfrivolously allege that his retirement was involuntary. Applying the 

standard set forth in Markon, we find that the appellant failed to nonfrivolously 

assert that his daily working conditions were so intolerable that a reasonable 

person in his position would have felt compelled to retire. See, e.g., Miller,

85 M.S.P.R. 310, ¶ 32 (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). Although the appellant 

alleged that he was subjected to a discriminatory and hostile workplace, 

culminating in his placement on a PIP, and was required to perform unspecified 

unethical and unlawful acts in connection with his employment, see, e.g., IAF, 

Tab 1 at 8-12, the totality of the circumstances based on the evidence that the 

appellant submitted, IAF, Tab 9, does not support his allegations, and instead 

reflects, as the administrative judge correctly found, “the common workplace 

situations where there is disagreement with the supervisors over work product and 

performance deficiencies which resulted in a PIP,” ID at 7. 

¶8 Although the appellant clearly believed that he might be subject to 

discipline in the future as a result of the PIP, there is no evidence that such an 

action was planned, and an employee’s anticipation of an adverse action does not 

constitute coercion or duress on the part of an agency. See Holman v. Department 

of the Treasury, 9 M.S.P.R. 218, 220 (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982) 

(Table). Although the prospect of facing such an action is an unpleasant choice, 

the appellant always had the option of waiting and contesting such an action if he 

thought it unjustified. See, e.g., Schultz v. Department of the Navy, 810 F.2d 

1133, 1136 (Fed. Cir. 1987); Aurandt v. Department of the Air Force, 
7

53 M.S.P.R. 591, 595 (1992). The appellant’s decision to retire, in lieu of facing 

any potential adverse consequences he anticipated as the result of being placed on 

a PIP does not show that his retirement was involuntary. See Sullivan v. 

Department of Veterans Affairs, 79 M.S.P.R. 81, 85 (1998); Shaishaa v 

Department of the Army, 58 M.S.P.R. 450, 454 (1993) (the prospect of possible 

future adverse action as the result of a PIP is speculative and not a proper basis 

on which to find jurisdiction over an action not otherwise appealable to the 

Board). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

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).

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. 
8

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 your 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 before 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