UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MUHAMMAD M. BAAITH,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

NY-0752-15-0073-I-1

DATE: July 31, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Muhammad M. Baaith, Bronx, New York, pro se.

Erin Conroy, Esquire, Brooklyn, New York, 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 his 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 appellant filed this Board appeal alleging that he resigned from his 

position as a housekeeping aide in order to pursue another job opportunity but 

that he should have been reinstated to his former position after this other 

opportunity did not work out. Initial Appeal File (IAF), Tab 1 at 5. The 

appellant also stated that he previously had filed an equal employment 

opportunity (EEO) complaint and that the other job opportunity arose while he 

awaited a decision on the complaint. Id. He requested a hearing. Id. at 4. 

¶3 The administrative judge issued an order to show cause why the appeal 

should not be dismissed for lack of jurisdiction. IAF, Tab 3. The appellant 

responded that he had engaged in prior EEO activity, was previously suspended, 

had money taken out of his paychecks, had previously been transferred to another

agency facility, and was denied leave without pay that he requested to pursue the 

other job opportunity. IAF, Tab 4. He also asserted that agency officials 

suggested that he could return to his employment. Id. Finally, the appellant 

stated that, when he reapplied, he was not selected for his prior position. Id.

¶4 In the initial decision, the administrative judge found that the appellant 

voluntarily resigned because of another employment opportunity, that he made no 
3

claim that the agency improperly accepted his resignation, and that he had no 

right to restoration. 2

 IAF, Tab 5, Initial Decision (ID) at 4-5. Accordingly, he 

dismissed the appeal for lack of jurisdiction. ID at 5. The appellant filed a 

timely petition for review in which he states that the initial decision was based on 

erroneous findings of material fact but offers no other argument. Petition for 

Review (PFR) File, Tab 1. The agency has responded in opposition to the 

petition. PFR File, Tab 4.

¶5 On petition for review, the appellant merely disagrees with the 

administrative judge’s explained findings and, as such, provides no basis to 

disturb the initial decision. Broughton v. Department of Health & Human 

Services, 33 M.S.P.R. 357, 359 (1987). Furthermore, we agree with the 

administrative judge that the appellant failed to make a nonfrivolous allegation of 

jurisdiction. See ID at 4-5.

¶6 An employee-initiated action, such as a resignation, is presumed to be 

voluntary, and thus outside the Board’s jurisdiction, unless the employee presents 

sufficient evidence to establish that the action was obtained through duress or 

coercion or to show that a reasonable person would have been misled by the 

agency. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). An 

appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal 

of an alleged involuntary resignation only if he makes a nonfrivolous allegation 

casting doubt on the presumption of voluntariness. Id., ¶ 10. Where the appellant

alleges that the agency took actions that made working conditions so intolerable 

that he was driven to an involuntary resignation, the Board will find an action 

 2 The administrative judge correctly found that, to the extent that the appellant 

challenged the agency’s decision as a denial of restoration or reinstatement, IAF, Tab 1 

at 4, absent a specific right to restoration to duty or reemployment under 5 C.F.R. Parts

352 and 353, there is no right to appeal an agency’s decision to deny restoration. See 

IAF, Tab 5, Initial Decision (ID) at 5 (citing Case v. U.S. Postal Service, 15 M.S.P.R. 

552, 553 (1983)). The administrative judge also correctly stated that the appellant did 

not claim that the agency improperly denied him the right to withdraw his resignation. 

See ID at 5 (citing 5 C.F.R. § 715.202(b)).
4

involuntary only if the appellant demonstrates that the agency engaged in a course 

of action that made working conditions so difficult or unpleasant that a 

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

Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). The 

Board addresses allegations of discrimination and reprisal in connection with an 

alleged involuntary resignation only insofar as those allegations relate to the issue 

of voluntariness. Id. 

¶7 Here, the appellant alleged that he had filed an EEO complaint, had 

previously been suspended, had money taken out from his paycheck, was 

transferred to a different facility, and was denied leave without pay that he 

requested in order to pursue the other job opportunity.

3

 IAF, Tab 1 at 5, Tab 4. 

We find that the appellant’s disagreement with the agency’s decisions, such as his

transfer to another facility, does not render his resignation involuntary. See 

Conforto v. Merit Systems Protection Board, 713 F.3d 1111, 1121-22 (Fed. Cir. 

2013). We also find that the appellant’s statement concerning the denial of his

leave does not constitute an allegation of intolerable working conditions. See 

Searcy, 114 M.S.P.R. 281, ¶ 13. Lastly, the appellant’s vague statements 

concerning his EEO activity and alleged discrimination do not cast doubt on the 

presumption of voluntariness. See Axsom v. Department of Veterans 

Affairs, 110 M.S.P.R. 605, ¶¶ 16-17 (2009). Thus, we find that the appellant has 

not alleged intolerable working conditions that caused him to involuntarily resign.

¶8 To the extent that the appellant alleged that the agency misled him into 

thinking he could be rehired, IAF, Tab 4, his bare allegations do not support a 

finding that his resignation was the result of agency misinformation. See 

Axsom, 110 M.S.P.R. 605, ¶¶ 20-21. Accordingly, because the appellant did not 

 3 Although the appellant alleged that the agency took money out of his paycheck, IAF, 

Tab 4, it appears from the final agency decision concerning his EEO complaint that at 

least some of the money was related to his leave usage and that he admitted that this 

issue was corrected, IAF, Tab 1 at 21-22.
5

make a nonfrivolous allegation casting doubt on the presumption that his 

resignation was voluntary, we conclude that the administrative judge properly 

denied his request for a hearing and properly dismissed his appeal for lack of 

jurisdiction.

4

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).

 4 To the extent that the appellant attempted to appeal his nonselection to his former job, 

an unsuccessful candidate for a Federal civil service job generally has no right to appeal 

his nonselection. Upshaw v. Consumer Product Safety Commission, 111 M.S.P.R. 236, 

¶ 7 (2009). Ordinarily, an appellant must receive explicit information on what is 

required to establish an appealable jurisdictional issue. Burgess v. Merit Systems 

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). The fact that the 

administrative judge did not provide Burgess notice concerning a possible nonselection 

claim did not prejudice the appellant’s substantive rights, however, because the Board 

clearly lacks jurisdiction over general nonselection claims. See Richards v. Office of 

Personnel Management, 97 M.S.P.R. 291, ¶ 7 (2004) (finding harmless the failure to 

provide Burgess notice where the appellant was challenging a decision regarding life 

insurance, a matter over which the Board clearly lacked jurisdiction). Therefore, we 

find that any error in failing to address a possible nonselection claim or in failing to 

provide Burgess notice on that issue is harmless. See Panter v. Department of the Air 

Force, 22 M.S.P.R. 281, 282 (1984).
6

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.

If you are interested in securing pro bono representation for your appeal to 

the 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