United States Court of Appeals 

for the Federal Circuit ______________________ 

CHASE M. LENTZ,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2017-1285

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-4324-15-0364-I-1.

______________________ 

Decided: December 12, 2017

______________________ 

CHASE M. LENTZ, FRESNO, CA, pro se. 

CALVIN M. MORROW, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK,

KATHERINE M. SMITH.

______________________ 

Before NEWMAN, DYK, and HUGHES, Circuit Judges.

NEWMAN, Circuit Judge.

Chase M. Lentz appeals the decision of the Merit Systems Protection Board (MSPB or “Board”), holding that 
2 LENTZ v. MSPB

his resignation from federal employment was a voluntary 

act and not a constructive discharge. We vacate the 

Board’s decision, as based on incorrect evidentiary procedures including the inappropriate application of collateral 

estoppel. We remand to the MSPB for redetermination of 

the issue of constructive discharge. 

BACKGROUND

Mr. Lentz entered federal service in 2002, and at the 

times here relevant was employed as a botanist with the 

Bureau of Land Management of the Department of the 

Interior (the “Agency”) in California. Mr. Lentz had no 

disciplinary record until May 15, 2014, when his supervisor issued a letter of reprimand for “acting outside the 

scope of his authority” and “conduct unbecoming.” MSPB 

Appx 34. These charges were based on his authorization 

to permit goat grazing on certain public lands, without

the prior approval of his supervisors. Id. On November 

13, 2014 Mr. Lentz’s supervisor issued a letter proposing 

a fourteen-day suspension for various infractions, citing

his management of interns, his behavior toward his 

supervisors, and his interaction with outside entities. Id.

at 34–35. Soon after receiving this letter, Mr. Lentz went 

on medical leave. The proposed fourteen-day suspension 

was sustained on February 10, 2015, during his medical 

leave, to commence on February 15, 2015.

Mr. Lentz resigned on February 13, 2015. His letter 

of resignation cites harassment and a hostile work environment that aggravated an illness and his veterans

disability, and made his work circumstances intolerable. 

He states, “I had been pushed to the limits of what I could 

endure and had to take significant amounts of sick leave 

as a result.” Initial Appeal File (IAF), Tab 9 at 29. He 

states that until the most recent two years (and new 

supervisors) his performance had consistently been rated 

“superior.” He states that he has filed complaints for

discrimination and harassment by his supervisors, includ-
LENTZ v. MSPB 3

ing complaints for violation of the Uniformed Services 

Employment and Reemployment Rights Act (USERRA), 

38 U.S.C. §§ 4301–4335, and that the letters of reprimand 

are retaliatory.

On February 25, 2015, Mr. Lentz filed an appeal with 

the MSPB, asserting constructive discharge. He stated

that the May 2014 letter of reprimand and the November 

2014 letter and fourteen-day suspension were retaliatory 

and discriminatory, leading to his constructive discharge. 

IAF, Tab 1. He stated that his ensuing illness and medical leave should be viewed as a constructive suspension, 

and that “the agency coerced my resignation by bringing 

unjustifiable charges and creating unreasonably difficult 

working conditions.” IAF, Tab 1 at 5. He also alleged 

discrimination on the basis of his status as a disabled 

veteran, and retaliation for having previously filed a

complaint for violation of USERRA. In separate appeals 

to the MSPB, not here at issue, he alleged that the Agency actions were in retaliation for protected whistleblower 

activity.

The MSPB’s Administrative Judge (AJ), at the Western Regional Office, bifurcated the February 25, 2015

appeal into two separate cases. The first case (Lentz I)1

designated the appeal as a claim for involuntary resignation under 5 U.S.C. Chapter 75. The second case (Lentz 

II)2 designated the appeal as a complaint under USERRA. 

The AJ dismissed Lentz I for lack of jurisdiction, and the 

AJ subsequently held that Mr. Lentz was collaterally 

estopped from raising in Lentz II the evidence and issues 

 

1 Lentz v. Dep’t of Interior, No. SF-0752-15-0363-I-1, 

2016 WL 106602 (M.S.P.B. Jan. 11, 2016) (Lentz I). This 

decision was not appealed to the Federal Circuit.

2 Lentz v. Dep’t of Interior, No. SF-4324-15-0364-I-1, 

2016 WL 6069072 (M.S.P.B. Oct. 14, 2016) (Lentz II). 
4 LENTZ v. MSPB

that the AJ had assigned to Lentz I. Mr. Lentz states that 

by separating the several factual aspects and concerns 

that contributed to his involuntary resignation, their 

combined weight was never considered, distorting the 

MSPB’s review. 

The Lentz I proceeding

The first proceeding was designated by the AJ as a 

dismissal action under Chapter 75, and was limited by 

the AJ to the issue of constructive discharge based on Mr. 

Lentz’s assertions that the Agency “brought unjustifiable 

charges in support of its reprimand and 14-day suspension,” “committed prohibited personnel practices by using 

his protected disclosures of information as a basis for 

discipline,” and “misrepresented, exaggerated and omitted 

evidence.” MSPB Appx 39–40. 

The Agency moved to dismiss the Lentz I proceeding 

for “lack of jurisdiction.” The AJ granted the motion

without the requested hearing, stating that “[Mr. Lentz]

has failed to nonfrivolously allege he was subjected to a 

discriminatory/retaliatory hostile work environment so 

coercive in nature that he had no choice but to resign.” 

MSPB Appx 51. The full Board affirmed this decision, 

and Mr. Lentz did not appeal to this court.

The Lentz II proceeding

The AJ commenced this proceeding shortly after the 

full Board decided Lentz I, stating that it was “limited to 

claims that an employer discriminated in employment or 

took an adverse employment action because of protected 

USERRA activity.” Lentz II at ¶12. The Agency again

moved to dismiss for lack of jurisdiction, and the AJ again 

granted the motion, stating that “the appellant has failed 

to make non-frivolous allegations that a reasonable 

person in his position would have felt compelled to resign 

due to USERRA-based discrimination or reprisal.” MSPB 

Appx 7.
LENTZ v. MSPB 5

The AJ stated that collateral estoppel arose from 

Lentz I, stating that “[t]o the extent the appellant is 

seeking to relitigate the overall issue of whether his 

resignation was involuntary, I find that he is collaterally 

estopped from doing so.” Id. at 6. The AJ stated that “[t]o 

the extent that the appellant is seeking to relitigate the 

issue of whether the agency violated USERRA by denying 

his request for accommodation, I find that he is collaterally estopped from relitigating this matter as well.” Id. at 6 

n.5. The AJ concluded that “the appellant has failed to 

nonfrivolously allege that he was subjected to a USERRA 

discriminatory/retaliatory hostile work environment so 

coercive in nature that he had no choice but to resign,”

and dismissed the appeal. Id. at 8. 

Mr. Lentz appealed to the full Board. The Board referred to the AJ’s refusal to consider whether the resignation was involuntary, because it would relitigate Lentz I, 

as “[c]onfusing[].” Lentz II at ¶7. The Board observed 

that the AJ separated the issues into Lentz I and Lentz II 

“[f]or reasons that are unclear;” but the Board did not 

discuss whether this separation was proper, or how it 

might have affected the dismissal for “lack of jurisdiction.” Id. at ¶5.

The full Board upheld the AJ’s application of collateral estoppel, stating that “the identical issue of whether 

the appellant’s resignation was voluntary previously was

litigated in Lentz I,” and that the requirements of collateral estoppel had been met. Lentz II at ¶13. The Board 

then limited its review in Lentz II to the USERRA issues, 

stating that “jurisdiction under 38 U.S.C. § 4311(b) is 

limited to claims that an employer discriminated in 

employment or took an adverse employment action because of protected USERRA activity.” Lentz II at ¶12.

The full Board affirmed the AJ’s dismissal for lack of 

jurisdiction of Mr. Lentz’s claim of constructive discharge. 

This appeal followed.
6 LENTZ v. MSPB

DISCUSSION

This court is assigned jurisdiction under 5 U.S.C. 

§ 7703 to review final decisions of the Board. The standard is whether a decision of the Board is (1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; 

or (3) unsupported by substantial evidence. 5 U.S.C. 

§ 7703(c).

The Board’s jurisdictional determinations receive plenary review. McCormick v. Dep’t of the Air Force, 307 

F.3d 1339, 1340 (Fed. Cir. 2002). When the Board has 

made factual findings affecting the jurisdictional inquiry, 

these findings are reviewed for support by substantial 

evidence in the record. Parrott v. Merit Sys. Prot. Bd., 519 

F.3d 1328, 1334 (Fed. Cir. 2008). The substantial evidence standard requires “such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 

197, 229 (1938). 

When determining whether a resignation was involuntary, the MSPB examines “the surrounding circumstances to test the ability of the employee to exercise free 

choice.” Perlman v. United States, 490 F.2d 928, 933 (Ct.

Cl. 1974). See also Scharf v. Dep’t of the Air Force, 710 

F.2d 1572, 1574 (Fed. Cir. 1983) (“[I]t has been held that 

the element of voluntariness is vitiated when . . . an 

employee resigns under duress brought on by government 

action.” (citing McGucken v. United States, 407 F.2d 1349, 

1351 (Ct. Cl. 1969))). Mr. Lentz states that the Board did 

not reach this stage, based in part on the separation of his 

case into two distinct proceedings, and placing some 

evidence in one proceeding and some evidence in the other 

proceeding. He states that the combined weight of the 

evidence of coerced resignation was thereby diluted, and

that the fragmentation of the factors “compromised my 
LENTZ v. MSPB 7

ability to present an integrated and coherent claim.” 

Lentz Br. 2 (citing Whitmore v. Dep’t of Labor, 680 F.3d 

1353, 1368 (Fed. Cir. 2012) (“Evidence only . . . supports a 

conclusion when it does so in the aggregate considering all 

the pertinent evidence in the record. . . .”)). 

Mr. Lentz stresses that the Board’s dismissal of Lentz 

II for lack of jurisdiction was done on the Agency’s motion, 

before he had a chance to develop a full record. He states 

that he provided thirty-six pieces of evidence, none of 

which was directly addressed.3 He states that the AJ

declined to consider any of the information that had been 

segregated into Lentz I, the AJ stating that “the appellant’s general claim that he was constructively discharged 

was fully litigated in Lentz [I].” MSPB Appx 6. The AJ 

ruled that Mr. Lentz “had a full and fair opportunity to 

litigate his constructive discharge claim in his prior 

appeal.” Id. Mr. Lentz points out that the issue was not 

litigated at all, but was dismissed for lack of jurisdiction.

The full Board confirmed the application of collateral 

estoppel, stating that “the identical issue of whether the 

appellant’s resignation was voluntary previously was 

litigated in Lentz I,” and that “the appellant was a party, 

and he had a full and fair opportunity to litigate his 

claims.” Lentz II at ¶13. The full Board noted, “[I]t is 

unclear to what extent the appellant’s constructive suspension claim rests on the allegedly improper denial of 

reasonable accommodation.” Lentz II at 5 n.3. However, 

Mr. Lentz’s petition for Board review clearly stated that 

consideration of the denial of reasonable accommodation

 

3 The AJ reported that Mr. Lentz did not request a 

hearing in Lentz II. IAF, Tab 12 at 2 (citing IAF, Tab 9 at 

5 (“I do not request a hearing, but I am entitled to and 

request the opportunity to further develop the written 

record on my USERRA claim”)). 
8 LENTZ v. MSPB

“is essential in the determination of whether or not I was 

subject to a constructive suspension.” Petition for Review 

File, Tab 1, at 9.

The MSPB now concedes that it erred in the application of collateral estoppel, stating that “the respondent 

has determined that the Board’s modification of the 

administrative judge’s decision by substituting collateral 

estoppel as the basis for finding lack of jurisdiction with 

respect to whether the petitioner nonfrivolously alleged a 

USERRA-related involuntary removal was in error,” and 

referring to the Board’s legal reasoning as “clear legal 

error.” MSPB Br. 12, 16. However, neither the MSPB nor 

the Agency has acted to remedy this admitted error, 

according to the record before us, the MSPB stating that 

the judgment is correct despite the acknowledgment of 

improper procedure. See Lawrence v. Chater, 516 U.S. 

163, 172 (1996) (“If it appears reasonably probable that a 

confession of error reveals a genuine and potentially 

determinative error by the court below, [an order to 

vacate and remand] may be appropriate.”). 

The Board must set aside a decision where the appellant “shows harmful error in the application of the agency’s procedures in arriving at such decision,” or where it is 

shown “that the decision was not in accordance with law.” 

5 U.S.C. § 7701(c)(2); see also 5 C.F.R. § 1201.56(c). 

Harmful error occurs where “[e]rror by the agency in the 

application of its procedures that is likely to have caused 

the agency to reach a conclusion different from the one it 

would have reached in the absence or cure of the error.” 5 

C.F.R. § 1201.4(r). The court must set aside agency 

findings that are “obtained without procedures required 

by law, rule, or regulation having been followed.” 5 

U.S.C. § 7703(c)(2).

The Board recognized that the separation of Mr. 

Lentz’s claim into multiple cases was confusing and 
LENTZ v. MSPB 9

unclear, but did not determine whether the separation 

resulted in harmful error. The Court has stated: 

The Administrative Procedure Act, which governs 

the proceedings of administrative agencies and related judicial review, establishes a scheme of reasoned decisionmaking. Not only must an agency's 

decreed result be within the scope of its lawful authority, but the process by which it reaches that 

result must be logical and rational.

Allentown Mack Sales and Serv., Inc. v. NLRB., 522 U.S. 

359, 374 (1998) (internal citation and quotation marks 

omitted); see also In re Sang Su Lee, 277 F.3d 1338, 1342 

(Fed. Cir. 2002) (“For judicial review to be meaningfully 

achieved within these strictures, the agency tribunal 

must present a full and reasoned explanation of its decision.”). The record provided by the parties does not 

explain why the Board divided Mr. Lentz’s appeal into 

separate cases and limited the evidence presented in each 

case.

Mr. Lentz asserts procedural and legal error, and contends that it prejudiced the result. See Petition for Review 

File, Tab 1 at 14 (“[T]he application of collateral estoppel 

to my appeal is in error.”). The MSPB states that even if

it erred and collateral estoppel does not apply, this court 

should “affirm the MSPB’s decision dismissing the petitioner’s appeal for lack of jurisdiction on the basis of the 

MSPB administrative judge’s finding that the petitioner 

failed to make nonfrivolous allegations of an involuntary 

resignation caused by violations of USERRA.” MSPB Br. 

16. The MSPB does not criticize the AJ’s “unclear” separation of the appeal and evidence into two separate cases, 

decided separately as Lentz I and Lentz II. Instead, the 

MSPB proposes that our review is limited to USERRA 

issues, ignoring the assertions of discrimination, hostile 

environment, and retaliation that had been segregated 

into Lentz I and removed from consideration in Lentz II. 
10 LENTZ v. MSPB

Because the issue improperly separated into Lentz I—

that Mr. Lentz failed to make nonfrivolous allegations of 

involuntary resignation based on alleged coercive agency 

actions other than violations of USERRA—is not the same 

issue that is presented in Lentz II, it has no preclusive 

effect here. As a result of the bifurcation, neither the 

Board’s decision in Lentz I nor in Lentz II addressed the 

proper question of whether the totality of the evidence, 

including both the evidence of alleged USSERA violations

and the evidence of other coercive agency actions, rendered Mr. Lentz’s resignation involuntary. Therefore, 

collateral estoppel cannot apply to the constructive discharge claim. Likewise, the propriety of the bifurcation 

was not litigated in the first Board proceeding and is not 

collaterally estopped here. 

We hold that the MSPB committed two errors. First, 

the MSPB erred by improperly bifurcating the two proceedings. Second, it erred by failing to consider the 

totality of the evidence in determining the question of 

voluntariness in Lentz II. 

The cause of action in the Lentz II appeal is constructive discharge, not the USERRA violation alone. All of 

the evidence relevant to constructive discharge must be 

considered, not simply Mr. Lentz’s allegations of 

USERRA-violating retaliation, as the MSPB argues. 

MSPB Br. 16. The appropriate standard is whether the 

totality of events, on all of the evidence, produced a working environment sufficiently hostile as to lead to involuntary resignation. See Kline v. Dep’t of Transp., FAA, 808 

F.2d 43, 46 (Fed. Cir. 1986) (vacating and remanding to 

the Board where “the record does not demonstrate that 

the presiding official identified, balanced and then considered” the relevant evidence); DeLaughter v. U.S. Postal 

Serv., 3 F.3d 1522, 1524 (Fed. Cir. 1993) (remanding to 

the Board where “it is abundantly clear that the Postal 

Service failed to follow the appellate review procedure” 
LENTZ v. MSPB 11

before the Board), abrogated on other grounds by Guillebeau v. Dep't of Navy, 362 F.3d 1329 (Fed. Cir. 2004). 

The Board’s decision must be vacated and the case 

remanded to address these questions. In ordering a 

remand we do not decide the question of whether Mr. 

Lentz’s allegations are non-frivolous based on the totality 

of the evidence.

CONCLUSION

The procedures followed by the MSPB did not permit 

full and fair consideration of all of the circumstances that 

Mr. Lentz states combined to produce constructive discharge. The Board’s dismissal is vacated, and the case is 

remanded for determination of the merits of Mr. Lentz’s

appeal, on consideration of all of the circumstances.

VACATED AND REMANDED

Costs to Mr. Lentz.