UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ISABEL RIOS-RIVERA,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

NY-0752-16-0316-I-1

DATE: November 17, 2022

THIS ORDER IS NONPRECEDENTIAL1

Marcos Gabriel Morales-Sbert, Esquire, San Juan, Puerto Rico, for the 

appellant.

Ana M. Margarida, San Juan, Puerto Rico, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

treated her separation as a removal action and affirmed that action. For the 

reasons discussed below, we GRANT the appellant’s petition for review, 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

VACATE the initial decision, and REMAND the case to the field office for 

further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 On August 24, 2016, the appellant received notice of the agency’s decision 

to remove her effective August 26, 2016, from her Social Worker position, based 

on seven charges of alleged misconduct. Initial Appeal File (IAF), Tab 1 at 4, 

Tab 9 at 13-15. The appellant resigned, effective August 25, 2016, after 

receiving notice of the agency’s decision to remove her. IAF, Tab 9 at 13-15, 

Tab 15 at 13.

¶3 The appellant filed a Board appeal of the removal decision and did not 

request a hearing. IAF, Tab 1 at 1-6. She raised claims of harmful procedural 

error and a violation of her due process rights. IAF, Tab 10 at 3, Tab 12 at 2, 

Tabs 14, 19.

¶4 Based on the written record, the administrative judge issued an initial 

decision treating the appellant’s separation as a removal action, which she 

affirmed. IAF, Tab 22, Initial Decision (ID) at 2, 6, 25. Specifically, the 

administrative judge sustained the charged misconduct, found a nexus between 

the sustained misconduct and the efficiency of the service, and determined that 

the penalty of removal was within the tolerable limits of reasonableness. ID

at 7-18, 20-25. She further found that the appellant failed to prove her 

affirmative defense of harmful procedural error. ID at 18-20.

¶5 The appellant has filed a petition for review challenging the initial decision 

and reasserting a violation of her due process rights. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response opposing her petition. PFR File, 

Tab 3.
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DISCUSSION OF ARGUMENTS ON REVIEW

This appeal must be remanded for a jurisdictional determination.

¶6 The Board’s jurisdiction 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 preponderant evidence the Board’s jurisdiction over her 

appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). Generally, an appellant is entitled to a 

jurisdictional hearing if she raises nonfrivolous allegations 2of Board jurisdiction. 

Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 6 (2013).

¶7 There remains a question whether the Board has jurisdiction over this 

appeal. Although the parties have not raised this issue, PFR File, Tabs 1, 3, the 

issue of the Board’s jurisdiction may be raised at any time during a proceedi ng, 

Morgan v. Department of the Navy, 28 M.S.P.R. 477, 478 (1985). Further, the 

Board has inherent authority to determine whether a matter is within its 

jurisdiction. Lloyd v. Small Business Administration, 96 M.S.P.R. 518, ¶ 16 

(2004). Therefore, we find that it is appropriate to raise the jurisdictional issue 

here.

¶8 The administrative judge found that, because the appellant resigned 1 day 

before the scheduled effective date of her removal, the Board has jurisdiction to 

adjudicate the agency’s removal action regardless of the voluntariness of her 

resignation. ID at 6. In so finding, the administrative judge cited 5 U.S.C. 

§ 7701(j) and Mays v. Department of Transportation, 27 F.3d 1577, 1579-81 

(Fed. Cir. 1994). ID at 6. Section 7701(j) provides: 

In determining the appealability under this section of any case 

involving a removal from the service (other than the removal of a 

reemployed annuitant), neither an individual’s status under any 

retirement system established by or under Federal statute nor any 

 

2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at 

issue. 5 C.F.R. § 1201.4(s).
4

election made by such individual under any such system may be 

taken into account.

The plain meaning of this provision is that the Board may not base its 

jurisdictional determination in a removal appeal on whether the appellant retired 

when faced with a final removal decision. Paula v. Social Security 

Administration, 119 M.S.P.R. 138, ¶ 12 (2013). In Mays, 27 F.3d at 1579-81, our 

reviewing court held that the Board had jurisdiction under 5 U.S.C. § 7701(j) over 

the appellant’s removal appeal when she retired on the effective date of her 

removal.

¶9 However, we find that 5 U.S.C. § 7701(j) and the holding in Mays do not 

apply to the instant appeal because the appellant here did not retire but resigned

prior to the effective date of her removal. IAF, Tab 13 at 4, Tab 15 at 13; 

Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 41 (2009); see,

e.g., Quiet v. Department of Transportation, 104 M.S.P.R. 292, ¶¶ 5, 9-10 (2006)

(remanding the appellants’ appeals for the administrative judge to adjudicate 

them as involuntary resignation/constructive removal appeals when the record 

reflected that the appellants were separated from service as a result of their 

resignations prior to the effective date of the agency’s removal actions). Thus, 

we find that the administrative judge erred in adjudicating the appellant’s 

resignation as a removal, and we vacate the initial decision.

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

voluntary and thus outside the Board’s jurisdiction. Searcy v. Department of 

Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). However, an employee may establish 

Board jurisdiction over an involuntary resignation as a constructive removal by 

proving that she lacked a meaningful choice in the matter and the agency’s 

wrongful actions deprived her of that choice. Bean v. U.S. Postal Service, 

120 M.S.P.R. 397, ¶¶ 7-8, 11 (2013). An employee can establish involuntariness 

by proving, for example, that the agency obtained the resignation through duress, 

coercion, misinformation, or deception. Searcy, 114 M.S.P.R. 281, ¶ 12; 
5

Baldwin, 111 M.S.P.R. 586, ¶ 15. The fact that an employee is faced with the 

unpleasant choice of resigning or being subject to removal for cause does not 

rebut the presumed voluntariness of her ultimate choice of resignation. Schultz v. 

U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987). However, “[i]f an employee 

can show that the agency knew [or should have known] that the reason for the 

threatened removal could not be substantiated, the threatened action by the 

agency is purely coercive.” Id. at 1136-37. Moreover, intolerable working 

conditions may render an action involuntary if the employee demonstra tes that the 

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. Searcy, 114 M.S.P.R. 281, ¶ 12.

¶11 Here, the administrative judge did not issue a jurisdictional notice, and 

neither the initial decision nor the agency’s submissions put the appellant on 

notice that she might be required to prove Board jurisdiction over her resignation 

as a constructive removal. IAF, Tabs 9, 15; see Burgess v. Merit Systems 

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an 

appellant must receive explicit information on what is required to establish an 

appealable jurisdictional issue). Therefore, we remand this appeal for the 

administrative judge to provide the appellant with notice of the jurisdictional 

requirements described above and an opportunity to establish jurisdiction. See,

e.g., Burgess, 758 F.2d at 643-44. After apprising the appellant of the proper 

jurisdictional issues, the administrative judge shall provide her with an 

opportunity to request a jurisdictional hearing and to submit evidence and 

argument on those issues.

3

 

3

In her petition for review, the appellant reasserts her argument that the agency 

violated her due process rights. PFR File, Tab 1 at 1-11; IAF, Tab 12 at 2, Tab 14 at 6, 

Tab 19. She also disputes the administrative judge’s findings regarding the charged 

misconduct, hearsay evidence, harmful procedural error, nexus, and the removal 

penalty. PFR File, Tab 1. We find it is inappropriate to decide these issues at this time 

when it is unclear that these claims are within the Board’s jurisdiction. See Evans v. 
6

ORDER

¶12 For the reasons discussed above, we remand this case to the field office for 

further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board

 

Department of Veterans Affairs, 119 M.S.P.R. 257, ¶ 5 (2013) (stating that the Board 

first must resolve the threshold issue of jurisdiction before proceeding to the merits of 

an appeal). The appellant may reraise her arguments on remand to the extent they are 

relevant in a constructive removal appeal.