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Manley v. Department of the Navy

October 7, 1999


Before Lourie, Rader, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.


Petitioner Claude Manley appeals from the February 8, 1999 decision of the Merit Systems Protection Board, Docket No. DC-0752-98-0607-I-1, which dismissed his appeal for lack of jurisdiction. Because the Board properly dismissed his appeal, we affirm.


Manley was a civilian employee in the Department of the Navy when he tendered his notice of retirement in May 1998. Thereafter he appealed to the Board, claiming that his retirement was involuntary. In an Acknowledgment Order, the Administrative Judge (AJ) warned him that resignation and retirement actions were presumed to be voluntary and non-appealable, and ordered him to file evidence and argument establishing that he retired involuntarily as a result of duress, coercion, or misrepresentation by the agency. Manley thereafter filed a statement asserting that he retired as a result of duress because he was in a "hostile, unpleasant, and personally distasteful work environment." Specifically, Manley claimed that (1) he was not allowed to exercise the authority of his office; (2) he had been denied a requested reassignment; (3) gender discrimination had occurred with respect to two of his subordinate female employees; (4) he had been subjected to an environment that might have involved bias against Puerto Ricans; and (5) he had been "jerked around" with respect to a planned trip to Saudi Arabia.

In an initial decision, the AJ dismissed Manley's appeal for lack of jurisdiction, holding that he failed to establish a prima facie case of involuntary retirement. The AJ stated that the test for determining whether a retirement decision was involuntary is an objective one and that Manley's allegations and evidence did not show that he was hindered from doing his job, that any detrimental or unauthorized actions were taken against him, or that his working conditions were objectively intolerable. Finding no non-frivolous factual issues as to whether Manley could establish that his retirement was involuntary, the AJ denied him an administrative hearing. The AJ's initial decision became the Board's final decision when the full Board denied Manley's petition for review. See 5 C.F.R. § 1201.113 (1999). Manley timely appealed to this court. We have exclusive jurisdiction of this appeal under 28 U.S.C. § 1295(A)(9) (1994).

The jurisdiction of the Board is not plenary. Rather, it is limited to those matters specifically entrusted to it by law, rule, or regulation. See 5 U.S.C. § 7701(a) (1994); Serrao v. MSPB, 95 F.3d 1569, 1573 (Fed. Cir. 1996). A voluntary resignation is not an action that is statutorily appealable. However, if shown to be involuntary, retirements and resignations are treated as constructive removals and are thus within the Board's jurisdiction. See Mintzmyer v. Department of the Interior, 84 F.3d 419, 423 (Fed. Cir. 1996). A petitioner has the burden of establishing Board jurisdiction by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2) (1999); Serrao, 99 F.3d at 1573. Jurisdiction is a question of law that we review de novo. See Serrao, 99 F.3d at 1573.

We must affirm the decision to dismiss Manley's appeal unless he establishes that the decision 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. See 5 U.S.C. § 7703(c) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986).

Manley argues that the Board imposed an improper standard of proof for establishing jurisdiction. He also challenges the Board's denial of a hearing on jurisdiction and its factual finding that he failed to present a non-frivolous allegation of coercion or duress. These arguments lack merit.

Since employee resignations and retirements are presumed to be voluntary and former employees thus bear the burden of pleading and proving involuntariness, see Middleton v. Department of Defense, - F.3d -, 1999 WL 600391, at *3 (Fed. Cir. Aug. 10, 1999), in order to be entitled to an evidentiary hearing before the Board on the question of jurisdiction, an employee must allege facts that, if proven, could make out a prima facie case of involuntariness. See id. We have followed a three-part test for determining when coercion or duress may be found to vitiate an apparently voluntary resignation. Coercion is shown by evidence establishing: "(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party." Id. (quoting Christie v. United States, 518 F.2d 584 (Ct. Cl. 1975)). "This test is an objective, rather than subjective one; an employee's subjective feelings are irrelevant. The employee must present allegations of fact which, if proven, establish that a reasonable employee confronted with the same circumstance would feel coerced into resigning." Id.

The administrative record here reveals that the AJ stated the proper legal test and correctly applied it to his factual findings, which are supported by substantial record evidence. Manley has not alleged any facts showing that he retired involuntarily due to coercion or duress; specifically, he has not alleged that the agency "effectively imposed the terms of [his] retirement, that [he] had no realistic alternative but to resign or retire, and that [his] retirement was the result of improper acts by the agency." Staats v. United Postal Serv., 99 F.3d 1124 (Fed. Cir. 1996). He has not alleged that he was induced by a threat to take disciplinary action that the agency knew could not be substantiated, see Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987), or that the agency took steps against him without any legitimate purpose, simply to force him to quit, see Caveney v. Office of Admin., 57 M.S.P.R. 667, 670 (MSPB 1993). Nor has he alleged that he was induced to resign based on agency misinformation or deception. See Staats, 99 F.3d at 1120; Middleton, 1999 WL 600391, at *4.

At most, Manley alleges that he faced a "hostile, unpleasant, and personally distasteful work environment" and one in which various other individuals were discriminated against. However, those facts, even if proven, do not rise to the level of coercion and thus do not make his retirement involuntary. See Staats, 99 F.3d at 1124. Nor do they justify a hearing. There are no allegations that the agency ever took any detrimental, unauthorized, or discriminatory actions against him.

Contrary to Manley's contentions, neither the governing statute nor the Due Process Clause of the Fifth Amendment guarantees a right to an evidentiary hearing on a question pertaining to the Board's jurisdiction. See id. A hearing is required only if he makes a non-frivolous allegation that, if proven, would establish Board ...

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