Before Newman, Bryson, and Gajarsa, Circuit Judges.
Walter R. Bacon petitions for review of the final decision of the Merit Systems Protection Board in Docket No. CH-0752-96-0582-I-1. Mr. Bacon appealed his disability retirement from the Federal Aviation Administration (FAA), alleging that his retirement was involuntary, in that it was the product of coercion and misleading information given to him by the agency. The Merit Systems Protection Board rejected Mr. Bacon's contention that his retirement was involuntary and therefore held that it did not have jurisdiction over his appeal. We affirm.
Mr. Bacon worked as an Air Traffic Control Specialist with the FAA, an agency within the Department of Transportation. As an air traffic controller, Mr. Bacon was required to maintain medical certification in accordance with established safety standards. On September 14, 1995, Mr. Bacon's physician informed the FAA that Mr. Bacon should be relieved of his duties as an air traffic controller for an indeterminate period of time for a variety of health reasons, including diabetes, hypertension, and anxiety. Mr. Bacon's physician stated that he should be temporarily removed from the stress of the control room and its environment but that his prognosis for recovery from his condition was fair.
On September 29, 1995, and again on October 19, 1995, the FAA informed Mr. Bacon by letter that it intended to suspend him indefinitely due to his physical inability to perform his duties as an air traffic controller. The agency never suspended Mr. Bacon, however. Instead, it assigned him to administrative duties outside the control room. On November 17, 1995, Mr. Bacon was medically cleared by his physician to perform duties in the control room limited to removing flight progress strips from a computer printer and delivering them to controllers who were actively controlling traffic. On January 4, 1996, however, Mr. Bacon's physician informed the FAA that performing those duties was exacerbating Mr. Bacon's health problems. The agency then assigned Mr. Bacon to administrative duties outside the control room.
On January 10, 1996, Mr. Bacon submitted an application for disability retirement. While his application was pending in the Office of Personnel Management (OPM), Mr. Bacon began discussing his options with Rick Day, the Air Traffic Manager in the regional facility, and Donna Sparks, an agency personnel management specialist. On March 1, 1996, OPM approved Mr. Bacon's retirement application. On March 8, 1996, Mr. Day told Mr. Bacon that the FAA would accommodate Mr. Bacon's medical conditions until he was able to recertify as an air traffic controller. Mr. Bacon responded that he wished to work in a staff position, rather than as an air traffic controller, and that if the agency would offer him the staff position he wanted, he would decline disability retirement. Mr. Bacon also informed Mr. Day that he expected his medical condition to improve in the future.
By letter dated March 12, 1996, Mr. Day officially rescinded the proposed suspension letter of October 19, 1995. Mr. Day also offered Mr. Bacon the opportunity to perform administrative duties for up to one year from the date of his temporary medical disqualification and requested that Mr. Bacon provide documentation from his physician regarding the medical restrictions the FAA should consider in determining where to place Mr. Bacon. Because he was on vacation, Mr. Bacon did not receive Mr. Day's letter until March 26, 1996. When he returned from vacation, Mr. Bacon discussed the March 12 letter with Ms. Sparks and expressed disappointment that Mr. Day had not offered him a permanent staff position. On April 1, 1996, Mr. Bacon accepted his retirement, effective March 29, 1996.
Mr. Bacon then filed an appeal with the Merit Systems Protection Board asserting that his retirement was involuntary. After a hearing, the administrative Judge dismissed the appeal. The administrative Judge concluded that Mr. Bacon had failed to establish that his retirement was involuntary, and that he therefore could not be deemed to have been removed as a result of an adverse action. Accordingly, the administrative Judge concluded that the Board lacked jurisdiction over Mr. Bacon's appeal. The full Board denied Mr. Bacon's petition for review.
Mr. Bacon argues that his retirement was involuntary because it was the product of coercion and misleading conduct by the agency. In particular, he argues that the agency misled him into believing that he would be given a staff position and then, shortly before April 1, 1996, denied him the staff position and instead offered him only temporary duties pending further evaluation of his medical status. He also contends that he was pressured into making a decision regarding his retirement by April 1, 1996, both because legislation depriving the Merit Systems Protection Board of jurisdiction over FAA employees was to become effective as of that date and because an OPM employee told him that he needed to act promptly on his retirement.
Absent evidence to the contrary, a retirement request initiated by an employee is presumed to be a voluntary act. Covington v. Department of Health & Human Servs., 750 F.2d 937, 941 (Fed. Cir. 1984). Voluntary action initiated by the employee precludes a subsequent appeal to the Board. 5 C.F.R. § 752.401(c)(3). To establish an involuntary retirement due to coercion, an employee must show that his agency imposed the terms of his retirement, that his circumstances permitted no alternative but to accept, and that those circumstances were the result of improper acts of the agency. Schultz v. Department of the Navy, 810 F.2d 1133, 1575 (Fed. Cir. 1987). To establish an involuntary retirement due to misinformation, an employee must show that a reasonable person would have been misled by the agency official's statements and that the misleading conduct materially affected the employee's decision to retire. Scharf v. Department of the Air Force, 710 F.2d 1572, 1575 (Fed. Cir. 1983).
The administrative Judge found that Mr. Bacon's decision to retire was not the product of either misinformation or coercion. At the time Mr. Bacon elected to retire, the administrative Judge found, he understood that his options were to retire or to continue performing administrative duties on a temporary basis until he was able to return to his position as an air traffic controller. The reason Mr. Bacon chose retirement, the administrative Judge found, was because the agency did not reassign him by April 1, 1996, from his air traffic controller position to a permanent staff position such as the training job that he wanted.
The administrative Judge found that the FAA had not placed any time constraints on Mr. Bacon's retirement decision, and that Mr. Bacon was not entitled to a permanent position other than as an air traffic controller until he was certified as permanently medically disqualified to work as a controller. Substantial evidence supports the administrative Judge's findings, and based on those findings the administrative Judge permissibly concluded that Mr. Bacon's decision to retire ...