Boyd v. Department of Transportation

21 F. App'x 906
CourtCourt of Appeals for the Federal Circuit
DecidedOctober 9, 2001
DocketNo. 01-3220
StatusPublished

This text of 21 F. App'x 906 (Boyd v. Department of Transportation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyd v. Department of Transportation, 21 F. App'x 906 (Fed. Cir. 2001).

Opinion

PER CURIAM.

William C. Boyd (“petitioner”) seeks review of the February 7, 2001, final decision of the Merit Systems Protection Board (“Board”), Docket No. DC-0752-00-0790-I-1, dismissing his appeal for lack of juris[908]*908diction. Because the Board did not commit legal error, we affirm.

BACKGROUND

Until December 30, 1997, petitioner was a Transportation Policy Analyst in the Department of Transportation. On May 15, 1997, petitioner signed an agreement to retire under the Department of Transportation’s Voluntary Separation Incentive Pay (“VSIP”) program, under which he would receive a $25,000 incentive payment. In that agreement, petitioner acknowledged that “[m]y decision to retire is entirely voluntary and has not been coerced.” On December 30, 1997, petitioner’s retirement became effective and he soon thereafter received his $25,000 incentive payment.

On December 9, 1997, petitioner filed a formal complaint to the Department of Transportation’s Office of Civil Rights alleging that he was being forced to retire because of employment discrimination. After some revisions to his allegations, petitioner ultimately alleged that his Department of Transportation supervisor discriminated against him based upon his religion (Protestant) and reprisal for filing previous complaints with the EEOC, making working conditions so hostile and intolerable that petitioner had no choice but to retire. On August 2, 2000, the Department of Transportation issued its final agency decision, finding that petitioner did not meet his burden of proving that he was subjected to discrimination. Petitioner timely appealed this decision to the Board.

On September 20, 2000, the Board’s administrative judge issued an Acknowledgement Order noting that retirement is presumed to be voluntary and outside the Board’s jurisdiction, and ordered petitioner to provide evidence that the Board had jurisdiction over his appeal. In response, the Department of Transportation filed a motion to dismiss for lack of Board jurisdiction. Petitioner in turn responded by amending his petition to specifically allege that he was coerced into retirement by an intolerable work environment resulting from discrimination, and requested a hearing on the issue of voluntariness.

On January 3, 2001, the administrative judge issued an Initial Decision dismissing the appeal for lack of jurisdiction because petitioner did not establish that his working conditions were rendered so difficult or intolerable that a reasonable person in petitioner’s position would have felt compelled to retire. The administrative judge also denied petitioner’s request for a hearing because petitioner failed to make a non-frivolous allegation that his retirement was involuntary. The administrative judge’s Initial Decision became final on February 7, 2001.

Petitioner timely sought review in this court.

STANDARD OF REVIEW

Decisions of the Board must be sustained unless they are: “(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); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed.Cir.1998). Whether the Board has jurisdiction over a particular appeal is a question of law which we review without deference. King v. Briggs, 83 F.3d 1384, 1387 (Fed.Cir.1996). Petitioner bears the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(i). The question in this case is whether the Board erred in dis[909]*909missing petitioner’s appeal for lack of jurisdiction without a hearing.

DISCUSSION

We have jurisdiction to review the Board’s decision because the Board did not reach the merits of petitioner’s discrimination claim when it dismissed the appeal for lack of jurisdiction. As a general rule, this court has jurisdiction over final Board decisions. 5 U.S.C. § 7703(b)(1). But appeals of Board decisions involving allegations of discrimination where the Board reached the merits of the discrimination claim must be reviewed by the district courts. 5 U.S.C. § 7703(b)(2); Williams v. Dep’t of Army, 715 F.2d 1485, 1491 (Fed.Cir.1983). A mere allegation of discrimination does not automatically divest us of jurisdiction; whether jurisdiction lies in this court or in the district courts turns on the nature of the Board’s decision. Powell v. Dep’t of Defense, 158 F.3d 597, 598 (D.C.Cir.1998). When the Board rules on “procedural or threshold matters” we retain jurisdiction over the appeal. Ballentine v. Merit Sys. Prot. Bd., 738 F.2d 1244, 1247 (Fed.Cir.1984). Because the Board’s determination of the scope of its own jurisdiction is a “procedural or threshold matter,” this court, rather than a district court, reviews the Board’s jurisdictional decision. Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1102 (Fed.Cir.1985); Sloan v. West, 140 F.3d 1255, 1261 (9th Cir.1998).

The Board’s jurisdictional determination here was “procedural” because it did not decide the merits of the discrimination claim, even though it was intertwined with the merits of the discrimination claim. Powell, 158 F.3d at 599 (holding that the Board’s decision regarding voluntariness rested on a “procedural or threshold matter” even if the decision was also “related to the merits” of the discrimination claim); Wall v. United States, 871 F.2d 1540, 1543 (10th Cir.1989) (holding that where the Board determines that an employee’s appeal to the Board is “not appealable” under the statute, review of the Board’s jurisdictional determination lies with the Federal Circuit). Thus, because the Board’s jurisdictional decision rested on a “procedural or threshold matter,” we have jurisdiction over this appeal.

The Board’s appellate jurisdiction is not plenary, but rather is limited to those appeals authorized by statute or regulation. Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1243 (Fed.Cir.1991) (en banc); 5 U.S.C. § 7701(a). Section 7512

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21 F. App'x 906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-department-of-transportation-cafc-2001.