Cox v. Department of Navy

34 F. App'x 782
CourtCourt of Appeals for the Federal Circuit
DecidedMay 13, 2002
DocketNo. 02-3082
StatusPublished

This text of 34 F. App'x 782 (Cox v. Department of Navy) 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
Cox v. Department of Navy, 34 F. App'x 782 (Fed. Cir. 2002).

Opinion

PER CURIAM.

The petitioner, Edward V. Cox, seeks review of the final decision of the Merit Systems Protection Board (“the Board”) dismissing his appeal for lack of jurisdiction. Cox v. Dep’t of the Navy, No. DC-0752-01-0350-1-1, slip op., (M.S.P.B. June 8, 2001). For the reasons explained below, we affirm,.

I. BACKGROUND

Mr. Cox was a GS-12 Program Analyst with the Morale, Welfare, and Recreation Support Activity, Headquarters, Marine Corps, in Quantico, Virginia. Mr. Cox retired, effective July 1, 1998. On June 29, 1998, Mr. Cox signed a form, an SF-52, Request for Personnel Action, in connection with his retirement. This form states that the retirement was “voluntary and without any coercion,” and that Mr. Cox would receive separation incentive pay in exchange for his decision to retire.

Following his retirement, Mr. Cox filed a formal complaint of age discrimination with the Department of the Navy (“the agency”). The agency issued a final, decision finding that Mr. Cox had not been discriminated against.

[783]*783Mr. Cox appealed the agency’s final decision to the Board on March 7, 2001. On appeal, Mr. Cox contended that his retirement was not voluntary, but rather that he had been constructively removed by being subject to discriminatory and harassing treatment at work that forced him to retire. The Administrative Judge (“AJ”) of the Board properly noted that employee-initiated actions such as Mr. Cox’s retirement are presumed to be voluntary, and therefore outside the scope of the Board’s jurisdiction. Cox v. Dep’t of the Navy, No. DC-0752-01-0350-1-1, slip op., (M.S.P.B. Mar.19, 2001). The AJ therefore issued an Order to Show Cause requiring Mr. Cox to submit evidence and argument sufficient to rebut the presumption of voluntariness, and thereby to establish that his appeal was within the Board’s jurisdiction. Id.

In response to the Order to Show Cause, Mr. Cox submitted a statement containing alleged facts in support of his contention that he did not retire voluntarily, but rather, that the agency coerced him into retiring by engaging in discrimination and harassment that left him no other reasonable option. Specifically, Mr. Cox alleged that his former supervisor, Ms. Garland, engaged in a number of discriminatory and harassing acts, including, among other things, giving Mr. Cox lower performance ratings than he deserved, reassigning certain of his duties to others, yelling at him, excluding him from meetings, and declining to consider his input regarding a hiring decision.

After considering the allegations submitted by Mr. Cox, the AJ issued the Board’s Initial Decision, which dismissed his appeal for lack of jurisdiction without a hearing. Cox v. Dep’t of the Navy, No. DC-0752-01-0350-1-1, slip op., (M.S.P.B. June 8, 2001). The AJ determined that although Mr. Cox had requested a hearing, he failed to allege facts that, if proven, would be sufficient to establish a prima facie case that the Board had jurisdiction over his appeal. Id. The AJ noted that in order to satisfy this standard, the alleged discrimination and harassment must be sufficiently coercive to rebut the presumption of voluntariness. Citing this court’s decision in Terban v. Department of Energy, 216 F.3d 1021, 1024 (Fed.Cir.2000), the AJ stated that the most probative evidence of involuntariness usually involves a relatively short period of time between the allegedly coercive action and the employee’s retirement. Id.

In Mr. Cox’s case, however, the AJ determined that none of the discriminatory and harassing acts alleged by Mr. Cox could rebut the presumption that his retirement was voluntary. This was particularly true, the AJ determined, because the alleged discriminatory and harassing acts all occurred at least one year, and in some instances, many years, before Mr. Cox retired. During the intervening year, Mr. Cox served under a supervisor other than Ms. Garland. Mr. Cox respected his new supervisor, Mr. Taylor, and never alleged that Mr. Taylor discriminated against him or harassed him in any manner. Therefore, the AJ concluded that Mr. Cox failed to identify “circumstances surrounding his decision to retire that might reflect any deprivation of free choice,” and dismissed the appeal for lack of jurisdiction. Id.

Mr. Cox petitioned for review of the Initial Decision by a full panel of the Board. On September 7, 2001, the Board left the Initial Decision undisturbed. Cox, No. DC-0752-01-0350-1-1, slip op., 2001 WL 1090343 (M.S.P.B. Sep.7, 2001). The Board concluded that Mr. Cox had presented no new, previously unavailable evidence, and that the AJ made no error of law or regulation that would affect the outcome of the appeal. Id. Accordingly, [784]*784the Board denied Mr. Cox’s petition for review. Id.

Mr. Cox appeals. We have jurisdiction over this final decision of the Board pursuant to 28 U.S.C. § 1295(a)(9).

II. DISCUSSION

This court’s scope of review over decisions of the Board is limited by statute. This court must affirm the decision unless it 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) (2000); Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340 (Fed.Cir.2001) (citing Terban, 216 F.3d at 1024)).

Whether the Board possessed jurisdiction to adjudicate an appeal is a question of law, which we review de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995). As the AJ noted, an employee must, by preponderant evidence, establish that the Board possesses jurisdiction. See Van Wersch v. Dep’t of Health and Human Servs., 197 F.3d 1144, 1147 (Fed.Cir.1999) (citing Forest, 47 F.3d at 410)).

The jurisdiction of the Board is limited to those actions specifically granted by law, rule, or regulation. 5 U.S.C. § 7701(a) (2000); Antolin v. Dep’t of Justice, 895 F.2d 1395, 1396 (Fed.Cir.1989) (citing Cowan v. United States, 710 F.2d 803, 805 (Fed.Cir.1983)). Employees who voluntarily resign or retire have no right to appeal to the Board. Shoaf, 260 F.3d at 1340-41 (citing Staats v. United States Postal Serv., 99 F.3d 1120, 1123-24 (Fed. Cir.1996)). A decision to resign is presumed to be voluntary, id. (citing Staats, 99 F.3d at 1123; Christie v. United States, 207 Ct.Cl.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Howard D. Cowan v. The United States
710 F.2d 803 (Federal Circuit, 1983)
Oscar S. Antolin v. Department of Justice
895 F.2d 1395 (Federal Circuit, 1989)
Warren S. Forest v. Merit Systems Protection Board
47 F.3d 409 (Federal Circuit, 1995)
Joseph M. Braun v. Department of Veterans Affairs
50 F.3d 1005 (Federal Circuit, 1995)
Lauretta L. Mintzmyer v. Department of the Interior
84 F.3d 419 (Federal Circuit, 1996)
Chester I. Staats v. United States Postal Service
99 F.3d 1120 (Federal Circuit, 1996)
John R. Middleton v. Department of Defense
185 F.3d 1374 (Federal Circuit, 1999)
Paul L. Terban v. Department of Energy
216 F.3d 1021 (Federal Circuit, 2000)
Van Wersch v. Department of Health & Human Services
197 F.3d 1144 (Federal Circuit, 1999)
Shoaf v. Department of Agriculture
260 F.3d 1336 (Federal Circuit, 2001)
Christie v. United States
518 F.2d 584 (Court of Claims, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
34 F. App'x 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-department-of-navy-cafc-2002.