UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JEFFREY A. MELNICK, DOCKET NUMBER Appellant, DC-0752-19-0328-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 9, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffrey A. Melnick , Virginia Beach, Virginia, pro se.
Brittany L. Bishop and Kenneth Rye , Norfolk, Virginia, for the agency.
Patricia Reddy-Parkinson , Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which dismissed his removal claim as moot and his involuntary retirement appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and, except as expressly MODIFIED to address the appellant’s new argument that his retirement was involuntary due to agency misinformation, we AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). The appellant claims for the first time on review that his retirement was involuntary because of agency misinformation. Petition for Review (PFR) File, Tab 1 at 4. An employee’s retirement is presumed to be a voluntary action. Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). However, an involuntary retirement is tantamount to a removal and thus is appealable to the Board. Id. The presumption that a retirement is voluntary can be rebutted by evidence showing that it was the result of agency misrepresentation, coercion, or duress. Id. When there is a claim that an involuntary action resulted from misinformation, an appellant must show the following: (1) that the agency made misleading statements; and (2) that he reasonably relied on the misinformation to his detriment. Id. An appellant is entitled to a hearing on the issue of the Board’s jurisdiction over an appeal of an alleged involuntary retirement only if he makes a nonfrivolous allegation casting doubt on the presumption of voluntariness. Id., ¶ 10. A nonfrivolous allegation of Board jurisdiction is an 3
allegation of fact which, if proven, could establish a prima facie case that the Board has jurisdiction over the matter at issue. Baldwin v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 11 (2008). The appellant on review alleges that he was instructed to cancel his regular retirement and instead apply for disability retirement because he would receive “the better of the two.” PFR File, Tab 1 at 4. He further asserts that the disability retirement he received was “far less than the regular retirement.” Id. He also attaches various retirement documents, email exchanges, and voicemails to his petition for review. 2 PFR File, Tabs 1-2, 6. However, the appellant does not support his assertions with specific allegations of fact that would establish that his retirement resulted from misinformation. His bare assertions, without more, fail to constitute a nonfrivolous allegation that he relied on agency misinformation to his detriment. See Dodson v. U.S. Postal Service, 67 M.S.P.R. 84, 87 (1995) (finding an appellant failed to make a nonfrivolous allegation of involuntary retirement when she failed to make specific assertions which, if proven, would show that her retirement was involuntary based on misinformation); see also Briscoe v. Department of Veterans Affairs, 55 F.3d 1571, 1573 (Fed. Cir. 1995) (“Although an appellant need not prove her entire case before she is entitled to a hearing, the [B]oard may request sufficient evidence to determine if, in the first instance, there is any support for what otherwise might be bald allegations.”). The appellant does not raise any further arguments on review that pertain to the voluntariness of his retirement, and we discern no basis for disturbing the initial decision. Thus, we affirm the initial decision.
2 The appellant submits this evidence for the first time on review. Because the Board’s jurisdiction is always before the Board and may be raised by either party or sua sponte by the Board at any time during a Board proceeding, we consider the new evidence here. Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 5 (2010). Nonetheless, we find that the documents and audio files the appellant has submitted on review do not show that the administrative judge erred in finding that the appellant failed to nonfrivolously allege that his retirement was involuntary. 4
NOTICE OF APPEAL RIGHTS 3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JEFFREY A. MELNICK, DOCKET NUMBER Appellant, DC-0752-19-0328-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 9, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffrey A. Melnick , Virginia Beach, Virginia, pro se.
Brittany L. Bishop and Kenneth Rye , Norfolk, Virginia, for the agency.
Patricia Reddy-Parkinson , Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which dismissed his removal claim as moot and his involuntary retirement appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the
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
following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and, except as expressly MODIFIED to address the appellant’s new argument that his retirement was involuntary due to agency misinformation, we AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). The appellant claims for the first time on review that his retirement was involuntary because of agency misinformation. Petition for Review (PFR) File, Tab 1 at 4. An employee’s retirement is presumed to be a voluntary action. Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). However, an involuntary retirement is tantamount to a removal and thus is appealable to the Board. Id. The presumption that a retirement is voluntary can be rebutted by evidence showing that it was the result of agency misrepresentation, coercion, or duress. Id. When there is a claim that an involuntary action resulted from misinformation, an appellant must show the following: (1) that the agency made misleading statements; and (2) that he reasonably relied on the misinformation to his detriment. Id. An appellant is entitled to a hearing on the issue of the Board’s jurisdiction over an appeal of an alleged involuntary retirement only if he makes a nonfrivolous allegation casting doubt on the presumption of voluntariness. Id., ¶ 10. A nonfrivolous allegation of Board jurisdiction is an 3
allegation of fact which, if proven, could establish a prima facie case that the Board has jurisdiction over the matter at issue. Baldwin v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 11 (2008). The appellant on review alleges that he was instructed to cancel his regular retirement and instead apply for disability retirement because he would receive “the better of the two.” PFR File, Tab 1 at 4. He further asserts that the disability retirement he received was “far less than the regular retirement.” Id. He also attaches various retirement documents, email exchanges, and voicemails to his petition for review. 2 PFR File, Tabs 1-2, 6. However, the appellant does not support his assertions with specific allegations of fact that would establish that his retirement resulted from misinformation. His bare assertions, without more, fail to constitute a nonfrivolous allegation that he relied on agency misinformation to his detriment. See Dodson v. U.S. Postal Service, 67 M.S.P.R. 84, 87 (1995) (finding an appellant failed to make a nonfrivolous allegation of involuntary retirement when she failed to make specific assertions which, if proven, would show that her retirement was involuntary based on misinformation); see also Briscoe v. Department of Veterans Affairs, 55 F.3d 1571, 1573 (Fed. Cir. 1995) (“Although an appellant need not prove her entire case before she is entitled to a hearing, the [B]oard may request sufficient evidence to determine if, in the first instance, there is any support for what otherwise might be bald allegations.”). The appellant does not raise any further arguments on review that pertain to the voluntariness of his retirement, and we discern no basis for disturbing the initial decision. Thus, we affirm the initial decision.
2 The appellant submits this evidence for the first time on review. Because the Board’s jurisdiction is always before the Board and may be raised by either party or sua sponte by the Board at any time during a Board proceeding, we consider the new evidence here. Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 5 (2010). Nonetheless, we find that the documents and audio files the appellant has submitted on review do not show that the administrative judge erred in finding that the appellant failed to nonfrivolously allege that his retirement was involuntary. 4
NOTICE OF APPEAL RIGHTS 3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5
U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any 6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 7
disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.