CHARLES T. JENKINS, JR., Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent
Petition for review of the Merit Systems Protection Board in
Benjamin Frumkin, Gibson, Dunn & Crutcher LLP, Los
Angeles, CA, argued for petitioner.
Jean Kilfoyle, Office of the General Counsel, Merit Systems
Protection Board, Washington, DC, argued for respondent. Also
represented by Tristan Leavitt, Katherine Michelle Smith;
David Pehlke, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC.
Reyna, Wallach, and Taranto, Circuit Judges.
WALLACH, CIRCUIT JUDGE
Charles T. Jenkins, Jr. seeks review of a Merit Systems
Protection Board ("MSPB") final decision dismissing
his appeal for lack of jurisdiction. See Jenkins v.
Dep't of the Army, No. DA-0752-16-0080-I-2, 2017 WL
1209626 (M.S.P.B. Mar. 31, 2017) (J.A. 1-28). We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).
nearly thirty-three years, Mr. Jenkins was employed by the
U.S. Department of the Army ("Army"), and prior to
his retirement, worked as a Supervisory Army Community
Services ("ACS") Division Chief. J.A. 71. From
August 2010 to January 2012, Mr. Jenkins continually failed
performance reviews and at one point served a three-day
suspension in connection with submitting "an ACS
Information Paper" to a higher command without routing
and gaining the necessary approval through his first-level
supervisor. See J.A. 400-06. As a result of his
reviews, Mr. Jenkins was put on a Performance Improvement
Plan ("PIP"). See J.A. 407-14. After
notifying Mr. Jenkins that he failed his PIP, see
J.A. 163, his first- level supervisor asked him whether he
would be interested in moving to a nonsupervisory position at
the same grade and pay level, J.A. 206. Mr. Jenkins refused.
J.A. 119. In February 2012, Mr. Jenkins's first-level
supervisor proposed his removal for unacceptable performance.
J.A. 38-46 (Notice of Proposed Removal). After receiving the
Notice of Proposed Removal, but before he was officially
removed by the Army, Mr. Jenkins sent an email to his
first-level supervisor stating that "[e]ffective 31
March 2012 I will retire." J.A. 37.
Jenkins submitted written responses challenging the basis for
his removal, however, after "consider[ation] and review[
of his] written reply," the Army issued a Final Removal
Decision informing Mr. Jenkins that he would be removed from
service effective April 1, 2012. See J.A. 237-39.
That same day, March 21, 2012, the Army issued Mr. Jenkins a
"Cancellation of Decision on Removal" stating
"[Mr. Jenkins is] scheduled to retire from federal
service effective 31 March 2012" and "[i]f [he]
retire[s] from federal service on 31 March 2012, this
memorandum will serve as revocation and cancellation
effective 31 March 2012." J.A. 47. Following the Final
Removal Decision, Mr. Jenkins indicated on a Standard Form-50
("SF-50") that he intended to retire pursuant to
his previously submitted retirement application, J.A. 241-43,
stating "voluntary retirement effective 31 Mar[ch]
12" as his "[r]easons for
[r]esignation/[r]etirement" J.A. 241. It is undisputed
that the "revocation and cancellation . . . of the
[Notice of Proposed Removal]" took effect upon that
March 31, 2012 retirement. J.A. 47 (Cancellation of Decision
on Removal). Subsequently, Mr. Jenkins appealed to the MSPB
alleging that his retirement was involuntary because the
agency "proposed to remove" him if he did not
retire. J.A. 31-35.
March 2017, the MSPB "dismissed [Mr. Jenkins's
appeal] for lack of jurisdiction." J.A. 21.
Specifically, the MSPB found that it lacked jurisdiction over
Mr. Jenkins's challenge to the Army's proposed
removal because "the [Army] rescinded the removal
decision upon [Mr. Jen-kins]'s retirement" and
nothing in the record indicated he sought to withdraw his
retirement prior to the effective removal date. J.A. 6;
see J.A. 336-38 (providing argument and evidence, by
the Army, that the March 21, 2012 Decision of Proposed
Removal issued "26-days after [Mr. Jenkins] filed an
application of retirement"). The MSPB also found it
lacked jurisdiction over his involuntary retirement claim
because Mr. Jenkins failed to make a non-frivolous claim.
Jenkins contends the MSPB erred by finding it lacked
jurisdiction over his claim because: (1) "the Army
issued [the] [F]inal [R]emoval [D]ecision before Mr. Jenkins
retired," Pet'r's Br. 17 (capitalizations
modified); see id. at 17-25, and (2) its decision
that his retirement was voluntary was not supported by
substantial evidence due to the fact that his retirement was
"based on misinformation" and "was obtained
through coercion," id. at 26, 29; see
id. at 25-33. We first discuss the relevant standards of
review and legal standards, and then address each of Mr.
Standard of Review
uphold a decision of the MSPB unless it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law" or "unsupported by substantial
evidence." 5 U.S.C. § 7703(c)(1), (3) (2012). We
review whether the MSPB has jurisdiction over an appeal de
novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d
905, 909 (Fed. Cir. 2008). "Findings of fact underlying
the [MSPB]'s jurisdictional decision are reviewed for
substantial evidence." Bledsoe v. Merit Sys. Prot.
Bd., 659 F.3d 1097, 1101 (Fed. Cir. 2011) (internal
quotation marks and citation omitted). "Substantial
evidence is more than a mere scintilla of evidence, but less
than the weight of the evidence." Jones v. Dep't
of Health & Human Servs., 834 F.3d 1361, 1366 (Fed.
Cir. 2016) (internal quotation marks and citations omitted).
"The petitioner bears the burden of establishing error
in the [MSPB]'s decision." Harris v. Dep't
of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir.
Improper Removal Claim
MSPB's "jurisdiction is limited to those matters
over which it has been given jurisdiction by law, rule, or
regulation." 5 C.F.R. § 1201.3(a). The petitioner
must establish by preponderant evidence that the MSPB has
jurisdiction over his appeal. 5 C.F.R. §
1201.56(b)(2)(i)(A). Generally, the MSPB has jurisdiction
over appeals of removals of non-probationary employees, based
on unacceptable performance. See 5 C.F.R. §
1201.3(a)(5); 5 U.S.C. § 4303(e). "If an appealable
action is canceled or rescinded by an agency, any appeal from