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Jenkins v. Merit Systems Protection Board

United States Court of Appeals, Federal Circuit

January 2, 2019


          Petition for review of the Merit Systems Protection Board in No. DA-0752-16-0080-I-2.

          Aaron Benjamin Frumkin, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, argued for petitioner.

          Tara 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.

          Before Reyna, Wallach, and Taranto, Circuit Judges.



         Petitioner 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).[1] We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We affirm.


         For 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.

         Mr. 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] [20]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.[2]

         In 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. J.A. 21.


         Mr. 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. Jenkins's arguments.

         I. Standard of Review

         We will 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. 1998).

         II. The Improper Removal Claim

         A. Legal Standard

         The 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 ...

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