Middleton v. Dept. of Defense

• Citation: 185 F.3d 1374
• Parties: (Fed. Cir. 1999) JOHN R. MIDDLETON, Petitioner, v. DEPARTMENT OF DEFENSE, Respondent. 98-3409
• Decision Date: 10 August 1999
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1374

185 F.3d 1374 (Fed. Cir. 1999)

JOHN R. MIDDLETON, Petitioner, v. DEPARTMENT OF DEFENSE, Respondent.

98-3409

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

August 10, 1999.

[Copyrighted Material Omitted]

Kristin D. Alden, Passman & Kaplan, P.C., of Washington, DC, argued for petitioner. With her on the brief was Edward H. Passman.

Michael D. Austin, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the breif were David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, and James M. Kinsella, Assistant Director.

Before MICHEL, PLAGER, and RADER, Circuit Judges.

MICHEL, Circuit Judge.

John R. Middleton petitions for review of a final decision of the Merit Systems Protection Board (the "Board"). Middleton v. Department of Defense, No. DC-0752-97-0950-I-1 (M.S.P.B. Aug. 28, 1998). The full Board denied Dr. Middleton's petition for review on August 28, 1998, by operation of law rendering as the final decision of the Board the administrative judge's (the "AJ's") December 24, 1997 initial decision. This decision determined that the Board lacked jurisdiction over Dr. Middleton's appeal. In it he alleged that his retirement from the Department of Defense (the "DOD") was involuntary, and that a settlement agreement he entered into in order to secure recision of a removal decision likewise should be set aside as involuntary. After discussing how the affidavits and other documents submitted by petitioner in response to an Acknowledgment Order failed to establish jurisdiction, or even plead sufficient non-frivolous allegations of involuntariness to warrant a hearing, the Board dismissed the appeal. Given the background circumstances surrounding Dr. Middleton's decision to retire, including the shortness of time for his decision, his serious health problems, and the remote foreign job site, we conclude that Dr. Middleton did make sufficient non-frivolous allegations of coercion and misinformation to warrant an evidentiary hearing. We therefore hold that the Board abused its discretion in denying Dr. Middleton an evidentiary hearing on the issue of the voluntariness of his retirement. Accordingly, we reverse the Board's denial of a hearing, vacate the Board's finding of no jurisdiction, and remand for an evidentiary hearing to properly decide the issue of voluntariness.

BACKGROUND

On June 4, 1997, Dr. Middleton retired from the Department of Defense Dependent Schools (the "DODDS"), effective August 1, 1997, after more than thirty-five years of service, in order to preserve certain benefits and avoid removal for misconduct pursuant to a May 30, 1997 decision letter. The misconduct concerned a school piano. At the time of his retirement, Dr. Middleton held the position of Assistant Principal for the DODDS at the high school located at the United States Air Force base at Incirlik, Turkey.

In early February 1997, Dr. Middleton took home a piano from the local DODDS elementary school, believing, he alleges, the instrument to be abandoned or surplus. Although he conferred first with the elementary school clerk regarding his intention to remove the piano, Dr. Middleton failed to seek or obtain the necessary approval of the elementary school principal. Dr. Middleton asserts that the clerk told him the piano was not being used, was not on the elementary school property book, and that he, the clerk, would prepare the necessary paperwork to remove the piano from United States government property accounts. According to the government, the piano was used for Sunday school classes, and was listed on the high school property book. Furthermore, the supply clerk later wrote a statement maintaining he never gave Dr. Middleton permission to take the piano.

On February 19, 1997, Dr. Middleton was ordered to return the piano, which he did the following day. While the piano was in his possession, Dr. Middleton had spent $ 200 repairing it.

On February 27, 1997, Dr. Middleton explained in writing to his superiors that he had thought he could lawfully take the piano, because he believed that it was surplus or abandoned property and because he believed the supply clerk had given him permission to do so. He received no response. Why, the record does not reveal. Nothing further happened for about three months.

According to Mrs. Middleton, Dr. Middleton's wife, "bad blood" had long existed between Samuel D. Menniti, the high school principal, and Dr. Middleton. In her affidavit, she states that Mr. Menniti treated her husband as an "underling of the lowest rank," that he was jealous of Dr. Middleton's academic achievements and career, and that Mr. Menniti felt "threatened" professionally.

In any event, suddenly on May 16, 1997, Dr. Middleton received notice of his proposed removal from government service from Mr. Menniti. On May 30, 1997, Dr. Thomas Ellinger, superintendent of the DODDS's Turkey district schools, the deciding official, executed a notice of final decision to remove Dr. Middleton, effective June 13, 1997, and delivered it to him on June 2, 1997. The notice stated that Dr. Middleton should begin to make arrangements to leave the military installation and to surrender his identification and ration cards by June 13, 1997. Dr. Middleton asked Dr. Ellinger to reconsider his decision, but he refused. Dr. Middleton also requested a time extension, citing the bureaucratic difficulties of wrapping up his affairs in such a short time period. Dr. Ellinger refused to grant the requested time extension, or indeed any time extension.

Two days later, on June 4, 1997, Dr. Middleton submitted a Standard Form (SF) 52, requesting voluntary retirement effective August 1, 1997, so that he could "receive full retirement benefits after serving in DODDS for many years."¹

On June 12, Dr. Middleton entered into a settlement agreement in the form of a memorandum of understanding (an "MOU"), in which the DODDS agreed to rescind its removal action if he completed his resignation. Dr. Middleton contended before the Board that his signature on the MOU was obtained by coercion, duress, and misinformation.

In support of his argument that his retirement was involuntary, Dr. Middleton submitted a sworn affidavit stating, as summarized by the Board, that:

(1) he received the May 30, 1997, decision letter on June 2, 1997, which informed him that his removal would be effective on June 13, 1997, only eleven days after he received the decision letter; (2) it became clear to him that, as a result of the termination, he would have had to leave the military post and the country within eleven days, which would have required an impossible series of administrative tasks, including, but not limited to terminating his rental agreement, arranging for clearing the military installation, and arranging for customs clearance; (3) he pleaded for an extension of time to deal with these matters, but Dr. Ellinger refused; (4) Dr. Ellinger told the appellant that he had but one alternative, to retire, in which case he could remain on base until August 1, 1997; (5) he was also told that if he did not retire, the removal action would be immediate and result in the loss of both his and his wife's life insurance and health benefits (benefits which were critical to [Dr. Middleton] because he had been diagnosed with cancer and was recovering from broken ribs and a gall-bladder operation).

Middleton v. Department of Defense, DC-0752-97-0950-I-1, slip op. at 2 (M.S.P.B. Dec. 24, 1997). The DOD submitted no affidavits or other evidence contradicting the factual assertions of Dr. Middleton's submissions.

On appeal to this court, Dr. Middleton argues that the Board's determination that his retirement was voluntary, and, thus, that his appeal fell outside its jurisdiction, was not in accordance with law, obtained without procedures required by law or regulation, namely an evidentiary hearing, and not supported by substantial evidence. Specifically, Dr. Middleton argues that, in the various submissions he filed, he made non-frivolous allegations in support of his claim that his retirement resulted from duress, coercion, and misinformation by the DODDS as to his right to challenge the voluntariness of his retirement. In his briefs, he asks us to vitiate his retirement and the MOU and reinstate him. The sole relief he requested at oral argument, however, was a remand for an evidentiary hearing.

We have jurisdiction under 28 U.S.C. 1295(a)(9) (1994).

DISCUSSION

I.

The Board's jurisdiction is limited to adverse personnel actions expressly made appealable to it by law, rule, or regulation. See 5 U.S.C. 7701(a) (1994); Forest v. Merit Sys. Protection Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). Although retirements and resignations are not so designated, if shown to be involuntary they are treated as constructive removals and thus within Board jurisdiction. See Mintzmyer v. Department of Interior, 84 F.3d 419, 423 (Fed. Cir. 1996). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law, which we review de novo. See King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996).

One of this court's predecessors, the United States Court of Claims, laid down a clear, concise standard for determining the voluntariness of a resignation in Christie v. United States, 207 Ct. Cl. 333, 518 F.2d 584 (Ct. Cl. 1975).² This case established the following three-part test for determining when coercion or duress vitiates an apparently voluntary resignation: "(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party." 518 F.2d at 587. This test is an objective, rather than subjective one; an employee's subjective feelings are irrelevant. The employee must present allegations of fact which, if proven, establish that...