Parrott v. Merit Systems Protection Bd.

Decision Date12 March 2008
Docket NumberNo. 2007-3119.,2007-3119.
Citation519 F.3d 1328
PartiesJeffrey W. PARROTT, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and Department of Homeland Security, Intervenor.
CourtU.S. Court of Appeals — Federal Circuit

Jeffrey A. Gauger, Acting Associate General Counsel, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With him on the brief were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel. Of counsel was Sara B. Rearden, Attorney.

Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of

Justice, of Washington, DC, argued for intervenor. On the brief were Jeanne E. Davidson, Director, Todd M. Hughes, Deputy Director, and Claudia Burke, Attorney.

Before SCHALL, BRYSON, and MOORE, Circuit Judges.

SCHALL, Circuit Judge.

Jeffrey W. Parrott is a former employee of the Transportation Security Administration ("TSA" or "agency"), Department of Homeland Security. He resigned from his position with TSA on May 27, 2005. Subsequently, he appealed to the Merit Systems Protection Board ("Board"), alleging that his resignation was involuntary and therefore constituted a constructive removal. Following a hearing, the administrative judge ("AJ") to whom the appeal was assigned issued an initial decision in which he held that Mr. Parrott had failed to establish that his resignation was involuntary. Parrott v. Dep't of Homeland Sec., No. DC-0752-06-0058-I-1, slip op. at 16 (M.S.P.B. Feb. 22, 2006) ("Initial Decision"). He therefore dismissed the appeal for lack of jurisdiction. Id. The AJ's initial decision became the final decision of the Board on December 4, 2006, when the Board denied Mr. Parrott's petition for review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). Parrott v. Dep't of Homeland Sec., 104 M.S.P.R. 171 (2006) ("Final Decision"). Mr. Parrott petitions for review, and the Department of Homeland Security has intervened. We affirm.

BACKGROUND
I.

From February of 2002 to October of 2005, Mr. Parrott was employed by TSA in North Carolina at Raleigh-Durham Airport ("RDU"). Initial Decision at 2.1 From July of 2002 until the end of his employment, he held the position of Assistant Federal Security Director. Id. During the relevant period of time, Ron Juhl was the Federal Security Director at RDU and Mr. Parrott's supervisor. Id.

Following certain security breaches at RDU and various complaints to TSA headquarters by Mr. Parrott about Mr. Juhl, TSA conducted a "site visit," or preliminary inquiry, at RDU in January of 2005. Id. This was followed by a full-scale management inquiry in March of 2005. Id. In due course, the team conducting the inquiry prepared a management inquiry report, which was referred to the TSA Professional Review Board ("PRB"). Id. at 2-3. The PRB is authorized to review alleged incidents of misconduct or mismanagement involving senior officials of TSA. Id. at 3.

On April 22, 2005, while the PRB was considering the management inquiry report, PRB Chair Charles Kielkopf sent Mr. Parrott an email.2 Id. In the email, Mr. Kielkopf stated that it had been determined that, "in order to properly address issues raised in the management inquiry, formal PRB involvement was appropriate." Id. Mr. Kielkopf further stated: "This notification is simply to inform you that the PRB will soon meet on serious issues that relate to you and your employment with TSA. Once the PRB meets you will be notified of the decision of the Board." Id. In due course, the PRB voted to propose Mr. Parrott's removal based upon the charges of "Unacceptable leadership performance" and "Violation of Standard Operating Procedures." Id. at 4.

On May 27, 2005, at approximately 10:00 a.m., Thomas Mulhern, TSA's Program Executive Officer for Employee Relations; Dario Compain, TSA's Southeast Area Director; and Kathleen Connon, a TSA attorney-advisor, met with Mr. Parrott at RDU. Id. Mr. Compain began the meeting by stating that TSA had decided that Mr. Parrott and Mr. Juhl should be relieved of their duties immediately.3 Id. at 4-5. Mr. Compain also stated that PRB had decided to issue a notice of proposed removal to Mr. Parrott and that he was prepared to present the notice that day. Id. Mr. Compain explained the nature of the charges in the notice and indicated that a security breach in which 200 unscreened bags were placed on airplanes at RDU served as at least partial justification for the proposed removal action. Id. at 5. Mr. Parrott asked to read the notice of proposed removal. Id. Mr. Compain refused, however, stating that Mr. Parrott could only read the notice when it was formally served on him. Id. After Mr. Compain left the meeting, Mr. Mulhern explained to Mr. Parrott that he had three options: (a) receive the notice of proposed removal and later resign in lieu of termination; (b) respond to the removal notice before Theresa Bertucci, an Assistant Administrator for TSA, who would be the deciding official; or (c) resign that day for "personal reasons." Id. at 5-6. Ms. Connon explained the PRB process to Mr. Parrott, as well as the process involved in an appeal to the Board. Id. at 6. Mr. Parrott then had approximately one hour alone to make phone calls and consider his options. Id. During this period, he unsuccessfully sought to contact his attorney. Id. at 13.

Eventually, Mr. Parrott decided to accept the option of resigning for personal reasons. In that regard, Mr. Mulhern reviewed with him a sample agreement and discussed with him the terms of his contemplated resignation (such as effective date, matters relating to annual and administrative leave, and information TSA would provide to prospective employers). Id. at 6. Eventually, Mr. Mulhern gave Mr. Parrott a draft agreement to review. Id. at 7. After certain changes were made, Mr. Mulhern provided Mr. Parrott with the final agreement, which was titled "SETTLEMENT AGREEMENT AND RELEASE." Id. Before Mr. Parrott signed the agreement, Mr. Mulhern asked him if he was sure he wanted to resign. Id. Mr. Parrott responded that he was and signed the agreement. Id. The agreement provided that Mr. Parrott and TSA were voluntarily entering into the agreement in order to settle all claims between them; that Mr. Parrott would resign in lieu of being subject to other administrative action; that the agreement was reached freely and voluntarily; and that Mr. Parrott waived all appellate rights, including the right to appeal to the Board. Id. Mr. Parrott signed the settlement agreement around 2:00 p.m. and submitted his letter of resignation. Id. In the letter, Mr. Parrott stated that he was resigning from TSA for personal reasons. Roughly four hours elapsed between Mr. Parrott's being informed of the proposed removal action and the submission of his resignation.

On June 18, 2005, Mr. Parrott filed an appeal with the Board, alleging that his resignation was involuntary and therefore constituted a constructive removal. Id. The appeal was dismissed as premature, however, because, pursuant to his agreement with TSA, Mr. Parrott's resignation was not effective until September 30, 2005. Id. at 1, 7. Mr. Parrott re-filed his appeal on October 27, 2005, again alleging an involuntary resignation and constructive removal. Id. at 7.

II.

The scope of the Board's subject matter jurisdiction is defined by 5 U.S.C. § 7701(a), which provides in relevant part that "[a]n employee . . . may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation." Section 7513(d) of Title 5 grants the Board jurisdiction to hear appeals of certain enumerated adverse actions taken by an agency against an employee. The enumerated adverse actions include removals. 5 U.S.C. § 7513(d)(1) (2000); 5 C.F.R. § 1201.3(a)(2) (2007). A voluntary action by an employee—such as a resignation—lies outside the Board's jurisdiction. Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1328-29 (Fed.Cir.2006) (en banc). However, the Board does have jurisdiction "over an appeal filed by an employee who has resigned . . . if . . . his or her resignation . . . was involuntary and thus tantamount to forced removal." Shoaf v. Dep't of Agric., 260 F.3d 1336, 1341 (Fed.Cir.2001).

Pursuant to 5 C.F.R. § 1201.56(a)(2), "[t]he appellant has the burden of proof, by a preponderance of the evidence, with respect to . . . [i]ssues of jurisdiction." See 5 U.S.C. § 7701(a) ("Appeals shall be processed in accordance with regulations prescribed by the Board."). Thus, before the Board, Mr. Parrott had the burden of establishing by a preponderance of the evidence that his resignation was involuntary. An employee may demonstrate that his or her resignation was involuntary by demonstrating that the resignation was the product of coercion. Garcia, 437 F.3d at 1329. Coercion is demonstrated by showing that the agency essentially imposed the terms of the resignation on the employee, that the employee had no alternative to resignation, and that the resignation was a result of improper acts by the agency. Id. at 1328; Staats v. United States Postal Serv., 99 F.3d 1120, 1124 (Fed.Cir.1996). In a case involving an alleged constructive removal, "once a claimant makes non-frivolous claims of Board jurisdiction, namely claims that, if proven, establish the Board's jurisdiction, then the claimant has a right to a hearing." Garcia, 437 F.3d at 1344. Thereafter, "[a]t the hearing, the claimant must prove jurisdiction by a preponderance of the evidence. If the Board determines that the claimant [failed] to prove jurisdiction by a preponderance of the evidence, then the Board does not have jurisdiction and the case is dismissed for lack of jurisdiction." Id.

Addressing the jurisdictional issue presented by Mr. Parrott's...

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