934 F.2d 1240 (Fed. Cir. 1991), 89-3359, Cruz v. Department of Navy

Docket Nº:89-3359.
Citation:934 F.2d 1240
Party Name:Julio M. CRUZ, Petitioner, v. DEPARTMENT OF the NAVY, Respondent.
Case Date:April 30, 1991
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1240

934 F.2d 1240 (Fed. Cir. 1)

Julio M. CRUZ, Petitioner,

v.

DEPARTMENT OF the NAVY, Respondent.

No. 89-3359.

United States Court of Appeals, Federal Circuit

April 30, 1991 [*]

Page 1241

Phillip R. Kete, of Takoma Park, Md., submitted for petitioner.

Russell B. Kinner, of the Commercial Litigation Branch, Dept. of Justice, Washington, D.C., submitted for respondent. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, and Thomas W. Peterson. Of counsel was Kenneth J. Densmore, Office of the Gen. Counsel, Dept. of the Navy.

Before NIES, Chief Judge, RICH, Circuit Judge, SKELTON, Senior Circuit Judge, and MARKEY, NEWMAN, ARCHER, MAYER, MICHEL, PLAGER, LOURIE, CLEVENGER, and RADER, Circuit Judges.

MARKEY, Circuit Judge.

DECISION

Julio M. Cruz (Cruz) appeals from a Merit Systems Protection Board (Board) order granting the Navy's motion to dismiss his appeal. We affirm.

BACKGROUND

Cruz was employed as an Education Services Specialist by the Navy. On January 29, 1988, the Navy sent him a Notice of Proposed Removal. The Notice included 14 paragraphs listing specific instances of insubordination and unsatisfactory performance of a critical performance standard occurring between 23 September and 7 December, 1987. The Notice set forth Cruz' right to reply orally and in writing, tendered time off to prepare a reply, noted that it was only a proposal, and said the proposed removal action, "if found warranted", would not be taken before 30 days had passed and Cruz had received a final decision letter.

On February 9, 1988 Cruz filed a rebuttal in which he discussed the listed acts of insubordination, denying some, admitting some, and giving his reasons for some.

On February 16, 1988, Cruz resigned "effective March 1, 1988."

On February 22, 1988, a Navy Employee Relations Specialist sent a memo to Cruz, advising that whenever there is any indication that a resignation may have been submitted involuntarily (Cruz' resignation had referred to "duress"), the Navy's policy was to permit withdrawal. The memo urged withdrawal, pointing out that Cruz' personnel records would otherwise reflect that he had resigned on receipt of a removal proposal and referring to Cruz' appeal rights if he withdrew his resignation and an adverse action were taken.

On February 23, Cruz responded with a memo in which he reaffirmed his resignation as of March 1, 1988 and requested that a final decision be rendered on the proposal to remove. Cruz expressed concern for the effect on future employment of an indication on his records that he resigned because his "removal for cause was imminent". If the final decision should result in an adverse action, Cruz said he would appeal to the Board. Cruz wrote "Should no adverse action be rendered then I request that my personnel records reflect an unconditional resignation".

In a phone call of February 26 and a confirming memo of February 29, the Navy personnel specialist again informed Cruz that his resignation precluded issuance of a final decision and again reminded Cruz of his option to retract his resignation and receive a final decision. Cruz instructed the personnel specialist to proceed with the processing of his resignation. The Navy did so, separating Cruz by reason of his resignation effective 1 March 1988.

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On July 28, 1988, Cruz appealed to the Board and the AJ granted a hearing. The Navy moved to dismiss for lack of jurisdiction. On November 25, 1988, after a hearing, the Administrative Judge (AJ) found: the Navy had reasonable grounds for proposing Cruz' removal; the Navy firmly believed the charges would be substantiated; far from suggesting or imposing any terms on Cruz' resignation, the Navy twice invited him to withdraw it; Cruz' decision to resign, rather than contest a removal, was not coerced or caused by Navy deception or by any improper act or omission of any Naval person; there were reasonable grounds for charging that Cruz was insubordinate and disrespectful on numerous occasions, repeatedly confronting his supervisor on matters of her authority and refusing to comply with her directives and guidance; without permission or authority, Cruz tried to get a private citizen discharged as a campus representative; and the Commanding Officer of the Naval Air Station requested Cruz' commanding officer to replace Cruz in view of documented complaints from persons outside the chain of command. The AJ rejected Cruz' allegation that the reason the agency filed the charges was that it was acting in reprisal for his EEO complaints, finding that his removal was proposed for appropriate, identified reasons and that Cruz had failed to establish a causal connection between his EEO complaints and the proposal to remove him.

Cruz petitioned the Board for review, contending that (1) the Navy committed harmful procedural errors; (2) the AJ was biased; (3) the AJ erred in finding no coercion; and (4) the AJ erred in finding that the agency's proposal to remove him was not made in reprisal for his filing EEO complaints. The Board denied the petition for failure to meet the criteria for review, 40 M.S.P.R. 683, and went on to hold that: (a) there was no basis for review of contention (1) because Cruz failed to establish that his resignation constituted an appealable action; (b) there was no evidence of bias; (c) the AJ did not err in finding lack of coercion; and (d) the AJ should not have reached Cruz' reprisal assertion made in connection with his proposed removal because 5 U.S.C. Sec. 2302(b) (making reprisal a prohibited personnel practice) is not an independent source of Board jurisdiction. The Board pointed out that an employee must establish subject matter jurisdiction before the Board may review claims based on such practices, citing Wren v. Department of the Army, 2 MSPB 174, 2 M.S.P.R. 1, 2 (1980) aff'd sub nom. Wren v. Merit Systems Protection Board, 681 F.2d 867, 871-73 (D.C.Cir.1982). The Board then distinguished its action in Durden v. Department of the Navy, 18 M.S.P.R. 373, 376 (1983), where it found Durden's retirement involuntary because handicap discrimination was the sole reason for a threatened removal, and was intertwined with the Board's jurisdiction, i.e., with voluntariness of Durden's resignation. The Board said that reprisal, even if true, could not have been the sole reason here in light of the reasons residing in the AJ's findings that Cruz was disobedient, disrespectful, and insubordinate. Finding that the appeal is not a mixed case, the Board agreed with the AJ that Cruz was therefore not entitled to appeal to the EEOC and a District Court. Accordingly, the Board let stand the AJ's dismissal, vacating only that part of the AJ's decision relating to Cruz' assertion that reprisal was the reason charges were filed.

ISSUE

Whether the Board lacked jurisdiction over Cruz' appeal.

I. Procedural History in This Court

In the now vacated opinion, the panel majority described this as a "mixed case", which it defined as "one involving an appealable action and a discrimination issue". Citing Williams v. Department of the Army, 715 F.2d 1485 (Fed.Cir.1983), and 5 U.S.C. Sec. 7702, and expressing concern that Cruz might otherwise be denied court review of his "discrimination claim", the panel would have remanded the case to the Board with instructions to decide "the discrimination issue". Though the panel said it "reversed" the Board, it did not specify

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the nature of or describe the "appealable action" it thought present and it did not challenge the Board's finding that Cruz' resignation was not the result of coercion, deception or the like. Nor did the panel discuss the question of whether, once it found Cruz' February 16, 1988 resignation voluntary, and that there was thus no appealable action over which it had jurisdiction, the Board had jurisdiction to proceed further to decide a claim not within its assigned jurisdiction.

This court accepted the Navy's suggestion for in banc consideration of this question:

Whether an allegation of title VII discrimination presented by a former employee expands the jurisdiction of the Merit Systems Protection Board to decide that discrimination issue where the board had already determined that it lacked jurisdiction under 5 U.S.C. Sec. 7512 because the former employee had resigned voluntarily.

We here answer that question in the negative.

II. Underlying Facts

As will be clear from what follows, we hold that the Board's decision denying jurisdiction was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 7703(c). With respect to the underlying facts, we agree with the Board that: (1) the Navy established reasonable grounds for proposing Cruz' removal; (2) the Navy firmly believed the charges would be substantiated; (3) the Navy imposed no terms on Cruz' resignation, made no misrepresentations, and twice invited a retraction that would have preserved Cruz' appeal rights; (4) Cruz was insubordinate, disobedient, and disrespectful; (5) Cruz' resignation was not coerced; and (6) Cruz' assertions of bias and denial of due process are without merit.

III. Jurisdiction

As the AJ and the Board recognized, the sole issue in this case is whether the Board had jurisdiction over Cruz' appeal to it.

The Board has only that jurisdiction conferred on it by Congress. Thomas v. United States, 709 F.2d 48, 49 (Fed.Cir.1983). The Board's limited jurisdiction as here applicable is set by a statute, 5 U.S.C. Sec. 7512 2, which grants the Board jurisdiction to hear and determine challenges to specific adverse actions of agencies, including removals and four other adverse actions not here involved. 3 The sole...

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