Apodaca v. Merit Systems Protection Board, 061010 FEDFED, 2009-3293
| Opinion Judge | Per Curiam. |
| Party Name | ANTONIO M. APODACA, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. |
| Attorney | Antonio M. Apodaca, of Miami, Florida, pro se. Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief were James M. Eisenmann, General Counsel, and Keisha Dawn Bell, Deputy General Counsel. |
| Judge Panel | Before Lourie, Friedman and Moore, Circuit Judges. |
| Case Date | June 10, 2010 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Federal Circuit |
This disposition is nonprecedential.
Petition for review of the Merit Systems Protection Board in AT0752090223-I-1.
Antonio Apodaca appeals from the final decision of the Merit Systems Protection Board (the "Board") dismissing his appeal for lack of jurisdiction. Apodaca v. Dep't of Homeland Sec., No. AT-0752-09-0223-I-1 (M.S.P.B. July 24, 2009) ("Final Order"). Because the Board's decision that Apodaca retired voluntarily is supported by substantial evidence, we affirm.
Background
Apodaca was employed by the Department of Homeland Security as a Deputy Comptroller for the Coast Guard's Integrated Support Command ("ISC") in Miami, Florida. In November 2008, Apodaca's supervisor and the Comptroller for ISC, Anthony Alarid, ordered Apodaca to move his office from its current location to a location adjacent to Alarid's office. Alarid set a deadline of December 1, 2008 for Apodaca to change his office. Apodaca refused to change offices, informing Alarid that he would rather retire than change his office. Apodaca then told Alarid that he would retire effective January 3, 2009. However, following further discussions between the two, Apodaca told Alarid that he would retire on November 30, and that November 20 would be his last day at work as he intended to take leave thereafter. Alarid informed his Command Staff Advisor ("CSA") of Apodaca's intentions by e-mail.
On November 20, 2008, Apodaca cleaned his office, shredded his personal writing pads, and disposed of files stored in his office. That afternoon, Alarid collected Apo-daca's government identification badge and office keys from him. On December 1, 2008, Apodaca submitted his retirement request form SF-52 to ISC, denoting an effective retirement date of November 30, 2008. On the SF-52, Apodaca stated the reason for his retirement as the "imposition of constructive discharge conditions by the management."
On December 30, 2008, Apodaca filed an appeal to the Merit Systems Protection Board, claiming that his retirement was involuntary. On March 9, 2009, the assigned administrative judge held a jurisdictional hearing in Miami, Florida, at which both Alarid and Apodaca testified as to the circumstances surrounding Apodaca's retirement. The administrative judge found that Apodaca had retired voluntarily and dismissed the appeal for lack of jurisdiction. The Board denied Apodaca's petition for review of the initial decision on July 24, 2009, and the administrative judge's decision became the final decision of the Board. Apodaca timely appealed the Board's final decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
Discussion
The scope of our review in an appeal from the Board's decision is limited. We can only set aside the Board's decision if it was "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). We review the Board's jurisdiction without deference. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). However, "we are bound by the AJ's factual determinations unless those findings are not supported by substantial evidence." Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." McEn-tee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005) (quotation marks omitted).
Apodaca challenges the Board's decision that he failed to prove by a preponderance of the evidence his allegations of coercion and duress by the agency so as to allow the Board to exercise jurisdiction over his appeal. He argues...
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