Dumas v. Merit Systems Protection Bd.
| Decision Date | 25 April 1986 |
| Docket Number | No. 85-2134,85-2134 |
| Parties | James W. DUMAS, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Clement T. Cooper, Washington, D.C., argued, for petitioner.
Stephanie Conley, Merit Systems Protection Bd., Washington, D.C., argued, for respondent; with her on brief were Evangeline W. Swift, Gen. Counsel, Mary L. Jennings, Associate Gen. Counsel for Litigation and Marsha E. Mouyal, Reviewer for Litigation.
Before BALDWIN, Circuit Judge, COWEN, Senior Circuit Judge, and NEWMAN, Circuit Judge.
James W. Dumas appeals the decision of the Merit Systems Protection Board (MSPB) that summarily dismissed his appeal on the basis that he had not sustained his burden of proof on the issue of the Board's jurisdiction. We vacate the decision, and remand for an evidentiary hearing on the question of jurisdiction.
On May 25, 1983 Mr. Dumas received a decision letter from the Department of Agriculture (agency) stating that he would be removed from the federal service on June 3, 1983 for unacceptable performance, and advising him of his right to appeal to the MSPB within twenty days of the effective date of the action. On June 2, 1983 petitioner signed and delivered to the agency's personnel officer Standard Form 52, the standard form for an employee's resignation and other purposes. In the space provided for the employee to state his reason for resigning, Mr. Dumas had crossed out the word "resignation" and had written "retirement", adding:
Request retirement. Retirement is involuntary as a result of Notice of Removal issued by USDA dated May 25, 1983; with effective date of June 3, 1983. Notice and action is subject to Appeal before MSPB.
In the space on the form for the employee to state the effective date of the resignation, Mr. Dumas again crossed out "resignation" and wrote that his "retirement" would be effective "3 hours after BOB [beginning of business] June 3, 1983". Mr. Dumas explains that the agency's personnel officer would not accept the form without the word "resignation", so Mr. Dumas wrote "resignation/retirement" where he had previously written "retirement". Four days later Mr. Dumas filed a "Change Action Notice". This document shows in the space headed "Description" the words "Resignation--ILIA", and repeats his previous statements concerning involuntary retirement and his reservation of appeal rights. The agency processed the resignation, and did not treat the separation as an adverse removal action.
On June 6, 1983 the MSPB received Mr. Dumas' appeal from the removal action, signed on June 2, 1983, one day before the effective date of his "resignation/retirement". The agency moved to dismiss the appeal on the basis that Mr. Dumas had voluntarily resigned, and by order to show cause both sides provided written argument and documentation on the issue. The presiding official viewed the issue to be whether Mr. Dumas had "presented a non-frivolous allegation that his resignation/retirement was wrongfully coerced by the agency", citing McGowan v. International Communications Agency, 7 MSPB 411, 7 M.S.P.R. 569 (1981). On the written record, she concluded that Mr. Dumas had failed to raise a non-frivolous allegation of involuntariness and dismissed his appeal. The MSPB subsequently denied his petition for review, for failure to meet the criteria of 5 C.F.R. Sec. 1201.115.
The dispositive issue is whether Mr. Dumas had made a "non-frivolous allegation" of involuntariness. In deciding this threshold question the presiding official looked at not only Mr. Dumas' allegations, but at the counter-allegations of the agency, all as presented in the documentary record. In sum, the presiding official weighed evidence, resolved conflicting assertions, and found facts, from which the official concluded that involuntariness had not been proven by Mr. Dumas.
However, all that was required at that threshold stage was that a non-frivolous allegation be made: that is, did Mr. Dumas allege facts which if proven could make a prima facie case of involuntariness? Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed.Cir.1985); cf. Stokes v. Federal Aviation Administration, 761 F.2d 682, 685-86 (Fed.Cir.1985). Such an allegation can, we agree with the agency, be disposed of summarily on a documentary record in appropriate cases. See Manning v. Merit Systems Protection Board, 742 F.2d 1424 (Fed.Cir.1984). But, if the alleged facts are sufficient to support a prima facie case of involuntariness, the issue can not be summarily determined adversely; the petitioner is entitled to an evidentiary hearing on the issue, as discussed in Manning, 742 F.2d at 1428:
[I]t would be appropriate for the MSPB to honor a request for hearing where a petitioner's allegations raise nonfrivolous issues of fact relating to jurisdiction which cannot be resolved simply on submissions of documentary evidence.
The MSPB failed to follow this procedure. The presiding official reviewed the...
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