Griessenauer v. Department of Energy

• Decision Date: 08 February 1985
• Docket Number: No. 84-1291,84-1291
• Citation: 754 F.2d 361
• Parties: Richard J. GRIESSENAUER, Petitioner, v. DEPARTMENT OF ENERGY, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 361

754 F.2d 361

Richard J. GRIESSENAUER, Petitioner, v. DEPARTMENT OF ENERGY, Respondent.

Appeal No. 84-1291.

United States Court of Appeals, Federal Circuit.

Feb. 8, 1985.

Robert J. Slade, argued, Stockton, Cal., for petitioner.

Ronald D. Schechter, argued, Dept. of Justice, Washington, D.C., for respondent. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Washington, D.C.

Before FRIEDMAN, BALDWIN and BISSELL, Circuit Judges.

FRIEDMAN, Circuit Judge.

This is an appeal from a decision of the Merit Systems Protection Board (Board) dismissing for lack of jurisdiction the petitioner's appeal from his resignation from federal employment. 20 M.S.P.R. 172 The petitioner contended (1) that he had not in fact resigned, and (2) that any resignation of his was involuntary. The Board rejected both contentions and, because its jurisdiction over resignations is limited to involuntary ones, dismissed the appeal for want of jurisdiction. We affirm and, since we conclude that the appeal is frivolous, assess costs and attorney's fees against the petitioner and his attorney.

I

On June 1, 1982, the petitioner, an employee of the Bonneville Power Administration, made a telephone call to his supervisor, Mr. Miller. Prior thereto, the petitioner had been the subject of several disciplinary actions by his agency. During the preceding 4 months, Miller had several conversations with the petitioner "concerning his job performance" and in which Miller told him he "had to improve his performance and '[a]lternatively, he could become subject to removal or he could resign.' "

There was a sharp disagreement in the testimony before the presiding official over what was said in that telephone conversation. The presiding official stated that Mr. Miller testified that

[the petitioner] informed him that he had talked at length with his wife about his problems at Bonneville, and had decided to resign. According to Mr. Miller, [the petitioner] wanted to resign immediately so the processing of the return of his retirement monies could commence. [The petitioner] states that this conversation never took place and instead maintains that Mr. Miller informed him that he had already processed his "resignation" and there was nothing he could do to change the situation. (Emphasis in original.)

The presiding official discussed in detail the parties' different versions of that conversation and other testimony relating to the petitioner's resignation, as well as the factors relating to the credibility of the witnesses. After a full review of the evidence, the presiding official stated that "to believe" the petitioner's "story," the testimony of Miller and three other agency witnesses "would have to be inaccurate or an outright fabrication. I find no basis to make such a finding." The presiding official then found:

After carefully viewing the demeanor of each witness during the hearing, I find Mr. Miller's testimony credible concerning his telephone conversation with [the petitioner] on June 1, 1982. I also find that by [petitioner's] own admission, Mr. Miller made efforts to help him ... and I do not credit [petitioner's] theory that Mr. Miller processed his resignation in order to avoid going through the formal procedures of actually terminating [the petitioner].

Thus, based on the documents submitted, the testimony of all the witnesses, and the respective credibility of each of these witnesses, I find [the petitioner] orally resigned on June 1, 1982, and the effective date of his resignation was June 1, 1982. I also find that [the petitioner] subsequently tried to retract his resignation on June 7, 1982. However, since [petitioner's] resignation was already effected, he could not revoke it at his option. (Record reference omitted.)

The Board granted a petition to review and affirmed the initial decision of the presiding official with one modification. The presiding official had concluded that the only question was whether the petitioner had resigned on June 1, 1982, and that the voluntariness of the resignation was not in issue. The Board held that voluntariness was an issue in the case. It then ruled:

We further find, however, that [the petitioner] has not carried his burden of establishing that the resignation was involuntary. Although the record indicates that [petitioner's] supervisor informed him that the agency would probably propose [petitioner's] termination if he did not resign, this fact, standing alone does not constitute duress or coercion sufficient to render the resignation involuntary.... The fact that appellant was faced with two unpleasant alternatives does not make the action taken involuntary.... Thus, we conclude that the presiding official's failure to rule on this issue did not prejudice appellant's substantive rights and did not, therefore, constitute harmful adjudicatory error.... Therefore, we find no basis to disturb the presiding official's finding that the resignation action was not within the Board's jurisdiction. (Citations and record references omitted.)

II

In his appeal to this court, the petitioner...