Jenkins v. Merit Sys. Prot. Bd.

• Decision Date: 02 January 2019
• Docket Number: 2017-2193
• Citation: 911 F.3d 1370
• Parties: Charles T. JENKINS, Jr., Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

911 F.3d 1370

Charles T. JENKINS, Jr., Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent

2017-2193

United States Court of Appeals, Federal Circuit.

Decided: January 2, 2019

Aaron Benjamin Frumkin, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, argued for petitioner.

Tara Jean Kilfoyle, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by Tristan Leavitt, Katherine Michelle Smith ; David Pehlke, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC.

Before Reyna, Wallach, and Taranto, Circuit Judges.

Dissenting opinion filed by Circuit Judge REYNA.

Wallach, Circuit Judge.

911 F.3d 1372

Petitioner Charles T. Jenkins, Jr. seeks review of a Merit Systems Protection Board ("MSPB") final decision dismissing his appeal for lack of jurisdiction. See Jenkins v. Dep’t of the Army , No. DA-0752-16-0080-I-2, 2017 WL 1209626 (M.S.P.B. Mar. 31, 2017) (J.A. 1–28).¹ We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We affirm.

BACKGROUND

For nearly thirty-three years, Mr. Jenkins was employed by the U.S. Department of the Army ("Army"), and prior to his retirement, worked as a Supervisory Army Community Services ("ACS") Division Chief. J.A. 71. From August 2010 to January 2012, Mr. Jenkins continually failed performance reviews and at one point served a three-day suspension in connection with submitting "an ACS Information Paper" to a higher command without routing and gaining the necessary approval through his first-level supervisor. See J.A. 400–06. As a result of his reviews, Mr. Jenkins was put on a Performance Improvement Plan ("PIP"). See J.A. 407–14. After notifying Mr. Jenkins that he failed his PIP, see J.A. 163, his first-level supervisor asked him whether he would be interested in moving to a nonsupervisory position at the same grade and pay level, J.A. 206. Mr. Jenkins refused. J.A. 119. In February 2012, Mr. Jenkins’s first-level supervisor proposed his removal for unacceptable performance. J.A. 38–46 (Notice of Proposed Removal). After receiving the Notice of Proposed Removal, but before he was officially removed by the Army, Mr. Jenkins sent an email to his first-level supervisor stating that "[e]ffective 31 March 2012 I will retire." J.A. 37.

Mr. Jenkins submitted written responses challenging the basis for his removal, however, after "consider[ation] and review[ of his] written reply," the Army issued a Final Removal Decision informing Mr. Jenkins that he would be removed from service effective April 1, 2012. See J.A. 237–39. That same day, March 21, 2012, the Army issued Mr. Jenkins a "Cancellation of Decision on Removal" stating "[Mr. Jenkins is] scheduled to retire from federal service effective 31 March 2012" and "[i]f [he] retire[s] from federal service on 31 March 2012, this memorandum will serve as revocation and cancellation effective 31 March 2012." J.A. 47. Following the Final Removal Decision, Mr. Jenkins indicated on a Standard Form-50 ("SF-50") that he intended to retire pursuant to his previously submitted retirement application, J.A. 241–43, stating "voluntary retirement effective 31 Mar[ch] [20]12" as his "[r]easons for [r]esignation/[r]etirement" J.A. 241. It is undisputed that the "revocation and cancellation ... of the [Notice of Proposed Removal]" took effect upon that March 31, 2012 retirement. J.A. 47 (Cancellation of Decision on Removal). Subsequently, Mr. Jenkins appealed to the MSPB alleging that his retirement was involuntary because the agency "proposed to remove" him if he did not retire. J.A. 31–35.²

911 F.3d 1373

In March 2017, the MSPB "dismissed [Mr. Jenkins’s appeal] for lack of jurisdiction." J.A. 21. Specifically, the MSPB found that it lacked jurisdiction over Mr. Jenkins’s challenge to the Army’s proposed removal because "the [Army] rescinded the removal decision upon [Mr. Jenkins]’s retirement" and nothing in the record indicated he sought to withdraw his retirement prior to the effective removal date. J.A. 6; see J.A. 336–38 (providing argument and evidence, by the Army, that the March 21, 2012 Decision of Proposed Removal issued "26-days after [Mr. Jenkins] filed an application of retirement"). The MSPB also found it lacked jurisdiction over his involuntary retirement claim because Mr. Jenkins failed to make a non-frivolous claim. J.A. 21.

DISCUSSION

Mr. Jenkins contends the MSPB erred by finding it lacked jurisdiction over his claim because: (1) "the Army issued [the] [F]inal [R]emoval [D]ecision before Mr. Jenkins retired," Pet’r’s Br. 17 (capitalizations modified); see id . at 17–25, and (2) its decision that his retirement was voluntary was not supported by substantial evidence due to the fact that his retirement was "based on misinformation" and "was obtained through coercion," id . at 26, 29; see id. at 25–33. We first discuss the relevant standards of review and legal standards, and then address each of Mr. Jenkins’s arguments.

I. Standard of Review

We will uphold a decision of the MSPB unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "unsupported by substantial evidence." 5 U.S.C. § 7703(c)(1), (3) (2012). We review whether the MSPB has jurisdiction over an appeal de novo. Johnston v. Merit Sys. Prot. Bd. , 518 F.3d 905, 909 (Fed. Cir. 2008). "Findings of fact underlying the [MSPB]’s jurisdictional decision are reviewed for substantial evidence." Bledsoe v. Merit Sys. Prot. Bd ., 659 F.3d 1097, 1101 (Fed. Cir. 2011) (internal quotation marks and citation omitted). "Substantial evidence is more than a mere scintilla of evidence, but less than the weight of the evidence." Jones v. Dep’t of Health & Human Servs. , 834 F.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation marks and citations omitted). "The petitioner bears the burden of establishing error in the [MSPB]’s decision." Harris v. Dep’t of Veterans Affairs , 142 F.3d 1463, 1467 (Fed. Cir. 1998).

II. The Improper Removal Claim

A. Legal Standard

The MSPB’s "jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation." 5 C.F.R. § 1201.3(a). The petitioner must establish by preponderant evidence that the MSPB has jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). Generally, the MSPB has jurisdiction over appeals of removals of non-probationary employees, based on unacceptable performance. See 5 C.F.R. § 1201.3(a)(5) ; 5 U.S.C. § 4303(e). "If an appealable action is canceled or rescinded by an agency, any appeal from that action becomes moot," thereby depriving the MSPB of jurisdiction. Cooper v. Dep’t of the Navy , 108 F.3d 324, 326 (Fed. Cir. 1997).

B. The MSPB Did Not Err in Holding It Lacked Jurisdiction over the Removal Claim

The MSPB held that, because "[Mr. Jenkins] retired before the removal

911 F.3d 1374

action was effected, and the [Army] rescinded the removal decision upon [his] retirement," the MSPB lacked jurisdiction over his appeal challenging the proposed removal. J.A. 6 (emphasis added). Mr. Jenkins avers the MSPB has jurisdiction over his appeal because his retirement date was "after the Army issued a final decision to remove him." Pet’r’s Br. 17 (emphasis added). We disagree with Mr. Jenkins.

The sequence of retirement and rescission is not controlling. Rather, the MSPB lacked jurisdiction because the Army rescinded its removal. The Army proposed removal of Mr. Jenkins on February 16, 2012, J.A. 38, Mr. Jenkins indicated his intent to retire on February 23, 2012, J.A. 236, and the Army issued its Final Removal Decision on March 21, 2012, J.A. 237–39. However, the same day his retirement went into effect, the Army rescinded the removal decision . J.A. 47 (Cancellation of Decision on Removal). The Army removed all references to the proposed removal action in Mr. Jenkins’s personnel file, thus eliminating any potential consequences the removal could have had on his retirement. See J.A. 240–43 (demonstrating that the Notice of Proposed Removal and SF-50 do not reference the removal decision), 333 (acknowledging the agency evidence and arguments were made under penalty of perjury), 358 (showing a printout of a chronological listing of Mr. Jenkins’s SF-50s from 2010 through 2012). This rescinding of the removal decision mooted Mr. Jenkins’s improper removal claim. See Cooper , 108 F.3d at 326 (explaining, "[i]f an appealable action is canceled or rescinded by an agency, any appeal from that action becomes moot" and that the petitioner’s appeal was moot because the agency, inter alia, removed "all references to [the removal action] from [his] official personnel file" thereby "eliminat[ing] all consequences of that action"). Therefore, the MSPB lacked jurisdiction to hear the appeal.

Mr. Jenkins’s primary counterargument fails. He contends that his challenge to the removal is appealable to the MSPB under 5 U.S.C. § 7701(j) because the MSPB "consider[ed] [his] ‘retirement status’ " when determining whether it had jurisdiction. Pet’r’s Br. 23. Section 7701(j) provides that the MSPB, in "determining the appealability ... of any case involving a removal from the service," may not take into account "an individual’s status under any...