                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                      2007-3003



                            KATHRYNE E. SHELBORNE,

                                                            Petitioner,

                                          v.


                     MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.


      Kathryne E. Shelborne, of Reston, Virginia, pro se.

      Sara B. Rearden, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel,
and Raymond W. Angelo, Acting Associate General Counsel.

Appealed from: United States Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2007-3003

                             KATHRYNE E. SHELBORNE,

                                                 Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                 Respondent.

                            ___________________________

                            DECIDED: May 11, 2007
                            ___________________________


Before MAYER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.

PER CURIAM.

                                       DECISION

       Petitioner Kathryne Shelborne was employed by the Department of Commerce

as a patent examiner, a position from which she resigned in April 2005.               She

subsequently filed an appeal with the Merit Systems Protection Board, Docket No. DC-

0752-06-0334-I-1, alleging that her resignation was involuntary in that it was the result

of duress and coercion by the agency. The Board dismissed her appeal for failure to

make nonfrivolous allegations sufficient, if proved, to establish the Board’s jurisdiction.

Ms. Shelborne now seeks review of that decision. We affirm.
                                    BACKGROUND

       An employee who voluntarily resigns from her position has no right to appeal to

the Merit Systems Protection Board. See 5 U.S.C. §§ 7512, 7513(d); Staats v. U.S.

Postal Serv., 99 F.3d 1120, 1123–24 (1996). The Board assumes jurisdiction over an

appeal from a resignation only if the employee shows that the resignation was

involuntary and thus constituted a constructive removal. Based on the fact that Ms.

Shelborne had resigned from her position, the administrative judge assigned to her case

noted that the Board might not have jurisdiction over the appeal and ordered her to file

evidence and arguments to establish the Board’s jurisdiction.

       In response to the administrative judge’s order, Ms. Shelborne alleged that

various actions of her employer constituted the coercion and duress necessary to

establish that her resignation was involuntary. Ms. Shelborne also contended that she

needed discovery, which she claimed “could establish that her resignation was

involuntary.”

       The administrative judge ruled that discovery was not necessary to determine the

Board’s jurisdiction and ruled that Ms. Shelborne had failed to make any allegations

sufficient to establish the Board’s jurisdiction over the appeal. The administrative judge

noted that most of the events Ms. Shelborne described took place between a year and

12 years before Ms. Shelborne’s resignation and thus were too remote in time to be

regarded as contributing to her resignation. Addressing Ms. Shelborne’s allegations of

events closer in time to her resignation, the administrative judge explained that although

Ms. Shelborne may have been unhappy with criticisms of the quality of her work and

strict enforcement of leave policies, those are not improper actions that can reasonably




2007-3003                                   2
be regarded as coercing an employee to resign. The administrative judge therefore

denied Ms. Shelborne a jurisdictional hearing and dismissed her appeal. That initial

decision became the final decision of the Board when the full Board denied Ms.

Shelborne’s petition for review.

                                       DISCUSSION

       Ms. Shelborne petitions for review of the Board’s decision. We review without

deference the question whether she made nonfrivolous allegations of fact sufficient to

establish the Board’s jurisdiction. Coradeschi v. Dep’t of Homeland Sec., 439 F.3d

1329, 1332 (Fed. Cir. 2006).

       1. Ms. Shelborne argues that the administrative judge erred by failing to consider

two of the 13 allegations she raised to support her claim that she was coerced into

resigning.      First, she argues that the administrative judge overlooked her thirteenth

allegation, in which she stated that the agency “[s]ought advice by agency human

resources that encouraged these unfair personnel practices.” That allegation does no

more than refer to Ms. Shelborne’s other allegations of specific agency conduct and

state that agency employees collaborated in that conduct. The administrative judge

found that the underlying conduct was either justified or not coercive, or both, and Ms.

Shelborne has not contested that finding on appeal. The fact that the alleged treatment

may have been planned thus does not help Ms. Shelborne establish the Board’s

jurisdiction.

       Second, Ms. Shelborne states that the administrative judge ignored her twelfth

allegation, in which she stated that the agency “[c]aused Ms. Shelborne to use leave

due to this coercion and duress caused thereby.” That argument shares the same flaw




2007-3003                                     3
as Ms. Shelborne’s first argument—it identifies no improper agency conduct except by

referring to behavior already alleged.

       In short, even assuming that the administrative judge disregarded Ms.

Shelborne’s twelfth and thirteenth allegations, it would not have been error to do so

because those allegations were not relevant to whether the agency’s conduct would

have forced a reasonable person in her position to resign.

       2. Next, Ms. Shelborne argues that the administrative judge erred in finding her

resignation to be voluntary because the agency knew that she felt forced to resign

before her resignation took effect. Ms. Shelborne argues that the agency was aware of

her belief that she was forced to resign because she filed her appeal with the Merit

Systems Protection Board before her resignation became effective and because she

stated on her resignation form that her resignation was “forced.”

       Ms. Shelborne appears to contend that if the agency knew she felt coerced to

resign, her resignation must be regarded as involuntary as a matter of law. That is

incorrect.   A resignation is coerced when improper agency conduct would leave a

reasonable person in the employee’s position with no realistic choice but to resign.

Staats, 99 F.3d at 1124. Ms. Shelborne might have felt compelled to resign based on

what she felt were unfair agency actions, and she might have made that feeling known

to the agency, but her subjective feelings do not establish that a reasonable person

would have felt compelled to resign and thus do not show that the agency improperly

coerced her resignation.

       Ms. Shelborne’s arguments do not address the core reasoning of the

administrative judge’s ruling: that the agency’s demands that Ms. Shelborne produce




2007-3003                                   4
quality work and comply with leave policies were proper and would not have compelled

a reasonable person to resign. Ms. Shelborne has done nothing on appeal to show that

the administrative judge erred in reaching that conclusion, nor has she pointed to any

other agency conduct that could be considered sufficiently coercive to render her

resignation legally involuntary.

       3. Ms. Shelborne also contends that the administrative judge erred by staying

discovery and resolving the question of the Board’s jurisdiction based solely on her

pleadings. We disagree.

       The administrative judge dismissed Ms. Shelborne’s appeal not because Ms.

Shelborne was unable to document her allegations of jurisdiction, but because Ms.

Shelborne’s allegations were not sufficient, even if true, to establish the Board’s

jurisdiction.   It was not an abuse of discretion for the administrative judge, before

ordering the parties to engage in discovery, to require Ms. Shelborne to allege particular

conduct that was sufficiently coercive to cause a reasonable person to resign.




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