                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                       2008-3248

                             JOSEPH E. MORRISSEY,

                                                          Petitioner,

                                         v.

                        DEPARTMENT OF THE TREASURY,

                                                          Respondent.

      Joseph E. Morrissey, of Aurora, Colorado, pro se.

       Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeanne E. Davidson, Director, and Kenneth M. Dintzer, Assistant
Director.

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                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2008-3248

                              JOSEPH E. MORRISSEY,

                                                      Petitioner,

                                           v.

                         DEPARTMENT OF THE TREASURY,

                                                      Respondent.



    Petition for review of the Merit Systems Protection Board in DE0752070394-I-1.

                           __________________________

                             DECIDED: October 14, 2008
                           __________________________


Before SCHALL, CLEVENGER, and LINN, Circuit Judges.

PER CURIAM.

      Joseph E. Morrissey (“Morrissey”) seeks review of a final decision of the Merit

Systems Protection Board (“Board”) dismissing his appeal for lack of jurisdiction.

Morrissey v. Dep’t of Treasury, No. DE-0752-07-0394-I-1 (M.S.P.B. Oct. 12, 2007)

(“Initial Decision”), review denied, Morrissey v. Dep’t of Treasury, No. DE-0752-07-

0394-I-1 (M.S.P.B. Mar. 17, 2007).      Because the Board correctly concluded that

Morrissey failed to raise a non-frivolous allegation that his retirement was involuntary

and thus tantamount to forced removal, we affirm.
                                    BACKGROUND

       Morrissey worked as a Contact Representative in the Internal Revenue Service

(“IRS”).   On August 22, 2005, Morrissey was placed on a sixty-day performance

improvement plan (“PIP”) because his performance was found deficient for his position.

On February 10, 2006, Morrissey received a letter of proposed removal, indicating that

Morrissey had failed to improve his performance during the sixty-day PIP period.

Morrissey, accompanied by his union representative, met with his supervisors to

discuss the proposed removal letter.        Although the letter does not mention any

outstanding tax debt or investigation, Morrissey alleges that a supervisor stated orally

during this meeting that Morrissey’s alleged underpayment of taxes for 2000 was a

separate ground for the proposed removal. At the time of the meeting, a tax fraud

investigation against Morrissey was pending. After the meeting, on February 14, 2006,

a Taxpayer Advisory Opinion concluded that the government had not proven by clear

and convincing evidence that Morrissey had committed tax fraud. Morrissey retired

from the IRS on February 28, 2006, before the agency could issue a decision on the

proposed removal action.

       On April 15, 2006, Morrissey filed an Equal Employment Opportunity complaint

against the IRS. Morrissey then appealed to the Board. The Board dismissed the

appeal for lack of jurisdiction, finding that Morrissey had failed to make a non-frivolous

allegation which, if proven, could establish that his retirement was involuntary. The full

Board denied Morrissey’s petition for review.

       Morrissey timely appeals.       We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).



2008-3248                               2
                                       DISCUSSION

        We must affirm the Board’s decision unless 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). We review determinations of the Board

concerning its jurisdiction de novo. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334

(Fed. Cir. 2008). Because the Board dismissed Morrissey’s appeal without affording

him a jurisdictional hearing, we review the record de novo to determine whether

Morrissey raised a non-frivolous allegation of jurisdiction.        Coradeschi v. Dep’t of

Homeland Sec., 439 F.3d 1329, 1332 (Fed. Cir. 2006).

        Morrissey is entitled to a jurisdictional hearing if he has raised a non-frivolous

allegation that, if proven, would establish the Board’s jurisdiction. Garcia v. Dep’t of

Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc).               The Board has

jurisdiction over Morrissey’s appeal if he can establish, by a preponderance of the

evidence, that his resignation was involuntary. Id. at 1328. Morrissey may establish

involuntariness by showing that “(1) the agency effectively imposed the terms of

[his] . . . retirement; (2) [he] had no realistic alternative but to resign or retire; and (3)

[his] . . . retirement was the result of improper acts by the agency.” Id. at 1329 (quoting

Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001)). Ultimately, this showing

must overcome the presumption that a resignation is voluntary. Cruz v. Dep’t of Navy,

934 F.2d 1240, 1244 (Fed. Cir. 1991) (en banc) (“Resignations are presumed

voluntary . . . .”).




2008-3248                                 3
       We agree with the Board that Morrissey failed make a non-frivolous allegation

that, if true, would establish that his retirement was involuntary. The Board found, and

the record shows, that Morrissey never argued that the IRS could not substantiate its

performance-based charges or did not follow proper removal procedures.               Initial

Decision, slip op. at 7. To the contrary, it is undisputed that Morrissey was placed on a

sixty-day PIP during which he was given weekly counseling sessions, on-the-job

training, and mentoring.    After failing to improve during this period, Morrissey was

notified in writing of his deficiencies and of his right to respond to the charges.

Accordingly, Morrissey failed to raise allegations that would establish that his retirement

resulted from “improper acts by the agency.” Garcia, 437 F.3d at 1329.

       On appeal, Morrissey argues only that the Board failed to consider the fact that a

supervisor was lying about Morrissey’s tax returns from 2001, 2002, and 2003. But

Morrissey’s tax returns from those years were not at issue in the proceedings below.

Before the Board, Morrissey argued only that the alleged underpayment of his 2000

taxes—not other years’ taxes—had been orally mentioned as a separate ground for

removal at a meeting with Morrissey’s supervisors. The Board expressly considered

this allegation regarding the 2000 taxes and arrived at its conclusion even assuming

that the statement had been made. Initial Decision, slip op. at 8. Morrissey has not

alleged facts that, if true, would establish that his supervisor’s statement was made in

bad faith or without basis. To the contrary, at the time the statement was made, the IRS

was investigating Morrissey’s underpayment of his 2000 taxes, thus providing ample

basis for the supervisor’s statement.




2008-3248                                4
      Because Morrissey has failed to raise a non-frivolous allegation that his

resignation was involuntary, we affirm the Board’s final decision.

                                         COSTS

      No costs.




2008-3248                                5
