               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
               not citable as precedent. It is a public record.

      United States Court of Appeals for the Federal Circuit


                                        05-3243


                                 LAURA E. LEGGATE,

                                                            Petitioner,

                                           v.

                          DEPARTMENT OF THE INTERIOR,

                                                           Respondent.


                          __________________________

                             DECIDED: June 16, 2006
                           __________________________


Before MAYER, LOURIE, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge MAYER. Dissenting opinion filed by Circuit
Judge DYK.

PER CURIAM.

      Laura E. Leggate appeals the decision of the Merit Systems Protection Board,

which dismissed her appeal for lack of jurisdiction. Leggate v. Dep’t of the Interior,

DE0752040105-I-1 (MSPB May 6, 2004). We affirm.

      This court may only reverse a board’s decision if it was arbitrary, capricious, an

abuse of discretion, or unlawful; procedurally deficient; or unsupported by substantial

evidence. See 5 U.S.C. § 7703(c). Whether the board has jurisdiction over an appeal
is a question of law that we review de novo. See Herman v. Dep’t of Justice, 193 F.3d

1375, 1378 (Fed. Cir. 1999).

       In order to obtain a hearing in front of the board, the petitioner must make “non-

frivolous allegations of jurisdiction supported by affidavits or other evidence . . .”

showing, in this case, that her resignation was involuntary.         See Dick v. Dep’t of

Veterans Affairs, 290 F.3d 1356, 1361-64 (Fed. Cir. 2002).              The court in Dick

specifically found that affidavits of a former government employee along with the

affidavits of several Department of Veterans Affairs physicians were sufficient to meet

the non-frivolous allegation standard. Id. at 1362-63. Because Leggate submitted only

her own affidavit, she failed to make a non-frivolous allegation that her resignation was

involuntary. As a result, the board did not have jurisdiction, and she was not entitled to

a hearing on the merits of her claim.

       Garcia v. Dep’t of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006),

overruled Dick only to the extent that it stood for the assertion that jurisdiction is

conclusively established by making non-frivolous claims of board jurisdiction. See 437

F.3d at 1342-44. Garcia did not overrule the portion of Dick that found affidavits of the

former government employee along with the affidavits of several DVA physicians to be

sufficient to support a non-frivolous allegation of jurisdiction, Dick, 290 F.3d at 1362-63.

       Even if in some circumstances an employee’s affidavit on its own could be

sufficient to support a non-frivolous allegation, the content of Leggate’s affidavit was

insufficient. The presumption that employee-initiated actions are voluntary has been

rebutted in two types of circumstances: (1) when the employee makes a non-frivolous

allegation that the agency was planning to take an adverse action against her; and (2)




05-3243                                      2
when the employee makes a non-frivolous allegation that the agency made her working

conditions intolerable. With regard to Leggate’s allegation that the agency was planning

adverse action against her, the “letter of instruction” had been withdrawn prior to her

resignation.     Moreover, to establish involuntariness of one’s resignation on such

grounds, one must show that the agency lacked reasonable grounds for that adverse

action.     Terban v. Dep’t of Energy, 216 F.3d 1021, 1026 (Fed. Cir. 2000).      Here,

Leggate admitted to the behavior on which the letter of reprimand was based.

Therefore, her allegation that these letters were proof that the agency planned to take

adverse action against her was insufficient to establish the involuntariness of her

resignation.

          The affidavit was also insufficient to support Leggate’s allegation that the

supposed hostile work environment was within the control of the agency, that her

working conditions were intolerable, and that there was a link between the working

conditions and her resignation. See id. at 1024-25 (setting out the requirements for

establishing intolerable working conditions).




05-3243                                     3
                         NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                           is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                             05-3243

                                     LAURA E. LEGGATE,

                                                                         Petitioner,

                                                v.

                              DEPARTMENT OF THE INTERIOR
                                                                         Respondent.



DYK, Circuit Judge, dissenting.

         I respectfully dissent.   In my view the portions of the petitioner’s affidavit

concerning the alleged harassment were sufficient to require a hearing before the

Board.
