                      NOTE: This disposition is nonprecedential


 United States Court of Appeals for the Federal Circuit

                                     2007-3019



                                    RAJAN ZED,

                                                           Petitioner,


                                          v.


                        UNITED STATES POSTAL SERVICE,

                                                           Respondent.


      Rajan Zed, of Reno, Nevada, pro se.

       Roger A. Hipp, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and
Deborah A. Bynum, Assistant Director.

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                       NOTE: This disposition is nonprecedential.

      United States Court of Appeals for the Federal Circuit

                                       2007-3019

                                      RAJAN ZED,

                                                 Petitioner,

                                            v.

                         UNITED STATES POSTAL SERVICE,

                                                 Respondent.

                                ____________________

                                DECIDED: April 4, 2007
                                ____________________

Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and LOURIE,
Circuit Judge.

PER CURIAM.

       Rajan Zed petitions for review of the final decision of the Merit Systems

Protection Board (the “Board”) that dismissed his appeal for lack of jurisdiction. Zed v.

U.S. Postal Serv., No. SF-0752-06-0251-I-1 (M.S.P.B. Aug. 15, 2006). Because the

Board correctly determined that it lacked jurisdiction to review Zed’s appeal, we affirm.

                                     BACKGROUND

       Zed began employment at the United States Postal Service (“USPS”) on June

21, 1997. From about October 2004 through November 2005, Zed was in a “leave

without pay” status. On December 20 and 27, 2004, Zed underwent fitness-for-duty

examinations and was found able to return to work.             Zed did not return to work,

however, and submitted medical documents stating that he was under the care of a
physician and should be excused from work. None of the documents stated why Zed

was under the physician’s care.

      On November 10, 2005, the USPS issued Zed a notice of proposed separation

from his position as a Supervisor Distributions Operations for physical inability to

perform the duties of his position. On December 16, 2005, Zed submitted his

resignation, effective December 19, 2005, stating his reason as, “Management inability

to move me to daytime same grade level job despite repeated requests.” On January 6,

2006, Zed filed a petition for review to the Board contending that his resignation was

involuntary and made under duress because he was told that if he did not resign, he

would be terminated.

      The Administrative Judge (“AJ”) granted the USPS’s motion to dismiss Zed’s

petition for lack of jurisdiction. The AJ found that Zed failed to make a non-frivolous

allegation that his resignation was involuntary or the result of agency coercion or

duress. The AJ observed that the record established that Zed was given a notice of

proposed separation based on his extended absence from the workplace and was

provided the options of filing for a disability retirement or resigning in lieu of being

separated for physical inability to perform the duties of his position. The AJ noted that

the agency did not act improperly in communicating options to Zed. The AJ noted that

there is a presumption of voluntariness when an employee retires and the fact that an

employee is faced with the unpleasant choice of either resigning or being separated

does not rebut that presumption.

      Zed appealed the AJ’s decision to the full Board, which denied his petition for

review, thereby rendering the AJ’s decision final. See 5 C.F.R. § 1201.113(b) (2004).




2007-3019                                  2
Zed timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9) (2000).

                                    DISCUSSION

      The scope of our review in an appeal from a decision of the Board is limited. We

must affirm the Board’s decision unless it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the 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) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003). Whether the Board has jurisdiction to adjudicate

a particular appeal is a question of law that we review de novo. Campion v. Merit Sys.

Prot. Bd., 326 F.3d 1210, 1213 (Fed. Cir. 2003). Zed, as the petitioner, has the burden

of establishing the Board’s jurisdiction by a preponderance of the evidence. See id. at

1213-14.

      On appeal, Zed argues that the Board failed to consider the totality of the

circumstances surrounding his resignation, and, if it had done so, it would have found

that a reasonable person in his position would have felt compelled to resign.       Zed

contends that he was humiliated, intimidated, and threatened at work and therefore felt

compelled to resign. Zed also notes that in a meeting with the Plant Manager, Zed

asked what would happen if he did not resign and he was told that he would be

terminated. Thus, Zed contends that his only reasonable alternative was to resign, and

that his resignation was made under duress.

      The government responds that the Board correctly dismissed Zed’s appeal for

lack of jurisdiction. The government observes that the AJ properly found that Zed did




2007-3019                                  3
not make non-frivolous allegations that his resignation was involuntary.              The

government argues that even if Zed’s allegations concerning a hostile working

environment were true, he would still not be able to prove that he had no alternative but

to resign. The government also argues that the AJ correctly found that Zed did not

make non-frivolous allegations that his resignation was coerced by the USPS because

his allegations of coercion were based only on the USPS’s stated intention to separate

him if he did not resign. The government observes that Zed had the option of not

resigning, remaining in his position and contesting the separation, but that he elected to

resign.

      We agree with the government that the Board correctly dismissed Zed’s appeal

for lack of jurisdiction. A decision to resign is presumed to be voluntary and is usually

beyond the Board’s jurisdiction. Staats v. U.S. Postal Serv., 99 F.3d 1120, 1123-24

(Fed. Cir. 1996). In order to overcome the presumption of voluntariness, an employee

must make a non-frivolous allegation that the resignation was the result of

misinformation, deception, or coercion by the agency.         Id.   To establish that a

resignation was involuntary based on coercion by the agency, an employee must show

that the agency effectively imposed the terms of the employee’s resignation, that the

employee had no realistic alternative but to resign, and that the employee’s resignation

was the result of improper acts by the agency. Id.

      As the AJ correctly observed, Zed was given the option of resigning in lieu of

being separated for a physical inability to perform the duties of his position. Zed chose

the former option. Even though Zed believed that that option may not have been the

happiest for him, presenting options to an employee does not constitute agency




2007-3019                                   4
coercion. Zed further stated that another reason he resigned was that he was not

transferred to a daytime position.   That reason also does not demonstrate agency

coercion. Based on the evidence of record, the agency thus acted properly in

communicating to Zed his options of resigning or being separated.        Neither that

communication, nor any other agency action, rose to the level of coercion, and the AJ

therefore properly found that Zed failed to make non-frivolous allegations that his

resignation was involuntary. Accordingly, we affirm.




2007-3019                                  5
